There is a much hidden opportunity in pro bono legal work, writes Patrick Hume
THE 2009 European Pro Bono Forum, organised by the Public Interest Law Institute and held in Budapest on November 5th and 6th last, shone out like a beacon of hope in the current climate of crisis and uncertainty.
The forum brought together participants from all over Europe and further afield to share their experience of voluntary legal service in the public interest.
Again and again, the forum learned from representatives of bar associations in different countries, lawyers, NGOs and the president of the Council of Bars and Law Societies of Europe of innovative efforts to foster and provide organised voluntary legal assistance or pro bono services to those who cannot afford them.
While many lawyers in Ireland give freely of their services for good causes and to people who cannot afford legal advice or assistance, there appears to be a reluctance to let this good work be known about in public.
A piecemeal and ad hoc approach characterises pro bono work in Ireland and thereby limits its potential to respond to unmet need for legal services.
Yet an excellent blueprint for tackling the need for a formal pro bono scheme was produced in 2001, when the Pro Bono Task Force, a group set up by the Law Society of Ireland and chaired by John Costello, issued its report. It was widely welcomed, but unfortunately its proposals have still to be implemented.
The task force adopted a broad definition of pro bono work, describing it as “legal work done by private practitioners without charge or at a reduced rate for members of the public with limited means or for charitable and other non-profit making organisations”.
In its report, the task force drew attention to the fact that pro bono work is of value, not just to those receiving the service but to the legal profession itself.
It noted research in the US which showed firms involved in such work cited “personal development”, broadening of horizons and the development of practical skills as among the benefits accruing to their employees.
Involvement in such work was also considered to lead to improved morale within law firms and as having a valuable public relations dimension.
Suggesting that the Law Society of Ireland and Bar Council of Ireland should adopt an active and hands-on pro bono policy, the task force report proposed the establishment of a “formal pro bono scheme”.
This would not replace the existing work of solicitors or the work done by the Legal Aid Board, but would augment what was already being provided.
In particular, the report highlighted the need for legal advice, the potential demand for which far exceeds the capacity of the Legal Aid Board to meet.
The report suggested that since Ireland is a small jurisdiction with limited financial resources, the Law Society and the Bar Council should act together to establish one limited pro bono scheme.
An “urgent practical step”, in the view of the Task Force, would be the establishment of a pro bono charity. This would be “a company limited by guarantee whose board would comprise both solicitors and barristers”.
The task force saw the pro bono charity as initially providing services only to organisations such as Flac, Citizen Information Centres, NGOs and community groups but, in time, access for individuals might be possible under strict criteria to be established during the early development of the charity.
A further recommendation was that the Law Society “should appoint a co-ordinator to represent the society in liaising with the charity to identify areas in which solicitors/apprentices could assist with the work of the charity”.
This co-ordinator or some member of the Law Society Council would have special concern for the development and fostering of pro bono concerns.
Two major barriers to pro bono work frequently mentioned by lawyers are adverse costs and professional indemnity. While in theory it is possible to address the problem of adverse costs by applying to the High Court for a protective cost order, such orders do not seem to have been granted.
In relation to indemnity, an organisation in the voluntary or charitable sector which has lay advisers on issues such as housing, employment or immigration, is likely to find itself unable to harness the goodwill of lawyers because its indemnity would not cover lawyers’ pro bono activity.
The task force does not make recommendations in relation to these two issues, but it is clear that any move to set up a workable pro bono scheme will have to address both barriers.
We urgently need a pro bono scheme that can help realise the potential of this form of voluntary service and provide safeguards for both clients and lawyers.
Such a scheme is needed not only to respond to those who require legal assistance and cannot access it but also to provide an opportunity for many lawyers who are currently without work to use their skills during what, it is to be hoped, will be a temporary interruption in their professional employment.
The findings of the task force report provide an excellent starting point to move towards a more structured and formal system of pro bono.
Furthermore, as the European Pro Bono Forum clearly showed, we in Ireland have the advantage of being able to draw on the experience of the many different approaches to pro bono work that are to be found in other countries throughout the world.
Patrick J Hume SJ is a solicitor with the Jesuit Centre for Faith and Justice, Dublin. He is author of Pro Bono: Still Relevant for Access to Justice, published in Working Notes, issue 62, November 2009 (www.jcfj.ie)