pro bono publico Latin.

(prbnpbl1k)

SOMETHING NOTHING?
FOR
The Provision of Legal Services Pro Bono Publico
for the public good. (Collins English Dictionary)

ANDREW BOON & AVIS WHYTE

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ACKNOWLEDGEMENTS
We are grateful to the Nuffield Foundation for grants to conduct and publish the research on which this report is based and particularly to Sharon Witherspoon, Deputy Director, for her encouragement and assistance. We are also grateful to Peta Sweet, former Director of the Solicitors Pro Bono Group, for her support for this project. And we thank the solicitors, barristers, representatives of the professions, volunteers and others who generously gave their time to help with this project.

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THE NUFFIELD FOUNDATION

The Nuffield Foundation is a charitable trust established by Lord Nuffield. Its widest charitable object is the advancement of social well-being. The foundation has long had an interest in socio-legal issues and has a special programme of grant-making in Access to Justice. The Foundation has supported this project to stimulate public discussion and policy development. The views expressed are those of the authors and not necessarily those of the Foundation.

FOR FURTHER INFORMATION CONTACT

University of Westminster, School of Law, 4 Little Titchfield Street, London W1W 7UW Tel: 020 7911 5000 Fax: 020 7911 5821 E-mail: A.Boon@wmin.ac.uk or Whytea@wmin.ac.uk Internet: http://www.wmin.ac.uk

KEY POINTS
Pro bono publico has a strong tradition in law. Recently there has been a sustained resurgence of interest and increased pressure on lawyers to perform pro bono work. The reasons for this seem to be a complex interaction between professional idealism, political pressure and commercialism. These pressures appear to be global and particularly strong in common law countries. The traditional concept of lawyers pro bono publico the provision of litigation and advocacy services to poor individuals, free and without expectation of payment does not fit contemporary conditions especially well. Reasons for this include the increase in the volume of noncontentious work and the availability of new funding mechanisms for litigation, particularly conditional fee arrangements and speculative fee arrangements. Available research is patchy and contradictory. It is difficult to define and measure pro bono publico. While there are many reasons for adopting a universal definition of pro bono publico, three are important: (1) the absence of a definition commanding common consent hampers research (2) the absence of reliable data inhibits sound policy making and casts doubt on legal professions claims that their members perform substantial amounts of work pro bono publico; this undermines confidence in the profession (3) the absence of definition also creates the risk of disputes between sections of the profession. The profession should define pro bono publico, preferably in its code of conduct, without setting targets of donated time. The definition of pro bono publico should embrace: (1) traditional advice and representation provided that advice is given with a commitment to pursuing appropriate cases (2) transaction work provided it is for

organisations representing socially disadvantaged groups and (3) community schemes involving non-legal personnel provided their contributions are ancillary to the provision of legal services and integral to the scheme. A system for accrediting pro bono work in these categories would be an advantage. It is proposed that the definition should only embrace speculative fee agreements where there is a commitment by the lawyer from the outset to contribute any fees recovered to a pro bono fund. Incentives for the provision of legal services pro bono publico include: (1) recognition and promotion of the value and intrinsic rewards of pro bono publico and (2) the provision of inducements. Productive strategies for promoting pro bono publico are likely to include investment in undergraduate and vocational stage pro bono publico. While this may help to establish patterns and expectations of participation in legal practice, it remains likely that pro bono publico will need support from strong organisational commitment. This should include programmes offered by the professional bodies, law firms and chambers, as well as by the successful Solicitors Pro Bono Group and the Bar Pro Bono Unit. Awards that value pro bono publico are an important mechanism for encouraging these activities. A vibrant culture of pro bono publico throughout the profession is a way of inculcating an ethos of public service, improving the public image of lawyers and establishing collegial relations between different sections of the profession. In support of these aims the professional bodies should consider an active engagement with the emerging culture including regulation, support and sponsorship. Pro bono publico can be seen as both a public service and an activity performed for the benefit of the profession. An effort should be made to shift attention from the quantity of voluntary legal services to the quality of pro bono publico.

