Introduction
The Australian Pro Bono Manual
A practice guide and resource kit for law firms
Edited by Jill Anderson Published by National Pro Bono Resource Centre and Victoria Law Foundation
First Published October 2003
ISBN 1 876045 10 8 © National Pro Bono Resource Centre 2003
Author/editor: Jill Anderson
Manuscript editor: Nan McNab
Disclaimer While every effort has been made to ensure its accuracy, this manual should be used as a general guide only and readers are encouraged to adapt content to the circumstances within their particular workplace. No responsibility is taken by the authors or publishers for any errors or omissions.
This publication is copyright. With the exception of section 4.7 'Advising and acting for Indigenous clients' for which specific permission is required from the copyright holder (see footnote 139) reproduction in part or in whole is encouraged. We ask that proper credit is given to the National Pro Bono Resource Centre and the Victoria Law Foundation within reproduced material. Material may not be reproduced for sale purposes without the written agreement of the National Pro Bono Resource Centre and Victoria Law Foundation.
Australian pro bono manual 1 Introduction
Contents About this manual 3 Acknowledgements 4 Introduction 6
1 Planning, developing and maintaining a program 8 1Planning pro bono for the firm 8 2 Current models of law firm pro bono 10 3Defining pro bono for the firm 17 4Promoting a pro bono culture 24 5Surveying interest 31 6Identifying needs and sources of work 32 7Setting targets and budgets 39 8 Coordinating pro bono work in the firm 42 9Involvement of all levels 49 10 Counting and crediting time 53 11 Pro bono policy 59 12 Costs and disbursements 61 13 Measurement, record keeping and evaluation 63 14 Training and skills 67 15 Standards 69 16 Reflections of a pro bono coordinator 70
2 Procedures and practice issues 72 1Casework procedures 72 2Supervision 77 3 Letters of engagement 80 4Risk management 87 5 Taxation issues 93 6 Troubleshooting 97
3 Precedents and pro formas 107 1Sample pro bono policies (6) 107 2Sample pro bono procedure 132 3Sample letters of engagement (5) 138 4Pro bono survey 154 5Pro bono database and sample monthly report 156 6Sample referral and assessment form 158 7Application and approval forms 160 8Sample new pro bono matter memorandum 162 9Sample evaluation form 164 10 Pro bono matter closure report 166 11 Secondment agreements (2) 168 12 Encouraging pro bono 174
4 Information and resources 176 1Secondment issues 176 2Pro bono referral schemes 179 3 Legal aid 183 4 Community legal centres and Indigenous legal organisations 188 5 Disbursement assistance 192 6 Interpreter services 198 7 Advising and acting for Indigenous clients 200 8 Clients with disabilities 202 9 Law firm pro bono contacts 208 10 Useful websites 212
Endnotes 214
Australian pro bono manual 2 Introduction
About this manual This manual has been compiled for law firms to enhance and encourage the provision of pro bono legal services. The manual grew out of a recommendation of the National Pro Bono Task Force to develop a ‘how to’ handbook that would provide detailed practical advice to law firms and legal practitioners on topics ranging from promoting a pro bono culture within a firm to budgeting, accounting, taxation and record keeping. Through a mixture of commentary, advice, precedents and background information the manual aims to assist law firms wishing to establish, develop or expand their pro bono practices. It will also be of value to individuals who are seeking resources and ideas about pro bono. The topics covered in the manual were chosen following consultation with Australian law firms, particularly those operating or embarking on structured pro bono programs. Many of the precedents have been provided by these firms who have also contributed to the commentary. Other ideas and materials have been drawn from pro bono publications in England and the United States. The precedents have generally been rendered anonymous and are included as illustrations and guides. Firms should adapt or modify these to suit their own requirements. The manual is primarily directed to medium and large law firms although some of the resources will also be of use to small firms. Topics have, for the most part, been dealt with as stand-alone modules that will be helpful to different firms at different stages of their programs. Cross-referencing is used to identify other sections of the manual that are relevant to a particular issue. We anticipate that law firms will dip into sections of the manual that are of value and interest to them at various times. The first half of this manual (Parts 1–2) focuses on policy and procedural issues relevant to firms providing pro bono services. The second half (Parts 3–4) contains precedents and pro formas and a resources section. Part 1 contains a description of current models of pro bono practice, providing a snapshot of the extent, variety and options for pro bono work together with information useful to firms establishing, operating or expanding structured pro bono programs. Part 2 discusses issues in pro bono practice of particular relevance to firms’ casework practice and procedures. Part 3 contains sample precedents, including sample pro bono policies, procedures and letters of engagement, included to complement the commentary in the earlier sections of the manual. Part 4 contains information and resources for firms, including information about issues and services relevant to pro bono matters and clients, as well as lists of pro bono contacts and schemes and useful websites. In some ways the manual can be viewed as a work in progress. It is not intended to be exhaustive or prescriptive. We hope that over time it will become a more comprehensive resource. We encourage users to provide feedback [mailto:[email protected]], information and resources so that their experiences can be shared with other firms in updates to this manual. In this way, we hope the objective of enhancing and encouraging pro bono legal services can be achieved more effectively and quickly.
Australian pro bono manual 3 Introduction
Acknowledgements This manual has been substantially written, compiled and edited by Jill Anderson, the National Pro Bono Resource Centre’s policy and research officer. The Centre acknowledges the enormous amount of work that has gone into the manual and thanks Jill and Centre staff Lynne Spender, Gordon Renouf and former temporary project officers Anna Cody and Kirsty Gowans as well as student interns Alex Spark and Joumana Kisrwani for their contributions. The Centre particularly acknowledges the significant writing and editorial contribution of Jenny Lovric, a project officer at the Centre. We are most grateful to the Victoria Law Foundation for their support, without which the manual could not have been published. In addition to publishing the manual the Foundation provided materials germane to the project and organised a critical readers group of pro bono coordinators and others in Victoria. We greatly appreciate the time and effort that the members of the group gave to the project. The NPBRC thanks the Solicitors Pro Bono Group (UK) for generously allowing us to use information and documents from their Law Firm Pro Bono Manual. We are also grateful for the extensive contributions made by a large number of law firm pro bono coordinators, in particular by Annette Bain (Freehills), Robin Banks (Henry Davis York), Anne Cregan (Blake Dawson Waldron), Jane Farnsworth (Mallesons Stephen Jaques), Meghan Haire (Ebsworth & Ebsworth), Michelle Hannon (Gilbert + Tobin), David Hillard (Clayton Utz), Francene Kaleel (Allens Arthur Robinson), Fiona McLeay (Clayton Utz), Jennifer McVicar (Baker & McKenzie), Eloise Murphy (Minter Ellison) and Albert Yuen (Coudert Brothers). Thanks are also offered to John Emerson, Partner, Freehills, for writing section 2.5 Taxation issues and to Linda Rogers (Intellectual Disability Rights Service) and Jonathan Goodfellow (Disability Discrimination Legal Service Inc., Victoria) for work in preparing section 4.8 Clients with disabilities, and Robert Wheeler (Mental Health Advocacy Service) for providing comments. We also thank National Legal Aid and the Legal Aid Commissions for their contribution to section 4.3 Legal aid, the Public Interest Law Clearing Houses in New South Wales, Queensland and Victoria for providing materials, comments, information and other assistance and the New South Wales Law and Justice Foundation. Thanks also to the Victorian Attorney-General’s Pro Bono Secondment Scheme. The Centre is also grateful to the following firms for providing materials or contributing to the manual in other ways: Allens Arthur Robinson, Arnold Bloch Leibler, Baker & McKenzie, Blake Dawson Waldron, Clayton Utz, Corrs Chambers Westgarth, Coudert Brothers, Deacons, Ebsworth & Ebsworth, Freehills, Gilbert + Tobin, Harmers Workplace Lawyers, Henry Davis York, Herbert Geer & Rundle, Maddocks, Mallesons Stephen Jaques, Minter Ellison, Phillips Fox, Slater & Gordon and Sparke Helmore. Thanks also to other firms, people and organisations with whom the Centre consulted and who provided ideas or information as the manual developed.
About the publishers
The National Pro Bono Resource Centre The National Pro Bono Resource Centre is an independent, non-profit organisation that aims to support and promote pro bono legal services. The Centre receives financial assistance from the Commonwealth Attorney-General’s Department and the Faculty of Law at the University of New South Wales.
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Further information about the Centre, including details of the Centre’s publications, current activities and projects in development is available at www.nationalprobono.org.au
The Victoria Law Foundation The Victoria Law Foundation is an independent public benefit organisation, established to enhance the community’s understanding of, and access to, a more responsive legal system. The Foundation is a plain language legal publisher, administers an extensive grants program, and provides support services to community and not-for-profit organisations to enhance access to the law. The Foundation coordinates the Pro Bono Policy Secretariat in Victoria. For further information on the activities and a list of publications available from the Foundation contact us at www.victorialaw.org.au
Australian pro bono manual 5 Introduction
Introduction Lawyers and others have long been concerned that significant numbers of people are unable to afford the legal services necessary to assert or protect their rights and interests. One response has been for lawyers individually or collectively to provide free legal services to poor or disadvantaged people. Other responses include advocacy for reform of the legal system or particular laws, welfare state funding of legal services, developing alternatives to the formal legal system and working for more fundamental social change. The provision of free legal assistance to those who cannot afford it has a long history in Australia and elsewhere. Historical examples include informal court-based arrangements for advocates to appear on behalf of people accused of criminal offences, local solicitors responding to requests for assistance, and the establishment of community legal centres by volunteers. Some of these arrangements have been subsumed into government-funded programs, but the tradition of free provision of legal services continues. In Australia, the United States, the United Kingdom and other countries there has been, in recent years, an explosion of interest in the provision of free legal services by lawyers employed in the for- profit sector. Concern has been expressed in Australia and the United Kingdom that the provision of pro bono services in core areas of legal aid will allow governments to renege on their funding commitment. Pro bono cannot and should not be a substitute for publicly funded legal services (such as legal aid services, community legal centres and Indigenous legal services). Pro bono services operate as an adjunct to publicly funded services and are part of a framework of services provided to meet the needs of low-income and disadvantaged people. Pro bono has, of course, always been part of the everyday workload of law firms, particularly those who have general legal practices.[1] In recent years, many larger firms have significantly increased their commitment to pro bono and have expanded their pro bono programs. Some firms have active in-house pro bono practices, involving significant numbers of lawyers within the firm, and work closely with community legal centres and other community organisations in accepting referrals and targeting particular areas of need. At least seven now employ full-time pro bono coordinators. A significant number have part-time coordinators. The transition from ad hoc to organised law firm pro bono practices provides benefits for both the firms and the recipients of their services. For example, firms are better able to manage the level of their commitment to pro bono work, to track and record it, to provide opportunities for a greater number of lawyers and to target and meet the needs of low-income and disadvantaged people. This manual draws on the experience of firms, together with international good practice, to provide practical information, precedent documents and other tools to assist law firms to develop, expand and maintain organised pro bono programs.
What is pro bono?
Definitions There is no universally accepted definition of what is meant by ‘pro bono’. Most definitions focus on legal assistance provided to disadvantaged clients or clients who cannot afford ordinary market rates, or to clients whose case raises a wider issue of public interest. The term includes legal services provided to organisations working for disadvantaged groups or for the public good. Many definitions include lawyers engaging in free community legal education and/or law reform. All definitions of pro bono include services that are provided without a fee being charged, and many include work done for a substantially reduced fee or reduced fee. Recently there has been an attempt to broaden the
Australian pro bono manual 6 Introduction definition of pro bono to include work done by non-lawyers as well as the provision of financial or in- kind assistance so long as it will enhance access to justice for disadvantaged people or organisations and/or promote the public interest. Key definitions of pro bono are discussed in 1.3 Defining pro bono for the firm. That section also deals with particular aspects of these definitions in the context of considering specific criteria for law firm pro bono programs.
Law firm pro bono: current models While much pro bono assistance provided by lawyers involves legal advice and representation in the course of their normal practice, there are many other ways in which lawyers can undertake pro bono work to increase access to justice, including: • ‘in firm’ pro bono – in particular, advice and representation for clients, and community legal education and law reform activities undertaken within the firm; • outreach services, where lawyers from the firm provide legal advice and assistance at outreach locations, usually at the premises of a community organisation; • secondments to community legal organisations; • specialist services created by and/or substantially supported by firms, for example, a shopfront youth legal service; • legal volunteering, most commonly at community legal centres; • multi-tiered relationships between firms and community legal organisations, involving the firm providing a range of legal and non-legal assistance to the organisation. These are discussed in detail in 1.2 Current models of law firm pro bono. There may also be other models, including hybrids of those noted above. Many firms adopt a combination of models.
Australian pro bono manual 7 1 Planning, developing and maintaining a program
1Planning, developing and maintaining a program 1Planning pro bono for the firm Almost all pro bono programs will benefit from a planned and coordinated approach. The growth of a structured, less ad hoc approach by law firms to pro bono has been linked to the growth in the size of law firms and the perceived need for an approach that embodies a firm’s institutional commitment to pro bono. It ‘mirrors the general trend toward greater structure and formalism in other areas of firm administration … and signals the integral role of pro bono in the firm’.[2] Properly designing, structuring and coordinating a firm’s pro bono program significantly enhances the ability of the firm – and particularly mid-sized and large firms to: • manage the level of commitment to pro bono work of all kinds; • track and record pro bono work and consequently measure the benefits and the costs; • undertake pro bono work on a less reactive basis; • nurture a firm-wide culture within a coherent policy; • provide opportunities for a greater number of lawyers, spread the involvement of lawyers in the firm (including amongst groups that would not usually be associated with pro bono services), and provide a greater range of opportunities for pro bono work; • engage in better supervision and quality control of pro bono work carried out within the firm; • provide valuable opportunities for training and experience to lawyers; • target resources in ways considered most beneficial; • give a consistent message when communicating the firm’s activities to the outside world. [3] The planning checklist below may assist firms to achieve these outcomes. It may be worth noting Roger West’s recommendations for a particular large firm’s pro bono program.[4] West suggests that the program would have the best chances of success if it: • has the clear support of the firm’s leaders; • is professionally planned and managed with a full-time specialist lawyer coordinator; • has a dedicated and significant budget; • operates according to clear policy and guidelines; • ensures that, to the maximum extent possible, pro bono work is treated, performed and credited in the same way as other work the firm undertakes; • has both in-house and external components; • is targeted to areas of greatest need where the firm’s skills and resources can be best utilised; and • ensures that interested personnel at all levels of the firm can participate.
Planning checklist Firms planning their pro bono programs might consider undertaking the following: • survey the firm’s pro bono work, contacts and interest and seek ideas for the program (see 1.5 Surveying interest);
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• consider ways to promote a pro bono culture and encourage pro bono in the firm (see 1.4 Promoting a pro bono culture); • develop a pro bono policy (this will require decisions to be made about many of the matters noted below) (see 1.11 Pro bono policy); • identify the nature of the work to be undertaken (see 1.2 Current models of law firm pro bono); • define pro bono for the purposes of the firm’s program (see 1.3 Defining pro bono for the firm); • determine processes for overseeing and administering the program with clear lines of responsibility (see 1.8 Coordinating pro bono work in the firm); • consider unmet legal needs and identify sources of work (see 1.6 Identifying needs and sources of work) and ensure that an individual in the firm is given responsibility for contacting relevant community organisations and others (such as pro bono referral schemes) and communicating with them on a regular basis; • identify possible pro bono work and projects for different teams within the firm, including ‘transactional’ (non-litigation) work, community legal education and law reform work; • identify opportunities for involvement of all levels in the firm, including new graduates, articled clerks and vacation clerks (where relevant) (see 1.9 Involvement of all levels); • consider acquiring expertise in particular areas (see 1.14 Training and skills); • identify how pro bono work will be counted and credited, including for the purposes of assessing performance, remuneration and advancement in the firm (see 1.10 Counting and crediting time); • determine procedures for intake, file management and supervision (see 2.1 Casework procedures and 2.2 Supervision); • create mechanisms to ensure communication within the firm regarding pro bono work; • consider record keeping and reporting mechanisms and requirements (see 1.13 Measurement, record keeping and evaluation); • make arrangements for periodic evaluation of the pro bono program and for making changes to it.
