The pro bono myth laid bare

AS THE Government pursues a successful strategy of attacking solicitors for their supposed greed, the legal profession is steadfastly refusing to reveal what work it does for free.
Unearthing individual solicitors who are committed to pro bono is not difficult. But getting the entire profession to provide the hard facts and figures to show how much pro bono work it does is virtually impossible.
The line most firms take is to simply claim they are committed to pro bono, without providing any evidence – a position that is becoming increasingly untenable.
Last week, The Lawyer revealed that British Aerospace (BAe) is considering writing a commitment to pro bono into its terms of written engagement for panel law firms.
BAe, the first in-house member of the Solicitors Pro Bono Group (SPBG), has also written to its panel firms asking them what pro bono work they are doing, and calling on them to support the SPBG.
The message from Terence Black, BAe's deputy legal director, finance, is clear: “We would think very hard before instructing a firm that said it wasn't interested in pro bono work. We would regard it as not being aligned with our view of the world.”
Yet despite this unequivocal approach, a survey conducted by The Lawyer reveals that when it comes to pro bono work the vast majority of firms are at best apathetic, at worst dismissive.
The Lawyer surveyed the top 120 law firms to find out what, and how much, pro bono work they are doing. We asked for specific details of hours and projects, and gave firms four weeks to respond. Up to 79 per cent of those approached either failed to reply, or said they did not do pro bono work.
Black says: “It surprises me and it disappoints me, and I think it is shortsighted.
“I think it shows a lack of vision of where the legal community is going, and what its role is going to be in the next millennium.”
Leaving aside the top 10 firms, only 15 of the remaining 110 replied. Three of these – Berrymans Lace Mawer, Bristows and Pictons – simply rang to say they did not do pro bono work and would not be filling out the form. Berrymans subsequently sent a letter to say it undertakes pro bono work on a “pragmatic basis”, although it gave no concrete examples.
Peta Sweet, director of the SPBG, comments: “Your survey shows there is still a perception that this is not an important issue.
“[It] demonstrates a lack of awareness of the importance of this issue. It's not a priority for a whole number of reasons, and a cultural point is fairly key in that.”
In fact, many firms have responded to the debate over pro bono by falling back on a stock line: solicitors up and down the country do, and have always done, lots of pro bono work. We might not shout about it like the big City firms, they say, but we have been giving free advice for years.
Shoosmiths & Harrison's response typifies this attitude: “Pro bono work is something which most firms of solicitors have done for years, although it seems to be a new concept for some.”
Yet when asked to specify exactly what pro bono work the firm does, the response is vague: “We act for and support numerous charitiesA we have people who are governors and managers of schools A give a good deal of free advice.”
The firm might well undertake lots of valuable pro bono work but, like many others, it is unable to demonstrate this in a convincing manner.
One lawyer suggests firms may have been unable to answer the questions as they were too difficult, although “what sort of pro bono work do lawyers in your firm do?” does not seem unduly taxing.
Perhaps a better reason for the poor response is that, for many firms, pro bono is simply not a priority.
One lawyer who has been involved in several pro bono projects comments: “It seems that it is something people take on as a personal project, because they have a person al view that pro bono is important.
“But if you look at the firm as a whole, it might not be endorsing pro bono. That is probably why a lot of firms haven't responded – the marketing departments couldn't care less.”
Another partner, from a firm with a strong track record in pro bono, but which did not reply, says: “Someone in our marketing department clearly thinks pro bono is boring and pointless.”
Richards Butler, which is well known for its pro bono work in the McDonalds case, sent in a reply suggesting there were no benefits to doing pro bono work. When The Lawyer telephoned the contact name given – Michael Skrein – he knew nothing about the survey and painted a wholly different picture of the firm's pro bono commitment.
Pinsent Curtis, meanwhile, is clearly aware of the marketing potential of pro bono work. It recently took out an advertorial in a corporate magazine, headed: “This time, they're on your side: How Pinsent Curtis and the SPBG are challenging the public's perception of City lawyers.”
For the record, Pinsents is not a member of the SPBG. Its marketing department did not respond to our survey because “we just didn't get to do it in time”.
Graeme Bristar, Pinsents' London managing partner, admits: “It may be that we are not doing enough to co-ordinate internally, to put out a coherent strategy and communicate what we are doing. The survey reflects that maybe we need to pull our socks up in this area.”
The survey also reveals that pro bono remains a touchy subject. Many of the firms we spoke to said they hoped we would not be critical of law firms.
Lovell White Durrant sent us a letter saying: “A number of firms are in the process of establishing pro bono units which, we would suggest, is an encouraging sign of a responsible attitude towards the communities in which we work.
“As such, we believe anything that unduly criticises the steps taken by firms in this respect, however tentative, may not necessarily be helpful to the development of a pro bono culture throughout the legal profession.”
But can this kid glove approach be justified?
As BAe indicates, the corporate climate is changing. Firms can no longer afford to adopt a casual attitude to pro bono.
Macfarlanes and Clifford Chance recognised this in their responses. Clifford Chance says: “The business environment in which we operate means that the firm cannot afford to ignore the changing attitude towards 'corporate community' investment.
“We recently had a request for information on our community policy for a major client. In the US, this is a common practice and our clients increasingly expect us to be actively involved in community affairs – as they are.”
Sweet agrees: “Increasingly, firms will be asked to demonstrate that this issue is taken seriously – whether it is in the wider public arena or by their clients.
“There has to be a move away from this kind of ad hoc, very sporadic, individual-oriented approach to a firm-wide, profession-wide commitment.”
Dibb Lupton Alsop's regional managing partner in London, Paul Nicholls, says: “There is a lot of unmeasured commitment there. I feel strongly that we need to be able to measure this and demonstrate that commitment, because otherwise society will turn around and say we will make you do it.”
The one promising thing to emerge from the survey is that a number of firms are starting to integrate pro bono work into their culture. It appears that some firms – particularly those in the top 10 – have come a long way towards monitoring and co-ordinating their pro bono activities.
Allen & Overy, for example, has produced a guide detailing what pro bono projects are available, who runs them and how much work is involved, as well as a detailed report on pro bono activities undertaken by the firm last year.
Other significant developments afoot include a proposal from Dibbs to place an obligation on all of its lawyers to do pro bono work.
In May last year Clifford Chance's contentious business area became the first department to set down an acceptable number of hours – 100 – for its fee earners to spend on pro bono work each year.
And Lovells is developing reciprocal pro bono arrangements with overseas firms and has accepted pro bono work from Australian firm Clayton Utz, as well as firms in India and the US.
Some smaller firms are also stealing a march on their colleagues. Wragge & Co, Rowe & Maw and Macfarlanes are all in the process of co-ordinating their pro bono procedures through the appointment of pro bono partners, time recording and the introduction of written pro bono policies.
But these remain a small minority. Too many firms, it seems, cannot back up their warm words with hard facts.