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INTRODUCTION
The term pro bono publico is connected with work performed free for the poor and indigent by high status professions.1 In the twelfth century, Christian clergy had responsibility for providing legal counsel to widows, orphans and those who lacked resources of their own.2 Population growth, urbanisation and the increasing volume and complexity of law created conditions for the birth of a legal profession that assumed these clerical obligations as civil courts replaced ecclesiastical jurisdictions. Over time pro bono publico fell into decline, a process apparently cemented by the inception of legal aid. In the 1970s a resurgence occurred, connected to the emergence of Law Centres and the adoption by some Citizens Advice Bureaux of a more overtly legal orientation. In the early 1990s there was another resurgence in pro bono publico, mainly in large firms. Pressure was brought to bear by politicians, particularly Labour politicians in opposition3 and by business clients and in-house legal departments.4 This provided more fertile ground for the development of a culture of pro bono publico, already found in small pockets in large firms, but mainly centred on death penalty work in the Judicial Committee of the Privy Council. This resurgence continues unabated. Calls for lawyers to provide services pro bono publico are now part of a world-wide pattern, particularly in common law countries.5

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THE RESEARCH
AIMS OF THE STUDY
There is a wealth of academic material relating to pro bono publico in the USA6 but relatively little in the UK.7 The research aimed to investigate the work performed by lawyers pro bono publico. It sought to identify relevant policy issues, to assist in reaching a definition of pro bono publico relevant to contemporary conditions and to consider what incentives might increase the provision of pro bono publico by lawyers.

STAGE TWO

Interviews with thirteen practitioners based on a structured diary8 kept by them over a two week period. The aim was to provide detailed first hand information about patterns of voluntary and pro bono activity.

STAGE THREE

Eighteen in-depth interviews with: six key lawyers; four policy makers; three professionals (each involved in legal pro bono work), four representatives of the voluntary sector and a recipient of pro bono legal services. Transcripts of interviews from stages two and three were analysed, sorted according to themes and congruence and divergence noted.9 The research was qualitative and relied on a small sample relative to the size of the profession as a whole. We sought to develop grounded theory10 in order to better understand key issues. We have exercised caution in generalising from the data presented.

METHODOLOGY
The research was conducted in three overlapping stages:

STAGE ONE

A literature review encompassing the collection of a wide range of documentary sources, including policies, materials, handbooks and so on.

TABLE 1: PROFILE OF DIARY KEEPERS FOR STAGE TWO

Group Status Code Years of Experience 0.4 1.4 Field of Work Litigation Mergers Type of Firm Location Diary Period 1999 15/03-26/03 15/03-26/03

One

Trainees

DK T1 C DK T2 C

Commercial (Banking) Commercial (Banking & Capital Markets) Commercial (Mergers, Acquisitions & Bonds) Commercial (Banking) Commercial (Mergers, Acquisitions & Bonds) Commercial (Pensions) Commercial (Mergers, Acquisitions & Bonds) Commercial (Banking & Capital Markets) Commercial (Banking & Capital Markets) Legal Aid High Street Common Law Set (PI, Professional negligence, commercial) Law Centre

London London

DK T3 C

1.6

Employment

London

22/03-02/04

Two

Assistants

DK A1 C DK A2 C

8 2

Litigation Trusts

London London

08/03-19/03 14/06-25/06

DK A3 C DK A4 C

2.6 1.6

Health Litigation

London London

08/03-22/03 15/03-26/03

DK A5 C

Litigation

London

15/03-26/03

DK A6 C

25

Employment

London

15/03-26/03

Three

Partners

DK Pr1 LA DK Pr2 HS

15 20 10

Personal Injury Personal Injury Commercial

Suffolk London Newcastle

08/03-19/03 08/03-19/03 14/06-25/06

Four

Barrister

DK B

Volunteer

DK V VS

General

London

17/03-22/04

TABLE 2: PROFILE OF INTERVIEWEES FOR STAGE THREE

Group Five Status Lawyer Code L1 LA L2 LA L3 HS L4 C L5 C Six Policy Makers PM1 PM2 PM3 Type of Organisation Legal Aid Legal Aid High Street Commercial Commercial Law Society Government Government Bar Council Advice Agencies Campaigning Citizens Advice Bureau Campaigning Recipient Campaigning Professional Body Campaigning Location London London Devon London London London London London London London London London London London London London London

Table 1 organises the diary keepers into four groups and indicates the participants field of work and the type of firm for which they work. In column three each participant is given a code and this will be included when an extract from their interview transcript is cited.

