The perils of pro bono
While pro bono work has numerous benefits, professionals must take care to maintain the boundary between lawyer and client, writes David Cliff
Many solicitors get involved in pro bono work. Derived from the Latin phrase pro bono publico – for the good of the public – it often draws lawyers and law students into giving up their time for those who have difficulty affording services otherwise.
Whether it’s a noble act of altruism, a gesture of compassion for those unable to otherwise access support, a principled stance, or a random act of human goodness, pro bono work can confer many benefits on its recipients. Injustices can be addressed, access to services that otherwise would not be available created, rights wronged.
Professionally, pro bono work, especially in rare and obscure cases that do not fit the norm, not only confers public good but also adds to the range of knowledge and experience a professional can acquire that might not be achieved as easily elsewhere. Pro bono work therefore provides support to those in need and offers unique experiences. Clients have the protection of SRA guidance wherein the Legal Services Act 2007 makes no distinction between whether or not a service is provided for a profit.
What’s not to like about pro bono work? Well, it’s surprising the number of people who fail to appreciate the different boundaries that exist between professional and client in this work. Working with people is a relational experience and removing the payment mechanism gives rise to other motivations which impact upon the relational process on both sides.
Beneficiaries of pro bono work often consider themselves thankful and lucky that they found a professional to pick up a cause for them. Equally, however, natural human reciprocity can be such that pro bono work can be seen as a gift, coming from a special relationship that exists between client and professional, that can impute some element of affinity, connection, self-worth, or even attraction.
Often pro bono clients can fail to regulate and mediate contact with the professional as there is no payment mechanism to accord financial value to the connection. As a result, pro bono work can become extremely time consuming, not just because of the complexity of the cases, but also because of the emotional and situational demands the clients can place upon professionals.
When I coach solicitors and other professionals, a consistent question I ask is about the most demanding, time-consuming, and problematic clients they have. These are almost inevitably cited from the pro bono caseload. Such caseloads can present emotional demands whereas paid caseloads often present more technical ones.
The majority of legal systems see pro bono as an expected contribution by legal professionals to the society they serve – for example, the American Bar Association specifies that lawyers should provide 50 hours of pro bono services per year. This is praiseworthy, but we should also consider relational dynamics and boundaries that need to be maintained. Separated from the natural boundary of the payment mechanism, I have known of solicitors effectively being stalked by some of their pro bono clients, often being called at unsocial hours and even receiving overtures of adoration, marriage, and similar.
While pro bono work is an invaluable part of every company and profession’s commitment to corporate social responsibility and an organised society, professionals must take responsibility for maintaining the boundary between lawyer and client.
The volume of pro bono work is also important. I have seen some companies become consumed by intellectual interest and philanthropy in pro bono work to the point where cash flow can become dangerously unstable. Those professionals involved often feel unable to turn away what is often increasing demand.
We know that in the years of austerity following the 2008 crash, ministers who consider the legal profession something that is expendable in terms of access to justice and some surplus capacity in the legal system have created a climate where pro bono work is in greater demand than ever.
Psychologically, some clients in particular need can impute all kinds of transferences into that relationship. One can become a saviour, a lover, the hitherto unrealised father figure, and myriad other roles.
Equally, at a political level, pro bono work should never be a substitute for an effective lobby for the public to access paid legal services based upon their right as a citizen, rather than just the legal profession’s pro bono commitment to benefit the less well-off citizens in the society in which it practises.
Pro bono can be a fabulous contribution to communities, but there are grounds for taking real care in its use. Recalling Star Trek from my boyhood, the mercenary Ferengi have as their 59th Rule of Acquisition: ‘Free advice often becomes expensive.’ This has great truth in it at so many levels for both client and professional. Let’s be careful out there. Enterprise, one to beam up!
David Cliff is managing director of Gedanken