It is best practice in pro bono to encourage lawyers to participate in the program, and to develop a clear understanding of the firm’s expectation in this regard, while recognising it is not compulsory. This is consistent with the principle that doing pro bono legal work is a professional responsibility of every lawyer.
Creating opportunities for lawyers at all levels to participate in pro bono legal work can be an effective way to develop an active practice. As in other areas of legal practice, the lawyers assigned to do particular pro bono legal work should have the appropriate degree of skill and experience, and be appropriately supervised. Involving lawyers at all levels in the firm in the pro bono program helps to build the firm’s capacity to undertake a range of work.
However, regardless of the size or sophistication of the practice, there are some challenges commonly faced by firms wishing to encourage lawyers at all levels to participate in the program. This chapter brings together various approaches and strategies developed by firms to meet these challenges.
- 1.10.1 Overview
- 1.10.2 Partners
- 1.10.3 Lawyers & senior associates
- 1.10.4 New employees
- 1.10.5 Graduates
- 1.10.6 Seasonal or vacation clerks
It is often thought that those most able and willing to do pro bono legal work are the more junior lawyers in the firm, and that senior lawyers have less capacity to become actively involved, particularly at the senior associate and junior partner level where they are grappling with the fee-earning imperatives of their positions. However this is not an experience shared by all firms, and there are often interested and active participants at all levels.
When addressing the challenges around maintaining the sustained involvement of lawyers at all levels, consider:
- the pro bono culture at the firm;
- how well pro bono is integrated into the firm’s business;
- the variety of opportunities available; and
- how opportunities are communicated to lawyers.
Establishing a strong pro bono culture within a firm and/or maintaining and enhancing an existing culture is important for creating an environment where all lawyers from the most senior to the most junior are engaged in the pro bono practice.
See further What Works, Chapter 4 Importance of developing a strong pro bono culture.
The extent of the involvement of lawyers at different levels within the firm appears to also depend on the extent to which pro bono legal work is considered an integral part of the firm’s business and the sorts of strategies adopted to promote it. Participation levels are likely to be maximised where firms give specific attention to creating opportunities appropriate to different levels (noting that junior and senior lawyers experience different pressures), having regard to skills, experience and interests, and to any obstacles to participation that might be operating at the relevant level. Some examples are discussed below in more detail.
When planning how to involve lawyers at all levels, firms have found it important to consider:
- what motivates lawyers of a specific level to become involved in pro bono legal work and how these motivations can be integrated into the practice and communication around pro bono at the firm; and
- whether there are there any particular disincentives to pro bono legal work that may operate at different levels of employment within the firm and how these might best be overcome.
To address these issues, some pro bono leaders have managed individual consultations across practice groups or with individuals, so they can better understand what the areas of interest are and whether these are a good match for the capacity and expertise of the firm.
Leadership and engagement at the partnership level has a flow-on effect and is vital to building a sustainable pro bono practice.
Partners, however, are underrepresented in pro bono legal work; the Centre’s research indicates that in 2014, on average 40 percent of partners in larger firms participated in their firms’ pro bono programs, compared to an overall participation rate of 50 percent.1
Partners may cite pressures on time, financial performance and building their practice as reasons why they are not engaged in regular pro bono contributions. Sometimes it is because their areas of interest or skill are not matched by the pro bono opportunities offered by the firm. For example, non-litigating partners may feel unqualified to work on litigation matters.
All pro bono legal work undertaken in a firm should be supervised by a partner, as is the case with commercial work. Many partners also undertake significant amounts of pro bono casework themselves and participate in clinics, although this varies between firms and particularly between firms of different sizes.
Steps to facilitate partner participation include:
- sending strong messages from senior partners and management in the firm that pro bono legal work is valued and important and that partners should set the example by undertaking this work. The firm’s acknowledgment of contributions can also assist;
- speaking with partners to explore and understand partners’ areas of interest or skill. Whether done on an individual or practice group level, this can result in the development of specific projects or broader options being offered to partners;
- making partner participation in pro bono legal work a key performance indicator, either by requiring a desired number of hours of engagement or by other measurement;
- offering junior partners supervisory roles or an opportunity to assist in more complex matters (including by case management) or to mentor younger, less experienced lawyers, for example supervising clinic matters within the firm;
- developing opportunities that utilise the range of skills (transactional and other) and the networks of partners, such as becoming legal advisors and mentors to not-for-profit organisations, including, in particular, newly formed organisations;
- offering leadership or project management roles;
- encouraging participation in law reform projects and activities, again in ways that utilise their experience in the law and in case management;
- developing pro bono projects that allow partners to contribute their skills — for example, the Homeless Persons’ Legal Clinic and Seniors Law Clinic in Melbourne have used senior partners to train lawyers in developing knowledge around drafting Wills and Powers of Attorney for clients of the Clinics and building knowledge around the workings of aged care facilities;
- setting up specialist or ‘signature’ projects supported by the firm in which partners can participate in a range of ways, such as designing and building support for the project, providing mentoring, advice and supervision, as well as providing advice and assistance directly to clients;
- developing models of collaboration with corporate clients on pro bono projects utilising partner relationships and input from partners in relation to the structure and implementation of the project (see What Works, Chapter 15 In-house/corporate lawyers for case studies of pro bono partnerships between firms and corporate clients);
- appointing partners as key relationship contacts with pro bono clients or collaborators such as CLCs; and
- involving partners in leadership positions on pro bono committees, considering pro bono referrals or at a strategic planning level around pro bono legal work.
