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Pro bono by any other name…

Towards the end of last year, the Australian Pro Bono Centre released the ‘14th Annual Performance Report of the National Pro Bono Target’.

Despite the report showing a marked increase in pro bono work, Lawyers Weekly reported that the centre noted there was “considerable room for growth”, especially among smaller law firms and in-house teams.

Although no doubt made with good intentions, the comment does not take into account the unique challenges faced by small firms and in-house teams, and glosses over the financial pressures and workflow disruptions experienced by small firms and sole practitioners over the last two years.

The impact of COVID on small firms, which rely heavily on face-to-face, personal service and genuine community interaction, was immense. Business models and procedures were re-invented on the fly, as small firms raced to ensure that the hard work of years (or even decades) was not swept away by the tsunami that was the pandemic.

To expect those firms to be concentrating on specific pro bono initiatives, let alone recording those efforts, is risible.

In-house teams were in a similar boat – while most transitioned to work-from-home status without much difficulty, the workload on many of these teams increased markedly, as every COVID measure adopted by their organisations was run past legal ‘just in case’.

Compounding these difficulties was the fact that even very large organisations often have quite small legal teams; when I worked at Ipswich City Council, it had around a thousand employees and ran a city of almost 200,000 people, yet the in-house team consisted of three lawyers.

In spite of these obstacles, however, both small firms and in-house teams tend to be involved in significant pro bono work, although perhaps not the sort captured in the type of analysis undertaken by the Australian Pro Bono Centre.

Few small firms have the resources to allocate to the recording and reporting of pro bono work, and it is hardly likely to feature in the month-end reports of in-house teams; that doesn’t mean that such work isn’t being done.

Small firms, and especially those in the suburbs and regions, are usually an integral part of the local community, and deliver pro bono work as a natural consequence of that relationship. They assist local sports clubs to deal with council, provide ad-hoc advice through roles on the committees of community theatres or as members of a school board or kindergarten P&C.

Just as the local electrician will probably be tapped to install donated lights in the re-furbished school hall, the local solicitor will probably give free advice on the insurance policy changes that go with it.

Small firms also often take out a jersey sponsorship with the local netball team, or pay to put up an advertising sign at the footy field, despite knowing that it is highly unlikely even one extra client will be generated through that advertising. It is simply just another way of giving back to the community.

In-house teams also get active with the local community, especially those teams in local governments – not via the provision of advice, which is prevented under the Legal Profession Act 2007, but through other things such as volunteering to be on the judiciary for various local sporting competitions. Few organisations would see any benefit to capturing that work in an official record. In addition, solicitors employed in small firms and in-house teams often volunteer at community legal centres, efforts which are rarely captured in any formal way.

Officially recorded and costed pro bono work is largely the province of larger, well-resourced firms and legal teams, and is often used to promote a positive image of the firm. While this can be problematic – it is a risky proposition to give the impression that the only time your firm provides value is when it gives its services away for free – it has become vital for firms seeking government work.

Before the Australian Pro Bono Centre releases its next annual report, it might turn its mind to ensuring that the ad-hoc work done by small firms and in-house teams is captured. It might also have a think about the unique challenges faced by sole practitioners, small firms and in-house legal teams, and perhaps cut these hard-working, community-minded solicitors a bit of slack.

Shane Budden is a Special Counsel, Ethics, with the Queensland Law Society Ethics and Practice Centre. The opinions expressed in this article are those of the author.

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