The strength of a firm’s pro bono culture is one of the most important factors in determining the likelihood of the success of its pro bono program or project. In response to the Centre’s biennial National Law Firm Pro Bono Survey, management and partner support and leadership has been consistently nominated as the most crucial factor for the success of a firm’s pro bono program.[1]
This chapter suggests strategies for promoting a pro bono culture, taking into account the various motivations of firms, and the individuals who work in them, for doing pro bono legal work. It also addresses some common concerns within firms about pro bono legal work. It is primarily focused on building a pro bono culture in mid to large sized law firms, although many of the suggestions apply to in-house legal teams and small firms.
For more information, see What Works, Part 3 Understanding your potential partner, which contains an in-depth discussion about what motivates pro bono legal work for different pro bono providers.
- 1.4.1 Why do pro bono legal work?
- 1.4.2 Strategies to promote a pro bono culture
- 1.4.3 Responding to the firm’s concerns
1.4.1 WHY DO PRO BONO LEGAL WORK?
Firms and their lawyers engage in pro bono legal work for various reasons. These include a sense of professional responsibility and the ability, either as an individual or as a firm, to enjoy the perceived benefits of the pro bono program. Successful and sustainable pro bono practices take into account these motives but have an overall focus on harnessing the moral and ethical principles that sit at the core of pro bono legal work. It is these motives that give a pro bono program authenticity, feed into the firm’s philosophical corporate identity and culture, attract more supporters, and ensure the program’s sustainability.
The primary reason for undertaking pro bono legal work is the individual professional obligation that each lawyer has to ensure equal access to justice given their privileged position as a member of the profession that has the exclusive right to practice law. This is often referred to as the ‘pro bono ethos’ and was eloquently summarised by the Honourable Murray Gleeson in a speech delivered to the National Access to Justice and Pro Bono Conference in Melbourne on 11 August 2006: ‘The legal profession is a profession and not only a business; that its members have a duty to temper the pursuit of individual self-interest; and that they have a collective obligation to do their best to make legal services available to needy people. Collectively, this is a matter of duty, not generosity.’[2]
This personal belief is often held by the lawyers who drive pro bono legal work within the firms that employ them. As Peter Seidel of Arnold Bloch Leibler has said: ‘We do pro bono work because it’s the right thing to do. We are in a privileged position as lawyers to do the work we do and be paid for it. We take the view that pro bono work is part of our professional obligation, our ethical duty in fact.‘[3]
For law firms, there is also a solid business case for undertaking pro bono legal work and providing institutional law firm support for the work. The commercial benefits were summarised by the late Esther Lardent, Founder and former President and CEO of the Pro Bono Institute, United States, as:
- making the firm more attractive to high quality legal recruits who are increasingly attracted to firms that provide opportunities to undertake pro bono legal work;
- enhancing staff morale and loyalty, and greater retention of valued employees which also reduces recruitment costs;
- the development of professional skills and confidence in a supervised environment; and
- providing unique opportunities to market the firm, enhance its corporate image and thereby generate new business.[4]
These commercial benefits described by Ms Lardent also largely apply to the in-house legal teams of corporate organisations and government departments.
The results of the 2020 National Law Firm Pro Bono Survey support this view. The responses of the firms that responded to the Survey – all of which were Australian firms with 50 or more lawyers – revealed that the majority believe their pro bono program provides a range of benefits. In particular:
- 68% of respondent firms reported their pro bono program impacted additional skills development of the firm’s lawyers.
- 66% reported their program increased pride in the firm.
- 61% reported their pro bono program increased opportunities for the firm’s lawyers to undertake direct client work.
- 58% reported that their pro bono program improved the public reputation of the firm.
- 58% reported their pro bono program increased levels of staff satisfaction.
- 50% reported their pro bono program improved retention of existing staff.
- 47% reported that their program increased ability to attract new staff to the firm.[5]
Alongside the professional obligation of individual lawyers to undertake pro bono legal work is the obligation of firms to practise corporate citizenship. Accordingly, in many firms the pro bono legal program is the core element of the firm’s broader corporate social responsibility (CSR) program (also known as a community engagement or social impact program). Other elements of this program may include providing non-legal assistance or financial support to charities, places of worship, schools, and other community organisations, including community legal organisations. The two programs will often be complementary – for example, they might share strategic objectives such as the advancement of social justice or public policy. However, the pro bono legal program should remain distinct for the purposes of defining, approving, crediting, recognising and reporting pro bono legal work.[6]
Nicolas Patrick, Global Head of Pro Bono and Corporate Responsibility at DLA Piper characterised the relationship between pro bono and CSR as follows:
A sophisticated approach to CSR for any law firm would usually lead a firm towards pro bono work as a core element of its community commitment. Whether motivated by a sense of corporate social responsibility or a sense of professional responsibility, pro bono must be at the centre of a law firm’s community investment strategy.
