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Disparate takes on a professional responsibility

Disparate takes on a professional responsibility

Firms have vastly different approaches when it comes to getting lawyers involved in pro bono matters, Clare Buttner reportsA RECENT nationwide survey of nearly 900 lawyers carried out by the…

Firms have vastly different approaches when it comes to getting lawyers involved in pro bono matters, Clare Buttner reports

A RECENT nationwide survey of nearly 900 lawyers carried out by the National Pro Bono Resource Centre indicated there was a strong desire among lawyers for pro bono work to count towards billable and financial targets.

At some firms this is already the case, but at others pro bono doesn’t receive any quantifiable recognition.

The full survey results will not be released until September this year, but the centre’s director, John Corker says this was one of the stand-out concerns. Examples of responses included:

My firm supports pro bono work so long as my billable hours do not change.

“The firm I work in makes statements about its support for pro bono work but the leader of my practice group won’t support any pro bono work that I did. My practice group is very stuck on its financial targets to the extent that if I spent anytime doing pro bono I would need to make up those hours by working weekends or later nights.”

Similarly, an anonymous lawyer from one Sydney firm told Lawyers Weekly she feels pressure to spend extra time on commercial work if a pro bono matter starts cutting into her work hours on an ongoing basis.

“We have a financial target which is based on us making the minimum number of billable hours a day. That means although firms support non-billable work including pro bono, the more of that you do, the more you’re going to have to explain not meeting your financial target for the year,” he says.

Minter Ellison, Baker & McKenzie and Blake Dawson Waldron are some of the firms giving lawyers fee credits for hours spent on pro bono. Anne Cregan, national pro bono coordinator at Blake Dawson Waldron says this is to make it easier for lawyers to spend time on pro bono work.

“We try to make it easy for them. They all get billable hours credit and fee credit in the same way they do for commercial work,” she says.

At Clayton Utz and Freehills lawyers don’t get fee credits but their pro bono coordinators say their pro bono work is still visible.

“It’s something which appears with value on people’s timesheets. It looks like any other file. It’s different for each firm and we don’t have a billable target that’s reported to people. We just have an hours component and it’s counted in that. But if the question is, does it count as part of lawyers financial performance? The answer is, yes it does,” says David Hillard, pro bono partner at Clayton Utz.

Annette Bain, national pro bono coordinator at Freehills says: “Each of them have targets which they have to fill. From my perspective it’s billable, they get credit for it and there is no loss to the individual or their practice group because they do pro bono work. Do they have to do an extra three or five hours [to reach financial targets]? No.”

In contrast, at Gilbert + Tobin, pro bono work does not count towards billable or financial targets at all.

“There is no credit towards billable hours but there’s recognition in the review forms, there are specific questions, and it counts towards bonuses,” says the firm’s director of pro bono services, Michelle Hannon.

Yet Hannon says the approach the firm had adopted is clearly working, based on the amount of pro bono work its lawyers perform each year.

“If we get this really high rate [of participation] without them being counted towards billables then why would we have to change that?” she says.

Danny Gilbert says the firm’s failure to give lawyers credit towards billable and financial targets did not mean pro bono work was not recognised.

“We do [recognise it] in a loose way, not a scientific way. If someone’s billing performance is not what it should be because they’ve done pro bono we take it into account. If someone’s done a fantastic performance and they’ve also done pro bono we take it into account. We do take it into account but it’s not too formulaic.

“Some people say that we don’t take it into account in a micro-kind-of-way, by converting the number of hours to billable hours, but my god we don’t need to process-manage every damn thing in the place you know.”

Corker acknowledged that while Gilbert + Tobin didn’t count pro bono work towards billable and financial targets, the culture within the firm was a clear motivator for getting staff involved.

“What’s more important than billables or financial targets is in a sense a positive culture about the importance of pro bono work; you know it’s a cultural thing within the firm.

“I think Gilbert +Tobin have a good, strong culture of respect for the obligation to do pro bono work and I think at the end of the day that’s the key thing,” Corker says.

Indeed, many of the firm’s lawyers exceed 35 hours of pro bono work per year — the amount of time lawyers at firms including Gilbert + Tobin, Blake Dawson Waldron and Clayton Utz aspire to under the National Pro Bono Resource Centre’s Aspirational Target.

“We usually surpass that 35 hours. We have lots of lawyers that do more than that,” Hannon says.

Lawyers at Baker & McKenzie have higher individual goals than the Aspirational Target.

“Our target for each lawyer is a minimum 50 hours of pro bono work per year,” says Jennifer McVicar, director of pro bono and community service, at Baker & McKenzie.

Participation in pro bono matters at Baker & McKenzie is also considered a relevant activity in the assessment of performance, including bonuses, and is expected of all employees. Even non-legal employees are encouraged to do community service work.

Similarly, at Clayton Utz, pro bono is expected of all staff, according to Hillard.

“It’s something we expect all our lawyers do, so in that sense if you want to call it compulsory it is. It’s just expected as part of the regular practice of our lawyers.

“We’ve been doing it for 10 years and it’s very much part for the furniture here. In commercial terms over the last decade [pro bono] would be the single largest client that the firm has. We are involved in literally hundreds and hundreds of matters each year. So it’s an accepted part of what the practice is. It’s really expected of everybody and is seen as being part of what is required to be a lawyer at Clayton Utz,” Hillard says.

At Minter Ellison there are no targets for individual lawyers but a target of 1 per cent of the firm’s revenue. Nor is pro bono work compulsory according to Minter Ellison’s national director of pro bono and community investment Anton Hermann.

“Our whole approach to pro bono is that we have always believed that the best way of delivering pro bono is on a voluntary basis. The overall scope of our program is determined through our annual budget process and within that figure, lawyers are able to do as much pro bono as appropriate for them in their circumstances. And those can differ quite markedly. Some people are more able to make themselves available for pro bono depending on practice group and workload. So we don’t feel it’s helpful to dictate how much they should do, rather we encourage them to do as much as they reasonably can do,” Hermann says

At Freehills pro bono is not mandatory but all lawyers are encouraged to take part. Bain says the firm deliberately hasn’t set targets for individual lawyers.

“That’s because we actually don’t want to have an individual ceiling. One of the things about our program is we have lawyers who are doing hundreds of hours and we don’t really want them to drop it. If we had a lower target there might be a problem with some of our individuals accruing so many hours,” she says.

Corker was reluctant to say that any one firm had a better approach to pro bono than another.

“I don’t think we would say either way that one way or another was a good policy,” he says.

However, the survey results due out in September will give some insight into how lawyers rate the differing approaches and Corker’s preliminary analysis suggests lawyers want more formal recognition for time spent on pro bono matters.

Like this story? Read more:

QLS condemns actions of disgraced lawyer as ‘stain on the profession’

NSW proposes big justice reforms to target risk of reoffending

The legal budget breakdown 2017

Disparate takes on a professional responsibility
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