VS5 Eight Professionals P1 P2 P3

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Table 2 indicates the type of organisation in which stage three participants were involved, location and a code that enables tracking through citations from their transcripts. They have again been grouped, with the number of the first group (five) running on consecutively from the last group of diary keepers.

PM4 Seven Voluntary Sector VS1 VS2 VS3 VS4

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THE FINDINGS
THE RESURGENCE OF INTEREST IN PRO BONO PUBLICO
Our research identified a number of factors that appear relevant to the marked rise in the profile of pro bono publico in recent years, including idealism, professionalism, commercialism and globalisation.11

PROFESSIONALISM
Professional communities might be expected to engage in pro bono publico because it is an obligation supported by history, tradition and ethics. However, the efforts of the government to stimulate a commitment by the professional bodies appeared ineffective.13 Neither the Bar nor the Law Society take direct responsibility for pro bono publico, although both periodically cite the volume of pro bono services provided.14

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IDEALISM
This and other research suggests that trainees and senior lawyers share a propensity for professional altruism. Young lawyers are motivated by potential for personal development and a commitment to the community.12 Many young lawyers also participate because they are instructed to do so by their firm. In contrast, senior members of the profession are less likely to volunteer. They may do so because of a perceived ethical obligation and because the cases they receive add variety to their work or simply because they are invited to do so. The involvement of senior lawyers from large firms in death penalty appeals and work for Liberty, appears to have resulted from invitations to join the panels of these organisations. The presence of such organisations in the milieu, together with their pro-activity, is an important feature of the development of a culture of volunteering and a powerful stimulus for lawyer participation.

COMMERCIALISM
Commercial motives undermine the altruism and hence the ethicality assumed to underpin pro bono publico. Practitioner participants in our research were suspicious of the claims of other sectors of the profession. Commercial lawyers and policy makers thought that high street firms used pro bono work at advise agencies to generate paid work. High street and legal aid firms were concerned about the marketing of pro bono publico by large firms. [Pro bono is not] lots of people sitting in front of their logos saying how many guys theyve saved from Death Row...With the greatest of respect, whilst I am not a supporter of the death penalty, how it helps Joe Bloggs is lost on me. Its the nitty gritty boring stuff which is the problem in pro bono, all that stuff for glory doesnt count (L3 HS) It is unrealistic to suggest that all commercial motives can be erased.15 Nevertheless, it is distasteful and counter productive that pro bono be used too overtly to sell legal services. We advocate controlling commercialism by regulation. Pro bono publico should be seen to be performed for the benefit of the profession and controlled

[Pro bono is not] lots of

people sitting in front of their logos saying how many guys theyve saved from Death Row...

through professional advertising codes. This would be facilitated by the professional bodies accepting some responsibility for accrediting and monitoring pro bono schemes, most conveniently through the BPBU and, for the Law Society, through either large firm programmes or local Law Societies in the regions. We argue that participation should not be mandatory because this is likely to provoke resistance. An effort should be made to shift attention from the quantity of voluntary legal services to the quality of pro bono publico.

KINDS AND VOLUMES OF PRO BONO PUBLICO

The research diary method illustrated how difficult it is to gain a consistent and universal idea of how pro bono publico might be defined and measured. Taking group two as an example, different participants treated pro bono work as both private billable work for which no fee was charged and as unbillable work. Given these basic discrepancies it is not surprising that there is considerable uncertainty about the volumes of pro bono work performed. 17 The most consistent definitions of pro bono publico are adopted by large solicitors firms and by the Bar. In the case of large firms this, we believe, is because they are directly influenced by the SPBG, which restricts pro bono publico to legal services only.18 The Bar Pro bono Unit (BPBU) and the Free Representation Unit (FRU) tend to provide advisory and advocacy services connected with potential litigation.19 The nature of this activity is therefore close to traditional conceptions of pro bono publico. Based on this and previous research20 we conclude that a significant contribution to large firm pro bono publico comprises advice sessions in the not for profit sector which are staffed mainly by trainees and associate solicitors. More senior staff provide significant volumes of work for the London or Liberty panels, or for the Royal Courts of Justice Advice Bureau scheme to assist litigants in person. There is little evidence as to the volume of ad hoc cases performed by solicitors although there is data from the BPBU. Transaction work is also provided for groups such as the East London Partnership or the Professional Firms Group.

