The implementation of legal pro bono schemes in America and Australia

Transcription

1 The implementation of legal pro bono schemes in America and Australia Jack Bradley-Seddon Churchill Fellow of

2 Acknowledgments First and foremost, I would like to thank the Winston Churchill Memorial Trust for this wonderful opportunity. On the one hand, the research has been interesting, insightful and at times, hard work; on the other, the chance to travel to two amazing places and to meet so many motivated people in my chosen field has been fantastic. Thank you for your continued support and assistance with co-ordinating the project. Second, a special mention to Courtenay Ellis (Washington DC) and Aron Ping D Souza (Melbourne) for going above and beyond the call of our friendship and for using their know-how, contacts and nous to set-up relevant meetings and to assist me with my research. I would also like to mention Diane and Greg Maunsell (Sydney) for their help. Finally, a thank you to the other organisations, people, law firms, law schools and public interest organisations that have contributed in one way or another. So many people have been so willing to offer their time, information about their particular involvement in pro bono work sometimes, even, a free lunch(!) and I am very grateful for this. -2-

3 Organisations and People Visited I am grateful to the following people for their assistance with my research and in the preparation of this report. William Alstergren SC Barrister, former Chairman of the Victorian Bar Council Annette Bain Head of Pro Bono and Community, Herbert Smith Freehills Professor John Banzhaf III Professor of Law, George Washington University Law School Lee Meredith Branson Associate Director, Office of Clinical and Pro Bono Programs, Harvard Law School Andrew Bullock Partner, Gilbert and Tobin Julian Clarke Director of Human Resources, Telstra Michael Coleman General Counsel for Business Support and Improvement, Telstra Dr Aron Ping D Souza Philanthropist and Honorary Consul of the Republic of Moldova in Australia Courtenay Ellis Partner, EllisWeber Law Offices Michelle Hannon Pro Bono Partner, Gilbert and Tobin Anton Hermann Director of Pro Bono, Minter Ellison Julian Hetyey Deputy District Registrar, Federal Court of Australia David Hillard Pro Bono Partner, Clayton Utz Heather Hodges Pro Bono Counsel, Neighborhood Legal Services Program Linda Hutton Business Support and Improvement, Telstra David Johnson Assistant Dean for Pro Bono and Advocacy Programs, George Washington University Law School Stephen Keim SC Barrister, President of Australian Lawyers for Human Rights -3-

4 Diane Maunsell Volunteer, Victims and Witnesses of Crime Support Justice Middleton Judge, Federal Court of Australia Georgina Perry Senior Associate and National Pro Bono Co-ordinator, Ashurst Professor Simon Rice Professor of Law; Director, Law Reform and Social Justice Australian National University College of Law Steve Smith Partner, Ashurst Larry Tanenbaum Partner, Akin Gump Strauss Hauer & Feld LLP Dr Joshua Wilson SC Barrister, former longstanding Board Member of the Public Interest Law Clearing House (PILCH) Paul Yates Head of London Pro Bono, Freshfields Bruckhaus Deringer LLP -4-

5 Contents Page 1. Executive Summary Genesis of the Project... 8 About Me... 8 My interest in pro bono work... 9 Genesis of this Fellowship What I set out to do Definitional Issues The importance of robust definitions Definitions versus guidelines Back-up bank of hours Lessons for UK pro bono Internal Organisation of a Pro Bono Scheme Issue 1: Whether the same person is head of pro bono and CSR Lessons for UK pro bono Issue 2: Whether the head of pro bono and/or CSR needs to be a lawyer Lessons for UK pro bono Issue 3: If the head of pro bono/csr is a lawyer, whether that person should be a partner Lessons for UK pro bono Issue 4: Whether pro bono has to be pro bono: the issue of reduced fees Lessons for UK pro bono Targets Issue 1: Whether targets should be compulsory Lessons for UK pro bono Issue 2: Whether, even if they are not compulsory, targets are nevertheless useful Lessons for UK pro bono Issue 3: Whether targets should be individual or collective

6 Lessons for UK pro bono Issue 4: Whether hours are a meaningful measure of contribution (in order that targets can be set) Lessons for UK pro bono Whether pro bono hours count towards billable hours The balance between pro bono and CSR Lessons for UK pro bono Reasons for pro bono Lessons for UK pro bono Miscellaneous Issues Niche/Signature Projects Lessons for UK pro bono Separate Foundations Lessons for UK pro bono Barristers and pro bono work Court Referral Schemes Court referral schemes the administrator s view Court referral schemes a judge s view Lessons for UK pro bono In-house legal teams and pro bono work Lessons for UK pro bono Law schools Organisation of clinical legal education Whether part of the degree programme Tailored financial aid Issues relating to cost Recognition of pro bono achievements Lessons for clinical legal educational programmes in the UK Disclaimer

7 1. Executive Summary 1.1 This report details the findings of my research into pro bono schemes in law firms (as well as their inter-relationship with corporate social responsibility (CSR) schemes) across the US and Australia. Further, this report looks at clinical legal education programmes in US and Australian law schools. Given the cuts to the legal aid budget in the UK, such schemes have become more important (although they can never serve as a substitute to legal aid) and therefore my research sought to identify methods of international best practice in order to maximise the social impact of the already substantial efforts being made. 1.2 This report does not detail every single meeting that I had, nor does it seek to retell every story that I heard or to describe in detail every anecdote I noted down. It does however seek to draw out the key themes of my research. Although these are summarised under the heading lessons for UK pro bono at the end of each section of this report, I set out below a brief summary of my key findings. 1.3 First, any law firm with a pro bono and CSR scheme should have a robust definition of what that scheme will and will not support. Pro bono means the provision of legal advice for free, and so work for public interest institutions on a reduced fee basis does not count. Such work can nevertheless be beneficial and should be undertaken: it should just not be reported as pro bono. 1.4 Second, in terms of the internal organisation of a pro bono scheme: it matters little whether the same person is head of pro bono and CSR but either way the head of pro bono should be a qualified lawyer. That person should not generally be a partner but should be a salaried administrator of the scheme with a title that reflects the significance of their position. 1.5 Third, targets are useful, but should not be compulsory and should be collective. 1.6 Fourth, hours are a meaningful way in which to measure contribution (but are not the only way). Firms should not use their charge out rates to calculate the value of their pro bono contribution since such rates can vary. Although some schemes, such as the London benchmarking group discounted charge out rate, have taken steps to address this it is nevertheless better just to state the number of hours of work completed in order to facilitate direct comparisons. -7-

