For the common good

"I just think there is huge potential and I think any vision might be quite limiting". Lord Advocate Elish Angiolini QC was responding to my question - what was her vision for pro bono in Scotland?

We were meeting at the conclusion of a conference in May, organised and hosted by her department and held in the Scottish Government offices, on the future of pro bono legal services in Scotland. The sellout event covered the perspectives of the providers and beneficiaries of pro bono help, asked how it could be done better, and highlighted some of the initiatives now under way.

"The fact that it was heavily oversubscribed was itself a manifestation of the huge potential out there", Angiolini commented. "Not only is there lots of pro bono work taking place quietly round the country, there is also clearly an enthusiasm and a real interest about how we can pursue it further and how we can galvanise the skills which are out there in a way which is as productive as possible."

Without any hint of compulsion about the concept, the range of speakers taking part demonstrated that there are openings for all. Large and small firms, in-house lawyers, law centres, and the Faculty of Advocates were all represented, and of course the Strathclyde student law clinic, now only one of a number of student-run initiatives.

Cheap substitute?

Even so, there remains among some parts of the profession an acknowledged suspicion of, if not resistance to, the whole idea. Perhaps not surprisingly, the charge is that we are simply looking for cheap alternatives to an overstretched and underfunded legal aid system. Are pro bono providers not in competition with those seeking to earn an honest crust in ordinary high street legal practices?

Absolutely not, the Lord Advocate insists. "This is in no sense a substitute for a properly funded system of legal aid. But there will always be cases and situations which are not covered by the legal aid system, where legal assistance is needed."

Similarly, in her opening address she made the point: "Access to justice must be affordable. Legal aid can never hope to meet all needs." Whether because of financial cutoff points, or the nature of the advice required, pro bono work had a longstanding function reflecting the ethos of the profession and supporting the rule of law.

Angiolini herself can speak from the experience of her upbringing in Govan during the years of industrial decline. When her parents successfully applied for a repairs grant for their tenement home, she found herself as a teenager helping what seemed like the whole street fill in the necessary forms to do likewise. That was followed by what she claims to be still her "greatest forensic triumph" - a successful benefit appeal on behalf of an 84-year-old woman for a carpet to replace her worn-out linoleum.

Anxious that the profession belies the fat cat, ambulance chasing mythology embedded in the public consciousness, she links pro bono work to the core professional value of maintaining the rule of law: it promotes the access to justice without which rights and obligations are empty. But it is "also good for us as lawyers and people", providing a sense of satisfaction from putting something back, as well as being good for business as a means of training and developing staff and attracting prospective employees.

Cultural issue

The Lord Advocate was not the only one to recognise this feature as particularly attractive to younger lawyers. "It's an opportunity for them to really get involved", said Stuart Neilson of McGrigors, whose firm's Horizons programme, allowing staff a half day per month for pro bono or volunteering work has proved very popular. The opportunities it provides for younger lawyers, and others, were one of the key features of the scheme - as well as the need for buy-in at senior level.

This is not necessarily small-scale work. When the Live8 concert was staged at Murrayfield, the firm undertook between £50,000 and £100,000 worth of work pro bono. But there is always a reporting structure, with a co-ordinator who gives clearance.

Where McGrigors have Horizons, Pinsent Masons have Starfish. The name derives from the story of the man surrounded by a multitude of beached starfish who started putting them back into the sea one at a time. When asked what difference it made, he replied: "It matters to each of the starfish I put back". Fraser McMillan, head of the international firm's Scottish office, said the fact that they were a collection of specialists not involved in private client work had implications for what they could offer. However they advise charities and arts organisations on constitutional and IP issues, for example - and staff gave up their Secret Santa presents to buy books for a primary school.

Why do it? "People are very motivated to get involved." There is also a strong driver from clients, especially in the public sector but also companies with affiliated charities. And as with McGrigors, it is essential that the firm contributes by freeing up staff time, and recognises the work in appraisals and promotions.

Both Neilson and McMillan stressed the need for pro bono work to be done just as professionally as paid work. "It doesn't work as a two-tier service", McMillan commented, "though it means there is a limit on what we can do." And Neilson emphasised that scoping letters and identifying what the task involves are as important with pro bono work as with any other.

It was Ian Smart who spoke for the small practitioner, he of the firm whose reach spans "Cumbernauld and, er, Cumbernauld, though we sometimes have to give advice at Coatbridge Police Station". He knew all about the suspicions of small practices, especially those in legal aid; they had a "legitimate concern" that bread might be taken out of their mouths, and were irritated at the assumption that pro bono was something done by big firms. "We do a huge amount of work, though not in a structured way", he said. "Probably one in three new clients goes away with no fee, no file - just the hope that they will signpost us to others".

But he supported pro bono because we had to be realistic about limits on funding - the demands on legal aid could be as unlimited as those on the NHS. Also organisations couldn't be legally aided; and the law centre network was patchy. He too recognised the link to the rule of law: if disputes of small amount were not resolved in accordance with that, it "slowly but certainly undermines the rule of law".