GLOBALISATION
There is considerable interest in the United States, Australia, Canada and New Zealand relating to pro bono publico. And Bar Associations have debated and in some cases enacted pertinent resolutions and regulations. Among the most powerful global influences is the American Bar Association which has had several campaigns on the issue, promulgated a Model Rule, urged clinical programmes on affiliated colleges and launched a pro bono challenge aimed at large firms. This activity, relayed through the advocacy networks, reinforces values transmitted through contacts between transnational firms, through business clients and through individuals awareness of developments in the United States. In the UK a powerful influence has been Business in the Community which has been instrumental in extending a charitable business ethic from the US to the UK including, through the Professional Firms Group, to the legal profession. The arrival of a large number of US law firms in London, was attended by much publicity about their intentions regarding pro bono work.16

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A number of categories of funding were mentioned by participants, which may or may not be considered pro bono publico. These are now considered in types:

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CONDITIONAL FEE AGREEMENTS

Even in cases where lawyers run higher than usual risks of not being paid, the presence of a commercial context the possibility of being paid extra if the case is successful is compensation for the risk of working for free. The difficulty of separating commercial and non-commercial motives in such cases suggests that no case in which a CFA exists should be seen as a pro bono case. Most lawyers accept this, as one participant in this study noted. ...there has got to be a difference between someone who takes a conditional fee basis as a commercial bet and someone who does it as a generous action. How on earth do you distinguish between those motives when it comes to analysing, I dont know. The classical idea of what I understand as pro bono must involve that element of intention (PM 4)

Weve got a large stake in the area and we reckon to get a slice of everything thats going. We do a legal surgery but that is not pro bono because 50% converts to paid work and it is publicity [and the 50% that doesnt lead to paying clients is] a loss leader, not pro bono (L3 HS)

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DISBURSEMENTS
There are grounds, however, for allowing lawyers to take disbursements reasonably incurred in pursuing cases pro bono publico. The main reason for this qualification is that pro bono publico is the provision of legal services, i.e., technical lawyering skills, not an indemnity in respect of all a pro bono clients legal expenses.

SPECULATIVE FEES
Non-CFA speculative fees are a more difficult case since, unlike conditional fees which include an uplift where the lawyer is successful lawyers are uncompensated under such arrangements for the litigation risk they accept. The same intention that underpins pro bono publico may be present. Moreover, not seeking costs, or not enforcing a costs order against the losing opponent, merely hands that party a windfall. Nevertheless, it is worth considering the exclusion of non-CFA speculative fees from the definition of pro bono publico so as to maintain the purity of the concept. An alternative to exclusion would be to create a pro bono fund to receive costs recovered from losing parties in cases that lawyers agree to conduct pro bono, but in which the fees are recoverable. Lawyers might then preserve, by means of an initial agreement with the fund, the pro bono status of their representation.

DISCOUNTED FEE
Work for substantially reduced fees or at significantly reduced cost is accepted as pro bono publico by the SPBG and the ABA and was included in the Law Society Working Partys definition of the term. However, we find discounted fees an unsatisfactory example of pro bono publico. Not only do normal fees differ hugely between firms, between staff within firms, and even between court scales in different parts of the country, but charging a discounted fee is usually a commercial decision by a firm. One lawyer clearly recognised this:

New funding mechanisms, particularly CFAs and speculative fees are at odds with the traditional concept of lawyers pro bono publico provision of litigation and advocacy services to the poor, free and without expectation of payment. As one policy maker commented the whole change in the cost structure has an impact on [pro bono] (P3) If conditional fees become pervasive there may be a declining need for pro bono publico in relation to more serious cases. This would further undermine the dominance of the litigation model of pro bono publico.

