For love or money

While once it may have been the preserve of the well-heeled, philanthropic local solicitor, anxious to salve his conscience by giving something back to the community, now pro bono work is, if this is not a contradiction in terms, very much big business.

The stealthy Americanisation of the UK’s biggest firms has ensured that the US legal culture, where pro bono work is a core professional value, has become part of their philosophy and, if you ever read The Lawyer magazine, you’ll know they’re not shy in shouting about their big-hearted deeds.

So where does that leave pro bono legal services in Scotland? Here, an old-fashioned view still seems to prevail. As one solicitor, whose firm does a substantial amount of pro bono work, told me, it’s not really in keeping with the essence of pro bono work if you talk about it, because you are left open to the charge that it’s actually a self-serving marketing ploy. The dignity of pro bono work is in doing it quietly, without fuss.

And that same solicitor also highlighted another reason for not shouting about it – that the Executive will seize on it and use it as a sop to justify the continued underfunding of the civil legal aid system. In his October column, Society President Joe Platt highlighted the ominous, and ill-founded words of the Depute Competition Commissioner, who suggested pro bono work should be mandatory for young solicitors. The fear is that such a view could gain credibility.

So while all the anecdotal evidence suggests that most solicitors undertake some pro bono work, those prepared to discuss it are scarce.

As founder of Will Aid, probably now the best known route for most solicitors to engage in pro bono work, Graeme Pagan of Hosack & Sutherland in Oban, doesn’t necessarily subscribe to the notion that publicising pro bono work defeats the essence of it.

“I cannot accept that any voluntary work which gets publicity is contrary to the good principles of pro bono. For good or bad the success of many things depends very much on publicity and it was obviously absolutely essential for Will Aid. Many people who may want to go around keeping quiet about their good deeds could be a great inspiration to other people if they shared what they are doing.”

A more cynical line of argument used against publicising pro bono work is that it could open up the floodgates to endless clients putting themselves forward as deserving cases. It’s a concern Adrian Bell of Morton Fraser acknowledges. While his firm has done a lot of pro bono work over the last few years for charities, sometimes in the form of tailored rates reflecting what they can afford, many charities are serious operators and worthwhile clients, all trying to get maximum value from limited funds.

“The problem with publicising these things is that I have a lot of charity clients and we don’t want them all looking for free legal services. Where people can pay they should, and we wouldn’t lightly do work for them on a pro bono basis if they could realistically pay”, says Bell.

Through Scottish Business in the Community, a fledgling professional firms group, the firm were contacted to help out on the Stepford Road Sports Complex, a project that gave Greater Easterhouse its first ever sports complex and grass football pitches.

“When we were asked to help out, we said we were happy to help in getting it off the ground but we said if they got lottery funding we would expect them to make payment of fees as they can from funds.

“To date they haven’t had to make any funding for legal fees, and we have no strict lines as to how much we will do,” said Bell.

Graeme Pagan rejects the suggestion from some solicitors that if they do some work for free that opens the door to them having to do all sorts of things for nothing.  

“Of course you have to be fairly strict and I definitely adopt the principle that if I am working for nothing I will decide how and when.”

Nor can he envisage a government committed to making pro bono work mandatory.

“Even the way things are going I would be absolutely amazed if the Scottish Government tried to force solicitors, or anybody else for that matter, to devote a certain amount of their time to working for nothing. In any event I do not see why a solicitor should be treated any differently from any other section of the community.  Many others are better off than us and yet there are no expectations on them to give up more of their time to work for nothing in order to reduce what they actually earn.”

Not just a gimmick

<>In a cynical age, scepticism will always greet good deeds trumpeted by large firms whose staff includes marketing and public relations advisers. All too often it has all the subtlety of the latest down-on-their-luck celebrity reinventing themselves as a UN Goodwill Ambassador.

At DLA they don’t try and hide the benefits that can be gleaned from having what they call a policy of “corporate social responsibility”, but insist that if it was a mere marketing gimmick, they could come up with something more sophisticated, and would be unlikely to sustain it for as long as they have.

Development Officer Elaine Radford explained that the firm’s pro bono work has been rebranded as an activity embedded in their business in terms of their commitment to be “good corporate citizens”.

“Clearly it does give a corporate edge, it says we are different, we believe in civic duties as part of our business behaviour”, said Radford. “But we’re definitely not promoting it as a marketing exercise. We hope to inspire other people into doing it. We are very proud of it and our clients now have an expectation that it’s something we do.”

Adrian Bell also refutes any suggestions of pro bono activities being marketing by stealth.

“No-one is less marketing orientated than me; you do it to give something back. Being a lawyer is a hard business and lawyers ought to make a reasonable living, but if you can’t find time to help that’s a poor show.”

Organic or cultivated

Yet in Scotland, there has been no effort either to establish a protocol for pro bono work or to introduce a body equivalent to the Solicitors Pro Bono Group in England, which acts as a sort of clearing house putting deserving causes in touch with willing firms or organisations.

The notion of the In-House Lawyers Group fulfilling this role was mooted at their conference last month, but for the present pro bono work seems set to be largely conducted on an ad hoc basis, with individual firms left to devise their own policies.

Morton Fraser are trying to streamline their system, to develop an instruction sheet that sets out and defines the extent to which they can help, which might include setting out an initial limit so that recipient charities realise it’s not an open ended commitment.

So too at DLA, where Elaine Radford says their pro bono efforts have evolved in a “fairly organic way” that’s allowed the work to be done with “freedom and creativity rather than saying this is how it will be delivered”.

“Initially when doing pro bono work, we tended to put a limit on it but found as time went by that was not the best way. In limiting it, you could sometimes be pulling away at the moment when you were close to resolving the issue so we now tend to give people jobs to complete rather than a limited amount of time.”

In Glasgow the firm has devoted its pro bono efforts towards the Prince’s Trust, providing legal advice to young businesses on issues such as contracts and intellectual property. In fact, it’s a mutually beneficial arrangement in that trainees and young solicitors are able to acquire experience of handling their own clients.

DLA’s Glasgow office is also undertaking a survey targeting businesses and asking about their involvement in pro bono work – and, if they’re not involved, what holds them back, whether resources, budget or that they don’t know how to go about it.

If it shows that there are missed opportunities with firms willing to undertake pro bono work unable to find the right community partner, it might strengthen the case for the formation of an organisation to provide that link.

Graeme Pagan is doubtful about the merits of that. “For my own part, while there are a number of things that I feel motivated to help without wanting paid, that does not mean that I would welcome more people phoning me up asking for free services, especially if it was to help something I was not particularly sympathetic about.  Surely we all have our own different feelings and beliefs about what causes are worth supporting and what the priorities should be.”

Adrian Bell suggests some sort of central body would help, matching firms willing to do pro bono work with worthy causes but with a stipulation that there is a commitment only to a certain number of hours.