Interests and Motivations

A. Context

It is difficult to decide what motivates some professionals, and perhaps especially law­yers, to work for free. The starting point must be altruism, ‘the unselfish regard for the welfare of others’.¹³⁹ Many people who choose to become lawyers do so because they want to help people in trouble.

Pro bono work offers those with altruistic reasons for becoming lawyers the chance to fulfil their calling.¹⁴⁰ The precise motive may be more difficult to pin down and it could vary between people. Some volunteers may see pro bono as a way to promote social justice, others may only want to promote a particular cause. The variations in the volume of pro bono work, and the generally upward trend, suggests that there may be other factors at work besides individual propensities for altruism.

As the account of the recent growth of organised pro bono activity demonstrates, there is a strong relationship between institutional support for pro bono and levels of activity. This is not surprising since people are more likely to give up their free time if they believe that society, and their professional superiors and peers, acknowledge and value the work that is done. It is therefore necessary to consider what institutional

¹³⁹ C Menkel-Meadow, ‘Is Altruism Possible in Lawyering’ (1992) 8(2) Georgia State University Law Review 385, at 389.

¹⁴⁰ A Boon, ‘From Public Service to Service Industry: the Impact of Socialisation and Work on the Motivation and Values of Lawyers’ (2005) 12(2) International Journal of the Legal Profession 193.

B. Globalisation and the Contracting State

During the 1980s change was driven by globalisation, the world-wide intensifica­tion of technological, economic and cultural interconnectedness between nations. Globalised economies embraced technological advances, such as the internet, and were open to the exchange of labour forces, ideas, knowledge, products and services. Increasing dependence on global trade for economic growth depended on interna­tional corporations.

In the face of globalisation, nations were faced with a stark choice; to open markets to world trade or to become relatively poor. The need to compete in world markets almost inevitably involved reducing the size of the state and compromising on state commitments.¹4¹ The Labour Governments from the late 1990s, facing the inevitabil­ity of scaled down social welfare programmes, resuscitated the idea of private philan­thropy. This was part of a so-called ‘third way’, between leftist welfare policies and recent experiments in rightist ‘market fundamentalism’.^{[2417] [2418] The ‘third way’ reflected a social philosophy built on individualism, responsibility and materialism.[2419] It envis­aged a strong civil society enshrining rights and responsibilities, and strong com­munities built upon shared responsibility and devolved power.[2420] This vision placed a strong emphasis on reversing the decline of voluntary activity occurring over the previous century.[2421]}

The idea of volunteering was sold to the public as ‘an act of citizenship’.^[2422] It was sold to the corporate sector as an act of self-interest. It offered a way to reduce the threat from a disenfranchised ‘underclass’, and an opportunity to build communi­ties safe for business. The growth in large firm pro bono also reflected changes in the wider economic, political and social environment.

A flagship policy of the Conservative election campaign in 2010 was the so-called Big Society.^[2423] Like the third way, this incorporated the idea of volunteering, together with devolution of power from the state and increased emphasis on localism. There have been no direct appeals to the legal profession to participate in such an agenda, for example, in the wake of legal aid cuts. Nor has there been evidence of the pursuit of this agenda, at least in terms of building an infrastructure of support. Nevertheless, the economic and political environment, and the responding policies, undoubtedly influenced the development of pro bono culture.

C. Firms

i. Differences in Scale and Kinds of Engagement with Pro Bono

A survey conducted by LawWorks in 2013 found that firm size had a significant impact on how pro bono was perceived and operated.^[2424] Two-thirds of smaller firms identified their motive for pro bono as ‘giving back to the community’ and nearly one-third as business development. In medium-sized firms, 53 per cent regarded the motive for pro bono work as giving back to the community and 17 per cent saw it as business development. Only 41 per cent in small firms recorded time donated pro bono, whereas 70 per cent of those in medium-sized firms did.^[2425] One reason for this difference was that small firms apparently regarded pro bono as ‘part of everyday delivery and not recorded separately’.^[2426]

The LawWorks survey found that over 50 per cent of larger organisations had a pro bono partner or committee. Almost two-thirds recognised pro bono in charge­able hours targets, and around 37 per cent recognised it in awarding bonuses. Among the largest respondents, 86 per cent actively encouraged staff to undertake pro bono work, compared with 4 per cent which discouraged participation. This contrasts with medium-sized organisations, where 81 per cent encouraged involvement. In the small­est organisations, over half reported that lawyers were left to decide for themselves whether they worked pro bono.