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2Current models of law firm pro bono Pro bono work can take many forms. While much pro bono assistance provided by lawyers involves legal advice and representation in the course of their normal practice, there are many other ways in which lawyers can undertake pro bono work to increase access to justice. This section discusses the most common models of pro bono practice, with examples of practices in some firms. While this is an overview of key models, there may be others, including combinations of those discussed here. The examples cited below do not purport to exhaustively represent firms’ pro bono practices. Many firms adopt a combination of models. The models of pro bono practice discussed are: • in-firm pro bono; • outreach services; • secondments to community legal organisations; • specialist services; • volunteering; • multi-tiered relationships; • other pro bono opportunities.
In-firm pro bono The archetypal form of pro bono is perhaps a lawyer or firm accepting instructions to advise or represent an individual as part of their ordinary legal practice. The firm accepts the client’s instructions in the same way it would accept a paying client’s and provides services in the same way, the only difference being that the client pays nothing or pays an agreed, but substantially reduced, amount for the legal services provided. Advice to and representation of individual clients is, of course, not the only kind of client work that can be done. In recent years considerable attention has been given to ways in which lawyers who specialise in ‘transactional’ work can directly or indirectly improve disadvantaged clients’ access to justice, for example, through the provision of legal assistance to community-based welfare and advocacy organisations. Firms can also contribute to community legal education and law reform projects. For example, rather than advising individual community organisations about the effects of changes to tax laws, Freehills organised a number of well-attended seminars for representatives of affected community organisations. Similarly a firm could prepare standard materials to advise particular sectors about the effect of the law in particular areas. Indeed, a number of lawyers working for private firms or elsewhere contribute pro bono to publications such as The Law Handbook, a plain English guide to the law produced in each state by community legal centres or legal aid commissions. Finally, firms can use their expertise to assist public advocacy organisations with law reform proposals or to comment on other proposals, including government proposals. For example, Clayton Utz and Minter Ellison researched and drafted law reform submissions for the PILCH (Public Interest Law Clearing House) (Vic.) Homeless Persons’ Legal Clinic in Melbourne, and several law firms have prepared submissions for the Senate Legal and Constitutional References Committee’s Inquiry into Legal Aid and Access to Justice. Some large firms employ one or more solicitors to do only pro bono work on behalf of the firm. While the specialist pro bono lawyer undertakes casework, much of the job is administrative, involving screening pro bono cases and allocating, coordinating and supervising the pro bono work throughout the firm. The presence and support of a pro bono lawyer may make it easier for other
Australian pro bono manual 10 1 Planning, developing and maintaining a program lawyers to do pro bono work as the pro bono specialist can seek out matters that fit lawyers’ interests. The specialist lawyer can also train others in the firm and develop resources relevant to the pro bono practice. They also function as a contact point for external agencies referring work. By employing a specialist pro bono lawyer, the firm is signalling, within the firm and externally, that pro bono work is important and warrants specific resource commitment. Care should be taken that other lawyers in the firm are not quarantined from undertaking pro bono work. Ideally the employment of a specialist pro bono lawyer is accompanied by a policy making it clear that the responsibility for pro bono is shared and fostered more broadly within the firm.
Outreach services Outreach services involve lawyers providing legal advice, and sometimes ongoing assistance, at outreach locations, usually at the premises of a community organisation. The legal assistance may be part of a discrete project of limited duration, or a partnership arrangement on an ongoing basis. The following examples of outreach services illustrate their scope. Women’s Legal Resource Centre (WLRC) identified the pressing need for legal outreach assistance in under-resourced and remote north-western New South Wales. In partnership with WLRC, and with a grant from the New South Wales Law and Justice Foundation to meet the travel costs, Gilbert + Tobin (G+T) provided a pro bono specialist and a commercial lawyer on a six-weekly basis to service the area’s disadvantaged (particularly Indigenous) communities with advice clinics and legal education for community organisation staff. The outreach service ceased on the exhaustion of the grant, however, having made links in the area, G+T continues to receive case referrals. Another WLRC/G+T outreach initiative involves G+T sending a solicitor once a month to the Women’s Health Centre in Wyong (north of Sydney) and to the Wyong Neighbourhood Centre. Blake Dawson Waldron (BDW) provides a weekly legal service at Lou’s Place, a day centre in inner Sydney for women in crisis and their children. Every Tuesday, the solicitor provides legal advice, advocacy and targeted referrals in all areas of law (primarily victim’s compensation, domestic violence, tenancy, family law and credit and debt). Solicitors are seconded to Lou’s Place for a minimum of six months. Some matters are referred back to BDW’s offices for in-house pro bono assistance. The PILCH (Public Interest Law Clearing House) Homeless Persons’ Legal Clinic in Melbourne involves seven law firms and the National Australia Bank’s legal department providing a roster of over 150 lawyers and administrative staff to attend and provide advice and assistance to homeless people at eight community locations each week. Firms may take on cases in-house as ongoing pro bono matters. In the United States, a joint project between the Women’s Bar Foundation (WBF) and Goodwin Proctor created a legal services program to help the elderly in the greater Boston area. They hosted a training session for lawyers from local firms on issues such as wills and powers of attorney, and the WBF organised clinics at nursing homes and seniors’ centres. Some outreach services involve the provision of non-legal, as well as legal assistance. For example, BDW’s assistance to Lou’s Place includes the provision of facilities (such as their offices, and transport) and administrative assistance, as well as advice on organisational issues such as privacy law compliance, occupational health and safety matters and tax. Multi-tiered relationships are discussed in further detail below.
Secondments Secondments to community-based legal organisations are a popular and effective way for firms to involve themselves in pro bono activities in the community. While there may not always be a clear
Australian pro bono manual 11 1 Planning, developing and maintaining a program distinction between secondments and outreach services, secondments generally involve the secondee being supervised by a solicitor at the community legal organisation. Secondments contribute to the professional development of staff, and also raise awareness of social issues within law firms. Seconded solicitors bring back to the firm enhanced legal, communication and managerial skills. Firms also benefit from improved employee morale: secondees often have an increased sense of professional satisfaction. Secondments also increase the visibility of law firm pro bono programs and serve to engender within a firm an improved sense of community and continuing commitment to pro bono work. Secondments may be: • Full-time or part-time and for a fixed period (for example, for three, six, or, exceptionally, twelve months). A fixed period secondment may be part of a single firm or multi-firm rotation that ensures the position is always available to the community legal organisation. • Sessional (for example, a firm solicitor attends a community legal organisation to operate an advice clinic one afternoon each week). • Short-term locums to cover staff shortage. One arrangement involves ongoing, but short-term secondments by a firm to a community organisation with appropriate supervisory support also provided by the law firm. For example, all solicitors at Freehills’ Perth office undertake a two-week secondment at Sussex Street Community Law Service in their post-admission year. Secondments may be for specific purposes. For example, Blake Dawson Waldron (BDW) seconds a full-time solicitor to the Sydney Regional Aboriginal Corporation Legal Service (SRACLS) to run the prison-visiting service for juveniles in detention; Freehills and Minter Ellison are each seconding a solicitor to the Public Interest Advocacy Centre (PIAC) for half a day per week for a period to assess the legal situation of a number of asylum seekers presently in detention, investigating their circumstances for a possible habeas corpus court intervention. Specific purpose secondments may also be for discrete projects. For example, Minter Ellison is seconding a solicitor to PIAC for six months to explore the feasibility of, and develop a model for, a homeless person’s legal clinic in Sydney. Some members of Public Interest Law Clearing Houses (PILCH) second lawyers and/or vacation clerks to PILCH offices for certain periods to assist with, amongst other things, the administration of referral schemes and assessment of matters. The Pro Bono Secondment Scheme in Victoria is a state-wide coordinated secondment scheme. It is a joint initiative of Victoria Legal Aid, the Federation of Community Legal Centres (Vic.), the Department of Justice and the Law Institute of Victoria. Under the pilot scheme, now in its second year, solicitors from private firms are seconded for six months to community legal centres (and one to Victoria Legal Aid). An evaluation of the scheme is due in September 2003, but early reports attest to its success. The scheme also involves a number of sessional placements of solicitors (that is, secondments of a lawyer one day per week) as a way of enabling smaller firms to participate in secondments. See 4.1 Secondment issues for information about matters firms may wish to consider in relation to secondments.
Specialist services Firms can individually, or in partnership with other firms, create or contribute to a new specialist legal service. In the case of an individual firm’s approach, the firm typically contributes funds, resources and staff to establish and/or maintain a community-based service. Examples of this kind of specialist service
Australian pro bono manual 12 1 Planning, developing and maintaining a program include the Shopfront Youth Legal Service (Shopfront) in Sydney and the Youth Legal Service in Victoria. Shopfront is a legal service for homeless and disadvantaged young people established as a partnership between Freehills, Mission Australia and The Salvation Army. Shopfront’s staff (two permanent solicitors and a permanent paralegal as well as a seconded solicitor and a legal assistant) are all employees of Freehills, but its premises, practice and profile are independent of Freehills. The principal solicitor reports to Freehills’ pro bono committee. Freehills also provides other resources to Shopfront, and Mission Australia and The Salvation Army provide resources such as premises, telephones and a car as well as training to Shopfront staff on social welfare issues. The Youth Legal Service is a shopfront legal service in central Melbourne, employing four staff. One of them is a secondee from Blake Dawson Waldron (BDW). BDW pays the salary of two other staff members while the fourth is supported by a grant from the Commonwealth Community Legal Centre funding program. Other costs are met from this grant, by BDW and a third partner, a major charity. Another specialist service is the First Stop Legal and Referral Service for Young People in the Australian Capital Territory (First Stop). First Stop provides legal advice, assistance and referrals for people aged 12-25. It was created as a partnership between Clayton Utz, the Legal Aid Commission (ACT) (LAC), the Youth Coalition of the Australian Capital Territory and the Australian National University Law Students Society. The Service is staffed every afternoon, five days per week, by one Clayton Utz lawyer and one LAC lawyer and with two Australian National University law students on the front desk. A variation on this kind of approach to specialist services occurs where a number of firms become involved in the provision of pro bono assistance to run a sessional specialist clinic or provide specialist legal assistance within, or in partnership with, an existing community organisation. An example of this multi-firm approach is the Temporary Protection Visa (TPV) project, initiated by the TPV Working group and administered by the Refugee Advice and Casework Service (RACS). The project involves lawyers from a number of firms undertaking training by RACS lawyers, and then participating in a weekly service to assist clients to prepare information, statements and submissions for reapplication for temporary protection visas to the Department of Immigration, Multicultural and Indigenous Affairs. The second approach is where a number of firms work together to establish a new service. To date such efforts have been mostly coordinated by the various PILCHs. The Homeless Persons’ Legal Clinics operating in Melbourne and Brisbane, organised by PILCH (Vic.) in Victoria and QPILCH in Queensland are good examples of joint projects. (Possible options for a Sydney-based clinic are currently being explored by the Public Interest Advocacy Centre and PILCH (NSW)). In the Melbourne Clinic, seven law firms together with one corporate in-house legal team provide lawyers, as well as non-legal staff, to attend and provide advice and assistance to homeless people in a number of community locations each week. The firms may also take on matters on an ongoing in-house pro bono basis. Some firms participate in the Clinic’s steering committees, some get involved in research and law reform initiatives, and some also contribute other assistance including hosting fundraisers, and making their administrative facilities available for printing publications. Another kind of multi-firm project has been operating in the Federal Magistrates Court in Sydney since July 2001. This involves a panel of solicitors from a number of firms who provide initial advice and, in appropriate cases, representation to unrepresented litigants, generally in human rights or discrimination matters. Under this project, a Federal Magistrate, after consulting with an unrepresented litigant, can refer the matter to the panel. After the panel member has given initial advice and assessed the matter, if it is considered appropriate, a formal referral can be made under Part 12 of the Federal Magistrates Court Rules.
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Volunteering Many lawyers chose to volunteer at advice sessions at community legal centres (CLCs) or other community organisations. CLCs are independent, non-profit organisations that provide referral, advice and assistance to more than 350000 people each year, free of charge. They also engage in community legal education and in law reform and policy work. See 4.4 Community legal centres and Indigenous legal organisations. Many CLCs operate advice clinics, often in the evenings. Advice is frequently provided by volunteer lawyers from private practice supervised by CLC staff solicitors. Law firms can promote and foster volunteer assistance to CLCs by: • recognising the work done by volunteer solicitors as work done for the firm, for example, by billable hours credit and/or taking the pro bono work into account in performance appraisals; • offering travel allowance and parking facilities for solicitors undertaking volunteer work after hours (for example, in an effort to encourage their lawyers to volunteer at CLCs in outer Sydney, Baker & McKenzie pay for city parking and provide a travel allowance); • actively encouraging staff to undertake volunteer work at CLCs by promoting the practice in internal newsletters and emails; • entering into a relationship with a particular CLC in which the firm takes over the responsibility for ‘staffing’ particular advice sessions; generally firms do this by way of a roster arrangement and may also organise training for those on the roster; • considering the option of establishing a more formal relationship with a CLC, for example, seconding a lawyer to the CLC on a regular basis either to provide general assistance or to assist in a particular area of law; • recognising that lawyers may need to leave work early to attend their volunteer session.
Some considerations It is important that law firms, when encouraging their lawyers to volunteer, be aware of the infrastructure costs that are borne by CLCs when training, supporting and supervising volunteers. Firms might consider how they can share in meeting these costs – for example, organising rosters and/or training. There is also anecdotal evidence that CLCs in outer metropolitan areas of major cities are under- resourced in volunteers compared to their inner-city counterparts. Firms could consider initiatives, such as those noted above, to encourage lawyers to attend the outer city CLCs or regional CLCs in their state.
Multi-tiered relationships Pro bono assistance need not be restricted to the provision of legal advice, assistance and representation of clients. There are a variety of ways in which firms can offer their expertise and resources to promote access to justice for low-income or disadvantaged people and groups in the community.[5] This may involve forming ‘multi-tiered’ relationships with community organisations whereby pro bono assistance involves not only direct legal assistance, but other kinds of non-legal assistance that facilitate access to justice. This might include any of the following: • providing legal advice and representation to clients referred by the community legal service, including litigating on their behalf; • providing legal advice and/or assistance to a community legal service in relation to a particular client matter, including undertaking legal research or drafting documents;
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• researching and drafting law reform submissions and other policy documents; • undertaking other legal research; • full-time, part-time or sessional secondments of staff to community legal services and short-term locum secondments; • preparing or updating community and other legal education materials, such as fact sheets and training materials; • advising and/or drafting work in relation to internal management issues of community organisations (for example, taxation, incorporation and organisational structures, employment law, tenancy law, intellectual property, privacy or occupational health and safety); • providing training to community organisations (for example, on changes to tax law or industrial relations issues) or to staff of community legal services (for example, on changes to personal injury law); • mentoring arrangements between senior law firm staff and solicitors at community legal services; • support for co-counsel arrangements, for example, an experienced litigator undertaking a discrimination matter at hearing level with the community legal service solicitor as co-counsel; • encouraging legal staff to volunteer at community legal centres (for example, by organising rosters of staff volunteers, providing billable hours credit, city parking, travel allowance or taking staff members’ volunteer service into account in performance appraisals); and • working with the service to promote particular law reform proposals, for example, jointly meeting with a government working party. In addition, multi-tiered pro bono relationships might involve forms of non-legal assistance such as: • administrative services, including word processing (for example, transcribing tapes for a community legal service) and photocopying (for example, photocopying training manuals, induction manuals, appeal books); • accounting and bookkeeping services; • information technology services, including access to precedents and advice on IT issues, developing databases and intranet systems; • assistance with design and/or publication and printing of hard copy or on-line resources and materials (for example, reports, newsletters, brochures or business cards); • mail-outs (for example, mailing out a centre’s annual report); • human resource management advice and assistance (for example, revising personnel manuals); • secondment of non-legal staff, including on a part-time or occasional basis; • training for administrative staff; • access to law firm facilities (for example, rooms, equipment and catering for meetings, conferences and training seminars); • donations by the firm or individual staff including cash donations to support the service or a particular position in it or for specific activities (for example, holding conferences, paying for conference attendance or for the translation of CLE materials) and donations of equipment (such as computers or furniture); • access to library resources including the on-line library resources of the firm and research by librarians;
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• assistance with fundraising events and conferences (including providing premises and administrative support, hosting events, organising speakers and designing and printing invitations and brochures); and • assisting in the management of the service through membership of the service’s board or management committee.
