Lawyers dig deep for public good
On the face of it, New Zealand lawyers make a very generous contribution to the community through pro bono activities.
Some research indicates that many law firms spend from 1 to 5% of practice time on pro bono work, which could amount to between $20 million and $100 million annually. Community Law Centres also make a valuable contribution, providing more than 174,000 hours of legal services to over 144,000 clients a year. Their pro bono work equates to almost $2 million a year.
Typical of large law firms is DLA Piper, which provides pro bono legal services with a notional value of at least 3% of its annual revenue. To achieve this, its lawyers are each encouraged to undertake 50 hours of pro bono work a year, some of their clients including the Starship Foundation, CanTeen, Fred Hollows Foundation, Life Flight Trust and Oxfam New Zealand, to name but a few. Globally, the firm handles around 202,000 free hours of pro bono work a year, which is equivalent to 116 lawyers working full-time on pro bono work for a year. Little wonder then that DLA Piper was named Pro Bono Law Firm of the Year by Who’s Who Legal in 2013.
DLA Piper Pro Bono Partner, Nicolas Patrick, who is based in London, told Law News that he believes New Zealand lawyers have a strong commitment to pro bono work at an individual level but do not receive enough institutional support.
“That is to say that individual lawyers are willing to undertake pro bono work, but many other law firms do not have the systems and processes in place to support lawyers to do this kind of work. So the real question is not whether New Zealand lawyers are pulling their weight, but rather, are New Zealand lawyers getting access to pro bono opportunities?”
Mr Patrick says DLA Piper’s goal is to be proactive and ensure it is fostering a pipeline of pro bono opportunities for its lawyers globally and in New Zealand.
“We know that most lawyers will do pro bono work if we ask them. Therefore the responsibility lies with the law firms as employers to support and encourage lawyers to undertake pro bono work. There are certainly some very good examples of New Zealand firms with an institutional commitment to pro bono, but I doubt whether you will find many firms that have actively provided pro bono opportunities to every employed lawyer over the past year. So a greater level of institutional commitment is what is needed.”
Mr Patrick’s views are echoed in part by Auckland Law School graduate Max Harris, who is currently an Examination Fellow at All Souls College, Oxford. He told Law News that institutions that support pro bono make it easier for individuals to do that kind of work, allowing them to sign up to an existing scheme rather than having to start from scratch.
“However, on the institutional front, New Zealand is lacking. We don’t have the public interest law clearinghouses that you see in Australia, the strategic litigation centres you see in places like South Africa, or the barristers’ chambers known for doing public interest work that you get in the UK.”
Mr Harris believes there are number of reasons why New Zealand doesn’t have such pro bono institutions.
“First, there’s been a lack of resourcing by governments and law firms of them and, second, our law firms place some limits on pro bono work. We’ve got relatively under-developed human rights jurisprudence and, in lots of technical areas of law such as around protective costs orders, we lack support structures for pro bono work. Third, the culture of pro bono work could be shifted. In New Zealand, pro bono work is not hard-wired into being a lawyer, but all of these reasons need to be understood together.”
Asked whether it was incumbent upon lawyers to undertake pro bono work given that cuts to legal aid were, in the opinion of some, making it harder for people to access the justice system, Mr Harris said:
“Legal aid cuts have been savage in recent years, and judges on the front line in the justice system have commented on the effect this has had on rising levels of self-representation.”
Mr Harris says the fact that an increasing number of people are “left out of getting justice is a real problem”.
“The very reason we have law is to ensure that the powerful aren’t able to get advantages in disputes, and the purpose of courts is to get disputes resolved independently.
“One of the problems with the justice gap is that it undermines the very reason we have law and courts, because it means that the powerful can get away with injustices while others take these injustices ‘on the chin’ because a dispute cannot be taken to court. The justice gap calls into question the integrity of the justice system in this way – in the way it undermines the purpose of law itself – and also because it creates worrying inequalities in who can secure justice.”
Professor Chris Gallavin, Deputy Pro Vice-Chancellor at Massey University, is another lawyer who is concerned about access to the justice system and the importance of pro bono work. He told Law News that changes to family law procedures and legal aid have not been in the best interests of New Zealanders.
“In my mind, these changes have resulted in a growing justice gap – not for the real poor of New Zealand but middle New Zealand. This has inadvertently put huge pressure on the profession to offer pro or low bono services. It has effectively side-lined the utility of the billable hour as a form of charging – or will do in the near future – and made the profession think hard about the service it provides.
“In my experience, the profession is made up of professionals who are committed to justice and access to justice, so the answer is not one of lawyers having to do more pro bono work but actually to look at the root causes of the justice gap in New Zealand and address those albeit numerous and varied causes.”
Professor Gallavin says he has long maintained that the justice gap in New Zealand is “one of the most significant threats to the cohesion of civil society this country has ever faced”.
“The inability to access effective justice in a timely and cost effective way fundamentally cuts the ability of an individual to be an active member of our community. The problem, I suggest, is significant. Although in the UK there have been regular detailed commissions established to identify the scope of the problem, New Zealand has failed to see this problem approach. Therefore we find ourselves largely flatfooted in our ability to address it. The justice gap is not a ‘lawyers’ problem’ but a community problem.”
But what does he say to those who claim that lawyers’ unrealistic income expectations are exacerbating the situation?
“This has been a pet subject of the Chief Justice for quite a number of years. The fact remains that a great many lawyers in New Zealand do not earn vast sums at all.”
For his part, Nicolas Patrick believes pro bono can never be a substitute for a properly funded legal aid system.
