This chapter captures the reflections of a principal from a boutique law firm which has successfully developed an effective pro bono practice.
Small firms and sole practitioners can often make significant pro bono contributions, with many individual practitioners and smaller firms traditionally undertaking pro bono work as part of their daily practice and many individual lawyers from small firms volunteering at community legal centres.
Small firms can undertake pro bono matters organically through their existing client base and/or the personal networks of their legal team. Alternatively, small firms can seek out collaborations with local organisations, which may align with their firm ethos, and offer pro bono legal assistance to the organisation or its members.
Some firms also undertake pro bono matters that are referred to them through specific pro bono referral organisations (‘Referral Organisations’).
The practical reality, however, is that the capacity of small firms to take on pro bono legal work is generally more limited than that of larger firms. In light of this, specific considerations need to be taken into account in relation to pro bono matters, including:
- having less flexibility and team members to find capacity to undertake pro bono legal work;
- exposure to the same risk as larger firms while being less able to absorb the potential risk; and
- being less resourced to perform a means and merits assessment, especially when receiving a large volume of pro bono requests.
For the purpose of this chapter, a small law firm is one with fewer than 50 full time employed (‘FTE’) lawyers.
- 16.1 Planning — strategy, structure & processes
- 16.2 Managing expectations
- 16.3 Building a pro bono culture — career satisfaction
1.16.1 PLANNING — STRATEGY, STRUCTURE AND PROCESSES
CLARIFYING INTENTION AND PURPOSE
Small law firms who choose to dedicate their time to pro bono work are often very passionate and committed to ensuring that they can make an active difference within their community. Accordingly, small firms must ensure they have clarity regarding why they are providing pro bono legal assistance in order to ensure that these services are provided effectively, whilst also being sustainable for the firm.
Examples of the reasons why a small firm may consider undertaking pro bono matters include:
- fulfilling a desire to ‘give back’ and to facilitate access to justice for those who would not otherwise be able to otherwise access legal advice due to various social and economic barriers;
- serving a wider commercial purpose within the relevant legal context;
- fulfilling firm policies or the expectations of founding members of the firm;
- responding to specific needs that exist within the community in which the firm operates; and/or
- keeping up with what other law firms and competitors are doing to distinguish themselves in the legal services market to potential clients and stakeholders who value a firm with a ‘social justice’ focus.
Importantly, part of the process of clarifying a firm’s intention and purpose surrounding pro bono work should include identifying the intended outcomes of doing pro bono legal work and, in turn, measuring whether the firm has achieved its specific goals. In particular, small law firms should actively record the time dedicated to pro bono legal work, not only to track (and celebrate!) the resources they have dedicated to providing pro bono legal services, but also to ensure they can continue to sustain this priority in the long term. See Chapter 1.13 Evaluation and Impact Measurement.
Small law firms should also consider whether pro bono legal work is the optimal way to achieve the firm’s goals or whether such goals can be more effectively achieved through another method. For instance, a particular firm’s goals may be more effectively achieved by donating money, sponsoring not-for-profit (NFP) organisations or referring the person seeking assistance to another lawyer or barrister. This is ultimately a commercial decision for each firm.
Once a small firm has established that providing pro bono legal services is the best way to achieve its objectives, the next step is to develop a plan that forms the basis for action, review and continuous improvement.
DEVELOPING A CLEAR PRO BONO POLICY
The development and implementation of a clear pro bono policy can assist with the effective management of all aspects of pro bono service provision. Particularly for a small firm, which will often have limited resources to dedicate to providing pro bono legal services, a policy can enable the firm and its lawyers to quickly make decisions about pro bono matters.
The policy can cover areas including, but not necessarily limited to, the following:
- determining pro bono cases which can be undertaken by the firm, with reference to the firm’s practice areas, ethos and mission;
- terms of engagement and agreed scope or division of work in relation to pro bono matters (either with clients or with other service providers such as barristers);
- measuring pro bono outcomes;
- reporting (to clients or other stakeholders, such as Referral Organisations, or other referrers);
- terminating or completing the work;
- fee and cost recovery, if applicable; and
- post completion relationship and expectation management.
A small firm’s pro bono policy should be tailored to its size, resources, areas of practice and capacity to provide pro bono legal services. These considerations will also impact whether the policy is a rigid set of rules, or merely a reference point for practitioners to consider when deciding whether to offer pro bono assistance as the need or opportunity arises. Often, for example, the benefit of offering legal services on a pro bono basis in a small firm is that the lawyers have more autonomy to allocate their time and take on the pro bono matters they want, as opposed to the pro bono matters that would otherwise be allocated to them in a larger corporate structure. A small firm’s pro bono policy should take these factors into account.
Additionally, where a small firm plans to work collaboratively with other organisations, it should not feel obligated or pressured to adopt another organisation’s existing pro bono policies if it does not suit the firm’s needs and desired outcomes. Whilst implementing a consistent policy with stakeholders may assist in developing the relationship, a policy that has been carefully tailored by a firm to ensure that pro bono services will complement the firm, its people and its income-generating workload, will ultimately be more effective and useful. See Chapters 1.2 Defining pro bono legal work and 1.3 Pro bono policy.