8 1.7 Fifth, there should be a balance between the resources put into pro bono and those put into CSR schemes. 1.8 Sixth, the fundamental reason for pro bono schemes is professional responsibility. Although firms derive tangential benefits from running such schemes they should never be the main driver behind the decisionmaking of the scheme. 1.9 Seventh, the examples detailed in this report in relation to court referral schemes and in-house pro bono projects should be replicated in the UK to the extent possible Eighth, law schools in the UK should look to replicate the success that law schools in the US and in Australia have had in providing what I call in this report Rolls Royce clinical legal educational programmes where participation is for credit i.e. part of the degree programme, the scheme is organised by professional administrators and funded accordingly. Pending such a cultural shift towards the implementation of such programmes however, the existing schemes in many UK law schools (such as Oxford the scheme that I used to run) are admirable voluntary programmes which meet a social and an educational need in a meaningful way and are a step towards this greater cultural shift Turning to next steps and dissemination, I intend to send copies of this report to the following groups of organisations. First, to those who I met during the course of my research. Second, to the organisations whom the recommendations in my report are aimed at, namely law firms (including my own employer, Freshfields Bruckhaus Deringer LLP) and law schools (including my former University, Oxford). And third, to other relevant stakeholders such as the Access to Justice Foundation and LawWorks (the solicitors pro bono group). I will also endeavour to write an article in one or more industry publications (such as the Lawyer/Lawyer2b, Legal Week and the Young Lawyer) and/or other relevant platforms (such as the Oxford Human Rights Hub). 2. Genesis of the Project About Me 2.1 I have been interested in the law and becoming a lawyer from a very young age. I grew up on a farm in Derbyshire and studied for my GCSEs and A-levels at the local school. Although I had not met many lawyers or come into contact with legal issues, I had a gut feeling it was something I wanted to do and realised that there would be high academic requirements for entry into the legal profession. I therefore worked hard -8-

9 and, thanks to the benefit of the right support, came top of my year at GCSE and A-level, became Head Boy and participated in a variety of extra-curricular activities. Subsequently I was admitted to study Law at Oxford University. 2.2 I greatly enjoyed my time at Oxford and made it my mission to participate in all things legal, including pro bono work. Whereas I had barely met a handful of lawyers before University, afterwards I knew prominent members of the profession across the UK, India, China, the USA, Canada and (thanks to this Fellowship) Australia. All of this confirmed my ambition to work in the legal profession and I accepted a training contract with Freshfields Bruckhaus Deringer LLP in London, where I currently work. I am enjoying my training contract, have taken up pro bono opportunities where possible, and have applied to pro bono secondments at the firm including to work for the Tower Hamlets Law Centre and Liberty. More recently, as part of my work in the real estate department, I have acted for a law centre by preparing a licence for them to allow another pro bono institution to use part of their premises and by assisting with associated queries. My interest in pro bono work 2.3 My interest in pro bono work began at Oxford. I was coming towards the end of my first year when an was sent around asking for two volunteers to become Co-Chairs of Oxford Legal Assistance, 1 the undergraduate pro bono programme at the University of Oxford (OLA). I applied and to my surprise was selected as one of the Co-Chairs. The programme was very much in its early days: it had only been founded a year earlier, and the previous Co-Chairs had been instrumental in setting up a key relationship with a local legal aid law firm called Turpin & Miller Consequently, running the programme in its second year was hard work. There was no administrative support and between us myself and the other Co-Chair did everything to make the programme a success, including managing the budget, the relationship with Turpin & Miller, recruiting students (we had a full day of interviews from 9am until Turpin & Miller, 1 Agnes Court/Oxford Rd, Oxford OX4 2EW

10 9pm on one Saturday!), organising and running the sessions and reporting back to the Faculty members in charge of overseeing the scheme (who at the time were Alan Bogg 3 (now a Professor) and Professor Sandra Fredman 4 (the Faculty Members). 2.5 We were proud of our achievements in successfully overseeing the existing programme. But perhaps the more rewarding aspects of our efforts were the long term changes which we made to further the Picture from the end of year OLA drinks, where the Dean of the Oxford Law Faculty, Timothy Endicott (third from left) and Lord Macdonald QC (sixth from left) were present. initiative. During the course of the year we formed a new association with the Oxford Citizen s Advice Bureau (the CAB Scheme) and thus were able to expand significantly the number of students who could participate in the programme. Recognising that this addition had significantly expanded our remit as Co-Chairs and the pressures placed on us, we made a conscious decision to reform the structure of the committee for the following year with the addition of an extra person. We therefore had one person to run each of the existing OLA scheme and the CAB Scheme, as well as one person with overall responsibility, and with a particular remit to liaise with the Faculty Members, to generate sponsorship and to think of and organise new additions to the existing schemes if and when such opportunities arose. 2.6 To my delight the new structure has proved a success and was adopted for the next three years. The choice of person in overall charge of the committee was of course particularly important, and I was very pleased with our final choice, Oliver Persey of St Hugh s College. Over the course of the next year Oliver, together with his team, expanded the programme yet further by starting a mooting competition, as well as by securing a number of sponsorship deals with major law firms, which enabled the existing schemes to continue to prosper. I understand that a number of these deals are still in place

11 2.7 Although I am no longer substantively involved in OLA, the committee has now further expanded to include another Faculty Member and a graduate liaison officer. Genesis of this Fellowship 2.8 It was my involvement in OLA that first sparked my interest in pro bono work. Given the effort that had gone into running and expanding the scheme, the Co-Chairs were invited to speak at a conference about our experience in setting up and running the various projects and what lessons we thought would be helpful for others who were considering embarking on a similar path. 2.9 Of course it was rewarding to speak and to impart our experiences to others, but it was more interesting for me to learn about schemes at other Universities: how they were run, set-up, funded, administered and how long they had been there essentially to learn the mechanics of how they operated. I came to realise the vast differences between the schemes in existence: some had substantial budgets and were administered by professional support staff (like the scheme at Northumbria University 5 ); others were very much student run schemes (like our Oxford scheme); some had been running for years, others were just starting up; at some Universities participation in pro bono was incorporated into the law degree as a module upon which students were graded, and at others it was an extra-curricular activity Having realised that these differences existed, I thought that there was scope for research into how various pro bono schemes operated with the aim of identifying methods of best practice. In subsequent months, when I had attended various interviews at London law firms in the course of applying for training contracts, and having furthered my natural interest in pro bono by asking them about their pro bono initiatives, I came to understand the importance of such activities in the professional environment, the significant investments that many firms made in this area, and, like at University level, the important differences that existed between how schemes were administered. Since I was applying both to law firms headquartered in London and to international firms with a London base, I also identified certain differences in the cultural approaches towards pro bono work. I was very interested to research these differences further

