Title: To what extent is there a duty on lawyers in England and Wales to provide pro bono services to those in need? Should this duty be a legal, ethical or personal one?<\/p>\n
Introduction<\/strong><\/p>\n In England and Wales, Emergence of Pro Bono in England and Wales<\/strong><\/p>\n It is important to first Current need of pro bono<\/strong><\/p>\n In the present day, the Rationale of Pro Bono<\/strong><\/p>\n As Rhode mentioned, the Should it be legal?<\/em><\/strong><\/p>\n If Pro Bono were to The proponents agree Moreover, the When pro bono is On the whole, pro bono work What being Ethics is defined in Ethical issues However, from an Ethics and Ethics and Lawyers should In addition, Reform needed?<\/em><\/strong><\/p>\n Although pro bono work being personal is the best choice, Conclusion<\/strong><\/p>\n In general, the \u201cSpeak up for those who cannot speak for themselves, for the rights of all who are destitute. Speak up and judge fairly; defend the rights of the poor and needy.\u201d<\/p>\n<\/blockquote>\n If lawyers have the ability to do so, they should always try to help to meet the need. <\/p>\n Bibliography<\/strong><\/p>\n Primary sources<\/p>\n Secondary [1]<\/a> Sameena Manzar, \u2018What is Pro Bono?\u2019 (AllAboutLaw, 22 July 2016) [2]<\/a> Andrew Boon and Jennifer Levin, The [3]<\/a> Ibid 311<\/p>\n [4]<\/a> Editorial, \u2018Top-paid silk agrees to work for nothing\u2019 (The Times<\/em>, 9 [5]<\/a> Robert [6]<\/a> Legal Aid, Sentencing and [7]<\/a> Legal Aid Agency, \u2018Criminal Legal Aid: Means Testing\u2019 (gov.uk<\/em>, 1 June 2014) <https:\/\/www.gov.uk\/guidance\/criminal-legal-aid-means-testing> [8]<\/a> Monidipa Fouzder, \u2018Exceptional case funding scheme \u2018inaccessible\u2019, [9]<\/a> –Clinics Network Report (LawWorks 2017) [10]<\/a> Deborah L. Rhode, Access to [11]<\/a> ibid<\/p>\n [12]<\/a> Convention for the Protection of Human Rights and Fundamental [13]<\/a> Rhode (n 10)<\/p>\n [14]<\/a> ibid<\/p>\n [15]<\/a> Ross Cranston, Large Law Firms and Professional Responsibility [16]<\/a> Esther F.Lardent, \u2018Mandatory Pro Bono in Civil Cases: The Wrong [17]<\/a> Rhode (n 10)<\/p>\n [18]<\/a> ibid<\/p>\n [19]<\/a> Jonathan R. Macey, ‘Mandatory Pro Bono: Comfort for the [20]<\/a> Rhode (n 10)<\/p>\n [21]<\/a>\u2018Ethics\u2019 (OED Online, OUP 2018) [22]<\/a>\u2018Ethical behaviour\u2019 (BusinessDictionary.com, WebFinance,Inc. 2018) [23]<\/a> Cranston (n 15)<\/p>\n [24]<\/a> Robert Granfield , \u2018The Meaning of Pro Bono: Institutional [25]<\/a> Andrew Boon & Avis Whyte \u2018\u201cCharity and Beating Begins at Home\u201d: [26]<\/a> Chesterfield H. Smith, \u2018A Mandatory Pro Bono Service Standard – Its [27]<\/a> Mark Sobus, Mandating Community Service: Psychological Implications [28]<\/a> Smith (n 26)<\/p>\n [29]<\/a> Lardent (n 16)<\/p>\n [30]<\/a> ibid<\/p>\n [31]<\/a> Boon and Levin (n 2) <\/p>\n [32]<\/a> Lardent (n 16) <\/p>\n [33]<\/a> Scott L. Cummings, The Politics of Pro Bono (2004) 52 UCLA L. Rev.
