FLAC Public Interest Law Seminar Series
Seminar 3: Croke Park, 16 June 2006
How solicitors can increase their services
within Public Interest Law
John Costello
Private Client Department, Eugene F. Collins Solicitors
There are three points I want to make in discussing how solicitors can increase their services within Public Interest Law. One is in connection with the education of young lawyers:we need to educate young lawyers not just in the practice of law, but in a philosophy of serving clients both rich and poor, advantaged and disadvantaged.
Secondly, we have to provide the structures which Professor Durbach discusses in her paper, for carrying our public interest cases. Lastly, we need to provide structures for both employed solicitors and employers who in turn provide services for all groups and individuals in society. I just want to say just a few points on those three issues. In other words, providing the education, and then providing the structures for both employees and employers, will help to provide the services that society needs.
It appears that there is a philosophy that certain lawyers have in Celtic Tiger Ireland. I can go back to my student days in UCD when I did the BCL in the 1970s. I was an enthusiastic student and when I asked my colleagues why they were studying law, and they would say, “oh it’s for the money.” I couldn’t understand this answer.
I went with great enthusiasm to my first young solicitors’ conference, and when I asked people how they were getting on they would often ask me in return what kind of car I was driving. I couldn’t understand this question as I was still cycling. But on a deeper level, I couldn’t understand this philosophy, and I was wondering whether I was out of touch with everyone else there.
Thus I believe we have to give young lawyers – and lawyers of all ages – a philosophy of service. There are two papers to which I will refer. One was issued by a Law Society pro bono task force in June 2001. Secondly, last September I gave a talk to a group of lawyers entitled “The Possible Conflict between a Practising Solicitor and a Practising Christian.” This was just before I was standing for the Law Society Council election, so needless to say I didn’t e-mail this lecture around the profession in case I might lose a few votes. Anyway, I want to refer to this paper because I think it expresses some values that are important.
One of the first legal principles we learn in property law is that every owner of land must have a good root of title. This principle should also be carried into our work as lawyers, so that we are grounded with principles that guide us in our everyday practice. As Christians we endeavour to have the teaching of Christ and the Gospels rooted in our lives, as seeds grown on fertile soil instead of barren ground. We should then ask ourselves why we became lawyers in the first place and whether our legal practices fulfil our reasons for practising law.
I was at the Parchment Ceremony for young solicitors last Friday, and I must commend the President of the Law Society, Michael Irvine, because as President he is trying to promote public interest law in the profession. He spoke to newly qualified solicitors about having an interest in service rather than just an interest in making money. Judge Mary Finlay Geoghegan talked to the newly qualified solicitors about public service; how we as lawyers were in a special position to play a part in public service.
I met Paul O’Connell, the Dean of the Faculty of Law in UCD recently and encouraged him to ask law students why they’re studying law in the first place so that they might examine their rationale for wanting to become lawyers.
It seems to me that there should be an onus on third level institutions to ask people that leading question.
To keep up to date with my children, I read two of the Harry Potter books by J.K. Rowling. In her second Harry Potter book, entitled “Harry Potter and the Chamber of Secrets”,there is a report of a meeting between the Headmaster Dumbledore and Harry. During the conversation, Dumbledore says to Harry, “it is our choices, Harry, that show what we truly are, far more than our abilities.”I didn’t think I’d find such wisdom in Harry Potter.
Another source of guidance that I found was from the Papal Encyclical,EvangeliumVitae 1995. It might not be popular with everyone, but it states:
Human needs are being sacrificed in the interest of economic efficiency. Man is being reduced to homo economicus with all progress judged mainly in terms of economic growth. An excessive emphasis upon efficiency has led to a culture in which others are considered not for what they “are”, but for what they “have, do, and produce”. The criterion of personal dignity - which demands respect, generosity, and service, is being replaced by the criterion of efficiency, functionality, and usefulness.
This theme was elaborated on by Dr Sean Brady in the Irish Times in September 2005, when he stated, “there is ample evidence in our own society that the richer we get, the more inclined we are to think of compassion, aid and the selfless service of others as luxury items, things to be considered only when everything else is paid for and done.”
