Lawyers Weekly recently invited eight pro bono lawyers to a roundtable discussion on the national pro bono target, whether pro bono belongs in a CSR program and the role pro bono plays in the tender process. As Justin Whealing discovered, pro bono is becoming more of an essential part of what a private practice lawyer does.
On 6 July, eight pro bono lawyers joined Lawyers Weekly over lunch at the Sydney office of Freehills to share their thoughts on why pro bono work is an important part of the function of a corporate law firm.
In a wide-ranging discussion, the chat around the table moved from the merits of having dedicated pro bono partners - such as at Clayton Utz, DLA Phillips Fox and Blake Dawson - to the similarities and differences between pro bono and CSR, to just how important a strong pro bono practice actually is in the recruitment and retention of clients.
While views on the above topics were divergent and opinions oscillated, there was a general consensus that the reasons behind why law firms do pro bono work is not simply so they can tell clients and the media of their good intentions, but rather because pro bono is naturally part of a lawyer's social responsibility.
In April 2007, the National Pro Bono Resource Centre launched the National Pro Bono Aspirational Target. It is a voluntary scheme with firms that sign up committing themselves to providing 35 hours of pro bono work per year for every lawyer the firm. John Corker, the Director of the National Pro Bono Resource Centre, was asked how the target came about and whether signatory firms were doing a good job in trying to reach that target - which has forty eight law firms signed to it.
"The idea for an aspirational target came from the Law Firm Pro Bono Challenge, which is run by the Pro Bono institute in the USA," Corker said. "They were the leaders with this idea, and it came about in Australia as a result of conversations with some firms as an idea to grow the pro bono culture in Australia."
Corker noted that the figure of 35 hours per year per lawyer was an "evidentiary based mark", which was used as a device to increase the profile of pro bono across the legal profession.
"I think the suitability of the figure depends on the size of the firm and for how long they have been operating a pro bono program," said Haley McEwen, senior associate, pro bono and community at Henry Davis York. "For our firm, it is a good benchmark because it was seen as quite steep for us when we signed to the target last year [in June]. We chose not to sign it until it was in our grasp, so now it is still providing a visible target and quantifiable objective for us."
Mallesons Stephen Jaques is a firm that has not signed up to the target. Taryn McCamley, a pro bono and community centre manager, explained that her firm has not signed up because Mallesons prefers to use the target as "an indicator rather than the whole story".
"It is a little bit different for us, we don't necessarily subscribe to the target, we see the target as an indicator rather than the whole story," McCamley said. "We have a very well structured program that is agreed upon at a national level and we look more towards our other goals and objectives rather than doing specific hours."
Despite not signing the target, Mallesons is one of the leading firms when it comes to doing pro bono work. It runs the Cyber Project with the National Children's and Youth Law Centre, which has seen the development and ongoing maintenance of the "Lawstuff" website to assist the welfare and development of young people. Over the last 12 months, Mallesons has contributed more than 1700 pro bono hours from 70 lawyers to this project.
Like Mallesons, Freehills has not signed up to the national target, but measures pro bono hours to meet internal targets. The Freehills Foundation, which assists homeless people or those at risk of homelessness, provided almost 10,000 hours of legal advice to 552 clients spread across 170 lawyers in the first 11 months of the last financial year.
This is what we do
Surprisingly, each of the lawyers invited to the roundtable rejected the notion that having a strong pro bono program will help gain clients. While most attendees agreed that it could harm your reputation in the marketplace not to have a pro bono program at all, the increasing interest in pro bono from clients was largely generated from existing business, as opposed to potential clients.
Instead, the consensus from the roundtable participants was that lawyers do pro bono work because it was part of their professional responsibilities.
"Would I choose a doctor, especially a surgeon who had a wonderful community practice or had a lovely personality? No. I would be going for the best surgeon," said Annette Bain, the executive director of the Freehills Foundation, in discussing why clients choose firms to do commercial work. "I don't know if we have moved that far from historically the reasons that law firms get involved in this area, it sounds quaint and old fashioned, but it is as true today as it ever has been, it is about the professional obligation and responsibility in helping someone administering justice in this jurisdiction," Bain added. "We usually say a variation of that when we are admitted, and I don't think we have come along way from that underpinning."
David Hillard, partner and head of pro bono at Clayton Utz, was direct in his response.