\nPro Bono services is a platform for lawyers to contribute voluntarily to the
\npublic. As defined in AllAboutLaw website, pro bono is shortened from the Latin
\nterm \u201cpro bono publico\u201d, which means \u201cfor the public good.\u201d[1]<\/a> I agree with the system in England and Wales that
\ngives choices for lawyers in their profession, whether or not to involve
\nthemselves in pro bono work. This essay will, firstly, understand the lawyer\u2019s
\nduty in providing pro bono services in England and Wales, and secondly, to
\nconsider the type of system which is the best for pro bono work. The three
\nchoices i.e. legal, ethical and personal have its own advantages and
\ndisadvantages. In my humble view, I have concluded that pro bono like any other
\ntype of charity should be made \u2018personal\u2019.<\/p>\n
\nappreciate the history of pro bono in England and Wales in order to understand
\nthe nature of pro bono work. In 1995, wealthy law firms in England and Wales were
\nthreatened by Paul Boateng, the Labour Party legal affairs spokesman, with a \u2018framework for them\u2019 to make a
\ncontribution to \u2018the traditional duty and responsibility of lawyers as a
\nprofession to the proper and equitable administration of justice\u2019.[2]<\/a> It takes the meaning that pro bono<\/em> work would be made a condition
\nof practice.[3]<\/a> The Law Society then opposed it by
\nestablishing a Pro Bono Working Party.[4]<\/a> It recommended that solicitors
\nshould not be subject to a mandatory professional obligation to provide free
\nlegal services, stressing that the profession should not restructure or amends,
\nby the provision of free services, the growing legal need created by declining
\nlegal aid budgets. They also suggested abandoning the term pro bono publico <\/em>while in favour of \u2018voluntary legal services\u2019. [5]<\/a> The concept of \u2018voluntary legal services\u2019 is still
\nexercised and remains the same today. <\/p>\n
\naccess to legal advice and representation have significantly been reduced due
\nto cuts of legal aid, reduced funding for law centres and local advice
\nservices. For instance, the major cuts to the legal aid laid out by Legal Aid,
\nSentencing and Punishment of Offenders (LASPO) Act 2012[6]<\/a> have led to the lack of legal aid provider, the new
\nlegal aid means test[7]<\/a> introduce a rigid allowance to limit the eligibility
\nfor legal aid and the Exceptional Case Funding(ECF) scheme has failed to
\nfunction as an effective safety net due to unrealistically strict criteria.[8]<\/a> The needy were left with no other choices in
\naccessing to justice except through pro bono services. This is their only way in accessing to justice
\nregardless of financial abilities. In addition, it has
\nbeen shown in LawWorks\u2019 Clinics Network Report, that there is an increment of
\n80% in demand for pro bono advice clinics during the period of April 2016 to
\nMarch 2017[9]<\/a>. It is clear to us that the demand for pro bono
\nservices is increasing. For this reason, lawyers do have a duty to provide free
\nlegal aid to the needy. However, this should not be a legal or ethical duty,
\nbecause a personal one will be much more suitable and effective.<\/p>\n
\nrationale for pro bono work based on two central claims.[10]<\/a> Firstly, it involves the value to society of addressing unmet legal
\nneeds.[11]<\/a> This is because inadequate legal assistance jeopardizes individual
\nrights[12]<\/a> and lawyers see the need to provide access of free legal services to
\nthose who could not afford it. The second justification involves the value to
\nlawyers, individually and collectively, of such charitable contributions.[13]<\/a> Providing pro bono services will benefit individual personally and
\nprofessionally. It was known that regular volunteering is correlated with
\nphysical as well as mental health. [14]<\/a> However, \u2018volunteering\u2019 is the one condition to obtain these benefits.<\/strong><\/p>\n