Other pro bono opportunities
Pro bono relationships with corporate clients and their in-house counsel While largely unexplored in Australia, this model has been very successful in the United States. Under this model, a firm may provide training to one of their corporate client’s in-house legal departments on a particular area of law, for example, domestic violence. The in-house legal team can then participate in a domestic violence advocacy program. Variations on this model may include using the corporate lawyers to work in a firm’s pro bono clinic, or both teams working collaboratively on a pro bono matter. The responses to these kinds of joint ventures in the United States have been enthusiastic, and these initiatives are seen to confer benefits on all involved. These kinds of joint projects can assist the firm foster or cement ties with the corporate client, and give corporate lawyers the opportunity to be involved in community work otherwise not easily accessible to them. The notion has taken off to such an extent that the American Corporate Counsel Association (ACCA) designed a Law Firm Partnership Program model. They also developed a comprehensive information pack to assist in-house counsel develop pro bono opportunities.[6] More recently the ACCA and the Pro Bono Institute have established CorporateProBono.Org which, amongst other things, assists firms to partner with in-house law departments on pro bono projects.[7] Firms may be well placed to gauge and assist corporate or private clients with an interest in making philanthropic contributions to causes or organisations. In these cases, firms can connect the client with appropriate organisations or even assist the client to establish and develop appropriate structures of pro bono assistance.
Joint responses to particular events In Australia and overseas, firms and community legal organisations have joined forces and expertise to provide services to people affected by particular events, for example, the Jabiluka and S-11 protests and the Olympics. These specific-purpose relationships tend to be of limited duration and can include training and legal education as well as advice to, and representation of, individual clients.
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3 Defining pro bono for the firm This section outlines a number of definitions of pro bono that have been developed by professional organisations, law reform bodies and others. It then deals with particular aspects of these definitions in the context of specific criteria for law firm pro bono programs. Sample law firm pro bono policies are provided at 3.1. Each firm will need to settle upon a definition that best suits the aims of its program, its resources and the nature of the firm’s work and of the pro bono work it wishes to do. An important feature of coordinated pro bono programs is a definition of pro bono that structures the nature of the work and ambit of the program and provides criteria against which requests for assistance can be assessed. A definition also enables the firm to communicate its expectations and priorities to partners and staff and to the community and allows planning of more proactive pro bono projects. A definition is particularly important where firms have a pro bono budget and/or targets. Firms need to be able to determine which work and activities get allocated to that budget as opposed to budgets for other programs in the firm, for example, a donations program. Similarly, a definition is necessary if pro bono work is to be recorded and recognised, for example, as billable hours or as part of total productive hours and considered for the purpose of performance evaluations and compensation or in other ways. Put simply, what kinds of work will ‘count’ for these purposes? It is therefore good practice for firms to define not only what pro bono work is, but also what it is not. A firm’s definition of pro bono is usually set out in its pro bono policy. Some firm pro bono policies provide a definition with criteria; others may have a general definition and provide more explicit criteria elsewhere in their policy or in procedures documents or manuals. Some firms set out criteria for the pro bono work that they will do, however, the meaning of pro bono is implicit rather than being explicitly defined. It is arguably most useful to have a working definition of pro bono together with criteria that guide the firm in choosing the work it will do. The definition is likely to stay the same over time, whereas the criteria might be adjusted as the program develops.
Key definitions Although there is no universally accepted definition of what is meant by ‘pro bono’, several definitions have been influential in developing pro bono practices.[8]
Law Council of Australia The Law Council of Australia in 1992 defined pro bono work as situations where: 1. A lawyer, without fee or without expectation of a fee or at a reduced fee, advises and/or represents a client in cases where: (i) a client has no other access to the courts and the legal system; and/or (ii) the client’s case raises a wider issue of public interest; or 2. The lawyer is involved in free community legal education and/or law reform; or 3. The lawyer is involved in the giving of free legal advice and/or representation to charitable and community organisations. This definition is used by many firms.[9] It is broad – it covers not only legal advice and representation but also law reform and community education – but it is limited to work done by lawyers and does not cover some kinds of assistance that firms may wish to include in their pro bono programs, such as secondments of non-legal staff and/or the provision of financial or in-kind assistance to community organisations (such as community legal centres and Public Interest Law Clearing Houses) which undertake activities that enhance access to justice. The definition includes free and reduced-fee services and services performed ‘without expectation of a fee’. Arup[10] has analysed the phrase ‘without expectation of a fee’. He lists as advantages that it
Australian pro bono manual 17 1 Planning, developing and maintaining a program excludes consideration of the difficult cases of conditional fee and contingency fee based services, it excludes speculative work where the underlying motivation is commercial gain, albeit at a risk, and it may possibly credit cases where the lawyer is taking a very real risk, essentially for the sake of the client. Disadvantages of incorporating ‘without expectation of a fee’ in the definition of pro bono include that it may have the effect of benefiting the other side when they would normally be expected to pay costs.[11]
Law Foundation of New South Wales In 1998 the Law Foundation of New South Wales[12] developed the following definition: Pro bono legal services are services that involve the exercise of professional legal skills and are services provided on a free or substantially reduced fee basis. They are services that are provided for: • people who can demonstrate a need for legal assistance but cannot afford the full cost of a lawyer’s services at the market rate without financial hardship; • non-profit organisations which work on behalf of members of the community who are disadvantaged or marginalised, or which work for the public good; and • public interest matters, being matters of broad community concern which would not otherwise be pursued. This definition is also restricted to legal services and many of the comments made with respect to the Law Council definition also apply here. The Law Foundation’s definition does not cover speculative or contingency fee work, although the Foundation considered that ‘work performed on a conditional fee basis could be referred by a pro bono scheme if fee recovery only occurs to the extent that a costs order is made in favour of the client and costs are recovered from the losing party’.[13]
Victorian Government Legal Services Contract In 2002, thirty-three law firms in Victoria were successful in securing panel contracts for the provision of legal services to the Victorian Government. Each of the firms was required to commit to providing legal services on a pro bono basis to ‘approved causes’ (or to make payments in lieu) equivalent in value to a nominated percentage (between 5 and 14 per cent) of the fees it generates under the panel arrangements. For the purposes of these contracts, the Government has defined an ‘approved cause’ as: The provision of any services by lawyers or other staff based in Victoria which will enhance access to justice for disadvantaged persons or organisations and/or promote the public interest including circumstances where a Panel Firm: 1. without fee or without expectation of a fee or at a reduced fee, advises and/or represents a client in cases where: a) a client has no other access to the courts and the legal system and/or b) the client’s case raises a wider issue of public interest; 2. is involved in free community legal education and/or law reform; 3. is involved in the giving of free legal advice and/or representation to charitable and community organisations; 4. provides staff (legal or other) on secondment to a community organisation; or 5. provides financial or in kind assistance (for example, equipment, sponsorship etc) to a community organisation. This definition is clearly broader than the two discussed above yet contains some important limitations. It does not cover work performed for organisations or people who would otherwise be
Australian pro bono manual 18 1 Planning, developing and maintaining a program able to afford the services. Nor does it cover ‘no win – no fee’ commercial business arrangements.[14] The provision of financial and in-kind assistance to community organisations is covered only where it will ‘enhance access to justice for disadvantaged persons or organisations and/or promote the public interest’.
What is not pro bono Many law firm pro bono policies describe kinds of work that are not pro bono. This is useful to give further clarity to the firm’s definition and remove room for argument in cases where there may be doubt. Work specifically excluded from the definition of pro bono typically includes work done without fees or at reduced rates for staff acquaintances or family members or for existing or prospective clients for ‘business development’ reasons. Another exclusion might be ‘work performed for private schools, clubs or other organisations (such as arts and cultural organisations) with which a lawyer has an association, meritorious as these activities may be’.[15] Some firms may choose to make clear in their policies that pro bono work does not include legally aided work and, where appropriate, that it does not include speculative work performed on a no win – no fee basis. A number of firms with pro bono programs also do other work that benefits the community – for example, donations programs, sponsorships, community directorships and non-legal volunteering with charities. These sorts of activities are not only beneficial to the community but also give the firm’s non-lawyers the chance to be involved in community work. There are also synergies that can arise from combining pro bono work with community service work. Nevertheless, firms may wish to delineate their pro bono programs from their other community service work in order to keep the focus of the firm’s pro bono work on activities that enhance access to justice. Lawyers and law firms are in a unique and, in most cases, monopolistic position to undertake such activities. One American definition of pro bono provides as follows: … pro bono work does not include non-legal volunteer activities; non-legal services as an officer or director of a non-profit organisation; business development and client maintenance activities; continuing legal education, speaking, writing or similar promotion activities when not associated with pro bono legal services; fee generating matters which have become uncollectible; unsuccessful contingency matters; legal services for firm employees; and bar association or legislative lobbying activities not associated with improving the availability of legal services to persons of limited means, or for charitable, religious, civil, educational, artistic or similar non-profit, public interests.
Specific criteria for the firm’s pro bono work Criteria or guidelines as to what work will be taken on under the firm’s program, on what basis and for which clients, enable the firm to decide in advance on the nature of its program. Criteria allow decisions not only to be fairly made, but also defended. They also enable referring agencies to know when a referral will be appropriate. A firm may wish to make satisfaction of all criteria mandatory or it might chose to make some criteria merely ‘preferable’ matters to be taken into account in a balancing process. Firms should consider developing criteria to deal with the following matters (which are discussed in more detail below): • the nature of the work; • the basis on which services will be provided; • the kinds of clients eligible for assistance (client criteria); • firm-related criteria.
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Nature of the work Firms should determine the nature of the pro bono work they are prepared to undertake, for example, legal advice and assistance, law reform and policy work, community legal education; work done within the firm and externally (for example, secondments); non-legal assistance in certain circumstances. One firm describes the nature of services provided in their pro bono practice as including: • providing advice on commercial and litigious matters; • undertaking commercial legal work, for example, incorporating associations, drafting contracts, negotiating leases, property work; • advocacy services; • negotiation services; and • assistance to improve laws or the legal system in a manner that will benefit marginalised or disadvantaged individuals or groups.[16]
In-house matters Firms should consider developing criteria for the kinds of in-house legal work they wish to undertake. These ‘case’ criteria might involve matters such as: if the case is litigious, it must have reasonable prospects of success and there must be no other assistance available (for example, legal aid or trade union assistance). Some firms choose to give priority to particular kinds of cases, for example, refugee, discrimination or environmental cases or to particular kinds of clients. Some firms’ pro bono policies set out the areas in which the firm will not act, for example, criminal law. These exclusions are usually based on the areas in which the firm does and does not have expertise, and a requirement that the firm only accept matters in which it has appropriate expertise is often included as a separate criterion to be considered in each case. Ideally, firms’ lists of the kinds of work they will and will not do should be developed with the benefit of input from referral sources. A firm might decide, for example, that whilst it will not generally do criminal law, it will acquire the necessary expertise to do certain apprehended violence matters because a particular need for assistance in such matters has been identified. Many firms accept any meritorious casework in relation to which they have expertise, some choose to give priority to stated targeted areas, and some may choose to restrict their casework to ‘public interest’ matters.
Public interest tests Firms may or may not wish to have a public interest criterion for their pro bono work. It can be argued that all pro bono legal work is in the public interest, in that it is in the public interest that low- income and disadvantaged people have greater access to legal services.[17] In a more limited sense, ‘public interest’ is used to indicate legal work that is intended to advance the interests of a broader group than one individual client. Some referral agencies and firms incorporate the term ‘public interest’ in their definition of pro bono, sometimes with, and sometimes without elaboration of its meaning. Clearly it is a term open to a number of interpretations and firms who wish to use it should consider what they think it means and how it will be applied. The ‘public interest’ can feature in law firm definitions or criteria for pro bono as an alternative criterion for eligibility. So, for example, the Law Council definition discussed above accepts that pro bono is, amongst other things, where a lawyer ‘…assists a client where the client has no other access to the legal system and/or the client’s case raises a wider issue of public interest’. A firm might have as one of a number of matters to be considered, ‘the significance and potential impact of the matter’ and/or ‘the public policy issues involved’. A firm may adopt a policy that, while eligible matters must have reasonable prospects of success, ‘if the matter is of public interest it might be accepted even
Australian pro bono manual 20 1 Planning, developing and maintaining a program though its prospects of success are not strong’ (see 3.1 Sample pro bono policies: 5) or provide that, ‘satisfying a means test is unlikely to be a consideration in clear public interest cases’ (see 3.1 Sample pro bono policies: 2). Another model incorporates an explicit public interest test as a condition of eligibility in all cases. These tests are not always in the same terms but tend to involve some sort of impact beyond a private or individual impact or benefit. The Public Interest Law Clearing Houses (PILCHs) in Queensland, New South Wales and Victoria adopt the following as key elements of their definitions of legal public interest matters: • the matter affects a significant number of people; or • the matter raises matters of broad public concern; or • the matter impacts on disadvantaged or marginalised groups.[18] One firm describes its program as undertaking public interest work and recognises that this criterion will sift out many matters. However because many others are likely to fit the definition, the firm’s policy provides additional criteria – some related to ‘public interest’ and some not – that are intended to be applied flexibly and inform the choices that will need to be made. These criteria are: • legal significance – the significance of the matter to the law or to the administration of justice; • conflicts of interest; • costs – what resources will be required by the matter or a certain stage of it? • numbers – how many people will be affected by the outcome of the matter? • political dimension – is the matter likely to be highly political? • innovation – would acting in this matter require the firm to be innovative? • past refusals – who has already said no and why? • obviousness of match to the firm – some applicants in some matters will be such clear matches to the firm’s strengths and culture that it will be natural to take them on; • justice question – is there a fundamental justice question that the firm wants to take on? Another version of a public interest test incorporates elements additional to the above, for example, requiring that the matter ‘arise from harsh or unjust treatment by a powerful individual, corporation, government or law enforcement agency’.[19] A public interest test provides a filter for the firm’s resources and places emphasis on cases that maximise benefits. However in practice it is not always easy to apply and can involve the interpolation of ‘the lawyer’s own political and social judgments about the worthiness of causes’ amongst other things.[20] In addition, there are very large numbers of disadvantaged people in need of assistance in matters of major importance to them, but their cases raise no wider issues beyond the general principle that the public interest requires access to justice by all in the community.
Other work Firms may choose to adopt definitions or criteria for pro bono that include law reform and policy work and community legal education, as well as the provision of legal advice and assistance. A number of firms have been actively involved in law reform activities such as research and submission writing and have participated in working parties and in community legal education initiatives such as conducting seminars and writing materials, including facts sheets and information for law handbooks being developed by community legal centres. In addition to providing valuable outcomes for the community, these kinds of work can also be enormously satisfying for those involved and offer opportunities for a range of people within the firm to engage in pro bono. In practice firms tend to
Australian pro bono manual 21 1 Planning, developing and maintaining a program undertake these activities in conjunction with community legal centres or other, often peak, community agencies. Firms may also wish to make clear in their definition of pro bono, or elsewhere in their pro bono policies, whether their program covers assistance in the form of secondments and also in-kind assistance to community organisations that promote access to justice (see, for example, 3.1 Sample pro bono policies: 1).
