This chapter focuses on what drives small firms to undertake pro bono legal work and how to encourage small firm pro bono. More information for lawyers from small firms who are interested in doing pro bono work can be found at Chapter 2.2 I am a small firm or a sole practitioner.
Small firms and sole practitioners make a significant contribution to pro bono, with many individual practitioners and smaller firms traditionally undertaking pro bono legal work as part of their daily practice and many individual lawyers from small firms volunteering at CLCs. Some accept referrals through pro bono referral schemes such as the Law Institute of Victoria Legal Assistance Scheme1 or the New South Wales Law Society’s Pro Bono Scheme.2
For example, Conditsis Lawyers is a small firm of around 7–10 lawyers with offices in Gosford, Newcastle and Sydney on the NSW Central Coast, providing legal services in a wide range of areas including criminal law, family law, traffic law, wills and estates and commercial leasing. The Director of Conditsis Lawyers, Manny Conditsis, is a NSW Law Society accredited specialist in criminal law. He and several other lawyers at the firm undertake pro bono legal work from time to time, some of which is fairly substantial.
Manny identified several reasons why lawyers in small firms undertake pro bono:
• The practitioner is doing well and wants to give back.
• The business is going through a quiet patch and pro bono gives them something positive to do (which maintains skills and may bring in business through positive publicity/word of mouth).
• Doing pro bono helps to train young lawyers in ‘irregular’ areas of work.
• There are marketing/PR benefits to the firm of becoming better known in the jurisdiction and the community, and getting to know other practitioners who practice in a particular area.
These factors should be taken into account by small firms aiming to increase the pro bono participation of their lawyers.
11.1 SMALL LAW FIRM PRO BONO: AT A GLANCE
Features of effective small firm pro bono
Lawyers who undertake pro bono legal work in small firms are likely to be doing it for very personal reasons, and to be very committed to it. Unlike their colleagues in large firms, lawyers in small firms are often not paid for the pro bono work they do.
When we do pro bono we make a conscious decision to do work for free or to discount. It is involvement at a different level to a lawyer at a large firm who is being paid to do it. It is money coming out of the business, out of my kids’ mouths. My wife has to be happy with it. (Small firm principal)
My experience of trying to network with pro bono lawyers and pro bono coordinators from large firms was that most of them could not really relate to what my firm was doing as a small firm. I felt like the pig with the ham, while the large firm pro bono coordinators were chickens with eggs. In a bacon-and-egg breakfast, the chicken is involved but the pig has to be totally committed! (Small firm principal)
In a small firm it is more likely that the work will be within the core skills and experience of the lawyer undertaking the work. Small firm lawyers are likely to have expertise in areas of high unmet legal need that large firms do not normally have, such as family and criminal law.
Small firm lawyers have expertise in the areas of law that impact on ordinary people’s lives. (Small firm principal)
Small firms are part of the community and involved in local issues. They can identify and respond to needs at this level. For example, the Solicitor Director at Phang Legal, Ern Phang, was involved in his local community’s response to recent violence, delivering presentations with the police and other services on law and justice issues.3
The capacity of small firms to take on pro bono work is much more limited than that of larger firms, especially if at times the focus needs to be on maintaining financial viability.
It can be financially difficult and a drain on the resources of the firm. Small firms are not in a position to take on a lot of pro bono as they cannot afford it commercially. (Small firm principal)
Small firms need to keep the dollars rolling in and a week or two with nothing coming in makes it very difficult. (Small firm principal)
Aspects of the business case for pro bono that are compelling to larger firms (for example, that pro bono provides unique opportunities to market the firm, enhance its corporate image and thereby generate new business) do not necessarily apply in the same way to small firms. For example, Ern Phang explained that receiving a Law and Justice Foundation Justice Award in 2010 had a mixed effect for his firm, Phang Legal, as a business. ‘The firm was inundated with calls from people wanting free legal services as the Award gave people in the community the impression that the firm did a lot of free legal work, when in reality pro bono is only a small part of the work of the firm. While it did contribute to some increase in brand awareness, it really did not lead to any significant boost in fee paying business for the firm.’
If individual lawyers in a small firm do not personally prioritise community service values, there is little else to motivate them to undertake pro bono. While I promote the culture and encourage others to not just be committed but apply themselves, its not and never will be 100%. (Small firm principal)
While small firms are less able to absorb risk than larger firms, the risk they bear is the same when they are assisting pro bono clients. The principal at King Legal, Greta King, explained that in her experience pro bono clients are generally much more demanding than paying clients. ‘I try to take quick matters rather than a full conflict but a recent case involving a personal AVO took two full days in court and many phone calls. Pro bono clients call at all hours.’