It appears that there are different levels and kinds of engagement by law firms in pro bono and different levels of encouragement to participate, depending on type of firm. This may be attributable to resources, but it also raises questions about the motivations and interests of those involved. It is speculated, for example, that the approach of many small and medium-sized firms reflects a traditional approach. On the other hand the bulk of larger firms and many medium-sized firms are departing from these traditions by becoming more proactive, organised and even directive in their pro bono activity. The reasons for this can be explored by looking further at the performance and practice of large firms.

ii. Growth in Large Firm Involvement

There was significant growth in pro bono work in large law firms from the 1990s. A study conducted between 1990 and 1994 found a contradictory picture. Large London law firms seemed to have little interest in pro bono, but several claimed substantial pro bono programmes.^[2427] A survey of the 100 largest national firms in 1994 also found a mixed picture.^[2428] Six firms had a policy on pro bono work conducted by the firm and four assigned work to firm members. Twenty-seven firms claimed to perform work exceeding £10,000 in value per annum but eight said they undertook no pro bono work whatsoever. The same was probably true of 39 firms that did not respond.

The formation of the SPBG in 1996 marked a significant change of approach in some large firms. They began to focus more on their own firms’ contributions. There were diverse reasons for this change. Large firms were affected by the changed social climate in relation to voluntary work, which affected the corporate sector generally. They were also directly affected by agencies involved in driving change and by their own clients.

iii. Influences on Large Firm Involvement

a.

The 1990s saw an increase in agencies involved in promoting volunteering activity, developing links and providing brokerage, placing clients with volunteers. One of these agencies, Business in the Community (BITC) played a significant part in this transformation generally and in relation to lawyers. BITC was formed in 1981 follow­ing an Anglo-American conference on the private sector’s role in urban regeneration. It penetrated mainstream commercial life as ‘a public way to deliver socially respon­sible brand values’.^[2429]

The attempt to increase public altruism among corporations enjoyed a mixed response. Following a high profile campaign in 1990, the 100 or so leading con­tributors increased contributions to nearly 1 per cent of pre-tax profits. By 2002, however, the top 400 firms making community contributions were only at 0.42 per cent.^[2430] BITC brought the idea of employee volunteering to large firms through its Professional Firms Group. This was formed in 1989 and, by 1996, had 40 law firms among its 200-firm membership. The professional firms agreed to provide up to £5,000 worth of their professional services for specific projects at no charge. BITC was also active in the formation of the SPBG in 1996.

b. Corporate Clients and Corporate Social Responsibility

The diminution in state power caused by globalisation, combined with the grow­ing power of corporations made it difficult for individual states to control global corporations. This focused concern on issues of regulation. One proposal was that corporations should be encouraged to regulate themselves according to public interest criteria. This would require that they looked beyond the interests of their own share­holders when forming policy and making decisions.

The idea of a wider conception of corporate responsibility grew from the notion that companies should actively consider the interests of stakeholders, all those affected by their actions, as well as shareholders.^[2431] CSR is a business model building this idea into corporate self-regulation.^[2432] It typically involves corporations volun­tarily committing to a number of values.

The increasing financial success of large corporate law firms from the late-1980s was notable. They had increasingly adopted corporate identity but, unlike many cli­ents, had not accepted CSR as representing the firm’s values. As the 1990s progressed, large law firms came under increasing pressure from some corporate clients to make a public commitment to pro bono. British Aerospace, for example, announced that:

British Aerospace has a vision. We have five corporate values and one of those is partnership with the community. We want our law firms to be aligned to our values, to have a similar culture to our culture.^[2433]

When Zurich Financial Services joined the SPBG in 1999 it announced that it would be demanding a commitment to pro bono from its external lawyers.^[2434] One lawyer said that four other corporate clients had insisted on evidence of commitment to pro bono as part of tenders for their legal work.^[2435] In 2001 in-house legal departments in large corporations were committing to providing pro bono services and requiring that their external law firms did so.^[2436]