“Pro bono works optimally when it operates as an adjunct to an effective legal aid system. When we undertake pro bono work at DLA Piper, we are not seeking to address all unmet legal need. Rather, we believe our most important contribution is in finding ways to reduce the demand for legal services.
“So when we take on pro bono work in a particular area, we are improving access to justice for the individual client, but we are also asking ourselves whether there are any opportunities for strategic or systemic reform, whether we can make the case for legal aid to be extended to a particular area, whether we can create self-help resources, or deliver some community legal education, or do anything that will reduce demand.”
Mr Patrick says when large law firms have active pro bono practices they are also better placed to participate in policy discussions about legal aid funding and can more effectively advocate for appropriate levels of investment.
So, taking everything into consideration, should it be compulsory for lawyers to undertake a fixed amount of pro bono work every year and, if so, how would it be regulated? Max Harris, for one, sees some merit in such an approach.
“I think a small amount of pro bono work should be compulsory. Lawyers are privileged in terms of their education and usually in terms of their income. They also benefit from partial public funding of their education. They should therefore be required to contribute to the public goal of upholding justice through pro bono work. Young lawyers have recently been calling for this in the UK.”
Mr Harris believes that regulating compulsory pro bono work should not be a major problem given that such provisions already exist in various jurisdictions around the world.
“There would be a theoretical risk of pro bono becoming a ‘tick-box’ exercise, but I think it’s more likely that this would help to bake in pro bono work into lawyers’ annual work stream. Overall, I think compulsory pro bono would be a useful policy change, but I think this would need to occur at the same time as legal aid is reviewed and in conjunction with other structural changes that could support access to justice.”
Nicolas Patrick, however, takes an alternative stance.
“I don’t support mandatory pro bono. My own view is that a better approach is to require a mandatory pro bono reporting by law firms. Mandatory reporting of pro bono performance by law firms achieves a better result, because it acknowledges the key to releasing dormant pro bono capacity lies with employers rather than individual lawyers.”
Professor Gallavin sees merit in a fixed amount of pro bono but cautions that it’s wrong to equate the so-called justice gap with pro bono.
“Pro bono is but one way in which the justice gap can be addressed but it will never be nor ought to be the sole fix. One needs to be careful that it does not eventuate into a ‘more pro bono equals less government services’ conundrum. A fixed amount of pro bono could be instigated – such as in the case of many states in the US – but the administration needed to process that might outweigh its benefit.
“A good start would be to organise the provision of pro bono – provide a good, clear definition, support the profession on how to do that, and perhaps even change the QC appointment criteria to reflect the ‘good citizen’ aspect of pro bono.”
Yet another proposal regarding pro bono was put forward by Attorney-General the Hon Christopher Finlayson QC several years ago. In 2010, he raised the idea that law firms could be required to undertake a certain amount of pro bono work as a condition of being awarded government contracts.
Mr Finlayson told Law News he stands by what he said then, saying that he thinks that the Ministry of Business, Innovation & Employment, which is in charge of tendering, is “starting to think about some of those issues now”.
“If you do $2 million worth of work for the Crown, then I see no reason why one couldn’t say appropriately qualified people in your firm could occasionally run cases in the Court of Appeal on matters within their expertise. It’s a question of saying if you have the expertise doing something like that, then that would be something we think would be useful.”
Nicolas Patrick, for one, would like to see this happen.
“Including pro bono benchmarks in government contracts is an excellent idea which has been deployed successfully elsewhere. In Australia, for example, the Commonwealth government and the Victorian governments have implemented formal schemes of this nature which have had a positive impact on access to justice.”
Meanwhile, the New Zealand Bar Association is examining ways of establishing a pro bono Clearing House. It recently hosted a meeting of all the major law firms to start a dialogue about getting it off the ground.
DLA Piper New Zealand partner Aimee Credin, who attended the function, told Law News that New Zealand is about the only country in the western world that does not co-ordinate its pro bono activities.
“The Clearing House is not intended to replace existing pro bono efforts, rather the purpose is to better match the expertise of lawyers willing to offer pro bono services to those most in need. In addition, a significant portion of existing pro bono efforts goes towards assisting NGOs or not-for-profit organisations as opposed to individuals, and this is where the greatest need has been identified.”
Ms Credin emphasises that law firms in the Clearing House would not compete with each other, but would work closely together to share ideas and resources, with their efforts directed at access to justice and advocacy.
The Attorney-General says he sees some merit in the Clearing House but has some reservations, given the diverse makeup of the legal profession.
“I think there are so many different people in the profession with so many different interests which may lead them into helping sporting clubs, doing prosecutions for the SPCA or the local theatre group, that I’m inclined to think the admittedly scattergun or chaotic approach to pro bono would yield better results. But if there’s a Clearing House then they could put a notice up and say, ‘Look we need someone to do this,’ and that may be helpful, but in essence I would say it should not be instead of, but in addition to, the existing practice.”
While Mr Finlayson applauds the many law firms and sole practitioners who undertake pro bono work, he has some concerns about the hubris which sometimes surrounds it.
“In the old days, people would give without counting the cost, but these days they put out a glossy brochure, so they’re counting the cost, and I just find some of those publications a bit nauseating really.
“I mean, pro bono’s been a real feature of the legal profession from year one. People have always given of their time and they don’t necessarily need to stand up in front of the synagogue like the Pharisee and sort of say, ‘Look how good I am because I do this, this and this.’
“You just do it quietly and you may or may not get recognition, but recognition is not the name of the game.”