Can pro bono be saved
7 February 2000
Last year the Solicitors' Pro Bono Group faced collapse due to a lack of support. Dominic Egan reports on the latest attempt to revive its fortunes.
Gross fees for the top dozen firms ranged from £115m to £442m during 1998-99, according to The Lawyer 100, and the average equity partner earned more than £450,000 in that period. Both individually and corporately, the big firms and their partners are doing very well.
Yet some of those firms - and many others in the City - do little or no pro bono work.
Most are quick to assert a longstanding and heartfelt commitment to pro bono. Their claims, however, rarely survive scrutiny.
"The thing that annoys me," complains a partner with a leading City firm, "is the firms that do next to nothing, but make a huge song and dance about it."
And of course there is no shortage of stories about lawyers flying out to the US to do battle with states which continue to use the death penalty. In December, a team of Freshfields lawyers together with top civil liberties silks flew to Florida to demand a retrial for a British national who has been on death row for 10 years.
And UK lawyers also act on pending executions in Commonwealth countries through the Privy Council.
At some firms, good deeds are certainly being done. But, all too often, it turns out that those good deeds are not pro bono at all. Moreover, what little genuine pro bono work is being done is invariably being carried out by just a handful of highly-committed individuals who receive little support from their firms.
And yet, in another of the world's financial capitals, New York, the situation is very different. There, pro bono is a well-established part of legal culture and law firms show real commitment to the pro bono cause. Not only are they prepared to finance pro bono projects, they make the effort to encourage their lawyers to take on pro bono work. The gulf in attitude between New York and London could not be wider. Quite simply, the Yanks put the Brits to shame.
It seems that relatively few UK lawyers appear to understand what pro bono actually is. Slashing a bill for a charity client is not pro bono. Nor is giving money to good causes. And, contrary to popular perception, nor is helping out at soup kitchens, schools or old people's homes.
Sue Bucknall, director of the Solicitors' Pro Bono Group (SPBG), says: "Pro bono means getting to someone who wouldn't normally have access to legal advice and giving them access to good quality, sensible advice that actually makes an improvement to their lives."
Cutting bills and giving money or time to worthy causes can never be decried, but where lawyers can really make a difference, Bucknall argues, is by giving legal advice for free. "Lawyers are lucky. They're privileged," she says. "They've had this particular education, they've got this skills base that people out there in the community don't have. And if they give an hour of their time, an hour of their expertise, it's probably worth two or three hundred pounds. I don't particularly want them to give us the money. I'd rather somebody else gave us the money, some big businesses. What I want is lawyers to commit themselves to actually giving their time.
"If lawyers can just get out and tell people what their rights are, people can keep their jobs. And, if people keep their jobs, they can then get a place to live. It might start at a low level, but it's actually giving people a hike up. It's good, practical stuff."
A registered charity, SPBG was formed in September 1997. Its goal is to support, promote and encourage a commitment to pro bono across the solicitors' profession. It is particularly keen to assist lawyers and law firms in setting up pro bono projects.
Funding originally came from just 11 law firms: Allen & Overy, Clifford Chance, Clyde & Co, Dibb Lupton Alsop, Freshfields, Hammond Suddards, Herbert Smith, Linklaters & Paines, Lovells, Norton Rose and Slaughter and May. The group now survives through a combination of membership fees, donations and sponsorship. With a budget this financial year of less than £100,000, however, it cannot afford to employ more than Bucknall and a personal assistant. The group does not even own its offices. It occupies two rooms in a building near Cannon Street Station that is due to be redeveloped later this year. The landlord is providing the rooms rent free.
It has been a mixed year for the SPBG. In September Peta Sweet, the group's first and highly respected director, resigned amid rumours that she felt she lacked the support of trustees as well as the profession. At the time, Tony Willis, the chair of the board of trustees, told The Lawyer: "There's absolutely no doubt that insufficient support has been given to [Peta]." (27 September 1999.)
But the start of the new millennium has seen signs of hope. On 12 January, The Lawyer Online (www.thelawyer.co.uk) posted a report that government lawyers who do pro bono work will be favoured when they apply for promotion and in the following week's issue, The Lawyer reported that the Attorney-General, the DPP and the Treasury Solicitor were to meet to discuss a programme to boost pro bono work.
But back at the SPBG office such promises do not go far enough. It is the firms' unwillingness to develop a systematic pro bono programme that is the problem.
And when White & Case loaned the services of Valerie Ciptak, the pro bono co-ordinator in its New York office with 11 years' experience, the contrast between UK and US attitudes to pro bono became even clearer.
Pro bono work is a recognised part of legal life in the US, says Ciptak, with lawyers being encouraged to take an interest right from the start. "It's institutionalised much earlier there than it is here," she declares.
"Our law schools are very public service-minded for the most part. There are some very advanced ones in New York. If you go to New York University or you go to Fordham or Columbia, they will have pro bono clinics in the law schools. So, when you're getting trained, you can get class credits sometimes for doing a clinic for helping poor people through doing pro bono."
