pro bono 100
Following on from the success of our first pro bono survey, Who’s Who Legal once again invited law firms to participate in its annual review of global pro bono activity. Building on last year’s findings, the survey seeks to track progress and explore how the practice of pro bono is evolving. This year, we received submissions from an even mix of international and national firms representing Africa, Asia-Pacific, Europe, the Middle East, South America and North America. Below we share our findings.
Pro bono, the provision of free legal advice to those who cannot afford it, is widely viewed as a professional obligation and there is a long-standing tradition of individuals engaging in activities. Of the firms that responded to our survey, 64 per cent can trace their involvement in pro bono matters of some form or another to their founding figures. Over the past two decades the pro bono movement has picked up pace and today it is an instilled feature of law firm culture.
We asked, “Why do lawyers at the firm engage in pro bono activities?” The top two responses were “to give back to the local community” and “to assist those who fall outside the legal aid system”. The responses are unsurprising: in the wake of the financial crisis governments have increasingly cut legal aid, and the need for pro bono advice has never been greater. The UK made significant cuts in 2013 to save £350 million a year by making certain types of cases no longer eligible for public funds, including child contact, welfare benefits, clinical negligence and employment cases. In March 2014 the UN human rights committee asked the US to account for its widening civil justice gap. However, lawyers have been at pains to point out to governments that pro bono is not a substitute for a properly funded system; while it can help alleviate the situation, it cannot “fill the gap”. Despite this, the response to our survey demonstrates that funding cuts are increasingly on the minds of lawyers delivering pro bono services – more so than in the previous year, when the most cited reason was “commitment to a cause”.
In formalising a pro bono practice, one of the first steps is to appoint a coordinator – something that all firms taking part in our survey have done, with 70 per cent of these coordinators being lawyers (partners, associates or of counsel) and 14 per cent non-lawyers. The remaining 16 per cent of firms have opted for a jointly led practice by lawyers and non-lawyers. The role of the coordinator is to select and manage projects, encourage participation and develop the practice.
Once a firm has begun to implement a formal structure for its pro bono practice, the common next step is to establish targets. Ninety per cent of the firms in our survey are signatories to an organisation. The three most popular are the Pro Bono Institute’s Law Firm Pro Bono Challenge (lawyers can opt to meet a target of either 3 or 5 per cent of their total billed hours per year), the Pro Bono Declaration of the Americas (lawyers are asked to meet a commitment of 20 hours per year) and TrustLaw Connect (which links NGOs and social enterprises with law firms throughout the world). Firm-wide targets of this nature are far more common than individual targets, which remain more commonly employed in countries where the professional bodies dictate a certain level of activity. (For example, the Law Society of South Africa expects lawyers to provide at least 24 hours of pro bono services per year.) Of the firms that do set individual targets, they vary widely from 15 to 100 hours per lawyer per year; however, most expect between 25 and 50 hours.
To encourage lawyers to meet these targets, firms often allow time spent on such matters to count towards billable targets. This action has been taken by over 80 per cent of the firms in our survey; arguably, without such a measure most lawyers – with their ever-increasing time pressures – would not be able to participate. The number of hours firms allow to count towards billable targets varies widely. Half the firms in our survey place no limit on the number, while others impose restrictions after either 40 hours or 15 per cent of total billed hours. Looking closely at the responses, it is evident that those firms dedicating the highest percentage of their total billed hours to pro bono matters (between 9 and 12 per cent) all treat pro bono as billable to some degree, demonstrating that this is an effective method of increasing activity.
It remains the case that associates and trainees are far more heavily engaged in pro bono activities than partners: 42 per cent of firms see over 70 per cent engagement at associate level, while only 26 per cent report the same degree of engagement at partner level. There are interesting comparisons to be made with last year too: 44 per cent of firms have maintained their partner engagement level since our 2013 survey, and 20 per cent have seen an increase. The remaining 33 per cent of the firms have seen a drop in the number of partners doing pro bono work.
The importance of partner involvement cannot be understated; it is a critical element in ensuring the proper supervision of matters and the quality of service on offer. In our survey, 95 per cent of firms ensure each project is either led or supervised by a partner, with the remaining 5 per cent deciding on a case-by-case basis.
Is the increase in participation levels matched by an overall rise in pro bono activity? It is difficult to tell. Of the firms who responded in both 2013 and 2014, 47 per cent maintained levels of activity while 33 per cent saw an increase. In 2014, 58 per cent of firms reported fewer than 25,000 hours a year, with 33 per cent of those performing under 5,000. At the higher level, 37 per cent of firms carry out more than 30,000 hours a year. Yet these figures only represent half the story: due to the different sizes of firms and the resources at their disposal, it’s more useful to look at the percentage of total annual billed hours this figure represents. Half the firms who responded dedicate between zero and 5 per cent of their total billed hours, with 15 per cent of firms dedicating as much as 9 to 12 per cent. Interestingly, firms in the US, South Africa and Latin America were responsible for some of the higher figures.
Establishing a pro bono practice is in itself a challenge, but ensuring its success is quite another. In order to attain a leading pro bono practice, it is essential to consider its structure and to use the firm’s strengths: its network, expertise in a particular area of law, size, available resources, and so on. Just as a law firm’s culture and strategy differ from those of its neighbours, pro bono practices vary widely and often run in line with the firm’s vision. Factors to consider include the focus on access to justice and the rule of law, funds, and the choice of working closely with local partners or taking on global projects that make use of the firm’s extensive network.
We asked firms to record their proudest pro bono achievement of the year. The responses highlighted the many ways in which firms measure the success of their work. Certain respondents singled out the projects that best leveraged the skills of their lawyers; some focused on their largest-scale projects, involving input from multiple offices; others described matters that had life-altering consequences for the individuals involved (such as Debevoise & Plimpton securing the release of a detainee at Guantanamo Bay). The projects also demonstrate the rise in the number of non-contentious activities, such as assisting non-profit organisations in day-to-day operating issues, contractual matters and strategic transactions. The aim of such work is to enable the charity to concentrate its resources on pursuing its mission. We also saw many more examples of collaborative projects where law firms work alongside their corporate clients to share experiences and resources.
A further consideration is how to monitor the impact of a firm’s practice in order to ensure it is making the best use of its resources. The question of how to quantify success is an integral issue for the pro bono movement. Should the focus be on where a project adds the most value? Is the most successful project the one with an impact on the greatest number of people? The one that sets a new legal precedent? Or the one using the unique skills and innovation of lawyers? These are questions with no answers; or perhaps they each have many different but all equally valid answers.
The pro bono movement has made great strides in recent years, transforming from loosely organised activities undertaken on an individual’s initiative to structured practices within law firms that resemble any other client-focused practice area. Enthusiasm and awareness are at an all-time high: the onus is now on law firms to ensure that they are employing their resources in an efficient manner; that matters are properly staffed; and that they are creating maximum impact. For many in the movement, doing good is no longer enough. The challenge is to do good, better.