12 2.11 At around the same time, I came to hear of the Winston Churchill Memorial Trust. After looking on their website I realised that my interest in pro bono work might be the sort of thing which would be funded by way of a travelling Fellowship. I therefore applied. I must admit I was slightly nervous at interview, and in particular when I saw the other candidates, many of whom seemed to be significantly older than me and accordingly more established and successful in their chosen careers: I had yet to begin mine! Nevertheless an interest is an interest, and my application was very much driven by the desire to research the subject matter, which I had been interested in for a very long time prior to this Fellowship. I was of course delighted to receive a Fellowship and am very grateful for all of the opportunities it has given me. 3. What I set out to do 3.1 I decided to visit the US and Australia and to research the implementation of pro bono schemes in both law firms and law schools. The US was a very obvious choice which did not require much thought: it is probably the biggest legal market in the world; many of the world s biggest law firms are headquartered there; many of these firms have offices in the UK and so their pro bono initiatives have a direct impact on UK citizens; I had noticed some cultural differences in the approach towards pro bono in UK and US firms which I had interviewed at; and I had heard anecdotally that US firms had a very well developed sense of philanthropy and enthusiasm for pro bono initiatives, which I was keen to investigate. 3.2 More thought went into the decision to go to Australia. I was keen to visit another country besides the USA to compare their approach to pro bono work. I also realised that a lot of the international legal market in many countries is dominated by US and UK headquartered firms; I was keen to avoid going somewhere where I would merely be covering the same ground. After a bit of research I realised that the Australian legal market was served by Australian headquartered firms and that the penetration of US and UK headquartered firms was perhaps less there than it was elsewhere in the world (although subsequently this has changed by way of mergers such as that between Herbert Smith and Freehills and between King & Wood Mallesons and SJ Berwin). I was also keen to explore the unique cultural and historical aspects of Australia which have influenced the approach of their law firms towards pro bono work. For example, the provision of free legal advice to aboriginal communities who represent a unique target group for many law firms is not a focus which has an easy analogy in other legal markets. -12-

13 4. Definitional Issues 4.1 Before getting further into the detail of this report, it is helpful to discuss a few definitional issues and issues relating to terminology in order to assist with setting out clearly the research done and to identify the scope of the significant debates. 4.2 First, there is a distinction between pro bono work and CSR. Pro bono work is work done by lawyers for free. The key aspects are that pro bono is (1) legal work only; (2) done by lawyers only and (3) for free. By definition pro bono work can only be done by law firms, companies with in-house legal teams or other entities which employ lawyers. 4.3 CSR, by contrast, is much broader. As the name suggests, it refers to businesses supporting various causes in society. Unlike pro bono work, (1) many non-law firms e.g. banks, large corporations, etc have CSR schemes; (2) CSR need not only be done by lawyers and (3) CSR need not necessarily be for free e.g. an organisation might make a contribution covering some but not all of a charitable purchase; or might support an organisation in other ways than providing legal advice for free. 4.4 Second, many law firms participate in both pro bono initiatives and in CSR initiatives (the balance between the two is different at different firms and was one of the aspects researched by this project). 4.5 Third, various entities have attempted to come up with definitions of pro bono work and CSR schemes, and various law firms have adopted slightly different definitions. There are many difficult questions in this area. For example, if a client asked a law firm to do legal work for free for a particular charity that the client supports as a condition of awarding business to that particular firm, the work done would still be pro bono work as defined above, but is arguably not in the spirit of what pro bono should be about. Despite these uncertainties and the difficult circumstances which can arise in practice, the core concepts as outlined above are a useful starting point. The importance of robust definitions 4.6 Definitions are not only of academic interest, but have an important everyday role in the implementation of pro bono and CSR schemes. Perhaps one of the key uses of definitions which I came across anecdotally in my research was as a defence mechanism for when members of staff (with good intentions) suggested projects which did not -13-

14 fit with the firm s pro bono and CSR objectives. 6 The classic example is of a highly regarded partner making a suggestion which is either (1) made with good intentions but does not fit within the firm s definitions or (2) is made at the suggestion of a client, but does not fit within the firm s definitions. In such circumstances it can be difficult for a more junior member of the pro bono/csr team to say no. Therefore, having a robust definition of what will and will not be supported can be very useful. Definitions versus guidelines 4.7 During my meeting with Annette Bain at Herbert Smith Freehills I learnt that her firm had approached the definitional question in a slightly different way by using guidelines instead of strict definitions. This was interesting because it was not something I had come across at other firms I had visited (for example both David Hillard at Clayton Utz and Georgina Perry at Ashurst Australia had strict definitions of pro bono). Although in practice it may be the case that Herbert Smith Freehills guidelines operate in a very similar way to the definitions of other firms, I think as a matter of principle it is better to use definitions than guidelines, not least because of the defence mechanism argument outlined above. Back-up bank of hours 4.8 I also came across one firm (which shall, at the interviewer s request, remain nameless) where, in addition to the longstanding pro bono and CSR projects, there was a back-up bank of four hundred pro bono hours to cater for ad hoc projects. This was designed with the situation described above in mind where a partner comes to the pro bono team with a specific intention to support a particular cause, whether because of personal involvement or because a client is supporting that charity and the client has asked that the charity be provided with legal assistance. 4.9 I had mixed views on this. On the one hand firms should be able to support projects that they want to: after all, they are paying for it. On the other, surely it is better that resources are directed towards longstanding, well thought out projects rather than towards ad hoc initiatives which have been suggested by a particular partner. Lessons for UK pro bono 4.10 In conclusion, I think it is important for all law firms which have pro bono and CSR schemes to have strong definitions of what constitutes pro bono and CSR work and, by implication, to regulate what projects are 6 For example, this was confirmed to me by David Hillard at Clayton Utz. -14-

15 supported with a firm hand. This can also operate as a defence mechanism when partners with a high status within the firm suggest projects which do not fit within the definitions I do not think it is a good idea for firms to have a back-up bank of pro bono hours to invest in one-off projects when particular partners/clients make requests. If firms support particular pro bono initiatives at the request of a particular client and gain a business advantage by doing so, that interest should be disclosed when the pro bono hours are reported. 5. Internal Organisation of a Pro Bono Scheme 5.1 During the course of my research I asked interviewees about how their pro bono schemes were organised internally, and, based on the answers that I was given, thought about methods of best practice. Outlined below are four issues on which I formed particular views in relation to internal organisation. Issue 1: Whether the same person is head of pro bono and CSR 5.2 During my research the majority of the firms I visited were organised such that the same person was head of both pro bono and CSR. For example, this was the case for Anton Hermann at Minter Ellison and for Annette Bain at Herbert Smith Freehills. This seemed to be a sensible approach: to have one person in charge of areas that, although different, are broadly similar. However, Ashurst Australia had separate people in charge of pro bono and CSR. Lessons for UK pro bono 5.3 I do not think it makes a difference whether the same person is in charge of pro bono and CSR. I can see how it makes sense to have one person in charge of what are broadly similar areas, and how this would particularly be beneficial for firms with smaller budgets allocated to these areas. However I can also see that separating out the roles might allow the respective individuals to focus more on their particular specialism. Issue 2: Whether the head of pro bono and/or CSR needs to be a lawyer 5.4 The majority of the people I met who worked in pro bono at law firms were lawyers by background. They tended to be lawyers who used to be a fee-earner at the firm in question, although occasionally were lateral hires. 5.5 I agreed with the approach taken that the person in charge of pro bono should be a lawyer by background: they are organising legal work, often -15-