The commercial benefits of developing a strong pro bono culture are discussed in detail below.
RECRUITMENT
Many lawyers find doing pro bono legal work professionally and personally satisfying. An innovative and successful pro bono program may help to attract high quality recruits and differentiate the firm from competitors in the employment market.
As the late Ruth Bader Ginsburg, former Associate Justice of the Supreme Court of the United States, said, ‘A lawyer will gain large satisfaction when he or she is not simply a fee-earning artisan, but a contributor to the public good.’[7]
Stephen Chang, former Senior Legal Counsel at Hewlett Packard Enterprise’s South Pacific Office of the General Counsel commented on his satisfaction with the variety of pro bono work on offer at HPE after moving from private practice: ‘I was pleasantly surprised at HPE’s coordinated structure and approach to pro bono work in-house. I am able to choose the type of pro bono work and the hours spent depending on workload, and bring skills and experience of private practice pro bono work and apply it at HPE to continue to contribute to the community.‘[8]
Many law firms report that students being interviewed for seasonal clerkships and graduate positions enquire about their firm’s pro bono programs and opportunities to do pro bono legal work including, for example, casework and secondment opportunities.
For example, Adelaide law firm partner, Kristy Zander, from LK Law says:
We have found that law students who apply to LK for clerkships and graduate roles are often very interested in the opportunities that LK can offer them to give something back to their community throughout their careers. Whether this is assisting in the low bono advice provided by the Accessible Justice Project (a joint venture between LK and the University of Adelaide), getting involved in the provision of pro bono advice through one of our community partnerships or in other ways, our experience is that community involvement and pro bono opportunities are often reported to be key factors in students’ decisions to apply for, and subsequently stay at, our firm.
Similarly, Dan Creasey, Head of Pro Bono & Community Impact at King & Wood Mallesons reports as follows:
KWM’s Community Impact practice is consistently well-received by clerks and graduates nationally. Clerks have an understanding of the need for access to justice, and many wish to build upon previous experience in university units or whilst volunteering by undertaking pro bono legal work. We receive enquiries about the practice at all stages of clerk and graduate recruitment. Numerous graduate candidates have highlighted the breadth of pro bono practices as a key part of their criteria when selecting a firm. At KWM, this is reflected by our participation rates – approximately 90% of graduates are involved in the Community Impact practice each year (100% in FY20).
The positive impact of pro bono on recruitment is summed up by Peter Seidel of Arnold Bloch Leibler as follows: “The brightest and best want to come to our law firm because of our pro bono work”.[9]
INCREASED JOB SATISFACTION AND RETENTION RATES
Providing pro bono opportunities can improve staff morale, and increase loyalty and job satisfaction. Lawyers often see pro bono legal work as a professional development opportunity, providing a chance to develop their skills by doing interesting work, as well as finding it satisfying to be able to work autonomously and take responsibility for a matter from beginning to end. Some pro bono legal work provides lawyers with much more direct client contact than their usual work and a feeling that they are making a real difference to a person’s life.
Anecdotally, many firms in Australia and abroad have spoken of improved morale and improved retention rates resulting from the firm’s pro bono program. Undertaking pro bono legal work also provides lawyers with an opportunity to engage and collaborate with other lawyers across the firm’s offices and occasionally with other law firms and community organisations. Lawyers often report that the existence of a strong pro bono practice gives them a sense of pride in their workplace and a sense of shared values.
According to Peter Seidel of Arnold Bloch Leibler, pro bono work ‘helps re-enthuse not-so-young lawyers because it is why we studied law in the first place -namely, to be involved in something bigger than ourselves.’ Similarly, pro bono work can be beneficial to the sense of team during a crisis. Mr Seidel says:
The pandemic is proof of the way pro bono work is so vital to the sustainability and success of any law firm. We’ve done more hours of pro bono work through the pandemic than we ever have done in the history of the firm. We have struggled, particularly in Sydney and Melbourne, with lockdowns but pro bono work has allowed us to empathise with people that are less fortunate. Staff have reported to me that they have found renewed purpose during the pandemic because they were able to work on something that was much bigger than themselves.[10]
See What Works, Chapter 10 Large law firms (particularly the section on ‘What attracts law firm staff to participate in pro bono work’).
DEVELOPMENT OF PROFESSIONAL SKILLS AND CONFIDENCE
Pro bono legal work allows lawyers and others to develop their legal and managerial skills. This can be just as significant a motivating factor as the social justice commitment, particularly in the case of less experienced lawyers.
