Part two: procedures and practice issues

Intake criteria

Intake criteria assist the firm in deciding what work to take on.

Some firms include criteria in their definition of pro bono, others specify them elsewhere in their policy or in their procedures.

Criteria might include:

• consideration of the source of the referral
• the client
• the nature of the case
• whether there is any conflict of interest
• the amount of time the matter is likely to involve
• the level of expertise, and
• the availability and willingness of a solicitor to undertake the case

Firms might wish to develop a checklist assessment form to be used by the person/committee approving pro bono matters which reflect these criteria.

You may wish to tell pro bono referral schemes and organisations and other referring agencies about your criteria regarding intake, assessment and approval processes so they can minimise inappropriate referrals.

Conflicts check

A conflicts check will be an essential procedure in determining whether to approve a pro bono matter for intake, just as with any other matter.

A firm’s pro bono procedures document should refer to the need to carry out such a check and could also specify procedures for dealing with matters where there is any question as to conflict.

For example, some matters may need to be referred to a person or committee for consideration and decision.

Mention should also be made of any extra, or different conflict procedures a firm may have where it sends solicitors to a clinic offsite.

Assessment and approval

Appropriate written procedures will help ensure that the assessment and approval of proposed pro bono matters is carried out smoothly and in a timely manner.

There are various models for approving pro bono work. Some firms allocate this function to their pro bono committee, some to pro bono partners and some to pro bono coordinators.

In other firms, general partners, team/division leaders or other committees might be responsible for approving pro bono work.

Regardless of the option employed, the firm’s pro bono policy or procedures document should clearly spell out whose approval is necessary, and how the approval process operates.

As well as considering how the matter fits in with the firm’s intake criteria, the assessment process will involve consideration of the estimated costs and disbursements in the case.

Systems need to be implemented so that these can be entered into the firm’s file opening and matter management system.

Referrals from within the firm

A firm should also have internally publicised procedures in place to facilitate staff-initiated referrals.

Such matters would be assessed for approval according to the same criteria as other matters.

Some firms use an application form which is completed by a staff member and forwarded to the firm’s pro bono committee (or other overseeing committee, partner or designated person) for assessment and approval.

In other firms, email or telephone contact or meeting with the firm’s pro bono partner, pro bono coordinator or other designated person may be sufficient, at least as a starting point.

Declining a matter

In some cases, for example, where the firm has reviewed documents provided by a client, it might be appropriate to decline a matter.

Any such letter advising that the firm is unable to assist should give reasons for the refusal.

For example, the letter could state that the matter does not fall within the firm’s guidelines or creates a conflict with another of the firm’s clients, or that there is no solicitor with the relevant skills and experience available to take on the matter.

All documents forwarded by or on behalf of the applicant should be returned to ensure confidentiality.

The refusal and reason for refusal should be recorded. Such records will assist the firm to evaluate its pro bono programme.

Allocation, monitoring and supervision

Firms generally assign the task of allocating matters within the firm to an individual.

In firms with pro bono coordinators, this will usually be the coordinator. In some firms, pro bono partners or others (for example, team leaders) may allocate matters.

Several approaches are adopted in determining allocation of matters, including:

• emails to all staff or to solicitors who have expressed interest in doing work (usually identifying the nature of the matter, although not the client, the kind of work required and any deadlines)
• personally approaching solicitors in relevant practice groups
• contacting a partner in the relevant area to see who in the group might be able to take on the matter

A solicitor’s expertise, availability and interest in the matter are important when allocating matters.

In some cases, solicitors self-select for pro bono work by ‘referring in’ a matter (which is then subject to the firm’s approval process) and indicating a desire to work on it.

In these cases, provided the solicitor is appropriately skilled to undertake the matter, allocation might simply involve approaching and designating a partner to supervise them.

If the solicitor is not working in the practice group with expertise relevant to that matter, the firm could approach a partner in the relevant group and, in this way, facilitate opportunities for solicitors to work on cases they are particularly interested in.

There are various procedures adopted for formally allocating matters once particular solicitors have agreed to work on or supervise them. Good practice would involve some written communication of the allocation, both to the solicitor and supervising partner.

Firms with structured pro bono programmes tend to maintain some kind of register or database of all pro bono matters in the firm which is then used for a number of purposes, including supervision of work and internal and external reporting and evaluation.

File opening and matter management

Clearly there is no single way to open a pro bono file: firms use different file-management or computer programmes to record and manage their matters.

File opening procedures may vary according to whether the firm is going to count pro bono hours as billable or as something else and whether a disbursement or other cap is to be placed on the matter.

Firms need to create and implement appropriate systems to facilitate pro bono matter management and may need to consider some variations to the normal file-management procedure.

For example, in determining in advance how it intends to account for a solicitor’s time on a pro bono matter, a firm may consider whether the solicitor will enter their time as chargeable as per any other matter, or whether it will be entered under a different code, or as a different kind of work.

Any file-management system or software will need to reflect the relevant arrangements for charging no fees in the matter.

Procedures should also deal with disbursements in accordance with the firm’s policy.

For example, this may require the firm’s payment of disbursements to be approved on a case-by-case basis or beyond a certain limit.

Ideally, the firm’s pro bono procedures document should give clear instructions for each step involved.

