The business of doing good
The ethical foundations of pro bono work don’t stop it being of enormous commercial value to law firms, writes Felicity Nelson.
Pro bono is the only practice area where having too many clients is a problem. Or is it? With the steady growth of pro bono practices across Australian and international law firms, it would be naive to think these benevolent enterprises do not serve the financial self-interest of the businesses.
That is not to say lawyers undertake pro bono activities for the wrong reasons; in fact, the available evidence suggests precisely the opposite. A survey conducted by the National Pro Bono Resource Centre in 2007 of 887 individual Australian practitioners showed that the top two reasons for doing pro bono work were helping the disadvantaged (90 per cent) and a sense of professional responsibility (84 per cent).
“I genuinely believe people do it for the ethical reasons,” says the new international head of pro bono at Ashurst, Sarah Morton-Ramwell. “That comes first, without a doubt.”
Ms Morton-Ramwell says most lawyers are persuaded by the ethical arguments to volunteer for pro bono work. But for those who are not, the business case can be compelling.
“I don’t really mind why you got involved in the first place,” she says. “I believe the power of pro bono is that when you have done it once, you will catch the bug and do it for the right reasons going forward.”
But can a practice area born of charitable instincts and a sense of professional responsibility actually increase the profitability of a firm? Anecdotally it seems this is likely, although formal research is scarce. The only available study, conducted in the US in 1995, indicated a positive relationship between pro bono activity and economic performance.
However, it is difficult to tell with such studies whether correlation amounts to causation. Nevertheless, the intimate connection between working free of charge in the public interest and maintaining good public relations has not been lost on marketing and business development teams.
Law firms are essentially relationship-based service providers that rely on the organic growth of referral networks and the loyalty of their clients. Soft measures such as reputation, trust and value are often more important than hard metrics such as price when attracting and retaining clients.
Arguably, publicity that centres on real projects and puts the values of a business into action for the benefit of the wider community beats any amount of investment in advertising.
Promotion tied to pro bono activities may come with a higher price tag, but it is less likely to be perceived as self-serving, differentiates firms from their competitors and deepens roots within a community.
“Out in the world, consumers are really savvy,” says Maurice Blackburn associate Emily Hart, who launched the HeLP Patient Legal Clinic at The Alfred hospital last year. “People need to know they can trust the firm, particularly in personal injuries and the sort of areas [my firm] practices in.”
Clients generally engage firms that seem to care about the broader context in which their personal legal issue has arisen. “It is these kinds of projects that really demonstrate that we are for real about looking after people and understand that a legal problem is more than just the piece of paper in front of us,” Ms Hart says.
The HeLP clinic, undertaken in partnership with Monash University, aims to assist patients who have health-related legal problems. The clinic operates two full days a week and deals with end-of-life planning, wills, powers of attorneys, family law, immigration enquiries, crime and superannuation.
“The only exclusion is that, obviously, we don’t see medical negligence claims against the hospital,” Ms Hart says. Maurice Blackburn also does not refer legal work from the clinic back to itself, but instead provides patients with referrals to other firms.
Ms Hart says working at the hospital helps her understand what her clients might be going through once they leave her office. “It is an incredibly stressful thing for people to be in hospital. Legal help is really more than just getting something sorted out later. It can have an impact on the actual process of getting health treatment.” This holistic attitude towards clients and the sense that the firm genuinely cares is “bona fide in terms of our social justice reputation,” she adds.
Peter Seidel, head of Arnold Bloch Leibler’s public interest law practice and adjunct professor of law at La Trobe University, says the welfare of the firm is intimately tied to its positive interactions within the community.
“We fully recognise our [pro bono] clients are just as good for our business as we are for them,” Mr Seidel says. “I often call it substantive marketing. You are doing real work, you are contributing to civil society and it is good for your commercial reputation. It is all very seamless.”
Involving in-house lawyers and clients in the pro bono activities of the firm can deepen relationships by demonstrating shared values. “Seeing people in a different context outside work doing something that is really inspiring, you just feel so much closer,” Ms Morton-Ramwell says. “It is also a great service if [your clients] don’t have the resources to create the pro bono projects themselves.”
