Gallavin on Litigation: A professional obligation to act pro bono

By Chris Gallavin

With the thumb screws most definitely tightening on access to legal aid or, more pertinently, with the noose tightening around the necks of lawyers working under the legal aid system, it somewhat bugs me having to even ask this question: does the profession have an obligation to work for free in the absence of a state funded safety net?

For me the answer is one typical of a lawyer – “yes and no”. Now for those of you reading this and thinking – “I don’t do legal aid work so this liberal nonsense does not concern me”, stop! Please – humour me and read on.

Although this is a litigation column and acting pro bono is not something litigation lawyers claim exclusivity to, the issue of legal aid and its provision (or not) is something that concerns litigation lawyers to the exclusion of almost all other practitioners.

As such, it is upon the shoulders of said litigation lawyers that the question of professional responsibility in these circumstances arises most acutely. While those of you who are about to – or already have – thrown in the towel on legal aid may feel your professional responsibility more keenly than others, I hope that those of you whom rich people engage will also spare a thought for those who could only dream of receiving your advice.

In all my dealings with the profession I am constantly amazed and impressed by the level of professional and social commitment shown by practitioners to the provision of pro bono services.

It seems to me that in addition to the many thousands of hours dedicated to offering free advice there is a readiness to do much more if there were a mechanism by which one could ensure that the larger public interest pro bono issues would not overtake your practice.

Mechanisms for facilitating such work aside (see Canterbury University’s Clinical Legal Programme for more information), there seem to be a great many practitioners willing to assist those who struggle accessing justice.

However, I am not talking here about the willingness of practitioners, rather the obligation of the profession to provide services voluntarily.

High profile public interest cases and small transactional dealings aside there remains a significant problem for those attempting to access justice in the family and district courts. The prospect of instigating civil proceedings in the District Court without a lawyer is daunting, particularly considering the focus on pre-hearing settlement of disputes, so too engaging in the family court processes.

These areas, in particular, combine two specific characteristics – one, they often involve parties least able to pay, and two, often involve practitioners least able to provide services pro bono.

I agree that it is not for the profession to provide access to justice in the absence of government assistance – yet at the same time I find myself affirming the exact opposite.

One of the fundamental differences between a profession and other vocations is that professions are encumbered with ethical obligations. In the case of the legal profession it is facilitating the operation of the rule of law, of which access to justice is a key component.

I have said in numerous publications now that I regard the justice gap in New Zealand to be one of the most significant challenges to the integrity of the justice system ever seen.

When addressing the University of Canterbury’s School of Law last year, the Chief Justice went so far as to suggest that a contributing factor to this was the “unrealistic income expectations of the profession” – fighting words I must say.

As I have outlined above, in my experience the profession is committed to the provision of pro bono services but that in the bread and butter areas of New Zealand’s access problems the practitioners who serve these courts are the least able to afford the burden of propping up the rule of law – although I suspect that they are the lawyers who still provide the lion’s share of free representation.

Let’s not beat around the bush here – we have a massive problem of access to justice in New Zealand, a problem contributed to no end by moves such as de-lawyering the family court and cutting legal aid.

The ability of the profession to mobilise and head off government policy that has created these problems has been limited. Always an easy target, lawyers have been made the scapegoat of politicians. In short, I believe that the profession has been caught flatfooted by a formidable adversary who has not seen the legal profession as their traditional home base but as a mechanism to be used in the reformation of the justice system, a reformation I for one believe to have largely been for the negative.

Rather than expecting preferential treatment, or handouts, or a leg-up, or preservation of our income per se, we the profession ought to mobilise our collective integrity and start standing up for the rule of law; the right to access to justice, the need for citizens to have assistance in navigating their way through the ever increasing complexity of government bureaucracy and the important role that advocates play in the smooth and efficient operation of law and ultimately to maximise the role of the justice system in the smooth and harmonious running of our communities.

If we are not prepared to do that, then you – as a litigator – ought to be prepared to do more free work, because in the absence of an effective state facilitation of justice it is you who plays the single most important role in the operation of the rule of law in New Zealand.

Dr Chris Gallavin is an Associate Professor and Dean of Law at Canterbury University. He has published extensively on criminal justice and on evidence and procedure in particular. He is the author of the appellant handbook, Evidence (LexisNexis, Wellington, 2008), and regularly undertakes consultant work in the area of the law of evidence. 

This article was first published in LawTalk 845, 4 July 2015.