A high level of commitment to pro bono has been found by the Society's recent survey

"It is and always has been part and parcel of a small community that the local lawyer serves on local groups and organisations and as part of that process provides free legal advice.” This was one of the responses to the Society’s recent pro bono survey, looking to identify the types, amount and motivations for pro bono from solicitors across Scotland. Many others highlighted the unique contribution that solicitors make to access to justice and to civic Scotland.

Pro bono isn’t advertised, but as our survey showed, is something that around three-quarters of the profession have done recently. It’s being done mainly at the initiative of individual solicitors rather than through firm or profession-wide initiatives. It’s being done by solicitors in all types of practice and all across Scotland. It’s being completed for laudable purposes, giving something back to society and addressing unmet legal need.

Free advice and representation are the most prevalent types, but the survey suggests recognition that legal services provided at reduced cost, or “low bono”, can promote access to justice. “We take on clients who can’t afford the full fees if it’s a particularly deserving or interesting case,” one respondent said. A number of high street solicitors said that this type of pro bono was fairly frequent, particularly due to the effects of the recent economic downturn on clients seeking help.

Legal aid

Recent months have seen a focus on the future of legal aid, with the Society publishing discussion and then recommendation papers outlining reform of an anachronistic system to meet the needs of the Scottish public better. There was recognition from respondents that pro bono could not be a substitute for an adequately funded system of legal assistance. One solicitor added: “Some civil legal aid work is so poorly funded that it is effectively delivered though subsidy by me [and by] my firm.”

Pay or play?

At a stage at which Michael Gove, the new Lord Chancellor, has suggested that big firms in England & Wales need to do more to promote access to justice, ideas around compulsory pro bono, or a “pay or play” approach, may well be considered there. From our pro bono survey, there was no appetite for such an approach in Scotland: 92% opposed compulsory pro bono (and 87% opposed compulsory pro bono with an exception for work undertaken through legal aid, and other access to justice work). With the prevalence of pro bono across Scotland and with the clear view expressed through this survey, we would reject any suggestion of compulsion.

Obstacles and opportunities

A clear obstacle to helping provide pro bono was being unable to identify suitable opportunities. That’s something that we will be looking at, and advertising any opportunities on our website. There are also organisations such as LawWorks Scotland that provide opportunities for firms to get involved.

The level of engagement with pro bono, from high street practice to big firm, is heartening and the reasons for doing it are creditable. One solicitor said: “It is important that we recognise and remind ourselves that there is considerable unmet legal need today, financial constraints on citizens well beyond the experience of almost all solicitors and we should be humbled by that.”

With the level of commitment to access to justice across the profession, demonstrated through legal aid, pro bono and a range of other activity, it’s important to recognise and support these contributions and I hope that this survey does so.

The Author
The Society’s pro bono survey is online: www.lawscot.org.uk/probono Stuart Naismith is the convener of the Society’s Access to Justice Committee 
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