Why pro bono makes good business sense

 

For nearly 30 years, most of the large US law firms that comprise the Am Law 100 have published their figures showing how many pro bono hours their lawyers give on behalf of a range of good causes. American lawyers are acutely aware that pro bono is a professional responsibility, as demonstrated by their strong ongoing commitment to volunteering their services to meet the legal needs of a range of individuals and organisations. However, English law firms have generally been much less willing or adept at following their example, typically showing less commitment in aggregate than their US counterparts. So what about barristers: how do they address the challenge of giving something back to the community?

Of course, many already do in different ways – motivated by personal choice and a sense of public duty. Yet there is very little in the way of systemic commitment of time, notwithstanding the best efforts of The Bar Pro Bono Unit, which helps to find pro bono legal assistance from volunteer barristers. The decision to join its ranks and give their time for free is made at a personal level rather than an institutional one: providing legal advice or representation for free to those in need, by volunteering their skills in another capacity, such as giving careers advice in schools, acting as a trustee, or even coaching a student team for a mock trial competition.

But of the 16000 practising barristers – of whom 1600 are QCs – just 350, or slightly over 2% are registered with The Bar Pro Bono Unit. There is therefore a strong argument to do something at a more institutional level to increase participation in pro bono activities.

Adopting the model used by many of the biggest US law firms would provide a good benchmark for those at the Bar, invariably in a set of chambers with other barristers. The commitment US firms have shown has continued to grow over the years and is now fully embedded in their culture, and that of the attorneys, no matter what age. The US pro bono culture begins early – in law schools. Students from the 2016 law class performed over 2.2m hours of pro bono work last year, valued at more than $52m, according to figures compiled by the Association of American Law Schools (AALS). The poll of every American Bar Association (ABA) accredited law school was the first nationwide student pro bono survey ever conducted.

At present, English law schools boast of BPTC students having ‘access to an extensive range of pro bono projects.’ But perhaps it should go further still with those studying for the BPTC being mandated to do some pro bono work as part of the course rather than it remaining a purely voluntary activity. This would help engrain the culture of selflessly giving up one’s time for others – so much more precious and personal than just giving money to a friend’s charity run or sponsored bike ride because they are giving something of themselves.

Once qualified as an attorney in the US, the ABA Model Rules of Professional Conduct state that “a lawyer should aspire to render at least 50 hours of pro bono public legal services per year” to persons of limited means or to organisations that support the needs of persons of limited means. Recent ABA figures show the average annual amount of pro bono service provided by each US attorney was 56.5 hours a year. No such data is compiled in the UK, but it seems unlikely that any English law firm could claim such figures for every one of its qualified lawyers. Given the 2% figure for those registered with the Bar’s pro bono unit, the average figure for barristers is probably much lower still. Why not suggest that every barrister should do, say two or three days a year, pro bono.

So does this pro bono commitment adversely impact on law firm revenues? In a word, no. On the contrary, the Am Law 100 law firms grew their aggregate revenues by 4.3 percent in 2016. Their overall performance over the last five years has often outpaced many of their UK counterparts, both in revenue and profitability. When it comes to doing good business and doing pro bono work, the two are not therefore mutually exclusive. In fact, pro bono would seem to make good business sense as part of a firm’s culture. The same would surely apply at the Bar if each set of chambers required all barristers from junior tenant to senior silks to take part with a target set for every member.

There is further evidence to support this assertion. According to research published last year by the TrustLaw Index of ProBono, an immediate contrast can be drawn between the US and UK firms operating in London. The top seven places for average pro bono hours per fee earner all went to US law firms: Arnold & Porter, Dechert, Latham & Watkins, Morrison & Foerster, Paul Hastings, Seyfarth Shaw, and Weil Gotshal & Manges. The pro bono contribution by each of these firms surpassed all the magic circle and silver circle firms – in some cases, by a considerable margin.

Drawing on the success of the Australian Pro Bono Manual, The Law Society of England & Wales published a guide last September outlining why firms should have a plan for pro bono work. Among other benefits, it suggests that a properly structured programme can significantly enhance a firm’s ability to demonstrate its level of commitment to pro bono work, nurture a firm-wide culture within a coherent policy and send a consistent message about its values. Exactly the same sort of methodical pro bono system could be applied to members of a barristers’ chambers, although this has not yet been advocated by the Bar Council.

When the top 50 UK law firms saw their total revenues increase to £18.24bn last year, up from £17.45bn in 2014-15 – an increase of 4.5 per cent – some lawyers might benefit from reading its content, and increase their commitment accordingly. The same, no doubt, applies at the top sets of barristers chambers, although again figures are not as readily available with estimates published by the Lawyer being exactly that: estimates.

One of the seven US firms with the strongest pro bono commitment in London, Latham, saw its revenues increase last year by 6.5 per cent to $2.82bn (£2.26bn). Its seventh consecutive year of fee income growth was also the most revenue ever generated by a law firm in a single financial year. Meanwhile its net profit grew by 8 per cent to $1.42bn (£1.14bn). That helped to drive Latham’s profit per equity partner (PEP) past the $3m mark for the first time, rising 5.3 per cent to $3.06m (£2.45m). Yet Latham lawyers also found time to be in the top league when it came to pro bono work. Excellent business sense from the highest grossing law firm in the world was matched an excellent commitment to pro bono.

Using data from Legal Week‘s UK Top 50 and The American Lawyer‘s Global 100, recent figures published by Legal Week go further: PEP growth at the US top 10 outpaces UK rivals by 50% over five years as earnings gap widens ran their headline story in November. Giving something back works. Perhaps there is a lesson here not just for magic circle law firms – Slaughter and May, Allen & Overy, Clifford Chance, Linklaters and Freshfields Bruckhaus Deringer – but also for Brick Court, Essex Court, One Essex Court, Fountain Court, Blackstone and a host of other leading sets of chambers.

So how do the two go hand in hand?  One obvious answer is that doing pro bono work delivers particularly important benefits to young lawyers that traditional work in barristers’ chambers does not. In short, it broadens their skillset and allows them to perfect their craft. More specifically, pro bono work can be good for their career and personal development in three different respects: it provides opportunities for direct interaction with a diverse range of people; it allows them to gain personal experience that would rarely be available from client-originated work; and it can expose them to a much broader range of advisory work than what’s typically on offer in conventional practice, especially in commercial, tax, IP or other specialist sets of chambers.

The experience of US law firms shows that pro bono increases staff performance and higher billing, rather than decreasing them. In considering how to develop young barristers into QCs of the future, and shape them as fully rounded individuals who are able to deal with all manner of human client problems, a strong pro bono culture does indeed make good business sense for barristers’ chambers as it clearly does for US commercial law firms.

Yasmin Batliwala, Chief Executive, Advocates for International Development

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