16 participate in the schemes themselves, and are well-placed to understand the pressures on fee earners who are trying to combine pro bono work with client work. However, I saw no reason why the head of CSR need necessarily be a lawyer (although, for example, in many cases e.g. Minter Ellison it had to be a lawyer since one person was in charge of both). I think that a CSR scheme could be organised by an administrator who was not a lawyer, especially because such schemes do not need to have a legal focus. Lessons for UK pro bono 5.6 The head of a pro bono scheme should be a qualified lawyer: they are organising legal work, often participate in the schemes themselves and are in a position to understand the pressures on fee earners. 5.7 If the head of pro bono and head of CSR are not the same person, the head of CSR could be a non-lawyer. Issue 3: If the head of pro bono/csr is a lawyer, whether that person should be a partner 5.8 A further issue which I researched was the internal status of the head of pro bono and/or CSR. I generally found that the relevant person was not a partner in the firm. 5.9 This seems sensible, although this issue sparked further thought from me because I had come across other firms where the head of pro bono was a partner. Before getting into the detail of my thoughts on this it seems sensible to outline a number of possibilities in terms of internal organisation: (1) the head of pro bono could be an equity partner, who although sharing in profits, administers the pro bono scheme and does not do or does very little fee earning work; (2) the nominal head of pro bono could be a partner, but the substantive work of administering the scheme is done by a non-partner, who reports to the partner, whilst the partner continues to do fee earning work; or (3) the head of pro bono could be a non-partner. From my research I have found that, Meeting with Georgina Perry generally speaking, the head of pro bono at Ashurst Australia tends to be a non-partner, for example Anton Hermann at Minter Ellison and Annette Bain at Herbert Smith -16-

17 Freehills. The exceptions to this were Clayton Utz and Gilbert and Tobin, where the heads of pro bono, David Hillard and Michelle Hannnon respectively, were partners. 7 The concern I had with this approach related to career progression: I thought that ambitious young lawyers might be put off taking on significant organisational responsibilities in terms of pro bono if it might limit their career later on. But on further reflection I think the current approach taken by most of the firms that I visited (of having a professional administrator in charge rather than an equity partner) is probably the right way to go First, with reference to my earlier point about career progression, taking on an organisational role in pro bono is an active choice taken by those who choose to leave the career path of progressing as an associate and potentially a partner in a law firm; those wishing to continue to do so whilst participating in pro bono can achieve this by not taking on an organisational role. Second, there is a resources issue. It is no secret that partners in large international law firms are remunerated very well. If one of these partners were to focus on pro bono it would effectively mean that a higher proportion of the monies dedicated towards pro bono and CSR initiatives by a law firm were directed towards the remuneration of that particular partner, rather than towards the underlying projects. Put another way, rather than having a pro bono partner, why not employ a professional administrator on a far lower rate, and use the rest of the equity to fund the projects? 5.11 I should add that, at Gilbert and Tobin (where I met Andrew Bullock, partner, 8 and Michelle Hannon, partner and head of pro bono and CSR) 9 the lawyers involved in administering the pro bono programme did so on a rotational basis. With reference to my earlier point above about pro bono organisation limiting career progression, this seems like the perfect solution since in any event the lawyers involved in administering the scheme are only doing so on a short-term rotational basis. However, I did not draw any overarching lessons from this since I also found out from my research that the majority of firms do not organise their pro bono schemes on this rotational basis. 7 and

18 Lessons for UK pro bono 5.12 It does not seem to make sense for the person in charge of pro bono/csr to be a partner: the funds needed to remunerate this person could be better put towards the underlying projects. Rather, in line with the approach taken by a lot of the firms that I visited, the head of pro bono/csr should be a non-partner with a title to reflect their role, in the same way that the heads of finance, marketing, etc in major law firms are not partners but are nevertheless important people within the business Pro bono/csr teams should be staffed by permanent members of staff. Although having lawyers work pro bono on a rotational basis has its attractions (in terms of participation rates, for example) I think the benefits to pro bono schemes of having organisational continuity outweigh this advantage. Issue 4: Whether pro bono has to be pro bono: the issue of reduced fees 5.14 A further issue which I came across perhaps it can be termed partial pro bono is when firms agree to take work on a reduced fee basis if it is too big to do pro bono. For example, Georgina Perry at Ashurst Australia and Andrew Bullock at Gilbert and Tobin informed me that sometimes they do this. I have also come across this at UK firms which I have visited Referring back to the initial definition of pro bono posited that legal advice needs to be given for free I do not wish to denigrate from this fundamental principle by including reduced fee work within it. However at the same time I can see the social value in firms taking on projects for reduced fees if the project would simply be too large to do on a pro bono basis I think therefore that it comes down to reporting. There is no reason why firms should not look to take on big projects, which would otherwise be done pro bono but for their size, on a reduced fee basis. But such work should not be reported as pro bono work: it should be separated out and reported for exactly what it is e.g. under a heading of work done on a reduced fee basis for clients who would otherwise qualify as pro bono clients. Lessons for UK pro bono 5.17 Work done on a reduced fee basis does not fit within the definition of pro bono work pro bono work must be done for free. However, firms should look to take on work which would otherwise be pro bono on a -18-

19 reduced fee basis in limited circumstances. In such cases the work should be reported for exactly what it is: work done for clients on a reduced fee basis. 6. Targets 6.1 From talking to various members of the pro bono community in the course of my research I came across varying attitudes towards targets. 6.2 In Australia an organisation called the National Pro Bono Resource Centre 10 has set an aspirational target of thirty five hours per lawyer per year of pro bono work. Some of the firms which I visited did not sign up to this target and articulated convincing reasons for not doing so. For example, Anton Hermann informed me that Minter Ellison did not subscribe to the aspirational target because it is not all about the number of hours, but the quality of hours. Anton cited an example of the difference between, on the one hand, helping a multinational non-profit organisation with a non-urgent intellectual property dispute, and, on the other, cancelling thousands of dollars of fines for a homeless person who could not afford to pay. This sentiment in relation to the quality of hours was also echoed by Andrew Bullock at Gilbert and Tobin. 6.3 In order to have a meaningful discussion about this I think it is necessary to separate out issues relating to (1) whether targets should be compulsory; (2) whether, even if they are not compulsory, targets are nevertheless useful; (3) whether targets should be individual or collective and (4) whether hours are a meaningful measure of contribution (in order that targets can be set). Issue 1: Whether targets should be compulsory 6.4 Targets do not imply compulsory pro bono: clearly there is a big difference between setting a target and making a target compulsory. During my research I did not come across compulsory targets set at a national level. However, I did come across two types of compulsory targets. First, candidates seeking admission to the New York State bar must perform fifty hours of pro bono services. Second, during my discussions with David Hillard at Clayton Utz I learned that associates must complete at least forty hours of pro bono work in order to be eligible for a bonus. 6.5 Addressing the point about compulsory targets at a national level I do not think that this is a good idea. If this were introduced it would be like 10