Lawyers conducting pro bono matters often have greater control of a whole matter than they do when working on commercial matters. The lawyer therefore has the opportunity to develop strategy, make commercial decisions, and maintain an overview of the whole case. Some pro bono matters also offer opportunities for lawyers to develop their advocacy experience, and their technical skills in areas beyond their normal practice area. This applies equally to private practice lawyers and in-house lawyers.
Jessica Morath is a Partner of Clayton Utz and co-ordinates her firm’s pro bono practice. She is clear about the professional benefits of pro bono work for lawyers, saying: ‘Our pro bono work builds better lawyers, who have to step out of their comfort zone much earlier than otherwise might happen within a commercial practice’.[11]
NAB partnered with Henry Davis York and the Refugee Advice and Casework Service (RACS) to assist asylum seekers lodging applications for protection visas subject to the fast-track assessment process. Raechelle Binny, General Counsel, Banking, Products & Markets at NAB, noted that in addition to doing important work and contributing to the community, ‘NAB lawyers are also developing their own legal and practice management skills. Our lawyers have received formal training and experience in statement preparation and working with interpreters. Most importantly, they have been afforded the opportunity to develop critical skills in client interaction.’[12]
Assisting pro bono clients may broaden a lawyer’s communication and interpersonal skills beyond those required to deal with commercial clients. Lawyers develop confidence as they assist more clients and extend their skills. This transfers positively to the way they approach their commercial work. Pro bono projects may also allow lawyers from different practice groups to work together as a team in creative and collaborative ways.
The Carnival Australia in-house legal team partnered with Norton Rose Fulbright to support RACS in assisting asylum seekers with visa applications, and on a research project for Special Olympics Australia. Lauren Miller, General Counsel, Carnival Australia said: ‘We have applied our existing capacity for critical thinking, effective communication and problem-solving to our pro bono work.’ On working in new areas of law, Miller added, ‘Although these practices are outside our direct fields of expertise and our day-to-day practice areas, we have been able to translate our skills and experiences in these new contexts. Importantly, by challenging ourselves and stepping beyond our imagined boundaries, we have recognised our own potential to make a positive contribution.’
According to Miller, involvement in these projects has enabled Carnival Australia’s in-house lawyers to develop their skills in a holistic way. ‘It has allowed us to put some of the pressures and challenges we face in our daily work into context and to approach our work in different ways. The depth of development we gain from these real-world experiences is not something we could simulate through other forms of training,’ she said. ‘We have also had the opportunity to engage with one another in different ways and to learn from the lawyers we have partnered with in our pro bono projects.‘[13]
For more information about how participation in pro bono projects develops lawyers’ skills and confidence, see What Works, 20.2 Clinics: Benefits.
REPUTATION AND MARKETING: CLIENT AND GOVERNMENT EXPECTATIONS
A firm’s pro bono program may have a positive impact on public perceptions of the firm and lawyers generally, and provide a point of difference in the market. Given Australia’s sophisticated pro bono sector, where most large law firms have established pro bono practices and where corporations are also developing in-house pro bono programs, there are increasing pro bono expectations from both commercial and government clients.
Potential clients may also seek to retain law firms that have also demonstrated a commitment to community involvement. Relationships with existing clients can be strengthened by a shared pro bono commitment, particularly if it can be translated into a collaborative pro bono project.
For more information about collaborative partnerships with corporate clients and case studies, see What Works, Chapter 15 In-house/corporate lawyers. Partnering with a law firm that has an established pro bono program can allow an in-house corporate team to undertake pro bono legal work with the support of the firm’s infrastructure and administrative systems.
The Commonwealth, New South Wales, Queensland, South Australian, Victorian and Western Australian governments include pro bono conditions in their tender arrangements for the purchase of legal services from the private profession.[14] While the arrangements between jurisdictions differ from each other in various ways, they have been successful in increasing the pro bono contribution made by participating law firms.
1.4.2 STRATEGIES TO PROMOTE A PRO BONO CULTURE
This section discusses some general strategies for promoting a pro bono culture within a firm. Some are particularly relevant to the start-up phase of a program, and others to building, maintaining and developing the program over time. They all involve actions by the firm to demonstrate a clear commitment to pro bono.
The strategies are:
- gathering information to support the establishment and growth of a pro bono program;
- building leadership and management support and identifying pro bono champions;
- creating pro bono structures;
- setting clear objectives for the firm’s pro bono program and lawyers;
- communication from the managing partner about the importance of the program;
- developing a pro bono policy;
- crediting and recognising pro bono legal work;
- integrating pro bono legal work in the normal business activities of the firm; and
- publicising the firm’s pro bono commitment and success stories on the firm’s intranet, websites and social media platforms, and in other external and internal publications.