A small firm which promotes the fact that it offers pro bono legal services may attract a large number of enquiries from people who do not necessarily understand what constitutes ‘pro bono’ and may have matters that do not qualify as pro bono.
Determining what is or what is not a genuine pro bono case can be time consuming for a small firm, even if it has a well-developed policy for defining pro bono and when to accept matters on a pro bono basis. This can be particularly relevant where a firm accepts instructions directly from people seeking pro bono assistance.
An effective way of reducing this risk is to accept referrals only through a Referral Organisation which has already assessed the request for pro bono assistance and determined the means of the person and the merits of the matter. Note that the criteria applied by a Referral Organisation may be different to that of the firm and the firm is not obligated to accept referrals that are not consistent with its own pro bono policy.
Some firms, however, prefer to filter their own pro bono enquiries as this ensures that a potential pro bono client receives personal service from the outset. This also enables the firm to more comprehensively understand the context of the services required and the value it can offer.
For more information about Referral Organisations see Chapter 3.3 Pro bono referral schemes and organisations.
COMMUNITY LEGAL ENGAGEMENT
Most local councils will have forums to enable representatives from small law firms to deliver community legal education. This may be a good option for small law firms as it may offer a clear scope of work and time commitment, whilst also engaging the wider community, thereby reaching larger numbers of people than individual casework and avoiding the risk of conflicts.
See Chapter 29.4.1 Case studies: Harris Park Community Centre and Phang Legal.
Volunteering at a community legal centre is another good way to launch into providing pro bono legal services at the community level. Rather than undertaking individual client work, participating in third party organisations may limit the time commitment towards pro bono legal services to a controlled and manageable amount. Small firms may also find it easier to become involved by joining established pro bono projects and, in turn, leveraging existing structures for managing the relationships with any community partners, coordination of services, outsourcing administration, training and supervision of the work.
See Chapter 19.5.2 Case study: Document Review Service and Telephone Legal Advice Service (Arts Law Centre of Australia).
Small firms are also part of their surrounding community and can choose to involve themselves in local issues as a way of providing pro bono legal services. For example, the Solicitor Director at Phang Legal, Ern Phang, was involved in his local community’s response to violence, delivering presentations with the police and other services on law and justice issues.
Small firms may also choose to develop their own specialised pro bono practice that reflects the nature of how they wish to create maximum impact within the scope of their practice area and their community. At the outset, this requires developing a vision for the firm’s pro bono practice and then identifying appropriate organisations in the community with which to collaborate. Whilst this approach can be quite involved and time-consuming, once the relevant collaborations are established, the firm can focus on developing an in-depth understanding of its pro bono partners and the needs of its stakeholders to provide services that create the most impact.
See Chapter 11.3 Case study: Prisma Legal
AWARENESS OF COMMERCIAL LIMITATIONS
It is particularly important for a small law firm to ensure that it is sufficiently financially stable and secure to take on pro bono matters. As with any small business, if a small firm does not recognise the importance of being viable and sustainable while offering pro bono legal services, it will eventually cease to exist. Offering pro bono legal services without confidence in being able to sustain and complete those services, especially where they are not clearly defined or limited, may be considered irresponsible.
As with any legal work, the firms and the lawyers providing the pro bono legal services must ensure that the subject matter falls within their relevant areas of expertise – or, alternatively, obtain the necessary up-skilling and / or training. Whilst criminal law is a common area within which pro bono legal services are offered, small law firms that practise in other areas, such as family or commercial law, can also provide pro bono legal services.
Demand for pro bono legal services will always be unlimited as it provides significant value to the client at no cost. This is especially the case where pro bono legal services are provided free or at no charge, as opposed to on a significantly reduced fee basis. Accordingly, small firms and their lawyers need to understand their commercial limitations in terms of resource and time allocation when assessing their ability to provide tailored and comprehensive pro bono legal services.
1.16.2 MANAGING EXPECTATIONS
Many lawyers who choose to provide pro bono legal services, as with any community service, do so because they have an overwhelming desire or passion to contribute, make a difference, do ‘public good’ or champion a particular social justice cause. Undertaking pro bono legal work can be very fulfilling and rewarding, especially considering the positive impact that pro bono legal assistance can have in the life of the person receiving the assistance. This is what often motivates the firms and lawyers to initially choose to deliver services on a pro bono basis and underpins their ongoing commitment.
Pro bono can change the world, one life at a time. Notwithstanding this however, lawyers providing pro bono legal assistance also need to appreciate that their commitment to pro bono legal work cannot be sustained only by expecting words of thanks or gratitude from their pro bono clients. The practical reality with pro bono legal services, as with any legal services, is that often the outcome is not the client’s “ideal” scenario and even if they have received pro bono assistance, this is not necessarily acknowledged or recognised at the conclusion of a matter. Similarly, in such situations, the firms and lawyers will not get that rush of positive reinforcement if they feel that their pro bono assistance has not had any substantive impact or satisfied their client’s interests.
