By Varsha Aithala, Shruti Khanijow and Siddharth de Souza Work-shopping Pro Bono As we step into the 2020s, pro bono at Indian law firms remains an aspirational practice area - largely under-institutionalised and un-systematised. This exact state of affairs was the primary finding of our pan India survey in 2018 (“2018 Survey”), where we interviewed several Indian law firms on what constitutes pro bono work. We noted that the institutional will to engage with pro bono work at the law firms was encouraging, but the concept, implementation and sustenance of such work as an independent practice area was very much open ended. At Justice Adda, over the past years, we have engaged with legal practice organisations on how to strategically build a culture of pro bono work in their organizations by examining questions of what constitutes pro bono from the firm’s point of view, how to balance social and economic decisions at the organisation and how to move pro bono from being a symbolic function to a systemic and strategic output of a firm. In essence, finding out where commercial interest and social responsibility meet to create space for an effective, commercially viable and sustainable pro bono practice.
In December 2019, we successfully conducted a workshop in association with BMS College of Law, and Trust Law (the “Workshop”) where we brainstormed on how to build a sustainable and innovative pro bono practice. The Workshop gathered interest and attendance of diverse groups-junior and senior members from law firms, students at law colleges, academics, pro bono consultants, and independent legal practitioners from all over India. Interestingly, our 2018 Survey had set a good background to test the implementation issues in practice, which our participants brought forth.
In this blogpost we examine 3 key insights from the Workshop which can serve as a helpful guide to organisations interested in building a commercially sustainable and socially responsible pro bono practice.
Defining Pro Bono: Bespoke, ordered to fit and well tailored
The concept of pro bono is fluid and multi-dimensional and often emerges from the specific settings and realities from where it is practised. A key insight from the Workshop was that pro bono practice must be tailored to fit the individual demands of each organisation and law firm in order for it to have both relevance to them and their commitment .
Building on the research done by Justice Adda and the Cambridge Pro Bono Project, that was informed by the 2018 survey on designing socially responsible law firms in India, and using preliminary results from our other ongoing research projects on the impact of technology on legal aid, on pro bono financing and by studying cases from around the world we have developed an understanding of pro bono based on the needs of the industry. Participant observations and discussions conducted at the Workshop provided deep industry insights into various important aspects of pro bono, such as the category of pro bono matters and practice areas which while suitable for a boutique law firm, could raise red flags for full service law firms. For instance, we discovered in a case study that a simple matrimonial or immigration matter , usually considered as non-commercial, may present difficult conflict of interest issues for a full service firm.
Stories from Big Law, mid-sized, small and boutique law firms: Same But Different.
In our 2018 Survey, the findings of which are discussed in detail in our Handbook on Designing Socially Responsible Law Firms, we found that most Indian law firms, regardless of their size, do not have a separate pro bono practice vertical or an internal committee to coordinate pro bono work. Law firms regularly take up pro bono matters, but in an ad hoc manner, and chiefly driven by the motivation and commitment of a few partners. Most law practices do not have a firm wide policy on dealing with pro bono matters.
Indian lawyers have created their own model of pro bono law practice, building on norms of corporate social responsibility, where they provide legal assistance for free (or at deeply discounted rates) to social entrepreneurs and business organisations with the goal of direct poverty alleviation (Gupta, 2017: 282, 284). This ‘practice’ however confuses the concept of ‘pro bono’ since it overlaps with corporate social responsibility requirements imposed by law.
The prevalent idea among the majority of Indian law practices is that pro bono is free legal advice and characterised as ‘non-billable work’. This non-billable work may usually be labour and cost intensive. That said, unlike the ‘billable work’, law firms and law practices do not have a fixed budgetary source or alternate means of funding for prospective or ongoing pro bono matters. They source and release funds as and when a request for funds is made for the specific pro bono matter. This approach makes the Indian pro bono practice per se unsustainable in the long run.
