Does pro bono work done by New Zealand’s lawyers get to the people who are often denied legal assistance due to their financial position? Could more be done by the legal profession here to ensure that the right lawyers are matched with the right people? Craig Stephen asks some movers and shakers for their views on what could happen to pro bono
In an age of growing inequality and cutbacks to legal aid, pro bono work (from the Latin “pro bono publico” or simply “for the public good”) carried out by New Zealand’s lawyers is now regarded as not merely a right but a necessity for the large numbers of people who can’t afford to pay top-dollar lawyer fees.
New Zealand lawyers carry out an unknown amount of hours of pro bono each year, with most of that work not being recognised in the wider community. That’s largely because lawyers are happy to do something for nothing because the alternative would be no action at all due to the inability of the recipient to afford legal fees.
While kudos goes to all lawyers who work without remuneration, there is the question of whether enough pro bono is provided and if it could be arranged in a way that ensures that the workload is spread out.
It’s important to first note that there’s no obligation on New Zealand lawyers to carry out a certain amount of pro bono. A Law Society Practice Briefing notes that “Pro bono work can be a rewarding experience for both legal consumers and lawyers and is encouraged by the Law Society. For lawyers it can be an effective and practical way to address concerns about access to justice.”
Provision of such services ensures that New Zealanders have a fair, strong and efficient justice system.
While pro bono work by lawyers is encouraged here, in some jurisdictions it is mandatory that lawyers carry out a certain number of hours of pro bono work or it is encouraged through pro bono clearing houses. And some prospective clients require it before a lawyer can bid for their work.
How it is done here, and who gets it
Lawyers largely tend to carry out pro bono work at Community Law Centres (CLCs) and less so at Citizens Advice Bureaux (CABs). The former endured an 11-year funding freeze but received a boost in the 2018 Budget. Lawyers can also volunteer their time and expertise directly, through an NGO or charity or even the local sports team.
However, section 9 of the Lawyers and Conveyancers Act 2006 imposes restrictions on carrying unpaid work out with CLCs and CABs. In fact, lawyers could be found guilty of misconduct if they do so. Sarah Dowie’s Lawyers and Conveyancers (Employed Lawyers Providing Free Legal Services) Amendment Bill is currently before Parliament and would amend the 2006 Act to allow lawyers more freedom over the unpaid work they can do.
The Law Society is also working out a way in which in-house lawyers, who are not approved to practise on their own account, can provide pro bono assistance direct to the public without being in breach of the Act. This will require legislative change.
The Legal Services Act 2011 cut back dramatically on legal aid in order to cut costs.
Criminal Bar Association President Len Andersen says the 2011 Act changes mean that a large section of society is now effectively excluded from free or low-cost legal help, and aren’t earning enough to go through the normal channels.
“The people who really hurt in terms of our legal system are the middle income earners. Those on low incomes can get legal aid, those on high incomes can afford legal representation, but it’s the people in the middle who are squeezed. And they’re unlikely to want to rely upon a free lawyer.
“And you’ll see in the response to the Christchurch terror attacks there has been an effort for lawyers to provide assistance to the families who suffered and the law profession is happy to react to that sort of thing and wouldn’t expect to be paid for it.”
New Zealand Law Society President Tiana Epati has a strong connection with pro bono work and legal aid. She estimates that the amount of such work her Gisborne firm Rishworth, Mathieson and Wall does free is about 20% of its total business.
She says there’s a strong pull from the vulnerable for legal services.
“The local community law centre will often send people our way because their ability to deal with the amount of queries is quite limited, and we don’t tend to turn people away unless it is a big piece of work that would result in the business grinding to a halt. These are not the high-profile cases, it’s the ones that are not spoken about, that don’t result in LinkedIn posts; it’s the ones for which lawyers will never get thanked for nor get the credit for. It’s cases like the solo mother who has limited means, may not qualify for legal aid because the charge is not serious enough but need help. That’s what I mean by pro bono.”
And over there…
Most legal professions in jurisdictions around the world have a policy on pro bono, even if it is merely to encourage lawyers to carry it out. Very few lawyers’ regulatory and representative bodies appear to have a mandatory pro bono requirement.