Managing the expectations of the lawyers providing pro bono legal assistance is crucial to avoid the risk of them becoming disheartened and ‘giving up’ in the face of overwhelming demand, especially when their immediate achievements may seem small. The firm’s stated pro bono objectives need to be realistic and achievements should be measured and recognised internally within the firm.
Managing client expectations can be one of the most challenging aspects of legal practice. Pro bono clients can often be more challenging than other clients because they may not understand the boundaries of pro bono legal services.
Clients’ expectations may vary depending on their path to pro bono services – whether through the Legal Aid system, a community legal centre or another private lawyer. Whether this is the first time the client has interacted with a lawyer or required legal services will also have an impact, as well as their cultural background and any language barriers which may exist. They may misunderstand the concept of ‘pro bono’ and think that it is available in all areas of practice and without limitation as to scope of work. Additionally, people who have received pro bono assistance in the past may not understand why they are not entitled to further free or discounted assistance for other legal matters.
The initial engagement communication between a firm and a pro bono client plays an important part in educating the client about the provision of pro bono legal services, including in relation to the commercial limitations of pro bono legal services and the scope of the work that will be provided.
It may be helpful to explain to clients that there is always a cost to providing pro bono legal services, and that the only difference between pro bono legal services and commercial services is who bears that cost. For example, clients may have a preconception that they will be represented by the ‘best lawyers’ or ‘best barristers’ and it may be necessary to explain the cost of retaining a barrister or, where the barrister accepts pro bono instructions, the opportunity cost to the barrister. Additionally, a small firm needs to clearly articulate to a client whether it is providing pro bono legal services at no cost or a discounted cost and whether the client must bear the cost or any disbursements. These matters need to be actively raised with a prospective client before the small firm commences providing the pro bono legal assistance.
Clear communication is also needed to manage client expectations as the matter progresses to avoid ‘scope-creep’, that is when the small firm or lawyer becomes expected to take on work beyond the scope of what was originally agreed. This can become a significant issue and is particularly unsustainable for a small firm, particularly when pro bono legal assistance is offered to people who have complex legal needs or frequently experience legal problems. This communication may need to extend to other stakeholders, particularly Referral Organisations and other referrers, courts and judicial officers.
Often, a seemingly insignificant contact from an existing pro bono client, like a phone call or email alerting the firm that ‘something has just come up’, can potentially grow into the need for more significant involvement, which may not have been foreseen or included in the original scope of work. For a small firm with very limited resources, this will lead to difficult decisions in light of a lawyer’s professional responsibility to the client and whether there is the capacity for the firm to make the additional investment required to assist the client. Managing this risk involves carefully managing client and lawyer expectations, including the implementation of clear policies regarding the engagement and termination of retainers.
1.16.3 BUILDING A PRO BONO CULTURE — CAREER SATISFACTION
Encouraging lawyers to take a service-oriented view of their profession and undertake pro bono legal work is not only positive for the community, but also for the lawyers involved. Many of the measures that lawyers use to assess the success of their career, such as their level of remuneration, recognition or promotion prospects, are focused on lawyers’ personal objectives and expectations. Deriving career satisfaction from what is achieved for pro bono clients provides a different perspective on what it means to succeed. It also reinforces to practitioners that they have skills and experience which can have a profoundly positive impact on individuals who otherwise may not have had the means to access their services.
As discussed above, however, a firm’s pro bono contribution also needs to be viewed in light of a larger sustainable business model. As with commercial objectives, the firm’s pro bono achievements need to be measurable to ensure that that the firm can determine whether the pro bono activities of its lawyers have been successful according to the firm’s internal overriding objectives or mission.
Being able to measure pro bono achievements against the firm’s objectives or mission ultimately contributes towards the pro bono culture in the firm. When the members of the firm can clearly see how their work, as individuals, contributes towards the collective goal of the firm, it can be very empowering and assist in reinforcing their commitment to their clients and the firm’s mission.
For further practical tips on small firm pro bono work, see Chapter 11 of What Works. This includes challenges and limitations that have been identified in Chapter 11.1, features of effective small firm pro bono in Chapter 11.2 and a case study in Chapter 11.3 of What Works.
This chapter was reviewed in 2022 by the Australian Pro Bono Centre and the pro bono team at Prisma Legal, headed by Fotini Kypraios and Dimitra Kypraios. The Centre acknowledges and is grateful for the generous contributions of all those who assisted with the 2022 refresh of the Australian Pro Bono Manual.
 See further Australian Pro Bono Centre, ‘Chapter 11: Small Law Firms’, Pro Bono Partnerships and Models – A Practical Guide to What Works, (Web Page) <https://www.probonocentre.org.au/whatworks/part-3/chap-11/>.
 See further Australian Pro Bono Centre, ‘Chapter 29.4: Community Legal Education’, Pro Bono Partnerships and Models – A Practical Guide to What Works <https://www.probonocentre.org.au/whatworks/part-4/chap-29/#29.4.1>.