This chapter provides the reflections of a principal of a small law firm who has successfully developed an effective pro bono practice.
Small firms1 and sole practitioners make a significant pro bono contribution, 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. Some undertake pro bono matters that are referred to them through PBROs.
However, given that the capacity of small firms to take on pro bono legal work is generally more limited than that of larger firms, different considerations need to be taken into account. Some of the other challenges likely to affect small firms in particular include:
- having less flexibility to find capacity to undertake pro bono legal work;
- exposure to the same risk as larger firms while being less able to absorb the risk; and
- being less resourced to perform a means and merits assessment, especially when they receive a large volume of pro bono requests.2
- 1.16.1 Planning — strategy, structure & processes
- 1.16.2 Managing expectations
- 1.16.3 Building a pro bono culture — career satisfaction
1.16.1 PLANNING — STRATEGY, STRUCTURE AND PROCESSES
CLARIFYING INTENTION AND PURPOSE
It is important for a small firm to understand why they are becoming involved in pro bono legal work, especially given the particular challenges that may need to be overcome by a small firm taking on pro bono legal work. Lawyers who undertake pro bono legal work in small firms are likely to be doing it for very personal reasons and be very committed to it.
Examples of the reasons why a small firm may consider taking on pro bono matters include:
- fulfilling a personal desire to ‘give back’ and to facilitate access to justice for those who would not be able to otherwise access legal advice;
- serving a commercial purpose;
- meeting the expectation of certain individuals with influence over the firm;
- responding to needs in the community in which the firm operates; and/or
- keeping up with what law firm competitors are doing.
Part of the process of clarifying intention and purpose should be to identify the intended outcomes of doing pro bono legal work and how to measure whether the firm has achieved its goals. See Chapter 1.13 Evaluation.
The firm should then consider whether pro bono legal work is the best way to achieve the firm’s goals or whether they can be more effectively achieved, for example, by donating money, sponsoring NFP organisations or referring the person seeking assistance to another lawyer or barrister.
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 of a clear pro bono policy is essential to the effective management of all aspects of pro bono service provision. Particularly for a small firm with limited pro bono coordination resources, a policy is needed to guide the firm and its lawyers so it can quickly make decisions about pro bono matters. The policy should cover areas such as:
- determining genuine pro bono cases;
- terms of engagement and agreed scope or division of work (either with clients or with other service providers such as barristers);
- measuring outcomes;
- reporting (to clients or other stakeholders, such as PBROs, or other referrers);
- terminating or completing the work;
- fee and cost recovery; and
- post completion relationship and expectation management.
Where a small firm plans to work collaboratively with other organisations, it should not feel obligated or pressured to implement another organisation’s existing pro bono policies if it does not suit the firm’s needs. While having a consistent policy with stakeholders will assist in developing the relationship, a policy that has been carefully developed by a firm to ensure that pro bono will work well for that individual firm should be implemented with as few exceptions as possible.
A small firm which promotes the fact that it does pro bono legal work 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 is especially the case if 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 PBRO that 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 PBRO 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.
For more information about PBROs see Chapter 3.3 Pro bono referral schemes and organisations.
AWARENESS OF COMMERCIAL LIMITATIONS
It is particularly important for a small law firm to ensure that it is financially stable and secure before taking on pro bono cases. 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 those services, especially where they are not clearly defined or limited, may be considered irresponsible.
Demand for pro bono legal services will always be unlimited given there is no cost to the client. A firm which promotes the fact that it accepts pro bono cases may be inundated by requests for assistance and needs to ensure there is a clear policy in place to define the scope of works and limit the provision of pro bono legal services. 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. Small firms and their lawyers need to understand their commercial limitations and assess their ability to provide pro bono legal services in light of their existing and prospective budgets.
1.16.2 MANAGING EXPECTATIONS
Many lawyers who become involved in pro bono legal service, as with any community service, do so because they have an overwhelming desire or passion to contribute, make a difference and do ‘public good’. Pro bono legal work can be very rewarding, considering the difference that pro bono assistance can make to the life of the person receiving the assistance.
Pro bono can change the world, one life at a time. However, lawyers providing pro bono assistance also need to appreciate that pro bono legal work can sometimes be thankless, unrecognised or not acknowledged. In addition, their efforts may not immediately appear to have any impact on the issues they are trying to address.
As discussed earlier, there is no limit to the demand for pro bono legal services, especially when pro bono equates to completely cost-free in many people’s minds. Given there are costs to the lawyer and firm in providing pro bono services, which have an immediate impact in a small firm, it is important for small firms to know their own limitations (see Awareness of commercial limitations above).
Managing the expectations of lawyers is an important way of avoiding 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.
Managing client expectations can be one of the most challenging aspects of legal practice. Pro bono clients can often be more challenging than others because they do not necessarily 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 required legal services will also have an impact. They may misunderstand the concept of Legal Aid and think that it is universally available, like Medicare, or may be informed by the ‘no-win-no-fee’ marketing strategies of some legal firms. People who have received pro bono assistance in the past may not understand why they are not entitled to ongoing free assistance for future legal problems.
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, the commercial limitations on pro bono legal services, particularly for a small firm, and the scope of the work that will be provided. It may be helpful to explain 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 pays the cost. For example, clients who have watched movies like The Castle may have an expectation that they will be represented by the ‘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.
Clear communication is also needed to manage client expectations as the matter progresses to avoid ‘scope-creep’ which is particularly unsustainable for a small firm. Being expected to take on work beyond the scope of what was originally agreed is often an issue when dealing with people who have complex legal needs or frequently experience legal problems. This communication may need to extend to other stakeholders, particularly courts and judicial officers.
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 do 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 disadvantaged pro bono clients provides a different perspective on what it means to succeed.
The ability to make a difference in someone else’s life is powerful and imposes great responsibility on the person with that ability, which can also be extremely satisfying.
As discussed above, 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 so that it can determine whether the pro bono activities of its lawyers have been successful according to the firm’s objectives.
Being able to measure pro bono achievements against the firm’s objectives helps to build the pro bono culture in the firm. This is because the lawyers can see and be satisfied that their work is satisfying the intention that the firm originally set out to fulfil when it embarked on its pro bono journey.
1 For the purpose of this book, a small law firm is one with fewer than 50 FTE lawyers.
2 See further Australian Pro Bono Centre, Pro Bono Partnerships and Models – A Practical Guide to What Works, 2nd edition, LexisNexis, Sydney, 2014, Chapter 11 Small firm pro bono: At a glance, https://probonocentre.org.au/information-on-pro-bono/our-publications/what-works/.