The basis on which services are provided Firms need to determine the bases upon which services will be provided in their pro bono programs. Definitions of pro bono commonly include services provided free of charge or for a reduced or substantially reduced fee and sometimes also, ‘without expectation of a fee’. Firms usually choose to retain a degree of flexibility, especially in relation to charging fees for pro bono work done for charities and other non-profit organisations (see, for example, 3.1 Sample pro bono policies: 2 and 3.2 Sample procedure). If services are to be offered for a reduced fee, clients should be made fully aware of the extent to which they will be required to contribute to the costs of the case[21] and referring agencies need to know that clients may be charged. The position of work done on speculative or contingency fee arrangements is more controversial. The majority of participants in the Law Foundation of New South Wales’s pro bono project felt that such work should not be regarded as ‘true’ pro bono work (and nor should work performed pursuant to a grant of legal aid).[22] One factor in this debate is the importance of the firm’s or individual’s motivation for doing the work: is the work primarily motivated by business or commercial considerations or by the desire to assist disadvantaged individuals and considerations such as the public interest and improving the quality of justice?[23] One firm deals with this issue by providing in its policy that pro bono includes work done ‘on a speculative basis where the prospects of recovering fees do not commercially justify undertaking the work on a speculative basis’.[24] Many firms include in their pro bono programs work done on a conditional fee basis in litigious matters, that is, no fees are charged unless the client is successful in the matter and the settlement includes a costs component or the court makes an order for costs in the client’s favour. Recovery is generally specified to be limited to the amount of the costs component in the settlement agreement or to that ordered by the court or tribunal. Such matters arguably retain their pro bono character because the client is not required to pay for the legal services provided.[25]
Client criteria Most firms and pro bono referral schemes consider the financial means of the client [26] and usually take into account whether there is any other assistance (such as legal aid) available to the client. Thus many definitions of pro bono refer to disadvantaged people and/or to people and non-profit organisations that cannot afford to pay full market rates. It is arguably neither possible nor desirable to have a means test that sets a cut-off for eligibility at a certain dollar level of weekly income or above a certain level of assets. This is problematic enough for legal aid agencies, particularly given the differing expenses that people have and the fact that people can be asset rich but income poor. In addition, pro bono services arguably extend to the ‘middle ground’ – people that fall outside the legal aid eligibility guidelines but are unable to afford a private lawyer.[27] The usual means test adopted by firms is not expressed in terms of dollar amounts, but rather an inquiry into the client’s capacity to pay for legal assistance. In some firms, capacity to pay might be considered a less relevant consideration in public interest and test cases for the public benefit.[28] Some firms’ criteria give priority to particular client groups, such as people with disabilities, Indigenous people and/or people from non-English-speaking backgrounds. For example, one American firm’s policy provides that ‘clients with children will be prioritised above clients without children’.
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Many law firm pro bono clients are charities and other non-profit organisations working for disadvantaged people, including community legal centres, advocacy groups and other welfare bodies. Most definitions of pro bono specifically refer to work done (without fee, etc.) for these types of organisations, variously defined.[29] A ‘capacity to pay’ means test may also be applied to these organisational clients. For example, the American Bar Association’s definition of pro bono includes work done for stated kinds of organisations ‘where the payment of standard legal fees would significantly deplete the organization’s economic resources or would be otherwise inappropriate’.
Firm-related criteria Other criteria that firms may wish to add to their definition of pro bono, or include elsewhere in their pro bono policy, are: • capacity of the firm: o conflicts of interest (Whether there is an actual or potential conflict of interest); o firm resources (What resources will likely be required? Does the firm have available resources?); o expertise (Are there people within the firm with sufficient expertise?); • staff development (Does the matter afford opportunities for training or education?); • community profile (Does the matter allow the firm to develop its community profile?). See also the criteria referred to in the above discussion of public interest tests.
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4Promoting a pro bono culture The motivations for a particular firm or individual to undertake pro bono will vary. They may be based on a sense of responsibility or obligation and/or on perceived benefits for the firm or the individual staff members. Strategies to promote pro bono will need to accommodate these diverse motives. This section looks at some of these motivations, outlines strategies for promoting a pro bono culture and addresses some common concerns within firms about pro bono work.
Motivations for and benefits of pro bono work
Professional responsibility A primary motivating factor for pro bono work is recognition of lawyers’ moral and professional responsibility to assist those in the community who are unable to obtain legal aid and are otherwise unable to afford legal representation. This responsibility arises because of lawyers’ role and privileges as professionals and has been widely recognised.[30]
Business responsibility It has been argued that law firms, as businesses, also have ‘corporate citizenship’ obligations to the community and that these obligations may extend beyond attempting to meet particular needs at a particular time: ‘corporations are also charged with the responsibility for working for change in society, including the long-term good of the communities in which they operate’.[31]
Increased job satisfaction and retention rates Pro bono can increase job satisfaction. Many lawyers enjoy and benefit personally from the opportunity to make a social contribution in this way.[32] Retention rates increase as lawyers get more varied work, more satisfaction from and more control over their work. Anecdotally, many firms in Australia and abroad have spoken of improved morale resulting from the firm’s pro bono program.
Development of skills and confidence Pro bono work allows lawyers and others to develop their legal and managerial skills. The perception that pro bono work will make them more skilled lawyers can be just as significant a motivating factor as their social justice commitment, particularly for young lawyers. Lawyers conducting pro bono matters often have greater control of a whole matter than they do when working on commercial matters. The lawyer therefore has the opportunity to develop strategy, make commercial decisions and maintain an overview of the whole case. Assisting pro bono clients may broaden lawyers’ communication and inter-personal skills beyond those required to deal with commercial clients. Some pro bono matters also offer opportunities for lawyers to develop their advocacy skills. Lawyers develop confidence as they recognise their abilities to assist clients and extend their skills. This transfers positively to the way they approach their other work. Pro bono projects may allow lawyers from different practice groups to work together as a team, in creative and collaborative ways.
Recruitment New graduates and others perceive pro bono as offering interesting work, professional development and the opportunity to contribute something worthwhile to the community. Many law firms report that students being interviewed for vacation clerk and post-graduation
Australian pro bono manual 24 1 Planning, developing and maintaining a program employment inquire about their firm’s pro bono programs and opportunities to do pro bono work including, for example, casework and secondment opportunities. These students perceive that pro bono will, among other things, give them the opportunity to deal with ‘real clients’ and ‘real cases’. Particularly with firms where starting salaries are essentially the same, a pro bono program is a means for a firm to differentiate itself from competitors in the employment market.
Reputation Pro bono improves the public’s perception of the firm and of lawyers generally. In the United States in particular, pro bono activities have become an important part of how law firms define and present themselves externally. It can be a key point of differentiation in the market, of interest to potential clients, and it can enable the firm to strengthen relationships with existing clients. Some potential clients may look to retain law firms that have also demonstrated a commitment to community involvement. Firms can discuss pro bono with their corporate clients and explore possibilities for joint projects allowing the firm to nurture and build relationships with its existing clients as well as providing benefits for the people assisted by the projects. There may be scope for a firm’s pro bono program to complement a corporate client’s community-relations strategy. For example, the firm could add a legal component to a particular charity project of the corporation. Some firms participate in pro bono projects (such as homeless advocacy programs) in partnership with in-house counsel employed by their corporate clients. Other firms arrange for their corporate client’s in-house lawyers to work in the firm’s pro bono clinic. Some major corporations in Australia, in tendering out their legal work, are starting to ask bidding law firms to describe their pro bono work. This reflects developments in the United States.[33] In a similar vein, the Victorian Government recently required law firms tendering to provide legal services to government to commit to providing pro bono legal services to the value of between 5 and 14 per cent of the value of the tender.
Strategies to promote pro bono The following are some general strategies to promote a pro bono culture within a firm. Some are particularly relevant to the start-up phase of a program, others to building, maintaining and developing the program over time.
Information and support In firms without an established program or with a small ad hoc one, individuals interested in building the program might consider the following: • find out what other firms of a similar size or position are doing (see 4.9 Law firm pro bono contacts); • gauge the level of interest and support within all levels of the firm, particularly at the partnership level; • organise meetings of interested people in the firm; • survey people in the firm as to their interests, expertise and contacts (see 1.5 Surveying interest); • identify key supporters who will assist in promoting pro bono within the firm. See also 2.6 Troubleshooting: 1.
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Support from senior management and other partners Successful pro bono programs require consistent and unambiguous support from senior management.[34] That support then needs to be communicated to all in the firm by, for example, a formal partnership resolution. Partners can also demonstrate their support in other ways such as: • being involved in drafting and/or settling the firm’s pro bono policy or otherwise actively endorsing that policy; • participating on the pro bono committee; • meeting to discuss pro bono activity; • hands-on involvement in pro bono work; • encouraging solicitors in their group or department to undertake pro bono work and supporting and supervising them in that work.
Clear commitments, goals and expectations There are many ways a firm can make clear its commitment to pro bono. These include: • creating structures; • treating pro bono work as billable work or otherwise recognising it; • circulating memoranda from managing partners about the program; • developing a pro bono policy; • integrating pro bono in the normal business activities of the firm; • describing their pro bono commitment on their websites and in other external and internal publications. Firms might wish to set goals for their programs. These could be numerical goals, for example, numbers of matters or hours, or more general goals, such as being responsive to need or servicing particular geographical areas. Such goals should be communicated internally, explaining why the firm considers pro bono important. A firm’s policy could include targets for the firm and/or for departments or individuals (see 1.7 Setting targets and budgets). It would ideally communicate the firm’s expectations of its lawyers from paralegals to partners by making it clear that all are encouraged to participate, or should participate or, as is the case in some firms, that all are required to participate by at least working a stated number of hours, or number of matters, per year. Pro bono could also be specifically included in employee job descriptions.
Structures, policies and procedures Appointing pro bono committees and creating positions such as pro bono partners and coordinators, sends clear signals to people in the firm that the firm’s management is serious about pro bono as well as providing very practical mechanisms for administering the firm’s program. In addition, committee structures allow a number and range of people to get involved in planning and overseeing the firm’s program and broaden the sense of ownership of it (see 1.8 Coordinating pro bono work in the firm). Developing a pro bono policy and procedures indicates the firm’s commitment as well as providing a structure for the program. Wide involvement in the development of the policy is desirable and some commentators have stressed the particular importance of ensuring that all partners have the opportunity to become involved in creating the policy. The policy should be widely and regularly circulated and feedback about it encouraged.
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Recognition of pro bono work One of the most effective means of encouraging pro bono work is to recognise it. The seriousness of a firm’s commitment to pro bono is reflected in its policy on counting pro bono for the purposes of productivity, evaluation, compensation and advancement within the firm. Volunteers will most readily be forthcoming if their pro bono work is recognised by the firm for all of these purposes. Increasingly law firms in Australia are counting and crediting pro bono work as billable hours, and lawyers are being appraised on the work done in pro bono matters, as they would be for other clients; or firms are using other means of ensuring that lawyers are given both budgetary and performance recognition for their pro bono work (see 1.10 Counting and crediting time). The firm’s pro bono policy should make clear how the firm will count and credit time (see, for example, 3.1 Sample pro bono policies and 3.12 Encouraging pro bono). There are additional and important means of recognising and thus encouraging pro bono work. These include: • reporting internally on participation in pro bono, thanking named participants and briefly describing matters undertaken and clients assisted; • holding annual lunches, dinners or other functions to celebrate the firm’s pro bono work and to thank participants; • inviting participants in the program to give presentations at firm seminars; • producing pro bono annual reports; • giving priority to pro bono participants when deciding who should attend certain conferences and events; • formally acknowledging and rewarding pro bono effort.
Integration, publicity and involvement A pro bono culture will be enhanced by integrating pro bono into the firm’s business and procedures so that it becomes an expected part of life within the firm. This will require the firm to develop opportunities for all in the firm to participate. These opportunities will then need to be publicised within the firm. Some lawyers may not be aware of the possibilities for undertaking pro bono work within their practice areas or contributing in other ways. Particular strategies might, depending upon the size of the firm, include: • providing a variety of work to suit the interests and capabilities of lawyers; • ensuring that appropriate support and supervision is provided; • integrating pro bono in regular firm communications and at firm functions, partners’ retreats and the like; • including pro bono in orientation programs for new staff, both lawyers and non-lawyers; • building pro bono into regular department or practice group meetings, so that it becomes a regular part of their reporting; • organising associates, partners and others to give case presentations on pro bono matters at practice group or departmental meetings and provide information on how others can become involved; • providing regular opportunities for people in the firm to express interest in being involved in the program, for example, through emails seeking volunteers for particular cases or projects, surveys of areas of interest and expertise (see 1.5 Surveying interest), pro bono eNewsletters of work being carried out in the firm, or including this information in the firm’s regular newsletter or eBulletin;
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• appointing a pro bono ‘point’ partner in each department or group as the contact person for the pro bono coordinator or committee to talk about pro bono work in that department; • approaching individuals and their supervising partners in relation to taking on particular matters or other work; • advising the firm’s non-legal staff (including library, reception, secretarial and human resources staff) of the firm’s program and procedures for taking on pro bono (amongst other things, these people may be approached by others inquiring how they can become involved in the firm’s pro bono work); • organising meetings of people in the firm with specialist pro bono interests, for example, lawyers working on refugee matters or discrimination matters, lawyers rostered on community advice clinics, and distributing updates on these topics; • organising lunchtime seminars on the firm’s pro bono work or particular areas of interest.
Responding to concerns about pro bono Engaging in pro bono practice can raise concerns about time and recognition, perceived lack of skills, the possibility that pro bono work might create legal and/or commercial conflicts of interest or that it might lead to a reduction in the firm’s financial productivity. Identifying these and developing responses is likely to lead to a more active and supported pro bono practice.
Financial productivity There may be a concern that pro bono detracts from the firm’s financial productivity. Whilst pro bono hours do not result in direct financial return to the firm, pro bono work can result indirectly in positive financial return to the firm through the positive benefits discussed above including: • enhancing the attractiveness of the firm for recent graduates and others; • improved staff morale and retention of staff; • attracting paying clients to the firm; • skills acquisition for staff; • enhancing the firm’s reputation in the community. Firms that have developed significant, structured pro bono practices report that they have received these benefits without any detrimental impact on the firm’s profitability. Strategies for overcoming concerns about financial productivity include: • clearly articulating to the firm the benefits of pro bono; • structuring and promoting the firm’s pro bono program in ways most likely to result in accrual of these benefits, including regular internal reporting and recognition of pro bono effort and recording in accounts systems time spent on pro bono work; • incorporating evaluation strategies for pro bono programs that seek to measure the accrual of benefits to the firm; • setting a budget and clear selection criteria for pro bono so that those with concerns can see that the firm’s contribution is set at a particular level and is not open-ended and is undertaken according to agreed criteria;
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• creating systems to anticipate, monitor and review time and resources spent on pro bono to ensure efficient allocation of resources, compliance with budget (if any) and prevent blow outs.
Time and recognition Some lawyers may be concerned that they do not have the time to do pro bono work or that it will not assist them in relation to their reputation, remuneration or advancement in the firm. Strategies for overcoming these concerns include: • a clearly articulated and communicated commitment to pro bono including through a firm pro bono policy which encourages all to be involved in the program (and possibly states expectations or requirements)[35], visible senior partner involvement and support, an active pro bono committee and publicised pro bono opportunities in the firm; • treating pro bono hours as billable hours or, failing that, as significant non-billable hours that are expected, or taken into account for the purposes of productivity assessment, bonuses (if any) and compensation (see 1.10 Counting and crediting time); • ensuring that pro bono work is addressed in performance reviews and evaluations of lawyers (including partner self-assessments or other processes of review) and that all in the firm are aware of this; • setting pro bono targets for individuals and/or groups or divisions in the firm and for the firm as whole (see 1.7 Setting targets and budgets);[36] • employing additional means of recognising and rewarding individual’s and/or group’s pro bono efforts, such as through firm newsletters, emails, reports, seminars, lunches or dinners and awards.