It is unlikely that the impact of client corporations was solely to force law firms to do pro bono. It is also likely that close relationships with clients committed to CSR led to law firms and lawyers absorbing some of the values of the volunteering culture in client corporations.^[2437] A recent survey showed that, in larger organisations, almost two-thirds of those responsible for the delivery of pro bono also lead on commu­nity engagement or charitable giving, and nearly 60 per cent are also responsible for Corporate Responsibility.^[2438]

c. US Law Firms

Another factor that may have influenced large firms was the example of US law firms in the City. US-based firms had been exposed to expectations of corporate pro bono for longer. Despite their lack of familiarity with local law, they were generally ahead of UK firms in performance.^[2439] In 2000, the Law Society hosted an ABA seminar on promoting pro bono in a global environment.^[2440] In 2001, firm leaders met to dis­cuss provision of joint programmes. Although offering advice on English law was a longer-term goal, the US law firms committed themselves to a variety of community schemes^[2441] and some appointed full-time pro bono officers.^[2442]

iii. Functions of the Pro Bono Culture in Large Firms

a. External Functions of Pro Bono

Performing pro bono work probably performs more functions than simply complying with the wishes of clients subscribing to CSR. It is also an opportunity to gain access to niche markets. For example, many large, non-governmental organisations make significant use of legal services. A spokesman for Freshfields, following the firm’s selection as legal consultants to Green Globe, an environmental pressure group, said

[w]e are happy to provide the service on a pro bono basis because it is a very good way of accessing a huge market which we think we are uniquely well placed to serve.^[2443]

It is generally accepted that CSR, and therefore, for lawyers, offering services pro bono, is a valuable marketing tool. In the US, for example, corporate charitable donations were forbidden except for the benefit of the company.^[2444] CSR overcame the problem of demonstrating shareholder benefit.^[2445] This was because cause-related marketing is an acknowledged technique for establishing a brand.^[2446] It demonstrates active engagement with the evolving corporate culture, potentially attracting corpora­tions seeking new lawyers.

Such is the success of contemporary legal pro bono publico, it is now common to find details of activity in the marketing brochures of large firms. An active culture and high value contribution sends many potentially positive signals. It suggests that the firm is entrepreneurial, outward looking and well-organised, with good staff morale. This tends to be supported by the strong correlation between successful firms, measured by size, number of associates and gross revenue, and the high volume of pro bono publico work performed.^[2447]

Another significant audience for the pro bono efforts of large firms is government. Large firm domination of the market place may accentuate inequalities in access to justice.^[2448] This may seem less offensive if, occasionally, access is supported. In this way, lawyers demonstrate their social responsibility and support for progressive social forces. The profession’s relationship with the state may also be eased when large firms are seen to be ‘doing their bit’.^[2449]

b. Internal Functions of Pro Bono

Providing pro bono opportunities serves positive internal functions for large law firms. An obvious area to benefit could be the internal culture of the firm. Pro bono provides a measure of a firm’s worth that does not depend on numbers of employees or profits generated. It provides an opportunity for younger employees to do useful work, developing skills and gaining confidence. It offers opportunities for employees from different parts of the firm to integrate. Performing pro bono work may also help to build the collective morale of the firm. A Mori survey in 2006 found that 58 per cent of employees in the UK thought that companies’ social responsibility was important, apparently partly because this enhances their self­image and esteem.^[2450]

US research shows that the opportunity for pro bono participation is often seen as a ‘life-style reward’, and is used to attract and keep staff.^[2451] Commercial firms, includ­ing ‘magic circle’ firms, publish details of their pro bono activities targeted at law students.^[2452] The internal functions of pro bono are well recognised in large law firms. The arguments for why firms should do pro bono have been crafted by the numerous external pro bono organisations. They have been adopted by proponents of pro bono within the firms themselves to convince sceptical colleagues. They have even been reproduced for external consumption.

D. Lawyers

While large firm engagement was one of the most noticeable features of the culture of pro bono emerging in the 1990s, it was not the only change. Pro bono moved up the agenda of many lawyers, as evidenced by the data on individual involvement in providing free services. One of the interesting issues about the change of culture surrounding pro bono is why lawyers engaged in this activity in ever increasing numbers.

