Best Practices Guide. for Law Firms

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1 Best Practices Guide for Law Firms

2 Best Practices Guide for Law Firms

3 DRAFT Best Practices Guide for Law Firms About PBLO PBLO s mission is to increase access to justice in Ontario by creating and promoting opportunities for lawyers to provide pro bono legal services to persons of limited means and to the organizations that assist them. PBLO brokers partnerships between high volume service providers, such as community legal clinics and charitable organizations on the one hand, and large firms on the other. PBLO works with law firms to formalize their pro bono programs. PBLO provides assistance in developing written pro bono policies, project consultation services, technical support, a Best Practices Guide, and help in developing signature projects. What is pro bono? PBLO s definition focuses on the provision of legal services to low income and disadvantaged individuals, or to clients whose case raises a wider issue of public interest affecting such individuals. The term also includes legal services provided to charitable organizations working for disadvantaged groups or for the public good. Some definitions include lawyers engaging in free community legal education and/or law reform. All definitions of pro bono include legal services that are provided without a fee being charged. The fundamental purpose of pro bono work is to increase access to legal services and to justice. Guiding Principle The guiding principle underlying the work of PBLO is that pro bono is not a substitute for a properly funded legal aid system. Pro bono should complement, not replace, government-funded programs to ensure access to justice. Pro bono should be viewed as an integral part of the legal services delivery system but not as a separate system. Law Firm Pro Bono in the Canadian Context The large Canadian law firms are beginning to shift from largely ad hoc and informal pro bono programs to structured, proactive efforts supported by firms top leadership, and overseen by active and respected pro bono committees. One of the most remarkable changes in pro bono practice at major law firms is the appreciation that pro bono can and should serve the firms strategic business goals, as well as advance the careers and hone the skills of their lawyers. 3

4 Canadian Law Firms are finding that pro bono can enhance important firm goals and functions. These include: Recruitment of New Lawyers The competition among large law firms for legal talent is intense. Law firms that support and encourage pro bono participation have a competitive advantage with many potential new firm lawyers. Young lawyers are increasingly looking at issues such as pro bono and quality of life when choosing where to work. Training and Professional Development One of the main complaints that young lawyers express is the lack of opportunity to develop the skills and expertise needed to advance in their firm. Pro bono teaches valuable legal skills that young lawyers may be unlikely to get from paying clients early in their careers, such as taking discoveries and arguing appeals. Pro bono opportunities also provide lawyers with the ability to exercise skills and judgement far more independently and at an earlier stage than comparable work for corporate clients. Personal Satisfaction Pro bono provides lawyers the chance to make a major difference in the life of a family or a community in dire need of services, and to work on matters where the individual lawyer s contribution is noticeable. Pro bono taps the idealism that drew some lawyer to the profession. Public Relations A law firm s pro bono program can be an effective marketing tool. Several firms have found that their involvement in major pro bono cases has lead to extensive media coverage. A firm s pro bono program can be something that differentiates it from other firms. Current Models of Law Firm Pro Bono Pro bono work can take many forms. While much pro bono assistance provided by lawyers involves legal advice and representation in the course of their normal practice, there are many other ways in which lawyers can undertake pro bono work to increase access to justice. The following is an overview of key models that PBLO has developed for Canadian law firms. Some firms may choose to adopt a combination of models. Pro Bono Partnerships Partnerships may take two forms: partnering with a community legal clinic or a charitable organization to provide legal services to the organization and/or the individuals the organization serves; or partnering with a corporation (usually a client) to provide a combination of legal and non-legal services to particular community organizations or targeted disadvantaged groups. Signature Projects firm identifies a particular social issue, such as children with autism, predatory lending or community revitalization, and applies broad based strategies and approaches to address the particular legal issues. 4

