- 4.1 Partner Support
- 4.2 Defining Pro Bono Work
- 4.3 Pro Bono Targets
- 4.4 Pro Bono Budgets
- 4.5 Sourcing Pro Bono Legal Work
- 4.6 Intake Procedures
- 4.7 Expanding the firm’s area of expertise
- 4.8 Participation in the Pro Bono Practice
- 4.9 Writing off Billable Time
- 4.10 Matter ‘Blow-outs’
- 4.11 Dealing with Clients
- 4.12 Part-time Pro Bono Managers
4.1 PARTNER SUPPORT
THE PARTNERS IN MY FIRM DON’T SEEM TO SUPPORT PRO BONO. AS A PRO BONO MANAGER, WHAT CAN I DO ABOUT THIS?
While every firm is different, the following general strategies have been shown to promote a pro bono culture within a firm, particularly at the partnership level: (a) gathering information to support the development of the pro bono practice, with a particular focus on the benefits to the business; (b) consulting partners about their interests and desired focus for the pro bono practice, then implementing a practice which addresses those interests and focus; (c) identifying pro bono champions who can assist in promoting the pro bono practice amongst the partners; and (d) ensuring the internal visibility of the pro bono practice so that partners understand the opportunities available and the benefits to both individual lawyers and the firm. See 1.4.2 Strategies to promote a pro bono culture and What Works, Chapter 4 Importance of developing a strong pro bono culture.
4.2 DEFINING PRO BONO WORK
SOME PARTNERS CLASSIFY WORK FOR FRIENDS, FAMILY, SCHOOL, ETC, AS PRO BONO WHEN REALLY IT DOESN’T FALL WITHIN OUR AGREED DEFINITION OF PRO BONO WORK. HOW SHOULD I HANDLE THIS?
Many firms do significant amounts of free or reduced-fee work that falls outside of the agreed definition of pro bono legal work, as part of the firm’s business development strategy, CSR program or community engagement program (see 1.2 Defining pro bono legal work). The firm’s internal communications should clearly distinguish business development, CSR and community engagement activities from pro bono legal work, and make it clear that they are not to be approved, credited, recognised or reported as if they were pro bono legal work. The pro bono leader or manager may need to reinforce this distinction in conversations with partners. Pointing to the Centre’s definition of pro bono legal work may assist in this process.
4.3 PRO BONO TARGETS
HOW DO I GO ABOUT SETTING A TARGET FOR THE FIRM’S PRO BONO PRACTICE?
Best practice is to set a target for pro bono legal work performed annually by the firm, expressed as hours per FTE lawyer in the firm (see 1.8.1 Targets for pro bono legal work; and Appendix 2 Australian Pro Bono Best Practice Guide element 8). The National Pro Bono Target sets an Australian benchmark of 35 hours per FTE lawyer per year. Firms that subscribe to the Target undertake to use their best efforts to meet that benchmark, and to report confidentially to the Centre on their progress against it on an annual basis.
While many firms adopt the Target for internal purposes, some small firms (and firms in the early stages of developing a formal practice) provisionally set lower internal targets. By contrast, some large firms with established pro bono practices set an internal target of 50 hours per lawyer or more.
4.4 PRO BONO BUDGETS
I NEED TO PREPARE A PRO BONO BUDGET FOR MY FIRM. WE HAVEN’T REALLY HAD A FORMALISED PRACTICE BEFORE. HOW DO I GO ABOUT IT?
Decide first what should be included (for example, the salaries of pro bono staff, disbursements, administrative costs, travel budgets, conferences or other overheads) and be guided by the firm’s general accounting procedures as to how costs are allocated. When estimating amounts, consider the type of work likely to be undertaken and if possible, be guided by the current expenditures of similar commercial practices in the firm. Talking to pro bono managers in other similar-sized firms can also be helpful. See 1.8.2 Budgets for pro bono practices and Appendix 2 Australian Pro Bono Best Practice Guide, element 8.
4.5 SOURCING PRO BONO LEGAL WORK
HOW DO WE FIND PRO BONO CLIENTS?
The firm’s pro bono policy should indicate the areas of unmet legal need that its practice aims to address, and this will inform how clients are sourced. Sources of clients include Referral Organisations, Community Legal Centres, community organisations, staff within the firm, and direct requests from clients. See 1.6.2 Sourcing pro bono legal work and Appendix 2 Australian Pro Bono Best Practice Guide, element 9.
HOW CAN I REDUCE THE NUMBER OF REFERRAL REQUESTS WE RECEIVE THAT FALL OUTSIDE THE CRITERIA FOR OUR FIRM’S PRACTICE?