Smart made the point that there was nothing wrong in looking for a benefit to your firm, if that should come about, "as long as you are doing the work for the benefit of the public".

Counted in

Then it was the public sector's turn. Jane McLeod of the Government Legal Service for Scotland introduced us to the GLSS Pro Bono Network, launched last October but modelled on a Whitehall version running since 2000. Because Government lawyers don't have professional indemnity insurance cover, their work has to be done by way of volunteering for citizens' advice bureaux or other organisations, or by serving as charity trustees and the like. A rota of 12 volunteers, for example, now provides a weekly legal advice clinic at the CAB close to the Scottish Government's Leith headquarters.

As with its counterparts in private practice, the GLSS, which covers more than 200 lawyers working for the Scottish and UK Governments, HMRC and the Scottish Parliament, is trying to "embed a pro bono culture" with support from managers. While it was too early to say what difference it was making, McLeod assured us that more people were now getting involved.

Time off can be given for voluntary work, but mostly it is done out of working hours, the concept being sold on the basis that "people enjoy it, get a buzz out of it, feel they are giving something back", she told the Journal afterwards.

And the bar does pro bono too. Mungo Bovey QC explained the two parts to the Faculty of Advocates' service: the free representation unit, through which devils appear before tribunals, and the free legal services unit, comprising about 80 qualified counsel, operating through, for example, advice agencies, who do the solicitor's work - though these agencies are stretched and can find it difficult to provide the necessary support.

Sometimes, he added, finding a counsel to act is not a problem, but finding an instructing solicitor is: the recent action to preserve a historic wall in Falkland was such a case until Rollo Davidson McFarlane stepped in. He hoped the conference would result in more solicitors coming forward, and "being ready to instruct perhaps at short notice".

As was recently advocated in the Opinion column (Journal, May, 9), Bovey supported the introduction of pro bono costs orders, which require a losing opponent to pay into a fund to support future pro bono activities. The Faculty will not seek an award of expenses when acting pro bono, but Bovey knew of a case where a less favourable offer had been made because the client was assisted. However, it would need legislation to make them possible.

Matchmaking

Apart from getting more people involved, what is the scope for providing a better service? Mike Dailly of Govan Law Centre made a strong plea for some form of national co-ordination to better match needs and resources. If skilled help is needed, he said - and this might include research, drafting or language skills - it's a "fairly random process" at present to find it, and some kind of register, available online, could help solve this and also promote the pro bono concept and drive uptake.

There is a particular need for support, Dailly added, in public interest cases such as the bank charges litigation, which need a lot of strategic work that is not recognised by the tendering system now replacing grant funding as the way to win public money. That's where professionals or students could give some time to help with the necessary research.

Dailly affirmed that there is a great appetite in Scotland for more provision. Were we on the cusp of change, he asked?

Change may come about that bit quicker if the ambition to see the LawWorks movement extended to Scotland is realised. Established in England & Wales in 1997, where it was originally known as the Solicitors' Pro Bono Group, LawWorks (www.lawworks.org.uk) is an independent national charity "which aims to provide free legal help to individuals and community groups who cannot afford to pay for it and who are unable to access legal aid".

For individuals, it offers advice clinics, a mediation service and casework assistance. For charities and other not-for-profit organisations, it maintains a bank of volunteer law firms whose expertise it matches to groups in need of help. It also provides support services for advice agencies.

As the Journal went to press, the Scottish initiative was at a "watch this space" stage. A steering committee including Ian Moffett of Anderson Strathern, Jane McLeod of the GLSS, Emma Anstead of Proactive Employment Lawyers, Aberdeen, Colin Hulme of Burness and Professor Donald Nicolson of Strathclyde University is setting up a company limited by guarantee and applying for OSCR registration. With a fair wind (including some finance if it can get it) it hopes to launch in the autumn.

"The group is very enthusiastic", Moffett told me, while McLeod commented: "It's a great opportunity to provide some co-ordination of pro bono activity, improve the level of provision, and raise awareness of pro bono."

Home-grown solution

The move has the Lord Advocate's backing. "The importance of not losing the momentum of today's event is clear", she told the Journal after the conference. "We intend to look at how we can promote pro bono work in Scotland more effectively, without, of course, having an inhibiting effect because it becomes too structured or associated strongly with Government, or much more dangerously perceived as a substitute for legal aid, which it clearly is not."

Was a co-ordinating role of the sort Mike Dailly appealed for, likely to be the way the Government could be of most practical help? "I think it can be but I don't think it's for Government to dictate to the profession how it's done, and that's why I'm happy to listen following this conference to those who are providing these services to know whether or not they want that lead.

"There's a steering committee in England & Wales which is chaired by the Attorney General and I'm very happy to follow that role, but only if it's appropriate for Scotland. It's important to look at what is best in the Scottish context and how we integrate the role of LawWorks and the co-ordinating role, the facilitation that it provides, with the wider committee or group that looks at this work throughout Scotland."