Pro bono: are lawyers doing enough – and how much should they do?

National Pro Bono Week is here again.

The annual event – now in its 13th year – aims to, in the words of its website, ”celebrate the breadth and impact of pro bono work undertaken by the legal profession across the year.” But increasingly, it needs to highlight the fact that not-for-profit work is helping hold the creaking justice system together.

In the United States, pro bono is an in-built part of every law firm, and forms part of the country’s culture of philanthropy. For example, every litigation associate in Weil Gotshal & Manges’ New York office must spend a period of time working in the New York housing court, helping individuals with their cases against landlords and housing authorities.

“The concept of having targets is a very US thing,” says Gibson Dunn & Crutcher partner and pro bono committee member Greg Campbell. “There is a US initiative called the Pro Bono Institute’s Pro Bono Challenge, which requires firms to sign up and record 60 hours of pro bono per attorney a year.”

In the UK, philanthropy is a less central concept to business life, though most firms still have plenty in the way of corporate social responsibility policies. The different attitudes to pro bono are encapsualted in the lack of targets at UK firms compared to US firms. According to recent Lawyer 2B research, just 17 of 94 firms surveyed set thier lawyers targets for the number of annual pro bono hours they should aim for. Of those 17, 11 are US-founded.

Firms in London that set individual lawyer goals for annual pro bono hours

  • Ashurst 
  • Baker & McKenzie
  • CMS Cameron McKenna
  • Dechert
  • DLA Piper
  • Gibson Dunn & Crutcher
  • Milbank, Tweed, Hadley & McCloy
  • Mischon de Reya
  • Orrick
  • Penningtons Manches
  • Reed Smith
  • Ropes & Gray
  • Shoosmiths
  • Vinson & Elkins
  • Weil Gotshal & Manges
  • White & Case
  • Wragge Lawrence Graham & Co

Source: Lawyer 2B research

This lack of targets could be because of Britain’s history of – and devotion to – the welfare state, diminishing the need for personal philanthropy. However, legal aid cuts in recent years mean pro bono is becoming more vital to the legal system.

Citizens in one of the UK’s biggest cities – Manchester – have nowhere to turn for legal advice due to the cuts. South Manchester Law Centre went into voluntary liquidation in August, a last nail in the coffin for a city which has seen its two other law centres and a Citizens Advice Bureau close already.

Remaining law centres around the country are facing tough times, with so many areas of law no longer funded by legal aid. Many centres’ strategy is to refocus on areas still covered by legal aid, while offering advice on the side to clients whose cases are not covered by funding.

The bone of contention arises when considering whether, as legal aid is stripped back, law firms should come to the public’s rescue.

“Law firms are already becoming more philanthropic in reaction to cuts to legal aid,” says Simmons & Simmons corporate social responsibility (CSR) partner Richard Dyton, who is also chair of the London Legal Support Trust, which aims to keep the doors of London’s law centres open.

“We always focus our pro bono on a theme each year,” Dyton continues. “We are focusing on access to justice in the UK this year. We are trying to do what we can to plug the gap, where the local authority grants haven’t come in or where legal aid has been denied.

“A lot of firms try to do that and we are focusing our efforts on helping the law centres and clinics.”

Most City firms will send a team of lawyers to law centres one evening every week, at which they will advise members of the public on issues such as landlord and tenant disputes and employment issues.

“We find that our lawyers welcome the opportunity to go down to the law centres,” says Weil Gotshal & Manges partner Peter King, who heads the firm’s London pro bono committee and co-chairs its global one. “We work with centres in Battersea and Holborn – we are a large operation and we think we should pull our weight, particularly in light of legal aid cuts.”

Whether corporate law firms should be picking up the cheque, as it were, for the public’s legal need, is a question that elicits a firmly negative response.

“It needs to be made absolutely clear to government that we are not there to plug the gap,” says Dyton. “Circumstances have arisen, occasionally, where legal aid has not been given because a corporate firm can help somebody instead.

“I think that is really dangerous territory to go into. We can help around the edges but we cannot go to the crux of the problem, which is mainstream access to justice for people with problems on employment law or debt.”