20 a tax on the legal profession, and other professions do not have similar taxes imposed on them. There would also need to be some sort of national framework to assess whether the targets were being met, which in turn would cost money. 6.6 Nevertheless, I do think that having compulsory pro bono as a criterion of admission, such as in New York, is a good idea. This type of target is different to the one outlined above, since it is a one-off target. The difference is that a compulsory target for all lawyers would be a recurring target and would represent an onerous obligation on firms, and particularly smaller firms with lower levels of resources. Meeting at Clayton Utz Lessons for UK pro bono 6.7 Turning to Clayton Utz s requirement of forty hours of pro bono work in order to be eligible for a bonus, I have mixed views. I think this is a matter upon which reasonable people could disagree, and upon which firms should be able to set their own rules. Notwithstanding this my personal view is that it is not a good idea. This is partly because I believe targets should be collective (it should not matter who the pro bono hours are done by as long as they are done see discussion below) I am therefore inevitably going to disagree with any policy which effectively forces every lawyer in a firm to participate. 6.8 Compulsory targets are not a good idea and would operate like a tax on the legal profession. 6.9 Targets set by firms in relation to pro bono should not be compulsory: lawyers should participate because they want to and because they see it as part of their professional responsibility to do so. Issue 2: Whether, even if they are not compulsory, targets are nevertheless useful 6.10 Again I came across mixed views on this issue from the people that I met. Annette Bain at Herbert Smith Freehills came out strongly against targets, citing an example of a lawyer with a new baby whose heavy workload would not be helped by a pro bono target. Andrew Bullock at Gilbert and Tobin also came out strongly against targets, stating that people should participate in pro bono work because they want to and not because they -20-

21 are being forced to. However, other firms that I went to did have internal targets, for example Ashurst Australia and Clayton Utz Personally, I think collective (where it does not matter who does the pro bono hours as long as they are done) targets are a good idea. I think collective targets, as distinct from individual targets, address the concerns of Annette and Andrew above. Since it would not matter who actually completed the pro bono hours, there would be no added pressure on the woman with a new baby and the reluctant pro bono participant their hours could simply be completed by someone else. Moreover, by giving the freedom to complete more hours to another lawyer, it would enable them to take on a large pro bono case which they might not otherwise have been able to. Lessons for UK pro bono 6.12 Pro bono targets can be useful as long as they are collective targets which do not force people to participate who cannot because of other time pressures or because they do not wish to. Issue 3: Whether targets should be individual or collective 6.13 There are a number of arguments to discuss here. Georgina Perry at Ashurst Australia pointed out to me her thoughts that it does not matter which lawyers do the pro bono hours as long as they get done. It is also worth pointing out here that some lawyers skills are more suited to pro bono work than others: practice areas like employment and landlord and tenant tend to be in demand, whereas it is difficult to imagine significant demand for securitisation lawyers to work pro bono. Surely, therefore, it makes more sense for an employment lawyer to do seventy hours of pro bono work than for them to do thirty five and a specialist finance lawyer (whose skills are not in demand) to do thirty five? 6.14 The final argument in favour of collective targets which I came across is the big case argument: by having collective targets, it allows an individual lawyer to take on a big, important pro bono case which they would not otherwise have been able to if they were just trying to fulfil their own individual target (this argument was made to me by Larry Tanenbaum, a partner at Akin, Gump, Strauss, Hauer and Feld LLP in Washington DC). I also came across this anecdotally when visiting Heather Hodges, pro bono counsel at the Neighborhood Legal Services Program in Washington DC. 11 Heather explained to me how, through their links with Covington and Burling, an attorney there had been able to

22 spend seven hundred hours on a particular pro bono case. I do not believe such efforts would have been possible without collective targets Program in Washington DC. 12 Heather explained to me how, through their links with Covington and Burling, an attorney there had been able to spend seven hundred hours on a particular pro bono case. I do not believe such efforts would have been possible without collective targets. Meeting with Heather Hodges (third from left) and other pro bono attorneys at the Neighborhood Legal Services Program in Washington DC

23 6.16 On the other hand, there are strong arguments in favour of individual targets. Individual targets increase participation rates, and if you accept many of the arguments in favour of doing pro bono work (relating to staff motivation, etc.) then it should be beneficial to increase participation rates. Further, a counter argument to the one above relating to the skills of different lawyers is that, for example a specialist finance lawyer whose skills are not in demand for pro bono work could develop a second specialism for a specific type of pro bono work, for example in relation to social security claims, or asylum tribunals, etc. That said though it may be unlikely that their skills in this second area would ever match those in the primary area of practice. Lessons for UK pro bono 6.17 My personal view is that pro bono targets should be collective. There are many arguments in favour of this: lawyers should not be forced to do pro bono if they are unable to participate (the new born baby example) or do not wish to participate; collective targets allow certain lawyers to take on bigger cases; the same number of pro bono hours will still be done and lawyers whose practice areas lend themselves to pro bono can do more hours. Issue 4: Whether hours are a meaningful measure of contribution (in order that targets can be set) 6.18 Many of the lawyers I met during the course of my research pointed out the following: (1) if their particular firm did not set any targets in terms of hours, they would point out that hours are not the only way to measure contribution; and (2) even in firms where targets were set in terms of hours, they would point out that there can be huge differences between the quality of pro bono hours. The example given to me was of the qualitative difference between helping a large non-profit multinational with a non-urgent intellectual property dispute and helping a homeless person get an illegal fine cancelled I agreed with the views presented to me that there can be a huge difference between the quality of hours and in terms of the social impact made by certain pro bono initiatives over others, but I still think hours are a useful yardstick by which to measure the contribution of various law firms towards pro bono initiatives. For one thing hours are a measure which facilitates direct comparison: every firm can record how many hours they do. It would be too difficult to compare individual qualitative assessments from every firm in any meaningful way. I therefore think -23-