This shows that pro bono in principle can mean different things to different actors in the legal system, depending on their situation. However, a common theme underlying the idea of pro bono is, as we identified in our Handbook, and as also reflected in the UK’s Law Society Protocol, legal advice or representation provided by legal professionals in the public interest, including individuals, charities and community groups who cannot afford to pay for legal help.
In the Workshop, we discussed the popular understanding of the term by attempting to collaboratively define it. This lead to participants providing key words, and building upon each other’s ideas through a game called, ‘Yes and..’. For example, one participant said pro bono is a matter of responsibility, the next one agreed and said ‘yes and’.. added that it was also a matter of having sufficient resources to make pro bono sustainable. This allowed for a curated definition that was developed for the group.
The Workshop brought in examples which clearly show that the practical issues faced by law firms and independent practitioners were the same: the absence of a regulatory mandate for a minimum number of pro bono hours, the lack of an established contingency fee system and non availability of third party litigation funding. These issues make pro bono practice less desirable for lawyers. We tested plausible solution scenarios, which of course, are unique to each organisation.
Another case study based insight was how pro bono engagements may also raise tricky conflict of interest issues for law firms, particularly those which regularly advise the government or large corporations. The Workshop also explored examples and practice models built, developed and perfected by organizations like Trust Law and international law firms to successfully launch sustainable pro bono practices, to differentiate this from their corporate social responsibility work, and to make it commercially viable through the years.
Financing Pro Bono Litigation Practices: Is third party funding an adaptable and sustainable model?
The proposition does sound alluring and it is very much capable of being executed in reality. In our earlier studies and the 2018 survey, we have come across specific areas of law and legal remedies available in India, such as securities class litigation, consumer class actions, and antitrust class actions which remain under utilised and unactionable by the parties even when there is a clear cause for action (and a ‘winnable’ case). This is primarily due to lack of (a) financial resources, (b) access to quality legal practitioners with expertise who can take on novel cases in greenfield areas of law and (c) the consequent non-development of these areas of law. The Workshop participants pooled in their experience and identified similar key areas and presented live examples of when such ‘winnable cases’ die owing to the lack of financial resources of the litigant. .
The Workshop concluded that cause based third party funding (TPF) will boost resort to the currently inaccessible remedies by the aggrieved and provide a platform to law firms intent on developing ‘social justice law’, ‘pro bono’ and ‘low bono’ practices. It can also increase the quality of the bar, improve access to justice and vigilance by the investors, consumers and shareholders, tighten corporate social responsibility and governance in organisations : overall a win-win for the economy. However, the funding of cases, even when cause-based, is expected to be made in cases where the proceeds of litigation/settlement are tangible amounts of money, sufficient to cover the investment-return ratio of the funder.
Going Forward
We at Justice Adda, offer strategic support and conduct strategic and informational workshops to help your law practice establish and achieve a commercially viable and sustainable pro bono practice.
At our workshops, you will:
-gain insights into innovative pro bono strategies by law firms across the world
-work with us on case studies to learn how you can incentivise pro bono with regulators
- test run templates to build a sustainable pro bono practice.
We bring in brain-storming frameworks, games, design thinking tools,Lego, and role plays to facilitate discussions and promote 360 degree learning. As a result, the starting point of the workshop is very much grounded in your needs, and aimed at being a hands-on experiential exercise which looks at the financial, ethical and community centered aspects of building a pro bono practice for you.
If you or your law practice is interested in developing a pro bono strategy for their organization, and looking for access to templates, toolkits and inputs - please get in touch with us at siddharth.justiceadda@gmail.com,varsha.justiceadda@gmail.com or shruti.khanijow@cantab.net and visit our website at https://www.justiceadda.com/.
Independent legal practitioners who are keen to connect and offer their services for pro bono work, and students interested in understanding the landscape of pro bono in India are also encouraged to connect with us as we hope to expand this community in India and build interesting avenues for discussions, data sharing and collaborative engagement on pro bono practices in the country.
(Siddharth is the Founder of Justice Adda, Varsha and Shruti are consultants with Justice Adda)