For example, answering the following questions:

• are there specific pro bono codes or prefixes for pro bono matters?
• how is the client to be described?
• was a partner’s signature necessary for the file to be opened?
• what information needs to be entered about disbursements?
• how is a disbursement or other cap (if any) recorded?
• how should other parties be recorded?

Efficient file-management procedures also have particular collateral benefits in terms of evaluating and promoting a firm’s pro bono programme.

Many commercial clients requests details of pro bono work as part of their invitations to pitch for their business.

Letter of engagement

Once a matter has been approved for intake, a conflicts check has been undertaken and a file opened, the client should be sent a letter of engagement.

Pro bono clients need to be made aware of the same issues as any commercial client, including the terms, scope and limitations of the pro bono assistance being provided and the costs implications to them (if any) of their matter.

The letter of engagement will often serve as a costs agreement.

In the event that the matter is litigious and costs are to be recovered if the matter has a successful outcome, costs and disbursements will need to be addressed in any costs disclosure or agreement in the letter of engagement.

Secondments

If a solicitor is to go on secondment to a pro bono client a secondment letter should be sent detailing the terms of the secondment.

Different issues need to be considered to those set out in the standard pro bono engagement letter.

File closure

Pro bono matters should be closed upon completion, as other matters are, ensuring bills, if any, have been paid, relevant documents returned to the client, and the client notified in writing of the outcome of the matter and that their file has been closed.

The duration of time that the firm will retain the file before it is destroyed (as per its document retention policy) should also be outlined in the file closure letter.

In the interests of recording time and costs expended on pro bono matters, and to assist with evaluation of their pro bono programmes, some firms include matter closure reports or evaluation forms as part of their pro bono matter management procedure.

The report may include information such as:

• referral source
• number of hours spent on a matter
• reason for closing the matter
• outcome of matter
• feedback received from client and/or within the firm
• media attention received (if any)
• public relations (for example, media releases), and
• benefits to the client, solicitor, the firm and others from the matter 

Client access and referrals

Firms wishing to have active pro bono practices should consider assigning particular people the task of liaising with and developing and maintaining relationships with external referral agencies, such as pro bono organisations and referral schemes, to source appropriate pro bono matters.

Establishing productive relationships with referring agencies is a key factor in facilitating effective pro bono referrals.

Firms need to make known to referring agencies the nature and criteria of their pro bono programme, as well as the preferred procedure for receiving applications for pro bono assistance.

To facilitate effective and timely referrals firms could, for example, prepare written information about their programme and/or referral guidelines.

The aim of this kind of information would be to make clear to referring agencies and clients what they can expect of the firm, and to preclude inappropriate applications and double-handling.

Any information or guidelines would ideally include information about the following issues:

• what kinds of matters the firm is prepared to consider for pro bono referrals. This will include what kinds of casework as well as other pro bono assistance a firm will consider. Firms should endeavour to be precise. For example, specify ‘refugee and immigration work, social security’ rather than ‘administrative law’
• what kinds of matters are specifically excluded from the firm’s pro bono programme. Firms might also wish to specify if they will not take on pro bono matters involving litigation against a particular (named) client. Being precise means neither the firm nor referring agency wastes time and resources with applications clearly outside the firm’s programme
• who within the firm is the appropriate person to communicate with in relation to proposed pro bono referrals
• whether the firm prefers to liaise with the referring agency at first instance, rather than a prospective pro bono client. Firms should also make it clear if they would prefer to deal only with the principal solicitor of an organisation or the staff member with carriage of the matter to avoid confusion
• the information the firm expects from the referring agency. Is a brief outline of the matter communicated by telephone or email sufficient? Will the firm need detailed documents or financial information about the client? Firms should not make these requirements too onerous on the referring agency, especially if the matter is urgent
• whether the firm expects that the client’s eligibility for legal assistance from other sources has been checked. For example, legal aid, home insurance cover, etc
• time frames within which the firm will assess and approve (or decline) applications for pro bono assistance (ideally, within 48 hours)

Firms should be as clear (and sensitive) as possible in describing their processes to clients and referring agencies.

Even if a client is successfully referred, the firm may undertake a merits assessment and decline to take the matter further. It is important that the client or referring agency is not given false hope.

If firms accept direct client referrals, then they will need to ensure they communicate their procedures clearly with those clients, bearing in mind any particular barriers the client may experience in accessing justice, for example, through disability or being from a non-English-speaking background.

Referrals to other organisations

Clients rarely have only one legal problem. They are frequently dealing with multiple issues at the same time, such as domestic violence and housing needs.

The kinds of services a client may need include those provided by:

• health and medical services
• mental health services
• welfare benefits providers
• short-term and long-term housing providers (including homelessness support services)
• migrant resource centres
• disability advocacy and support services
• financial counsellors
• emergency assistance providers
• neighbourhood centres or Citizens Advice
• social work and counselling services, and
• local council transport services

Firms and clients may also need the assistance of interpreter services. For more information on interpreter services.

Anyone working with pro bono clients will need good referral skills. Clients will often need referrals to an appropriate service or agency and firms should be conscious of not consigning clients to the ‘referral roundabout’.

Firms should be conscious that disabled clients are not referred to disability agencies because they are disabled. The client’s legal problem may have little or nothing to do with their disability.

Law Centres and local advice organisations often maintain notes of services available in local areas.

People working in pro bono should familiarise themselves with the kinds of services available and liaise with these organisations to maintain up-to-date lists of these services and/or to obtain assistance in making appropriate referrals.