high volumes of such work.The Law Societys Reputation Working Party recently claimed that solicitors performed an average of 37 hours each per year.24 In most High Street and legal aid firms the boundaries between ordinary and free work are muddy.We found solicitors definitions of pro bono publico tended to be fluid, including free advice to existing clients, friends or relatives and work, for a variety of reasons, not charged for. In large firms, definitions are typically more distinct and pure. I divide it into pro bono and community affairs, pro bono to us means legal advice and assistance for free. But we also recognise the value of non-legal volunteering and our lawyers are involved in that, but that is nonlegal volunteering and not pro bono (L4 C) There are a variety of reasons for adopting a definition of pro bono publico but three are particularly important. First, the absence of a definition commanding common consent hampers research and the absence of reliable data inhibits sound policy making. Second, legal professions often assert that their members perform substantial amounts of work pro bono publico. Doubts as to the validity and reliability of the data used to support such claims undermine faith in their veracity and, consequently, confidence in the legal profession. Third, suspicion about claims to perform pro bono work between different groups with the profession, may exacerbate tensions and misconceptions.

DEFINITION

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Another problem with the litigation model of pro bono publico is that it does not fit contemporary conditions particularly well. For instance, non-contentious work, and particularly transaction law, is of a significantly higher volume than once was the case. The relative absence of suitable contentious work is an impediment to large 22 firm involvement. Because the historical origins of pro bono publico predate the growth of transaction law, it has been associated with litigation and advocacy and hence access to justice. This association, however, also reflects the contemporary view, expressed most clearly in the work of David Luban,23 that holding a monopoly on services essential to the public good imposes on a legal profession corresponding obligations to the state to provide access to justice. There is therefore an issue as to whether folk understandings of pro bono publico should be reinforced, changed as an act of policy or superceded by common usage. Despite considerable difficulty in defining pro bono publico, the Law Society repeatedly declines to take action on the ground that individual solicitors perform

must involve that element of intention.

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Given the developments recorded in this report it is desirable that there are changes to the traditional concept of pro bono publico. There is also a need to clarify this new meaning, in particular by excluding examples of work that undermine the integrity of the term. Similarly, however, the definition must not exclude some innovative examples of community action. For instance, schemes that combine the use of legal and non-legal resources, including community resources, in order to promote social cohesion, appear to meet the highest ethical aim for professionals; to help the disempowered help themselves. It is proposed, therefore, that the definition of pro bono publico should embrace: (1) traditional advice and representation provided that advice is given with a commitment to pursuing appropriate cases (2) transaction work provided it is for organisations representing socially disadvantaged groups and (3) community schemes involving non-legal personnel provided their contributions are ancillary to the provision of legal services and integral to the scheme. It is also proposed that definition should embrace speculative fee agreements where there is a commitment by the lawyer from the outset to contribute any fees recovered to a pro bono fund. Contributions to such a fund, in the absence of a prior contribution of legal services, should be encouraged but not regarded as a discharge of the obligation to provide legal services pro bono publico. Further, it is proposed that the new definition be presented as an ethical obligation of lawyers, in the codes of conduct of all professional bodies, albeit expressed in aspirational terms.

A PRINCIPLE OF CONDUCT
Lawyers subscribe to an ethic of public service. One of the highest manifestations of this commitment is the obligation to provide their services pro bono publico. The provision of pro bono legal services benefits the individual, the profession and wider society. Legal services provided pro bono publico are: (I) Advice, litigation and advocacy services provided by lawyers, or their properly supervised staff, to individuals: who are not existing clients, acquaintances or relatives and to whom the cost of those services would impose unusual hardship, or who would suffer ordinary hardship but whose case will, if successful, establish a legal principle beneficial to a disadvantaged section of society provided that the lawyer has waived a right to any fee and provided that, in the case of the provision of advice services, a lawyer has a commitment to pursuing appropriate cases without charge. (II) Other legal services provided by lawyers, or their properly supervised staff, to organisations the aim of which organisations is to improve the circumstances of disadvantaged sections of the community (III) Legal and other services provided by lawyers, or their properly supervised staff, as part of a scheme to improve the environmental, economic and social conditions of a community.

