A societal perspective on compulsory pro bono

Lily McDermaid was inspired to write a piece for our blog after working through the free course 'Pro bono work and social justice' which is a taster for our module 'Justice in action' (W360).

Pro bono legal advice has a vital place in the functioning of today’s society. However, pro bono should not be compulsory for legal practitioners and students for one simple reason: it should not have to exist. If the English and Welsh justice system was fully functioning, pro bono would not need to exist in its current form as legal aid would be open to all people that need it. Currently, though, the need for pro bono work keeps increasing. This means that, unless radical legislative change were to happen, it is bound to increase exponentially to match the growing population and ever-increasing wealth gap. It is the duty of a fair and democratic state to offer citizens legal representation in order to honour rights to justice and treat citizens as fairly as possible. Every pro bono case is an example of the state failing to adequately provide a level playing field so the necessity for its existence should be lamented. 

In the context of the current legal aid situation, if pro bono was to be made compulsory for law students and lawyers, it could be detrimental to the recipients. If pro bono work was made a requirement for a qualifying law degree, there could be a number of negative consequences. For instance, students that have to work to fund their degree might be unable to set aside the time to work for free, putting pressure on them to give up their income or give up their law degree. Too much responsibility could be put on unqualified and inexperienced law students which could in turn lead to mishandling of cases and sub-optimal outcomes for the clients. Non-law students that later take a conversion degree present another hurdle to mandatory pro bono. Mandatory pro bono might actually dissuade wannabe lawyers from pursuing a legal career. Making every student undertake a specified amount of pro bono a year could dilute the meaning and importance of pro bono and cease to help passionate law students stand out from their peers. 

On the other hand, mandatory pro bono could improve the quality of work that a graduate produces because of their invaluable practical experience. It could also leave students with good working relationships with lawyers and researchers that outlast their degree experience. Some might even feel stronger about pursuing their career after helping their first client. These benefits, however, are the same as those that can be gained by opting to undertake pro bono voluntarily. Perhaps the best way forward is to raise the image of pro bono law clinics among law students as something that is of personal importance to many practising lawyers. This might help to encourage more law students to contribute within their means.  

Lots of firms set pro bono yearly targets but a state-mandated pro bono requirement of qualified lawyers would be entirely different. After all, not everyone becomes a lawyer because they want to help people. Making lawyers advise for free could reduce the quality of advice given to the recipients as it is being done simply to meet a requirement rather than out of the desire to do it. Some lawyers that already actively engage in pro bono might not notice a difference but many other lawyers could find the change to be drastic. Making it compulsory would also threaten the livelihoods of lawyers that practice independently or in small firms. This is because the resulting loss of billable hours could put small firms under, leading to the loss of jobs. 

Instead, the decision as to whether to work pro bono and under what circumstances should remain that of the person in question. The quality of pro bono would remain stable and the legal profession still holds the reins.  

One alternative to pro bono might be further support of legal self-help materials designed to remove the need for legal representation in certain types of cases. However, there will always be some cases where experienced legal guidance is needed but cannot be afforded by the litigant. Therefore, I think that pro bono still has a part to play as more AI and smart technology is incorporated into the legal profession.