24 hours are a valuable measure of pro bono contribution, but not the only measure I should also mention here the debates that exist around accounting for pro bono work. On the one hand, some firms may work out their pro bono contributions according to the formula: hours done multiplied by the charge out rate of our lawyers. Not surprisingly pro bono contributions calculated in this way can soon run into the millions! But there are fundamental problems with such calculations: different firms have different charge out rates, and so on this model expensive firms can rack up ostensibly impressive pro bono contributions whereas cheaper firms contributions are paltry by comparison. Further, one wonders whether the same strict approach to write-offs is taken where there is no end client to question the bill One solution to this would be to agree a flat charge out rate to use when calculating pro bono contributions. This approach has already been taken in places, for example through the implementation of the London benchmarking group discounted charge out rate. Whilst the efforts to get away from accounting based on hourly rates are admirable, I still think the simplest answer is just to quote the hours worked. That way there can be no dispute or query about the charge out rate used to calculate the contribution. Lessons for UK pro bono 6.22 Although hours are not the only way to measure pro bono contribution, they are nevertheless a useful yardstick because they represent a way of directly comparing the contributions made by various law firms. 7. Whether pro bono hours count towards billable hours At almost every law firm that I visited pro bono hours counted towards billable hours. This seems sensible and I would advise that law firms in the UK adopt this approach (which they broadly already do). 8. The balance between pro bono and CSR 8.1 A further area which I researched was the balance between pro bono and CSR in various law firms. Assuming a finite budget, the allocation of resources between pro bono and CSR can be a matter of debate. The arguments in favour of each are outlined below. -24-

25 8.2 On the one hand, it might be said that law firms should prioritise pro bono work since this is how they can be most useful to society. The argument runs that lawyers can make a larger social contribution by using their legal skills than by making contributions in other areas of CSR in which they have no skills. This argument was advanced to me by Annette Bain at Herbert Smith Freehills, who stressed that only lawyers can undertake pro bono work whereas CSR activities can be undertaken by a much broader variety of people. A separate but unrelated point can be made in relation to the Meeting with Annette Bain at Herbert Smith Freehills measurement of pro bono contribution. If a firm measures pro bono contribution in terms of the number of hours multiplied by the hourly rate of a particular lawyer, it is arguably better in terms of social contribution that these hours are spent doing legal work than say, planting trees (or whatever the CSR activity may be), which could be done by anyone and does not require any legal skills. 8.3 On the other hand, there are many reasons in favour of prioritising CSR activities over pro bono work. First, not all staff at a law firm are lawyers and it is important that everyone can participate (although arguably separate CSR schemes could be established to cater for this). Second, there is an argument in terms of staff motivation. For Anton at Minters the choice is simple: give staff a choice between CSR activities such as mentoring young children and pro bono legal work, they will generally pick the CSR activities. Presumably this is because such activities are more enjoyable and represent something different and new as distinct from a continuation of everyday legal work. Lessons for UK pro bono 8.4 Since there are convincing arguments in favour of prioritising both pro bono work and CSR, my conclusion is that firms should invest resources in both pro bono and CSR schemes, but should take care not to focus too much on one at the expense of the other This view was shared by Georgina Perry at Ashurst Australia. -25-

26 9. Reasons for pro bono 9.1 Another aspect of my research was to look into the motivations behind pro bono schemes why big law firms consistently invested large amounts of money into such schemes. I therefore raised this question during my meetings. 9.2 This question is not just of academic interest I think that the answer also affects how pro bono schemes are run. For example, if you believe that the reason for pro bono is individual professional responsibility, then collective targets do not make sense, whereas they would do if pro bono was about making social contributions as a firm. 9.3 I pretty much always got the same answer back from my questioning the fundamental reason for having a pro bono scheme is professional responsibility. This view was, for example, shared by David Hillard at Clayton Utz, Courtenay Ellis at Ellis Weber and Andrew Bullock at Gilbert and Tobin. Since we as lawyers hold the keys to the gateway into the legal system, we should make an effort to ensure that everyone has access to that gateway. 9.4 Notwithstanding this altruistic reasoning, there are also a number of pragmatic reasons why major law firms invest in pro bono schemes. First, client pitches. Many clients ask about pro bono during the course of pitches, and there is a requirement that a certain level of pro bono work is completed in order to be on the panel of legal advisers to certain banks (there is also a requirement in relation to government work in Australia). Second, for training purposes. Pro bono cases can be a good way to give junior lawyers more responsibility and thereby allow them to develop their skills: good pro bono lawyers need the same skills as good lawyers generally. Third, for publicity. Pro bono/csr schemes generate good publicity for law firms, which can assist e.g. in the recruitment process. Fourth, for intangible benefits, such as staff motivation, getting lawyers and staff members working together who would not normally work together and the fact that pro bono is now widely viewed as an essential item in a law firm, as much as a desk and a chair Although the pragmatic reasons why law firms participate in pro bono schemes cannot be ignored, my personal view after conducting my research is that the majority of firms are committed to the cause beyond the requirements that these pragmatic benefits would support. For example, although firms need to do a certain amount of pro bono work to 14 I am grateful in particular for the latter argument to Annette Bain at Herbert Smith Freehills and to David Hillard at Clayton Utz. -26-

27 be on the panels of certain banks, they generally do significantly more than is required as such, this pragmatic benefit is a tangential benefit and is not the main reason for embarking on the pro bono work. Lessons for UK pro bono 9.6 The fundamental reason for investing in pro bono schemes is professional responsibility. Although firms derive tangential benefits from such schemes and rightly so, since after all they are businesses and need to succeed in order to run the schemes these benefits should not be the main drivers behind decision-making in relation to the scheme. 10. Miscellaneous Issues (Niche/Signature Projects and Separate Foundations) 11. Niche/Signature Projects 11.1 I also researched the tendency among some law firms to develop a certain pro bono niche and/or to focus on a particular type of project (called a signature project). The benefits of doing this relate to publicity and becoming known for a particular type of work, and also to internal organisation: it is easier to organise projects when there is an institutional knowledge of that particular area. For example, Anton Hermann focussed (although not exclusively) on homeless clinics and mentoring in schools, whereas Georgina Perry at Ashurst Australia had no specific focus and participated in a variety of different schemes. Lessons for UK pro bono 11.2 I have no particular view on this. I can see how some firms may want to focus their efforts on a specific area, and how others may wish to be more diverse. I think that this should be left to the discretion of individual law firms. 12. Separate Foundations 12.1 I also came across some firms which had separate foundations to run their pro bono/csr activities. For example, legacy firm Freehills used to have a separate foundation, and Clayton Utz has a separate foundation through which to organise some if its charitable activities. Lessons for UK pro bono 12.2 I have no particular view on this. I can see the benefits of channelling charitable activities through a purpose-built vehicle, but on the other hand the administration of such a professional entity may add to the cost of the -27-