INITIAL INFORMATION AND SUPPORT
In firms without an established program or with a small ad hoc one, some initial steps to start building the program might include the following:
FINDING OUT WHAT OTHER FIRMS OF A SIMILAR SIZE OR POSITION ARE DOING
The collegiate nature of the pro bono sector as it has developed in Australia means that most pro bono coordinators are happy to assist others with less developed practices by offering advice and support either informally or via pro bono coordinator meetings and forums. For more information about other firms’ pro bono programs, see the Centre’s National Law Firm Directory.[15] In addition, the Centre’s companion publication Pro Bono Partnerships and Models – A Practical Guide to What Works contains many case studies of existing and past pro bono projects that can be used to spark ideas about possible opportunities and provide direction about helpful people to contact.[16]
IDENTIFYING KEY SUPPORTERS WITHIN THE FIRM WHO CAN ASSIST IN PROMOTING PRO BONO, PARTICULARLY AT THE PARTNERSHIP LEVEL
As one large law firm pro bono coordinator has explained: ‘Building and continuing to encourage a culture that is supportive of pro bono within a firm is easier if strategically targeting the personal interests of partners. Ask partners about the causes they feel passionate about.’[17]
It is also important, before taking a business case for a pro bono program to the partnership, to consult widely with key influencers or decision-makers in the firm in business units such as HR, finance, marketing and risk management. This will help to gain and sustain the partnership’s commitment to a program, as well as informing strategies for developing a firm-wide pro bono culture. The importance of leadership support is discussed in more detail in What Works, Chapter 4 Importance of developing a strong pro bono culture.
CONSULTING PEOPLE IN THE FIRM ABOUT THEIR INTERESTS, EXPERTISE AND CONTACTS
Consulting others in the firm, especially key stakeholders, about their interests, contacts and expertise helps gain support for the program as well as helping to determine the types of work or clients that the firm is positioned to take on. See further Chapter 1.5 Surveying interest.
ONGOING SUPPORT FROM SENIOR MANAGEMENT AND OTHER PARTNERS
Successful pro bono programs require consistent and unambiguous support from senior management. That support then needs to be communicated to all in the firm, for example, through a formal partnership resolution.
Partners can also demonstrate their support in other ways such as:
- being involved in drafting and/or settling the firm’s pro bono policy or otherwise actively endorsing the policy;
- serving on the pro bono committee;
- meeting to discuss pro bono activity;
- hands-on involvement in pro bono legal work; and
- encouraging lawyers in their group or department to undertake pro bono legal work and supporting and supervising them in that work.
STRUCTURES, POLICIES AND PROCEDURES
Pro bono committees build a pro bono culture in a firm by allowing a greater number and range of people to get involved in planning and overseeing the firm’s program and broadening their sense of ownership of it. Appointing pro bono committees and creating positions such as pro bono partners and coordinators also sends clear signals to individuals in the firm that management is serious about pro bono. It also provides very practical mechanisms for administering the firm’s program.
The 2020 National Law Firm Pro Bono Survey found that 76.3% of respondent firms had at least one dedicated pro bono coordinator or manager – that is, a person whose primary responsibility is to coordinate their firm’s pro bono legal work.[18] While this is a drop from previous Survey results (89% in 2018, and 90% in 2016), a significant majority of large firms clearly still find it beneficial to appoint a coordinator. Half of Survey respondent firms have their most senior pro bono coordinator performing the role full-time, an increase from 46% in 2018 and 41% in 2016.[19]
For more information on pro bono committees and structures see Chapter 1.9 Coordinating the program.
Developing a pro bono policy and associated procedures indicates the firm’s commitment as well as providing a structure for the program. Wide involvement in the development of the policy is desirable, and some commentators have particularly stressed the importance of ensuring that all partners have the opportunity to become involved in creating the policy. The firm should circulate the policy widely and encourage feedback about it.
SETTING CLEAR COMMITMENTS, OBJECTIVES AND EXPECTATIONS
When a firm sets objectives for its pro bono program, it is expressing its commitment to pro bono in concrete terms. The National Pro Bono Target sets a voluntary target of at least 35 hours of pro bono legal work per lawyer per year, and has become a benchmark for the amount of pro bono legal work that firms expect their lawyers to do. A number of firms set their own internal targets which are equal to or greater than 35 hours per lawyer per year. Most large firms in Australia have become signatories to the Target, and some exceed the Target by many hours.[20]
Some firms make a commitment to achieve other objectives, such as addressing particular areas of need with strong criteria for undertaking pro bono legal work, ‘focus areas’ or ‘signature projects’.
The National Pro Bono Target for in-house corporate and government lawyers is a voluntary and aspirational target of at least 20 hours of pro bono legal services per lawyer per year that can be signed up to by in-house legal teams and individual in-house lawyers.