Pro bono clients can make many complaints to the law society and this can lead to unwarranted claims on the firm’s insurance, which leads to an increase in insurance premiums. Larger firms can absorb the risk and are also less likely to be undertaking pro bono work for individuals in the way that small firms do because they don’t have expertise in those areas of law eg, family law. (Small firm principal)
The risk of conflicts can be particularly problematic for small firms, with many having no way to manage conflicts that may arise when their lawyers are providing advice at a CLC and outside the firms internal conflict checking processes. If we give up time to volunteer at the CLC, but in doing so end up conflicting ourselves out of paid work we burn the candle from both ends. While it would theoretically be less risky for our lawyers to volunteer at a CLC outside the local area, this would also be less convenient and involve a greater time commitment than the business can afford. (Conflicts may not be such a problem for other small firms, especially for sole practitioners or where the business owner is personally involved in the CLC work.) (Small firm principal)
Small firms have fewer resources with which to perform a means and merits assessment, especially when they receive a large volume of pro bono requests. Ern Phang explained that many people who request pro bono assistance from his firm have the resources to pay for legal services, but do not want to pay, so it is essential that an effective means and merits assessment is made.
Less experienced lawyers face the challenge that they might not have the expertise to run a matter on their own, and they may be reluctant to ask other practitioners to give up their time to assist.
There is a very competitive and adversarial culture amongst small firms which means there are very few lawyers to brainstorm with, so small firms will generally only take on matters which are a match with their core expertise so they can do it on their own. They also do not want to put another practitioner in the position of losing money by taking on a pro bono matter. Small firm pro bono culture is different from large firm pro bono culture. (Small firm principal)
Pro bono coordinators/lawyers at large firms do not have the same level of personal investment in the firm that small firm lawyers have, and this makes it easier for them to collaborate. The collaborative pro bono culture that exists amongst the pro bono coordinators/lawyers of large firms does not exist between the lawyers of small firms that have to compete against each other to survive. For example, they are unlikely to share information on what kind of matters they are doing or marketing plans. This makes it challenging to take a holistic approach to clients’ problems and refer out discrete parts of their issue. (Small firm principal)
The lack of professional networks that support small firm pro bono legal work has impact beyond limiting the capacity of small firms to undertake pro bono work to their areas of expertise. It also means they may be unaware of the existence of pro bono opportunities beyond the requests they receive directly to provide advice and representation in-house.
There would be much more interest from the legal profession in the Law Society Pro Bono scheme if it were better resourced to make quality referrals and to promote its existence. (Small firm principal)
PILCH [now Justice Connect] has had problems attracting and retaining small firms as members, as their programs seem to be designed to support the pro bono work of large firms. When it came to renewal it was deemed to have no or little benefit and so we didn’t renew. (Small firm principal)
11.2 FEATURES OF EFFECTIVE SMALL FIRM PRO BONO
To increase pro bono participation within small firms, it is important to appeal to individual lawyers’ personal sense of social justice and build a culture within the firm to assist the community, given that this motivation is the primary driver for their lawyers to undertake pro bono. However, it is also important to target firms that have the capacity to take on unpaid work.
We have avoided scope creep by being very clear when defining what pro bono assistance the firm will provide and how it will be provided (clients may be asked to cover some expenses but charged at a Legal Aid rate or lower). (Small firm principal)
The nature of pro bono and the under-resourcing of many schemes (which may be staffed by volunteers or students) means that some of the referrals that the firm receives from the Scheme are found to be unsuitable when the firm conducts its own assessment. (Small firm principal)
The quality of pro bono cases is always quite poor because they are the cases that nobody else wants. The files are the thickest. The clients call the most. They have already been to a couple of other firms and run out of funds. However, this doesn’t mean they don’t have a good case. (Small firm principal)
Another benefit of running cases with/through the Law Society Pro Bono Scheme is that it fits within the normal 9–5pm office, in contrast with CLC volunteering or other pro bono work that might involve working outside of work.
Those consulted in small firms agreed that contributing to community legal education (CLE) may be a good place for small firms to start doing pro bono work, because it allows the firm to control the resources it commits to pro bono, there is little risk of conflicts, and because it benefits numerous people at once rather than an individual who receives legal advice. Ern Phang said that he has encouraged his staff and others to contact local community groups to see if the firm can help. For example, lawyers from Phang Legal have delivered CLE presentations on wills and estates at the Granville Men’s Shed,4 and to a Chinese-speaking audience at Auburn Library. See also the case study on Phang Legal and Harris Park Community Centre in at 29.4.1.
Australian Pro Bono Centre, Australian Pro Bono Manual (3rd edition), LexisNexis, Sydney, 2016, Chapter 1.16 A Small law firm perspective.
5 G McAllister and T Altobelli, Pro bono legal services in Western Sydney, (November 2005) University of Western Sydney and the Law and Justice Foundation of NSW at 28, cited in Mapping Pro Bono in Australia, National Pro Bono Resource Centre, 2007, p 15, probonocentre.org.au/wp-content/uploads/2015/09/NPBRC_mapping_book_web.pdf.
6 G McAllister and T Altobelli, above n 5, at 23, cited in National Pro Bono Resource Centre, mapping Pro Bono in Australia, above n 5, p15. probonocentre.org.au/wp-content/uploads/2015/09/NPBRC_mapping_book_web.pdf