The days of state-funded legal services are over – so let’s make pro bono tax deductible

The Future Legal Mind competition 2015 seeks to reward the brightest legal minds of tomorrow. Entrants were asked to demonstrate original thinking and legal insight, with a well-structured argument and evidence of research. Lukas Hamilton Eddy won the postgraduate category, answering the question: ”How do you think the provision of legal services should change over the next 10 years? How would this affect access to justice?”  This was his winning entry.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 has resulted in the greatest change in the provision of legal services for almost 70 years. In the next ten years private providers of legal services must expand both in form and function in order to offer access to justice for those without the means to pay.

The figures speak for themselves. In the Employment Tribunal between 2012/13, 16,154 claims were granted legal aid. In 2013/14 this number was reduced to 18. Welfare benefit claims have seen a similar decline: 88,233 in 2012/13, down to just 145 a year later.

Legal aid provision for family law has also been significantly reduced. The number of cases where both parties were represented fell by nearly 40 per cent between April and June 2014 compared with the same quarter in the previous year. 

This has meant that hearings regularly become protracted as judges attempt to explain the legal process to unrepresented, inexperienced individuals. In the view of the family law organisation Resolution, the courts are at ‘breaking point’.

Yet it is not only the vast reduction in the cases eligible for legal aid which reduces access to justice. The government’s attempt to cut the legal aid bill by £350m per year has led to criminal solicitors and barristers having their fees cut by 17% to 30%.

As a result, representing clients pro bono has become increasingly difficult. In the words of Imran Khan, the solicitor who represented Doreen Lawrence on a pro bono basis: ‘I am working twice as hard as I used to with half or a third of the money. Society won’t get the benefit of those cases where there is an injustice. No lawyer will take it on. I can’t imagine there is going to be another Lawrence case for a long time – if ever.’

Those concerned with the provision of legal services would do well to accept this reality. These cuts are unlikely to be reversed; there is no political gain to be made from supporting legal aid. While the extensive and to some degree effective resistance to the reforms has been admirable, the time has come to accept that wide scale state funding of legal services is a thing of the past. If we wish to remain a society that offers access to justice to the many, not just the few, radical solutions will be necessary to repair much of the safety net taken away by the government.  

To allow this to happen, the government needs to incentivise legal service providers to take on cases that are no longer funded by the state.

One idea would be to make pro bono work tax deductible. The system could operate whereby every hour spent working pro bono is set off against paid and taxed hours doing similar work. For established practitioners paying the top tax rate this would potentially equate to being ‘paid’ 25 to 40 per cent of their usual fees, while providing a free service to those in the most need.

A further incentive for individual barristers and solicitors would be to receive a share of pro bono costs. At present these are paid in their entirety to the Access to Justice Foundation as per The Legal Services Act 2007, s. 194(3). Sharing them with lawyers who have invested considerable resources of their own would allow legal professionals to continue their vital pro bono work.

Making pro bono work more attractive will help poor claimants faced with complex, high profile or interesting cases. It is however unlikely to be of much help to those with modest claims and even more modest means. These are the cases that make up the vast majority of unrepresented individuals in court. Government and regulatory reform allowing greater consumer choice will help remedy this problem. 

Lukas Hamilton Eddy
“We live in an age where the meaning of ‘professional’ is increasingly blurred… the government and legal services industry should recognise this fact and move with the times.”

In the face of the legal aid cuts a new type of advocate has emerged – the fee-charging McKenzie Friend. McKenzie Friends have existed for almost 50 years and were generally friends or family members offering advice and support to litigants in person. In recent years, McKenzie Friends have begun charging modest fees to advise and sometimes even represent their clients in court.

If properly regulated and insured, these individuals offer the chance to provide a real solution to the problem of unrepresented litigants. As the findings of a report by the Legal Services Consumer Panel state: ‘fee-charging McKenzie Friends should be viewed as a source of potentially valuable support that improves access to justice and contributes to more just outcomes’.

While not free at the point of service, fee-charging McKenzie Friends could help at least to provide a low cost alternative to traditional legal services. At present a McKenzie Friend may only appear as an advocate with the permission of the trial judge. The Ministry of Justice should work with the Bar Standards Board and The Law Society to establish consistent criteria for the grant of rights of audience to such individuals.

We live in an age where the meaning of ‘professional’ is increasingly blurred.

We can go on holiday and stay in the property of a stranger at a fraction of the cost of a hotel. Almost anyone with a car and a smartphone can be a taxi driver and we can pay for aspiring chefs to cook for us in their living rooms.

The government and legal services industry should recognise this fact and move with the times. Allowing appropriate individuals rights of audience would offer a valuable third way between expensive traditional representation and going it alone as a litigant in person. At the same time, making pro bono work a financially viable prospect whereby legal professionals are at least not forced to make a loss, will support the very poorest.

The legal services industry has a fine tradition of helping those in need. The right incentives and reform will not only help that tradition to continue but could well allow it to flourish.

Lukas Hamilton Eddy is the winner of the Future Legal Mind competition for postgraduates, winning £5,000 towards his studies during 2015 and work experience at the law firm Colemans-ctts. 

Lukas completed his undergraduate degree at the University of St Andrews, studied the LLB at City University and is now studying for the Bar Professional Training Course. He has come to the Bar through a passion for oral and written advocacy. In his free time he enjoys skiing, shooting and riding.