5 Pro Bono Menu firm offers a menu of pro bono opportunities available to their lawyers, including advice and representation for clients, community legal education and law reform activities undertaken within the firm. Brief Advice Clinics - lawyers sign up for a time slot on a clinic schedule; clinics can be held at a community legal clinic or charitable organization; participants of the clinic are advised that a lawyer or lawyers are available at specific hours to answer legal questions; and the lawyer assists in identifying legal issues, offering brief advice and/or referring to another program. The volunteer will ultimately choose whether to handle any cases that arise out of the clinic setting. This format has proven to be a convenient way for volunteers to fulfill their pro bono commitment. Secondments a very popular and effective way for firms to involve themselves in their local public interest communities. These programs allow law firm lawyers (generally associates or articling students) to spend a set period of time (usually six months) with a specified legal or public interest organization. When one lawyer/articling student s service terminates, the firm may send another to succeed the former rotating lawyer. The rotation program benefits the sponsoring firm by providing invaluable (frequently litigation) experience and honed advocacy skills. Formalizing Your Firm s Pro Bono Program Law firm pro bono programs are more likely to succeed when developed with a structured approach. Indeed, many Canadian firms have recently replaced their traditional ad hoc method to pro bono with a more planned and coordinated approach, with some even developing a Business Plan. Creating structures to organize pro bono efforts allows pro bono to be recognized as integral to the firm s operations. Getting Started Form a Pro Bono Committee The responsibilities of the committee should include: Developing, monitoring and implementing a written pro bono policy, distributing it throughout the firm, and including it among internal electronic postings of firm policies (sample policies attached); Defining pro bono for the purposes of the firm s program; Identifying how pro bono work will be counted and credited for the purposes of assessing performance, remuneration and advancement in the firm; Determining processes for overseeing and administering the program with clear lines of responsibility; Determining procedures for intake, file management and supervision; 5

6 Creating mechanisms to ensure communication within the firm regarding pro bono work; Considering record keeping and reporting mechanisms and requirements; Making arrangements for periodic evaluation and modification of the pro bono program. Defining Pro Bono for the Firm An important feature of coordinated pro bono programs is a definition that clearly states what is and is not pro bono. The definition should indicate the nature of the work, the scope of the pro bono program and eligibility criteria for assessing service requests. It will enable the firm to communicate its expectations and priorities to partners, staff and the general public. Firms need to determine how pro bono activities will be allocated to budgets and distinguished from other programs, such as charitable giving. Similarly, a clear definition will assist firms to determine which activities will count toward billable hours and be considered for performance evaluations. A firm s definition of pro bono is usually contained within its pro bono policy. Some policies include a definition with criteria, while others separate the definition from more explicit criteria elsewhere in the policy or in procedural documents. PBLO recommends that firms develop a working definition of pro bono together with criteria that guide the firm in choosing its pro bono activities. The definition is likely to remain the same over time, whereas the criteria might be adjusted as the program develops. Definition of Pro Bono Pro Bono Law Ontario recommends that firms define pro bono work as: The delivery of legal services without fee or without expectation of a fee to: a) Persons of limited means who have no other access to the courts and the legal system; b) Cases that raise a wider issue of public interest; c) Groups involved in community legal education and/or law reform; d) Charitable, economic development, arts, environmental and other public interest organizations. Many firms use this definition. Though broad it covers not only legal advice and representation but also law reform and community education it is nevertheless limited to work done by lawyers and does not cover other forms of assistance that firms may wish to consider for their pro bono programs. These would include 6

7 secondments of non-legal staff and/or the provision of financial or in-kind assistance to community organizations (such as community legal clinics and public interest organizations), which undertake activities that enhance access to justice. Pro Bono Legal Services Does Not Include: Non-legal volunteer activities; Sitting as a director of a non-profit organisation; Practice development and client maintenance activities; Continuing legal education (unless it involves training pro bono lawyers), speaking, writing or similar promotion activities when not associated with pro bono legal services; Contingency fee or spec cases; Law association activities not associated with improving the availability of legal services to persons of limited means, or for charitable, non-profit or public interests. Commentary: Many law firm pro bono policies define activities that are explicitly not pro bono. Including these activities further clarifies the firm s pro bono definition and removes room for argument in cases where there may be doubt. Many firms specifically exclude work done on behalf of staff, acquaintances, family members, or for existing or prospective clients for practice development reasons. PBLO recommends that firms make clear in their policies that pro bono work does not include matters that are covered by Legal Aid. Pro bono services should complement, not duplicate, government funded legal services programs. A number of firms with pro bono programs also do other work that benefits the community for example, charitable giving programs, sitting on community boards and non-legal volunteering with charities. These sorts of activities are not only beneficial to the community but also give the firm s non-lawyers the chance to be involved in community work. Lawyers and law firms are in a unique and, in most cases, monopolistic position to undertake such activities. Firms should encourage all types of volunteer activities, but distinguish their pro bono programs from their other community service work in order to keep the focus of the firm s pro bono work on activities that enhance access to justice. Treatment of Pro Bono Work A successful pro bono program requires the support and encouragement of firm management. There are several ways that firm management can send a strong 7