28 scheme. I think that this should be left to the discretion of individual law firms. 13. Barristers and pro bono work 13.1 During my time in Australia I was also privileged to meet Stephen Keim SC 15 and a number of other barristers who participated in pro bono work. As an Australian barrister, Stephen rose to prominence mainly because of his representation of Indian-born doctor Mohamed Haneef in his application for judicial review of a decision to revoke his Australian visa, which was covered heavily in the Australian media. Stephen was also elected as President of Australian lawyers for human rights in I was interested to learn more about Stephen s involvement in pro bono work. He is part of a bar pro bono referral service. However, he pointed out that he only takes on cases from time to time depending on how busy he is. We went on to discuss the unique challenges facing barristers who want to be involved in pro bono work: as self-employed individuals the workload of barristers can be more unpredictable than those employed in law firms who have teams around them for support. This view was shared by William Alstergren SC, a past Chairman of the Victorian bar. 16 Stephen also pointed out to me that he tends to be contacted directly by individuals asking for help following his rise to prominence William Alstergren also pointed out a further problem to me when, for example, barristers attend meetings to do with the organisation of pro bono schemes. When representatives of law firms attend such meetings they are still being paid. But when barristers attend they are not I was keen to learn more about the operation of court referral schemes similar to the one that Stephen had mentioned and the opportunity arose during meetings with a judge of the Federal Court of Australia, the Hon Justice Middleton, 17 (Justice Middleton) and with Julian Hetyey, 18 who was then the Deputy District Registrar to the Federal Court (but has now been appointed as the registrar to the Supreme Court of Victoria). 14. Court Referral Schemes

29 14.1 The court referral schemes discussed below are a mechanism by which litigants in person who arrive at court without legal representation can be referred to a barrister. Court referral schemes the administrator s view 14.2 I was pleased to meet Julian Hetyey, who at the time was in charge of administering the scheme in his role as deputy district registrar. Julian pointed out that the scheme had generally been an overwhelming success: litigants in person were provided with representation, and barristers who wanted to participate were given the opportunity to participate in pro bono work However, Julian went on to point out a number of key things that are integral to the success of the scheme. First, barristers on the list are not obligated to act if they are contacted. Second, the terms of the retainer between the barrister and the litigant make clear that the barrister can cease to act if they want to. These two aspects are important because they ensure that barristers with busy practices are not obligated to take on pro bono work they do not have time for. For example, a barrister might become involved in what appeared to be a small case only to find out that it entailed significant commitments which their practice would not permit. Simply put, barristers may not participate in the scheme if it had the potential to disrupt their practices, and these terms ensure that this does not happen I also learnt that the scheme only takes up a small percentage of Julian s time and is easy to administer. Court referral schemes a judge s view 14.5 Justice Middleton was full of praise for the court referral scheme. He pointed out that litigants in person waste time (because of their unfamiliarity with the court process), which in turn costs the court money and prevents it from dealing with other cases. The scheme was beneficial to the extent that it addressed these problems He was however keen to make sure that the scheme was not overused and was only used in deserving cases, since otherwise barristers would not want to take part. He cited an anecdote of a wealthy person refusing to pay for legal representation and then using the scheme but the extent of the individual s wealth had only become apparent at trial. This problem -29-

30 was confirmed anecdotally for me when I met William Alstergren SC, Joshua Wilson SC 19 and other barristers to discuss pro bono work one barrister confirmed that he had stopped participating in the scheme following a similar situation. However, with proper safeguards in place, it seemed to me that the scheme was beneficial to all. Lessons for UK pro bono 14.7 To the extent that court referral schemes as described above do not already exist in the UK, I would recommend their introduction because they are relatively low maintenance, give litigants in person access to representation and allow barristers to participate in pro bono work. 15. In-house legal teams and pro bono work 15.1 Although I did not specifically set out to focus on the implementation of pro bono schemes by in-house legal teams, when the opportunity came up to meet Michael Coleman, general counsel of business support and improvement at Telstra and to learn about their pro bono scheme, it was too good to miss (I also met Julian Clarke, director of human resources and Linda Hutton, who worked in business support and improvement). Telstra is a large telecommunications company in Australia, similar to British Telecom in the United Kingdom, and has a large in-house legal team of around two hundred lawyers I was interested to learn how they had recently set-up their own pro bono project, especially since I was aware that pro bono is not as well developed amongst in-house teams as it is in private practice Michael explained to me that the traditional barrier to setting up a pro bono scheme related to insurance: it did not cover matters not undertaken for the firm. It therefore would not have covered pro bono work, and the firm was not able to set-up such a scheme without insurance. Michael believed that most corporations with an in-house legal team would have faced the same barrier However, Michael was provided with free insurance from an Australian pro bono organisation which had recognised this problem and therefore 19

31 provided tailored insurance for the purpose (although this insurance had only become available very recently) Before setting up the initiative Michael and his team looked at various pro bono schemes at large law firms and had to submit a proposal to management. The scheme is also very different to those in law firms described elsewhere in this report: it is very much seen as part of the broader CSR programme; it is entirely voluntary and there is no hours credit for those who take part Although Telstra s management have been very supportive of the initiative so far, Michael suspects that they may be reluctant to commit increased time and money in the future. Even though I cannot be sure, I suspect this may be a cultural problem: whereas partners in law firms accept pro bono as a matter of course, and many participate or at least have at some point participated in various initiatives, the directors of a large corporation would perhaps not have the same outlook A question also arose as to how well placed in-house teams were to do this sort of work. Whereas law firms main operational output is the provision of legal services, in-house teams are generally a support service for businesses that provide other things. Lessons for UK pro bono 15.8 Pro bono schemes in the in-house legal sector in the UK are generally under-developed, and Telstra s example as described above is potentially a model which can be replicated. I am not sure whether the same problems (and solutions) which Michael described in relation to insurance exist in the UK but, to the extent possible, in-house teams in the UK should look to establish their own pro bono schemes. Since such developments would inevitably involve costs to some extent, it could be sold to management as an extension of existing CSR policies which most corporations would already have in relation to the business as a whole. 16. Law schools Motivation for clinical legal education 16.1 The motivation for pro bono schemes in law schools seems to me entirely different than the motivations which professional law firms have for organising such schemes. The difference is such that I do not think the phrase pro bono schemes in law schools accurately describes what is happening here: the phrase clinical legal education is a much better fit. This is because the phrase pro bono scheme implies that the main -31-