The 1994 survey showed that advisory work at Citizens’ Advice Bureaux and Law Centres, conducted by trainees, was the major area of activity. The work of senior personnel was minor or highly specialised. For example, they might deal with appeals to the Judicial Committee of the Privy Council from countries that retained this appeal route on independence. Prisoners on death row in the Caribbean, for example, often could not afford lawyers. There was a long tradition in some London solicitors’ firms and barristers’ chambers of acting for free in such cases. The 2013 LawWorks survey showed that solicitors, and then trainees, were the largest participating groups, and that partners were the most difficult to engage.^[2453]

i. Trainees and Pupils

It is not surprising that trainees and recently qualified lawyers are the most enthusiastic proponents of pro bono. Increasingly, many will have experienced pro bono work at some stage in their education. This may help create sympathetic atti­tudes to those needing free legal services.^[2454] They may have less work pressure and therefore better opportunities for pro bono work. Trainees’ enthusiasm for it may be explained by their idealism and their motivation to help people. It may also follow from the fact that the value of work to the community is one of the least important factors in choosing employment for both males and females.^[2455] Pro bono work may be an outlet for altruistic feelings.

It may be that there are also less altruistic, more pragmatic, reasons for trainee involvement in pro bono. Barristers were always encouraged to do as much practical work as possible, for example, during the second six months of pupillage. When legal aid work was plentiful, pupils were paid. With the contraction of legal aid, pupils were increasingly encouraged to find alternative routes to gain experience of court work, hence the success of FRU.

Young barristers are not the only lawyers who may see pro bono as providing use­ful experience. Large firms often offer junior lawyers less contact with clients than do high street firms.^[2456] They can be well into the post-qualification period before they are trusted. Pro bono therefore provides an opportunity for large firm trainees to practise and develop their legal skills. Working for disadvantaged people with limited resources sharpens decision-making powers and increases sensitivity to the human dimension of complex problems.^[2457] This benefits the firm because it increases young lawyers’ sense of engagement with practice.

Pro bono may also provide opportunities for young lawyers to enhance their status and self-image. It gives them an early opportunity to be admitted to the ranks of ‘front-line’ professionals admired by the public.^[2458] Pro bono work also provides scope for developing powers of creativity. The Young Solicitor Group Pro Bono Awards usually include several nominations of young lawyers in large firms who have thought of ways of improving pro bono delivery.

Because many trainees have little experience of practice, their deployment invites the criticism that they are learning at the expense of clients who cannot afford ‘real lawyers’. Such criticisms may not be valid, since trainees often have recent exposure to welfare law. The pro bono protocol provides that all services have to be provided to the standard expected of paying clients. Many organisations train young lawyers from large firms so that they can give welfare advice.

ii. Senior Lawyers

Senior lawyers sometimes stumble across a case that they consider important. A recent report told of a case that may not have succeeded without pro bono. It featured a long legal battle waged by a Scottish off-shore construction surveyor (D) over a £1500 laptop.^[2459] A shop assistant said he could return the laptop if it was not suitable. It was then purchased with a £50 deposit and a credit agreement with a bank. The laptop was returned, and the deposit eventually recovered, but the bank insisted that payments be made under the credit agreement.

Important financial transactions attempted by D subsequently failed and he discov­ered that he had a negative credit rating. D claimed damages for financial loss caused by the damage to his credit. Sixteen year later, and with accumulated costs of around £250,000, D was given leave to appeal to the Supreme Court in a case involving a matter of public interest.^[2460]

LawWorks put D in touch with a QC who agreed to represent him pro bono. The court held that D was entitled to rescind the credit agreement. The Bank then had a responsibility to adjust his credit record accordingly. D was awarded £8000 in dam­ages. It was predicted that the case would change practice in the execution of credit agreements to the benefit of consumers generally.

Early large firm pro bono schemes built on the tradition of running sessions at local advice centres, but used trainees and junior solicitors. In the 1990s there appears to have been stronger efforts to involve large firm senior lawyers in working pro bono. Finding suitable free work for experienced transaction lawyers to do involved a shift in emphasis. Advising charitable trusts, or doing conveyancing for them, enabled older lawyers to contribute without the need to train to give welfare advice or go to Law Centres. There was an increase in organisations acting as brokers, putting together clients and pro bono lawyers.

A powerful factor in the increase in the spread of lawyers doing the work could be, simply that they were more likely to be asked. The work is often rewarding, in that cli­ents receiving free services may be more likely to be grateful rather than complaining. Large firm lawyers, who otherwise spend all their time working for large corporations, may appreciate the opportunity to fulfil a more social role. This has been put, a little unkindly, as allowing them ‘to feel a little better about themselves’.^[2461] Many senior lawyers may see the opportunity to work pro bono as a positive personal benefit.

