Improving the Australian legal profession's pro bono contribution requires better structure and coordination. Briana Everett uncovers the level of commitment needed for firms to do their bit
Pro bono in Australia has come a long way since the country's first pro bono clinic was established by Freehills in 1989.
According to the National Pro Bono Resource Centre's (NPBRC) Fourth Performance Report on the Aspirational Target of 35 hours of pro bono work per lawyer per year released this month, signatories to the target provided more than 220,000 hours of pro bono legal work in 2010/2011 and their lawyers each completed an average of 39.8 hours inthe same period (up from 39.5 hours the year before).
In addition, the eight law firm signatories withmore than 50 lawyers that met the centre's target averaged 48.6 hours of pro bono work per lawyer, and jointly provided almost 180,000 hours of pro bono in2010/11.Today, the question of whether a lawyer or a law firm provides pro bono has been replaced by the question of how much it provides, and what is being done to increase that contribution.
Yet despite the fact that firms are increasingly measuring and reporting their pro bono contributions, Australian law firms still need to do more to enhance their pro bono involvement.
According to the NPBRC's director John Corker, while there has been a significant improvement in the profession's pro bono contribution and its measurement, mid-sized firms in particular need to lift their game.
"If you look at the survey figures that we've done over the last couple of years and the aspirational target return, it's quite clear that the mid-tier firms ... are the ones that don't have the same performance figures interms of average hours per lawyer of pro bono work, compared to some stand-out small firms - really small firms - and the larger firms," says Corker, suggesting that a greater focus on fee-earning amongst mid-sized firms may be a contributing factor and one of the reasons many mid-sized firms are yet to appoint their own designated pro bono coordinator or partner.
"There are some examples of what I would call medium-sized firms starting to step-up their pro bono practice, but there are still a large number that don't and probably should"
Nicolas Patrick, partner, DLA Piper
Agreeing that mid-sized firms could do more, DLA Piper's head of pro bono, partner NicolasPatrick, highlights the paucity of mid-tier firms which have neglected to appoint a designated pro bono coordinator or partner as evidence that it is not a high priority.
"[Most of] the largest firms have had, for manyyears now, at least one full-time pro bono lawyer,"he says. "Most of us now have several. At DLA we've got a few, Clayton Utz has got a few, Blakes has got a few ... yet there are still some that don't have any at all.
There is a growing gap between the larger firms and the medium-sized firms. There are some examples of what I would call medium-sized firms starting to step-up their pro bono practice, but there are still a large number that don't and probably should."While Corker concedes there are a handful of mid-sized firms that are beginning to change their approach to pro bono, he notes that the culture required to facilitate the growth of a firm's pro bono contribution is lacking within a number of those mid-sized firms.
"It's a cultural thing. I don't think it's about the downturn or a lack of resources," he says.
"If you look through the income per partner or profit per partner, it's not a matter of resources - it never has been. It's about embracing the ethical importance of facilitating lawyers to do pro bono legal work. "It's about lawyers appealing to the highest ideals of the profession and embracing that value, supporting that value. Really believing it and making it happen."
The need for structure
Fortunately, the effort amongst firms to make probono happen is growing. In his seven years at the NPBRC, Corker say she has witnessed a gradual improvement and a greater willingness amongst firms - including the mid-tier - to embrace the importance of pro bono.
"There are a number of firms, just in the last six months or so, that have approached the centre for assistance and we've had some really good discussions," he says.
"And since that time, those firms have appointed a coordinator and that coordinator has developed a written pro bono policy and set some internal targets."However, compared to the early days of pro bono when sole practitioners and firms made their pro bono contribution on a simple, ad hoc basis, fulfilling the profession's pro bono obligation now requires a much more planned and coordinated approach - the importance of which many firms are yet to realise, according to Corker. "[Structure and coordination] are the key things that are required to make [pro bono] work," he says.
"The most important thing is the quality of work. What are we achieving? Are we making a difference?"
