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Pro bono - minding the gap
The tough economic climate, coupled with the threat to frontline advice agencies from local authority and legal aid cuts, has dramatically increased demand for free legal help. National Pro Bono Week, which starts on 5 November, will focus attention on the question ‘is something better than nothing?’ as law firms of all sizes explore how they can best respond, and in-house counsel press for regulatory change so they can offer more pro bono support.
Other issues being considered are whether the time is right for an aspirational target of pro bono hours for lawyers or firms – the New York Bar has just introduced a mandatory 50 hours before admission to the roll – and whether the profession should take a more robust approach to raising money through interest on lawyer trust accounts (IOLTA) and unclaimed client funds. The starting point, says Rebecca Hilsenrath, chief executive of the national charity LawWorks which co-ordinates legal pro bono services for solicitors and in-house counsel, is that pro bono cannot replace legal aid, either in terms of capacity or specific skills sets.
‘But it doesn’t help if, as a profession, we simply maintain the line that this is the government’s responsibility,’ she says. ‘Even if some of us can’t do much, it is beholden on us to do as much as we can.’
Since the summer, some of the biggest City firms have been reporting a reduction in the number of pro bono hours they did globally in 2011 over 2010 – 9% at Clifford Chance, 15% at Hogan Lovells – although the numbers remain huge, at more than 50,000 and 100,000 hours respectively. The changes, say the firms, reflect a move away from quantity towards greater use of their specialist skills. The squeeze on the free legal charity and not-for-profit sector, including the demise last year of the Law for All social welfare service, has also reduced referrals, while higher client activity in key regions has absorbed resources.
Enthusiasm, however, remains high among the firms’ lawyers, with nearly 40% volunteering in Hogan Lovells’ London office. Clifford Chance’s corporate responsibility team has set a new goal to increase the proportion of its lawyers providing pro bono services from 48% to 60% by the end of 2013/14. At Olswang, which saw a 6% increase in pro bono hours in 2011/12, nearly three-quarters of staff participate in pro bono activity. One of the key trends among the big firms is about creating a model to measure the impact of their pro bono activity and move away from any competitive ‘I have done more hours than you’ league table approach.
As James Daffurn, head of corporate responsibility at Freshfields Bruckhaus Deringer, says: ‘While we would like to see our volunteering hours rise, we are far more interested in the impact of our work.’
However, when it comes to valuing pro bono work, it is often a case of comparing apples with pears, he adds. ‘There is a real need for a standardised approach: many firms still use full charge-out rates when putting a value on their pro bono efforts, rather than adopting an internationally recognised standard where pro bono work is valued using discounted rates which aim to reflect the cost to the firm of providing the service.’
What is clear is that the big firms are focusing more closely on maximising their technical and specialist skills – one of Linklaters’ themes is to be a ‘venture catalyst’, including using its structured finance, financial regulation and tax practices to develop techniques so that charities can raise money from capital markets.
Linklaters collaborated with Weil Gotshal & Manges on the disability charity Scope’s £20m social investment programme which listed in Luxembourg last year. The first bond issue in June raised £2m.‘Charities are doing things they would never have dreamed of doing five years ago,’ says Aalia Datoo, Linklaters global pro bono manager, ‘so our support is increasingly valuable’.
Last year, the total number of volunteering hours across the firm dropped from 63,750 in 2010 to 43,660, which she says reflects a move from ‘high number-generating team challenges to better quality, lower-volume use of skills’. But long involvement in grassroots pro bono has also developed some surprising expertise in areas such as homelessness, and brought magic circle firms firmly into the access to justice campaign.
Freshfields has built up expertise in this area after nearly four decades working in a housing law advice clinic at Tower Hamlets Law Centre. It seconds a trainee to the law centre’s housing team on a three-month rotation. It also does pro bono work with Shelter, working with its children’s legal service on individual cases, ombudsman complaints and test cases, including acting for the charity in its intervention in a crucial case clarifying the law on how local authorities should look after homeless 16- and 17-year-olds.
‘Almost all our work for individuals is done through law centres or charities,’ says Paul Yates, Freshfields’ London head of pro bono. ‘We rely heavily on the advice agencies for training and supervision, as well as access to clients. There will be even greater need for help after the legal aid changes, but our ability to work in this area is dependent on the infrastructure provided by the third sector.’ There is a synergy between the two, says Julie Bishop, director of the Law Centres Federation. ‘You can’t just put your chair down somewhere and offer advice. You need premises, insurance and administration, so you need funded agencies to be able to do pro bono work. The government expects pro bono to step into the breach but if organisations close there is nowhere to step in to.’
There are also fears that practice areas, such as welfare law, will become deskilled. Junior Lawyers Division vice-chair Heather Iqbal-Rayner says it is concerned that law schools may eventually stop training people in these areas. It is discussing with LawWorks how it can develop a project to keep graduates and junior lawyers involved.
It is difficult to get a clear picture of the extent of unmet need. In terms of casework brokerage, which is done centrally, Hilsenrath says LawWorks is still managing to help the vast majority of the people it would have helped two years ago. ‘But we have shut down all our advertising,’ she says.