E. Professional Bodies

Since the separation of the professions’ regulatory and representative functions, pro bono is one of the few areas of activity that the Law Society and Bar Council can directly influence. The professional bodies have a strong incentive to support high profile, public activity of this kind. A key part of the representative function of professional bodies is to promote the reputation of the profession. Public support for institutions is strongly influenced by knowledge of and respect for those institu- tions.¹8⁶ Pro bono is a very obvious source of acclamation.

Pro bono is also, potentially, a source of tension between different sections of pro­fessions. A former President of the Law Society expressed this in remarking that ‘if a big City firm is doing a certain amount of pro bono work this has far less value for ordinary people than pro bono work by High Street practices which are geared up for everyday problems’.^{[2462] [2463] The tension is not reduced when large firms get very positive press coverage of their efforts.[2464] Lawyers from regional and high street firms might wonder why similar fuss is not made of their own contributions. They sometimes sug­gest that pro bono is just a marketing opportunity for their wealthier brethren.}

The solicitors’ and barristers’ professional bodies have, to different degrees, reflected this ambivalence towards pro bono. This may be for fear of raising expecta­tions of what a profession can or is willing to do. It might be because of concerns about standards. The Law Society’s Working Party suggested that imposing a require­ment for pro bono publico work is counter to the Law Society’s role in promoting ‘high standards of integrity, a high quality of work and guaranteed compensation when things go wrong’.^[2465] Mainly, the ambivalence seems to reflect the desire to keep alive the argument that the state should pay for access to justice, not expect lawyers to pro­vide it for free. This argument has been made consistently since the 1990s.^[2466]

The link made between pro bono and reduction of legal aid provision is so famil­iar that it pervades the whole culture. Today, the promotional material of key pro bono institutions usually comes with a warning. It invariably states that cuts in legal aid pose threats to access to justice that pro bono cannot meet, and should not try to meet. Such fears are certainly not unfounded. In 2001, a judge in a family case told solicitors that they should act pro bono when costs limits imposed by the Legal Services Commission were exceeded.^[2467]

None of the professions has ever proposed a conduct rule regarding pro bono. It is very likely that such a move would be fiercely resented by sections of the memberships. Rather, the professions have settled into a supportive, if slightly detached role, in rela­tion to pro bono. They fund external organisations, support pro bono competitions and the like. This ensures that the professional bodies cannot be directly criticised for performance. It also means that it is easier to withdraw from any commitments.

Even if lawyers are not required to provide pro bono services, there is still scope for regulation. The marketing of pro bono for the firm’s benefit undermines the claim that it is an ethical act.^[2468] It might be better if publicity for pro bono publico could be used sensitively and to promote the profession as a whole. Regulation, therefore, could aim to control references to pro bono in firm brochures and publicity, maintaining the delicate balance between ethics and commercialism.^[2469] There is, of course, an argu­ment that such measures would be at odds with the minimalist regulatory strategy and not worth the effort involved in policing them.

F. Mixed Interests, Mixed Motivations

The culture of pro bono publico represents an interesting mixture of the various inter­ests and motivations. A good example of this is provided by the website of Allen and Overy, one of the City of London Magic Circle firms. The site candidly identifies five drivers behind Allen and Overy’s commitment to pro bono work. These are that pro bono is: the professional obligation of every lawyer; the provision of an interesting way to develop legal skills; a good marketing opportunity; a good sales window for recruitment and retention; and the means of fostering a sense of community within the firm.^[2470]

Whether it matters that individual lawyers are personally motivated to do pro bono work or not depends on whose perspective the issue is viewed from. Ordinary people are probably more concerned to have legal advice and help than why they receive it. Government is merely concerned that the pressure for access to justice is alleviated. Law firms may want to reach targets for pro bono for their own purposes. Lawyers would probably prefer not to be required to undertake pro bono, even if they would do it anyway. Professions would prefer not to have to make them because it is a poten­tially enormous task.

It might be a sign that the service ideal of legal professionalism is alive if pro bono was altruistically motivated. The plethora of reasons why pro bono seems to be more prevalent makes it tempting to adopt Menkel-Meadow’s description of ‘mixed motive altruism’.^[2471] This is not quite accurate though, since altruism is one of the many motives and pressures currently operating on lawyers who do pro bono. Arguably, the pro bono efforts of lawyers warrant praise when access to justice is the primary consideration. Others argue that motives underlying positive social behaviour do not matter. The reasons why people do good are complex and unknowable.^[2472] What mat­ters is that the work is done.

VIII.