1.10.3 LAWYERS AND SENIOR ASSOCIATES
Lawyers and senior associates are often keen to participate and do much of the firm’s pro bono legal work. Indeed, in larger firms junior lawyers make up the majority of lawyers engaged in the pro bono practice.2 The ability of pro bono legal work to offer variety, learning opportunities, leadership skills, engagement with colleagues, and engagement with the world beyond the firm provides junior lawyers with additional motivations to do pro bono legal work.
As lawyers become more senior, different factors will tend to motivate their continuing involvement in pro bono. Mid-level lawyers and senior associates are increasingly concerned with obtaining recognition for advancement and opportunities to prove growing expertise and credentials for promotion. Some junior partners are also attracted by these opportunities.
Some of the strategies used by pro bono leaders to target this broad group of lawyers are the same as those discussed above in relation to partners, namely:
- identifying work and projects that recognise the growing expertise of mid-level lawyers and senior associates; and
- specifically asking mid-level lawyers and senior associates about the kinds of work that appeals to them.
The following strategies have been proven to engage mid-level lawyers and senior associates:
- ensuring work is appropriately credited and recognised, including incorporation of pro bono contribution into a position’s key performance indicators or as a criteria for advancement and promotion;
- providing leadership opportunities such as coordinating a pro bono clinic, managing litigation, taking leadership of a submission or managing a project — opportunities that assist lawyers to prove their credentials for promotion;
- recognising their desire and capacity to supervise casework, assist in more complex matters (including through case management) and to mentor younger, less experienced lawyers: for example, coordinating and supervising clinic matters internally, or project managing a signature project or law reform initiative;
- designating a junior partner and/or senior associate as the person responsible for relationships with particular community organisations (for example, CLCs). That person then becomes the first contact point for the organisation and is able to be involved in managing the relationship as well as undertaking hands-on casework. The pro bono coordinator will still need to remain involved in this relationship; and
- firm acknowledgment of contributions through pro bono awards or other firm-wide communication.
1.10.4 NEW EMPLOYEES
Impressions of the level of support for pro bono and the culture surrounding the pro bono practice in the firm are established in the minds of new employees at the outset. Inducting new employees with information about the importance of pro bono legal work and the opportunities available should be standard practice for firms that value pro bono and for which it is integral to the business. This enhances the potential for new employees to become involved in pro bono legal work.
Ways in which employees can be introduced to the firm’s pro bono program and commitment include:
- a formal induction/introduction session or presentation to a group or individuals (sometimes this is done on arrival, at other times once a month);
- circulating induction/welcome folders of information about the program, contacts and opportunities (or indicating where this information can be found on the firm’s intranet);
- providing a copy of the firm’s pro bono policy to all new employees; and
- meeting individually with new lawyers and advising them of pro bono opportunities within the firm and how they can become involved.
It should be made clear to junior lawyers that they will be appropriately supported and supervised in their pro bono legal work and they will be advised of any training opportunities. New partners and lawyers should be encouraged to think of their pro bono commitment as an expectation.
Graduates (in the sense of legally-qualified employees who are not yet admitted to practice) are another valuable source of pro bono assistance within a firm and are generally keen to engage in this kind of work. As a group, graduates can also make a valuable contribution to the firm’s pro bono program: their work, for example, qualifies as ‘pro bono legal services’ for the purpose of the National Pro Bono Aspirational Target.3
At induction it is important to reinforce the importance of pro bono practice at the firm and the positive culture that surrounds it, the opportunities that may arise and key contacts. Pro bono legal work can be used to develop skills, both of a professional and personal nature. Encouragement to become involved followed by actual direct approaches and follow-up by colleagues already engaged can help establish participation in the pro bono program at the beginning of a graduate’s career.