Once their interest has been aroused, law students will ask potential employers whether they have a pro bono programme and, if so, what that programme consists of. "It's part of what they [students] want," says Ciptak. "It's part of what's considered - I wouldn't say - a perk of the firm, but it's considered part of what they're looking for."
Students are not the only ones to put pressure on US law firms to do pro bono work. The American Bar Association has recommended that its members should commit between 3 and and 5 per cent of their time each year to pro bono. (In contrast, the Law Society has consistently failed to take a lead.)
In addition, "There are organisations in New York that every year ask the law firms what the average amount of time spent on pro bono is," reveals Ciptak. "And they have standards. It's not official, but they have said that firms should be billing at least 30 hours a lawyer a year."
US lawyers may do a lot more pro bono work than UK lawyers, accepts Ciptak, but that does not mean that Americans are more public spirited. The real difference is simply good organisation. Most importantly, in the US, all the necessary structures have been put in place to make
volunteering for pro bono work as painless as possible.
Sadly, UK pro bono efforts to date have been extremely ad-hoc. "There may be a lot of people doing pro bono in a big law firm, but they may not even know that each other is doing it, because it's not formalised, it's not organised, it's not co-ordinated," says Ciptak. "It's been completely based on what individuals have wanted to do and them creating it for themselves, basically - sometimes through the firm, sometimes just on their own."
Thus, she applauds the fact that a number of UK law firms have now followed the US model and appointed pro bono co-ordinators. "That's progress. That's serious progress," she says. "Law firms can make a huge difference if they make it easier for people to volunteer, and having a co-ordinator is a huge part of that. The easier you make it for people to volunteer, the more likely it's going to happen."
Ciptak also hopes that more referral agencies, such as Refuge and Liberty, will spring up. "From talking to a lot of these firms, there's a lot of interest, but they don't know where to go," she says. "There's not a funnel. There's this whole world of people who need pro bono help and then there's this whole world of City lawyers, but there's not a lot of connection between them."
Once again, the situation is very different in the US, says Ciptak. "We have referral systems for almost every area of law you can think of. There's even a thing called The New York Guide To Pro Bono Opportunities and it's got a list of every place you can call to do pro bono work."
The SPBG has put together a guide to pro bono opportunities in the UK. Its director makes no secret of the fact that she would like the group to develop into a referral agency. "We've got to move on and look at what we're actually going to do with the group," muses Bucknall. "What I want is this idea that we can actually work as a conduit, so that we gather together all the City firms and do it as a project. I'd like to do it nationally in the end."
There are grounds for optimism, with genuine signs appearing of a growth of interest in pro bono work, particularly among younger lawyers.
A number of universities now run pro bono clinics, which operate in a manner similar to Citizens' Advice Bureaux (CAB), with students giving legal advice under the supervision of a qualified lawyer. Students are also asking more questions about pro bono at interviews.
"I think there's been a culture change," says Helene Kydd, community action partner at Herbert Smith. "Certainly, from the feedback that I get at training contract interviews, people are very interested in what's going on. I don't think people are satisfied with just coming in and earning a fair whack of money and just looking after corporate clients."
The appeal of pro bono work to young solicitors goes beyond just altruism, acknowledges Kydd. It is good training too, enabling them to have their own files, work with experienced lawyers, meet people and practise their communication skills.
Herbert Smith now offers its legal staff a range of pro bono opportunities, including work on Jamaica's death row, stints at the CAB at the Royal Courts of Justice and helping out at Whitechapel Legal Advice Centre, an initiative set up by the firm in conjunction with Whitechapel CAB. The initiative has proved so popular that there is now a waiting list of Herbert Smith legal staff wanting to participate. Nor does the firm have any trouble in finding volunteers for its Community Action Project, which is, strictly speaking, outside the pro bono field, but does various good deeds for worthwhile causes in the East End and adjoining areas. Who said lawyers don't care?
Nevertheless, it will be a very long time - if ever - before UK law firms match US firms in the area of pro bono.
Whereas US firms have developed a highly disciplined, professional approach to pro bono, most UK firms are still doing pro bono in a disjointed, almost amateurish way. Every self-respecting New York firm employs a pro bono co-ordinator, but, to date, less than 10 London firms have been prepared to put their hands in their pockets.
Great credit is due to those firms for being the first to take the plunge. The fact cannot be overlooked, however, that these appointments should have been made long ago. After all, New York firms were appointing pro bono co-ordinators 11 years ago.
Time alone will tell, but the rapid rise of US firms in London may prove to be the best thing that ever happened to the UK pro bono movement. Perhaps the good example set by the US will inspire a few City firms to do more pro bono work. Certainly, unless City law firms start to make a greater effort, they risk being embarrassed by their US counterparts. By loaning Valerie Ciptak to the SPBG, White & Case has already done more for the cause of pro bono in this country than many self-styled pillars of the London legal establishment.
The English love to make fun of Americans and their institutions. When it comes to pro bono, however, it's the US that has every right to point the finger.