The firm should develop clear criteria on the types of referrals it will accept. These can be communicated to referral agencies directly or via the Australian Pro Bono Centre’s National Law Firm Directory. Partnerships with particular referral agencies should be formalised in a memorandum of understanding, which sets out the referral criteria: see 1.6.2 Sourcing pro bono legal work and 2.1.1 Intake criteria.
4.6 INTAKE PROCEDURES
I WANT TO SET UP AN INTAKE PROCEDURE THAT IS FAST AND EFFICIENT. ANY SUGGESTIONS?
It’s important to establish formal assessment procedures with ready access to those required to give their approval (see 2.1.2 Assessment and approval). The assessment will involve running a conflicts check (see 2.1.1 Conflicts of interest) and applying clear intake criteria: determining whether the matter falls within the criteria for the firm’s pro bono practice (including types work, areas of law, types of clients etc), estimating the hours involved and whether the firm has the capacity and expertise to take the matter on (see 2.1.1 Intake criteria). Setting up procedures will make the intake procedure as fast and efficient as possible. It’s also helpful to ensure referral agencies are aware of the intake criteria so they can pre-select suitable matters for referral. Some firms ask referral agencies to make requests using a ‘pro bono request’ form.
I FIND IT HARD TO DRAW THE LINE IN RELATION TO MEANS TESTS. WHAT MEANS TEST DO OTHER FIRMS USE?
Assessing pro bono matters should involve applying written intake criteria, which may include criteria as to the types of clients the firm is willing to assist (see 2.1.1 Intake criteria). These criteria often include a financial means test, which varies from firm to firm and can regularly change in response to changing economic conditions in the broader community. Talking to pro bono managers in other similar-sized firms can be helpful. It can also be helpful to be somewhat flexible in applying the means test and to bear in mind the pro bono practice’s policy objectives. For example, the firm’s policy may aim to assist those with particular legal needs whose circumstances disqualify them from legal aid, or it may focus on public interest objectives (see 1.3.4 Criteria for pro bono legal work).
HOW DO I DEAL WITH CONFLICTS?
Direct legal conflict checks should be made using the firm’s usual conflicts procedures, and the firm’s pro bono approval process should include clear procedures for identifying and responding to commercial conflicts. If a commercial conflict is identified, one approach is to convene a conflicts committee meeting or to draw upon the advice of client relationship managers. It also helps to develop relationships with key staff in client organisations who are authorised to examine commercial conflicts and consent to the firm proceeding. In some jurisdictions there are specific provisions indicating that a law firm will not be prejudiced for acting pro bono against the government. See 2.1.1 Conflicts of interest.
SOMETIMES BY THE TIME MY FIRM HAS DECIDED TO ACCEPT A CASE REFERRAL, IT HAS ALREADY BEEN REFERRED TO ANOTHER FIRM. HOW CAN I AVOID THIS IN FUTURE?
The turnaround time for accepting referrals should be agreed with the referral agency (possibly as part of a general memorandum of understanding), and should be consistent with the firm’s policy (see 1.3.2 Contents of a pro bono policy) and intake procedure (see 2.1.2 Assessment and approval). When a referral is received, it helps to clarify with the referral agency how urgently a response is required and whether they are able to wait for your response.
4.7 EXPANDING THE FIRM’S AREAS OF EXPERTISE
OUR FIRM OFTEN RECEIVES REQUESTS FOR ASSISTANCE IN AREAS OF LAW OUTSIDE OUR AREAS OF EXPERTISE. WHAT SHOULD WE DO ABOUT THIS?
The firm should only act in matters within its expertise. If the relevant expertise is limited, consider developing internal training programs that leverage the expertise within the firm, or training together with other firms or with a community legal service: see 1.4.3 Responding to the firm’s concerns (Skills and experience) and 1.14.1 Mismatch between lawyers’ expertise and clients’ needs. Alternatively, advise the referral agency about the issue and investigate other placement options.
4.8 PARTICIPATION IN THE PRO BONO PRACTICE
SOME LAWYERS COMPLAIN THEY ARE APPROACHED ABOUT PRO BONO WORK TOO OFTEN — OTHERS, TOO LITTLE. HOW CAN I ACHIEVE MORE UNIFORM PARTICIPATION?
Some lawyers in the firm will always be more ready, willing and able to do pro bono legal work than others. However, there are strategies to improve participation rates: for example: (a) developing a practice policy and intake criteria that match the firm’s interests, capacity and skillsets (see 1.3.2 Contents of a pro bono policy); (b) expanding, or adapting, the firm’s expertise to better match areas of unmet legal need (see 1.14.1 Mismatch between lawyers’ expertise and clients’ needs ), (c) creating cross-group teams for particular pro bono projects (see 1.10 Participation); and (d) promoting the pro bono practice internally and crediting and recognising the pro bono legal work that is done (see 1.11 Crediting and recognising pro bono legal work).
