Can pro bono fill the legal aid gap?

Family Law|September 15th 2015

Over the weekend there was a story in the national media to the effect that the demand for free, or pro bono, legal help has almost doubled since the legal aid cuts in 2013. The story also said that lawyers are warning that pro bono cannot fill the gap in provision left by the cuts.

Now, we have of course already had a call from our new Lord Chancellor for “the most successful in the legal profession” to provide more of their time pro bono, in what appears to be a clear effort to fill the legal aid gap. But is it realistic to expect that gap to be filled by lawyers providing their services for free? I thought I would attempt a brief examination of this question.

Disclaimer: What follows is entirely unscientific, and probably also full of logical flaws. However, hopefully it does give some idea of what would be required if family lawyers were to fill the legal aid gap by offering their services for free.

The first question is: how big is the gap, at least as far as family matters are concerned? Well, statistics from the Legal Aid Agency show that prior to the cuts there were about 130,000 family legal aid certificates granted each year. In the last full year there were 76,000, a drop of about 54,000.

So pro bono family lawyers would have to deal with an extra 54,000 cases a year to fill the gap. The next question, it seems, is how many family lawyers are there, available to do that work?

There are, of course, statistics for the numbers of lawyers practising in this country (there are about 120,000 solicitors), but I’m not aware of any statistics indicating what subject areas those lawyers deal with. A clue, perhaps, comes from Resolution, the association of family lawyers, which boasts a membership of 6,500. Obviously, though, not all family lawyers are members of Resolution, so the total figure is going to be somewhat higher than that. I would suggest that a figure of 10,000 family lawyers in England and Wales is probably not far off of the mark.

So if I am anywhere near the reality (and I am fully open to correction), that means that, on average, each family lawyer will have to take on about five and a half new cases each year to fill the legal aid gap. That seems at first sight quite doable, but how much would it cost those lawyers?

Again, my figures here become quite murky, and my source is once again the latest statistics from the Legal Aid Agency. Those statistics indicate that in the last full year, 2014-15, there were, as mentioned above, 76,000 family legal aid certificates granted. In that same year the costs met by the Legal aid Agency in respect of family certificates completed was some £642 million.

If we divide £642 million by 76,000 we get a figure of roughly £8,500. That seems to me to be a reasonable average cost of a family legal aid certificate. Remember, however, that this figure is at legal aid rates, which are substantially less than private client rates.

So, if each family lawyer does five and a half pro bono cases each year, and those cases average a cost of £8,500, that means that each family lawyer will do £46,750 worth of work for free each year, at legal aid rates. At private client rates, the figure would probably be at least double that.

Now, I’ll repeat my disclaimer that the above analysis is entirely unscientific. However, even if it is remotely close to reality, it suggests to me that it is completely unrealistic to expect the legal aid gap to be filled by pro bono work. Very few lawyers, especially those in the High Street who do the majority of family work, could afford a cut in their fee income of nearly £50,000 a year, or anywhere near that figure. And even if they could afford it, why should they have to endure it? Could you imagine, for example, a doctor or a dentist taking a similar cut in their fee income?

Pro bono has increased since 2013, and it is therefore reducing the legal aid gap. However, we cannot reasonably expect any more than that. The only real way to fill the gap is to re-introduce proper legal aid provision.

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