Skills and experience Some lawyers may be concerned that they lack the skills and experience to do pro bono work. Strategies to address this include: • identifying and sourcing work and publicising pro bono opportunities suitable for different teams or divisions within the firm; • surveying lawyers in the firm about their areas of interest and their skills and organising partnering or mentoring on particular cases or projects (firms may be surprised at the wealth of experience and ability that already exists); • encouraging lawyers to bring potential pro bono matters or projects to the attention of the firm’s pro bono committee (or other approval mechanism) whether or not they have the expertise to handle the matter themselves, then exploring whether they could acquire the necessary expertise, or work on the matter together with someone in the firm who has the necessary expertise; • providing or organising training for lawyers to undertake particular kinds of cases or functions, for example, to assist in certain migration matters, or domestic violence hearings, or to participate in community advice clinics; • larger firms choosing to actively recruit staff with experience in pro bono, public interest and poverty law who can supervise, train and/or support other lawyers as well as undertake pro bono work and/or also coordinate the firm’s program.
Legal and/or commercial conflicts There may be a concern that undertaking pro bono work might create legal and/or commercial conflicts with existing clients or prejudice the firm in obtaining new work. Strategies to deal with this include:
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• avoiding direct legal conflicts of interest by carrying out the usual conflicts checks before accepting any new pro bono matter; • recognising that conflicts of interest arise on a case-by-case basis and ensuring that systems are in place to identify and deal with them as they arise; • developing links with other firms with pro bono practices with a view to referring pro bono matters that one firm is unable to undertake because of a conflict. Where a matter is perceived to constitute a commercial conflict, a firm may decide nonetheless to give some general advice about the issues to the client or referring organisation, or undertake research into particular areas relevant to the issues. Where appropriate, a firm could contact the relevant client with whom a commercial conflict is being assessed and discuss the perceived conflict with a view to obtaining consent from that client to proceed with the matter. For further information on conflicts, see 2.4 Risk management.
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5Surveying interest Before looking into pro bono opportunities available to the firm, it may be helpful to carry out an audit of existing pro bono work being done by partners and staff and to survey areas of interest, where lawyers perceive needs, their skills and experience relevant to pro bono and their community contacts. Firms may be able to call upon the range of expertise, experience and networks that these people bring. [37]
What to ask Some firms ask respondents to describe the pro bono work they are doing (if any) and to indicate the areas of law that interest them. However it may also be useful to ask for further, more detailed information on a broader range of pro bono options. For example, firms could ask respondents to nominate different kinds of pro bono activities of interest to them, such as secondment placements, undertaking law reform and policy work, litigation and/or non- litigation advice and casework. Lawyers, particularly partners, could be asked whether they would prefer to work on an individual case, head up a team on a major piece of litigation, conduct research, prepare training materials, and/or supervise junior lawyers. Surveys can also seek information about lawyers’ skills and experience, particularly that relevant to pro bono. For example, some of the firm’s lawyers may have worked for legal aid or at a community legal centre (CLC) or otherwise have experience in running particular kinds of cases likely to arise in a pro bono practice. People can also be asked about their relevant community contacts, for example, some may be on boards and committees of non-profit organisations, some may have colleagues in CLCs and/or legal aid. These networks might be useful in developing sources of pro bono work. One way of galvanising firm-wide support of a pro bono program is to involve the partners and staff in planning it. For example, they might have views about areas that the firm should target and/or particular agencies in need of assistance. If this participatory approach is to be adopted, a survey document should include space for suggestions and encourage input. The survey should be accompanied by an explanation of why it is being carried out, that is, because the firm is wishing to enhance its pro bono efforts through a more coordinated and proactive approach. Clearly, employees in the firm will be more likely to express interest if they perceive that the firm is serious in its commitment to pro bono. Sample survey questions can be found at 3.4 Pro bono survey. Some firms have designed electronic surveys to facilitate collecting and processing survey information. Ideally, surveys would be sent out with the full endorsement of the partnership so that they are seen as having authority.
Using survey data In addition to using survey data and information to plan their pro bono programs, firms can use the data to record ongoing interest, availability, contacts and expertise. For example, some American firms have set up databases which enable the firm to quickly identify any lawyers or other staff who have expressed interest in a particular matter or area, do not currently have a pro bono caseload and are currently available to undertake a new matter. Other firms use the information on the database to match lawyer and supervisor.[38] An added benefit of such a database is the capacity to use the information about levels of interest and participation in pro bono in the firm’s evaluation process (see 1.13 Measurement, record-keeping and evaluation).
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6 Identifying needs and sources of work Pro bono legal services respond to the legal needs of disadvantaged people and disadvantaged communities. In developing a pro bono practice, a firm will need to make decisions about the kinds of legal needs its pro bono program aims to respond to, and develop strategies for identifying and sourcing the pro bono work that it wishes to undertake. This section aims to provide information about legal needs in the community and to discuss strategies firms may use to effectively and efficiently source pro bono work. It suggests that developing partnerships with community-based, legal aid and/or public interest organisations is one of the most effective strategies for a firm to ensure that its pro bono legal services are directed to areas of greatest need. This section concentrates on work that can be undertaken by a firm in-house on its own. It does not address identifying locations for secondments or participation in multi-firm or ‘signature’ projects. (See 1.2 Current models of law firm pro bono).
Unmet legal needs For many members of the community, at least some of their legal needs can generally be met by paying for legal services. For those who can’t afford to pay, there is a range of possible responses which include doing nothing, self-help, entering ‘no win no fee’ arrangements where available, and seeking assistance from publicly funded or pro bono legal services. There are several approaches to conceptualising ‘unmet legal need’ and numerous reports that have aimed to quantify or describe legal need in a particular place and time. A full discussion of the literature is beyond the scope of this manual, although we refer to some relevant reports below.[39] It is worth noting some features of the main ways in which the legal needs of people who cannot afford private legal services are met in Australia. 1. The largest publicly funded legal services are the state and territory legal aid commissions. The vast bulk of the resources of the commissions are spent on providing representation in criminal law matters and to a lesser extent family law matters where children are involved. 2. There are from one to fourteen Aboriginal and Torres Strait Islander legal services in each state. These services generally concentrate on providing advice and representation in criminal matters. 3. There are a large number of services offering legal advice, such as community legal centres; the advice services of legal aid commissions, including those based in their regional offices; most Aboriginal and Torres Strait Islander legal services; and some legal advice services offered by law societies and other bodies, such as in Western Australia by the Citizen’s Advice Bureau. It is, however, common for advisers in those services to identify the need for further legal work for a client but to have to advise them that there is no free or affordable service available to assist them. 4. The availability and quality of free and affordable legal services in civil law matters varies considerably between different jurisdictions and different areas of law. For example, most legal aid commissions provide at least some assistance in areas of civil law governed by commonwealth statutes (for example veteran’s entitlements), but some commissions do not have a significant practice in state-based areas of civil law. 5. Almost all of the legal services that are available respond to the self-identified legal needs of an individual. Most publicly funded legal services are better at providing services to clients who recognise they can benefit from legal assistance than in assisting disadvantaged individuals or community groups to recognise instances when the law may offer remedies for particular problems they are facing.[40] There are also few
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opportunities for marshalling legal services for the benefit of a group or class of disadvantaged people. 6. There are often situations where a particular kind of legal service is available but it is not completely appropriate to the needs of a significant sector of the community who are eligible for the service. For example, some services may operate in ways that are not really accessible for some people with disabilities, or to homeless people or young people. 7. Similarly, legal issues will frequently comprise only one aspect of a set of inter-related problems that are affecting a person. Approaches that integrate legal services with the services of welfare or advocacy agencies can often successfully respond to this need. As noted above, unmet legal needs vary according to state and region. It is possible to compile a list of the areas of law and specific community groups that are frequently identified as having particular needs that are not fully met by existing services. Such a list, however, will tell us little about the frequency of problems in the area, the degree to which affected people recognise that there may be a legal response available to their problem generally or in a particular region, or the relative seriousness of the problem for an affected person or group. Any list of areas of law where there are frequent client requests for assistance but often no ongoing assistance available would include: tenancy; consumer financial services; small debts such as those arising from utilities, credit cards, and telephone services; employment law matters (including unfair dismissals and underpayment); social security; legal responses to domestic violence; migration law, including refugee matters; motor vehicle accident property disputes; and family law property matters. [41] There are other areas of law where there is almost certainly a latent demand for services that is not always expressed in requests for advice or representation, for example, many types of discrimination matters. It is equally possible to approach legal need by referring to the particular legal services required by members of particular social groups such as people with disabilities, those from non-English-speaking backgrounds or those located in rural, regional and remote areas.
Further information about legal need The legal needs of particular groups have been addressed from time to time in reports prepared by bodies such as the Australian Law Reform Commission, the Human Rights and Equal Opportunity Commission and other bodies.[42] Reports such as these can form starting points for the development of legal services (whether pro bono or publicly funded). The HREOC report on homeless youth (the Burdekin Report), for example, stimulated and guided law firm Freehills to establish the Shopfront Legal Centre, a substantial pro bono program addressing the legal needs of homeless young people in inner-city Sydney. The New South Wales Law and Justice Foundation is undertaking a major project to investigate the access to justice needs of socially disadvantaged people in New South Wales. The publications of this project will be useful detailed sources of information on identified legal needs that are not met in New South Wales.[43] Much of this information will be relevant in other parts of Australia.[44]
Sourcing pro bono work A firm interested in taking on pro bono work has a number of options available to source such work. These include: • joining a pro bono clearing house and/or registering with other pro bono referral schemes;
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• working with community organisations and other bodies that have regular contact with disadvantaged clients and communities; • making the firm’s availability for pro bono matters known to court and tribunal registries and to complaint-handling bodies; • encouraging referral of pro bono matters through the formal and informal contacts of law firm staff; • relying on client self-referral; and/or • advertising its pro bono services to potential clients.
Pro bono referral schemes Pro bono referral schemes are operated by Public Interest Law Clearing Houses (PILCHs), legal professional bodies and some courts and tribunals (see 4.2 Pro bono referral schemes). Law societies in Western Australia and New South Wales and the Law Institute in Victoria have pro bono referral schemes as do the Bar Associations in Victoria and New South Wales. These schemes can provide referrals to law firms or barristers that have expressed interest in accepting referrals. They may also be able to identify areas of high demand for pro bono assistance based on the number and nature of the referrals they are receiving. The Public Interest Law Clearing Houses in Queensland, New South Wales and Victoria have been established with financial support from member legal practices. PILCHs assess the suitability of matters and then refer them to an appropriate member. The Federal Court and Federal Magistrates Service operate schemes that refer unrepresented litigants to a panel of practitioners who have indicated their willingness to consider accepting referrals. Some state courts have also established similar schemes. Most of these schemes refer only a small number of matters to a particular firm each year. Firms that wish to have more active pro bono practices will therefore need to develop additional sources of work.
Working with community organisations and legal aid bodies One of the best ways to ascertain where legal assistance is most needed and to develop an effective response to meeting those needs within available resources is to develop and maintain strong ties with community organisations and legal aid bodies that have regular contact with the people that a firm’s pro bono practice aims to help. Depending on the nature of the practice that a firm wishes to develop it might want to: • target particular client groups and therefore develop ties with particular community organisations as well as relevant peak organisations; • provide assistance in a particular geographical area or community and therefore develop its ties to organisations that provide legal assistance and welfare and advocacy services in that area; • provide a broad range of pro bono assistance and therefore will need to develop ties with a range of community organisations able and willing to refer appropriate matters to the firm; • investigate opportunities to establish a program that focusses on a particular social issue, for example, the legal needs of inner-city homeless youth (such investigation should include consultations with relevant peak and local community advocacy organisations); • pursue a community development approach to the legal needs of a particular region or a particular social group – the firm would undertake a commitment to the particular region/issue and over time structure and adapt its pro bono program in light of changing relationships and increasing understandings of the needs of the client community;[45]
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• explore options for undertaking joint projects with CLCs (community legal centres), ATSILS (Aboriginal and Torres Strait Islander legal services), LACs (legal aid commissions), other law firms (for example, sharing a roster for court referrals for pro bono assistance), Public Interest Law Clearing Houses or with corporate clients in relation to charities and non-profit groups.
Identifying organisations and issues Where a firm prefers to focus on a particular area of law or social issue it will be wise to consult with people and organisations with direct experience and knowledge of the issue. If there is no obvious state or national peak community sector body in the area, appropriate organisations could be located through the State Council of Social Service or a community legal centre specialising in the area. Relevant agencies may include migrant resource centres, health centres, financial counsellors, family support services, women’s services, housing and crisis accommodation agencies and major welfare providers as well as community legal centres, Aboriginal and Torres Strait Islander legal services and the relevant part of the legal aid commission. Consultations could explore the need for a legal response, ways in which that need is and isn’t being met and how the firm could work effectively with the community to deal with the specific issue.
Developing relationships The nature of the relationship between a firm and a particular organisation will of course depend on the parties’ objectives in pursuing it (Does the firm seek information only? Will there be ongoing referrals of matters? Do the parties intend to jointly establish a new legal service? And so on.). As a firm identifies organisations it thinks may be able to be involved in developing or operating its pro bono practice it should discuss with the organisations the relationship, the needs of the organisation and its clients and the organisation’s ideas about how those needs could be served with the assistance of pro bono legal services. Depending on the degree of partnership envisaged this may be by telephone, mail or face-to- face meeting, however, generally, sending a letter on its own, introducing the firm and the practice, is not an effective way of developing a partnership or encouraging pro bono casework referrals or requests for other kinds of pro bono assistance. Where the nature of the relationship will include casework referrals it is advisable to establish guidelines for how to refer cases and other work to the practice. For example, the firm may prefer to discuss a matter on the phone before getting a letter or email about a case. Or the firm may want a lot of information about the client’s financial situation. From the perspective of the community organisations, if a firm has onerous requirements for referrals, this will make it less attractive to refer matters to the firm. The firm will also have to decide whether it wants clients to be directly referred to the firm or whether it wants referrals to come from the organisation. It may be useful to arrange to meet with the organisation in conjunction with some other law firm pro bono practices. In addition to minimising the impact on scarce organisational time and resources, such a meeting would allow firms to explore jointly with the organisation the types of cases most appropriately handled by each, the most effective referral procedures, and may also lead to ideas for joint projects. The aim when getting referrals is to minimise double handling of clients and their cases (see also 2.1 Casework procedures). Relationships with community organisations may usefully be extended beyond establishing good procedures for referral of pro bono matters. It may suit a law firm pro bono program to support the operation of a community organisation, particularly community legal organisations and Indigenous legal organisations in a variety of ways (see the discussion of ‘multi tiered relationships’ in 1.2 Current models of law firm pro bono).
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Community Legal Centres (CLCs) CLCs are described at 4.4 Community legal centres and Indigenous legal organisations. Names and contact details of all CLCs in each state and territory can be found at: www.naclc.org.au. CLCs see thousands of clients every year. They work on tight budgets and cannot assist all of the clients who meet their criteria. CLCs are not only a very good source of referrals but also a source of information regarding the needs and issues of disadvantaged and marginalised clients. They also know where their clients can get help in relation to those issues and can thus identify areas of need that might be useful for pro bono practices to consider when deciding the nature of their practice. CLCs can provide a range of opportunities for law firm pro bono practice, including referrals of cases, secondment placements, rostered participation in advice clinics, law reform and community legal education work, opportunities for ‘transactional’ work as well as ideas for particular projects, such as outreach services. A firm wishing to develop relationships with a CLC could contact either the principal solicitor, coordinator or director of a CLC and arrange to meet with them. In terms of casework referrals, CLCs frequently make decisions about how they can best assist a particular client. The number of clients who will be referred for pro bono assistance by any one centre is generally quite small as the CLC will be conscious of not overusing pro bono services. The level of referrals will, of course, depend upon the kinds of work the firm has indicated it will accept. Ideally this should be explored in discussion with the particular CLC, taking into account clients’ needs as well as the expertise of the firm. It may be feasible for the firm to acquire the necessary expertise to deal with particular areas of need, for example, assisting clients to file victims’ compensation applications or appearing in applications for apprehended violence orders (see also 1.14 Training and skills). CLCs have a national association, the National Association of Community Legal Centres (NACLC), and also state associations that provide some secretariat support to CLCs. There is a national conference of CLCs held in a different state each year. This can be a good opportunity for well-resourced pro bono practices to meet and network with CLCs, and present information on their work. There are also various networks of CLCs organised around particular issues or themes such as: youth, welfare rights, tenancy, Indigenous women, disability rights, and regional, rural and remote needs. These networks engage in mutual support, policy work and joint initiatives and can be another point of contact for law firms wishing to engage on issues. Details of national CLC Networks can be found at: www.naclc.org.au.
