Pro bono in a pandemic

The contribution that law firms provide on a pro bono basis in times of crisis is what people will remember in years to come when they, and their friends and family, need a lawyer.

This issue brings to mind the New Testament account of ‘the widow’s mite’, when Jesus saw the richest of society putting plenty of their cash into the treasury.

It was their hard-earned cash, for sure, but what they donated was a drop in the ocean compared to what they had left.

The widow, on the other hand, put in far more than those high net worth individuals did – that is to say, everything she had – a mere two small coppers (mites).

It was the widow who Jesus commended for putting in more than all the rich had collectively donated.

Pro bono – the provision of legal services by qualified staff in a law firm at no fee (unless the pro bono costs can be recouped from a losing party) – is comparable to this story to the extent that ‘big law’ can dedicate many hours and millions of pounds’ worth of pro bono work to the needy, without it impacting their bottom line in any significant way.

Smaller firms, by comparison, have limited resources.

This means the impact of the hours they spend pro bono, on those resources and on their profit margins, can be significant – even more so when many are starting to cut costs (and even staff) to mitigate the challenges of the economic downturn.
  
Top of the charts for pro bono in the year or so before covid-19, and then in the weeks after the UK national lock-down began in March 2020, were the big names: Linklaters, Herbert Smith Freehills (HSF), White & Case, Clifford Chance, Ashurst and Irwin Mitchell, for instance.

Neither the impact nor the value of their pro bono work should be downplayed.

Who, for instance, can underestimate the value of HSF’s 8,000 hours committed to a local Citizens Advice clinic through 2018; or DLA Piper’s 23,183 hours, some of which were dedicated to helping Sheffield’s disabled children and their families appeal decisions to remove the disability living allowance? 

This month marks this year’s National Pro Bono Week focusing on ‘Pro bono: through the pandemic and beyond’.

In its nineteenth year, it will be markedly different to any preceding national pro bono week for obvious reasons, with many events being held virtually.

The aim is to shine a spotlight on the pro bono contributions of the legal and voluntary sectors across the UK.

REDUCED CAPACITY

While the big firms have had the financial wherewithal to step up their pro bono efforts during the last six months, smaller firms such as Ashtons Legal have had to reassess their ability to respond.

Janette Wand is a senior associate and the firm’s lead co-ordinator for its pro bono work.

She comments: “Although keen to do as much as we can for our local communities, we have had to turn down some approaches for assistance – this has been due to both the business needs of the firm and the capacity of our lawyers.”

Wand adds that though Ashtons kept “working hard”, adapting to the changing landscape but concentrating on its vision of trying to improve the lives of those around us – “many of our CSR activities, such as fundraising events for the charities we support, became impossible to carry out, as such we had to change our priorities”.

So instead, the firm has “celebrated volunteer work” done by its staff, some of whom were furloughed but continued to support the provision of pro bono help to our clients.

Wand adds: “We have also hugely increased the amount of free information and legal advice given on our website and in webinars, which was spearheaded by our employment law team.”

Though having turned down some requests for pro bono assistance during lockdown, she says the firm was able to take on the majority of them.

“In the main”, Wand comments, “these have recognised our increasing awareness of the importance of mental and physical well-being.” 

This included the commercial property team’s work for a farm supporting people with learning difficulties and disa-bilities; and the work of its human resources consulting team in developing policies for a group of occupational therapists and physiotherapists promoting physical and mental wellbeing in adults.

SUPPORTING THE VULNERABLE

It was always to be expected that the most vulnerable in society would be impacted most by the pandemic and the associated lockdown measures, not only in terms of their legal and practical needs but – perhaps more so – the impact on accessing help.

Fran Ibson is a solicitor in the clinical negligence/catastrophic injury team at Hull based SJP Law.

Clients are particularly vulnerable and throughout the lockdown period, many of them, along with their families, were shielding.

She explains: “While the pandemic has not added to their legal needs per se, it has impacted adversely upon them on both a practical and therapeutic level, which in turn, has the potential to impact upon their individual claim.” 

For example, many clients faced a sudden transition from the delivery of in person therapy to zoom consultations, through which exercises are simply demonstrated.

On hand practical support, correction of posture and guidance disappears.

Exacerbating the problem, many of the firm’s clients suffer from acquired brain injury and experience communication difficulties, which means they find Zoom-delivered therapy both difficult and overwhelming.

“Any deterioration in their condition over the lockdown period may result in the need for further expert reports and additional therapy, therefore, part of our role is to help with this process and help them to manage the transition”, Ibson adds.

It’s no surprise then, that she says based on the calls SJP Law has received since March, “people need support, they need clear access to healthcare services, clear communication from those services and they need additional guidance on how to navigate the changes they are now presented with”.