LawTalk contacted a number of professional bodies to find out their policy on what lawyers should do to help those who need it but can’t afford to go down the normal legal channels.
The US is one of the most proactive globally.
“A majority of U.S. jurisdictions have a voluntary, annual pro bono hourly goal for attorneys practising in that state,” says Reena Glazer, the Director of Pro Bono Institute’s Law Firm Pro Bono Project.
“The American Bar Association Model Rule of Professional Conduct 6.1 on Voluntary Pro Bono Service sets an aspirational goal of 50 hours annually, and many states have followed. The Pro Bono Institute’s Law Firm Pro Bono Challenge, which is an institutional, law firm-wide commitment to pro bono, asks that its signatory firms provide 3 or 5 percent of their billable hours or 60 or 100 hours per attorney annually to pro bono services.”
Furthermore, she says, a minority of US jurisdictions have mandatory or voluntary reporting requirements for lawyers’ pro bono service.
The British Isles
None of the four law societies in the United Kingdom and Ireland mandate lawyers to do pro bono work, but it is very much encouraged.
The Law Society of England and Wales supports LawWorks, a charity that connects volunteer lawyers with people in need of legal advice, who are not eligible for legal aid and cannot afford to pay and with the not-for-profit organisations that support them.
The Law Society of Northern Ireland says “the vast majority of solicitors undertake and provide what can be defined as pro bono work within their local community and this work is often unseen, unheard and seldom recognised”.
And says the Law Society of Ireland’s Director General Ken Murphy:
“While there is no formal requirement that solicitors complete pro bono work in Ireland, the undertaking of legal work for people with legal needs but no capacity to pay is part of the culture and tradition of the legal profession here.”
Attorneys in South Africa are required to provide 24 hours per year of pro bono legal assistance to indigent members of the public. Pro bono is administered by the Legal Practice Council, which is regulates legal practitioners.
There are two mechanisms that ‘strongly encourage’ lawyers to conduct free work, the Australian Pro Bono Centre says.
The National Pro Bono Target sets an aspirational benchmark of at least 35 hours of pro bono legal services per lawyer per year. The Target, which was introduced in April 2017, covers about 12,000 lawyers with 24 of the 25 largest Australian law firms being signatories. Signatories agree to provide an annual statement to the Centre on whether they have met the Target in the previous year.
The Target is also incorporated into state and federal government’s arrangements for purchasing legal services from the private profession.
It would appear that there is a greater need than ever for access to justice in Australia as the Law Council of Australia’s President Arthur Moses SC noted in a speech to the National Access to Justice and Pro Bono Conference last month, saying that, in 2015/16, community legal centres reported turning away almost 170,000 people due to a lack of resourcing.
“Disadvantaged Australians are not the only ones impacted by the shortfall. Many simply can’t afford legal representation and if required to attend court, are forced to appear alone. Lives are being destroyed because successive governments have failed to invest in critical social justice infrastructure,” he said.
The Constitution of India directs the State to provide free legal aid to the poor and weaker sections of the society, to promote justice on the basis of equal opportunity.
The Law Society of Singapore’s Pro Bono Services Office recently launched the Pro Bono Research Initiative (PBRI) which provides research support to pro bono practitioners undertaking complex and/or important criminal and civil cases, including family law, before the courts.
The PBRI aims to ease this pressure, while providing volunteers with exposure to various cases before the courts.
In the autonomous territory, a Pro Bono Committee was established by the Law Society of Hong Kong in 2010 “to review the pro bono work undertaken by the legal profession, promote public awareness of the pro bono services under by the profession and encourage participation by the profession in pro bono work”.
The Committee overlooks various pro bono schemes and projects in which members of the Law Society participated in.
Schar Mitzvah, an Israel Bar Association Pro Bono Programme, enables the implementation of section 3(2) of the Israel Bar Association Law, which stipulates that “The Bar Association is entitled, inter alia, to provide legal aid to those of limited means”. The Association says the objective of the programme is to increase accessibility to the legal system, and to protect the rights of those who lack the means to hire professional legal services.
What could be changed in New Zealand?