A firm’s policy could include targets for the whole firm, and/or it could include targets for particular departments or individuals. Pro bono could also be specifically included in employee job descriptions, and even included in key performance indicators as a prerequisite for promotions and bonuses.
MANAGEMENT COMMUNICATION OF PRO BONO OBJECTIVES
To demonstrate the importance of its commitment to pro bono, a firm’s leadership should communicate the firm’s objectives for its pro bono program, both internally and externally, explaining why the firm considers pro bono important.
This communication should make the firm’s expectations of participation in pro bono clear, preferably encouraging participation by all the firm’s lawyers, from paralegals to partners. For example, one firm circulates a yearly honour roll of lawyers who have met the Target of at least 35 hours of pro bono legal work during the year.
CREDITING AND RECOGNISING PRO BONO LEGAL WORK
One of the most effective means of encouraging pro bono legal work is to credit and recognise it. The extent of a firm’s commitment to pro bono is reflected in its policy on crediting and recognising pro bono legal work for the purposes of productivity, evaluation, compensation and advancement within the firm. Lawyers are most likely to be engaged in the firm’s pro bono efforts and volunteer for pro bono opportunities if their pro bono legal work is recognised by the firm for all of these purposes.
Where firms require their lawyers to meet billable hour and/or financial targets, it is best practice to provide full billable hour and financial credit for pro bono legal work, and for lawyers to be appraised on the work done in pro bono matters, as they would be for commercial matters. In other words, pro bono legal work should be treated in the same manner as commercial work in terms of crediting and recognition. It is difficult for a firm to build a firm-wide pro bono culture and a sustainable pro bono practice without providing lawyers with appropriate fee relief.
Pro bono leaders from established pro bono practices have identified the potential removal of full billable hour credit for pro bono legal work as being a serious threat to a pro bono practice. They have indicated that the likely result of removing full billable hour credit is a significant reduction in reported pro bono hours and an inability to achieve the Target. Given the many non-billable demands on lawyers, firms that do not recognise pro bono legal work by counting it towards billable targets may be limiting the firm’s pro bono contribution to the work done by a much smaller pool of lawyers who are willing to do it in their own time. In addition, removing full billable hour credit threatens the pro bono culture of a firm, as it sends a message that the firm does not value pro bono legal work in the same way as it values commercial legal work.
Respondents to the 2020 National Law Firm Pro Bono Survey were asked to report whether lawyers at their firm are required to meet billable hour targets or financial targets. In summary:
- 65.8% of firms reported that lawyers were required to meet both
- 23.7% of firms reported their lawyers were only required to meet billable hour targets
- Only 10.5% of firms reported that their lawyers did not have a billable or financial target.[21]
Of the firms that required lawyers to meet billable hour targets in 2020, 76.5% provided some form of billable hour credit for pro bono work. However, only 50% of the surveyed firms provided full billable hour credit in the 2020 financial year. [22] While these encouraging results are a pleasing recovery from the results of earlier Survey years, the results demonstrate that even amongst Australia’s largest firms there is room for improvement in the way lawyers are provided with billable credit for their pro bono work.
For more information about means of ensuring that lawyers are given both appropriate credit and recognition for their pro bono legal work see Chapter 1.11 Crediting and recognising pro bono legal work.
Other additional and important means of recognising and therefore encouraging pro bono legal work, which can be used by both firms and in-house legal teams, include:
- reporting internally on participation in pro bono, publicising the contributions made by participants and summarising matters undertaken and clients assisted;
- holding events such as annual lunches, dinners or other functions to celebrate the firm’s pro bono legal work and to thank participants;
- inviting participants in the program to give presentations at the firm’s seminars;
- producing pro bono annual reports;
- giving priority to pro bono participants when deciding who should attend certain conferences and events; and
- formally acknowledging and rewarding pro bono effort.
INTEGRATION, PUBLICITY AND INVOLVEMENT
Integrating pro bono into the firm’s business and operational procedures, so that it becomes an expected part of life within the firm, helps to build a pro bono culture.
Full integration of pro bono into the firm’s operations requires developing a pro bono program where everyone in the firm who wishes to participate has the opportunity to do so. To ensure that all lawyers are aware of the possibilities for undertaking pro bono legal work within their practice areas, or for contributing in other ways, pro bono opportunities should be widely and regularly publicised within the firm.
It is also important to integrate the pro bono program into the firm’s key business units, including finance, human resources, corporate services, business development/marketing, corporate services and knowledge management.