The benefit of the transition of the firm’s lawyers to remote working was that this provided “a new perspective to see this clearly and think of how we can provide meaningful help throughout the pandemic and beyond”.

Ibson points out that the pandemic has forced firms into a position “far outside their comfort zone… It has been both a challenge and an opportunity in terms of business needs, we either or embrace this or risk being left behind”.

The firm has put its money where its mouth is, for instance, employing an occupational therapist (OT) within the team to provide therapeutic support to vulnerable clients who were shielding.

She works alongside the legal team to help clients who are struggling with virtual therapy and wellbeing issues flowing from the lockdown so that “our clients feel they have access to both legal and therapeutic help”.

The OT has also visited clients to help with their therapy needs while their treatment has been suspended, as well as undertaking welfare calls to both existing and new clients to check on their wellbeing.

Though the profit margin for its clinical negligence work is dependent upon settled cases (the pandemic has not, says Ibson, adversely affected the number of matters it has), they have recognised that the service it needs to deliver must change.

From a client perspective, she explains, people need a ‘constant’ in a time of uncertainty, a level of service which is consistent but adapted to suit the changing climate.

The firm’s pre-pandemic ethos – placing vital importance on relationships and specifically developing relationships with those organisations and charities who are tasked with supporting our clients – has, adds Ibson, continued to grow against the pandemic backdrop.

“These relationships have become more vital”, she says.

This year’s pro bono efforts also include the delivery of outreach advice across Hull and York alongside Citizens Ad-vice and providing technology to enable Citizens Advice to deliver hospital-based services remotely, enabling them to continue to assist all patients with welfare advice.

The firm has also helped with charitable grant applications to enable clients, yet to receive interim payments of compensation, to obtain laptops to assist with accessing virtual support.

It has provided a signposting service to the NHS Patient Advice and Liaison Service (PALS), often fielding more than 10 calls a day from people wanting to make a complaint about current appointments and waiting times.

Ibson points out: “People have been happy to just speak to someone and receive the right number and some clari-ty on the process they need to follow.

“Our culture within the firm is based on the principle that if we are not the right organisation to help, find the indi-vidual the one that is.”

She emphasises how providing advice and support on a pro bono basis is “more important than ever before” and the profession must ensure it is providing the right level of support to society’s most vulnerable.

Mark Taylor is a partner at Eversheds Sutherland and chairs the pro bono committee at Birmingham Law Society.

Paradoxically, he reports that at first there was an immediate drop in demand as people adjusted to covid-19 restrictions (a theme also observed by Ashtons which received no approaches for pro bono work for the first three months of the national lockdown).

“At the same time”, explains Taylor, “most agencies moved to delivering advice remotely.

Then came a surge in demand as the pandemic affected clients’ employment, finances and housing.”

Has he seen any shift in the numbers and types of local firms within the Society willing and able to undertake work pro bono?

Taylor’s observation is that there is a “really strong pro bono culture among law firms… Pro bono activity is clearly at the forefront of law firms’ plans at the moment” – and he definitely noticed an increase in the amount of activity within Birmingham law firms.

Though he perceived a lull in the call for pro bono work early on, Martin Barnes, chief executive at LawWorks, says: “There was evidence of a change in legal needs in the initial stages of the pandemic – for example, an increase in family law and domestic abuse enquiries”.

He says the level and type of legal need now continues to grow and evolve, including for employment, benefit, housing and debt advice.

But what has become apparent through speaking with firms is that it is not so much people’s legal needs per se which have changed in, or as a result of, the pandemic – but rather their ability to access advice and support, much of which has necessarily transferred from face to face to a virtual experience.

DIGITAL BARRIERS

It’s the vulnerable or otherwise disadvantaged who are negatively impacted the most.

This is where pro bono can prove particularly effective at this time.

Taylor states: “The most troubling aspect now is how to reach those people who need help, but who do not have access to the technology required or who do not read and write English sufficiently well to benefit from remote services… Difficulties in accessing legal help are now the biggest barrier to helping people.”

Martin Barnes is the chief executive at LawWorks which has recently undertaken a number of ‘roundtable’ discus-sions on the challenges and legal needs raised by the pandemic.

Around 40 people have been taken part, and the issue of ‘digital exclusion’ has been a recurrent theme in its dis-cussions.

Formal notes from its July 2020 meeting record that digital exclusion, “discussed through different angles and lenses including the equality lens throughout this discussion… will continue to be an ongoing theme.

“It is important to make the most creative use of digital capacity that is available in the sector to be able to reach people and ensure that direct service provision is appropriately targeted towards those who most need it”.

Some pro bono clinics have reported a change in the demographics of people accessing services which, says Barnes, seems to be linked to more services being provided remotely.