Potential pro bono clients who contact a firm directly may also need to be referred on for pro bono assistance because the matter may not fall within the firm’s intake criteria or there is a conflict of interest.

Pro bono coordinators need to have a list of other firms, Law Centres, advice organisations or other referral agencies that the potential client can contact or where they can go for further information.

Different types of engagement

Depending on the type of pro bono matter, project or assistance being provided, thought should be given to the type of engagement letter or agreement to be used.

A letter of engagement will be used in most cases where a firm is providing advice to a pro bono client.

A memorandum of understanding or partnership agreement may be appropriate for combined projects with legal advice organisations, charities and/or other law firms.

A secondment agreement should be produced for secondments.

The types of issues to consider when preparing each of these documents are outlined below.

The key to any engagement is effective communication and expectation setting. You should make sure that each party has a very clear understanding of what is being agreed to, what is not being agreed to and when the work or services will be provided.

General comments on engagement letters

Issuing a letter of engagement is a straightforward way to ensure that the requirements set out in the SRA Code Of Conduct are met in pro bono cases.

This document sets out the scope of the work agreed to be undertaken, and the nature and limitations of the relationship between the client and the firm, including any issues relating to costs.

Issuing a letter of engagement (together with opening a file in the same way as any commercial/fee paying matter) also greatly assists in demonstrating that pro bono matters and projects must be managed in exactly the same way, as any commercial matter.

This helps to ensure regulatory compliance and conformity with the firm’s procedures and practices.

As with commercial work, the use of a template engagement letter can provide firms with reassurance that each pro bono client will receive the necessary client care information from the outset.

Pro bono clients often may not have the same level of business sophistication as a firm’s commercial clients. Solicitors need to be sensitive to their particular needs and differences, particularly when developing engagement letters.

A standard pro bono engagement letter template is usually appropriate for all ongoing pro bono client matters.

The template can provide for the incorporation of additional terms into letters for litigious matters where the firm may need to address the client’s liability for the other side’s costs and the potential to seek a pro bono costs order if the client’s case is successfully resolved.

Firms with limited scope, clinic-based pro bono activities may wish to develop a simplified letter for this work, due to the more limited scope of the client relationship.

In developing a standard pro bono engagement letter firms may choose to draft a letter from scratch (specific to the needs of pro bono work) or may choose to amend the firm’s existing client engagement letter template to reflect the needs of a pro bono client.

The latter approach has the advantage of using a precedent that has already been approved through the firm’s compliance processes which may speed up the internal approval of a standard pro bono engagement letter template.

It also helps to embed the principle that pro bono work must be managed in exactly the same way as any commercial matter. 

Communicating the engagement

An individual who is taken on as a pro bono client should be carefully taken through the engagement letter, whether this is in person, on the telephone or on a video call, rather than simply having the letter sent to them.

Solicitors should be aware that some pro bono clients who are unfamiliar with the legal system might feel intimidated by and suspicious of it and solicitors in general.

Plain language should be used in the letter of engagement and when explaining the terms of these agreements, in particular in relation to disclosure about any external costs (if any) the client may be liable for related to the engagement.

Again, this approach may not be needed if the client is very familiar with the legal system, or when working with an in-house counsel within an organisation.

It will depend and must always be assessed on a case by case basis.

Timing and scope of the work

Engagement is really all about effective communication – setting the limits or scope, managing expectations and being clear and realistic.

It is therefore essential that both the client and solicitor understand and agree upon the nature and extent of the work to be provided on a pro bono basis.

This will assist in dispelling any unrealistic or misconceived expectations the client may have about the scope of the firm’s assistance.

The assistance provided may be limited to part of a matter only (for example, assistance in negotiations, or settling court documents) or giving advice only (for example, advising on a strategy).

It may or may not include representation in court or tribunal hearings, and it may be subject to review at certain stages.

For example, a firm may agree to give a client advice on the prospects of their claim but only agree to act for the client if the prospects of success are reasonable.

Alternatively, a firm may agree to represent a client at a conciliation conference, but not at a hearing and may or may not agree to act for the client in an appeal.

Letters of engagement should describe with care and reasonable particularity the assistance that is to be provided and where possible, what is not being provided.

If a firm subsequently decides to provide additional pro bono assistance beyond the scope of work outlined in the original agreement, and the client is agreeable, a new or updated letter should be provided.

The letter should also make it very clear the proposed timeframe in which the work or services will be provided so that client expectations are well managed.

Again, if those timelines change, as with all client management, that needs to be communicated to the client as early as possible.

Finally, the letter should clearly set out contact details for the solicitor within the firm who has responsibility for the day-to-day conduct of the case and include the contact details of the supervising partner.

It may also be appropriate to include the name of the pro bono partner or director, or local pro bono coordinator, as a further reference point in the case of questions or complaints.

Costs

This section discusses how firms can consider addressing costs in engagement letters and agreements.

Costs for which a client may be liable include disbursements, the costs associated with an adverse costs order by a court or tribunal in a litigious matter, or costs of an opposing party, agreed in a settlement.

Firms may also need to address the prospect of obtaining a pro bono costs order in successful litigation.

Disbursements

The need for firms to determine, as a matter of policy, how disbursements are to be handled is discussed above.

