This section focuses on what drives in-house/corporate lawyers to undertake pro bono legal work and how to encourage their involvement. More information for in-house/corporate lawyers who are interested in doing pro bono work can be found at 2.4 ‘I am an in-house/corporate lawyer’.
Like lawyers working in law firms, in-house lawyers are motivated by a variety of factors to undertake pro bono legal work. These factors include the sense that it is part of their professional responsibility as lawyers and a strong personal belief in the importance of social justice and access to justice.
In-house lawyers undertake pro bono for the same reasons that lawyers in firms do, primarily because they want to give back. They are fairly well remunerated for their work, and want to contribute to the community. Many study law with the idea that they will save the world, but don’t exactly end up doing that when they work in the corporate sector. Doing pro bono is a way to reconnect with those law school aspirations! (In-house counsel)
However, as the late Esther Lardent argued, ‘while the business case for pro bono service at in-house legal departments is different from that at major firms, it is equally clear and compelling’.1 Structured, well-implemented programs aligned with the organisation’s strategic goals and culture can benefit the organisation’s operations as a whole including the legal department. They can improve recruitment and retention of staff, and bring a sense of corporate social responsibility/corporate citizenship, opportunities for professional development, better integration with the company and the community, improved teamwork and morale, improved inside/outside counsel relationships, and improved company reputation.2
One of the benefits of in-house pro bono is that it can leverage and deepen corporate relationships. (In–house counsel)
In recent years, pro bono projects are becoming more popular among in-house legal teams in Australia. This is consistent with the US experience where the number of in-house pro bono legal projects has substantially increased over the past eight years.3 For example, Telstra provides organised opportunities for its legal team to undertake pro bono, including the Cyber Project with the National Children’s and Youth Law Centre, the Artists in the Black project with the Arts Law Centre of Australia and participating in the Salvos Legal In-house Pro Bono Desk.
Informal sources estimate, however, that while in-house lawyers (including corporate lawyers) make up as much as 25–30% of the Australian legal profession, they currently contribute a relatively small part of the pro bono legal movement.4
Referral organisations such as Justice Connect (in NSW and Victoria)5 and QPILCH (in Queensland)6 continue to develop opportunities for their corporate/in-house members including partnerships with not-for-profit organisations, projects, case referrals, secondments, and opportunities to donate financially. Justice Connect’s In-house Counsel Discussion Forum, which meets several times a year, offers opportunities to learn from the experience of other corporate lawyers and identify new pro bono opportunities.
If an in-house lawyer wishes to do other forms of pro bono legal work, which are not covered by professional indemnity insurance provided by their employer, they can apply to the Centre for professional indemnity insurance cover under the Centre’s National Pro Bono Professional Indemnity Insurance Scheme.7 The Scheme’s policy, which only applies to in-house and government lawyers seeking to do pro bono legal work, is underwritten by LawCover and insurance is provided for approved pro bono projects free of charge. At the time of writing volunteer practising certificates are available in all jursidictions except the Northern Territory and Tasmania, but the requirement varies from state to state.8
Some in-house teams find it beneficial to partner with a law firm (to whom they outsource legal work) on pro bono projects. An example is the National Children’s and Youth Law Centre’s Cyber Project, in which lawyers from King & Wood Malleson, Telstra and ASIC work together to provide written advice to children and young people on issues such as cyber-bullying.9 In another example, in-house lawyers at Westpac collaborate with lawyers at Gilbert + Tobin on the Homeless Persons Legal Service Roster at Matthew Talbot Hostel.
Recent changes to professional indemnity insurance and practising certificate requirements mean that, in every jurisdiction except Tasmania and the Northern Territory, corporate lawyers are permitted to do pro bono legal work, although the law societies’ specific requirements vary. In the NT, government lawyers, but not corporate lawyers, can do pro bono work. Full details are set out on the Centre’s website.10
If an in-house lawyer provides pro bono assistance through a CLC, the professional indemnity insurance arrangements of that CLC may cover the lawyer’s pro bono work.
CLCs are looking for ways to encourage corporate lawyers to do pro bono work and tap into the resources of corporate organisations, especially now that legislation in Victoria has removed a barrier to in-house corporate lawyers doing pro bono work. (CLC manager)
- 15.1 In-house/corporate pro bono: at a glance
- 15.2 Benefits
- 15.3 Challenges
- 15.4 What has worked well
- 15.5 Case studies
15.1 IN-HOUSE/CORPORATE PRO BONO: AT A GLANCE
• There is a real opportunity to grow the capacity of pro bono with the removal of barriers to the participation of in-house lawyers.