Strategies that will work to integrate, publicise and encourage firm-wide involvement of staff in pro bono legal work may depend on the size and stage of development of the pro bono practice of the particular firm. Suggested strategies include:
- providing a variety of work to suit the interests and capabilities of a broad range of lawyers;
- ensuring that appropriate support and supervision is provided (for example, providing dedicated training programs);
- integrating pro bono into regular firm-wide communications and events (such as functions and partners’ retreats);
- including pro bono in induction programs for new staff (both lawyers and non-lawyers): for example, offering summer clerks the opportunity to go on a one-day pro bono secondment;
- building pro bono into regular department or practice group meetings, so that it becomes a regular part of their reporting;
- organising lawyers, partners and others to give case presentations on pro bono matters at practice group or departmental meetings and provide information on how others can become involved;
- providing regular opportunities for people who work at the firm to express interest in being involved in the program: for example, through emails seeking volunteers for particular cases or projects, surveys of areas of interest and expertise, pro bono newsletters about work being carried out in the firm, or including this information on the firm’s intranet, regular newsletter or social media presence;
- appointing a pro bono ‘point’ partner in each department or group – this person would be the main contact in that department for the pro bono coordinator (or committee) to talk to about pro bono legal work;
- approaching individuals and their supervisors in relation to taking on particular matters or other work;
- informing the firm’s non-legal staff (including library, reception, secretarial and human resources staff) of the pro bono program, and the procedures for taking on pro bono matters (amongst other things, these people may be approached by others inquiring how they can become involved in the firm’s pro bono legal work);
- organising meetings of people in the firm with specialist pro bono interests, for example, lawyers working on refugee matters or discrimination matters, lawyers rostered on community advice clinics, and distributing updates on these topics; and
- organising lunchtime seminars on the firm’s pro bono legal work, or particular areas of interest.
1.4.3 RESPONDING TO THE FIRM’S CONCERNS
Openly identifying and addressing concerns about the impact of pro bono legal work on the firm’s commercial practice will assist in building support for the pro bono practice.
Responses to some common concerns are discussed below, including:
- impact on financial productivity;
- impact on performance evaluation and advancement opportunities;
- lack of required skills and expertise, and associated training costs; and
- legal and commercial conflicts.
FINANCIAL PRODUCTIVITY
There may be a concern that pro bono legal work detracts from the firm’s financial productivity, given that pro bono hours do not result in a direct financial return to the firm. However, pro bono legal work can result indirectly in positive financial return to the firm through the positive benefits discussed above including:
- enhancing the attractiveness of the firm for potential recruits, giving the firm a wider selection of quality candidates to choose from;
- improved staff morale and retention of staff;
- attracting paying clients to the firm;
- providing staff with new skills; and
- enhancing the firm’s reputation in the community.
Firms with leading pro bono practices have reported experiencing the benefits of pro bono legal work without any detrimental impact on their profitability. In fact, a positive relationship between pro bono and financial productivity can be seen amongst the high achieving and most productive lawyers in terms of commercial billable hours.
Strategies for overcoming concerns about financial productivity include:
- clearly articulating to the firm the benefits of pro bono legal work;
- structuring and promoting the firm’s pro bono program in ways most likely to result in accrual of these benefits, including regular internal reporting and recognition of pro bono effort, and recording time spent on pro bono legal work in accounts systems;
- incorporating evaluation strategies for pro bono programs that seek to measure the accrual of benefits to the firm;
- setting a clear hours-based target for pro bono legal work so that those with concerns can see that firm’s contribution is made with a particular goal in mind and is undertaken according to agreed criteria;
- setting an operational budget for the pro bono program; and
- creating systems to anticipate, monitor and review time and resources spent on pro bono legal work to ensure the efficient allocation of resources, and ensure compliance with the operational budget.
CREDIT AND RECOGNITION
Some lawyers may be concerned that they will find it difficult to do pro bono legal work while keeping up with their commercial workload. They may also fear that it will be viewed negatively in relation to their reputation, remuneration or advancement in the firm.
Strategies that firms can employ to address these potential concerns include:
- having a clearly articulated and communicated commitment to pro bono, including:
- a pro bono policy which encourages all staff to be involved in the program (and possibly states concrete expectations or requirements such as number of pro bono hours);
- visible senior partner (or general counsel) involvement and support;
- an active pro bono committee; and
- well-publicised pro bono opportunities in the firm;
- providing full billable hour credit for pro bono legal work in firms;
- ensuring that pro bono legal work is taken into account in performance reviews and evaluations of lawyers (including partner self-assessments or other processes of review) and is considered in the criteria for promotions;
- setting an hours-based pro bono target for the firm, and possibly groups or individuals within the firm; and
- employing additional means of recognising and rewarding an individual’s and/or group’s pro bono efforts, such as through the firm’s intranet, newsletters, emails, social media presence, reports, seminars, awards and other events.
