DEMONSTRATING the growing significance of pro bono work to the legal industry, dedicated pro bono partners and directors from some of Australia’s largest law firms gathered at Freehills last Friday for a pro bono breakfast conference.
In attendance at what was possibly the first gathering of its kind were the pro bono directors and partners of Allens Arthur Robinson, Baker & McKenzie, Blake Dawson, Clayton Utz, DLA Phillips Fox, Freehills, Gilbert & Tobin, Henry Davis York and Minter Ellison. Also flying in from the US especially for the event was Esther Lardent, the president of the Pro Bono Institute in Washington, and Tamela Jacobs Taylor, the chief program officer of the institute’s “Pro Bono Project”.
One of the key issues discussed was the growing realisation within law firms of the value of pro bono work and the mounting pressures — from both inside and outside firms — to make pro bono work a priority.
Clients, both in the US and Australia, have become important drivers of pro bono work and according to Lardent, it has become increasingly common for corporate clients to request information about a firm’s pro bono work in tender submissions. Some companies have gone so far as to ask about the pro bono history of individual partners and at least one Australian company has been known to audit firms’ pro bono records.
This trend, Lardent said, flies in the face of some early fears that clients would react negatively to firms taking on pro bono matters.
“There was worry early on that clients would be saying ‘we’re paying you at a very high billable rate for many hours and you’re taking that money and doing free work. [Instead of] doing the free work, why not reduce our billing?’ But on the contrary, the clients are saying ‘we value this and we embrace this’, so the fears turned out to be absolutely unfounded,” she said.
According to Lardent, as confidence has grown US firms have become increasingly willing to take on more controversial pro bono work. As an example, she cited the fact that about 60 big US firms have represented, or are currently acting for, Guantanamo Bay detainees.
“I think we’re certainly at a time when fundamental notions of what constitutes fairness and justice are really being tested, and I think the feeling amongst firms — without regard to whether you support the view of someone or not — is that it is really, really important to make sure that both sides of the dispute get the best, most creative and most zealous lawyering possible,” she said.
And again, despite some initial concerns about how clients would react, the overwhelming response has been very encouraging. In fact, according to Lardent the Association of Corporate Counsel in the US, as well as several high-profile corporate counsel from major US corporations — several of whom are Republicans — have spoken out publicly in support of the firms defending Guantanamo detainees.
“It’s very satisfying to see that people understand that what lawyering is about is making sure that either because a person’s actions or potential actions are unpopular, or because of their limited financial resources, they shouldn’t be denied a voice and they shouldn’t be denied advocacy.”
At least until recently, a key concern for Australian law firms undertaking pro bono work has been that they may risk losing out on government tenders if they have acted against the government in pro bono matters. Interestingly, Lardent said this was almost a non-issue in the US, where large law firms rarely, if ever, act for government.
In Australia this issue has been addressed — at least at the Commonwealth level — by recent amendments to the Commonwealth Legal Services Directions, which now specifically state that Commonwealth agencies must not discriminate against firms that have acted against the Commonwealth in pro bono matters.