Any costs agreement should clearly set out the anticipated disbursements including likely amounts, who will be responsible for paying them and when such payment (if any) is due.

It is important that the pro bono client be consulted about, and agree to, any liability for disbursements as they arise.

The client should be informed whether the firm considers such expenses are essential for the continuation of the matter.

In some cases, the letter of engagement or agreement may include a term that if the client does not agree to pay disbursements which the firm considers necessary to continue with the matter, the firm may cease to act for the pro bono client.

Such a statement could be included in the termination section of the letter of engagement, and in the section of the letter describing how disbursements are to be dealt with.

Adverse costs

It may not be clear to a pro bono client that when a solicitor acts pro bono in a litigious matter there may nevertheless be a risk of the client becoming liable to pay the other party’s costs.

The risk of an adverse costs order must be very clearly explained to the pro bono client.

Similarly, if the matter settles, and a term of the settlement is that the client pay the whole, or part of the other side’s costs, it must be made clear to the client that they will be responsible for those costs themselves.

Some clients who can access pro bono representation may be deterred from pursuing their claims because of the risk of an adverse costs order.

Legal aid protection

People who are eligible for, and granted, legal aid are generally protected from adverse costs orders.

The engagement letter should acknowledge this protection and the possibility that, should the client become eligible for legal aid, the pro bono representation may be brought to an end in order that the client may seek the protection afforded by legal aid representation.

Pro bono costs orders

Where a client is successful in pro bono litigation, pro bono solicitors can seek a pro bono costs order under Section 194 of the Legal Services Act 2007.

In some cases, a client may have secured pro bono assistance for part of a case and have received legal aid, low cost advice or advice under a CFA for other stages.

In these circumstances the client may seek costs relating to the paid-for advice and a pro bono cost order relating to the advice provided pro bono.

Again, where relevant this can be addressed in the engagement letter.

Consider what use you may make of AI tools on pro bono matters.

You should consider including wording on the use of technology and AI in letters of engagement for pro bono matters, in line with your firm’s policies and the approach taken in letters of engagement for commercial matters.

This may include consideration of regulatory and client confidentiality obligations.

Ending an engagement

Like any matter or project, there may come a time when consideration needs to be given to terminating an engagement.

Letters of engagement need to make provision for the termination of the retainer in certain stated circumstances so that the client is clear on his or her or their position and the firm is able to terminate the relationship if need be.

The firm may wish to terminate if, for example, the client refuses to accept the legal advice in respect of an issue which the solicitor considers essential to the conduct or satisfactory settlement of their matter, or if the client’s financial circumstances change in a material way.

Where a pro bono matter is completed, the firm may wish to send a formal letter confirming the completion of the matter and identifying who to approach at the firm if the client has any questions in the future (usually the pro bono manager).

In addition to helping manage client expectations, this approach pre-empts situations where the original pro bono solicitor has left the firm or where a former client has new legal questions that are not within the original pro bono solicitor’s area of expertise.

Additional terms

Many firms attach standard 'Terms of Business' to client engagement letters.

These include terms relating to conflicts and the handling of confidential information:

• records, intellectual property and data protection issues
• regulatory issues (AML checks, bribery regulations, etc) marketing
• limitation of liability
• equality and diversity
• complaints handling, and
• other issues

Most of these terms will be equally applicable to pro bono client relationships as to commercial client relationships.

Some terms may be less relevant in a pro bono setting, a term detailing how data room access will be handled, for example, could be deleted from most pro bono client letters.

Similarly, a law firm may choose to further limit liability in a pro bono setting, as the client is not paying for legal advice. Many firms choose to limit their liability for pro bono matter to the minimum required by the SRA Indemnity Insurance Rules.

In addressing these minor changes, some firms continue to use their standard Terms of Business, amending the relevant terms each time to reflect the pro bono relationships.

Other firms may choose to incorporate all terms into the main engagement letter so that they can more easily amend the terms to reflect pro bono work.

Memorandum of understanding and partnership agreements

Where more than one party is involved in a pro bono project, a MOU or partnership agreement may be used to note the project outline and respective responsibilities.

This can be particularly helpful in a pro bono setting by managing the expectations of all parties involved, ensuring clarity on who does what, and providing clear processes for use if a project hits a hurdle.

Although the wording and formality in such agreements will vary according to the project, subject matter and work envisaged, the agreement should cover, at a minimum:

• the identity of relevant parties
• the agreed objectives of the partnership or project
• any relevant timelines or schedules
• the responsibilities of each party
• if costs are involved, agreement on when and how they will be paid or reimbursed (or queried)
• agreement regarding ownership of any materials produced during the project
• where regulatory issues may arise (e.g. if personal data will be stored and shared), provisions to address mutual responsibilities relating to these
• reporting and review arrangements
• a process for resolving any disputes
• provisions for ending the agreement, including early termination

Agreements may also contain:

• an overview of how the project will run
• agreement on how the project will be promoted or how PR inquiries will be handled (and by who)
• other protocols defining the relationships between parties

Secondment agreements

Secondments can be a valuable opportunity for firms to develop strong working relationships with pro bono clients.

The human resources team should be the starting point when drafting any secondment agreements for a pro bono client to ensure employment law issues are addressed appropriately in such agreements.

Some firms may already have templates used on commercial secondments, which could be amended (in consultation with human resources and the firm’s general counsel) to use on pro bono secondments.