Legal aid commissions There is one legal aid commission in each Australian jurisdiction. Contact details are maintained by National Legal Aid at www.nla.aust.net.au. Legal aid is also described in 4.3 Legal aid. The legal aid commissions have offices all over Australia and see thousands of clients each year. It is useful to become familiar with the legal aid guidelines to understand when legal aid is available and to whom it is available. Understanding the type of work legal aid does can also assist firms in determining the areas of legal need that remain unmet and therefore the nature of work a firm might want to undertake. Firms may wish to contact either the head of civil law, criminal law or family law of their local legal aid office to discuss the firm’s pro bono practice. The person to contact will depend on the areas of law in which the firm wishes to practise. It is important to have clear guidelines on the sorts of cases or work the firm wishes to have referred, and how the firm wants referrals made (see also 2.1 Casework procedures).
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Indigenous legal organisations Indigenous legal organisations include Aboriginal and Torres Strait Islander legal services (ATSILS), Indigenous women’s legal services, family violence projects, native title representatives bodies and land councils. They are described in more detail in 4.4 Community legal centres and Indigenous legal organisations. Firms might consider contacting one or more Indigenous legal organisations to learn more about their work and to explore how the firm could provide pro bono assistance. As in other cases, where a firm decides to accept casework referrals, they should establish clear guidelines specifying the sorts of cases they will accept, and how they want matters to be referred. The legal needs facing Indigenous people are broad and varied. Issues involved in working with Indigenous clients are covered in 4.7 Advising and acting for Indigenous clients.
Other community organisations Community welfare and policy advocacy organisations are a potentially large source of pro bono referrals. Developing relationships with groups such as family support services, neighbourhood centres or citizens advice bureaux, disability advocacy, young people’s drop- in centres, court assistance schemes, land councils, migrant resource centres, women’s refuges, Indigenous or other organisations, is useful for gaining information that may help a firm decide whether or not to concentrate on the needs of a particular group and then to implement a program that does so. Alternatively, a firm might want to assist a range of organisations in a particular area, for example, a rural or remote area of the state or a particularly disadvantaged urban community. It can be useful to develop relationships with a range of community organisations that assist different clients who are in some way disadvantaged in accessing legal services. Information about community organisations can be obtained from the state-based Council of Social Services. Contact details are available on the website of the Australian Council of Social Service www.acoss.org.au or at COSSnet: www.coss.net.au.
Needs of community organisations themselves While it is clear that many individuals require pro bono legal assistance to access justice, so do many of the community organisations who are established to assist them. Often these organisations are not well funded and focus the funding they do have on meeting their core objectives. They rarely have any budget for legal assistance. These organisations can therefore benefit enormously from pro bono assistance on a range of issues that they face in carrying out their core objectives. The legal assistance they require can range from advice on leases, employment issues, their legal structure, contracts and funding agreements, intellectual property issues and tax issues to general commercial issues. They are also a potential target for useful community legal education and legal training, whether about their own needs[46] or those of their clients.
Peak non-government organisations Many parts of the community sector belong to or are supported by ‘peak’ organisations at a state or national level.[47] Examples include the Refugee Council, National Council on Intellectual Disability, the Council on the Ageing, National Shelter, and the Women’s Emergency Services Network (WESNET). Many of these peak bodies will be in a position to coordinate legal assistance on matters relevant to the bodies they service. Links with such peak organisations may prove to be a very effective way to provide targeted pro bono services. They are likely to be aware of potential public interest issues relevant to the ultimate clients of their constituent organisations which may be pursued through strategic litigation or law reform submissions.
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Sources of work within the firm Lawyers and non-lawyers working in the firm are another source of pro bono work. Some may volunteer at community legal centres or know colleagues there. Others may be in some way involved in other community non-profit agencies or with migrant or Indigenous communities, or may have colleagues working in legal aid commissions. The firm’s pro bono policy would ideally encourage lawyers to bring to the attention of the pro bono committee or coordinator or responsible partner, pro bono matters that may fall within the firm’s guidelines. Some firms have developed an application form for this purpose (see 2.1 Casework procedures and 3.7 Application and approval forms).
Courts, tribunals and complaint-handling bodies The registries of some courts, and complaint-handling bodies such as the Human Rights and Equal Opportunity Commission or the state-based body charged with conciliating discrimination complaints, are potential sources of appropriate pro bono referrals. Firms could contact the registry or body to indicate that they are available to accept pro bono referrals. In these cases it will be particularly important to clearly state the types of matters that the firm is willing to consider and the means by which the firm prefers to be contacted (for example, firms may prefer that a staff member of the registry or complaint body call a nominated contact person at the firm before making a referral).
Advertising and client self-referral Of these, advertising pro bono services to potential clients is not usually popular with firms. For many firms client self-referral is also not the most effective way to obtain pro bono work. With some exceptions firms will generally prefer not to take responsibility for the initial screening of clients to assess whether their matter is suitable for pro bono assistance. For larger and mid-sized firms at least it is generally more efficient for clients to gain access to pro bono services through a community or legal aid organisation or via a pro bono referral scheme. These services have expertise in the complex network of available support agencies and can assist clients to determine if they have a legal problem and the most suitable agency to provide assistance. They are also able to filter out matters where there is no legal issue and some matters which have no legal merits. Accepting referrals from local community organisations is likely to improve the chances that consideration has been given to the client’s non-legal needs and that the availability of alternative legal services has been considered and ruled out. Such community agencies are also likely to be a first point of call for the most disadvantaged members of the local community. Nevertheless, as has often been noted by small and particularly rural practitioners, client self-referral for pro bono assistance is a routine part of operating their practice. For such firms, developing a good understanding of the legal aid system and the network of community services available in the area will be essential. For many, a clear policy on the kinds of matters where they will offer pro bono assistance may be useful to assist staff to efficiently screen matters (see 2.1 Casework procedures). Firms might also consider whether the clients who are self-referring are in fact those with the most pressing legal needs in their area.
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7Setting targets and budgets Firms may choose to set targets and adopt budgets for pro bono for the firm and/or for individuals or groups within it. The advantages of doing so, where the targets and budgets are sufficiently ambitious and communicated to all in the firm, include: •sending a message to all in the firm about the firm’s commitment to, and expectations about, pro bono; •giving individuals and the firm as a whole clear goals; •setting benchmarks against which the firm’s pro bono program can be evaluated. This section describes various approaches available to firms.
Firm-wide budgets Some firms choose to adopt a firm-wide budget for pro bono, in the sense of ‘a specific annual allocation of firm resources to pro bono activities’.[48] This may be expressed as a total number of lawyer-hours or as a dollar amount calculated on the value of these hours, or as a certain percentage of the firm’s total billable hours or gross turnover. For example, one capital city firm sets a pro bono budget of 5 per cent of their annual fees budget. A firm’s pro bono budget for a given year may be based on matters such as the firm’s past performance, the firm’s assessment of its current caseload and its capacity to increase its activity level.[49] In the United States, the Pro Bono Institute’s Law Firm Pro Bono Challenge involves signatory firms agreeing to set goals of either 3 or 5 per cent of total billable hours as a budget ‘floor’. The goal is deliberately stated as a percentage of total firm billable hours to underscore that the commitment is an institutional one and to ensure that it is progressive, increasing as the firm’s revenue-generating work increases.[50] Approximately 150 of the United States’ largest law firms have become Challenge signatories. The Challenge is said to have been very successful in increasing pro bono work being carried out by law firms. One advantage of setting a firm-wide pro bono budget, at least at the development stage of a program, is that the partnership may be more willing to commit to an active pro bono program if the financial extent of the program is clearly delineated. Partners can be reassured that pro bono is not a ‘bottomless pit’. Setting a pro bono budget is also consistent with the way that other aspects of the firm’s business are handled. It may also allow or encourage the firm to think strategically about planning their pro bono work, especially initiatives that have significant financial implications. Budgets can give the firm goals as well as benchmarks. If budgets are under- or over-spent, firms’ pro bono committees can inquire into the reasons and in so doing improve their program. Under-spending on a pro bono budget may mean that the firm needs to reconsider the kinds of work it is agreeing to take on; the firm may need to contact their referral sources to find out why more matters are not being referred and/or develop new sources of work or new areas of expertise. Over-spending may indicate that more attention needs to be given to making realistic estimates of matters or that the budget was too conservative. If a budget is set, the firm needs to decide what ‘expenditures’ are allocated to it. While the major ‘expense’ will be lawyer-hours, there may also be expenses such as internal and external disbursements on pro bono matters, if these are not being paid by clients. The firm will need to decide whether the costs of administering the firm’s program are allocated to its pro bono budget and if so which ones.[51] For example, will the time of members of the pro bono committee be allocated to the pro bono budget? This may depend, at least in part, upon whether they are being credited for this work.
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Setting pro bono budgets is disadvantageous if the budget adopted is too conservative and if the budget is viewed as a ceiling which cannot be exceeded (see Guidelines, floors or ceilings? below). In addition, very restrictive budgets send a strong negative message regarding pro bono.[52] Some firms prefer not to determine in advance any minimum or maximum levels of pro bono work and instead gauge demand and undertake an end-of-year review of their pro bono performance. Some firms choose not to adopt firm-wide budgets but set targets of a different kind (see next section). The percentage of Australian firms that set firm-wide pro bono budgets is not known. In the United States the Law Firm Pro Bono Project carried out a pro bono staffing survey in 2001–02, asking firms, amongst other things, to indicate which, if any, of a number of specific tasks were undertaken by the individual(s) assigned to oversee or administer the firm’s pro bono program.[53] Only 23 per cent of the ninety law firms that responded as having at least one person assigned to administer their program included ‘preparing an annual pro bono budget’ as one of that person’s tasks. The Project observed that ‘it is difficult to determine whether this means that pro bono is not included in the overall firm budget at all or whether pro bono budgeting is not yet widely identified as a strategy for strengthening pro bono participation’ and that this is an area where more research and information needs to be conducted and distributed.[54]
Other budgets and targets Firms might wish to adopt budgets and/or set targets of other kinds in order to promote and manage their pro bono practices. (This may be so whether or not the firm has adopted a firm- wide pro bono budget.) These need to be publicised, including through the firm’s pro bono policy, so that all are aware of the firm’s goals as well as the expectations of the firm with respect to individuals’ and/or departments’ performance. These might include any or some of the following: • A target for each division or group within the firm. This might be, for example, a percentage of each group’s billable hours. One advantage of this is that each group is then clear about expectations, and monitoring (and even a degree of competition) can occur at the group level. • A number of hours per lawyer per year. For example, Rule 6.1 of the American Bar Association’s Model Rules of Professional Conduct specifies that every lawyer should aspire to render at least fifty hours of pro bono publico legal services per year. In practice, many American firms set targets in excess of this. Where firms set targets for individual lawyers, these are often linked to the firm’s method of recognising or crediting those hours in terms of lawyer’s individual budgets, salary, advancement and/or performance appraisal.[55] If setting targets for individual lawyers, the firm should make clear whether the same target applies to each level of lawyer within the firm, or whether partners, for example, have different targets to senior associates and others. The firm might, in addition, wish to make clear that equity and income partners are not only expected to participate but will not discharge their commitments merely by assigning work to others within the firm. • A target percentage of the firm’s lawyers participating in pro bono – which might be as high as 100 per cent. For example, the pro bono policy of one firm specifies that: The [Firm] Pro Bono Scheme is the shared responsibility of all legal staff. Pro bono work is not to be undertaken only by a few partners or solicitors. All solicitors are expected to conduct at least one pro bono matter each financial year... Pro bono matters which are conducted by solicitors will be included as part of a solicitor’s annual professional review.[56]
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The Pro Bono Institute’s Law Firm Pro Bono Challenge involves signatory firms agreeing, amongst other things, ‘to use [their] best efforts to ensure that a majority of both partners and associates in the firm participate annually in pro bono activities’. • A target number of matters for the firm per year, particularly having regard to previous performance, or for each division or group each year. • A budget (estimate) for each new pro bono matter. This tends to be done in firms that adopt a firm-wide pro bono budget and give billable credit for pro bono work (see 1.10 Counting and crediting time).
Guidelines, floors or ceilings? For targets and budgets to operate as aspirational goals, they need to be set sufficiently high. A number of firms set targets that are used as a guide only, rather than as a ceiling. A firm may consider their past year’s performance when setting a target for the number of matters in the following year, but nevertheless regard this as a guideline rather than as a ceiling. The firm will not stop taking on matters when that level is reached. Targets and budgets may deliberately be set as ‘floors’ rather than ceilings – for example, a target that each lawyer is required to do at least one matter per year. Whether or not targets are set as minimum or maximum levels, they should ideally be periodically reviewed, particularly in the early stages of development of a firm’s pro bono program. They should be capable of upwards adjustment as the firm’s willingness and capacity increases.
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8Coordinating pro bono work in the firm
Introduction A well-coordinated pro bono program provides benefits and opportunities for the firm as well as for the disadvantaged people and non-profit organisations receiving the pro bono services. Creating structures to organise pro bono efforts recognises that pro bono is an important firm activity, involving resources that should be efficiently allocated, managed and monitored and linked to the overall management structures of the firm. In addition it recognises the practical imperatives of mid-tier and larger law firms. This section describes various approaches to coordinating pro bono programs, including the role of pro bono committees, pro bono partners and pro bono coordinators.[57] See also 2.6 Troubleshooting, which addresses some of the problems that can arise in coordinating and administering a program.
Approaches to coordination There are a number of options for organising and coordinating a firm’s pro bono work. The most suitable arrangements for each firm will depend on factors such as the firm’s management and reporting structures generally, the size of the firm, whether the firm has offices in more than one city and state and the size and nature of the firm’s pro bono practice. For example, a policy within the firm that every lawyer should do a certain amount of pro bono per year carries with it the need to have arrangements in place to develop sources of pro bono work, to allocate the work within the firm, to record the work and to monitor compliance with any pro bono budget or targets. Firms with offices in more than one location will need to consider local as well as firm-wide coordination and responsibility (see, Multi- office firms below). Common features of coordinated law firm pro bono practices in mid-sized and large firms are: • pro bono committees; • pro bono coordinators or directors; • pro bono partners. A number of firms use a combination and there is, quite appropriately, some overlap of functions. The combined model appears to work well in mid-sized and large firms. If one of the elements is not present, obviously the responsibilities and workload falling upon the others is greater. Whatever mechanisms are adopted, it is clear that designing and operating a pro bono program of any size requires policy, planning and oversight as well as day-to-day operational activities. Frequently the policy and oversight functions are allocated to pro bono committees and partners, with operational activities falling more within the purview of pro bono coordinators. Firms without pro bono coordinators tend to utilise a designated pro bono partner or other lawyer (for example, the chair of the pro bono committee) to perform many of the functions that a coordinator would otherwise perform. It is also important that one individual have a significant coordinating role. In the United States, a recent survey carried out by the Law Firm Pro Bono Project [58] revealed that of the ninety-two firms that responded to the survey, ninety (98 per cent) had assigned at least one individual to administer or oversee the firm’s pro bono program.[59] That individual was sometimes an associate (with or without a full or near-full commercial caseload), a counsel attorney, a partner who also maintained a full or near-full commercial caseload, a paralegal or other staff member. Eighteen firms (20 per cent) had appointed more than one person to administer or oversee their program.
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Allocating time In deciding how to coordinate their pro bono program and where to allocate responsibilities, firms should keep in mind the amount of time that will be involved in undertaking key activities. For example, dealing with the intake of pro bono matters in larger firms is a crucial activity that can be time-consuming. It is likely to involve tasks such as: carrying out a conflicts check; considering the client’s financial position and the merits of the action; considering the likely resources required by the matter (including costs and disbursements) and the capacity in the relevant practice group; and liaising with the relevant lawyers in the firm and with the source of the referral (for example, a pro bono referral scheme or community organisation).