8 message that participation in the firm s pro bono program is not only encouraged, it is supported. PBLO encourages firms to: 1. Give credit for time spent on approved pro bono matters - Pro bono work should be treated the same as any other work undertaken by the firm: subject to the same procedures, supervision and review, and with the same recognition for time spent. Some firms have a cap on credit of 50 hours for pro bono work, while others have left it open-ended. 2. Staff and supervise pro bono matters Pro bono matters should be staffed and supervised in a manner that is consistent with the firm s commitment to providing excellent and efficient client service. Clients should feel they are receiving the same level of service as any paying client of the firm. Consideration should be given when assessing case referrals and the available pool of volunteers. Ensure that mentors are available to support less experienced volunteers. The firm should support training opportunities in areas of public interest law where lawyers express an interest, and where a pro bono program or legal aid clinic is available to provide training and/or mentoring. 3. Track pro bono matters - Firms should adhere to basic case management practices when tracking pro bono cases. Case files should be opened, assigned a case number and tracked until closing. Oversight and Management of the Pro Bono Program Determine the suitability of referred pro bono legal work; Track the level of commitment to pro bono work; Quantify the amount of pro bono being done as well as the benefits and the costs to the firm; Nurture a firm-wide pro bono culture; Develop opportunities for a greater range of pro bono opportunities so that lawyers in all practice areas of the firm can get involved in your pro bono program; Take on pro bono work on a more proactive basis; Provide better management and quality control of pro bono work carried out within the firm; Communicate the firm s activities to clients and the public. 8

9 Sources of Referrals of Pro Bono Work It is desirable that pro bono matters come to the firm by way of referrals from an existing pro bono program, community organisation, legal aid clinic, or public interest clinic. These organisations can act as a filter for the firm as they are usually frontline agencies that are well placed to identify cases and issues of merit and financial eligibility. Of course, some matters will inevitably come from within the firm or from other sources. Many of your lawyers may already be providing pro bono work for organisations or they may be sitting on the Board of a community-based organisation that could be a good referral source for your firm. PBLO recommends that you begin by: Surveying the firm s pro bono work, contacts and interests, and seek ideas for the program; Considering unmet legal needs and identify sources of work. Ensure that an individual in the firm is given responsibility for contacting relevant community organisations and others (such as pro bono referral schemes) and communicating with them on a regular basis; Identifying possible pro bono work and projects for different teams within the firm, including transactional (non-litigation) work, community legal education and law reform work; Identifying opportunities for involvement of all levels in the firm, including new graduates, and articled students (where relevant); Considering acquiring expertise in particular areas. PBLO also recommends that the firm s pro bono committee develop criteria and guidelines to determine what work will be accepted for the firm s program, on what basis and for which clients. They will allow the process for choosing cases to be both fair and defensible and will assist referring agencies to know which referrals are most appropriate. Pro Bono Case Selection Criteria To ensure optimal suitability and likelihood of success of pro bono cases, firms should develop the following sets of criteria: 1. Case Criteria a) Form of pro bono assistance to be provided: firms should consider the form of assistance they are able to provide, such as legal advice and assistance, law reform and policy work, community legal education and secondments; b) Other available resources: firms should gauge the availability of other resources, such as Legal Aid or a labour union, that may impact a given pro bono matter; c) Nature of case: for example, discrimination or environmental causes 9