\nbe legal, it must have been imposed by law. Pro bono will then be mandatory for
\nall lawyers. <\/p>\n
\nso because the surplus of income after lawyers obtaining professional legal
\nstatus justifies the obligation of providing pro bono work. It is also a
\ndisplay of professional nobility. However, forcing pro bono work is a violation of individual rights and liberties of lawyers. It jeopardises
\nthis professional paid work.<\/p>\n
\nproponents acknowledged that if pro bono work is mandatory, it will act as a
\nthrust.[15]<\/a> Hence pro bono work become more feasible as lawyers will
\nbe more efficient in working. They will make time for pro bono work and produce
\na higher quality of pro bono work.[16]<\/a> Even so, it will be ineffective
\nand cause the failure in achieving the objective of pro bono. If it were to be
\nmandatory, lawyers who lacks motivation and expertise will not offer effective
\nassistance to the underrepresented groups.[17]<\/a> Their insensitivity and inexperience in dealing with low-income clients
\nwill compromise the objectives of pro bono. Pro bonowork is supposed to be a work for the benefits of the public. By
\nrequiring them to contribute their low quality work cannot solve the problem of
\nunequal access to justice[18]<\/a>.<\/p>\n
\nmandatory, lawyers will also force themselves to give pro bono services, even
\nwhen it is not required. For example, people who are poor did not prioritise
\nlegal advice as they have much more eager needs such as food, shelter and
\nclothing.[19]<\/a> This forcing in giving legal aid may cause more harm
\nthan benefits to the poor. In the end, pro bono will be given to those who
\n\u2018want\u2019 but not those who \u2018need\u2019.<\/p>\n
\nenforced by law will be a \u2018compulsory charity\u2019. This term is contradicting.[20]<\/a> Imposing of legal duty on a person also contradicts the essence of voluntary
\nwork and charity. <\/p>\n
\nethical means?<\/em><\/strong><\/p>\n
\nOxford Dictionary as \u2018moral principles that govern a person’s behaviour or the
\nconducting of an activity.\u2019 [21]<\/a>
\nIn Business Dictionary, being ethical means \u2018acting in ways consistent with
\nwhat society and individuals typically think are good values.\u2019[22]<\/a>
\nGenerally, in the context of legal profession, ethics is a set of \u2018moral rules\u2019
\nset out by legal professional organizations or large law firms for lawyers to follow. Pro bono, is recognised as a good value by most people
\nand therefore is set out as an \u2018ethical rule\u2019. Hence, lawyers will have
\nto do pro bono work as an \u2018ethical commitment\u2019.
\nAlthough this \u2018ethical rule\u2019 is not enforceable, still it provides a
\npowerful push.[23]<\/a> <\/p>\n
\nin an organisation<\/em><\/strong><\/p>\n
\ninstitutionalist perspective, in spite of this specific rule, the ethical pro
\nbono work is influenced by organisation such as institution pressure, lawyers\u2019
\nwork place, cultural expectations, market pressures and public preferences.[24]<\/a>
\nThe main reason why lawyers are easily influenced is because they do not
\nprovide pro bono work sincerely and merely do it as it is \u2018morally right\u2019 to
\ngain public acceptance. Being a lawyer can be challenging as some firms providing pro bono services for the
\nwrong reasons, such as for marketing purposes, which challenges the motives to
\nsuch an extent that it is not an ethical act. The exploitation of pro bono as
\nan instrument to promote commercial interest conflicts with the professional
\nidea of pro bono as an act of individual kindness.[25]<\/a> <\/p>\n
\nintegrity<\/em><\/strong><\/p>\n
\nintegrity is different. If pro bono were to be an ethical duty, lawyer will
\njust carry out their duties in accordance to the \u2018moral principles\u2019 which was
\nformed by the rules and regulations. Whereas if pro bono work were to be an
\nintegral duty, they will show integrity such as being honest and fair when
\nproviding legal help. It is obvious that integrity prevails over ethical principle.
