Blogged by Edwin Rekosh, director of the Public Interest Law Institute (PILI)
Definitions can be tricky. Look up "pro bono" in a Latin dictionary - or rather look up the original "pro bono publico" for which it is shorthand - and you get "for the public good" as the English translation.
Well, a lot of things are for the public good.
If you crowdsource the phrase to Wikipedia, you get the somewhat more meaningful "professional work undertaken voluntarily and without payment".
But is that all there is to it? Defining pro bono is a topic that has been much debated in certain circles. And as with any semantic issue, the first question ought to be: Why does it matter?
In the United States, a definition pioneered by the Pro Bono Institute has been widely adopted throughout the legal community, and it is famously relied on by The American Lawyer magazine for purposes of counting up volunteer hours.
Those numbers find their way into rankings that have provided strong encouragement to status-conscious law firms trying to keep up with the Jones Dayses - or more accurately, according to the most recent results, the Arnold & Porters, Covingtons and Lathams.
The Pro Bono Institute, and those relying on its definition, have found it useful to be more precise than Wikipedia. According to PBI, pro bono work includes activities that are normally undertaken without expectation of fees and not in the course of ordinary commercial practice and that consist of:
(a) the delivery of legal services to people of limited means or to charitable, religious, civic, community, governmental and educational organisations in matters that are designed primarily to address the needs of people of limited means;
(b) the provision of legal assistance to individuals, groups or organisations seeking to secure or protect civil rights, civil liberties or public rights; or
(c) the provision of legal assistance to charitable, religious, civic, community, governmental or educational organisations in matters in furtherance of their organisational purposes, where the payment of standard legal fees would significantly deplete the organisation's economic resources or would be otherwise inappropriate.
Such precision is needed because the stakes are high in the United States. Law firms care a great deal about whether they make it onto The American Lawyer's "A list", and a transparent definition is important to ensure fairness.
Given the huge amount of resources devoted to pro bono work in the United States (estimated by the Pro Bono Institute at nearly 5 million hours of service in 2009), how those resources are directed can arguably make a big difference.
Such strong driving forces can be no more than an aspiration, at best, within the legal communities of most countries. Similar imperatives may emerge eventually on a more global basis, creating a need for more precision at some point, but that seems a long way off.
Even In Britain, where pro bono has developed strongly in the past decade or so, there is little appetite for American Lawyer-style quantitative comparisons generically dubbed "league tables", and accordingly there is no consensus around such a precise definition.
On the other hand, the Pro Bono Protocol, developed jointly by the Bar Pro Bono Unit and LawWorks, does clarify that pro bono "is always only an adjunct to, and not a substitute for, a proper system of publicly funded legal services".
That clarification is critically important in Britain, where the government provides more financial support for legal services per capita than any other country in the world. Pro bono is supposed to help fill the remaining gap in access to justice, not just move it around.
Similar tensions exist in the United States between the perspectives of the "pro bono community" and the "legal services community", but the history of that relationship is far different than in Britain.
There is somewhat less sensitivity to the issue in the United States because pro bono began to develop in earnest following major cuts in government funding for legal services in the 1980s. In the United States, pro bono is essentially a response to government cutbacks rather than a potential justification for them.
So, pro bono definitions matter, both in the United States and Britain, but for different reasons. As a result, there are varying degrees of precision and differing emphases in the commonly accepted definitions.
In the context of emerging democracies and developing countries, the definition of pro bono matters for yet another reason.
The starting point in those countries, as it should be everywhere, is how best to solve the problem of providing greater access to justice. Typical actors include private charitable organisations, or NGOs, as well as those working within government-run or government-funded legal aid programs.
In developing contexts, all of these institutions are changing rapidly, sometimes even invented virtually overnight from whole cloth.
In the United States and Britain alike, there are well-established charitable organisations that can make profitable use of pro bono lawyers, but they are not tempted to label their own activities as pro bono to legitimise themselves.
In countries with less vibrant non-profit sectors of more recent vintage, the legal work of NGOs can easily get confused with the pro bono programmes of law firms that are emerging in parallel. That confusion harms the healthy development of both institutions - which ideally complement each other but need to grow in different directions.
For pro bono practice among commercial lawyers to develop strongly around the world, it can be useful to have a relatively fluid definition. Each lawyer needs to find ways of contributing to social purposes he or she considers important, given their own preferences and the local needs and resources.
But it is important to agree on one thing: An essential purpose of pro bono is to add value in the perpetual struggle to reduce the access-to-justice deficit rather than occupy the space of other important efforts.
When it comes to defining pro bono, clarifying that point is key.
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