Pro bono: Taking advantage

family law

“It’s joyful to give. But for people who want to take advantage of you, you’re kind of an easy mark.” – Larry King

Only last month our new Lord Chancellor suggested that “the most successful in the legal profession” should provide more of their time pro bono. As I explained then, the reaction of the profession was somewhat less than enthusiastic. That has not, however, deterred others from repeating the suggestion.

The latest proponent of this idea is the “think tank” (why do I so hate that expression?) ResPublica. In case you have not heard of them (I don’t think I had), ResPublica “are an independent non-partisan think tank based in Westminster that seeks to establish a new economic, social and cultural settlement for the United Kingdom”. Whatever that means.

Last week ResPublica published a report which “sets out to reaffirm the value and purpose of our great profession[s]”. The report is entitled ‘In Professions We Trust’, and is grandly sub-titled ‘Fostering virtuous practitioners in teaching, law and medicine’ (I liked to think that, whilst I was practising at least, I was reasonably virtuous, but perhaps not).

Amongst a number of recommendations, the report proposes the introduction of a mandatory “pro-bono obligation as part of the professional obligation of all lawyers” (for some reason, there is no similar proposal in respect of either the medical or the teaching profession). Under the obligation, lawyers would have to dedicate ten per cent of their ‘output’ to pro bono work, although lawyers on very low incomes, such as those doing legal aid work (nice to see an acknowledgement that legal aid lawyers are not ‘fat-cats’) only have to give five per cent of their ‘output’.

The rationale for the recommendation is that for many lawyers, the law has apparently become for them no more than a ‘revenue generating business’. ResPublica say that this ‘it’s a business’ approach undermines the profession’s vocation and can “greviously [sic] harm its ethics”. It is also, we are told, a major source of public hostility. A mandatory pro-bono obligation regulated by the professional bodies could make everything better by helping to “inculcate an understanding across the profession that the law is not just a business but also and most importantly a vocation” (I suspect many lawyers would be offended by the suggestion that they do not consider themselves to be engaged in a vocation). Further, the measure “would build public support and provide far greater access to justice” (I shall return to that last point in a moment).

Lawyers, of course, have a great (and, as far as I am aware, unique) tradition of providing their services for free. I have speculated here previously whether the government is taking advantage of this by seeking to have pro bono fill the void left by the abolition of legal aid (a point taken up by some lawyers in response to Mr Gove’s proposal last month). Now, I have to wonder, is not just Mr Gove but also now ResPublica seeking to take advantage of that great tradition?

Yes, it is true that lawyers are business people, but that is because law is a business. Just like any in other business, if you don’t behave in a business-like fashion, then your business will fail (as, indeed, it will if you offer your services or product for free).

As for the argument that pro bono would improve the public perception of lawyers, well the same could be said of any other group that the public dislikes. What about estate agents, for example? Somehow, I can’t see them ever allowing themselves to provide their services for free.

And then we have this idea that pro bono would provide far greater access to justice. ResPublica calculate that their proposal “will produce some 30 million hours of free legal advice for the public each year in England and Wales”. Note the words ‘for the public’. Quite what sort of useful advice a banking and finance lawyer in a magic circle firm could provide for the average Mr Joe Public, I really don’t know. Perhaps Joe needs a bit of help working out how his new national living wage is going to stretch to keep him and his family in food for the week.

OK, I know that the public would benefit from more pro bono work. Of course they would. But the question is: why should lawyers, seemingly alone amongst the professions (a term these days used for just about anyone providing a public service) be expected to do something for nothing? The answer, it seems, is: well, they already do, so why can’t they do more? In other words, it appears that lawyers are to be penalised for being public-spirited. Perhaps we would do better by being more like others and only provide our services to those who are prepared to pay.

Maybe then people will not seek to take advantage.

Photo by Mr T in DC via Flickr

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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1 comment

sean - July 21, 2015 at 6:34am

Coujtjd do with some advice on my daughter ergent

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