\nHence, pro bono being a personal one is a better choice. When lawyers were
\ngiven a choice to choose whether to do pro bono work or not, they do their work
\nmore willingly, hence will give their best and serve the needs sincerely. As
\nSmith realised that, \u201cthe limits of a lawyer’s free public service must be as
\nbroad and flexible as his own imagination and experience.\u201d [26]<\/a>
\nA lawyer that did not do pro bono work cannot be assumed as \u2018unethical\u2019 as it
\nwill be \u2018unethical\u2019 to force lawyers to provide pro
\nbono. Lawyers should have their own right to choose
\npreferences in doing the work they want to. All in all, lawyers should not be
\nlimited to any rules or principles because drawing on studies of helping
\nbehaviour, individuals are more likely to provide sustained and quality service
\nif they are doing so voluntarily than if they are fulfilling a requirement. [27]<\/a>\n<\/p>\n
\nalso be committed to pro bono work in order to provide a good service. This
\ngenerally means that lawyers should only get involved if they have that
\ncommitment. Good quality pro bono will certainly help lawyers to improve their
\nskills in the profession and also develop them to become a better person in
\nlife as it exposes lawyers to new perspective on social and other cultural
\nproblems unconnected to their experience.<\/p>\n
\npersonal is a better choice as some lawyers may find that contributing cash is
\nfar more practical than contributing their time. They may not have the ability
\nto provide free legal advice but they can contribute their wealth, which is
\nmuch needed in pro bono work. This priceless and unique measure of professional
\ndevotion remains the best contribution the lawyer can make to the public
\ninterest.[28]<\/a> <\/p>\n
\nthere should still be a commitment in making voluntary pro bono as effective as
\npossible.[29]<\/a>
\nThis includes having real incentives for pro bono participation for example
\nproviding special benefits to lawyers active in pro bono. There should also be
\na commitment in improving the resources and operations of the current voluntary
\npro bono infrastructure so that the existing programs can meet their potential.
\nThe current voluntary system is underfunded, unfocused, and inadequately
\nstructured. We should strive to make that system function effectively.[30]<\/a> The
\ninvolvement of the professional bodies may also be needed to address the
\ndelicate balance between ethics and commercialism and to ensure that pro bono
\npublico publicity is used sensitively and to promote the profession as a whole.[31]<\/sup><\/a><\/p>\n
\npro bono system in England and Wales has been improving as there are regulatory
\nbodies of the legal profession such as National Pro Bono Centre and LawWorks. Mandatory
\npro bono will not increase services, enhance professionalism, or improve the
\nperformance of existing pro bono programs.[32]<\/a>
\nIt is the selfless public spirit that defines the legal profession. Pro bono
\nshould remain as a personal one to allow individual lawyers unwilling or unable
\nto do without the benefits of law firm employment to shape a meaningful career
\npath that integrates a commitment to public service.[33]<\/a>
\nGod calls upon persons of faith to share their skills and resources with those
\nin need, as is expected of a good neighbour.[34]<\/a>
\nAs mentioned in the bible in Proverbs 31:8-9, <\/p>\n\n
\n
\nof Human Rights and Fundamental Freedoms (European Convention on Human Rights,
\nas amended) (ECHR) art 6<\/li>\n
\nPunishment of Offenders Act 2012<\/li>\n<\/ul>\n
\nsources<\/p>\n\n
\n(LawWorks 2017) <https:\/\/www.lawworks.org.uk\/sites\/default\/files\/LawWorks%20Clinics%20Report%202016-17.pdf>
\naccessed 15 December 2018<\/li>\n
\n2018)
\n<http:\/\/www.businessdictionary.com\/definition\/ethical-behavior.html> accessed
\n18 December 2018<\/li>\n
\n<https:\/\/en.oxforddictionaries.com\/definition\/ethics> accessed 18
