The Pro Bono Wire
November 29, 2012

Seven years ago, prompted by a growing number of inquiries about global pro bono opportunities and efforts from law firms and legal departments, PBI asked Latham & Watkins LLP* to conduct a survey of pro bono practices and opportunities in various jurisdictions. The first version of that survey, published in 2005 (the second version was published in 2010), provided reliable and fact-based locally sourced information on the legal profession in each nation surveyed. The survey also provided information on legal needs and public provision of legal aid, pro bono opportunities, barriers to pro bono service, and pro bono resources. I am delighted to report that Latham has just completed the third iteration of this survey which has grown from a report on 11 jurisdictions, mostly in Europe, to one that covers more than 70 countries on six continents. The new report comprises the work of Latham lawyers and staff in its 30 offices around the world, coordinated and led by Gianni DeStefano and Wendy Atrokhov, with advice and information from local counsel and non-governmental organizations (NGOs). As the report foreword notes,

“[T]he conversation about global and international pro bono has shifted. Whereas the focus just a few years ago was on issues of permissibility and compatibility with the local legal system, the focus today is decidedly practical. . .and the question is how, not whether, pro bono representations can be undertaken.”

The work of PBI reflects this shift. During the past few months, PBI staff have visited London, Madrid, and Mexico City, and next month I will keynote South Korea’s first pro bono symposium. Travel aside, our consultations with law firms and legal departments increasingly focus on major global pro bono projects and come from institutions around the world. We cannot fully express our gratitude to Gianni, Wendy, and their team for their work and diligence. Look for the new report soon on our website as well as on Latham’s site.

The 400 page survey presents a current snapshot of the state of pro bono. Pro bono varies widely from country to country, but there is often a pattern of common themes and trends that emerge:

Growth in both transnational and international pro bono. As major U.S. and U.K. law firms and multi-national corporations establish or seek a presence abroad, they are increasingly expanding their pro bono efforts to include their foreign offices and legal staff. In addition, local firms, bar associations, law schools, and other groups in countries that do not have a substantial presence of global firms are also far more interested in pro bono service.

Public funding and pro bono. Many countries face continuing economic uncertainty. They have experienced secondary recessions and austerity budgets that sharply reduce government resources for legal aid, particularly in nations that have traditionally funded that aid at a relatively high level per capita, such as the U.K. and Australia. In these nations, and potentially in the many others where the provision of free legal assistance is very much seen as a government/public function, the growth in participation and visibility of pro bono may be a double-edged sword, offering a false rationale for deep cuts in public funding. Legal aid advocates have proposed a variety of strategies – from making pro bono conditional on matching government funding to making it clear that their pro bono efforts will not and cannot compensate for government cuts – but the timing of resource cuts creates tensions and poses difficulties for efforts to expand pro bono services.

Sourcing pro bono work/clearinghouse, nonprofit, and NGO readiness. One exciting development over the past seven years has been the substantial growth and expansion of pro bono intermediaries – global, regional, and national – that make it easier for law firms and legal departments to obtain meaningful and appropriate pro bono matters and projects. Some of these groups offer a full range of pro bono opportunities, while others focus on one or several targeted client groups or areas of practice. However, locating and undertaking global pro bono work is still far too difficult and time-consuming for law firms and legal departments. This problem is exacerbated by the unfamiliarity of NGOs and other clients with pro bono practice and how to effectively interact with and use the skills of pro bono counsel. As a result of the limitations of some pro bono intermediaries and many pro bono clients, law firms and legal departments eager to take on pro bono matters can become frustrated because their efforts and potentially valuable engagements do not come to fruition.

Barriers to pro bono service. Despite efforts to remove obstacles to pro bono service, substantial barriers still exist. In some countries, those barriers are cultural in nature. Pro bono service is seen as “alien” or a threat to the financial interests of the country’s lawyers. Although these cultural constraints are dissipating, ethical or practice restrictions continue to limit either overall pro bono participation or pro bono in certain practice areas such as litigation. There are some ongoing efforts to address these ethics rules and practice restrictions on a country-by-country basis, but to date they have experienced only limited success.

In-house pro bono. Despite formal pro bono efforts at in-house legal departments being a recent phenomenon in the U.S., many departments are particularly eager to involve their non-U.S. lawyers and staff in pro bono. However, in-house lawyers and staff outside the U.S. face more obstacles than lawyers in firms. First, many in-house department outposts are relatively small. Second, in-house lawyers face additional practice rule obstacles in many countries. The interest in pro bono at corporations is so high that for the first time in this version of the Latham study, we have included, where warranted, specific information on in-house pro bono.

Defining pro bono. There is no universal definition of pro bono, and it is likely that no single definition will emerge given the vast differences in culture, history, role, and evolution of the legal profession and justice systems among the world’s nations. We are, however, beginning to see the emergence of an informal consensus about the meaning of pro bono – that it is work done without compensation, using legal skills, and focused on improving society and its people by providing assistance where no such assistance exists. Outside of the U.S., league tables that track pro bono time and rank firms on their pro bono performance are either nonexistent or highly inaccurate. And, in considering the differences between justice systems around the world, that may be a good thing.

The Latham study is an essential and important tool, as well as a great and generous gift from the firm, for those seeking to understand and enhance pro bono service around the world. We will use that tool and work with the emerging community of global pro bono groups to do what we do best – help major law firms and legal departments around the world establish the pro bono policies, practices, culture, infrastructure, and projects that are most effective for them and for the clients they seek to serve.

* denotes a Signatory to the Law Firm Pro Bono Challenge®