With the new Chief Justice, Helen Winkelmann, addressing access to justice at her swearing-in ceremony last month, and the Coalition government holding a series of summits and hui on the justice system in general, there’s no doubt that there is an appetite for change within the legal system.
“Without the ability to have their voices heard, the marginalised are vulnerable for exploitation and abuse. We frequently see those who live in poverty in the criminal jurisdiction of the courts but seldom in the civil jurisdiction. But those in the lower socio-economic brackets have very real and often very complex legal needs,” Winkelmann CJ said.
How that will be shaped may not be known for some time.
Tiana Epati says she would like to see a pro bono initiative in Aotearoa like they have in Australia of an aspirational benchmark of 35 hours per annum.
“I would particularly like to see a measurement of what each lawyer is doing around the country because my experience is that pro bono is largely carried by the lawyers who do a lot of legal aid work anyway, so there’s a disproportionate section of the profession that does a lot of this work for free, who are already pressured on really low pay rates of renumeration.
“Access to justice is an issue, and the funding is not where it needs to be so the profession has a part to play but what I am conscious of is that the goodwill of the people who do more all the time is wearing a little thin.”
Kate Davenport QC, who is the President of the New Zealand Bar Association, says senior lawyers should pitch in more but that any changes to pro bono won’t, in itself, solve all the access to justice issues.
“Pro bono work is something that lawyers want to do. More senior lawyers ought to be prepared take on one or maybe two cases per year. But I don’t think that pro bono work is necessarily the answer to the legal aid crisis. People on legal aid mostly have protection from costs. The problem is, of course, that legal aid is only available to the lowest of income earners and it is only a loan.
“I think that, yes, legal aid fees for lawyers should be increased, but the payment of legal aid – civil and criminal – is a societal issue. Proper access to justice is important to a properly functioning society. I recognise there are big demands on the vote justice budget but we need, as a profession, to recognise this and this is where pro bono work is important. I do think legal aid could cover more than it does. I also think that it could be a slightly deeper bucket than what we have at the moment.
“Further, it does seem to me that the legal profession has priced itself out of the means of those people who don’t qualify for legal aid but can’t afford legal services.”
Should pro bono be mandatory?
Len Andersen recognises the need for free work but opposes any move to make it mandatory.
He says those working in the criminal area are often relying on inadequate legal aid in the whole of their working time needs to be devoted to paid work to make ends meet.
“I don’t think pro bono should be mandatory because not all lawyers can afford to do it. I think it’s wrong, in the criminal field, for defendants to rely on charity. The reality is that there should be an appropriate legal aid scheme in place to ensure that those people who need representation can have it.
“I’d be pretty disturbed if there was an expectation that criminal lawyers did pro bono. It is good marketing for the large law firms to do it and good on them for picking that up, but it’s not the same sacrifice as it would be for criminal lawyers. It suits those firms to do pro bono work because it is something they can trumpet about what good corporate citizens they are and they have the resources to do it.”
Where’s the incentive for lawyers?
Len Andersen notes that some lawyers find it difficult to afford the time for cases that could, in the end, take a lot of effort and dedication.
“Some of the cases that scream out for lawyers help are, in fact, hideously complicated,” he says.
But also, he says, there just aren’t the finances available to criminal barristers to justify taking on free work.
“The legal aid rates have been unchanged for about 15 years. And for most criminal lawyers a good part of their income is legal aid because that is the reality of practising in the criminal field. The rates certainly have to be increased and that is something we have been agitating for some time.
“It would be a short-term solution if the gaps in the legal aid system were plugged because lawyers were prepared to provide free representation to those who could not afford a lawyer or obtain legal aid.
“The problem is that not everyone could provide the free representation and there would be locations where the assitance would not be available either because of the size of the demand or the inability or unwillingness of lawyers to provide free representation. This means some defendants would not be able to obtain representation but the scale of the problem would be obsured by the prono bono representation provided in other localities.
“I consider the governent has an obligation to provide legal assistance for those who can’t afford it through legal aid and the community law centres and pro bono work from lawyers should not be a substitute for this obligation.”
Tiana Epati believes the Law Society has a strong role to play ensuring there are real solutions found to access to justice, which will include a component of pro bono.
