From barristers challenging parking fines to codifying the law of an entire country; from student lawyers appealing fitness-to-work decisions, to solicitors advising charities, and legal aid lawyers doing free work on a daily basis to plug the gaps in the funding scheme, the breadth of pro bono work done by lawyers of all kinds is vast.

Around 3,600 barristers – including a third of all QCs – volunteer with the Bar Pro Bono Unit (BPBU), which celebrates its 20th anniversary this year, and legal executives contribute through the CILEx Pro Bono Trust.

But the need is great and growing, says Michael Napier QC, who served as the Attorney-General’s pro bono envoy from 2001 to 2015: ‘Throughout history, and well before the cuts in legal aid began a decade and a half ago, the legal needs of many could not be met without the help of a pro bono lawyer.’

Domestically, the dramatic cuts to legal aid, especially those implemented by LASPO, have increased that level of unmet need ‘exponentially’, says Napier, ‘posing a major problem for the Ministry of Justice and a daunting challenge for the pro bono lawyers who try to plug the ever-widening gap’.

But, he warns, however much free work lawyers do, it will never be enough ‘because the gap is widening all the time’.

Martin Barnes, chief executive of LawWorks, the solicitors pro bono organisation, says its network of 200 clinics and 4,500 volunteers received 43,000 enquiries between April 2014 and March 2015, up 55 per cent on the previous year. The numbers of enquiries concerning family law, housing and employment – areas where funding was savaged by LASPO – grew significantly.

The BPBU, meanwhile, has seen a 30 per cent increase in applications year on year since 2012, according to its chief executive, Jess Campbell. In 2014, it received 2,163 applications for help, and up to September 2015 it had received 1,703.

While it saw the number of employment cases drop from 334 in 2014 to 180 by September 2015, Campbell says the number of family cases doubled from 244 in 2013 to 471 by September 2015, and the number of immigration cases, though small, had tripled since 2012, to 98 by September 2015.

She expects to see the number of cases levelling out, not due to a reduction in need, but rather, she suggests, because of the closure of legal advice and law centres that refer cases to it.

A MoJ report published last year (Survey of not for profit legal advice providers in England and Wales, 17 December 2015) showed that the number of law centres and legal advice agencies had dropped by 55 per cent over the past decade, down from 3,226 in 2005 to 1,462 in 2015. Many advice agencies, while being suitably grateful in public for the pro bono support they receive, talk privately about the additional cost to them of accepting some kinds of ‘free’ help. Volunteers from City firms, however keen, require training, supervision and desk space, all of which may be difficult for agencies at full stretch to provide. Some point out that what agencies need and what City firms may want to provide can be two different things. Big firms that see pro bono as a valuable PR and recruitment tool will inevitably be more interested in work that is high-profile, uncontroversial, and CV-enhancing for those involved. For a law centre anxious about being able to keep the lights on, a cash donation rather than an army of volunteer trainees might be a better option.

Shadow justice minister Lord Bach says: ‘The government’s position seems to be that pro bono is the solution to inequality in the justice system. That is a false argument and one we should reject wholly. If we want a society that values access to justice, then we have to find a way to properly support it.’

Among the issues being looked at by Labour’s legal aid review, chaired by Bach, is the role that pro bono should play.

Where should lawyers draw the line between helping those in need and standing firm to ensure the government does not wriggle out of its obligation to provide adequate funding?

‘It’s a tough question,’ says Lord Goldsmith QC, Labour’s former Attorney-General who set up the BPBU in 1996 and is London co-managing partner at US firm Debevoise & Plimpton.

‘I, and all the organisations I have been involved with, have always said that pro bono should be an adjunct to, and not a substitute for, decent public funding,’ he says.

But, says Napier, that phrase, which has become the mantra of the pro bono community, ‘is increasingly difficult to maintain as legal aid continues to be reduced’.

‘Before legal aid started to be cut back, it was fair to suggest that the pro bono adjunct operated in a complementary way. But it is unrealistic to argue today that the combination of legal aid and pro bono is capable of providing a holistic service,’ he observes.

Lawyers across the profession have demonstrated a strong and proud tradition of commitment to pro bono work. For many, says Barnes, it is an ‘important part of being a lawyer’.

‘Lawyers care about justice and won’t turn their backs from helping those in need,’ adds Goldsmith – a benevolence of which, he accepts, governments, including his own, have taken advantage.