Recruit, Retain, Reinvigorate
Gone are the days where talented young lawyers will happily while away their careers as a cog in a large commercial machine. The best law graduates want to change the world and will be attracted to firms that offer meaningful, diverse and ethical work. “Having a strong pro bono program may be a differentiator in getting the best people,” Ms Morton-Ramwell says.
Ms Hart agrees, saying social justice work is a “massive drawcard” for recruitment: “I know for me coming to the firm, it was one of the things that was the most attractive. “When I got here and I realised that, quite seriously, almost every lawyer in the department is doing this work … in work time and they are not being given any kind of crap about it – I mean, I couldn’t believe it!”
After completing a graduate program and gaining a wealth of experience in different fields, junior lawyers sometimes feel they are not getting the same engagement once they settle into a narrow specialty, according to Ms Hart. She says pro bono is a way to retain these early career lawyers, who might otherwise lose interest or burn out.
Mr Seidel says pro bono can also re-enthuse not-so-young lawyers: “This is why we studied law in the first place; we want to be involved in giving back.”
Pro bono is also an area where junior lawyers can take on more responsibility than they would in commercial practice. Taking the lead on a pro bono case allows lawyers to develop skills they might not have the opportunity to acquire until later in their career.
“That is not because ‘it’s pro bono, so we will just put a junior lawyer on it and good luck’,” Mr Seidel says. “It is actually the ethos of the not-for-profit community space. It is the general expectation to actually just muck in. If you have a contribution, hey, there won’t be the red tape.”
ABL often engages in test cases – which, according to Mr Seidel, put junior lawyers at the cutting edge of the law. “We are involved in difficult law generally,” he says. “A lot of our work is effectively snapping away at the heels of the system to effect change for the better.
“We are making law in a lot of cases, so that is fantastic for ensuring our lawyers are properly skilled and are at the top of their game.”
ABL is involved in agitating for constitutional recognition of Indigenous Australians, which is both politically sensitive and uncharted territory from a legal perspective. The firm also recently played a role in a prominent case involving several young African Australian men who took racial discrimination action against the Victoria Police.
Busting the budget
At the top firms, pro bono projects are generally planned and executed like any commercial venture. Budgets are largely left open-ended and resources are usually allocated on a needs basis.
“We see absolutely no distinction in the way we go about [pro bono] to how we go about our commercial work,” Mr Seidel says. “We open up files; we monitor what’s going on. We say, ‘That which isn’t measured is undervalued’.”
Similarly, Maurice Blackburn does not place formal financial limitations on its pro bono practice. Ms Hart says management was very supportive of the HeLP clinic, providing funding upon request. Maurice Blackburn splits the costs of the clinic with its partners, with the hospital providing the physical space, Monash University funding the research and publicity material, and the firm supplying staff.
ABL and Maurice Blackburn calculate the production value of the contribution by associating a fee with their pro bono work. Ashurst, on the other hand, prefers to use softer measures of success such as engagement and impact within the community.
At all three firms, lawyers do pro bono during work hours and count their contributions towards any billable hour targets. Pro bono work is considered in performance reviews and in deciding salary, bonuses and promotions.
“We don’t do pro bono as an after-hours initiative,” Mr Seidel says. “It is part-and-parcel with what you must do as a lawyer. If you come here, you have a commitment to giving back to the community. It is part of our firm’s DNA … it is part of our business proposition.”
In a speech delivered by Chief Justice Robert French last year, he described a “periodic table of moral merit” in pro bono work, starting with the “base metal of economic self-interest” and rising to the “pure gold of disinterested generosity”.
It would be disingenuous for lawyers to claim that working for the public good ever fails to promote the best interests of their firm. ‘Gold-standard’ pro bono may be the most ethical variety, but it is out of reach of most businesses, which will inevitably benefit from any pro bono contributions.
In his speech, Justice French also asks of pro bono work: “Cui bono? – for whose benefit?” The answer to this question will always be, and should always be, both the community and the business.