10 d) Firm practice areas: some firms accept casework in relation to which they have expertise, for example, a number of firms with large intellectual property practices have stated as target areas representation of Aboriginal or low income artists e) Case exclusions: for example, criminal law; exclusions are usually based on the areas in which the firm does and does not have expertise (note: a requirement that the firm only accept matters in which it has appropriate expertise is often included as a separate criterion to be considered in each case); however, firms should consider the input of referral sources before definitively excluding an area of the law from its pro bono program: certain exceptions may be made depending on the particular needs of pro bono clients (for example, while it will not generally do criminal law, a firm may acquire the necessary expertise to do certain matters involving juveniles because a particular need for assistance in such matters has been identified.) f) Public interest criterion: Firms may or may not wish to have a public interest criterion for their pro bono work. PBLO recommends that firms adopt the following as key elements of their definitions of legal public interest matters: Matter affects a significant number of people; or Matter raises matters of broad public concern; or Matter impacts on disadvantaged or marginalised groups Firms may also wish to make clear in their definition of pro bono, or elsewhere in their pro bono policies, whether their program covers assistance in the form of secondments or in-kind assistance to community organisations that promote access to justice. 2. Client criteria - Most firms and pro bono programs consider the following: Financial means of the client, usually taking into account other forms of assistance (such as legal aid or a union) available to the client. Many definitions of pro bono refer to disadvantaged people and/or to people and non-profit organisations that cannot afford to pay full market rates. PBLO recommends that firms develop partnerships with pro bono programs or community organizations that will do the financial eligibility screening prior to referring the case. Some firms criteria give priority to particular client groups, such as people with disabilities, Aboriginal people and/or people from non-englishspeaking backgrounds. Many law firm pro bono clients are charitable and non-profit organizations working for disadvantaged people, including community legal aid clinics and public interest law organizations. A capacity to pay means test may 10

11 also be applied to these organisational clients. PBLO s definition of pro bono includes work done for charitable organizations where the payment of standard legal fees would significantly deplete the organization s economic resources or would be otherwise inappropriate. Pro Bono Acceptance Criteria- Conflicts, Resources & Expertise Other criteria that firms may wish to add to their definition of pro bono, or include elsewhere in their pro bono policy are as follows: Conflicts of interest It is vital that any actual or potential ethical or positional conflicts be cleared prior to accepting any pro bono matter; Firm resources - What resources will likely be required? Does the firm have available resources? Expertise- Are there people within the firm with sufficient expertise? Engagement letters for pro bono clients The engagement letter defines the client relationship, scope of services and potential termination of the representation, identifies responsible lawyers, allocates responsibilities and expenses, and includes waivers of future conflicts, as appropriate. Partnership Agreements or Memoranda of Understanding for Community Pro Bono Partnerships PBLO strongly recommends that the formation of these mutually beneficial associations be recorded. The Partnership Agreement or Memorandum of Understanding should set out: 1. Objectives, strategies and mechanisms for dealing with common issues in connection with the partnership; 2. An agreed minimum term (i.e., a one year pilot phase), basis for termination and a mechanism for periodic review; 3. The respective agreed roles, including the appointment of a relationship partner as a central point of contact; and 4. Identified areas of support and the basis of ongoing development of the partnership. Targets & Goals It is important for firms to understand that establishing a successful pro bono program doesn t happen overnight. Setting targets of 50 hours per lawyer or a certain percentage of the firm s billable hours may be setting the program up for failure. PBLO recommends developing your firm s pro bono program in phases: Phase One/Year One: Form pro bono committee, develop a written pro bono policy, identify appropriate pro bono model or focus for the firm; 11

12 Phase Two/Year Two Four: Monitor and expand your pro bono program; Phase Three/Year Five: Set aspirational goals or targets that establish an expected and appropriate level of pro bono activity. Conclusion Organized law firm pro bono projects provide your lawyers with an opportunity to give back to the community through their profession. PBLO will assist your law firm in developing a project that will meet the needs of individual lawyers, the firm culture, and the local community. PBLO is committed to assisting your firm in its pro bono efforts. 12

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