‘I recall when in government complaining bitterly to a colleague in the lord chancellor’s department, who were resisting a judicial review for legal aid for a case. [The colleague was] trying to say there was no need for legal aid because lawyers would take the case pro bono.’

He stresses: ‘Governments must justify why they do not provide public funding and not merely rely on the safety net provided by pro bono lawyers.’

Since the funding cuts, many legal aid lawyers regularly do a lot of unremunerated work for their clients as well as taking part in more formal pro bono work. And while City firms already make a contribution too, David Hobart, chief executive of the City of London Law Society, says they are ‘sympathetic’ to Gove’s plea for them to do more. But the ‘slightly vague idea’ that they should pay a levy to help fund the justice system, he says, is a ‘blunt tool’.

Napier is emphatic: ‘It is the duty of the government to provide funding for the justice system without imposing a tax on a particular sector of the legal profession.’

For Hobart, a better way of raising more money would be for the government to trumpet the excellence of the legal sector in England and Wales and to promote it internationally, bringing more money into the exchequer’s coffers that could be used to fund the justice system.

The Low Commission, exploring a strategy for the future delivery of legal advice, recommends initiatives to fund greater access to justice from lawyer fund generation schemes, including a compulsory interest on lawyer trust accounts (IOLTA) scheme for firms with profits above an agreed threshold, with the proceeds paid to the Access to Justice Foundation (ATJF).

It also wants to see an exemption for dormant funds held by solicitors in relation to companies that have dissolved, so that they are paid to the ATJF, rather than to the Treasury, and legislation to make the foundation the recipient of unclaimed damages in collective actions.

‘This includes looking at strengthening the evidence base about the impact of pro bono, and how it can best adapt to and address need,’ he suggests.

Asked for an update on the levy plans, the MoJ responded: ‘The justice secretary has been clear that those who benefit financially from our legal culture must do much more to help protect access to justice for all. We have begun constructive discussions with the sector about how we can best achieve this aim and look forward to continuing that dialogue.’

How do you work to fill the so-called ‘justice gap’? Should pro bono be compulsory?

‘No,’ insists Napier. ‘It is integral to the willingness of lawyers to commit their time for free that they should do so with the enthusiasm that comes with volunteering rather than being conscripted.’

Goldsmith agrees: ‘It should be more about encouragement rather than compulsion.’

He is against mandatory hours, a trend that has begun to cross the Atlantic, but suggests incentives for firms to get on board.

‘People seeking to apply for the rank of QC should have to demonstrate a commitment to pro bono work and law firms bidding for government contracts should have to provide details of what pro bono work they do as part of the tender process,’ he says.

His firm treats pro bono hours as counting for billable work targets, which he says is a ‘really important way of demonstrating commitment’.

Napier adds: ‘It is also essential that the leadership and management of law firms give support and encouragement to their members to engage in pro bono activity as a core part of the firm’s social responsibility within the community.’

In addition, Barnes points to a strong business case for pro bono, by enhancing a firm’s reputation and providing opportunities for staff development.

Campbell says the key to successful pro bono projects, whatever they are, is collaboration and partnership. In the past, laments Napier, there was a ‘distinct lack of co-ordination’ between pro bono providers. That, though, has changed, he reports, through the Attorney-General’s domestic and international pro bono committees and the establishment in 2010 of the National Pro Bono Centre in Chancery Lane, which is a hub of pro bono activity, housing small, large and embryonic pro bono organisations. The centre is also now the new site of LAG’s offices.

One issue that still needs addressing, says Goldsmith, is the ‘mismatch between demand and supply’, with a particular challenge to extend provision outside London.

Northumbria Law School has helped develop the LawWorks North East Pro Bono Hub, a first step in regional development that also provides a model for others to follow. Among its current projects to extend pro bono among lawyers, LawWorks is looking at ways to support those outside London.

‘There is also a skill-set mismatch,’ notes Goldsmith. ‘Only around five per cent of lawyers undertake social welfare law, but there is a huge demand in this area. There needs to be a way of matching the supply with the need better.’

Again, LawWorks is coming to the rescue. It is piloting a project to support lawyers – through training, advice and supervision – to provide pro bono advice in new areas of work, such as social welfare law, for what is called ‘secondary specialisation’, says Barnes.

The key message, he concludes, is: ‘All lawyers have valuable and transferrable skills, and individuals and organisations new to pro bono may underestimate the difference and contribution they can make.’ ■