Providing appropriate credit and recognition for pro bono legal work can be particularly challenging in an in-house context where the team’s main obligation is furthering the corporation’s business.
SKILLS AND EXPERIENCE
Some firms and their lawyers may be concerned that they lack the skills and experience required to undertake pro bono legal work that is outside their usual area of practice.
Larger firms may actively recruit staff with experience in pro bono, public interest and poverty law who can supervise, train and support other lawyers as well as undertake pro bono legal work and/or coordinate the firm’s program. Leading pro bono practices have invested in significant training that enables their lawyers to provide pro bono assistance.
Some firms may also be reluctant to make the investment in time and resources to provide the training that would enable their lawyers to acquire such skills. While there are some pro bono matters involving areas of law that may be too complex to undertake without significant training and experience, there are other areas where firms can take smaller steps that would nevertheless enable their lawyers to participate in a wider range of pro bono legal work. These include:
- identifying and sourcing pro bono legal work that draws on the existing expertise, and is therefore suitable for different teams or divisions within the firm, then widely publicising these opportunities;
- organising training for lawyers, either internal or external training, to undertake particular kinds of cases or discrete tasks, for example, to assist in domestic violence hearings or requesting review of fines; and
- partnering lawyers who wish to do pro bono legal work with mentors within the firm who have the expertise to help them take on the particular pro bono matter or project.
In some instances, training may be provided by the pro bono partner organisation. For example, Chanelle Sleiman from American Express speaks about the training provided by the Redfern Legal Centre as follows:
The sense of fulfilment you achieve by assisting those in need and giving back to the community is reason why most of us became lawyers. When the opportunity to volunteer at Redfern Legal Centre presented itself, I was both thrilled to be able to participate and hopeful that I would do a good job. Thankfully, Redfern Legal Centre invested a great deal of time teaching volunteers not only about the substantive law but also the necessary interpersonal skills required to best support those seeking help, whom have often been subjected to trauma and abuse. I feel well-equipped to be able to assist those in need and look forward to our continued work with Redfern Legal Centre.
Collaborating with referral organisations, with other firm pro bono coordinators and with the Australian Pro Bono Centre can help to identify unmet areas of law and lead to developing new service delivery models. As part of its suite of pro bono resources, the Centre has a Sourcing Pro Bono Opportunities initiative to equip pro bono providers with practical resources to find potential opportunities and reduce barriers to pro bono participation.
For more information see Chapter 1.14 Training and skills.
LEGAL AND COMMERCIAL CONFLICTS
Sometimes pro bono legal work may create a legal or commercial conflict with existing clients, or prejudice the firm’s ability to obtain new commercial work. Strategies to address this issue include:
- before accepting any new pro bono matter, carrying out the usual conflict check that would normally be carried out for any other matter to avoid direct legal conflicts of interest;
- introducing systems to identify and manage potential or commercial conflicts as they arise on a case-by-case basis. One way of doing this is to form a commercial conflicts committee that can identify in advance areas that may cause problems with particular commercial clients and, where appropriate, contact the relevant client with a view to obtaining consent to proceed with the matter despite the potential conflict; and
- developing referral pathways to other firms with pro bono practices and pro bono referral organisations, so that matters can easily be referred if a firm is unable to take on a matter because of a conflict.
Where a matter is perceived to constitute a commercial conflict, a firm may nonetheless decide to give some general advice about the issues to the client or referring organisation, or undertake research into particular areas relevant to the issues.
For firms that are members of one or more government panels for external legal services, there are mechanisms to address potential conflicts of interest that arise between pro bono clients and government clients. For example, under the Whole of Australian Government Legal Services Panel, legal service providers may act against the Commonwealth in pro bono work where there is no conflict of interest.[23] Similarly, in a number of Australian states, lawyers are able to act on a pro bono basis against the State in matters where there is no conflict of interest.[24]
For further information on conflicts, see Chapter 2.2 Risk management.
1 Australian Pro Bono Centre, ‘National Law Firm Pro Bono Survey’, Information on Pro Bono (Web Page) <https://www.probonocentre.org.au/information-on-pro-bono/survey/>.
2 Australian Pro Bono Centre, ‘National Access to Justice and Pro Bono Conference 2006’, Information on Pro Bono (Web Page) <http://probonocentre.org.au/information-on-pro-bono/conference/na2jpbc-2006/>.
3 Australian Pro Bono Centre, Pro Bono Voco (Issue 6, December 2021) 4 <https://www.probonocentre.org.au/news-media-2/pro-bono-voco/>.
4 Esther F. Lardent, ‘Making the Business Case for Pro Bono’ (Discussion Paper, Law Firm Pro Bono Project, The Pro Bono Institute, February 2000).