"Cynical members of the media struggle with the idea of why lawyers would do stuff for free? What is the hidden agenda? How can these large, voracious commercial law firms be doing some stuff for free unless there was a reason for it?" he asked rhetorically.
Hillard went on to note that his friends ask the same sorts of questions, and that the reason for lawyers doing pro bono work was a lot less complicated.
"All of our programs [at Clayton Utz and all firms represented in the discussion] started before there were things like targets, all programs started before clients thought they might like to ask questions about pro bono," he said. "It is a hard message for people to understand who are outside the law."
Still, the roundtable attendees agreed that clients are still keen to ask law firms about their pro bono initiatives. Ben Fogarty, acting director of pro bono at Gilbert + Tobin said that a current client wants to work with the firm in developing a pro bono program.
"What this client tells me is that the in-house lawyers are very keen to be involved in pro bono," Fogarty said. "For the client it is about meeting the needs of their lawyers and assisting with their retention strategies. It is an interesting area, as we are working with clients to develop pro bono programs and to also help them keep their lawyers."
Pro bono and CSR
One thing pro bono lawyers cannot agree on is whether or not pro bono should exist either separately, or as part of a Corporate Social Responsibility (CSR) program.
McEwen said that while CSR and pro bono are linked "it is not so much that the CSR agenda is driving pro bono, it is more the case that a pro bono program has existed for some time and we are reporting on it in a more formal way".
Bain reported that Freehills groups its pro bono program under its CSR agenda, even though pro bono activities account for 95 to 98 per cent of the entire budget in this area. "I think some of the cynicism that arises around the community or CSR side, is because people see pro bono as something professional, something you do well, and I think sometimes people on the CSR side are seen as being engaged in something a little bit more frivolous or fun," she said, nominating social mentoring and skilled volunteering as two areas where Freehills acts in the CSR space.
Anne Cregan, a partner with Blake Dawson and the firm's national pro bono manager, was quite emphatic in the need to keep both programs separate, citing CSR as a "risk to pro bono". "Pro bono is grounded in our professional responsibility as lawyers and CSR is driven by the fact that we are in a privileged position and want to give back," Cregan said. "I actually think there is a risk to pro bono from CSR. "The currency of contribution of both pro bono and CSR is time. If a person has an hour to give, and gives it to CSR, pro bono misses out."
But Corker had a different view, believing that pro bono should be at the heart of a CSR program at law firms, something which was refuted by Hillard, who argued that by combining the two, "you instantly change it [pro bono]".
"I don't see it as being competitive with pro bono, I just see it as being different," Hillard said.
Nicolas Patrick, a pro bono partner at DLA Phillips Fox, made the point that having a strong pro bono practice will not make up for any shortfalls occurring in other areas of the firm. "If you are doing harm through your workplace practices or your marketplace practice or your environmental practices, then no amount of pro bono will undo the negative impacts of your business."
On the other side of CSR, is the debate over whether of not pro bono should make up for any shortfalls in Legal Aid spending. Most roundtable participants argued that pro bono and Legal Aid should be kept separate, with Cregan stating: "It is better for clients to have a specialist Legal Aid lawyer acting for them in some areas than a lawyer from a large firm ... It is better for Legal Aid clients as a whole to have access to a funded and accountable legal aid system than to be dependent on the good graces of private lawyers."
Meanwhile, with a number of pro bono partners present, the roundtable also debated the merits of a law firm appointing a dedicated pro bono partner. A general consensus emerged that rather than promoting lawyers in this area to partnership, it is the structure of the program that matters most.
"We found that the best approach is to have committees in all of our centres," said McCamley. "We have a huge amount of partners involved at the committee level, as well as lawyers and other staff. The idea is that we give them strong guidance and structure to work within, but also give them a high degree of autonomy and flexibility so they can style the program in a way that matches their centre."
As the roundtable came to a close, what became clear to Lawyers Weekly was that all the lawyers around the table shared a mutual respect for the pro bono work that each law firm undertakes, and the reasoning behind it. As Patrick said, "pro bono is not about washing away your sins".
Instead, what motivates a lawyer and their firm to do pro bono work is that it's simply part of the professional duties of a lawyer and that there is a genuine need for pro bono programs in the community.
"It is part of the deal of being a lawyer," Hillard said.