How to: make pro bono work

Pro bono has evolved significantly in the past decade, moving from case-by-case decisions to waive fees to a more concerted effort to address unmet legal need. Law firms and legal departments have also become more systematic about recording and making public their pro bono commitment.

It is against this background that the Law Society is publishing its 2016 Pro Bono Manual. Through explanations, checklists, suggested criteria and information on professional considerations, the manual is a tool to help lawyers seeking a sharper structure and purpose to their pro bono efforts.

Getting started

Attorney general Baroness Scotland said that pro bono is ‘in the DNA’ of every lawyer – part of a gut instinct that injustice should be rectified through the instrument of the law.

The manual provides more than one definition of ‘pro bono’, though each definition has shared elements. The point of defining pro bono is to help with assessments of requests for help.

The UK pro bono protocol defines it as ‘legal advice or representation provided by lawyers in the public interest, including to individuals, charities and community groups who cannot afford to pay and where other means of funding are not available’.

The TrustLaw Index definition (produced by the Thomson Reuters Foundation in 2014) holds that: ‘Pro bono is legal assistance provided without the expectation of payment to people of limited means or to organisations that have a social, environmental, humanitarian or community focus.’

What each firm or department is able to do and wants to do should be clearly set down. The manual is not prescriptive, but makes it clear that to avoid mission-drift the following areas need to be defined:

• The nature of the work;
• The expertise required;
• Criteria relating to clients making them eligible for assistance; and
• General firm-related criteria, including a check for conflicts, and making sure resources and expertise are available.

Lawyers who have made a public commitment to pro bono sometimes encounter accusations that they are taking away work from colleagues who would otherwise be able to charge for it; and even that their efforts have made legal aid cuts ‘possible’.

Damned if you do, damned if you don’t – the accusation seems unfair. If lawyers stopped doing pro bono work, would the government restore the status quo ante on legal aid?

The manual touches on this issue: ‘Other than for some public interest matters, firms and pro bono referral schemes and organisations consider the financial means of the client and usually take into account whether there is any other assistance available (including legal aid funding, legal expenses insurance, or advice from a private firm or ABS under a contingency fee agreement).’

It continues: ‘Given the difficulties of applying a strict means test, firms generally do not fix a cut-off at an income or asset amount, as ability to pay varies depending on factors including number of dependents, liquidity of assets and debt levels.’

Any means test is also flexible when applied to charities and other not-for-profit organisations. For the capacity to pay ‘needs to be understood within the context that funds expended for legal services are funds that are no longer available for the organisation’s core work’.

The firm should not just be looking at client eligibility – just as important is considering whether the firm is the right one to accept the client. Lead considerations should be:

Capacity:

• Does the firm have actual or potential conflict(s) of interest?
• Does the firm have the necessary resources available?
• Are there people within the firm with sufficient expertise?
• Staff development: does the matter afford opportunities for training or education?
• Community profile: does the matter allow the firm to develop its community profile?
• Joint efforts: are there opportunities to partner with commercial clients on a pro bono matter?
• Budget: can the cost of providing pro bono legal advice be met and a budget allocated?

Sourcing work

Surveying partners and staff is strongly recommended in the manual. This is a way to promote awareness of pro bono, and to identify skills, links and interests that could shape the pro bono programme and help with its delivery.

A survey is an early task for a pro bono committee and designated pro bono coordinator, even before matters needing legal support are sought. The committee will also draw up the policy that governs and guides its pro bono work (see box).

Pro bono clearing houses and referrers look to systematically match unmet need with legal advice. Of particular interest for solicitors is LawWorks (the trading name of the Solicitors Pro Bono Group).

Of course, good intentions do not translate directly into advisory competence, and many lawyers doing pro bono work will find that commercial law experience needs to be supplemented with training and supervision.

Hence programmes to develop ‘secondary specialisation’. Notable schemes include:

• LawWorks projects to provide representation at first-tier social security benefit tribunals; and a joint scheme with charity Together for Short Lives to support pro bono advice clinics in hospices for the parents and carers of children with life-limiting conditions. This work is undertaken by solicitors who do not practise in these areas. But they are supported by bespoke training (the welfare benefits training is done in conjunction with the Child Poverty Action Group); supervision through specialist solicitors employed by LawWorks; and the allocation of appropriate cases.
• The Asylum Support Appeals Project trains and supervises non-specialists to represent asylum seekers and failed asylum-seekers at the Asylum Support Appeals Tribunal. The charity invests a significant amount of time in training, observing and supervising volunteers. Potential volunteers commit to a full day of representation about once every six weeks before being accepted on to the programme. This rigorous approach has provided a reliable pool of volunteers and a high success rate in cases undertaken.
• The Children’s Pro Bono Legal Service developed materials and a handbook and ran a three-hour training session for new volunteer solicitors and trainees. The training was shared between the two law firms involved and covered the basics of citizenship law, as well as guidance on taking instructions from child clients. New volunteers then shadowed the supervising solicitor for their first client interview to put the training into practice.

Aiming high

A key part of the more structured, impact-focused style of pro bono that has emerged in the last decade is setting targets – not least so a firm or legal department can assess how well resources are deployed.

In addition, signatories to the new Law Society Pro Bono Charter commit to reporting twice a year on their pro bono work. The manual identifies useful targets in six areas:

Hours per solicitor – the most widely adopted model. The total is calculated as an average of pro bono hours carried out across a set number of participants. This is an easy target to calculate with proper time-recording systems but does not illustrate the level of engagement of individuals.

Pro bono on a financial basis – a target based on the firm’s total billable hours and their agreement that a percentage of these hours will be given to pro bono. This target can cause issues for firms who do not wish to make public their total billable hours.

A target for each group within the firm – if a group-based target is set in addition to an annual firm-wide target both should use the same metric for consistency. For example, hours per solicitor per year.

A target for each solicitor – where firms set targets for individuals, these are often linked to the firm’s method of crediting and recognising those hours in terms of individual budgets, salary, advancement and/or performance appraisal.

A target percentage of the firm’s solicitors, including partners, participating in pro bono – this is a good test of engagement and, if successful, will lead to a widespread culture of pro bono across the firm.

A target number of matters for the firm per year – not widely used as this metric is not common among firms, but it can assist those firms who normally operate on a fixed-fee basis.

Establishing and running a pro bono programme in the ways suggested by the manual involves significant work – but that should be time and resource well spent. As Law Society president Robert Bourns writes: ‘With changes to legal services, and funding cuts to our advice and charity sector, this work is now more important than ever.’

• The Pro Bono Charter and Pro Bono Manual will be launched by the attorney general at the Law Society on 7 November (register to attend) and will also be available through My Law Society from that date