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Can’t afford to do pro bono work? We can’t afford not to

Date:4 NOV 2014
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Ariel Ricci, barrister, Coram Chambers

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.

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A particular example of this was in Kinderis v Kineriene [2013] EWHC 4139 (Fam), an international child abduction case. In adjourning the final hearing due to concerns about the mother’s lack of representation, Holman J stated:

'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 gratitude.

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.

Ariel Ricci is the winner of the 2014 Pro Bono Family Lawyer of the Year award.