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INCENTIVES
Incentives for the provision of legal services pro bono publico are of two kinds: first recognition and promotion of the value and intrinsic rewards of pro bono publico and, second, the provision of inducements. These possibilities overlap. One of the advantages of a principle of conduct relating to pro bono publico is that it would communicate expectations and allay the current impression that the profession has low expectations of genuine pro bono work. A new principle of conduct could be supported by increased educational requirements for pro bono publico, for example, by broadening the commitment to clinical legal education in undergraduate degrees. Some such activity is already underway and is supported by a formal relationship between the SPBG and CLEO (Clinical Legal Education Organisation). The College of Law aspires to provide leadership in establishing a comprehensive network of student advice centres.25 Similarly, allowing continuing professional development points for pro bono publico would encourage recently qualified lawyers, and perhaps even more senior colleagues, to participate.26 One of the most important incentives is a sense of organisational commitment. This is encouraging, particularly to younger lawyers. [W]hen you start in the litigation department you are given a talk on pro bono work and the firm holds it in high regard and I do know that cases are taken up and trainees are allowed to work on some of those cases which is quite interesting. AB [partner in charge of pro bono] made it quite clear that if you werent committed to it, that wasnt a good thing at all which is amazing coming from a man like that who has achieved so much, there are so many amazing people who work here, its like

working in a premier league which may sound like brainwashing but it is like that! [T]heyre showing a strong commitment to pro bono and when you see a senior person like [AB] getting involved it makes you think they really do mean it in their talks etc. Its someone whos practicing what they preach (DK T1 C) Committed firms allow lawyers to see the occasional large case through, do not restrictively apply conflict of interest rules and give credible assurances that future prospects will not be hampered by pro bono practice. Such firms treat pro bono publico as a valuable opportunity for professional development, and an ordinary part of routine, in which most firm members, at least occasionally, participate. Recognition within social structures, allowing full credit for pro bono hours against standard billable hours and the provision of adequate support and supervision are measures that also support and encourage involvement. Combining elements of these possibilities is likely to be the most productive strategy in promoting pro bono publico. A strong investment in undergraduate and vocational stage pro bono publico, followed by strong commitments and programmes offered by the professional bodies, and firms and chambers, would create a climate of expectation and encouragement. The success of projects that contribute significant community gains may lend considerably to enhancing the intrinsic rewards of legal practice. Awards that value pro bono publico, such as that offered by The Lawyer and another recently launched by the Young Solicitors Group, are an important mechanism for adding legitimacy to these activities. its important that firms should shout about their pro bono work to tell the outside world what it is they are doing and to encourage others to follow suit (L5 C)

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IMPLICATIONS FOR PROFESSIONALISM

The creation of a vibrant culture of pro bono publico throughout the profession is a way of inculcating an ethos of public service, improving the public image of lawyers and providing a vehicle for collegial relations between different sections of the profession. The considerable doubt about what role, if any, volunteer lawyers will play in the Community Legal Service (CLS) leaves a question mark over the potential for integration of advice sessions, clinical learning and similar activity and the CLS. Speaking about this integration a parliamentary backbencher close to the governments thinking said: I dont see any necessary connection with Community Legal Service for this reason; the CLS is about quality assured legal services, the main problem with pro bono is quality assurance because when people are doing pro bono work they arent necessarily applying the rigorous standards that they would apply if they were being paid for it, that is the major problem. So, the CLS is not about pro bono, they are completely different, there is virtually no connection between them at all. Pro bonos voluntary, the CLS is about contracts, pro bono is for nothing, CLS is about the government getting better value for the money that is invested in buying legal services... I am delighted that lawyers take on pro bono cases, I strongly encourage them to do so, but we cant fashion legal services for the poor out the scraps from the rich mans table (PM 3) We argue that the government would be wrong to reject the possibility that pro bono publico could contribute to the delivery of the CLS or otherwise make significant contribution to the development of legal

