Free Does Not Mean Pro Bono (debunking some myths)
By Annette Bain, Asia Pacific Pro Bono Committee 2018
The catch cry ‘pro bono’ is increasingly used in the wider community as a synonym for 'free', but this is not actually what it is. Short for ‘pro bono publico’, or ‘for the public good’, pro bono pertains to a philosophy which goes far beyond the question of cost. But as the word ‘publico’ fades from common usage, the true meaning of this phrase is drifting away.
In the legal profession, we must however remind ourselves that pro bono still refers to pro bono publico. It arises from the longstanding professional responsibility of lawyers to assist in upholding the administration of justice. This is a key element in building and strengthening rule of law, which relies on the law being applicable and accessible to all members of the community. Pro bono therefore increases access to justice for those marginalized members of the community, who have no other means of accessing legal assistance.
Free or discounted work that lawyers are often called upon to do for family, friends or clients is not pro bono. This is best described as concessional work, and benefits us in some way, usually in terms of retaining a personal or business relationship. As a result, these types of matters can present heightened risks of legal conflicts and breaches of confidentiality, because of the interwoven relationships they seek to continue or strengthen. Concessional work is not pro bono work. Rather, pro bono is defined by the fact that its purpose is to assist people who otherwise could not access justice. Generally, these are people who are ineligible for Government funded legal services, who cannot afford to pay for private legal services, or those who are marginalized and the organizations which assist them and as a result who have no practicable and timely source of legal advice or representation.
While not defining all free or discounted work undertaken by a law firm as pro bono, somewhat paradoxically, doing pro bono work can actually be of value to the law firm itself. It is not normally the rationale for doing pro bono but there is no denying that it can be beneficial. In 2016, an independent study in Australia tested a long-held anecdotal belief about the value of pro bono to the businesses of law firms, the so-called ‘business case’ for pro bono. In that study, nine large law firms in Australia were interviewed about their pro bono practices, and each of them endorsed the view that pro bono was good for recruitment, retention, engagement, competency acquisition, career progress, business development, client relationships and the firm’s reputation and culture. [Australian Pro Bono Centre: The Value of Pro Bono to Law Firms, August 2016]
"...pro bono is defined by the fact that its purpose is to assist people who otherwise could not access justice"
Pro bono nurtures collegiality across the legal profession, and provides the opportunity to work with colleagues and clients without the pressure of the profit motive. At the local level, we have seen this blossom in Hong Kong with law firms and NGOs working together on an increasing number of projects that assist vulnerable members of the community. Such cooperation is the legal profession at its finest. Every couple of months a law firm hosts the Hong Kong Pro Bono Roundtable, a forum which brings together representatives from law firms, corporate counsel, NGOs and law schools to discuss how the profession can better offer work pro bono publico. Anyone who is interested in pro bono is welcome to attend.
At the regional and global level, pro bono projects are also increasing access to justice by growing capacity for legal institutions in locations like Laos, Myanmar, Cambodia, Nepal and Indonesia. Projects include legal matters and also often involve delivering CLE and practical legal training. While the full impact of the potential for pro bono projects to increase access to justice and strengthen the rule of law across the region has yet to be fully realized, let’s keep in mind that it has nothing to do with such work being free.
Co-Chair Asia Pro Bono Conference Programme Committee 2018
This piece was originally published in the April 2018 edition of Hong Kong Lawyer magazine.