November 10, 2004
The following is a summary of trends in law firm pro bono among larger law firms, based on the Pro Bono Institute’s 2003-2004 survey of major law firms, published data on law firm participation, and anecdotal information secured from confidential conversations and consultations with major law firms. This recap was developed at the request of Mayer, Brown, Rowe & Maw LLP as background for that firm’s strategic pro bono planning process. As with any aggregated information and data, this summary is not necessarily applicable to all major firms.
With that caveat, national trends include:
Substantially increased pro bono performance and participation
Both PBI’s survey data and published information (e.g., The American Lawyer’s pro bono statistics) indicate a significant upturn in overall pro bono hours and hours per lawyer among many, though not all, of the largest and highest revenue producing U.S.-based law firms. Increases have averaged between 14-20% during the past few years, significantly outpacing increases in law firm headcount during that period. In addition to overall improvement, firms, on average, report increases in participation by partners and by lawyers in non-litigation practice areas. For example, the PBI survey indicates that, on average, 42% of total pro bono work reported by firms responding to the survey were undertaken by non-litigators.
At multi-office firms, while there continue to be differing levels of participation, depending upon the pro bono culture of the city in which an office is located, the range of available pro bono opportunities, and other local factors, there is an overall trend among these firms toward greater equalization of pro bono performance among and between offices. This is due, in part, because of sustained and focused efforts to target and assist lower-performing offices.
Firms, overall, are diversifying the sources and types of pro bono work undertaken. Diversification includes the substantive area of work undertaken, the nature of the pro bono work (e.g., transactional, policy, litigation, research, etc.), and the scope, time demands, and duration of that work (individual matters, time-limited pro bono work, such as advice clinics, major litigation, signature projects, etc.)
More formal extensive pro bono infrastructures
There is a clear trend away from decentralized, laissez-faire pro bono and toward more structured and formal pro bono efforts within law firms. Many firms have revamped both the mission and the membership of their pro bono committees. These committees often include broad representation from all sizable practice groups and offices, involve both partners and associates, include cross-fertilization of membership with other important firm committees (e.g., policy or executive committees, committee on associates, evaluation, recruitment, etc.), and are increasingly involving lawyers not traditionally associated with pro bono practice. The mandate of these committees has also broadened. Typically, committees meet more regularly and exercise oversight over major aspects of the pro bono program, including updates and revisions of pro bono policies and practices, liaison with firm leadership, identification of potential special projects, review and assessment of pro bono performance by the firm and key elements of the firm, etc. Larger, multi-office firms thus report one or more local committees that interface with the firm-wide group.
Increasingly, top firm managers and other key firm leaders are more publicly supportive of and visibly identified with firm pro bono efforts. This occurs in a variety of ways - ranging from hands-on participation in pro bono to highly visible acknowledgment of notable pro bono work to making pro bono part of the agenda of partners’ retreats, all-lawyer meetings, visits to firm offices, highlighting the firm’s pro bono performance (including the need to improve pro bono hours where necessary), strategic planning meetings, gatherings of firm practice group leaders, orientation for new lawyers, and other firm events.
At larger firms, there is a clear trend toward involving “middle management” - i.e., practice group leaders, local office managing partners, etc. - in support for pro bono. This may include participation in the firm-wide pro bono committee, management or executive partner/chair discussions with practice group/office heads where pro bono performance lags, etc.
There has been a substantial increase, even at firms with fewer than 400 lawyers, in the creation of full-time or part-time pro bono positions. Although staffing models at successful firms vary widely, in general the trend is toward selection of a full-time attorney who works closely with an active and engaged pro bono committee. The number of pro bono partners (typically, though not exclusively, income rather than equity partners), though still small, is growing quickly.
The number of firms that formally recognize and acknowledge pro bono work has grown substantially. Many firms support multiple avenues for pro bono recognition, including pro bono annual reports (a particularly strong area of growth), pro bono newsletters, annual recognition events or a major pro bono component of other firm-wide events, pro bono awards, and specific pro bono bonuses, to recognize exceptional accomplishments, or charitable contributions made to the non-profit organization selected by the pro bono awardee.
