The lawyer conundrum: pro bono for prosperity?

January 11, 2010

I have had a long and very close relationship with LawWorks, the leading national pro bono charity for solicitors in the UK. It is an organisation I am proud to be associated with and I hope it will develop, grow and thrive in the years to come. I say this up front because I clearly have a partial view, but I should also say that the views in this article are mine and do not represent LawWorks strategy or policy.

It is hard to place pro bono in the modern legal profession.

In the UK legal services are undergoing an extraordinary period of change. Legal process outsourcing, off-shoring, commoditisation and deregulation are all part of this, but so is the rise and rise of technological innovation that is sweeping away old certainties about how clients access legal support and how legal support can be provided. Now, in the aftermath of a global recession, we can also see many law firms in a determined drive for innovation, efficiency and cost saving, but we may also see a new generation of lawyers questioning what they want from a career and certainly whether they want to climb the even more uncertain greasy pole to partnership.

Then consider the influence of the in-house sector growing a role as expert procurers of legal services, the demise of public funding for legal advice, public sector innovation in sourcing and provision and new entrants to the market with niche propositions.

The picture is one of significant and permanent change on all levels, economic, structural, cultural, technological, operational and strategic. It is a quietly irrevocable and quite fundamental revolution.

Is there, in all this, a time and a place for pro bono? And what might that be? These are big questions, because perhaps there isn’t a place for it at all.

Pro bono has been accused of sitting in the comfortable higher reaches of the legal profession, largely supported by large and successful law firms where for years and years income has been reasonably secure, competitive forces relatively benign, markets protected and long term planning possible. Individuals and firms who felt strongly could deliver their pro bono work informally or in more organised initiatives.
This market view, however,has changed and it is not a given any more that the bigger law firms will continue to support an institutionalised view of what pro bono means. Furthermore, the sense of pro bono as a national resource has not been realised in any significant way so far. I think it fair to say that it is perceived to be South East centric and also stands accused of being insensitive to the plight of small law firms working in what is left of the publicly funded arena.

So why am I so passionately of the view that pro bono is not just a “nice to have”, but is actually fundamental to the longer term health of a profession that is under the most enormous strain at the moment? It is because I believe it goes to the very core of what being a lawyer means and that is going to be a crucial factor for a profession that could easily lose a great deal of its identity.

If a computerised process can run several thousand files at a time; if a call centre in Delhi can answer 80% of the questions a consumer might have about their rights over a defective item recently purchased; if one of the legal publishers can employ more lawyers than the vast majority of most law firms; if non lawyers can part own businesses that offer legal advice and wholly own business that offer “commercial” advice, the question is not “What is the point of pro bono?”, but “What is the point of being a lawyer!?”

Now we start to drive to the centre of the issue. Lawyers are far more redundant or dispensable in this day and age than ever before; but the conundrum is that lawyers are actually needed far more than ever before.

Before we get carried away therefore by the glitter of process, innovation and talk of ownership models and delivery channels…and before anyone dare utter the damned “Tesco Law” phrase, I want to differentiate between information and insight, between guidance and representation and between access and genuine assistance.

The world does not work perfectly. Fundamental rights are sometimes violated, power can be exceeded and decisions are capable of being badly made. Righting wrongs may have less commercial value to a corporate entity and may be unhelpfully nuanced for a standardised approach. One size will not fit all.

In this space we need lawyers; in this space we must have lawyers. Not just clever process managers and slick software, but individuals who are also ethically bound to serve the best interests of their clients. I am very happy to accept that some of this may be work that has to be done at a loss, even for free. I am very happy to accept that it will be work that will be deeply unattractive to low margin, highly automated churn machines; but I think it might be the profession’s salvation too.

In the end, when we are all wrung out with change, real value will be perceived to vest in those who have a proposition that is not just efficient and cost effective (this will be the least that is expected) but a proposition that is also based on values that resonate; where credibility, trust, certainty and quality are also evident. It will be partly about brand, partly about profile and partly about making real promises of fairness and fair dealing.

In lawyers we will trust, provided they can live up to this standard. What better way therefore for lawyers to demonstrate this commitment than to have a tangible, visible, serious and long term commitment to pro bono work? Clients can see this and understand what it means; it is a huge indicator of trust, seriousness and values. It is a differentiator in an ultra-competitive world.

If you work in one of the great city cathedrals to magic circle legal services, and equally if you work in a cramped office on a high street helping “real” punters, everyone who uses you will understand that a commitment to pro bono sets you apart from the supermarket, the call centre and the generic business adviser. A commitment to pro bono suggests compassion, a values-based service, an ethical framework of substance, a realisation that value sometimes is unrelated to cost, a statement of support of what is right, not what is afforded.

I believe clients will be more likely to give their paid-for work to such businesses and I believe the commitment to pro bono is a business development tool that is generally, still, significantly underdeveloped.

Consider then as well the opportunity to engage local communities, to establish the profile of the firm at the very heart of the life and soul of a town. Consider how, for larger law firms, there is an opportunity to deliver on CSR policies in a way that rebuilds people’s lives and contributes to a broader ethic. Consider the credibility that is derived by such efforts and which can then be influential in negotiations with government and regulators. Consider the personal development opportunity for staff. It is all significant and all positive

And yet there will be many who still say pro bono is incompatible with publicly funded work; that if lawyers work for free, let them step into the gap left by a dwindling public funding. The answer to that concern will sound glib in the context of a short article, but I believe it to be true.

We all know that a fully-funded legal aid proposition will never materialise (and it probably never existed), so pro bono has a role in any event; but being described as a partial sticking plaster is not really the most strategic argument one has ever heard.

The value of pro bono in this sphere is that it puts a very diverse range of talent together to witness the need, to size the tasks and evaluate solutions. It affords an opportunity to invent, develop and create new models for delivery. In effect utilising the advancements and change described earlier. If lawyers can stay in the space, harness technology, partner with agencies, develop alternative funding strategies and build out our credibility for efficiency and effectiveness – there will be a way to work and to support this work that will secure a future role for lawyers, not undermine it.

Pro bono is not signalling the end of publicly funded work, nor is it incompatible with it. Pro bono may actually be the bridge from the current impossible funding issues to something more creative and secure – a bridge, not an impasse, and a way to protect and enhance the role of lawyers for the benefit of all. The challenge for the profession therefore is to make pro bono a genuinely strategic commitment that has a policy role in the justice system. It won’t be easy, but it may well be absolutely necessary.

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