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Firms sour over cherry picking in pro bono
Sparke Helmore picks up Curwoods partners:

Firms sour over cherry picking in pro bono

SOME US law firms are being asked to make donations of at least US$7,500 ($9,105) to pro bono organisations in order to vie for the most interesting pro bono cases. This pay-to-play concept is…

SOME US law firms are being asked to make donations of at least US$7,500 ($9,105) to pro bono organisations in order to vie for the most interesting pro bono cases. This pay-to-play concept is growing in the US where, as one US newspaper labelled it, “pro bono is simply one more chew toy in the dog-eat-dog work of law firm big business”.

In some East Coast firms in the US, a donation of at least US$7,500 will guarantee you access to the best cases, for example rule of law projects in Africa and the Palestinian territories. One New York organisation gives firms that provide the most financial support first shot at their most prestigious cases.

But Australian firms have sniffed at the practice, most agreeing it’s a foreign concept that is unlikely to ever become established here.

While firms like to be associated with successful cases that change the law, according to National Pro Bono Resource Centre (NPBRC) director, John Corker, they are not seeking out this type of work ahead of other cases. “Everyone likes to get the sexy work, but to create market in that is just wrong.”

Chicago Lawyer, a US-based magazine, recently reported that partners at some of the participating New York firms acknowledge they compete for the best pro bono work just as they do the richest clients and the smartest associates. This pay-to-play system is not new, the newspaper reports, and in Chicago local firms have always made sizeable contributions to political campaigns in order to earn the right to bill the state large amounts for routine legal work.

But firms, including Clayton Utz and Freehills, reject this as a possibility here. David Hillard, Clayton Utz’s pro bono partner told Lawyers Weekly that this is unlikely to happen here. Calling it a different culture, he argued that Australian law firms believe pro bono should be delivered on a needs basis.

“We’re not relying on pro bono organisations to find us sexy work. We’re not out there looking for headlines. It’s not about ‘let’s talk about how fabulous this case we’re on is’. If a particular charitable organisation said ‘we will find you some sexy work if you pay us’, this would not be an attractive option.

“The idea behind pro bono is not to take on shiny, sexy test case work, but to pick up where people fall through the cracks. We’re not running as a recruitment tool or as a ‘let’s get our name in the paper’ kind of thing. It’s a different culture to in the United States,” Hillard said.

Like in the US, community legal centres (CLCs) rely on pro bono work from firms. In a survey of CLCs conducted by the NPBRC and released last week, 70 per cent of CLCs surveyed by the NPBRC said that without pro bono assistance, key services such as advice clinics, complex casework and litigation could not be delivered at current levels.

The NPBRC conducted the national survey of CLCs and their use of pro bono assistance in March to July this year. The centre surveyed 93 CLCs, which make up 50 per cent of the CLCs funded under the Commonwealth Attorney-General’s Community Legal Service Program.

Corker said: “Just less than 4,000 volunteers, most of whom are lawyers, assisted CLCs last year. Much of this was individual volunteering but there has also been a growth in law firms providing secondee lawyers to CLCs for periods of up to a year at a time, even longer. Some firms have provided consecutive secondees to a CLC for many years. These lawyers contribute in an important way by providing access to justice both for many who are not eligible for legal aid and for non-profit organisations that assist the poor, disadvantaged and marginalised.”

US firms accept that the US$7,500 donation is a necessary part of pro bono organisations being sustained. Chicago Lawyer reported: “Most lawyers understand that pro bono, while incredibly cost-effective, is not free. Although clients pay nothing and the volunteers work gratis, the programs that recruit, train and support the volunteers cost money.”

But according to Annette Bain, pro bono counsel at Freehills and executive director of the Freehills Foundation, Australian firms find other ways of supporting CLCs and other pro bono organisations — and this rarely includes financial support.

“In Australia there are many firms that do what we do, including big firms like us and small firm in the suburbs, that support their legal centres with equipment, solicitors on secondment, or volunteering, use of our meeting room, maybe the occasional small donation, but I assure you completely untied,” Bain said.

But while the centres rely on firms for pro bono work, firms argue they would reject a system that encourages pay-to-play. And the NPBRC argues that it’s an unethical practice.

“They’re becoming the broker for the better work. I really can’t see that happening here. It raises some ethical issues for the operation of the operation of Australia’s public law clearing houses. I would be surprised if any of them would do that. They are funded on a dollar-per-partner-type formula. That is the primary form of funding in Queensland, NSW and Victoria. I don’t think they expect to get better cases, there is no evidence of them cherry picking,” Corker said.

Bain, at Freehills, said she sees the US system as counter-productive to the pro bono cause.

“The hundreds of cases that are not one bit exciting, high profile or sexy would be completely ignored or relegated down the line, rather than being the neediest-come-first,” Bain said.

She labelled the practice a foreign one, and rejected suggestions that Australian firms would ever welcome it. “Cherry picking is a foreign concept in pro bono. It is just not a practice seen in Australia. I have never heard of anyone participating in it in Australia. And I question the motives behind it,” Bain said.

And contrary to the US firms’ mentality that they have to compete for the sexiest pro bono work, “in the dog-eat-dog world of law firm big business”, Clayton Utz’s Hillard claims that it is one of the few areas in corporate law where there is a sense of collegiality, with firms working together.

In fact, far from wanting to pick the best cases, Hillard said the majority of pro bono cases are “anything but sexy”.

“We have acted for more than 1,700 individuals and more than 1,200 charities or community organisation. It’s a really big range. Our practice is not based on hand-picking matters. We have been to the High Court on several occasions but we don’t select them on ‘let’s go to the High Court’,” Hillard said.

It is these second-class clients that firms like Clayton Utz are picking up — those unable to be serviced by CLCs and for whom hiring a lawyer would be a financial impossibility. Contrary to what is happening in the US, individuals as clients are less likely to lead firms to the High Court, or to newspaper headlines.

Chicago Lawyer acknowledged that the cherry-picking practice may create a culture of second-class clients in the US. While in recent years, some pro bono friendly firms in the US have made low-income clients almost equal to paying clients, pay-to-play pro bono could return these clients “to the back of the bus”.

Pressed as to whether firms do the work to enhance the way the profession, or the firms themselves, are seen by the public, Hillard suggested that so much work and time goes into pro bono that lawyers don’t need to have these insecurities.

“Last year [the pro bono work Clayton Utz did] was equivalent to 18 full time lawyers’ worth of work. In 10 years we did just more than 200,000 hours worth of [pro bono] work, or that is an office of 120 lawyers working for a year. So I am not fussed if Joe Public thinks badly of me because I am a lawyer. I am confident that this is an important part of practice.”

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