A number of firms engage their graduates in pro bono casework, law reform or policy work. For example, a Victorian firm assigned several graduates to a substantial legal research project undertaken by the firm for a CLC. Another firm has a system whereby people who have accepted graduate offers are paid to work at the firm one day per week during a six month period before they start their graduate position. During this time they frequently work solely on pro bono matters. Other firms allow graduates to observe clinic attendances or assist at outreach clinics. Some firms ensure that their graduate program includes placements at community legal organisations or doing pro bono legal work. This ensures that employees are exposed to pro bono legal work at the commencement of their employment with the firm.
1.10.6 SEASONAL OR VACATION CLERKS
Students undertaking clerkships are another resource to consider for the firm’s pro bono program. They are trained in legal research and generally keen to perform to a high standard. Increasingly, summer or vacation clerks and students participating in graduate employment interviewing programs are also interested in pro bono legal work. Firms will attract students by providing meaningful opportunities for pro bono legal work during summer clerkship programs and by demonstrating that such opportunities will continue should the student progress to graduate employment.
Key considerations in successfully engaging clerks in pro bono legal work include:
- Communicating to new clerks, clearly and unambiguously, that participation in pro bono legal work is valued by the firm. This requires more than merely advising new clerks that they may choose to do some pro bono legal work during their clerkship. Anecdotally, some summer clerks have reported that if given such a choice, they were not sure whether it would be in their interests to participate in the program, or whether their prospects of securing graduate employment would be better served by undertaking other work. Presentations, opportunities to talk to lawyers in the firm who are active pro bono participants, and information in induction packs are all good methods of communicating the importance of the pro bono program.
- Recognising their efforts. Obviously a clerk’s pro bono experience with the firm is more likely to be viewed positively if steps are taken by the firm to give recognition to their efforts.
- Taking steps so that clerks can see the usefulness of their work and appreciate its context. For example, if research or writing work is being done for a CLC, the clerk might visit the centre to understand the general nature of its work and clients.
- Identifying specific tasks and projects which are practicable, given the limited period of the clerkship. Are there specific projects that can be started and completed within the period? Are there cases being handled by the firm to which the clerk can usefully contribute? For example, by undertaking research or helping in some other way? The firm’s pro bono coordinator could contact lawyers in the firm who are working on pro bono matters to ask about involving vacation clerks on those matters. The coordinator might contact community legal organisations with which the firm has a relationship to see whether there are particular research projects suitable for vacation clerks. The coordinator’s enquiries should be made well in advance of the clerkship starting. Some firms find that team projects, involving two or three clerks (as well as other lawyers in the firm), work particularly well.
- Ensuring clerks can allocate sufficient time to pro bono legal work. Smaller projects may be appropriately dealt with in a clerk’s ‘spare time’. However, this will not work for larger projects, for which time will need to be factored into the clerk’s position and expectations of other work reduced accordingly.
- Ensuring there are clear lines of responsibility for, and supervision of, pro bono legal work. If the clerk is undertaking a project for and liaising with an external agency, a person in the firm should supervise and support the clerk in relation to the project.
Examples of pro bono legal work that can be done by vacation clerks include:
- Participating in pro bono casework. Lawyers handling pro bono matters could be encouraged to involve clerks in key activities such as conferences with counsel, research work and attending courts and tribunals.
- Legal project work for a CLC with which the firm has a relationship, for example, writing or updating community legal education materials on particular topics (such as ‘fact sheets’, plain English brochures); carrying out legal research for a law reform project; and updating contacts lists (some of these types of smaller projects may be particularly attractive to clerks because they can be accommodated within their other work responsibilities).
- Legal research on specific practice-related legal issues identified by a CLC as important to their client groups, for example, sentencing practices in relation to Indigenous Australians.
- Where a firm has established an outreach service, attending and participating in the service for a period of their clerkship.
- If a firm sends lawyers to provide legal advice and assistance at a community location, vacation clerks could accompany those lawyers to observe and assist where possible. For example, Lander & Rogers send their seasonal clerks to observe at their outreach legal clinics.
1 National Pro Bono Resource Centre, Fourth National Law Firm Pro Bono Survey (Australian firms with fifty or more lawyers) – Final Report, December 2014, p 30, https://probonocentre.org.au/wp-content/uploads/2015/09/4th_National_Law_Firm_Pro_Bono_Survey_2014_Final_Report.pdf.
2 National Pro Bono Resource Centre, above n 1, p 30. https://probonocentre.org.au/wp-content/uploads/2015/09/4th_National_Law_Firm_Pro_Bono_Survey_2014_Final_Report.pdf.
3 See the Centre’s website at https://probonocentre.org.au/provide-pro-bono/aspirational-target/.