Annette Bain, executive director, Freehills Foundation
"It's much more efficient for a firm to do it inthat way because it's then an activity within thefirm that is well managed, like everything else."Corker says a well-developed structure,involving the appointment of a designated probono coordinator and / or partner, is vital tobuilding a firm's pro bono contribution andmeeting the NPBRC's aspirational target.
Although it's important for firms to be a member of pro bono clearing houses such as PILCH, he adds, it is not enough.
"A lot of firms are members of pro bono clearing houses like PILCH NSW and Victoria - and that's an important aspect of having a pro bono practice - but to some extent, I think they need to do more than that," he says.
Referencing the NPBRC's online best practice guide to building an effective pro bono practice, Corker says a more structured approach to pro bono - by way of establishing a stand-alone pro bono practice - sends a clear message to the wider community of the integral role pro bono plays within the firm.
Additionally, a properly structured pro bono program can help the firm monitor and record pro bono work more effectively and, consequently, measure its benefits and costs.
"A number of mid-tier firms think they can just give the job to someone who has a full-time commercial practice and that will be enough," says Corker. "But the reality is that you need to, at least at the start, give that person two or three days of fee relief so they can focus on the task of pulling the pro bono practice together and developing it. It takes quite a bit of energy. The best pro bono coordinators are very proactive and strategic in terms of managing the practice.
"The energy and dedication required to effectively build a firm's pro bono practice is a factor Blake Dawson's Anne Cregan, who runs the firm's national pro bono practice, is well aware of.
"It can be incredibly challenging to combine commercial work with pro bono work," says Cregan, noting the gap in pro bono contributions between larger and mid-sized firms.
"The big disadvantages are that the work that has a deadline will always take precedence over the work that doesn't. Generally, in terms of the coordinator's role, the work with the deadline will very often be the commercial work.
If you're full time on pro bono, you prioritise the pro bono workin its order of priority and you don't have that pressure.
"A number of mid-tier firms think they can just give the job to someone who has a full-time commercial practice and that will be enough"
John Corker, director, National Pro Bono Resource Centre
"Tresscox Lawyers officially introduced a formal pro bono practice this year after the firm's partners decided its existing pro bono program needed to be more structured. Since its July inception, the firm has already added another full-time lawyer to its pro bono team in Sydney.
"Pro bono is certainly not new to the firm, but it has always been done on more of an ad hoc basis," says the pro bono team's leader, special counsel Nicola Arvidson. Recognising that some firms still approach pro bono onmore of a laissez-faire basis, Arvidson says Tresscox's aim was to develop a practice that was structured in a way that would demonstrate the firm's dedication to pro bono and the significance that the firm's partners place on the firm's pro bono involvement."There are a couple of things that the partners have doneat that symbolic level to make sure everybody in the firm understands the significance the partners of the firm place on the pro bono practice," says Arvidson, who was promoted from senior associate to special counsel to lead the team from1 July this year.
"It was really important to make sure the pro bono practice was run by special counsel and I report directly to the managing partner - another one of those things that sends a message as far as the culture of the firm is concerned. "To develop the new practice, one of the first steps Arvidson took was to assess what kind of pro bono contribution the firm was currently making, taking guidance from the NPBRC, which offers a free consultancy service to firms setting up a pro bono practice.
"Pro bono is certainly not new to the firm, but it has always been done on more of an ad hoc basis"
Nicola Arvidson, special counsel, Tresscox Lawyers
"I contacted the centre to see if I could just get a bit more education because part of being a pro bono coordinator is making sure you can refer the work that you can't take," shesays. From there, Arvidson saw the practice's health and disability focus emerge from a combination of the work the firm was already doing in the area, the strength of the firm's existing health practice, as well as her own passion for supporting individuals and organisations exposed to disability services.
"The intention is certainly to create a health and disability focus, but I don't want to overstate that and say we do it exclusively, because we certainly don't," she says.
