Can’t afford to do pro bono work? We can’t afford not to
Sep 29, 2018, 20:04 PM
family law, legal aid, pro bono week, reforms, LASPO, litigants in person, unrepresented, access to justice
The demand for pro bono legal advice and representation in family law has surged and will increase in the coming months. As demand increases, there is a risk that lawyers willing to do this work decrease as practitioners become reluctant to commit the time or leave the profession altogether.
This week marks the 13th annual National Pro Bono Week. It is 18
months since the legal aid cuts arising from the Legal Aid, Sentencing and
Punishment of Offenders Act 2012 were implemented. Everything the legal profession predicted has
come to fruition: parents prevented from spending time with their children are unable
to get legal advice, victims of domestic violence are cross-examined by their
abusers, and courts are grinding to a halt due to a disturbing rise in
litigants in person.
The demand for pro bono
legal advice and representation in family law has surged and will increase in
the coming months. As demand increases,
there is a risk that lawyers willing to do this work decrease as practitioners
become reluctant to commit the time or leave the profession altogether.
Sadly, I’ve heard some
lawyers suggest that we should refuse to do pro bono work to prove our worth to
the Government – some say we should stand by whilst problems in the family
justice system mount so the Government understands the real impact of legal aid
cuts. This is the wrong approach.
Instead, the legal
profession should stand together to reaffirm its commitment to pro bono work
because it is the right thing to do. Ultimately,
it is the clients and their children that lose out due to the absence of advice
and representation. As lawyers, pro bono
work should be part of our DNA – we should all commit to doing pro bono work
each year. Even then, it will be a
paltry fraction compared to the unsustainable demand.
In many cases, the absence of representation can lead
to the risk of unjust outcomes, as litigants in person (particularly those who
are vulnerable or do not have English as a first language) are unable to
marshal appropriate arguments in support of their case. In family law, when the outcome involves
children, the stakes could not be higher.
A particular example of this
was in Kinderis v Kineriene  EWHC 4139 (Fam), an international
child abduction case. In adjourning the
final hearing due to concerns about the mother’s lack of representation, Holman
'The mother is simply
incapable of presenting and developing her case properly. She does not know the
complex law. She has to communicate through the interpreter. The father
has all the resources of state-funded lawyers. This is not equality
of arms, as the fair trial provisions of Article 6 of the European Convention
on Human Rights require.'
Legal aid for the mother was
initially (and prematurely) refused on merits – when this was reviewed
following the adjournment, she qualified on merits, but was again refused legal
aid based on means because she started to receive child benefit and was working
part-time as a cleaner, putting her slightly over the meagre means threshold. She was referred to the Bar Pro Bono Unit,
who provided representation and she was successful at the final hearing. The impact of pro bono on individuals is
tremendous and, at times, life changing – the clients are overcome with
Aside from pro bono work
being the right thing to do, there is a positive business case for lawyers
committing to pro bono work. At the Bar,
particularly at the junior end, pro bono work provides an opportunity to get
experience of different and more complex work early in your career. My pro bono work resulted in my first
reported case and my first appearance in the Court of Appeal. Judges are often grateful to representatives
appearing before them pro bono, particularly when otherwise, both parties would
be representing themselves. By regularly
doing pro bono work, junior barristers are able to quickly develop a positive
reputation amongst the judiciary.
If every lawyer makes a commitment to do pro bono work
over the next twelve months, our concerns about the continued rise of litigants
in person and injustices due to the absence of advice and representation will
carry more weight. If you do not routinely do pro bono work, now is the time – in the spirit
of National Pro Bono week, register with the Bar Pro Bono Unit or your local
Citizens Advice Bureaux to turn your commitment into life changing decisions
for society’s most vulnerable.