• The pro bono culture of in-house legal teams is often less well-developed than in law firms.
What has worked well
• Finding pro bono work that can be contained to a relatively small and manageable time commitment.
There is a real opportunity to grow the capacity of pro bono with the removal of barriers to the participation of in-house lawyers, especially given the match of the skills and experience of corporate lawyers with the needs of many not-for-profit organisations.
From the perspective of law firms, partnering with their corporate clients in pro bono projects can be a good way to strengthen their relationship with those clients.11
Involving clients in the pro bono work of the firm further embeds the pro bono culture as it demonstrates how pro bono can be a touch point for other relationships. (Large law firm pro bono coordinator)
Collaborating with a law firm also gives the in-house legal team access to projects and pro bono opportunities that they’d otherwise lack the resources to identify or take up.
The pro bono culture of in-house legal teams is often less well developed than in law firms where pro bono programs are well-established, and participation is well promoted and recognised, even expected. In-house teams also have smaller numbers of lawyers than large firms.
Having come from a large law firm with a developed pro bono practice, it was frustrating to join an in-house legal department that did not provide structured opportunities to do pro bono work. (In-house counsel)
In-house lawyers don’t have the same compulsory pro bono targets that large law firm lawyers have driving them to do pro bono, so they need to be personally interested in it. (In-house counsel)
There are always lawyers ready to put their hand up to volunteer. The challenge is managing the resources. (In-house counsel)
Fiona Robson (Supervising Counsel, Telstra Software Group & Telstra Ventures) explained that many lawyers choose to work in-house for a better work-life balance than they would get in a large firm, so there may be less capacity for them to undertake additional work.
Having more limited capacity for taking on extra work can make it more difficult for in-house lawyers to find suitable opportunities.
A lot of volunteer organisations are looking for full-time secondments, which is a big commitment for an in-house team. For example, Salvos Legal Help Desk is keen for lawyers to meet the National Pro Bono Aspirational Target of 35 pro bono hours (per lawyer per year) by spending a week on the Desk; however, obtaining approval from senior management to be away from work for an entire week is not easy. A large law firm can send someone if they are not too busy for a period and this will be apparent by their lack of billable hours, but in a corporate environment, lawyers are expected to be busy all the time and nobody would ever want to say that they are not busy. (In-house counsel)
While there is often a strong match between the skills of in-house lawyers and the needs of not-for-profit organisations, other pro bono projects may involve areas of law that are unfamiliar, and training may be required.
Conflicts of interest can also be an issue, and conflicts and corporate reputation issues need to be carefully considered and managed. Some areas of pro bono work may be less attractive to in-house pro bono teams, due to perceived reputation issues, for example, work involving prisoners or refugees.
15.4 WHAT HAS WORKED WELL
Given that in-house legal teams may have limited capacity to take on extra work, pro bono legal work that can be contained to a manageable time commitment may be most appropriate. Individual in-house lawyers, for example, may be able to volunteer at a CLC’s evening advice session.
Offer a variety of different types of pro bono work that meets the needs of in-house counsel. These might include one-off opportunities as well as the opportunity to contribute in an ongoing way. (In-house counsel)
Where in-house legal teams are considering or involved in more structured pro bono programs (in partnership with a law firm, for example) careful planning can avoid problems arising. The issues to be considered could include recruiting appropriate in-house lawyers who are motivated to participate in pro bono, having a dedicated contact point to coordinate the pro bono work and manage the relationship with the law firm, managing conflicts of interest, and providing training and support for the in-house lawyers involved in pro bono.
Having a partnership with a large law firm can make it easier for in-house lawyers to undertake pro bono as they have someone to ask when they have a question, for example, about disability. Lawyers in law firms have broader access to specialists who they can turn to when they have questions. (In–house counsel)
As with law firms, management support for the pro bono work undertaken by in-house lawyers is vital to its success. For example, in his role as General Counsel at IBM Australia/New Zealand, Tony Serone explained that the global push for IBM law departments to make contributions to the community made it easier to develop a pro bono program (see case study at 15.5.2). Similarly, Fiona Robson explained that having the support of Telstra’s Group General Counsel for pro bono work to be undertaken within work hours had a strong impact on the growth of its pro bono program (see case study at 15.5.1).