Pro bono matters falling outside a firm’s areas of expertise

All pro bono work should be undertaken with the same degree of competence, expertise, and to the same high standard as any other legal work undertaken by the firm.

Some firms have skills and expertise that are relevant to and can be used to address unmet legal needs in the community.

However, many firms have specialist expertise relevant to corporate and commercial clients that cannot be deployed to support indigent individuals.

It is worth bearing in mind though that all lawyers have skills that can be useful to support clients with limited resources.

It is also important to recognise that pro bono is only ever provided to those clients who have no other options available to them.

As with any other legal work that lawyers undertake, it is essential to seek and obtain support and guidance from other legal professionals who have expertise and who can provide support, guidance or supervision.

Many firms have acquired expertise in new areas in order to provide pro bono services effectively to the community. This is sometimes referred to as ‘secondary specialisation’.

For example, a lawyer who practices in the area of aviation finance may develop a secondary specialisation in social welfare benefits law in order to build a successful and rewarding pro bono practice.

Many successful pro bono initiatives involve partnerships with pro bono clients, community Law Centres or other organisations that provide expert training and supervision to pro bono solicitors in areas in which they have previously not practised.

Provided that the risks are properly considered, professional obligations upheld and adequate training and supervision provided – doing pro bono work in an area of law that falls outside their firm's expertise can allow pro bono volunteers to help in the areas of unmet legal need that are most in need of support.

Secondary trauma and pro bono

When undertaking pro bono work in a new area of law, that work may involve supporting vulnerable or at-risk clients, which can impact volunteers’ own mental health.

Law firms should therefore be alive to the possibility that their pro bono lawyers might experience secondary trauma from undertaking this type of pro bono work.

For example, exposure to distressing material, which includes conversations and written testimony, can lead to a risk of developing vicarious trauma (VT) and post-traumatic stress disorder (PTSD).

In addition, since the coronavirus (COVID-19) pandemic, more sensitive work is being undertaken at home. This has led to an increased risk of blurring boundaries between work and personal space, time and life.

Pro bono managers, HR and/or line managers should be alive to this risk and ready to provide support where necessary.

Find out more about secondary trauma and pro bono.

Conflicts of interest

When deciding whether it can provide pro bono assistance, a firm generally refers to criteria for accepting new matters, as formalised in the firm’s policy and manual.

These criteria will most likely include consideration of conflicts of interest. Conflicts of interest may be:

• direct or legal conflicts
• indirect or commercial conflicts. The term commercial conflict is used to describe an indirect conflict. Commercial conflict also includes potential commercial conflict or conflicts of a non-legal or non-commercial variety where the matter is viewed as being prohibitively controversial

Firms generally have systems in place to ensure that legal conflicts of interest do not arise.

The more contentious area for the purposes of pro bono service delivery is that of commercial conflicts of interest – an expression commonly used to express the reason for an unwillingness to act because of concerns that existing or potential clients will question a firm’s allegiances or the potential controversy associated with a particular matter or client.

Perceptions of commercial conflicts

Firms may be understandably sensitive about deterring current or potential clients, particularly in the context of intense competition for legal work, and the tendency for corporations and government agencies to tender various aspects of their legal requirements to different firms.

The following are examples of situations that may give rise to perceived commercial conflicts:

• participating in pro bono work that is adverse to a particular class of clients or sector from which a firm regularly receives instructions, such as banks or government agencies
• acting for what is perceived to be ‘the other side’, for example, a firm that normally acts for employers, and then takes instructions to act for an aggrieved employee, even though the defendant in question is not a client of the firm
• acting in a matter that is perceived to be contrary to the firm’s business plan or business philosophy
• acting for plaintiffs in a class action against a corporation, institution or government agency to whom previous unrelated legal advice has been provided
• being accepted on the panel of a company against which a pro bono matter is referred, even though the firm has never received instructions from that company
• acting on politically sensitive, ideologically charged or ethically controversial matters

Overcoming and managing commercial concerns

When starting up a pro bono practice, it is often important to find pro bono matters and projects that achieve broad consensus and support from across the firm.

While there will be various commercial conflicts posed from time to time when pro bono requests are made, there are several ways in which those conflicts or concerns can be mitigated or eliminated.

It is ultimately a matter for a firm to decide how it will deal with commercial conflicts. However, it is worth noting that an overly cautious approach to commercial conflicts has the potential to inhibit a firm from taking on pro bono work.

A commercial conflict may, on occasion, be erroneously interpreted as a legal conflict, probably from an anxiety that a long-standing or desirable client may be alienated. This may in part stem from some confusion in relation to terms and definitional issues.

Firms should, without prejudicing their business interests, adopt a common-sense approach to commercial conflicts to ensure worthy clients are not precluded from accessing pro bono assistance.