The late John F. Kennedy said, “if a free society cannot help the many who are poor, it cannot save the few who are rich.” When we talk about the poor, I believe the poor are not just those people who are poor economically, but also those people who are poor in body, mind and spirit, poor in terms of education, poor in terms of liberty and access to legal advice and justice, and poor in terms of discrimination of one kind or another.
I just want to mention a few areas that might be looked at if we have the right structures in place. Kevin Liston, who many of you will know, works as a Legal Aid solicitor and has written a book on family law negotiations. In an article in the Law Society Gazette last year, Kevinsuggested that “changes in the manner in which legal negotiations might be conducted could, with the support of court rule-making committees, be shaped to a large extent by the profession itself. At the root of such changes should be, firstly, the idea of legal negotiations in appropriate cases being promoted as the preferable first option in the resolution of legal disputes and, secondly, the idea of the lawyer as a problem solver.”
As regardspro bono schemes, in relation to legal advice and access to justice for all members of society, two initiatives in other jurisdictions are worth considering. Firstly, for many years there have been formal pro bono schemes in other common law jurisdictions, but especially in the USA. In some American states, it is compulsory for firms to carry out pro bono work, while most of the top commercial firms publicly commit themselves to hitting targets requiring them to do a set amount of pro bono work annually.
In England and Wales, a solicitors’ pro bono group was set up in November 1996 as a charitable trust to act independently of the English Law Society. It was started with funding from large city firms. The English Law Society has backed grassroots initiatives to boost the provision of pro bono work, but it has consistently rejected calls for it to set pro bono targets for law firms in England. However, many large city firms in London have a full-time pro bono officer who administers and co-ordinates all the pro bono activity of the firm. Earlyin 2005, one of the large city firms, Allen and Overy, devised a scheme whereby it donates the interest it earns from consolidated client funds to good causes. The firm reckons the move will allow it to donate £200,000 over a three-year period to the London Legal Support Trust, which will in turn plough the cash into the local law centres.
As you can imagine, I didn’t include that idea in my election manifesto, but it is interesting to see it as a precedent. In a similar initiative, Lovells asked the Law Society recently to rubber-stamp a radical scheme to use expired clients funds for pro bono. The plan would mean that cash from the accounts of former clients with whom the firm has lost contact over a long period of time could be channelled into pro bono work.
In conclusion, one of the trustees of the solicitors’ pro bono group has stated, “looking forward topro bono of the next fifteen years, calls for better ethics training, and it’s most important for people in the City to remember why they went into the legal profession in the first place.”
So, just to go into a little bit of the detail on the English scheme, the group was formed in November 1996 following a meeting of over fifty solicitors from all parts of the country. Initiated by Andrew Philips, a senior partner of Bates, Wells and Braithwaite Solicitors, subsequently eleven of the largest firms in England and Wales gave £10,000 to set up the scheme. With that assistance, the group incorporated, obtained charitable status, located premises and appointed a full-time director. The group has been in operation since 1997, and is run by a Board of Trustees. The group has had strong endorsement from the Law Society;and thus whilst remaining independent, it has worked closely with theLaw Society.
I presented a report promoting a pro bono scheme to the Council of the Law Society in 2001. It made Council history in that it was the first report that was neither accepted nor rejected, but merely noted. That’s how enthusiastic our Council was. In any event, the key role of the English group is to support and help promote the work of all solicitors already providing legal advice, assistance, and representation without charge, and to encourage others to do so within a coherent and supportive framework. The group will at the same time work to ensure that pro bono activity meets clients’ needs by working closely with the relevant agencies such as free legal advice centres, citizens’ advice bureaus and law centres and to assist in building upon existing relationships between those groups and the legal profession. The group will also work closely with the English Bar, which started its own pro bono scheme in the summer of 1996.
As a structure, then, I would like to suggest that a possible way forward might be the formation of a charity which could promote public interest law, but also promote other activities in providing a wide legal service to members of the public.
I’m a great fan of Father Peter McVerry, so I’ll leave the final words to him:
What defines us as Christians should be our compassion, our reaching out to those who are unwanted, those on the margins, those we would instinctively want to keep at arm’s length. When people look at us to recognise us as Christians, it ought to be because they find us reaching out to the poor, the homeless, the disabled, making those in the margins feel welcome and wanted.