Setting up a pro bono committee of interested lawyers to drive, manage and champion the corporate pro bono program is a great idea, but such a committee needs to have senior legal management involvement to ensure effective penetration. (In-house counsel)
Aligning pro bono work with corporate interests and programs can help to encourage support for it. One example is Telstra’s participation with the Arts Law Centre of Australia’s ‘Artists in the Black’ project, which dovetails with their sponsorship of the National Aboriginal and Torres Strait Islander Art Award (NATSIAA).
Law firms with pro bono practices can help to further expand the amount of pro bono work undertaken by in-house lawyers by encouraging their corporate clients to undertake pro bono work, and promoting opportunities.
Many large companies, like Telstra, have initiated pro bono programs now and this gives CLCs an opportunity to present to those companies’ pro bono coordinators or legal teams about the benefits of volunteering. Corporate lawyers are busy people who perhaps don’t always have enough time to proactively investigate pro bono opportunities. However, if someone can come along and explain to them how easy it can be to make a small but important pro bono contribution by volunteering regularly at a CLC, I am sure that more people would sign up. (Fiona Robson, Supervising Counsel, Telstra Software Group and Telstra Ventures)
15.5 CASE STUDIES
- 15.5.1 Telstra, King & Wood Mallesons and the National Children’s and Youth Law Centre
- 15.5.2 IBM Australia/New Zealand and Ashurst
15.5.1 Case study: Telstra, King & Wood Mallesons and the National Children’s and Youth Law Centre
Fiona Robson, Supervising Counsel — Telstra Software Group and Telstra Ventures, explained that in 2007, along with one of her colleagues, she was keen to set up a pro bono program within Telstra and approached law firms on their panel, namely Ashurst and King & Wood Mallesons (K&WM) to discuss what would be involved. They realised it would be difficult for Telstra to run a pro bono program on its own since its in-house team was not administratively resourced to deliver pro bono programs and manage the relationships with community partners.
They decided that it would be more realistic to ‘piggy-back’ off one of the law firms’ programs, giving Telstra’s lawyers the opportunity to participate in pro bono work, with limited administrative impact on Telstra. They would not need a dedicated pro bono coordinator to manage relationships with the organisations they were helping.
In 2008, they also joined Ashurst’s LEAPS (Lawyers Encouraging & Assisting Promising Students) project, which involved mentoring students in disadvantaged schools at risk of disengaging from school or family. Telstra now runs its own LEAPS project — separate from Ashurst. K&WM offered a few options for projects but the Cyberlaw Volunteer Project with the National Children’s and Youth Law Centre (NCYLC) suited Telstra the best.
NCYLC offers online legal advice to children and young people through their Lawstuff website and LawMail. Telstra legal employees participate as cyber-volunteer lawyers who update and maintain the Lawstuff website, and read and respond to LawMails. They volunteer two hours each month either from their desk or in the office at the nearest K&WM office (For more information about the NCYLC Lawmail and Lawstuff projects see the full case study at 26.5.1).
The NCYLC Cyberlaw Project is the perfect pro bono program for an in-house legal department. (Fiona Robson)
The project has worked well for Telstra for the following reasons:
- The time commitment of around two hours a month is relatively small and manageable for all lawyers — particularly those working part-time.
- The work can be done via the internet. NCYLC and K&WM like volunteers to do their first five sessions onsite in their training room so they have face-to-face support while they are becoming familiar with the work, but after that, the work can be done remotely. ‘The flexibility of being able to work remotely and not having to travel to the K&WM offices makes a big difference to my ability to do the work. I can even take a meeting in the middle of a session if I have to.’
- The work is very interesting and important. It involves issues ranging from family violence to online harassment and employment. The volunteers are exposed to new areas of law, which expands their skills and experience, and they find it rewarding and enjoyable.
- Conflicts of interest are addressed upfront with a policy explicitly agreed on before commencing work. ‘The Telstra lawyers don’t take on any matters that could potentially involve telecommunications companies (for example, a young person disputing their mobile phone bill) but they may give information or assistance to another lawyer handling that query — eg about the process of complaining to the Telecommunications Industry Ombudsman.’
- There is great support from NCYLC who provide guidance, pro forma advice, and Lawstuff resources that assist the volunteers when they are drafting responses. There is a quarterly meeting with the project partners to discuss how the project is going. NCYLC provide excellent feedback, including the results from a children’s survey with positive feedback on the impact the advice has had on them.