The following are some of the practical ways that firms may address commercial conflicts:

• consider which aspects of a matter your firm can usually support without giving rise to a conflict or venturing into areas where the firm’s expertise or capacity may be constrained
• firms may produce policies and procedures to identify and resolve potential commercial conflicts arising though pro bono matters, which may adopt a narrow definition of commercial conflict to ensure that pro bono work is not inhibited. Newly drafted policies should be reviewed by the firm’s general counsel and/or Risk
• Management team to ensure consistency with the firm’s general approach to resolving conflicts. More generally, those coordinating a firm’s pro bono programme should maintain an open dialogue with the firm’s general counsel and/or risk management and conflicts team to ensure a mutual understanding of each team’s priorities when taking on new matters
• a pro bono clearing house or other intermediary may agree that the firm can provide research of a general nature directly to them to pass on to a pro bono client, thus avoiding a direct client relationship on a controversial matter
• as commonly seen in pro bono clinics, a firm’s solicitors may individually volunteer at an organisation, as opposed to opening a matter in the name of the firm. Their work would be supervised by the principal solicitor of the organisation. The pro bono client is the organisation’s client and any risk rests with it. A simple memorandum of understanding or secondment agreement can facilitate this arrangement
• firms can seek consent from the relevant commercial client to act on a new pro bono matter where a commercial conflict is raised. If a commitment to pro bono work is one of the defining characteristics of corporate culture within the firm, and an integral part of their responsibility as solicitors, it is not unlikely that the concerned corporate client may wish to be positively associated with the goodwill that attaches to it through encouragement and tolerance of that pro bono activity. This approach may well be consistent with the corporate client’s own image. It is often the case that large consumer-facing businesses (such as a bank) or government departments will waive any positional conflicts. Many general counsels are pleased to see their panel firms participating in pro bono initiatives, for example, even where the pro bono client has some minor dispute with the bank
• It is important to remember that consent from the pro bono client would be required prior to discussing the matter with the firm's commercial client when clearing a commercial conflict (to ensure compliance with SRA Codes of confidentiality and disclosure – paragraph 6.3-6.5). When doing so, you should be mindful of whether the fact the firm represents the commercial client would be a material factor for the pro bono client in choosing its legal representative. If so, you should seek the consent of the commercial client (for example, the bank) to disclose your relationship with them in order to aid transparency and assist the pro bono client's decision-making process
• If you fail to do so, the pro bono client may legitimately feel they were not properly and independently represented
• the firm may offer to refer the matter to a pro bono clearing house or directly to another firm for which the matter does not present a commercial conflict

The controversial or sensitive nature of some matters may mean that firms are cautious about taking them on. In these rare cases, a firm may wish to adopt similar procedures to those that apply to commercial conflicts, for example, additional scrutiny of the matter at a senior, general counsel or committee level of a firm.

The advantage of this procedure is that it puts the management of the firm on notice, enabling the firm to develop in advance, if necessary, an appropriate strategy to deal with any media attention, and therefore shield the pro bono work from undue criticism.

As a matter of procedure, if a firm has a policy about not taking on matters against a particular client, or class of clients, this information should ideally be made available to the referring organisations and pro bono brokers/clearing houses to avoid inappropriate referrals.

Practising certificates and professional indemnity insurance

Each jurisdiction has its own rules in relation to practising certificates and PII requirements. Solicitors in England and Wales may undertake pro bono work subject to all of the same rules that apply to any other type of legal matter.

When undertaking pro bono work that is structured differently to regular fee-generating work, for example in the case of legal clinics where the supervision and client relationship sit with an external organisation, firms should take particular care.

One of the key risks that will require attention will be the ownership of and access to client information.

There is virtually no claims history available for analysis in relation to pro bono work in most common law jurisdictions.

Pro bono is by its very nature low risk, as it often involves smaller sums of money or the assertion of rights rather than monetary claims, however the risk of a professional indemnity claim must be managed.

Even where the PI risk is outsourced to some external organisation or partner, such as a community law centre, there is every chance that the pro bono law firm may be added to proceedings and in such instance the firm will want to ensure it is entitled to access the case file, for example.

Law firms should contact the SRA and their professional indemnity insurer in relation to any specific or complex arrangements.

PII generally always extends to pro bono work so long as it is undertaken in connection with the practice of the firm, however, firms may wish to seek written confirmation of this from their insurance providers.

In-house solicitors undertaking pro bono work will often need to arrange PI I as most in-house teams do not PII in place.

Alternatively, lawyers working in-house may consider partnering with a law firm or accessing the PI cover available through LawWorks.

Reserved legal activities

It is currently recommended that in-house solicitors only undertake reserved legal activities when clearly acting outside the course of their in-house employment.

This means, for example, working on pro bono matters outside normal working hours, not at employers’ desks, nor using employers’ resources, including computers or other IT and not relying upon employers’ insurance.

This caution is due to a restriction contained in section 15(4) of the Legal Services Act 2007 (LSA 2007).

Section 15(4) of the LSA 2007 says that an employer does not carry on a reserved legal activity by virtue of an employee carrying it on in their capacity as an employee of the employer, unless the provision of the reserved activity is to the public or a section of the public, whether or not for profit.

Whilst there are a range of possible interpretations concerning section 15(4) LSA 2007, the limited case law to date provides an incomplete picture as to its meaning as well as the scope of the reserved legal activities.

The SRA’s guidance approaches section 15(4) LSA 2007 cautiously stating that it has to be clear that the pro bono services are not those of the unauthorised employer.

Explore the SRA’s guidance for the not-for-profit sector.

The reserved legal activities are:

• the ‘exercise of a right of audience’ (not to be assumed as meaning advocacy before all courts and tribunals)
• the conduct of litigation
• reserved instrument activities (i.e. many property matters)
• probate activities
• notarial activities
• the administration of oaths

The restrictions on undertaking reserved legal activities in section 15(4) LSA 2007 are not expressly referred to in the SRA’s AIR, however they should be complied with in the same way as any other applicable statutory rule.