OUR FIRM IS FREQUENTLY ASKED TO ASSIST IN ONE PARTICULAR AREA OF LAW. HOW CAN I AVOID OVERWORKING THE LAWYERS WITH EXPERTISE IN THIS AREA?
The capacity of lawyers or practice groups to take on any particular matter or project is an important aspect of the intake criteria. If the relevant lawyers do not have capacity to accept the work, it may be necessary to decline the referral. See 2.1.1 Intake criteria.
4.9 WRITING OFF BILLABLE TIME
PARTNERS IN MY FIRM HATE TO WRITE OFF BILLABLE TIME. HOW DO I ACCOUNT FOR PRO BONO TIME TO MINIMISE PARTNER WRITE-OFFS?
Best practice is to credit pro bono matters as commercial matters which avoids matters having to be ‘written off’. If the firm adopts a different crediting system that does involve write-offs, it is important to understand the impact of these write-offs for partners (eg talk to the finance department). It may be possible for the accounting system to make accounting adjustments and avoid write-offs. See 1.11 Crediting and recognising pro bono legal work.
4.10 MATTER ‘BLOW-OUTS’
HOW DO I MAKE SURE THAT A PRO BONO MATTER I ACCEPT DOES NOT ‘BLOW OUT’? WHAT DO I DO IF IT DOES?
Some firms set a budget for each pro bono matter that is approved, taking into account the estimated time to be spent on the matter. The matter can then be managed and monitored to avoid budget ‘blow-outs’ in the same way as a commercial matter is managed. Strategies include budgeting the matter in stages and reviewing each stage before approving the next stage; appointing a supervising partner who is responsible for the budget and who works with the pro bono manager to manage the matter; assigning the work to lawyers who have, or can quickly acquire, relevant expertise; applying for a budget increase if it becomes apparent that more work is required.
If a matter does exceed budget, the supervising partner and pro bono manager should set priorities to complete the matter as efficiently as possible. It is important at all stages of a matter to communicate clearly with the client regarding the agreed scope of work. See 1.8.2 Budgets for pro bono practices.
4.11 DEALING WITH CLIENTS
HOW DO WE ACCOMMODATE PRO BONO CLIENTS FROM NON-ENGLISH-SPEAKING BACKGROUNDS?
If language issues are identified at any stage of the matter, a professional interpreter should be used. Where a Community Legal Centre or Legal Aid Commission is involved, an interpreter service may be available at no cost to the firm; otherwise, the pro bono budget may need to bear the cost. See 1.14.4 Working with clients requiring interpreters.
A PRO BONO CLIENT IS NOT FOLLOWING THE FIRM’S ADVICE. WHAT SHOULD I DO?
The risk of this happening will be minimised if the basis on which the firm is acting appears in the letter of engagement. If the client is acting against the firm’s advice, it is important to confirm that the client understands the advice being given, and the consequences of disregarding that advice before any further steps are taken. See 2.1.5 Letters of engagement.
Criteria for terminating the engagement should also be included in the letter of engagement (see 2.1.5 Letters of engagement), and approval processes for doing so spelt out in the firm’s pro bono policy or procedures: see 1.3.2 Content of a pro bono policy.
A PRO BONO CLIENT IS GIVING OUR STAFF A HARD TIME. WHAT CAN I DO ABOUT THIS?
It’s important that lawyers doing pro bono work understand they may encounter clients who have particular needs, or who are behaving in a challenging way. Particular training and/or skills may be required to equip lawyers deal appropriately and effectively with these clients, while remaining resilient. Staff in Community Legal Centres and Referral Organisations often have substantial experience in this area. See 1.14.2 Dealing with particular client needs and 1.14.3 Self-care and resilience.
4.12 PART-TIME PRO BONO MANAGERS
I AM A PART-TIME PRO BONO MANAGER. HOW DO I BALANCE THE COMPETING DEMANDS OF COMMERCIAL WORK AND PRO BONO WORK?
It partly depends on how your time is credited. It helps if the pro bono policy enables you to record time spent on pro bono matters as if they were commercial matters, or if it provides fee relief for time spent on pro bono matters or on administration.
In any case it is often a challenge balancing the demands of a pro bono practice with a commercial practice. It may help to make use of time management techniques such as creating task lists, prioritising urgent tasks, scheduling non-urgent tasks and delegating wherever possible. In addition, ensure you regularly review the amount of time the practice requires as it grows and develops. Regular communication with managing partners and other senior firm staff regarding your workload is critical.