Whether corporate lawyers really have the skills to help individuals with housing or debt problems is a divisive issue.

“We tend not to work in law centres,” says Greg Campbell. “My concern is that we do not always have the right skills to help people who come to law centres. We are corporate lawyers and do not have skills in residential landlord and tenant law.”

Weil’s King disagrees. “Some of the areas of law are unfamiliar but in many cases what you need to do is understand what the client’s problems and needs are and help them to put that into a coherent form so it can be presented to a social security officer or the housing authorities,” he says. “It is not necessarily something that requires specialist abilities, though if it is we can draw on the resources of the law centre to provide those.”

It is impossible to ignore, however, the fact that lawyers are better placed than most to assist the public. “I certainly think we have a role,” says Baker & McKenzie CSR director Christie Constantine. “It is a delicate question in the UK at the moment [but] I can definitely speak for the firm’s perspective, which is that we have an obligation to give back to the communities that we operate in.”

Those communities are not limited to the UK, of course. Constantine points to a current project which calls on the resources and expertise of Bakers lawyers in both its Jakarta and Buenos Aires offices, while Campbell talks of Gibson Dunn’s work in Kenya with not-for-profit organisation Lawyers Without Borders (see box, below).

Charities often form a large part of firms’ pro bono client bases. “In London, we have a range of pro bono clients which range from household name charities like Cancer Research, the NSPCC and Barnardo’s to much smaller charities, which are often nominated by members of our staff,” King explains. “We do a rage of work for them, from property to litigation and employment.”

Weil acted on one of the first instances of a charity using financial market techniques to raise funds, which is fast becoming a trend, when it advised a disability charity on its listed bond.

Whatever help law firms offer for the public good, in an age in which legal aid is slowly dismantled it is worth heeding Dyton’s words: “We need a basic right to justice – law firms cannot replace that.”

Further reading

Fighting the good fight: three pro bono initiatives

Simmons & Simmons

Simmons is doing more and more lands rights cases, in which people have been kicked off their land by safari companies, the government or other aggressors. These people are often poor and are not necessarily national citizens.

The firm’s first project was in Tanzania, where it helped the semi-nomadic Maasai people. The Maasai need vast areas of land for their livestock to graze and when their right to roam is restricted it destroys their way of life.  

The firm looked at the international treaty obligations that counties had signed up to and worked out which arguments were best to apply so that it could point out that restricting land rights were violating those treaty obligations.

It is now working in Colombia and in a number of other jurisdictions and has been successful in a number of cases in securing the land as it is required by the client.

Baker & McKenzie

In September 2013, Baker & McKenzie was appointed to act on a pro bono basis for Dignity and Choice in Dying charity (Dignity) in relation to its intervention in a high-profile, Supreme Court appeal brought by the director of public prosecutions (DPP).

Dignity aims to advance patient choice at the end of life. Within this broad aim, its specific objective is to campaign for a change in the law to enable mentally competent, terminally ill adults to choose to end their life with medical assistance rather suffer an undignified, slow and painful death.

The appeal, brought on behalf of a man referred to as Martin, raised a number of fundamental issues about the law of assisted suicide in England and Wales and was specifically concerned with the DPP’s policy on the exercise of its discretion of whether or not to prosecute an individual under that statute.

Martin is unable to speak and virtually unable to move. He finds his life intolerable and has a settled wish to die. Because of his disability he is unable to do so without assistance and is wholly reliant on his professional carers.

The Supreme Court judgment, which was handed down in June, put significant pressure on both Parliament and the DPP to reconsider the law and prosecuting policy on assistance to die.

Gibson Dunn

Gibson Dunn partnered with Lawyers Without Borders to develop an anti-corruption programme for Kenya’s judiciary and lawyers. The firm’s lawyers designed the programme, which consisted of workshops and a mock trial, and in doing so had to learn may aspects of Kenyan criminal law.

Gibson Dunn lawyers reviewed all reported Kenyan criminal cases from the past three decades and proceeded to analyse its constitution and the project culminated in a one-week training program in August 2012 in Nairobi.