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services. The structure of the CLS could provide a convenient framework for the efforts of high street and legal aid firms. It would allow them to meet the stringent conditions of the proposed definition and provide a single point for negotiation of commitments and standards with regional profession groupings. The CLS consultation document refers to discussions with the Solicitors Pro Bono Group regarding this role. This, together with much else regarding the regulation of the emerging pro bono culture, is properly a matter for the profession as a whole and, hence, the professional bodies. Many of the uncertainties and difficulties described in this report might be resolved by a more pro-active response to the issue by the professional bodies, particularly the Law Society. This would: assist in reaching an agreed definition of pro bono publico. enable the creation of a regional structure and mechanisms for accreditation, filtering, monitoring and evaluation, send encouraging signals to the many lawyers who are involved in individual or firm initiatives, allow the establishment of frameworks which encourage collaboration between barristers and solicitors and between different sections within each branch of the legal profession and therefore, help to build bridges between these groupings and encourage collegiality amongst lawyers in general. Such frameworks might also assist in identifying community projects with legal components that might enable contributions from non-qualified employees of firms.

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CONCLUSIONS AND RECOMMENDATIONS

(1) Despite the lack of any clear consensus, and to some extent because of it, a clear definition of pro bono publico is essential. There is a desire among sections of the legal profession to contribute to society and there will continue to be a variety of unmet legal needs. The task is to define pro bono publico in a way that recognises changes in the environment of the legal services market, whilst retaining links with the traditions of lawyers and commanding consensus. This last objective is important because of the potential for intra-professional conflict around this issue. (2) We advocate a tight definition of pro bono publico and the exclusion of dubious categories from this definition. Without this there is potential for conflict between the various conceptions of pro bono. Also conclusions regarding volumes of work based on self-reporting are unreliable. (3) Offering conditional or discounted fees, while doubtless valuable to clients, are, typically, commercial decisions. In advocating the exclusion of these funding mechanisms from the definition of pro bono publico, we have argued for quite stringent conditions before work is regarded as pro bono. However, maintaining such a pure concept of pro bono publico would not necessarily undermine its relevance. There may be cases which slip though cracks in the new funding regime, where pro bono publico is the only viable alternative for pursuing important rights. There may be some cases where the risk is so high that insurance (usually available to cover the risk that the party with a CFA might be required to cover the other partys costs)

is not available. As in the recent tobacco litigation, lawyers may take the case in a spirit of public service. (4) There is a delicate balance to be kept between ethical and commercial motives. We suggest it is the responsibility of the professional bodies to safeguard this balance to ensure that pro bono is used to promote the profession as a whole. Professional bodies should also accept some responsibility for accrediting and monitoring pro bono schemes, although this might be done through the BPBU and, for the Law Society, through the SPBG, large firm programmes or local Law Societies in the regions. (5) Lawyers in England and Wales should commit themselves to a definition of pro bono publico and publish a suitably aspirational principle in their professional ethical guidance. Without this, confusion will continue to reign and an opportunity for ethical regeneration missed. (6) The tradition of pro bono publico is a mechanism for elevating legal professionalism, maintaining public service commitments and, potentially, for socialising lawyers. It is proposed that the profession should seize the opportunity presented by the resurgence of pro bono publico to rebuild the connection between legal professionalism and public service. This will require a more active engagement with the emerging culture that will include regulation, support and sponsorship.

11

Despite the lack of any

definition of pro bono publico is essential.

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ENDNOTES
Brundage, J. (1988) Legal Aid for the Poor and the Professionalisation of Law in the Middle Ages 9 Journal of Legal History 169
1 2

Ibid. at 169

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McLeod, J. (1994) Justice Agenda 91(11) Gazette 16th March at 12; Ames, J. (1995) Labour Creates Vision for the Future 92(08) Gazette 22nd February at 1, 68; Bindman, D. (1996) Pro Bono Wrangle 93(46) Gazette 13th December at 6

Peter Mandelson, when working for Voluntary Services Overseas, said of employer supported volunteering: The benefit is not only to employee and shareholder relations but also to companies consumer profile. Two-thirds of consumers consider the ethical stance of a company when considering a purchase and initiatives such as VSOs offer a practical, cost-effective and very public way to deliver socially responsible brand values, see Hill, N. (1998) Market Ethics The Guardian (Society Supplement) 19th May at 85.
15

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Pye, S. & Laferla, A. (1998) BAe Threatens Unethical Firms, The Lawyer 8th March at 1
4

