Access to justice in times of austerity

In a recent letter to the New York Times the President of the American Bar Association, William T Robinson III, wrote “Nothing is more precious than our freedom and that comes from access to justice. We must expand legal services for those in need.” Why does freedom come from access to justice? Because rights are worthless unless they can be enforced. In this way, the roles of courts and of lawyers are fundamental to the effective operation of democratic societies in which individuals enjoy rights and freedoms.

The existence of government funded legal aid programs recognises the fundamental importance of legal advice and representation. It also reflects the fundamental principle that legal representation should be available to everyone in the community, not just to those who are fortunate enough to be able to afford it.

There are however signs that the golden age of legal aid may be slipping away, as governments around the globe slash legal aid spending. In the UK, a recent £300 million cut to Legal Aid has resulted in substantial service reductions in the areas of family law, employment, immigration, housing, debt and welfare. In the United States, the budget for the Legal Services Corporation shrunk to USD404 million in 2011, about one-third less than it was 15 years ago, adjusted for inflation. Last week the Senate Appropriations Subcommittee on Justice confirmed a further reduction to the LSC budget to USD396 million for 2012. In Australia we have seen a 12% reduction in Commonwealth legal aid funding since 1997.

This concerning trend is occurring in parallel with increased volatility in household incomes, which has the potential to increase levels of poverty in developed economies, further magnifying the gap between rich and poor, and leading to increasing levels of homelessness, crime and demand for legal services.

Cuts to the legal aid budget in the UK coincided with calls by the government for the legal profession to increase levels of pro bono. In the US, recent calls by Republicans for cuts to the Legal Services Corporation were defended on the basis that pro bono lawyers would fill any gap created by the withdrawal of government investment. In Canada, the Governor General has called on the legal profession to increase its pro bono commitment from 3-5% of total practice hours to 10% by 2017. In Australia, Governments at both state and federal level require pro bono disclosure as a corollary of appointment to government legal panels.

Most lawyers understand that pro bono is no substitute for properly funded legal aid programs. Indeed, pro bono is optimally effective when deployed in parallel with effective legal aid programs, because it can assist to address the justice gap by serving those people who do not qualify for legal aid, but who cannot afford legal assistance. Pro bono can provide effective access for some clients, but it is not a panacea to unmet legal need in our communities. It has some important limitations. Those limitations include a lack of reach into rural, regional and remote communities where levels of disadvantage are often high, lack of expertise in relevant areas of law, lack of expertise in dealing with high-needs clients, and limitations created by legal and positional conflicts. The limitations of pro bono are compounded by market forces which expand and contract pro bono capacity, not according to levels of unmet need in the community but according to the demands of commercial clients.

The pressure on the private profession to provide more and more pro bono to meet the growing justice gap, and to replace government legal aid, must now be met with a coordinated response from the legal profession. In the same way that the legal profession in the United States came together under the Pro Bono Challenge to set a target and benchmark for pro bono, the whole profession must now respond to the underfunding of legal aid, by sending a clear and unambiguous message that pro bono is not a substitute for government funded legal services. By continuing, year on year, to grow pro bono capacity while government funded legal aid programs are cut or reduced in real terms, the legal profession is complicit in the demise of legal aid.

A strategic response may require the private profession to investigate options such as capping pro bono, or pegging pro bono to government spending on legal aid, such that the level of pro bono made available by the legal profession will only grow as spending on legal aid is increased. Such an approach would ensure that governments could not shirk their responsibilities to fund legal aid, by leaning on the profession to replace government funded services.

Nicolas Patrick is Pro Bono Partner and Head of Pro Bono – Europe, Middle East and Asia-Pacific at DLA Piper.