Recently, the Australian Pro Bono Centre released its National Law Firm Pro Bono Survey.
In short, the findings were that while pro bono work has increased, there was plenty of room for improvement (that is, for firms to do more pro bono work).
While pro bono work remains the legal profession’s go-to whenever we are copping extra heat from the general public, it is in reality a poor way to assess the value of the legal sector.
In addition to the strange message it sends – that our work is only valuable if we give it away for free – the pro bono work performed by the profession reflects the extent to which legal aid, community legal centres and other public legal assistance schemes are underfunded. An increase in pro bono work is not a good thing, and pushing for lawyers to do more work for free is not a viable solution to the problem.
The issue is further clouded by virtue of the fact that the survey covers only places with 50 or more practising certificates, which in Queensland leaves out about 80% of firms; this means that the survey under-reports the amount of pro bono work done.
During my articles, I got given a client who had been with the firm for a long time. On meeting with him and reviewing his file, I realised he was seeking to obtain a patent for a process which had long ago been developed and which he could not possibly have invented. My boss explained that the old guy was declining, and really just needed to chat. We never charged him; just spoke to him every couple of months, gave him some things to do and kept him active and engaged. His family knew and were very much appreciative of it.
That sort of thing doesn’t show up in a survey by the Pro Bono Centre, but you can bet similar things happen around the country to this day, with firms being a true part of the community. Other things that wouldn’t be caught are the free leases that firms do for sports clubs, the late nights at local community legal centres and the times when solicitors turn up despite the fact that they have not been (and never will be) paid, simply because someone needs them. Firms write off heaps of work (and more often, never charge for it) because if they don’t, vulnerable people will have no access to justice.
That is as it should be, because at the heart of the profession is the commitment to the right of people to access and participate in our justice system. When finances become a barrier, it is usually the case that some member of the profession will step up and deliver.
The problem is that, rather than an occasionally necessary emergency option, pro bono work by solicitors has become something on which the government relies; by coping for so long with the extra workload, we have turned emergency measures in to the new normal. Rather than provide adequate funding, governments count on the legal profession doing a lot of work for free to ensure our most vulnerable citizens have access to legal representation; this is an unsustainable model. The effect has been exacerbated by governments requiring certain levels of pro bono work in order for firms to secure tendered work, which has transformed pro bono work from a duty and privilege, to a cost of business.
An increase in pro bono hours is not the answer; we have papered over the cracks in the system for too long. It is time for governments to fund legal aid, community legal centres and other measures adequately, because the breaking point is coming. Law firms of all sizes will eventually reach a point beyond which no more pro bono work can be taken on – governments had better have another solution long before that day.