In addition to strengthening their overall pro bono programs, firms are increasingly undertaking a variety of specialized pro bono efforts. These include:
• Rotation programs (sometimes known, in different cities, as externship or fellowship programs). In this model, firm lawyers - typically second or third year associates - are detailed to work full-time at a public interest group for three to twelve months. The number of rotation programs has increased dramatically during the past five years, and the scope of these programs has broadened. Several firms, for example, now have multiple rotation opportunities, including programs for litigators and non-litigators.
• Global pro bono. A growing number of firms are establishing vehicles to globalize their pro bono efforts. This began, not surprisingly, with those firms that have a substantial number of non-U.S. offices and attorneys, but has expanded, in recent years, to include firms with only one overseas office. Global efforts range in intensity and focus from increased participation in pro bono work in other nations by U.S. attorneys to multi-national teams from several offices cooperating on a single pro bono venture to signature projects that are replicated in and coordinated among several offices. A major firm is about to launch the most ambitious global effort known to PBI - a pro bono center, with rotating full-time participation by a number of firm attorneys, dedicated to addressing global problems.
• Signature projects. These firm-designated projects that focus on a particular area of law, client group, or community are designed to secure broad participation across position in the firm, offices, and levels of seniority. A growing number of firms have implemented or are designing signature projects.
• Pro bono partnerships with clients. Though still in their infancy, and challenging to construct, a number of law firms are now working with the legal departments of their corporate clients on joint pro bono ventures. Models that seem promising include jointly staffing clinics, working together on a discrete project, and jointly serving as general counsel to a mature non-profit organization. Our research has determined that such partnerships are quite fragile and vulnerable to stagnancy. Key elements of success include appropriate buy-in and infrastructure at both the firm and the department, meaningful roles for each partner that are cognizant of their respective strengths and limitations, finding the right project or matter, and involvement by top leaders and/or relationship partners.
• Transactional work. As noted above, the growth in non-litigation departments has spurred efforts to identify a steady stream of manageable, but meaningful, work for corporate and transactional lawyers. At some firms, almost half of all pro bono time is now being spent on transactional matters.
• High-end work. While law firms in Washington, New York, and San Francisco have long undertaken major, time-intensive pro bono matters, we increasingly see a demand for more complex, partner-appropriate pro bono engagements. In part, it is because this work, which offers intra-firm teaming opportunities, has multiple benefits for the firms. In addition, it permits firms to use their pro bono successes to market the firm internally and externally.
• Preferred partnerships. While broadening their range of pro bono work, a number of firms have established more in-depth relationships with a few key public interest providers that offer types of pro bono opportunities that are particularly meaningful and important to the firm. These partnerships often include regular communication concerning emerging issues and needs in the public interest arena, board membership, financial support, and the opportunity of first refusal concerning particularly attractive pro bono matters.
• Partner-driven pro bono. As noted above, at many firms, despite increased time and revenue pressures, partner participation in pro bono has increased. Techniques for enhanced partner involvement include broadened and more meaningful supervisory roles, more major cases and matters that require partner level expertise, signature projects, partnerships with clients, and efforts to locate individual matters that are tailored to areas of interest identified by specific partners.
Part of the clear transition from laissez-faire pro bono to more established and formalized programs is the movement away from an oral tradition and toward clear, written policies. Our survey reveals a highly pronounced trend toward written pro bono policies, particularly among larger firms and AmLaw 200 firms. While the level of detail of these policies varies widely, experience demonstrates that clarity and consistency are critical elements of a successful policy. It is essential that lawyers understand the firm’s overall approach to pro bono, how time spent on pro bono matters is viewed and treated, what firm resources are available to volunteers, how to locate and open a new pro bono matter, etc.