\nDecember 2018<\/li>\n
\nProvision of Free Legal Services by Solicitors: A Review of the Report of the
\nLaw Society\u2019s Pro Bono Working Party\u2019 (1995) 2 International Journal of the
\nLegal Profession 261<\/li>\n
\nAgendas? Pro Bono Publico in Large Law Firms in the United Kingdom (1997) 60 The Modern Law Review 630<\/li>\n
\nand Conducts of Lawyers in England and Wales (2nd edn, Hart Publishing 2008)<\/li>\n
\nand Beating Begins at Home\u201d: The Aetiology of the New Culture of Pro Bono
\nPublico\u2019 (1999) 2 Legal Ethics 169<\/li>\n
\nProfessional Responsibility (Oxford Scholarship Online 1996) 198<\/li>\n
\nPro Bono (2004) 52 UCLA L. Rev. 1, 100 <\/li>\n
\nagrees to work for nothing\u2019 (The Times, 9 Oct 1995)
\n<https:\/\/www.nexis.com\/docview\/getDocForCuiReq?lni=3T2M-7M80-00H1-F2B3&csi=280434&oc=00240&perma=true>
\naccessed 18 December 2018<\/li>\n
\nfunding scheme \u2018inaccessible\u2019, High Court told\u2019 (Law Society Gazette<\/em>, 10 June 2015) <https:\/\/www.lawgazette.co.uk\/law\/exceptional-case-funding-scheme-inaccessible-high-court-told\/5049313.article>
\naccessed 17 December 2018<\/li>\n
\nPro Bono: Institutional Variations in Professional Obligations among Lawyers\u2019
\n(2007) 41 Law & Society Review 113<\/li>\n
\nBono in Civil Cases: The Wrong Answer to the Right Question\u2019 (1990) 49(1) Md L
\nRev 78<\/li>\n
\nLegal Aid: Means Testing\u2019 (gov.uk<\/em>, 1
\nJune 2014) <https:\/\/www.gov.uk\/guidance\/criminal-legal-aid-means-testing>
\naccessed 17 December 2018<\/li>\n
\nComfort for the Poor or Welfare of the Rich ‘ (1991-1992) 77 Cornell L Rev 1115<\/li>\n
\n<https:\/\/www.allaboutlaw.co.uk\/stage\/pro-bono\/what-is-pro-bono> accessed
\n19 December 2018 <\/li>\n
\nof Lawyers’ Pro Bono Responsibilities: From Chance Noblesse Oblige to Stated
\nExpectations (2002) 77 Tul. L. Rev. 91<\/li>\n
\n(OUP 2004)<\/li>\n
\nBono Service Standard – Its Time Has Come\u2019 (1981) 35 University of Miami Law
\nReview 727 <\/li>\n<\/ul>\n
\n
\n<https:\/\/www.allaboutlaw.co.uk\/stage\/pro-bono\/what-is-pro-bono> accessed 19
\nDecember 2018<\/p>\n
\nEthics and Conducts of Lawyers in England and <\/em>Wales (2nd edn, Hart
\nPublishing 2008) 310<\/p>\n
\nOct 1995) <https:\/\/www.nexis.com\/docview\/getDocForCuiReq?lni=3T2M-7M80-00H1-F2B3&csi=280434&oc=00240&perma=true>
\naccessed 18 December 2018<\/p>\n
\nAbbey and Andy Boon, \u2018The Provision of Free Legal Services by Solicitors: A
\nReview of the Report of the Law Society\u2019s Pro Bono Working Party\u2019 (1995) 2
\nInternational Journal of the Legal Profession 261<\/p>\n
\nPunishment of Offenders Act 2012<\/p>\n
\naccessed 17 December 2018<\/p>\n
\nHigh Court told\u2019 (Law Society Gazette<\/em>,
\n10 June 2015) <https:\/\/www.lawgazette.co.uk\/law\/exceptional-case-funding-scheme-inaccessible-high-court-told\/5049313.article>
\naccessed 17 December 2018<\/p>\n
\n<https:\/\/www.lawworks.org.uk\/sites\/default\/files\/LawWorks%20Clinics%20Report%202016-17.pdf>
\naccessed 15 December 2018<\/p>\n
\nJustice <\/em>(OUP, 2004) 227<\/p>\n
\nFreedoms (European Convention on Human Rights, as amended) (ECHR) art 6<\/p>\n
\n(Oxford Scholarship Online 1996) 198<\/p>\n
\nAnswer to the Right Question\u2019 (1990) 49(1) Md L Rev 78<\/p>\n
\nPoor or Welfare of the Rich ‘ (1991-1992) 77 Cornell L Rev 1115<\/p>\n
\n<https:\/\/en.oxforddictionaries.com\/definition\/ethics> accessed 18
\nDecember 2018 <\/p>\n
\n<http:\/\/www.businessdictionary.com\/definition\/ethical-behavior.html>
\naccessed 18 December 2018<\/p>\n
\nVariations in Professional Obligations among Lawyers\u2019 (2007) 41 Law &
\nSociety Review 113<\/p>\n
\nThe Aetiology of the New Culture of Pro Bono Publico\u2019 (1999) 2 Legal Ethics 169<\/p>\n
\nTime Has Come\u2019 (1981) 35 University of Miami Law Review 727 <\/p>\n
\nof Requiring Prosocial Behaviour (1995) 19 Law and Psychology Review 153, 163 <\/p>\n
\n1, 100<\/p>\n