The Pro Bono Report: A business necessity

Pro bono work has been at the mantle of some successful law firms for more than 100 years. But it's only recently THAT the practice has moved from a scattering of voluntary hours across the firm…

Promoted by Lawyers Weekly 06 June 2008 Big Law
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Pro bono work has been at the mantle of some successful law firms for more than 100 years. But it's only recently THAT the practice has moved from a scattering of voluntary hours across the firm to an organised front; a necessary means to remaining competitive and responsible. Angela Priestley reports.

To some, it may seem like an ideal tarnished by cynicism, but it's difficult to deny the fact that everyday individuals, community groups and not-for-profits are assisted by the voluntary hours of commercial lawyers.

It might be a Freehills lawyers at Mission Australia, an Allens lawyer at a mental health legal centre, or assistance with an AVO from Gilbert + Tobin CompanyName,1041 . Name any prominent Australian not-for-profit and chances are that some of the country's top firms will have offered their hours for free.

But when considering the billable hours a top-tier firm clocks up, and the associated dollars that are being charged out to clients, it would seem a ridiculous proposition for a law firm not to give back.

Lawyers are a privileged few: in their opportunities, their reputations and their salaries. They also belong to a profession with a skills set to help a disadvantaged individual or an organisation existing for the greater good of society.

It's a sentiment shared across many leading firms: "We're in a privileged position to have legal qualifications, there's a will and a moral obligation to assist our community with those skills," says Nicky Friedman, national co-ordinator of pro bono and community programs at Allens Arthur Robinson CompanyName,1 .

At Baker & McKenzie CompanyName,11 , Jennifer McVicar, director of pro bono and community services, puts pro bono at the heart of a lawyer's career: "It's a fundamental professional responsibility of every lawyer," she says. "As part of that, we want every lawyer to view it as part of their obligations."

A competitive spirit

To uphold a social responsibility it seems essential for a leading law firm to commit to some form of pro bono work. Increasingly, though, a firm's reputation is beginning to depend on it, with the business development arm becoming reliant on declaring their firm's involvement in the community when bidding for work.

In Victoria, the competitive necessity of pro bono work has been enshrined by a mandate of the Victorian Legal Services Panel. The panel selects firms for state-based legal work, and now declares that law firms bidding for work commit to providing the equivalent of 5 to 15 per cent of their fees from government to pro bono legal services.

Nic Patrick, pro bono director at DLA Phillips Fox CompanyName,58 , says that although his firm had to change little to comply with the scheme, he sees it as a positive step for assisting firms in getting their pro bono work in order.

"I support it because there are a lot of firms that don't have a structured pro bono program ... there is definitely a gap between those firms that are doing something and those that are doing not much," he says Meanwhile, a wave of reforms at the Federal Government level on improving Commonwealth purchasing services has seen the Attorney General commit to further amendment to the Legal Services Directions to ensure that firms undertaking pro bono work against the Commonwealth are not discriminated against by Commonwealth agencies in procurement.

The Victorian idea appears to have been a successful push for pro bono work throughout the state and Anne Cregan, pro bono partner at Blake Dawson CompanyName,12 believes the same could be achieved nationally if pro bono was a requirement of the Commonwealth Government's legal services panel.

"The Victorian Government's pro bono requirement for panel firms was a key force behind the introduction and growth of pro bono programs in firms in Melbourne and nationally - and a pro bono requirement by the Commonwealth Government could build on that," she says.

Cregan notes that another idea could be for the Commonwealth to simply require firms on its panel to commit to the National Pro Bono Resource Centre's aspirational target - which currently stands at 35 hours.

"This will likely increase the amount of pro bono work by a number of firms on the Government's panel and will send a message more broadly on what the Commonwealth sees as the level of pro bono work firms should aspire to," Cregan says.

But outside of government, pro bono work also appears to be fast becoming a prerogative of any pitch for business.

Freehills CompanyName,25 Foundation executive director Annette Bain says the request for information on pro bono work on tenders has become increasingly common. "A few years ago a couple of tenders may have asked: 'Do you do charity work?' but they wouldn't seek the details," she says.

"Recently I've heard of, but not seen, tenders asking details on what each partner does, and how they measure the impact of the program."

And although the hours are technically un-billable, it seems that the highest levels of management in a firm are increasingly keen to get involved.

Mitchell Mathas, partner and national pro bono co-ordinator at Deacons CompanyName,19 , says when he pitched a proposal to establish a commitment to a homeless persons' legal centre in Kings Cross, he was astounded by the immediate response: "It surprised me that I didn't get asked a whole range of questions, I was instead told to 'make it happen'. It showed me the board here is very much behind our pro bono commitment."

Harmonising the response

At a senior management level, firms are working to better organise their response to pro bono work. In the last five years, most top-tier firms have moved to employ at least one person fulltime in a national co-ordinator of pro bono work capacity.

Through the deployment of co-ordinators, some firms, such as DLA, have seen their pro bono practices reach new levels of co-operation within the firm - with a sophisticated and reported ability to document the hours put in.

"There was a lot of pro bono going on across the firm but nobody knew what anybody else was doing," says Patrick. "It was not being done in accordance with a policy. It's now a much more sophisticated program and, as a result, we're doing much more now than we were."

However, according to the results of a survey of NSW law firms by the National Pro Bono Resources Centre and NSW Young Lawyers, firms are not committing to the cause of pro bono work as much as they could be.

Even with the push to employ people into a permanent pro bono co-ordinator role, it's rare to find a firm that has made pro bono work compulsory.

Of the 22 firms surveyed that indicated they have a formal written pro bono policy, only one firm - Clayton Utz CompanyName,15 - said that pro bono work was a mandatory requirement. Meanwhile just five of the firms are signatories to the national Pro Bono Aspirational Target.

That's not to say that the work is not looked upon favourably: 13 of those firms surveyed said pro bono work was recognised as part of a lawyer's billable hours as well as in annual performance reviews.

Another four counted it as just billable hours and considered it only in performance criteria during annual reviews. One firm -which is more than likely not alone in this practice - counted pro bono work as neither billable hours nor a credit in annual performance reviews.

Extending beyond the firm

Law firms may appear to have a better opportunity to assist the disadvantaged than other industries, but Freehills Foundation's Bain maintains that it's only a co-ordinated response - across law firms, other industry sectors, and the government - that can truly make a lasting difference.

"We need to have more cost-sector innovation and draw on different strengths to add value to what you get from community, government and the commercial sector - [to strengthen] its different skill sets and resources," she says.

That means also working with competitors - other law firms - to co-ordinate an effective response. Collaboration, it seems, is already well and truly under way in the top-tier firms.

McVicar says: "While all these firms are competing for paid work, we co-operate with other firms [on pro bono]. So we do have detailed knowledge as to what we're doing so we can share information on disadvantaged people."

Some firms are ahead of others but, judging by the enthusiasm behind the initiatives led by some of the individuals Lawyers Weekly discussed pro bono work with - as well as the very real business case that's emerging - growth in the pro bono practice of law firms can only be expected to flourish further in the years to come.

- Angela Priestley