As reported last week, Australian lawyers have set a new record for the volume of pro bono work undertaken, going from 700,910 hours completed in the 2022–23 financial year to 781,596 hours in the most recent financial year, for an 11.5 per cent increase.

The data comes from the Australian Pro Bono Centre’s 17th Annual Performance Report, which analyses the pro bono work being undertaken by signatories to the National Pro Bono Target, a voluntary benchmark of 35 hours per private practice lawyer, per year.

At the big end of town, 58 large law firms (i.e. businesses with 50 or more FTE lawyers) reported on the pro bono hours of 18,263 lawyers. This cohort reported an average of 39.7 hours of pro bono work per lawyer, a 2.7 hour increase from FY23.

Just over one in two large firms (51.7 per cent) met or exceeded the target, for an increase of 30 firms from 27 last year.

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While the average increase in hours per lawyer and rise in firms achieving the target are commendable, the figures for large firms should be read in the context of having greater resources and capacity to undertake pro bono work, relative to smaller firms and individual practitioners – demographics which reported significantly higher hourly averages per lawyer in the last year.

Further, it appears that the average hours being undertaken by the entire demographic of large firms is being skewed by wildly varying performances by signatories.

One firm with 50–200 FTE lawyers completed an outstanding 96.6 hours, on average, of pro bono work per lawyer in FY24. On the flipside, just eight out of 28 firms with 50–200 lawyers met or exceeded the target – with one firm only completing 0.4 hours, on average, per lawyer.

Moreover, while one firm with 201–449 FTE lawyers undertook an average of 57.6 hours of pro bono this past year, another of a similar size completed just 7.2 hours per lawyer. And, among firms with 450 or more FTE lawyers, one firm undertook 61.9 hours per lawyer, while another completed an average of just 17.6 hours per lawyer.

Reflections on the performance of large firms

Speaking to Lawyers Weekly following the release of the annual results, Australian Pro Bono Centre chief executive Gabriela Christian-Hare said that, in the APBC report, the top 12 firms in Australia by size (i.e. firms with 450 or more FTE lawyers) are “all meeting, and many are far exceeding”, the target.

However, she added, there is a “real discrepancy” in the priority given to pro bono by firms that have between 50 and 449 FTE lawyers.

“Some are well exceeding the target, but many are falling short,” she observed.

Overall, she detailed firms with dedicated pro bono lawyers, who spend at least 50 per cent of their time on pro bono and oversee their practices, tend to do better.

“Those dedicated experts have specific skill sets to lead their firm’s pro bono practice, instil in the firm a culture of pro bono participation, and involve their firm in pro bono work that matches the skill sets of their lawyers and responds to a range of societal issues,” Christian-Hare explained.

“The formation of the Australian Community of Pro Bono Lawyers (ACPL) in Australia in 2023 – a network of over 125 dedicated pro bono lawyers around the country – further supports collegiality and the sharing of resources and pro bono best practice by these lawyers, assisting their firms’ pro bono practices to thrive.”

“We encourage firms which are falling short of the target to prioritise the appointment of dedicated pro bono lawyers,” she submitted.

APBC chair Phillip Cornwell noted last week that he was impressed by the growth in hours of pro bono work being undertaken across the profession, but added that there is room for improvement, particularly regarding what he noted as inconsistent results by larger firms.

“It is striking that half of the large firms are not meeting the target, with some missing it by a large margin,” he observed.

Cornwell then mused that such underperformance could have consequences for such firms: “I exhort governments and corporations to look closely at the pro bono performance of their panel firms, and consider how seriously they are taking the target.”

The nexus between pro bono undertakings and client retention

Earlier this week, Lawyers Weekly explored the shortcomings of law departments that are signatories to the target, and how in-house teams can better prioritise pro bono work.

However, while corporate counsel have work to do in bolstering their pro bono undertakings, those same teams and government departments may well be looking at the performances of their external providers and making determinations about whether or not to retain those practices on their legal services panels.

This is something that, late last year, Attorney-General Mark Dreyfus warned firms comprising the Whole of Australian Government Legal Services Panel about, ahead of the 2024 renewal of that panel.

The federal government intended, he posited, a letter sent to panel firms in the second half of last year, to work with other Commonwealth departments and agencies to consider the pro bono work done by legal services providers (including the Australian Government Solicitor) “when selecting which provider to engage”.

Dreyfus wrote: “While law firms engaging in pro bono work is not an alternative to an adequately resourced legal assistance sector, the government strongly supports the legal profession’s commitment to pro bono legal work, which supports the most vulnerable and disadvantaged members of the Australian community to access the justice system.”

“I strongly encourage all firms to meet the target ahead of any further changes,” he foreshadowed.

On the question of the extent to which governments and corporations should demand that their panel firms meet or exceed the target, Christian-Hare said there should be a reasonable expectation that firms making up a panel will fulfil their stated pro bono commitments.

“Pro bono is an important part of the profession, reflecting a lawyer’s duty to uphold the rule of law and the principle of access to justice,” she pointed out.

“Given the well-established pro bono sector, it is becoming increasingly expected that firms will prioritise this work, and those that have not yet met their commitments should be encouraged by their clients to do so.”

Dedicated pro bono practitioners

As the amount of pro bono work within the profession increases amid rising inflation and growing ESG concerns, Lawyers Weekly reported earlier this year that more firms are establishing “increasingly formalised” pro bono practices within a competitive yet collaborative landscape, striving to meet client expectations and attract socially minded talent.

Shankari Chandran, the former head of pro bono and community affairs at global firm Allen & Overy, who spoke on The Lawyers Weekly Show in January about her award-winning novel, Chai Time at Cinnamon Gardens, agreed, noting that pro bono is central to the longevity of BigLaw firms.

Responding to the notion that ongoing market turbulence may hinder a firm’s capacity to dedicate time and energy to pro bono, Christian-Hare reflected that while capacity constraints can sometimes hinder pro bono participation, as pro bono practices become more formalised within firms, “busyness plays less of a role”.

“Firms with strong pro bono cultures prioritise it regardless of market conditions by strategically planning, maintaining a steady pipeline of opportunities, and ensuring senior leadership fosters a culture that encourages and rewards participation even in turbulent times,” she opined.

Looking ahead

While lawyers can and should undertake pro bono hours, there are also ways the profession can better advocate for urgently needed resourcing for the legal assistance sector.

For example, Christian-Hare suggested lawyers can act by “highlighting the systemic demand for services and demonstrating the tangible impacts of well-integrated pro bono programs that can only be sustained with proper funding”.

Earlier this month, nearly $800 million in further funding for the legal assistance sector was provided by the federal government. It is yet to be seen if this injection of cash will sufficiently address community needs.

When asked if APBC remains optimistic about the growth of pro bono work being undertaken by Australia’s legal profession, Christian-Hare responded in the affirmative.

“[The growth being witnessed] stems from the recognition that pro bono involvement is now expected and standard practice. Many small firms and sole practitioners provide pro bono assistance as part of their everyday practice,” she said.

“As pro bono practices become more formalised, through the appointment of dedicated pro bono lawyers – including at the partnership level – and otherwise, the sector is expected to strengthen and expand.”