Could clients drive firms to do more pro bono?

Australia, the legal profession’s innovation laboratory, is busy delivering another dose of fresh thinking. The state of Victoria is requiring all law firms that take on legal work for the government to perform pro bono work as a condition of the retainer — specifically, to the tune of 5% to 15% of the total value of their government contracts (most choose 15%). According to an article in the May 2008 issue of the New South Wales Law Society Journal, the scheme is now being considered for introduction countrywide.

The idea is not universally popular. Opponents raise two main objections: that reducing pro bono to a commercial consideration undermines the altruistic nature of the work for both provider and assistee, and that it’s unfair to single out lawyers when no other suppliers of professional services to government face the same obligation. Supporters counter that the government is leading rather than mandating, that the requirement is far from onerous, that legal services are uniquely in need of pro bono provision, and that many law firms now take pro bono seriously as a fundamental element of the business, driving up its adoption throughout Victoria.

I think it’s a great initiative, especially because it seems like a work in progress. One of the firms involved in the program suggests two improvements if it goes Australia-wide: that the government increase its legal aid and community legal sector funding, to make clear that pro bono is not and never will be a substitute for legal aid; and that the government continues to be prepared to waive conflicts claims in pro bono cases involving the government as a party. Add these two elements, and this might be pretty close to a perfect system.

In fact, I think it’s exportable — and not just outside Australia. While it’d be great to see governments in other countries adopt this program, I don’t see any reason why large corporate clients couldn’t do the same thing.

Multinationals’ legal budgets can far exceed what your average state or provincial government spends on outside counsel. Why not create an arrangement by which law firms that want these companies’ work carry out a minimum amount of pro bono, tied (as in Victoria) to the value of the client billings? The company benefits from the good PR (especially if it already has a corporate social responsibility program), the firm benefits from a deeper client relationship (and the chance to give its young lawyers meaningful work on pro bono matters that can impress the client), and the people or organizations who receive these services get the help they need.

Of course, many law firms already have pro bono programs in place; but many more don’t, or maintain them mostly as a recruiting tool and retention pacifier. That’s largely because pro bono isn’t the integral part of many law firm cultures that it once was, for a variety of historical, economic and generational reasons.

I don’t think lawyers are intrinsically less inclined to help the less fortunate than they used to be. But I do think one of the victims of the gradual debasement of law firm culture is the once-common notion that providing legal help to worthy causes is a natural, everyday part of the business model. The firm that considered pro bono a nice optional extra used to be the exception; nowadays, it’s more the rule. Drafting clients, both public and private sector, into the pro bono effort could do wonders to galvanize law firms to reverse that trend.

And wouldn’t it be great, for both lawyer and client, to know that every new matter assigned, every new retainer accepted, means someone else somewhere in desperate need of a lawyer’s help is going to get it?