Crediting time Firms will also need to decide how they will account for and recognise time spent on oversight and coordination and how it will be acknowledged as a significant contribution to the firm. For example, will time spent planning and coordinating the firm’s pro bono work be treated in the same way as hours spent working on pro bono files? (see 1.10 Counting and crediting time) Will workloads and expectations be adjusted to cater for it? Will work done as a member of the firm’s pro bono committee be taken into account in salary and promotion decisions?
Smaller firms Small firms are obviously in a different position in relation to coordinating pro bono work. Except for very small firms, however, it would still be desirable to have a person with designated responsibility for oversight of the firm’s pro bono work. If the firm wishes to have a proactive pro bono practice, that person will need to undertake at least some of the coordination activities listed below.
Multi-office firms Firms with more than one office generally have local as well as firm-wide coordination systems. National firms with large state offices may have national as well as state pro bono committees, partners and coordinators (see, for example, 3.1 Sample pro bono policies: 1). Small local offices may not warrant such structures, however, ideally at each office there should be a person who is the contact and intake person for that office and who is responsible for exploring and creating local pro bono opportunities and for promoting interest and participation.
Approval of pro bono work Firms need to decide who will approve (and decline) requests for pro bono assistance. A range of options is available. Many firms assign this function to their pro bono committee (see, for example, 3.1 Sample pro bono policies: 2 and 4 and see 3.2 Sample procedure), including some firms who have pro bono coordinators. Some firms allocate it to the pro bono coordinator (see, for example, 3.1 Sample pro bono policies: 1 and 5), perhaps with a financial ceiling set for matters that can be approved by that person or with additional approval required from a partner. One firm allocates this function to any one of: the national pro bono director, the state pro bono coordinator or the state pro bono partner (see 3.1 Sample pro bono policies: 6). Alternatives include giving case approval functions to team or department leaders, or to other partners or other committees, such as the management committee. Different or additional approvals might be required for controversial or difficult matters (see, for example, 3.1 Sample pro bono policies: 2 and 2.4 Risk management). The advantages of allocating this role to a single person, as opposed to a committee, are timeliness and consistency of decision-making. However, the qualifications and skills of the individual and the appropriate level of authority will be very important. Alternative
Australian pro bono manual 43 1 Planning, developing and maintaining a program arrangements will need to be made when he or she is on leave. Some firms consider that committee decision-making provides more checks and balances and also protects their coordinator in the event that people in the firm or clients do not like particular decisions. Regardless of which model is adopted, the firm should ensure that decisions are made promptly and that there is a facility for making decisions in urgent matters. Many pro bono committees meet monthly but determine acceptance or refusal of matters by email.
Pro bono partners A firm may nominate one or more partners to be pro bono partners. Such a partner may also be the chair or a member of the pro bono committee. Firms with offices in more than one state typically appoint one or more pro bono partners in each state office. Similarly, firms with more than one office in a state may designate a pro bono partner in each office so as to enable pro bono work to be locally managed. One firm has appointed a ‘Pro Bono Point Partner’ in each practice group in the firm, in part to ensure that that someone senior in each group has an overview of how much work is going on in the group and who is doing it. These partners are the first point of contact for the pro bono coordinator when allocating pro bono matters. In firms that have pro bono coordinators, the roles of pro bono partners might include: • strategic oversight of the scheme (or state/local scheme, where relevant); • resolving issues of conflict of interest; • monitoring the pro bono policy and the program’s performance against goals and budget; • signing off memoranda, file allocations and the like; • undertaking and/or supervising pro bono casework; • periodic reporting to the partnership; • promoting pro bono to the partnership and the firm generally. In firms that do not have a pro bono coordinator, the pro bono partners, sometimes with the assistance of the pro bono committee, will frequently also undertake at least some of the day- to-day activities such as processing pro bono applications, approving disbursements, monitoring the time and cost of pro bono work, monitoring staff performance in undertaking pro bono work and liaising with external agencies. In some firms, these functions are performed by the pro bono committee.
Pro bono committees These are a common feature of structured law firm pro bono programs in the United Kingdom, United States and Australia. Pro bono committees allow the work of planning and managing a program to be shared by a number of people and also provide an opportunity for a broad range of people within the firm to be involved. This involvement in turn enhances wide-ranging ownership of and support for the firm’s pro bono program. A committee structure also means that the absence or departure of one person will not mean the delay or demise of the program. In addition, a pro bono committee can act as a buffer for solicitors who may work for less supportive partners. Firms with offices in more than one state may have a national pro bono committee as well as pro bono committees in each state.
Composition It is generally considered important to have broad-based membership from across different divisions and from different levels within the firm, from senior partnership and senior solicitors to junior solicitors. It is important that the committee include influential people, particularly from the partnership level, who can attract support for the program. It has been
Australian pro bono manual 44 1 Planning, developing and maintaining a program suggested that, ‘the most successful pro bono committees have a highly visible, active and respected chair, usually someone at a senior level’.[60] Some firms include a certain number of team/division/practice group leaders in an effort to ensure wide participation in the program by all divisions of the firm, including commercial, property, and other non-litigation divisions. It is also desirable to involve the firm’s non- lawyers, including (where relevant) human resources (for example, the human resources manager), marketing, professional development and support staff. One model also includes a person from outside the firm with experience in poverty law, legal aid and public interest law.[61] Community sector experience on the committee is desirable, however, some firms might prefer to seek this internally. The size of committees varies from firm to firm. The committee will not be workable if it is too large. If there are a lot of people who wish to be involved, it might be possible to harness that interest by creating project-specific working groups. The firm might choose to call for expressions of interest for committee membership but should make it clear that the committee’s roles are policy and administration and not actually doing the pro bono work. Committee members will need to be willing to make decisions, sometimes very hard ones, about accepting and rejecting pro bono matters based on the firm’s policy and be prepared to justify these to the firm.
Roles and responsibilities At the initial stages of creating a pro bono program, the committee would be responsible for generating support within the firm, exploring interest and expertise and contacts within the firm, making contact with external agencies and ascertaining needs and sources of work. They would also devise a pro bono policy and procedures for undertaking pro bono work both externally and within the firm. As the program develops, the committee might have an administrative role (such as approving pro bono matters, disbursements and the like) and would monitor and review the program and report to management and others.
Crediting time It is desirable that committee members’ time in coordinating, planning and related tasks is recorded, ideally by giving such work a matter number and crediting that work in the usual way. In addition, the work should be taken into account in performance appraisal, advancement and salary review. The work of committee members may be significant in terms of time, especially at the development stage of a pro bono program. It should be recognised as a contribution to the firm.
Pro bono coordinators or directors A large number of overseas firms and a significant number of Australian firms appoint a member of staff to be the pro bono coordinator (sometimes called a director). Seven of Australia’s largest firms now have pro bono coordinators, the majority of whom are senior solicitors working full-time on pro bono related activities. Several national firms have a full- time national coordinator as well as part-time coordinators in each state office. A significant number of mid-tier firms have pro bono coordinators, some are full-time and many are part- time. A small number of firms appoint non-lawyers as coordinators. The firm will need to decide at the outset how many hours it wishes to allocate to pro bono administrative functions. ‘Part-time’ coordinators are generally lawyers who are given partial fee relief in order to carry out activities related to pro bono. The appropriate level of fee relief will depend upon the size of the program the firm wants. In some firms this translates to 20–50 per cent fee relief. A firm could set an initial rate and then adjust as necessary.
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Rather than fee relief, a coordinator’s time can be credited in the same way as with billable work, by giving pro bono activities a matter number and entering time against it. The firm can then monitor the amount of time that the job requires and, at the same time, the coordinator’s work is being properly recognised. In any event, firms should be aware that part-time coordinators might experience tension between the demands of their pro bono work and their commercial practice. There might be particular occasions when the balance needs to be considered by the pro bono committee and possibly adjusted. In a number of firms the role of pro bono coordinator is performed by the pro bono partner. Given their other responsibilities, some partners may find it difficult to balance pro bono work with their other work and functions. Some partners tend to delegate the work to others on the committee or in the firm. Where this occurs, it would be preferable to formalise the delegation by appointing a coordinator and giving appropriate fee relief or otherwise crediting the work, leaving the partner with more of a supervising and sign-off role. Obviously the best option for a particular firm will depend on the size of the firm and its pro bono practice, the extent to which functions are performed by the committee or its chair and the extent to which the person concerned undertakes pro bono casework in addition to acting as a contact for external agencies and distributing work in the firm. Also relevant is the stage of development of the firm’s pro bono practice and whether, for example, the firm has already developed links with the community sector and sources of pro bono work and whether there are developed procedures for undertaking and reporting work and the like. Whichever model is adopted, it is crucial that there is a designated person in the firm for external agencies and others to contact. Pro bono coordinators are the primary intake point for pro bono matters. In firms where approval requires a decision of the committee or a partner, the coordinator generally carries out an initial assessment against the firm’s pro bono criteria, conducts a conflicts check and considers the firm’s capacity to undertake the matter before referring the matter to the committee or partner for decision. As noted above, some pro bono coordinators are given the responsibility of approving or declining matters. Coordinators will generally be responsible for allocating pro bono work in the firm using a range of approaches. These include emails to all staff or to lawyers who have expressed interest, personally approaching lawyers in relevant practice groups or contacting a partner in the relevant area to see who in the group might be able to take on the matter. Some coordinators have significant pro bono casework practices while others, particularly part-time coordinators, may do little of the firm’s pro bono casework themselves. Some coordinators have supervision and mentoring roles in cases where they have particular expertise. In some firms pro bono coordinators also have responsibility for the firm’s broader corporate social responsibility or similar programs, for example, non-legal volunteering, charitable donations and the like. Other firms prefer to keep the administration of these programs separate from their pro bono program.
Roles and functions Following is a list of functions that may form part of a successful pro bono program. A firm will need to decide how to allocate functions between their committee and pro bono partners, coordinators or others responsible for oversight and administration of the program. Smaller pro bono programs will not necessarily need to undertake all these tasks. Development phase pro bono tasks include: • surveying current firm activity, areas of interest, expertise and contacts; • developing a pro bono policy and procedures;
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• integrating systems for file management, time recording and accounting on pro bono matters with the firm’s existing systems; • developing an annual pro bono budget or target (if any); • developing contacts with pro bono referral agencies, legal and community groups and non-profit associations to ascertain needs, develop priorities and sources of pro bono matters; • exploring and developing pro bono opportunities for different practice groups in the firm and for different levels of the firm, for example, articled clerks; • publicising and promoting pro bono within the firm. Tasks for ongoing programs may include: • receiving, screening and processing pro bono applications from within the firm and from external sources (this may include decisions about costs, disbursements, conflicts checks, extent of the work to be done and other matters) and allocating work within the firm; • liaising and developing relationships with external agencies (such as community legal centres, legal aid bodies) to maintain sources of work and investigate new sources; • publicising opportunities and matching volunteers; • developing pro bono projects and opportunities, including: o developing opportunities for participation by all at the firm; o exploring and organising opportunities for ‘external’ pro bono (for example, secondments, participation in community legal centre advice clinics); o liaising with other pro bono service providers to investigate scope for joint projects and training; • seeing that the firm’s pro bono policy and procedures are implemented and periodically reviewed, revised and improved; • monitoring and evaluating the program, including: o maintaining a record of all pro bono work being handled in the firm; o monitoring resources being allocated to matters (in some firms, this would include monitoring regular billing of pro bono matters); o monitoring levels of participation within the firm; o monitoring performance against the pro bono budget or targets (if any); o collecting and maintaining data about requests, refusals, approvals, time and other resources allocated to pro bono; o periodic evaluation of the program; • reporting to the firm (as appropriate, having regard to firm management structures) on a periodic basis on specific matters which might include: o resources allocated to or ‘spent’ on pro bono (time, disbursements, etc.) over the reporting period as well as any income from the program by way of costs awards; o the kinds of services provided and to whom they were provided; o the number of lawyers and non-lawyers participating in the program; o whether the firm’s goals for the delivery of pro bono services have been fulfilled;
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o a description of projects and tasks completed by the coordinator or committee or partner to promote and encourage pro bono and anticipated projects and tasks; o recommendations about future budgets or targets (if any) and other changes to the pro bono program; • undertaking pro bono matters for clients, and/or supervising and/or assisting others in the firm handling pro bono matters; • maintaining a register of interest and expertise within the firm; • publicising and promoting pro bono within the firm (for example, through material in firm newsletters or bulletins; organising seminars and/ or presentations by organisations and others in need of pro bono services; email reports advertising pro bono opportunities; meeting with partners, team/division heads); • preparing information and marketing material for the firm’s website and other publications; • developing projects for vacation clerks (if any); • developing the firm’s library and IT resources in specific areas of pro bono law; • organising training for particular pro bono activities and encouraging individuals to attend training programs; • liaising with, providing support to and receiving feedback from secondees (if any) and/or from participants in other projects; • participating in promoting pro bono to the legal community and more generally.
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9 Involvement of all levels Creating opportunities for involvement by all in the firm can be an effective way to develop an active pro bono practice. This section brings together approaches developed by some firms. Anecdotally it is said that those most keen to do pro bono work tend to be the younger, more junior solicitors in the firm – although of course there are interested and active participants at other levels. Some firms report that it can be more difficult to get people at more senior levels in the firm to be actively involved and that, for example, senior associates and junior partners can sometimes be reluctant to undertake pro bono work because of the fee-earning imperatives of their positions. This experience is not shared by all firms. Nevertheless, given other imperatives within the firm such as the need to meet individual and group budgets and individuals’ desires for advancement within the firm, some thought needs to be given to particular disincentives to pro bono that may operate at different levels of employment within the firm and how these might best be overcome. The extent of involvement of lawyers at different levels within the firm appears to depend on the extent to which pro bono is considered an integral part of the firm’s business and the sorts of strategies adopted to promote it. Participation levels will be maximised where firms give specific attention to creating opportunities appropriate to different levels, having regard to skills, experience and interests and to any obstacles to participation that might be operating at the relevant level. In one firm, for example, the pro bono coordinator met with partners specifically to discuss and explore the kinds of pro bono work that would appeal to them. Particular projects have been developed as a result. Some firms survey people in the firm about the kinds of pro bono work they are interested in doing (see discussion at 1.5 Surveying interest). As noted above, people at the solicitor/associate level in firms are often keen to participate (particularly if their work is appropriately counted and credited) and do much of a firm’s pro bono work. This section looks at participation by other levels in the firm.
Partners All pro bono work undertaken in a firm should be supervised by a partner, as is the case with fee- earning work. Many partners also undertake significant amounts of pro bono casework themselves, although this varies between firms and particularly between firms of different sizes. The perception that pro bono participation necessarily involves only casework and litigation may unnecessarily inhibit some non-litigating partners from active involvement. Firms may facilitate involvement of partners by: • sending strong messages from senior partners and management in the firm that pro bono work is valued and important and that partners should set the example by undertaking this work; • developing opportunities that utilise the range of skills (transactional and other) and the networks of these partners such as becoming legal advisors and mentors to not-for-profit organisations, including, in particular, newly formed organisations; • encouraging participation in law reform projects and activities, again in ways that utilise their experience in the law and in case management; • developing pro bono projects which allow partners to pass on their skills (for example, the Homeless Persons’ Legal Clinic in Melbourne is investigating a project where a senior partner will train solicitors in drafting wills for clients of the Clinic); • setting up specialist or ‘signature’ projects supported by the firm in which partners can participate in a range of ways, such as designing and building support for the project, providing mentoring, advice and supervision as well as providing advice and assistance directly to clients;[62]
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• providing training and support for non-litigation partners to undertake pro bono litigation.
