The legal profession has a long tradition of giving free advice to those without the means to pay, says Sharon Wallach
The civil liberties organisation Liberty has taken up the cases of two Chelsea Football Club supporters arrested after the match in Bruges last month. The two were refused legal advice, held for 16 and seven hours respectively and then deported from Belgium.
The action is being taken via Liberty's pro bono publico panel, set up in January last year to represent, without charge, people in cases raising human rights or civil liberties issues. Eight leading firms of solicitors are now on the panel, including Allen & Overy, which is taking on the Chelsea supporters' cases from its Brussels office.
Some 17 cases have been referred by the panel to date, including issues of libel, sexual harassment, wrongful arrest and false imprisonment.
There is a long tradition of pro bono work within the legal profession. In the days before legal aid, it was largely through lawyers' voluntary efforts that people without means could obtain legal help. The tradition continues, in part because of cuts in legal aid eligibility, in part because there are areas of law in which such aid is not available.
A danger exists that this goodwill on the part of solicitors and barristers may be exploited by the deliberate under-resourcing of various schemes. The recent announcement by the Refugee Legal Centre that it cannot deal with the volume of asylum-seekers wanting advice, and that none will get help this month, may be a case in point. The centre is an independent charity, funded by the Home Office and the UN High Commissioner for Refugees. Legal aid is not available for immigration appeals - although initial applications may be funded through the green form scheme.
The Immigration Law Practitioners Association believes that "a pittance" of the £37m given by the Home Office to its asylum division is going to fund representation. Some lawyers believe this is either an attempt by the Home Office to limit the number of appeals or an undue reliance on voluntary help - and the Law Society has indeed called on solicitors to provide pro bono representation to meet the short-term emergency.
"There is an unrealistic expectation of what pro bono can achieve in terms of supporting under-resourced services," says Karen Mackay of the Law Society. "It is worrying that pro bono is used overly much to cover the shortfall in what should be statutory services. It also makes people less positive about doing pro bono work."
The society has for a long time been considering the wider questions of pro bono. Last May, a working party report, while encouraging solicitors to provide - or support financially - voluntary legal services, made it clear that this work "is not and never could be a substitute for a properly funded legal aid scheme".
The working party made a series of recommendations, including the establishment of a representation unit offering free help for advice agency clients. This is now being discussed with the agencies. Information gathering is also continuing on another recommendation, the setting up of a trust fund to receive contributions from firms to support pro bono services.
In terms of initiatives already under way, says Ms Mackay, "There is no point in us intervening in what's already going on. It would disrupt, rather than improve."
A lot is already going on, and many solicitors and barristers have for years quietly been offering their services, free, across a broad spectrum of work. The London firm Simons Muirhead & Burton, for example, has long worked for prisoners on "Death Row" in Jamaica, as well as for projects for the homeless.
"Pro bono is to some extent a fashionable topic," says the firm's senior partner, Anthony Burton. "But there are a great number of firms who for years have been providing free advice and never really thought of it as pro bono. They feel they are under a professional and moral obligation to do it." It is certainly true, Mr Burton says, that there is more advice to give as more people need help, not least because of cutbacks in legal aid.
Solicitor members of the professional firms group of Business in the Community, whose president is the Prince of Wales, last month committed their firms to give at least £5,000 each of free advice per year. Other firms have asked to become involved.
On the barristers' side of the profession, one example of its pro bono work is the extension of the Northern Circuit's free advice and representation scheme to accept referrals made by tribunals seeking advice on substantive points of law. Another is the Free Representation Unit, which was set up in the early Seventies to represent welfare benefit claimants. The scheme was later extended to industrial tribunals and then to others, including immigration and medical appeals.
Law students are also doing their bit. Another Free Representation Unit, run by final-year law students at the University of Plymouth, estimates it has won its clients £320,000 in its first year. And Cardiff Law School has just launched a telephone legal advice service for travellers operated by post-graduates conducting research into travellers and the law.
Karen Mackay says: "Models of universities running law clinics have existed for many years. They provide a useful service and have a positive outcome for students who take the experience to the profession when they qualify."
Pro bono work can also reap commercial benefits. Tony Symes, a partner in the City firm Nabarro Nathanson, writing in Legal Business magazine, says: "There is an opportunity for most firms to gain significant benefits from the efficient introduction of a pro bono policy. The experience of US law firms is that if this area of legal work is well managed, then the benefits that accrue are well worthwhile and improve both the experience of the firm's lawyers and the firm's general image."
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