Michael Napier has been the attorney general’s pro bono envoy since 2001, promoting pro bono activity and co-ordinating links with the not-for-profit sector. He is greatly concerned about the legal aid cuts. ‘There is pressure in every direction to meet the gap in unmet legal needs,’ he says, ‘and it is a gap which, for all the good progress we have made in expanding pro bono activities in the last decade, means you are running fast to stand still.
‘But, when urged by the likes of me to do more, the response from the profession has always been very positive.’
European lawyers have historically been unwilling to let their governments off the hook for maintaining the social safety net, but it has been shredded so badly in Spain, pro bono is increasingly being seen as a tool to help keep Spanish society together.
A workshop exploring the role of in-house lawyers in delivering pro bono services will be held at the European Pro Bono Forum meeting in Madrid this week. This workshop will strike a chord here, where there is great uncertainty about what lawyers can do under the Legal Services Act 2007.
LawWorks is consulting on an order which would amend section 15 of the act to permit in-house lawyers to undertake pro bono reserved activity. There is similar uncertainty for ‘special bodies’, non-commercial bodies providing reserved legal services to sections of the public. Kate Walmsley, the Law Society’s corporate responsibility specialist, says the LSA included a carve-out for their regulation. ‘But there is now a lot of uncertainty about when special bodies will be brought into the ABS regime and what level of regulation will be imposed upon them.’
Under the terms of the LSA, any organisation that provides reserved legal services to third parties but does not have a traditional law firm structure would need to apply to become an ABS. The Solicitors Regulation Authority changed its rules during the summer as a temporary arrangement to spare organisations from this scenario. It will be considering if more needs to be done in relation to the many in-house lawyers as part of a wide-ranging review.
One option for in-house legal teams is to do joint initiatives with their law firms. Olswang collaborated with 23 of its clients on corporate social responsibility projects last year.
One pro bono project which Freshfields is piloting with KPMG Forensic involves bringing civil enforcement actions in the county courts to enforce employment tribunal claims granted in favour of recognised victims of human trafficking. LawWorks will be launching its latest survey gauging the views of the profession on pro bono during NPBW. More than 100 firms replied and one headline reveals 12% require their lawyers to undertake pro bono work. In response to an open question about future developments, several respondents said they would like to see pro bono become mandatory.
However, that raises issues about quality and enthusiasm – would there be a rush for the easiest option just to tick the box? It is not a popular idea here. Napier is against ‘conscripted’ pro bono. However, he adds: ‘When I was president of the Law Society in 2001, a motion was brought before council for a small amount of aspirational hours to be set as a target rather than a quota, but it was not adopted. I would say it is a particularly appropriate time to resurrect the idea.’
So how do firms here encourage their staff to volunteer? It is discretionary at Freshfields, which gives full billable credit for the work and treats pro bono hours exactly the same as fee-earning hours for all internal purposes, such as bonuses, appraisals and work allocation. It is ‘expected’, says Yates, but ‘no one is penalised for not doing it’.
Olswang encourages its lawyers to spend 5% of their chargeable hours on corporate responsibility work. Linda Zell, head of corporate responsibility, says: ‘Pro bono and volunteering offer brilliant training and skill development for our staff but there is no black mark if you don’t do it.’ In the US, some law colleges require their students to do pro bono work before they can graduate.
The College of Law spends more than £500,000 a year on its pro bono initiatives. Each of its eight centres has at least one qualified practising solicitor employed to supervise work and develop services. The most recent figures show 42% of students took part during 2010/11.
Lindsay Ward, pro bono co-ordinator at the college’s York centre, says the aim is to enhance students’ learning experiences and their future employability: ‘But I would definitely be against any mandatory requirement for students’.
When she was in private practice doing legally aid family work, she gave lots of free advice but never classified it as pro bono: ‘Making it mandatory would... be disrespectful to what they are already doing,’ she believes.
Another thorny issue is the IOLTA scheme. Bishop, who is Australian, has seen it raise millions of dollars there, despite interest rates being so low. ‘I met with such vehemence when I first raised it here I promised myself I wouldn’t do it again,’ she says. ‘But with so much going out of legal aid, not-for-profit agencies will struggle to deliver services and this is a potential source of funding.’
‘It happens around the world,’ she adds, ‘and I am very surprised it causes such a debate in this country’. The amounts can be sizeable. Allen & Overy has raised £250,000 since 2005 which it donated to the London Legal Support Trust.
However, Yasmin Waljee, global pro bono manager at Hogan Lovells, argues the scheme would not work in practice as the administration costs and burden would take away any benefit. Instead, it is keen to see more firms donate dormant client funds to their local free legal advice charities. The firm initiated the ‘It’s not Peanuts’ campaign, providing guidance on the relevant SRA rules, which raised £76,000 in its first week.
What will become clear during NPBW is just how imaginative the profession is in offering help across the country.
There are so many ways lawyers can give something back to the community and some want to do it by volunteering in ways other than giving legal advice. But Hilsenrath sounds a note of caution: ‘There is a risk that people may focus on CSR which doesn’t embrace access to justice. But the message we want to get across is that only lawyers can give legal advice – it is their unique gift.’
Grania Langdon-Down is a freelance journalist
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