Thousands of lawyers face restrictions on whether or not they can do pro bono work. The Detail looks at why.
National MP Chris Bishop’s members’ bill would have liberalised the relatively strict rules around who can provide pro bono legal services.
The fact it didn’t get beyond a second reading in Parliament was strongly criticised by many lawyers, who saw the bill as addressing a failing in people’s access to justice.
Darryn Aitchison from pro bono clearinghouse Te Ara Ture and Chris Bishop explain to The Detail what pro bono work is, the void it fills in the legal system, how this bill would have worked and why it was voted down.
Why is pro bono work necessary when we have a legal aid scheme?
Legal aid has income and asset thresholds. They are very strict: for example, a single person working full-time on minimum wage earns significantly more than the cut-off for receiving legal aid.
Fewer than one in 10 people in Aotearoa qualify for legal aid, according to an RNZ analysis.
If you earn more than this amount and need legal services, you’ll have to pay for it. Even a relatively common case, such as an employment dispute, can cost thousands of dollars – money simply not available to many people.
If you’re in desperate need of legal services, pro bono is sometimes the only option available without going into debt.
Who can do pro bono work?
The rules are set out in section 9 of the Lawyers and Conveyancers Act 2006.
While any lawyer can do pro bono work, it comes with restrictions: you can only volunteer your pro bono services at Community Law Centres or the Citizens’ Advice Bureau. If you’re employed by a law firm, or in-house at a company or public sector entity, you can’t take on pro bono work unless it’s through one of those organisations.
On the other hand, if you’re self-employed – a barrister, for example, or a partner at a law firm – you can take on any pro bono case you choose.
Why do these restrictions exist?
To protect the public. All legal services come with risk: your lawyer might offer you bad advice, and if this happens, you might have the right to recourse.
Law firms have indemnity insurance to cover these situations, and lawyers who are self-employed have to gain qualifications to show they’re sufficiently skilled and experienced to practise on their own.
“The idea is that, to safeguard the public and the reputation of the profession, you need a certain level of experience, and you need to demonstrate to the regulator that you’re an appropriate person to be taking on legal work essentially independently,” Darryn Aitchison says.
What was the bill going to change?
Bishop’s proposed amendment would mean lawyers who are employed could carry out pro bono work of their choice, with their employer’s agreement.
What problems were identified at select committee?
Some submitters felt the bill didn’t define ‘pro bono’ tightly enough and wanted it to be refined to focus on people or cases that clearly demonstrated unmet legal need.
There were also concerns around quality controls: some submitters feared situations where junior lawyers gave clients bad advice, but weren’t covered by professional indemnity insurance.
What did the justice select committee conclude?
The final select committee report said while the bill addressed a serious shortcoming in access to justice, and was grateful to Bishop for raising the issue, further policy work would be needed to establish the scope of the problem. It said while the bill itself had the potential to increase access to justice, some of its shortcomings and the amount of policy work required to get it up to scratch would outweigh the potential benefits.
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