At many firms, new pro bono matter intake has been substantially streamlined and simplified, with routine matters from established referral sources deemed virtually automatically approved so long as there is no problem with the conflicts check. More controversial matters, or those that will require substantial expenditures of time and/or money, are still subject to review and approval at most firms.
While pro bono programs at multi-office firms preserve some level of flexibility and local control, a number of key policies and practices are routinely determined and promulgated uniformly within the firm, including the definition of pro bono, how matters are supervised, credit for pro bono hours, etc.
One of the most dramatic shifts in firm policies, particularly among larger firms, is the crediting of pro bono time. A majority of firms provide full credit/parity without limit. Among firms that do limit parity for pro bono time, the most typical “cap” is 50-99 hours. Many firms that cap time do so with the proviso that the firm may approve credit for a larger number of hours to avoid discouraging lawyers from taking on larger matters. Since firm policies and practices with respect to bonuses vary so widely, it is difficult to make a definitive statement concerning the treatment of pro bono time for purposes of bonuses. It appears that a larger number of firms now include at least some pro bono hours when assessing eligibility for bonuses, but that number is far less than the overwhelming majority providing credit for purposes of billable hour targets.
The vast majority of law firms now require partner supervision of every pro bono matter (though some firms also permit senior associates to supervise appropriate matters). Firm pro bono committees often view securing a broad range of partner supervisors as part of their mission.
There is some movement toward mandatory or quasi-mandatory participation in pro bono at a small number of firms. Since these initiatives are either quite limited in application or in a very early stage, it is difficult to assess how truly “mandatory” they are and their impact on firm pro bono performance. Several firms require first-years to undertake a certain number of hours of pro bono work, while a few firms report that an entire department has mandated pro bono service for its lawyers. Very recently, a major law firm articulated a strong expectation that every lawyer at the firm spend at least 25 hours annually on pro bono service. Since that experiment was put in place only this year, we cannot yet determine its effectiveness and impact.
Firms are increasingly routinely include pro bono work - either the issue of whether a lawyer has undertaken pro bono service or the quality and professional development impact of pro bono work or both - in periodic evaluations of associates. Techniques for doing so vary, but include information on time spent and an evaluation of the associate’s work prepared by the supervising partner in the associates’ evaluation file or participation by the firm’s pro bono counsel or partner in associate evaluation meetings. A growing number of firms are also including pro bono as one item to be discussed in partner evaluations and/or self-assessments.
There is a growing interest - which has not yet translated in any meaningful way into practice - in benchmarking pro bono matters by determining a reasonable range of time to be spent on certain types of matters undertaken in substantial numbers within the firm, assessing training and professional development consequences of pro bono matters, or quantifying other benefits from pro bono involvement, for the attorney, the pro bono client, and/or the firm as a whole.
Pro bono perceptions
Firms are increasingly viewing pro bono, not only as an ethical obligation, but also as a business strategy for the firm. Firms - and their clients - are enhancing the business case for pro bono by articulating the benefits to the firm of a first-rate pro bono program. Because of this, many law firms view pro bono not as a debit, but as a solid investment that will generate substantial returns for the firm.
Consistent with this view, firms are increasingly aligning pro bono with firm strategic business goals, including:
• Establishing a competitive edge in recruitment by repositioning the firm in the market for talent.
• Insuring that pro bono work offers training, professional development, and mentoring opportunities that enhance associate satisfaction and are consistent with the firm’s expectations regarding lawyer skills.
• Improving the firm’s image with its clients, competitors, and the public by employing pro bono work to generate positive coverage and increased visibility.
• Establishing the firm in new markets (geographic and substantive) by taking on pro bono matters that heighten the firm’s profile and credibility in those markets.
• Employing pro bono as a tool to create connections among and between lawyers in geographically distant offices and/or different practice groups through their participation in team projects or signature projects.
• Creating good will with clients through notable pro bono achievements. A small, though growing number of in-house legal departments routinely inquire about firm pro bono and community service activities during selection or retention procedures.
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