Pro bono: taking the lead from the US experience

Elizabeth Davidson reports from the first Solicitors' Pro Bono Group conference on how the group is working to put the “public' into pro bono

THE difference in attitude of US and UK firms to pro bono work became apparent at this month's Solicitors' Pro Bono Group (SPBG) conference.

According to White & Case pro bono co-ordinator Val Ciptak, lawyers at her US firm did $500,000-worth of pro bono work last year.

In contrast is the apocryphal tale of the English solicitor who claimed to do pro bono work because he drafted the constitution for his local golf club in his spare time. It is clear that UK lawyers need to address the issue of pro bono work.

Nobody knows exactly how much pro bono work is done by UK solicitors, what sort of work it is or how willing solicitors are to do it. This is because firms simply do not publicise the fact that they do such work, many not even keeping records of how much they do.

Many say this is because they do not want to be seen to be seeking publicity. But they also may not wish to offend their paying clients.

The SPBG is an attempt to redress that situation by supporting and encouraging solicitors to put pro bono firmly on the agenda.

Its first conference, held in London last week, was attended by 140 delegates and addressed by Solicitor General Lord Falconer of Thoroton QC and the Lord Chief Justice, Lord Bingham of Cornhill.

Apart from the presence of Clifford Chance partner Tony Willis, who is the SPBG's chairman, there was a relatively poor turnout from City firms who sent only one or two solicitors each to the conference.

Lord Falconer told delegates that pro bono was “not an alternative to the provision of fair access to justice… it is complementary to it”. This was an attempt to reassure solicitors that the government's encouragement of the pro bono initiative will not be used as an excuse to cut back on access to justice funding.

Significantly, Lord Falconer said he had discussed the development of pro bono work in a recent meeting with US Attorney General Janet Reno. He told the conference: “We believe the US example is one well worth studying.”

According to Ciptak, the UK's lawyers are now at the pioneering stage the US had reached 10 years ago.

In the US, encouraged by the American Bar Association (ABA), pro bono is now a matter of critical importance and prestige – all but a handful of the large firms do it. Any firm not participating is subjected to media ridicule, and the business community has gone so far as to urge business heads to ask firms during beauty parades how much pro bono work they do. In some states judges decide certain cases are pro bono and can then appoint attorneys to act – although attorneys have the right to turn these cases down.

Four years ago, the ABA launched a scheme known as the Pro Bono Challenge, asking the 500 biggest firms to commit themselves to doing a certain amount of pro bono work annually.

US publication The American Lawyer publishes special issues twice a year showing the amount of pro bono work carried out by the large firms, and law school students see pro bono work as an “indication of lifestyle” when choosing firms.

Ciptak said: “Students are interested in the law and want to keep their ideals so they want to choose a moral firm. Pro bono work can mean the most rewarding and interesting jobs.”

US lawyers have reached this stage by appointing pro bono co-ordinators in their firms – as Lovell White Durrant, Linklaters and Clifford Chance in the UK have done – and adopting official pro bono policies and guidelines. These moves have sent a message to lawyers that their employers attach greater importance to pro bono work, which in turn has encouraged greater pro bono commitment throughout the profession.

That level of commitment looks set to spread in the UK if SPBG director Peta Sweet has anything to do with it. She told the conference: “We are about changing the culture of the profession so that helping others is engrained in the minds of the profession.”

Practical considerations are also being addressed. Solicitors Indemnity Fund (SIF) legal divisional head Stephen Sullivan advised lawyers to keep files of pro bono work to ensure they are “acting in the course of ordinary practice” and therefore covered by the fund.

Sullivan advised that solicitors undertaking work outside the firm but with the firm's approval, for example at a law centre, will still be considered as acting for the firm for insurance purposes.

If a solicitor carries out work without his or her firm's consent then he or she must ask the Law Society for a waiver of SIF rules on condition that alternative cover is arranged.

At the start of the conference, SPBG president Andrew Phillips said he felt morale in the profession had “never been so low” as a result of legal aid cutbacks and government attacks on the profession.

The best way for lawyers to get rid of their poor “fat cat” image is to highlight the work they are doing purely for the public good.

For US lawyers, pro bono work is now an essential and public part of their job. Some argue that it can never have the same status in the UK's more cynical culture. But the SPBG has already started the ball rolling. It is up to lawyers and law firms to keep it going.