Tuesday 10 March 2020 4:55pm
A new research report from the University of Otago Legal Issues Centre (UOLIC) recommends ten steps to help New Zealand’s law profession deliver more free services to people caught in New Zealand’s widening ‘justice gap’.
For the report, New Zealand Lawyers, Pro Bono and Access to Justice, the UOLIC surveyed and interviewed lawyers about their attitudes, and actions, towards providing free or low-cost legal help.
UOLIC Director and study co-author Dr Bridgette Toy-Cronin says the report brings “new clarity to an important yet unclear and unsatisfactory component of access to justice in New Zealand.”
“Our research confirms that a minority of lawyers carry the burden of helping those who would otherwise face legal problems without legal help, yet encouragingly the vast majority of lawyers we surveyed saw pro bono as an important part of being a lawyer. In fact, almost half wanted to do more, if only we could improve the systems and support. We are proposing clear steps to increase free and low-cost services for those who need them most.”
The UOLIC undertook the research to address an urgent need to improve how pro bono services work and reduce a “justice gap” that has emerged as growing numbers of people cannot afford a lawyer, or access legal aid.
“This makes accessing free or low-cost legal help most important, and there have been calls for more lawyers to step into the breach, including a recent suggestion from the New Zealand Law Society President that lawyers should aspire to deliver 35 hours of pro bono services per year (the same target set for Australian lawyers). However, finding solutions and taking action has been hampered by a lack of clarity about what is happening on the ground.”
The study team first surveyed 360 lawyers about how they defined pro bono, how often they did free work, the type of clients they assisted, and whether they regarded providing free legal services as a professional obligation. They then interviewed 23 lawyers to understand their attitudes about current practice and potential solutions. The research findings will aid in the design of solutions that work in the context of New Zealand’s law profession.
The report’s significant findings include:
- That there is a need to better define and target pro bono services towards the areas of greatest need. While 86.4 per cent of the participants reported delivering at least one type of free service in the preceding year, much of this service was not given to people who had legal problems and whose incomes placed them in the justice gap – what the report defines as ‘access pro bono’. Rather, it included other free services such as assisting charities, conducting law reform work, sitting on boards, or sponsoring activities.
- The access pro bono load is distributed unevenly across the profession and most lawyers would fall short of an aspirational target of 35 hours per year. The majority (58.6 per cent) of participants reported completing less than 35 hours of access pro bono in the preceding year, including over a quarter who completed no pro bono access hours at all; 41 percent completed more than 35 hours in the preceding year.
- Access to pro bono resources is inequitable. Some people are guided to pro bono services via Community Law Centres and other advice services, based on their needs. However, a large amount of pro bono is offered via personal connections that rely on an individual’s social connections. This privileges access for those with existing connections to lawyers.
- To help spread the load and increase pro bono services, there is a need to improve systems and develop ‘carrots’ instead of ‘sticks,’ in the profession and in the workplace. For example, while 53.1 per cent of participants agreed their workplace supported them to provide pro bono services, only one in five participants agreed that their workplace recognised and/or rewarded those providing free services. The study also found that while lawyers believe pro bono is vital and want to do more, they are against the idea of any form of compulsion to provide it.
The study makes ten recommendations aimed at helping the profession to improve the availability of free and low-cost legal services, focussed on three key themes:
- that the profession develops a shared definition of pro bono, focussed on pro bono that enhances access to justice, and that this definition be the basis for all programmes, targets and incentives for carrying out pro bono;
- that a national clearinghouse for pro bono be introduced to minimise the administrative burden on lawyers providing pro bono and to more equitably distribute pro bono services among the public. Clearinghouses match clients with pro bono lawyers and are guided by agreed priorities that aim to direct help to where it is most needed. The report notes previous and repeated calls for a clearinghouse in New Zealand, a system that has been operating in Australia for many years;
- that the legal profession associations encourage an increase in the amount of pro bono service via a number of mechanisms including regulatory reforms to reduce administrative burdens and allow for the greater flexibility needed around pro bono services; and the introduction of an aspirational target.
The report also emphasises that increasing access to free services is just “one piece of the puzzle” of providing more equitable legal representation for all New Zealanders, and that it will work best together with improvements across New Zealand’s justice system.
“The justice gap is so large that it cannot be filled only by asking lawyers to provide more free services. We must look for a range of solutions, including innovating legal services to make them more affordable and better funding and administration of legal aid,” Toy-Cronin says.
For further information, contact
Director, University of Otago Legal Issues Centre, and Senior Lecturer, University of Otago Faculty of Law