See for example, Law Society Alberta (1995) Law Society of Alberta code of Professional Conduct Law Society of Alberta: Calgary and Law Society New South Wales (1998) Access to Justice: Final Report Law Society: New South Wales.
5 6 See, for example, Luban, D. (1988) Lawyers and Justice: an Ethical Study Princeton University Press: Princeton, NJ and Oxford; Katzmann, R. A. (1995) The Law Firm and the Public Good The Brookings Institute: Washington; Silverman, R. (1990) Conceiving a Lawyers Legal Duty to the Poor 19 Hofstra Law Review 885

See, for example, Hardwick, C. (2001) SPBG Signs up US Pro Bono Trio, Legal Week 31 May, The Lawyer (2001) US Firms in London Set to Launch Joint Initiative on Pro Bono Work, The Lawyer 12 February.
16

Boon, A. and Abbey, R. (1997) supra n.7, Flintoff, J-P. (1995) Pro bono or Promotion? Legal Business January/February 44, Webley, L. (1999) Trainee Solicitors Group/Young Solicitors Group Pro bono Survey Institute of Advanced Legal Studies: London and Cahalane, B. (2000). Supra n.14.
17 18

See, for example, Abbey, R. & Boon, A. (1995) The provision of voluntary legal services by solicitors: a review of the report of the Law Societys Pro Bono Working Party 2 International Journal of the Legal Profession 261; Boon, A. & Abbey, R. (1997) Moral Agendas?: Pro Bono Publico in Large Law Firms in the United Kingdom Modern Law Review 630 and Webley, L. (1999) Trainee Solicitors Group/Young Solicitors Group Pro bono Survey Institute of Advanced Legal Studies: London.
7

According to the SPBG pro bono publico is legal work done without charge or at reduced cost, for members of the public with limited means, or charitable and other non profit-making organisations Solicitors Pro Bono Group (undated) Promotional Brochure The Unitwas establishedto provide pro bono free legal advice and representation in deserving cases where Legal Aid is not available or where the applicant is unable to afford legal assistancebarristerscan give adviceor represent [applicants]free of charge Bar Pro Bono Unit (undated) Promotional Brochure. Boon & Abbey supra n.7.

19

Zimmerman, D.H. & Wieder, L.D. (1977) The Diary 5 Urban Life 479; Bell, J (1993) Doing Your Research Project (2nd. edition) OUP: Buckingham; Corti, L. (1993) Using Diaries in Social Research 2 Social Research Update 1
8 9 Miles, M. B. & Huberman, A. M. (1994) Qualitative Data Analysis: An Expanded Sourcebook Sage: Thousand Oaks and London

20

See further Boon, A and Whyte, A. (2000) Pro Bono Publico: Its a Matter of Principle 150:6957 New Law Journal 27th October at 1564
21 22

Rovnick, N. (2001) All for Nothing 15:37 The Lawyer 17th September at 24.

Lincoln, Y. & Guba, E. (1985) Naturalistic Enquiry Sage Publications: London

10

For a more detailed exposition of this analysis see Boon, A. and Whyte, A. (1999) Charity and Beating Begins and Home: The Aetiology of the New Culture of Pro Bono Publico 2:2 Legal Ethics 169.
11 12

See, for example, Luban, D. (1988) Lawyers and Justice: an Ethical Study Princeton University Press: Princeton, NJ and Oxford
23 24

Supra n.14.

Ibid.

Sweet, P. and Grimes, R. (2000) Educating Lawyers in the 21st Century: Pro Bono Activity and Proactive Learning at the College of Law College of Law: London.
25

See for example, The Lawyer (1996) Boateng in Threat to Impose Pro bono Rules, The Lawyer 10th December 1.
13

See, for example, Cahalane, B. (2000) Law Society Reputation Working Party Report: Leading the Profession into Pro Bono Law Society: London 15th September.
14

Presently lawyers may only earn CPD points for time spent researching or developing new skills in preparation for pro bono work. Also, trainees undertaking properly supervised pro bono work, can apply to have this time count towards their training contract.
26

...The profession should define pro bono publico, preferably in its code of conduct...

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