LawWorks, whose activities are described below, has been working with the SRA to provide greater clarity in respect of the meaning and scope of the reserved legal activities, as well as to realise opportunities for pro bono elsewhere within the LSA 2007.

We’re also supportive in enabling in-house solicitors to undertake pro bono.

Detailed information regarding the meaning and scope of the reserved legal activities and what constitutes‘ conduct of litigation,’ ‘exercise of a right of audience’ and ‘reserved instrument activities,’ can be found on LawWork's website.

Professional indemnity insurance

The SRA’s Indemnity Insurance Rules do not apply to solicitors, RELs and RFLs that practise outside SRA authorised firms.

There are, nonetheless, SRA regulations which apply to some pro bono individuals/situations.

Acting through a non-commercial body (e.g. a charitable free legal advice clinic)

Reserved legal activities

The SRA’s Code of Conduct for Solicitors, RELs and RFLs (the Code) places responsibility on individual solicitors’ shoulders to ensure that the non-commercial body has taken out and maintains a policy of insurance which covers the carrying on of reserved legal activity and is ‘adequate and appropriate’ (see paragraph 5.6 of the Code).

This means that those responsible for managing the non-commercial body should, with reference to Rule 5.6 of the Code, look at the sort of matters undertaken, consider the level of awards, damages, compensation, settlements, etc. and pitch insurance accordingly.

Individual solicitors who volunteer through non-commercial bodies should satisfy themselves that organisations have in place appropriate insurance, for example by inspecting the policy’s wording.

Non-reserved legal activities

The general position is that there are no regulatory minimum insurance requirements in respect of the supply of non-reserved pro bono legal services to the public through a non-commercial body save where working in an authorised non-SRA or a non-commercial body; hence those services are subject only to common law liability and insurable as such.

Nonetheless, for many practitioners, insurance cover pitched below the regulatory level ‘adequate and appropriate’ may not sit comfortably with the ‘best interests’ principle contained in the Code; nor, indeed, the obligations placed on trustees of charities (where relevant).

In any event, cover pitched below the regulatory minimum may not make a great deal of sense from any organisation’s standpoint. Hence, whatever the context (excepting, regulated bodies, such as law firms) ‘adequate and appropriate’ insurance looks like a de facto minimum level of cover.

The exception to the general principle above is where a mix of reserved and non-reserved work is provided through the non-commercial body by individual solicitors. In these circumstances, the non-reserved work is subject to paragraph 5.6 of the Code, necessitating ‘adequate and appropriate’ insurance cover to be in place in respect of it.

Acting through a non-regulated business employer

Paragraph 5.6 of the Code is not applicable to non-regulated business employers; hence the pro bono legal services supplied to the public through such entities are subject to common law liability only.

As with non-reserved legal activities undertaken through non-commercial bodies above, it is difficult to see how in principle and in practice insurance that falls short of ‘adequate and appropriate’ insurance can be justified.

As paragraph 5.6 does not apply, Rule 4.3 of the SRA Transparency Rules (TR) applies to individual solicitors.

Rule 4.3 of the TR states that where a solicitor is not required to meet the Minimum Terms and Conditions (MTC), in respect of professional indemnity insurance under the SRA Indemnity Insurance Rules, as in the case of supplying [exclusively] non-reserved pro bono legal services through a non-regulated business employer, they:

a) “must before engagement inform all clients of this fact and specify that alternative insurance arrangements are in place if this is the case (together with information about the cover this provides, if requested); and…

b) where applicable, must inform all clients that they will not be eligible to apply for a grant from the SRA Compensation Fund.”

As above, it is currently recommended that in-house solicitors avoid reserved legal activities when acting within the course of their in-house employment.

Explore the SRA insurance guidance.

Contracts of employment

Instilling a culture and practice of pro bono in-house often requires committed individuals who are willing to take the lead and, in some cases, convert others.

As a consequence, whether individuals’ contract of employment expressly restricts pro bono work may be viewed as no more than a starting point for a conversation about pro bono.

Nonetheless, individuals should check their contracts of employment.

Overcoming barriers

The following approaches are likely to be helpful in overcoming these difficulties.

Reserved legal activities

In-house solicitors can assist in the delivery of services in connection with reserved legal activities to the public on a pro bono basis, as long as it is separate from their in-house employment (as above) and supervised and formally conducted, either by:

• a solicitor practising through a body authorised to undertake reserved legal activities (for example, a law firm authorised by the SRA or authorised non-SRA firm defined in section 20 of the LSA, and listed in Schedule 4 to the LSA, which includes the Council for Licensed Conveyancers and Chartered Institute for Legal Executives), or
• a body excluded from the requirement to be authorised (for example, a not-for-profit law centre or clinic)

More formally, in-house solicitors may consider contractual secondment, to an authorised body (for example, a non-governmental organisation (NGO) with a legal function or a Law Centre), which will direct and supervise the solicitor’s work taking responsibility for the delivery of the legal services.

Note, however, contractual secondment, per se, would not remove the need to comply with section 15(4) LSA 2007, in which case it would still be necessary to consider both the section and the SRA’s guidance.

