I remember years ago seeing a list of the top 100 occupations, ordered by how highly they were regarded by the public. At the top, of course, were doctors and nurses, followed by such highly esteemed people as firemen/women, teachers, and so on. Lawyers came near the bottom of the list, as I recall one up from estate agents.
But there is surely one aspect of the legal profession that sets them above most other occupations: that they are prepared to offer their services for free. Perhaps not doing ourselves any favours we refer to such free work by the Latin term ‘pro bono’, which probably doesn’t mean a lot to many non-lawyers, but is a shortening of ‘pro bono publico’, or in English ‘for the public good’. How many other professions or occupations are prepared to regularly offer their services for the good of the public, with no financial reward for themselves?
Pro bono work has always been a feature of the professional lives of many family lawyers, but its importance has of course increased substantially over recent years, particularly since the abolition of legal aid for most private law family matters in 2013. Indeed, the Government has, with unabashed audacity, suggested that lawyers do more pro bono work to fill the gap left by the removal of legal aid.
But lawyers did not need the Government to tell them about the problem of litigants needing legal assistance. Lawyers, especially those who put themselves in the public eye, are already being bombarded with requests for help from desperate people caught up in the strange and frightening world of the family justice system. In a small way I can vouch for this myself, as I still receive requests for help, despite the fact that I stopped practising eight years ago. I have to explain that I am no longer able to help, but I try to direct the requests to someone who can. My problem, however, is as nothing to other family lawyers.
Over the weekend there was a cri de cœur from a certain well-known family lawyer on Twitter, declaring how tired she was of having to tell desperate people begging for her to help them that she couldn’t deal with their case for free. And before anyone even thinks it, she does do a considerable amount of pro bono work, and also provides advice for litigants in other ways, but there is of course a limit to the amount of time that any lawyer can spend without earning a living. Her tweet ended with the words: “Hate this broken system.”
The tweet was followed by a conversation on Twitter, during the course of which another lawyer suggested that the only way to get change is to refuse to do such work for free, and to let the system descend into chaos, if it hasn’t already. The family lawyer responded that she had thought long and hard about that option, but she couldn’t do it. In any event, she said, the system was in chaos anyway.
The idea of withdrawing all pro bono services in the hope that it will force the Government into reinstating legal aid, or at least providing some proper legal help to litigants who cannot afford a lawyer, is of course nothing new. It is I’m sure a sad fact that every lawyer doing pro bono work worries that their generosity is being taken advantage of, that they are guilty of playing the Government’s game, helping the Government ‘get away’ with the disastrous policy of denying proper legal help to the less well off in society, and thereby creating a two-tier system, in which only the better off have proper access to justice.
Withholding pro bono is a tempting idea. Surely, if no litigants were provided with legal help then there would be such an uproar that the Government would be shamed into doing something about the problem?
Unfortunately, there are a number of issues with this argument. First and foremost, the Government has no shame. It does not care about what is, in the scheme of things, a small number of people with a problem. It does not care about access to justice, or the fact that we have a two-tier justice system. It only cares about money, even if the amount saved is a drop in the ocean of the Government’s finances.
And in any event, pro bono work can’t fill the huge gap left by the abolition of legal aid. It can only scratch the surface of the problem. Stopping all pro bono work won’t make an awful lot of difference to the problem.
Then there are the other providers of free or cheap legal assistance, such as Citizen’s Advice, McKenzie friends and others. They will still carry on. Pro bono isn’t the only source of help to litigants in need.
But above all, as that family lawyer on Twitter said, the system is already in chaos. It is broken. It can’t get much worse. If the Government aren’t going to respond now, they are never going to respond. Stopping all pro bono work will make no difference to the limited thought-patterns of Government ministers. They are fully aware of the problem, but they have washed their hands of it, and a few more unrepresented litigants is going to do nothing to change that.