- The project is national so Telstra employees in every jurisdiction can become involved.
- Telstra’s Group General Counsel, Carmel Mulhern, has supported the program and has endorsed the work being done within work hours. Ms Mulhern has also enthusiastically supported the creation of the new Telstra Pro Bono Committee that was set up in 2012 which is actively looking for new pro bono opportunities. Building on the success of the NYCLC partnership. Telstra has developed a dedicated pro bono program which involves other law firms and community legal centres and other workstreams.
15.5.2 Case study: IBM Australia/New Zealand and Ashurst
A relationship between the legal department at IBM and Ashurst developed in 2010. At that time, IBM’s law department had around 18–20 lawyers. The partnership involved IBM lawyers participating in Ashurst’s existing pro bono projects where there was a natural fit and interest from the lawyers involved, initially in the areas of estate planning for people with disabilities and victims of crime compensation.
IBM has always had a strong pro bono ethos, but the project was particularly supported in the context of celebrating IBM’s centenary, there was also a strong push for law departments across IBM globally to provide at least an eight-hour (per person, per year) commitment to community projects.
The project ran for around six months, but ‘never really got off the ground’.
- The lawyers at IBM were reluctant to undertake pro bono work involving unfamiliar areas of law. While some training was provided, the experience of the IBM lawyers was not aligned with the legal needs arising from the projects.
- The lawyers at IBM were at a stage in their career where it seemed difficult for them to commit to pro bono. In particular, they all had five to seven years’ experience and were at the stage equivalent to the time when lawyers in private practice are looking for senior associate or partnership positions.
- The contact points at both IBM and Ashurst did not have the time to commit to coordinating the project. Tony Serone (then General Counsel at IBM Australia/New Zealand) was relying on a deputy to manage the pro bono work and recalled that. ‘Pro bono work in this context can be very messy and requires dedicated coordination resources “pushing at both ends”.’
Applying lessons learned
After participating in the partnership with Ashurst, Tony Serone identified features of a successful pro bono partnership:
- Recruiting appropriate in-house lawyers to participate in pro bono. After the initial project period of six months, IBM hired 12 Australian law graduates to support IBM in the Asia–Pacific region. The new recruits also spoke another Asian language. Tony explained that the graduates were keen to have a broader experience, hungry to learn and many had already been involved in pro bono as part of their university training. ‘It may just be my personal observation, but it is these young lawyers who have the most passionate interest in social justice.’
- Having a dedicated contact point at both ends who has the time to coordinate the pro bono work and manage the relationship.
- Training and support for in-house lawyers involved in pro bono. Lawyers in private practice have broader access to specialists who they can turn to when they have questions. This is where a partnership with a large law firm can make it easier for in-house lawyers to undertake pro bono as they have someone to ask when they have a question.
- Supportive management. At the time of the project there was a global push for IBM law departments to make contributions to the community (although Tony explained that this was easier in the US where contributions to charity are included).
1 E Lardent, The Business Case for In-house Pro Bono, Pro Bono Institute, 2013, p1.
2 E Lardent, above n 1.
3 DLA Piper, The Australian In-house Legal Counsel Pro Bono Guide (August 2013) p 5, http://probonocentre.org.au/wp-content/uploads/2015/08/Australian-In-House-Legal-Counsel-Pro-Bono-Guide.pdf.
4 J Corker, ‘Government Lawyers and Pro Bono Legal Work’, paper given at the Public Sector In-House Counsel Conference 2012, 30–31 July, Canberra ACT, p 1, http://probonocentre.org.au/wp-content/uploads/2015/09/Government-Lawyers-and-pro-bono-legal-work-August-2012.pdf.
5 Justice Connect, In-house counsel pro bono work, https://www.justiceconnect.org.au/get-involved/lawyers-and-barristers/house-counsel-pro-bono-work.
7 Australian Pro Bono Centre, National Pro Bono PI Insurance Scheme, Australian Pro Bono Centre http://probonocentre.org.au/provide-pro-bono/pi-insurance-scheme/.
8 DLA Piper, The Australian In-house Legal Counsel Pro Bono Guide (August 2013) p 5, http://probonocentre.org.au/wp-content/uploads/2015/08/Australian-In-House-Legal-Counsel-Pro-Bono-Guide.pdf.
10 Australian Pro Bono Centre, For in-house lawyers and legal teams, http://probonocentre.org.au/provide-pro-bono/in-house/.
11 E Lardent, above n 1, p 4.