For example, where the seconder non-regulated business employer paid the salary of the secondee during the secondment, advertised its pro bono activity and/or some of the pro bono work was undertaken working out of the seconder’s offices, there would still be a risk, following the SRA’s guidance that the secondment would be insufficient to take the pro bono activity outside the non-regulated employer’s ‘business’ for the purpose of section 15(4).

In order to reduce the risk to zero, it would be sensible to confine any pro bono activity pursuant to secondment to non-reserved legal activities, which, in any event, can be undertaken through non-regulated business employers.

In the above circumstances - unless in practice secondment arrangements fully take into account the SRA’s guidance - secondment may be of limited assistance.

Unless supervised by another solicitor satisfying the conditions in Regulation 10 of the AIR, the in-house solicitor will be considered to be a ‘freelance’ solicitor.

A freelance solicitor must have at least three years’ post qualification experience and adequate insurance cover (unless held by the ‘special body’ or other non-commercial body).

If the in-house solicitor is intending to go down the freelance route, the SRA will need to be notified.

Solicitors employed by universities to provide pro bono services via a law school, may find it helpful to consult the Clinical Legal Education Handbook (freely available online via The Institute of Advanced Legal Studies) for further detailed guidance on the application of the SRA Standards and Regulations and other relevant legislation in that context.

Professional indemnity insurance

Where in-house solicitors undertake reserved legal activities under the supervision of an authorised body in the way described above, it is likely that any liability arising out of the work product would be covered by the authorised body’s PII.

Similarly, under a secondment arrangement, it is likely that the in-house solicitor’s work would be covered by the PII of the authorised body to which the solicitor is seconded.

In-house solicitors who work in teams that do not have indemnity cover may be able, either individually or collectively, to take out PII cover for pro bono work that does not consist of reserved legal activities and which they undertake as part of their employment.

In-house teams may decide as an organisation to join LawWorks, which is able to offer indemnity insurance for certain pieces of pro bono work that the in-house team undertakes through LawWorks and its projects.

Contracts of employment

If there are any issues relating to an in-house solicitor’s contract of employment, these would need to be dealt with on a case-by-case basis, but an employer’s informed consent should be enough to remove any obstacles. This should be agreed in writing wherever possible.

Ways in which in-house solicitors can get involved in pro bono

Working with panel law firms

Most solicitor’s law firms have their own dedicated pro bono management resource responsible for developing their firm’s pro bono practice and infrastructure.

In the spirit of adding value to what they can offer, these law firms are often happy to explore possible pro bono collaboration with their clients’ in-house teams.

This way of working has several advantages.

It allows in-house solicitors in effect to piggyback on the due diligence and supervision arrangements that the firms have in place for their own purposes.

It also offers a solution to the reserved legal activities and insurance problems discussed above.

Where you ‘piggyback’ onto another organisation's insurance there will inevitably need to be additional checks on your work by the host body or firm.

Giving non-contentious advice to NGOs, charities and not-for-profit organisations in the UK

Smaller not-for-profit organisations in the UK often struggle to afford legal advice and assistance across a range of issues.

These organisations often provide vital support to disadvantaged communities and vulnerable individuals, working on areas such as:

• poverty
• children
• social exclusion
• health

The support of a pro bono solicitor to strengthen their capacity to deliver services can have a profound effect at the very heart of communities.

The LawWorks Not-for-Profit Programme connects the skills of solicitors with the legal needs of smaller not-for-profit organisations.

It provides opportunities to carry out discrete pieces of work for organisations on a range of legal issues.

Advice is given remotely, and LawWorks’ is able to extend its professional indemnity insurance to in-house solicitors providing advice via this programme.

Legal advice to individuals in the UK

There are many opportunities for in-house solicitors to volunteer in a personal capacity (or in some circumstances as a team) at pro bono legal advice clinics run by Law Centres and advice organisations.

LawWorks co-ordinates the activities of a large number of independent pro bono advice clinics across England and Wales, connecting the skills of solicitors with the needs of individuals unable to access legal aid or afford to pay for help. It is a good place to start for finding out about opportunities for involvement.

LawWorks provides free training in social welfare law for clinic volunteers. Some clinics will have their own insurance that will cover the advice provided by in-house solicitors at the clinic.

LawWorks may be able to extend its professional indemnity insurance for those clinics who do not have their own insurance

Many law firms send their solicitors to pro bono legal advice clinics. They are likely to be willing to facilitate introductions for in-house solicitors with local clinics and in some instances to offer assistance with supervision and training.

It is also possible for an in-house team to volunteer at a clinic, working in partnership with a law firm.

In this arrangement, the law firm would cover reserved matters and LawWorks may be able to extend its professional indemnity insurance to the pro bono work of the in-house team provided the team is a LawWorks member.

This section contains sample precedents and pro formas that, for the most part, have been created by law firms in the course of developing and operating their pro bono programmes.

The documents have been rendered anonymous and are provided as practical examples and are not intended to be definitive or exhaustive.

They are current as at November 2025.

The materials in this section are likely to be of use to firms in the process of developing their pro bono programmes and also to firms with established pro bono practices. 

Firms should adapt or modify the materials in this section to suit their own requirements.

We intend over time to make this manual a more comprehensive resource and to include more precedents and pro formas.

Firms who have developed relevant materials are invited to contact us to discuss their inclusion in updates to the manual.

We are extremely grateful to the firms who have already shared their materials for the manual and encourage other firms to do the same.