This report summarises the results of a study about the provision of pro bono legal services in New Zealand. Pro bono legal services – free legal assistance provided by qualified lawyers – is often pointed to as an option for assisting more New Zealanders to access legal services. This is in recognition that a large portion of the population does not qualify for legal aid (particularly civil legal aid) and cannot afford to pay a lawyer. To increase the amount of pro bono legal services available, the New Zealand Law Society President recently suggested New Zealand lawyers should aspire to deliver 35 hours per year (the same aspirational target as Australia). Little is known about the amount of pro bono services being offered, who is receiving them, and lawyers attitudes to providing more pro bono. We, therefore, designed a study to provide more information about the pro bono landscape in New Zealand, to help inform policy discussions on this issue. The study was conducted in two phases from September 2018 to February 2019 as part of a wider project about free and low cost services offered by lawyers. The first phase was a survey of the profession, which 360 lawyers completed. The survey included questions about how lawyers define pro bono, how much pro bono work they perform and for which clients, and whether they regard providing pro bono legal services as a professional obligation. The second phase involved qualitative interviews with 23 lawyers to elicit more detailed information about attitudes to pro bono work and how pro bono service provision operates in Aotearoa.
The results of the study suggest there is little shared understanding of what constitutes pro bono legal services. This is a significant impediment to any discussion about pro bono legal services, the amount of provision, who is providing the services, and the design of policy to encourage the provision of more pro bono services. The study also identified a blurring between legal aid services and pro bono. The underfunding of legal aid has meant that lawyers either consider legal aid is a form of pro bono or lawyers are offering pro bono to supplement legal aid. This is problematic in that pro bono legal services – which should be directed at those who do not qualify for legal aid but cannot afford a private lawyer – are being offered to litigants who qualify for legal aid. The results also suggest that were the NZLS to implement an aspirational target of 35 hours per annum, most lawyers would fall short of this target. While 41 percent of lawyers are exceeding the target, more than a quarter are doing no pro bono work that enhances access to justice. The remaining quarter are doing some access to justice focused pro bono work, but less than the suggested aspirational target. Furthermore, pro bono services are not distributed fairly either within the profession as service providers, or across the public, as service recipients. The study makes ten recommendations focused on three key themes: (1) that the profession develops a shared definition of pro bono, focused 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; (2) that a national clearinghouse for pro bono be introduced to minimise the administrative burden on lawyers providing pro bono and more equitably distribute pro bono services among the public; (3) that the legal profession associations encourage an increase in the amount of pro bono service via a number of mechanisms including regulatory reform and the introduction of an aspirational target.
Kayla Stewart, Bridgette Toy-Cronin, Louisa Choe New Zealand lawyers, pro bono, and access to justice
(University of Otago Legal Issues Centre, March 2020).