5 Australian Pro Bono Centre, Report on the 7th National Law Firm Pro Bono Survey: Australian firms with 50 or more lawyers (Report, February 2021) section 6.7.5 <https://www.probonocentre.org.au/information-on-pro-bono/survey/>.
6 J Corker, ‘Pro Bono and Corporate Social Responsibility: Reputation building, recruitment, retention and client relationships’, (September 2015) <https://www.probonocentre.org.au/wp-content/uploads/2020/12/Corporate-Social-Responsibility-and-Pro-Bono-Corker-September-2015.pdf>.
7 Ruth Bader Ginsburg, ‘In Pursuit of the Public Good: Lawyers who Care’, University of the District of Columbia, David A. Clarke School of Law, Joseph L. Rauh Lecture, 9 April 2001.
8 Gabriela Christian-Hare, ‘Win-Win-Win: How in-house corporate lawyers can contribute to their career, their company and their community’ (2017) 28(4) The Australian Corporate Lawyer 26, 27 .
9 Australian Pro Bono Centre, Pro Bono Voco (Issue 6, December 2021) 4 <https://www.probonocentre.org.au/news-media-2/pro-bono-voco/>.
10 Australian Pro Bono Centre, Pro Bono Voco (Issue 6, December 2021) 4 <https://www.probonocentre.org.au/news-media-2/pro-bono-voco/>.
11 Australian Pro Bono Centre, Pro Bono Voco (Issue 3, June 2020) 16 <https://www.probonocentre.org.au/news-media-2/pro-bono-voco/>.
12 Gabriela Christian-Hare, ‘Win-Win-Win: How in-house corporate lawyers can contribute to their career, their company and their community’ (2017) 28(4) The Australian Corporate Lawyer 26, 27 .
13 Gabriela Christian-Hare, ‘Win-Win-Win: How in-house corporate lawyers can contribute to their career, their company and their community’ (2017) 28(4) The Australian Corporate Lawyer 26, 27 .
14 Australian Pro Bono Centre, ‘Pro Bono Requirements in Government Tender Arrangements for Legal Services’, Provide Pro Bono Assistance (Web Page) <http://probonocentre.org.au/ provide-pro-bono/government-tender-arrangements/>.
15 Australian Pro Bono Centre, ‘Australian Pro Bono Centre National Law Firm Directory’, Provide Pro Bono Assistance (Web Page) <http://probonocentre.org.au/provide-pro-bono/law-firm/directory/>.
16 AAustralian Pro Bono Centre, ‘Contents & Information’ Pro Bono Partnerships and Models – A Practical Guide to What Works (Web Page) <https://www.probonocentre.org.au/whatworks/>.
17 Australian Pro Bono Centre, ‘Chapter 4: Importance of Developing a Strong Pro Bono Culture’, Pro Bono Partnerships and Models — A Practical Guide to What Works (Web Page) <https://www.probonocentre.org.au/whatworks/part-2/chap-4/>.
18 Australian Pro Bono Centre, Report on the 7th National Law Firm Pro Bono Survey: Australian firms with 50 or more lawyers (Report, February 2021) section 5.1 <https://www.probonocentre.org.au/information-on-pro-bono/survey/>.
19 Australian Pro Bono Centre, Report on the 7th National Law Firm Pro Bono Survey: Australian firms with 50 or more lawyers (Report, February 2021) section 5.1 <https://www.probonocentre.org.au/information-on-pro-bono/survey/>.
20 For more information, see the Australian Pro Bono Centre’s Annual Performance Reports on the National Pro Bono Target <https://www.probonocentre.org.au/provide-pro-bono/target/>.
21 Australian Pro Bono Centre, Report on the 7th National Law Firm Pro Bono Survey: Australian firms with 50 or more lawyers (Report, February 2021) section 6.5 <https://www.probonocentre.org.au/information-on-pro-bono/survey/>.
22 Australian Pro Bono Centre, Report on the 7th National Law Firm Pro Bono Survey: Australian firms with 50 or more lawyers (Report, February 2021) section 6.5.1 <https://www.probonocentre.org.au/information-on-pro-bono/survey/>.
23 Australian Pro Bono Centre, ‘Commonwealth Government Legal Services Panel’, Provide Pro Bono Assistance (Web Page) <https://www.probonocentre.org.au/provide-pro-bono/government-tender-arrangements/commonwealth-government-legal-services-panel/>.
24 Further information about the pro bono conditions for government panel arrangements across Australia can be found at: Australian Pro Bono Centre, ‘Pro Bono Requirements in Government Tender Arrangements for Legal Services’, Provide Pro Bono Assistance (Web Page) <https://www.probonocentre.org.au/provide-pro-bono/government-tender-arrangements/>.