32 purpose of the scheme is the provision of free legal advice, which is not the case here. Rather, law schools fund such schemes with the primary purpose of providing clinical legal education to their students i.e. educating students by allowing them to advise real life clients with appropriate supervision. The provision of free legal advice is therefore secondary to this primary educational purpose However, just as law firms receive tangential benefits from organising pro bono schemes, so too law schools derive tangential benefits from clinical legal education. For example, such schemes have marketing benefits when recruiting students and also have more general benefits in terms of publicity. Such schemes may even be necessary, since many other law schools have similar programmes and no individual school would want to be left behind. 17. Organisation of clinical legal education 17.1 During my time in Canberra I was delighted to meet Professor Simon Rice at the Australian National University College of Law 20 (the ANU). The reason for meeting Simon was to learn about the social justice programme in which he is involved I learnt that Simon is in charge of the programme alongside one other part-time administrator and other faculty members who had volunteered to be in charge of particular aspects (although Simon was the only one with a reduced teaching workload to reflect the time he spends organising the scheme) I came across a similar structure of having a pro bono scheme administered by faculty members when meeting with Dean Johnson, the assistant dean for pro bono and advocacy programs at the George Washington School of Law in Washington DC. 21 At George Washington clinical legal education was administered by four faculty members. That said, students themselves often set up new projects and then pass them on to the faculty administrators when they leave in order to ensure structural consistency During my research I came across two types of clinical legal educational programme. On the one hand, there is what Simon termed the Rolls Royce option. This is where the University in question has its own inhouse scheme, clients come in to the University to get free legal advice and, inevitably, the University has to employ qualified lawyer(s) to

33 oversee the students work. On the other hand, there is the non Rolls- Royce option. This is where students go elsewhere and give pro bono legal advice under the umbrella of another organisation. This is cheaper, easier to set-up and is therefore a more popular option in Australia at the moment. 18. Whether part of the degree programme Visit to the clinical programmes at Harvard Law School, where I met with Lee Meredith 18.1 I also came across programmes where the pro bono work completed in the course of clinical legal education was for credit in the sense that students were assessed on the work and it counted towards their final grade and schemes where involvement was not for credit and was on a voluntary basis For example, during my visit to the clinical legal education programmes of Harvard Law School I met with Lee Meredith Branson, an Associate Director of Clinical and Pro Bono Programs. Lee showed me the vast range of different clinical legal educational programmes that students at Harvard could get involved with, including, for example the disability litigation clinic, the education law clinic and the health law and policy clinic (please see appendix one for examples of leaflets produced by some of the clinics on offer). Lee explained to me that it is a graduation requirement for students to participate in clinical legal education and that the schemes had really taken off since Dean Kagan took over I came across a similar approach when I met Dean Johnson at George Washington University: class credit was given for clinical legal education, and this included placements with a wide range of public interest organisations, including organisations like the Neighborhood Legal Services Program. 22 (I also visited the Neighborhood Legal Services Program in order to learn about their work please see appendix two for a copy of the welcome poster they made for me!). In fact, Dean

34 Johnson showed me a huge booklet that he had of such public interest organisations (please see appendix three) and I realised the benefits of institutional knowledge in this area These approaches contrasted with those taken by the Australian National University, where there were two programmes: one for credit and one not for credit. In the for credit programme, students are assessed as they would be in other modules; the not for credit programme is voluntary and also very varied, and includes activities such as placements in other institutions and research projects (please see for example the brochure at appendix four). 19. Tailored financial aid One aspect of Harvard that I was particularly impressed with was that the systems of loans and financial aid administered by the University were tailored to the jobs taken by students afterwards. So someone who took a low-paid public interest job would not pay as much back as someone who took a high paid job in a law firm. 20. Issues relating to cost 20.1 There is a huge difference in terms of cost when comparing what I referred to above as the Rolls Royce programmes (pro bono clients receive advice or assistance (as the case may be) from students under the rubric of the University in question) and the non-rolls Royce programmes (where students attend an external organisation, and, for example, the University pays money to that organisation for having the students). I was delighted to speak further on this issue with Professor John F. Banzhaf III at George Washington University. 23 As John pointed out to me, as a general rule clinical legal education is expensive. For example, in one of George Washington s programmes in which he is involved there is one supervisor for eight students, whereas during a lecture that supervisor might address one hundred students However, the cost of supervision depends upon the type of work being done. If, for example, students complete research tasks on behalf of public interest organisations then far less supervision is required than if students are giving advice and/or assistance to members of the public. I also came across this during my talk with Simon Rice, who showed me a leaflet produced by his students detailing work they had done, including 23 and

35 work with public interest organisations which would not require as much supervision from faculty members as other forms of clinical legal education (please see appendix four for the leaflet) I also learnt from John how litigation could be used to solve social problems, for example by bringing cases against tobacco companies, and against food companies for deceptive packaging. Arguably such cases have more of a social impact because they have the ability to help wider society even if the case is lost, the litigation can succeed in gaining publicity for the particular cause. 21. Recognition of pro bono achievements A final lesson which I took from my meeting with Dean Johnson was in relation to the role of recognition for clinical legal education. He showed me how at George Washington University there was a variety of awards for various levels of service, including a special string for one s graduation gown, a special pin and even a letter from the President! (Please see appendix five for an example of one of the letters). These various methods of recognition were not intended to motivate students to take part they were merely intended as recognition of their achievements. 22. Lessons for clinical legal educational programmes in the UK 22.1 Although clinical legal education often results in the provision of pro bono legal advice and/or assistance to those who need it, its main purpose is as an educational tool to give law students essential experience. The provision of pro bono legal advice and the assistance provided to public interest organisations is secondary to that main purpose Issues relating to organisation, cost and whether clinical legal education is for credit are all inter-linked. On the one hand, there are programmes which are for credit because they are for credit they tend to be better funded, organised by full time administrators and can be on site i.e. at the law school itself. On the other hand there are programmes which are not for credit and accordingly tend to be run by one or more faculty members on top of their day job (or with a reduced teaching workload as for Simon Rice at the Australian National University), not to be as well funded and they tend to rely on other public interest organisations (or legal aid law firms as was the case for OLA) to assist with the programmes. -35-

36 22.3 There can be doubt that the former option of a for credit, better funded and better organised option is the ideal form of clinical legal education. Not only do students benefit from this option, but it has more of a social impact in terms of the service provided to pro bono clients. Such programmes tend to be better developed in the US and Australia than they are in the UK, although a minority of UK law schools, for example Northumbria University, have made significant progress. The UK needs a cultural shift to incorporate clinical legal education as part of degree programmes, and a knock-on effect of this will be an increase in funding and better organisation of clinical legal educational. Pending such a shift, however, the non-rolls Royce option present in many UK law schools including the Oxford scheme that I used to run are admirable voluntary programmes which contribute as best they can to legal education and to the provision of pro bono legal assistance. 23. Disclaimer All information contained in this report was true at the time that the interviews with relevant persons took place and the author accepts no responsibility if such information has subsequently changed. -36-

37 Appendix 1-37-

38 Appendix 2-38-

39 Appendix 3-39-

40 Appendix 4-40-

41 Appendix 5-41-