According to Corker, the NPBRC's aspirational target - a voluntary one which has now been running for four years- was set up to raise visibility of the profession's pro bono contributions and to provide a useful benchmark for firms.
With 66 signatories covering approximately 5,900 lawyers, or 11 per cent of the Australian legal profession, the target provides a useful incentive for lawyers and firms to increase their contribution.
"Many signatories exceed [35 hours] and some even double it," says Corker. Most of Australia's large law firms, such as Blake Dawson and Clayton Utz, are signatories to the target, despite having much higher internal targets.
"We have an internal target of 52 hours per lawyer, per year, which we don't expect to meet this financial year but expect to meet next financial year," says Blake Dawson's national probono head, Anne Cregan. "The internal target was arrived at in April of last financial year ... We knew that 35 hours was less than the number of hours we could contribute, but then we needed to work out what we thought was the number of hours we could actually achieve.
"According to Cregan, while Blake Dawson has had a formal pro bono program for 12 years, its strategy and target areas have remained the same.
"We've had the three same target areas for assistance for those 12 years and we're getting to the point now where we've developed some expertise and some credibility and some real understanding of some of the needs in those areas," she says, adding that the practice is currently looking to recruit another full-time lawyer, adding to the three full-time lawyers already on board.
"In the next two to three years, we're looking to do some larger transformative projects in those target areas and some additional law reform and policy work." Like Blake Dawson, Freehills has been running a formal pro bono program since the early 1990s after years of running pro bono on an ad hoc and unrecorded basis.Today, Freehills lawyers average approximately 44 hours of pro bono per lawyer, per year, with an overall firm contribution of approximately 43,000 hours.
But in contrast to many of the larger Australian firms, Freehills is not a signatory to the NPBRC's aspirational pro bono target. Recognising the positive influence the target can have on the profession's pro bono contribution, Freehills Foundation executive director Annette Bain notes that while a target may provide a much needed incentive to some firms, it could also lead lawyers to feel that 35 hours is enough and there by discourage firms to do more. For Bain, the qualitative consideration of whether the firm is making a difference is the better question to be asking, rather than whether a certain number of hours have been met.
"The most important thing is the quality of work. What are we achieving? Are we making a difference?" she says.
Signatories or not, capacity is a current challenge for many Australian firms trying to either reach the 35-hour target or to expand upon an already significant pro bono practice.
"Coming out of the global financial crisis, there is actually quite a lot of work around and probably lower levels of staffing than would be ideal for the amount of work that is around," says Cregan. "That puts some real pressure on being able to place matters within the firm and it makes it harder sometimes to get secondees. At the moment, capacity is an issue ... I understand from speaking with coordinators from other firms that capacity is a more general problem at the moment."
Capacity also presents a challenge for Freehills' pro bono program, according to Bain, as the firm aims to take on more and more pro bono each year. With an "unrelenting amount of work", Bain says most of the firm's lawyers are "near capacity", providing a challenge for her as the firm's coordinator, who is also "totally conscious of work/life balance".
Although there is no shortage of pro bono work out there, one of the challenges for Patrick at DLA Piper, which averages approximately 53 hours of pro bono per lawyer per year, is finding that work and bringing it into the firm.
"It can be incredibly challenging to combine commercial work with pro bono work"
Anne Cregan, partner, Blake Dawson
"One of the challenges for pro bono lawyers is that people who need legal assistance and people who can't advocate for themselves often don't come looking for legal assistance," he says. "So one of the challenges we have is finding pro bono clients ... We literally have to go out looking for clients ... We really have to do outreach into the community to get those matters.
"With two full-time pro bono partners - one in the United States and one in Australia - Patrick says DLA Piper now has about 15 full-time pro bono lawyers, having just appointed an additional pro bono lawyer in Australia - an "international pro bono counsel" - to source pro bono work from developing and post-conflict countries.
"We're sending our lawyers all over the globe," he says. "It's about identifying where the most pressing legal need is and addressing that legal need."
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