The pro bono discussion often focuses on two viewpoints, the warm and fuzzy versus the dictatorial. The former takes the approach pro bono is voluntary and lawyers should undertake cases because it makes them feel good and it’s the right thing to do. The dictatorial approach — do it or else — stems from the view lawyers have a duty to provide free legal services as part of being a self-regulated profession.
The rise in unrepresented litigants and phenomenal growth in Canada’s non-profit sector are driving pro bono demand and fueling the debate. (Canada’s non-profit sector now includes 170,000 organizations, employs two million people, and represents $106 billion (eight per cent) of Canada’s GDP, larger than the automotive or manufacturing sectors.)
Unfortunately, little attention is paid to the business case of providing pro bono legal services.
Rather than leaving it to regulators to dictate — Lord knows there is enough paperwork in the practice of law — pro bono advocates would do better to help lawyers understand the shifting business climate and the economic reasons for building a pro bono program. By appealing to both the bottom line and the warm and fuzzy nature of most lawyers, pro bono advocates are more likely to win buy-in than those who advocate arm-twisting and mandatory pro bono.
The growing reality is law firms and in-house legal departments can perform better by doing good and it’s in their interest to build a formal pro bono program into their business for the following four reasons.
Better recruitment: The industry’s future lawyers are growing up in an environment where volunteerism is part of the high school curriculum. To get their diploma today, most high school students need to garner a set number of volunteer hours. Committing free time to a cause is part of their social fabric in ways it wasn’t for previous generations. They will head into the workforce expecting to continue and grow that. Firms that don’t respond to those desires will face trouble landing good people.
Improved retention and training: Retaining lawyers is one of the biggest challenges facing law firms. A 2008 Stanford Law Review article on the changing economics of law firms found the average associate attrition at firms was 19 per cent. However, only one in five departures was wanted by law firms. Attrition is also incredibly costly, ranging between $200,000 and $500,000 for each second- or third-year lawyer who leaves.
Lawyers leave law firms for a variety of reasons, from long hours to billing pressures. They also leave because of lack of opportunity. It can be particularly hard for younger litigators at bigger firms to get courtroom experience or feel they are playing a significant role. A pro bono program allows them — whether in a law firm or a corporate legal department — to get exposure to areas of the law they are curious about. They can hone existing skills and build new ones. They can take control and run files. In the case of Blakes, Belanger notes, the firm encourages its associates to bring in pro bono cases that matter to them.
Corporate social responsibility: Canada’s business community is changing. Companies are much more involved in community initiatives. Clients expect their lawyers to contribute. Law firms that step up stand to benefit the most. That is only part of the equation. General counsel are increasingly looking at different metrics when hiring law firms, everything from diversity to gender. It’s becoming more ingrained in Canada and pro bono initiatives will be one of the categories on which law firms and lawyers are judged. Firms that wait, risk getting shut out.
Increased profile and profitability: Law firms involved in pro bono cases can increase their profile. The U.S. Pro Bono Institute notes in its 2000 paper “Making the Business Case for Pro Bono” that a managing partner of a major law firm estimated every dollar spent on pro bono generated 10 times that in good publicity and heightened visibility for his law firm. As well, a number of academic studies have made a connection between profitability and corporate social responsibility.
There’s a case to be made for pro bono beyond the usual philosophical and moral divide: Do it or your firm may not survive.
Jim Middlemiss blogs about the legal profession at WebNewsManagement.com. Follow him on Twitter @JimMiddlemiss or e-mail at firstname.lastname@example.org.
Note: A correction was made to Paul Belanger's title. He is co-chair of the Financial Services Regulatory group at Blake Cassels & Graydon.