“I firmly believe that the Law Society should take a much stronger lead on access to justice generally. I don’t know who better to bring all the threads together, to bring all the research that’s going on in different pockets, at the universities and the various interest groups right now. You could say the Government should be responsible for that but I think the Law Society is best placed to pull everything together and essentially lead the conversation.
“Funding is pretty important, but on top of that pro bono has to be a component of access to justice. When I was campaigning for the presidency last year lawyers raised concerns about the lawyer brand and were asking me about how we ensure the value of the lawyer brand did not diminish and was protected. In my view, there is an impact on the value of the lawyer brand if people who have legal problems can’t access lawyers because of the cost.
“Now, at some stage we have to take the responsibility for that, we have to do something to make it easier for people who need us to access us. And part of that is looking at how we price legal services and spread the burden of pro bono because my experience is that it is largely worn by lawyers who already are stretched by the restrictions of legal aid.”
The clearing house idea
The New Zealand Bar Association’s Working Group into Access to Justice released a comprehensive report in September 2018.
Among its key findings are that, while there are numerous community-based initiatives and a growing demand for pro bono services, they are not co-ordinated through a national clearing house model. It also found there was a lack of public knowledge and education about existing available pro bono services, and perhaps, somewhat concerningly, a lack of knowledge within the legal profession itself about such initiatives and the opportunities for lawyers to participate.
In its five-point action plan, the Bar Association’s recommendations include holding an annual Pro Bono Function to promote and encourage pro bono work by the Bar; continuing to advocate for a clearing house or similar project; and promoting and supporting Community Law Centre pro bono projects.
Clearing houses have been described as “pro bono matchmakers” between lawyers and clients needing pro-bono advice.
Kate Davenport says the Bar Association has been keen on establishing a ‘clearing house’ for pro bono services for some time and has been talking to the Community Law Centres as they are “the right people” to manage such a scheme as they have centres around the country and access to the clients who need pro bono work.
She says the CLCs are very keen on the idea as it “works very well overseas”.
“I am hoping we will end up with a scheme that works in the interests of all – lawyers, CLCs and consumers. The demand is there and so is the willingness. I’m hoping the CLCs will be able to get funding to help make it work.”
Ms Davenport is offering the irresistible carrot, albeit a sweet version, of a chocolate fish (or even a packet) to those lawyers who successfully complete the civil legal aid form and go back on the legal aid list. “There are an appallingly small number of practitioners who are prepared to do civil legal aid in the main centres.”
‘Fair triaging of legal services’
Dr Bridgette Toy-Cronin is the Director of the University of Otago Legal Issues Centre and a member of the Bar Association’s Working Group into Access to Justice.
Dr Toy-Cronin is currently heading research into pro bono in New Zealand to discover what lawyers consider to be pro bono and what they do for free.
“I think it is a shame that the pro bono clearing house idea hasn’t managed to get up and running yet but it still might.”
She says the clearing house could be based on the Australian model, where most states have one.
“The benefit of this system is that it’s a lot fairer to allocate the work, not just between lawyers, but to make sure that the people who are actually getting the pro bono service are the people most in need. One of the issues is that pro bono is often done in New Zealand based on relationships, and of course, people who have got relationships with lawyers tend to be the people who are the disadvantaged.
“So, if it’s just about giving free services to an organisation that could pay for it, or because there’s some benefit back to the firm being associated with the free services, the question then arises over whether that is actually pro bono or is that free assistance for some collateral purpose.”
She says most people’s view of what is actually pro bono is assisting those who do not qualify for legal aid and cannot afford lawyer’s fees. “They have a bit of money but not enough.”
“The advantage of a clearing house is that it gives structure to who receives pro bono and it’s a way for a fair triaging of legal services to people based on need and matching them up with lawyers who can help. And it’s also a visible place for people to go and get that assistance, because how do you go about finding a pro bono lawyer if you’re not a well-resourced person?
“I also don’t think that pro bono is the only answer to the access to justice problem, it’s just part of an arsenal of things we need to do. I don’t think you can rely on people donating services as a way to deal with what’s really market failure; you have to look more carefully at finding ways at making legal services more financially viable for a much larger part of the population. Pro bono can be really important and effective but it’s a small band aid on the injury.”