But he cites a concern (although it is difficult to get a full picture) that some people needing advice have ‘disap-peared’ from services, perhaps because of difficulties accessing support remotely, or due to the wider impacts of the pandemic, such as coping with stress and anxiety and social isolation.

Then there’s the economic impacts of the pandemic which, Barnes foresees, “may further increase legal need, including legal problems broadening and escalating.

“For example, the loss of employment can result in rent and mortgage arrears and potentially homelessness, other debt problems, contribute to family breakdown and worsen physical and mental health.”

Ron Davison is a director at Wales firm Gamlins which has won awards for its community contribution and pro bono work.

He has found that it’s been harder for many vulnerable clients to obtain advice.

“Prior to lockdown”, he says, “we ran free legal advice clinics in all of our offices and had done for many years.

“With lockdown it has been impossible to keep them open and remain covid secure which has been a concern for me as the need for advice has not diminished.

“[Citizens Advice does] a wonderful job but have funding issues and our clinics provided a lifeline to the local com-munity.”  

The firm is now actively planning how it can “safely introduce the clinics going forward and have liaised with third sector organisations”.

In the meantime, pro bono work this year has not been easy, comments Davison, “simply because the avenue we consider is the easiest for clients to take advantage of has been closed off”.

But he says: “We continue to hold firm with our philosophy, however, and will not turn anybody away who needs advice.

"We are there for our community through the good times and the bad and will do everything we can to get them the help they need.”

He also noted that the demands on solicitors is ever increasing.

“I am often saddened”, he comments, “that the truly inspirational efforts of many solicitors go unrecognised.”

Helen Hamilton-Shaw, member engagement and strategy director at LawNet – the legal network of 70-plus firms in the UK – says it is “vital” that firms are embedded in their local communities, but “they may equally need to be embedded in specific, non-geographic communities”.
 
“Firms with niche practices are more likely to seek out partnerships where they can add real, long term, lasting value, rather than simply volunteering time without focus”, she adds.

ACHIEVING BALANCE

Be under no illusion that firms will be seeking to recoup the benefits of their pro bono drive – there is a balance to be had between a genuine determination to help the needy and give back to the community (particularly in a global pandemic); discharging what is at least a moral duty to demonstrates corporate social responsibility (of which pro bono is part); and to protect and increase the firm’s profit margin.

As Hamilton-Shaw comments: “From a client experience perspective, our research shows that two-thirds of new business is generated through reputation and trust and that clients want to work with firms who have the right values, as much as having the right professional expertise.” 

“This aspect of a firm’s personality also supports the recruitment and retention of talent, with younger lawyers and the next generation of leaders looking for purpose in all aspects of their lives”, she adds.

Balancing the business needs of the firm while fulfilling an important societal need for pro bono and for access to justice is a perennial challenge for firms, brought into sharp focus by covid-19.

Davison says: “A key strand of Gamlins Law’s business plan is community. We have acted for the people of North Wales for over 125 years.

“While it is a balancing exercise we had factored in such costs prior to covid. Essentially, our aim is to be the first advisor to come to mind whenever an issue, good or bad, arises.

“Consequently, we are often the first to be called for advice on a range of matters, often not legal ones. That has meant a great deal of our time recorded is not billable.

“It does however strengthen our aim of being a primary trusted advisor.”

LOOKING AHEAD

So what’s the future for firms’ pro bono efforts, as the economic fallout continues alongside a pandemic that’s nowhere close to being under control?

Barnes warns that though pro bono is a contribution towards enabling access to legal advice and support, “it cannot be a substitute for legal aid nor for the vital work of law centres and advice agencies”.

The challenge and the opportunity, he says, is how pro bono can “most effectively support and contribute to meeting legal needs and working with others, while recognising that it also has its inherent limitations” – though pro bono needs support and an infrastructure to be most effective.

Barnes highlights the need to recognise that while the profession remains passionate and committed to pro bono, changes in day-to-day working methods and workflows have been disruptive for some.

“There is a sense”, he observes, “that the impact of the pandemic is so massive and unprecedented that it can feel overwhelming when considering pro bono – our message is that every contribution can make a positive difference.

The economic consequences of the pandemic may have a negative impact on the ability of some firms and inhouse teams to fully maintain pro bono work, or be the catalyst to review the type of pro bono undertaken, but part of LawWorks’ role is to provide support and opportunities to continue to make a positive difference.”

As Ibson comments: “Balancing business need against societal need for us has been a positive, straightforward, focused experience because ultimately our clients, staff, relationships with key organisations and charities have been placed under the microscope and what we previously had in place has simply grown.

“The pandemic has been a catalyst for this.”  

Nicola Laver is the editor of Solicitors Journal and a non-practising solicitor