Junior partners and senior associates Firms could seek to identify work and projects that recognise the expertise of junior partners and senior associates and could consider specifically asking them about the kinds of work that would appeal to them. The allocation of pro bono work should recognise their capacity to supervise such work, assist in more complex matters (including by case management) and to mentor younger, less experienced lawyers. Firms engage junior partners and senior associates in supervisory roles in relation to pro bono work. For example, one firm involved in a PILCH Homeless Persons’ Legal Clinic assigns to each file a senior associate who then supervises and provides support and mentoring to the junior solicitor responsible for the file. In some firms, some senior associates and partners have quite significant pro bono practices. Several firms designate a junior partner and/or senior associate as the person responsible for relationships with particular community agencies (for example, community legal centres). That person is then the first contact point for the agency and is able to be involved in managing the relationship as well as undertaking hands-on casework. Lawyers at these levels might also be interested in project management of particular law reform projects in the firm.
New employees New employees should be given a copy of the firm’s pro bono policy and advised of pro bono opportunities within the firm and how they can become involved. It should be made clear to junior solicitors that they will be appropriately supported and supervised in their pro bono work and they should be advised of any training opportunities. The firm’s pro bono coordinator (if any) could participate in any formal induction program undertaken by new employees.
Articled clerks Articled clerks are another valuable source of pro bono assistance within a firm and are generally keen to engage in this kind of work. A number of Victorian firms engage their articled clerks in pro bono work including casework, law reform and policy work. For example, one firm utilised several articled clerks in a substantial legal research project being undertaken by the firm for a community legal centre. Another Melbourne firm has a system whereby people who have accepted offers of articles are paid to work at the firm one day per week during a six month period before they start their articles and they frequently work entirely on pro bono matters.
Vacation clerks Students undertaking clerkships are a valuable resource for the firm, including in relation to the firm’s pro bono program. They are keen, trained in legal research and anxious to perform their best. Firms are reporting an increasing level of interest in pro bono by summer or vacation clerks and students participating in graduate employment interviewing programs. Firms will attract students by providing meaningful opportunities for pro bono work during summer clerkship programs and by demonstrating that such opportunities will continue should the student be offered, and accept, employment after graduation. Key considerations in successfully engaging clerks in pro bono work include: • Explaining to new clerks, clearly and unambiguously, that their participation in pro bono work will be valued by the firm. This requires more than merely advising new clerks that they may chose to do some pro bono work during their clerkship. Anecdotally, some summer clerks have
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reported that while they were given such a choice, they were not sure whether it would be in their interests to elect to do some pro bono work, or whether their prospects of securing graduate employment would better be served by undertaking other work. • Recognising their efforts. Obviously a clerk’s pro bono experience with the firm will be most positive if steps are taken by the firm to give recognition to their efforts. • Taking steps so that clerks can see the usefulness of their work and appreciate its context. For example, if research or writing work is being done for a community legal centre, the clerk might visit the centre so as to understand the general nature of its work and clients. • Identifying specific tasks and projects that are practicable given the limited period of the clerkship. Are there specific projects that can be started and completed within the period? Are there cases being handled by the firm to which the clerk can usefully contribute, for example, by undertaking research or helping in some other way? The firm’s pro bono coordinator might wish to contact lawyers within the firm who are working on pro bono files to inquire about involvement of vacation clerks on those matters. The coordinator might contact community legal centres or other organisations with which the firm has a relationship to see whether there are particular research projects suitable for vacation clerks. This contact should be made well in advance of the clerkship starting. Some firms find that team projects, involving two or three clerks (as well as other lawyers in the firm), work particularly well. • Ensuring that clerks are able to allocate sufficient time to pro bono work. Smaller projects may be appropriately dealt with in the ‘spare time’ of a clerk, however, this will not work for larger projects. For these, time will need to be factored into the clerk’s position and expectations of other work reduced accordingly. • Ensuring that there are clear lines of responsibility for and supervision of pro bono work. It may be that the clerk is undertaking a project for and liaising with an external agency, however, there should still be a person within the firm who is supervising and supporting the clerk in relation to the project. Examples of pro bono work that can be done by vacation clerks include: • Participation in the firm’s pro bono casework. Solicitors handling pro bono matters could be encouraged to involve clerks in key activities such as conferences with counsel, research work and attending courts and tribunals. • Undertaking legal project work for a community legal centre (CLC) with which the firm has a relationship, for example, writing or updating community legal education materials on particular topics (such as ‘fact sheets’, plain English brochures), carrying out legal research for a law- reform project, updating contacts lists (some of these types of smaller projects may be particularly attractive to clerks because they can be accommodated within their other work responsibilities). • Undertaking legal research on specific practice-related legal issues identified by a CLC as important to their client groups, for example, sentencing of Indigenous people. • Where a firm has established an external legal service, attending and participating in the service for a period of their clerkship. For example, summer clerks at Freehills in Sydney can nominate to spend six weeks of their clerkship working at the Shopfront Youth Legal Centre. • If a firm sends lawyers to provide legal advice and assistance at a community location, vacation clerks could accompany those lawyers to observe and assist where possible. For example, some of the firms participating in the Homeless Persons’ Legal Clinic in Victoria organise their vacation clerks to attend as observers at the advice clinics and to undertake research for casework, law-reform and public policy work in connection with the Clinic. • The Public Interest Law Clearing House in Victoria has been trialling a student fellowship program under which member firms sponsor a limited number of summer and winter clerks to
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take up a one or two week placement at PILCH. This is at the conclusion of their clerkship with the member firm, at a time convenient to both the student and PILCH. The program raises students’ awareness of public interest and pro bono law and also enhances the work and services of PILCH. As PILCH points out, ‘By participating in the fellowship a firm enables a fresh generation of lawyers to enter the profession with an active concern for public interest work’.
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10 Counting and crediting time This section outlines several ‘good practice’ models for counting and crediting time spent on pro bono work. It is intended to assist law firms in deciding how hours spent on pro bono should be regarded for accounting, budgeting and record keeping purposes. It is also relevant to how pro bono is taken into account in assessing the performance of lawyers for the purpose of advancement within the firm and determining their remuneration. It should be recognised that pro bono work in the firm may take a number of forms. Client casework is the most common form, however, people may be involved in other pro bono activities such as working on law reform or community legal education projects, undertaking secondments or participating in community advice clinics. (Of course, this might be done by individual lawyers without any involvement by the firm or use of its resources, but if this participation is considered to be part of the firm’s pro bono work, it should be counted and recognised as such). In addition, various people in the firm will contribute their time and skills to overseeing and administering the firm’s pro bono work. They might be members of the firm’s pro bono committee, and/or the firm’s pro bono coordinator or partner or some other person having a role in, for example, screening and approving pro bono work. Ideally, firms will develop means of counting and crediting all of these contributions to the firm’s pro bono work. The models in this section are not the only ways in which firms count and credit pro bono work but are examples of good practice amongst mid-size and large firms. Different practical considerations apply in small firms or sole practices. However, even in small firms good practice would require that records be kept of time spent on pro bono work and that there be a policy that such work should be recognised and valued. A characteristic of effective pro bono programs is that time spent on pro bono work is recorded and lawyers working on pro bono matters or otherwise engaging in pro bono work are credited for this time both financially and in their professional development. Some of the benefits of this are that: • lawyers are more willing to do pro bono work if they are credited for it; • pro bono work can be fully integrated into the lawyer’s regular practice ensuring the work is properly supervised; • it demonstrates the firm’s commitment to pro bono work and sends the message that pro bono work is important and expected to be a part of the lawyer’s practice. Recording pro bono time also provides the firm and the pro bono committee with an accurate record of the amount of pro bono work being done, which is particularly relevant if the firm has set a budget for pro bono work. There are various models for taking into account time spent on pro bono work,[63] each with different strengths and weaknesses. In some firms, solicitors’ pro bono efforts are counted as billable hours with a view to encouraging solicitors to do pro bono work – although this model also has variations. For example, some firms count a certain number of pro bono hours per week or year as billable hours. In other firms although pro bono work is not treated as billable work, it is nevertheless expected as part of the work to be done by each lawyer in the firm and time spent on it is recorded. Other firms encourage and recognise pro bono work in other ways, including in periodic performance appraisals. Any system for recording pro bono work must of course fit in with the way a particular firm does their accounting and time recording. Whatever system is adopted, the key to an active, successful pro bono program will be that pro bono work is considered valuable work and rewarded as such. This issue is particularly important for professional staff who are likely to be deterred from doing pro bono work if they perceive it will damage their remuneration, standing and progress to partnership. Firms should ensure that their mechanisms for counting and crediting pro bono are communicated clearly to
Australian pro bono manual 53 1 Planning, developing and maintaining a program all in the firm and are described in the firm’s pro bono policy (see 3.1 Sample pro bono policies and 3.12 Encouraging pro bono).
Model 1 – Pro bono hours = billable hours
Hour-for-hour and dollar-for-dollar credit This model is used by an increasing number of firms. Under this model, when a pro bono matter is approved, a file is opened and a matter number allocated as it would be for a paying client. Time spent by solicitors working on pro bono matters is recorded in the usual way. For reporting and accounting purposes, there is no difference between a pro bono and a commercial file. In financial reports on the work of individual solicitors, pro bono work is indistinguishable from commercial work. Bills are generated on pro bono files. In one example of this model, the bill goes to the firm’s pro bono coordinator and at the end of each month there is an accounting adjustment to reflect the fact that fees will not be paid. These monies are not ‘written off’ as such. Rather, at the end of each month an accounting adjustment is made whereby the pro bono billings are deducted as an expense from the partners’ account and are paid into the operating account. In another example, a bill is generated against the matter number, but then discounted up to 100 per cent depending on the basis on which the work was done. Solicitors are given fee credit for their pro bono work; that is, it is taken into account in meeting budget targets in the same way as fee-paying work. The firm’s accounting system is structured so that at firm level, fee-generating work in progress (WIP) and pro bono WIP can be distinguished, but it cannot be distinguished for each individual lawyer. In some firms, an annual cap is set in terms of a dollar amount for the total program (a ‘pro bono budget’) and a total dollar amount is estimated for each matter (although there is no ‘cap’ or maximum amount of pro bono work set for each solicitor). These estimates are then tracked allowing the firm to know the maximum value of the approved pro bono work at any given time. The firm will be able to calculate on the basis of the matter estimates or revised estimates the remaining pro bono budget for the year. This system also encourages lawyers to treat pro bono work in a commercial way, that is, to allocate such time to a matter as is reasonable in order to professionally complete the matter. In some firms, if the estimate set for the matter is exceeded, work done after that time is treated as non-billable time. Procedures are also put into place so that where a matter starts to approach the estimate, people responsible for that matter are encouraged to go back to the pro bono committee or coordinator for approval of further pro bono work on the matter (where justified). In one firm using the billable hours pro bono model, a draft bill is sent to the pro bono partner who then allocates to the particular practitioner an appropriate equivalent in costs based upon the reasonable time spent on the matter. Thus the partner might write-down the time recorded on the bill if he or she considers it to be excessive. The hours credited to the solicitor would be adjusted accordingly. The firm monitors the time spent on pro bono work and the equivalent financial commitment being made on an annual basis to pro bono matters. In another firm, a 10 per cent discount is usually applied to the bill so that the fees ultimately invoiced properly reflect a lawyer’s average realised rate – that is, the actual rate at which a lawyer’s time is likely to be billed to a fee- paying client bearing in mind clients’ usual requirements for discounts, fee capping, special (lower) rates and the like. The relevant lawyers are then automatically allocated fee credits representing the money value of the work undertaken. In one firm this model is utilised by having a separate client called, ‘[Firm name] pro bono’ with a client code, and each client file is given a matter number. Bills are rendered on these files and sent to the pro bono partner who reviews them (and who also approves all file openings on pro bono matters). To work out the effect of the pro bono work on the firm’s financial position, the partner is able to access information through the financial management system for each matter number, concerning work in progress, billings to date, disbursements and when time was last recorded on the matter. For
Australian pro bono manual 54 1 Planning, developing and maintaining a program the purposes of each solicitor in the firm, pro bono work thus counts in meeting budgets in the same way as fee-paying work. Some firms employ the concept of utilisation rates as a performance management tool in addition to assessing performance by way of fees generated. That is, the firm looks at the number of hours spent on billable work by the solicitor. In the context of pro bono within the model described above, hours spent on pro bono work are billable hours for the purposes of determining utilisation rates.
Comments This model clearly shows that pro bono work is considered of equal value by the firm and gives tangible recognition to the principle that pro bono work should be treated in the same way as fee- earning work. There is an incentive to lawyers to be involved in pro bono work and to give it the time it needs. The firm’s commitment to pro bono work can be readily tracked and identified by existing financial management systems. However, this model requires sophisticated and sometimes time-consuming accounting. In addition, as with fee-paying work, if lawyers are going to be receiving fee credit, appropriate control mechanisms should be in place to ensure reasonable allocation of time to pro bono matters, for example, review of monthly bills by partners and write-offs where it is felt that an unreasonable amount of time has been spent on a matter.
Model 2 – Pro bono hours = billable hours
Hour-for-hour credit This model has been adopted in a firm where each lawyer has both a billable hours budget and a money budget. Hours spent on pro bono are counted as billable hours for the purposes of a lawyer meeting their billable hours budget. Pro bono hours, however, are costed at the rate of $1 per hour. Thus spending time on pro bono may cause a deficit in the lawyer’s dollar budget. However this may be offset, at least to some extent, by the fact that pro bono work is taken into account in solicitors’ performance reviews. There is a large section in these performance reviews that deals with non- financial contributions to the firm and pro bono is expressly referred to in this section. In this model, each pro bono file is given a new matter number under the group client name ‘pro bono’. The accounting system automatically records all work done for the ‘pro bono’ client at $1 per hour. Each lawyer’s monthly production report reveals all matters being dealt with by the lawyer and the work in progress (WIP) on each matter. Given its costing, the WIP on pro bono matters will be small. When matters are closed, all pro bono monies are written off.
Comments This model involves writing off monies notionally billed by the firm on pro bono and may be attractive to a firm because the $1 hourly rate for pro bono minimises the size of dollar write-offs and does not falsely record an asset while the file is open. However, the fact that pro bono work does not count in meeting individual lawyers’ dollar budgets may deter some lawyers from doing this work. If this model is employed, it is important for the firm to make its commitment to pro bono very clear. This could include advising lawyers that pro bono work is expected or encouraged. The firm’s commitment to pro bono could also be made apparent in performance appraisals and consequent decision-making about remuneration and advancement. Another disadvantage of this model is that all hours spent on pro bono are recorded at the same rate, regardless of whether the work was done by a partner, senior associate, solicitor, etc. This means that calculations of the real opportunity cost or value of the work can only ever be an estimate.
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Model 3 – Pro bono work = significant non-billable work Under this model, time spent on pro bono work is recorded not as billable time, but as some other category or within a broader category of non-billable time. Pro bono work is also considered in performance appraisals. There are several versions of this model. In one version, the firm’s accounting system assigns different codes to pro bono files and fee-paying files. Solicitors record relevant file numbers on time sheets and monthly reports provide details of work billed and work in progress on fee-paying files as well as time spent on other matters (such as pro bono, marketing, professional development). These numbers are added to calculate the number of hours worked by each lawyer. In one firm employing this model, lawyers are not given billable hours credit for pro bono work, however, it is one of the items taken into account in six-monthly performance appraisals, which in turn affect remuneration and especially the calculation of bonuses. Also taken into account is other significant work, for example, in publishing and in generating precedents. There is an express section in the performance review form where the lawyer and reviewing partner are asked to describe the lawyer’s pro bono work. Pro bono work can also be taken into account in other ways, for example, participants in the firm’s pro bono work may be given priority to attend special conferences and other events. Another firm divides work done by lawyers into billable time and investment time. ‘Investment time’ includes pro bono, marketing, recruitment and other activities not billed to clients. Team budgets are set, as opposed to individual budgets for each solicitor. Individuals and teams are expected to perform well both in terms of their billable and non-billable time. Performance in both kinds of work is assessed formally twice a year. In one firm, this model is accompanied by a pro bono policy that expects every lawyer within the firm to do one pro bono matter per year. In addition, pro bono is specifically addressed in annual performance appraisals. The firm sets an annual target for pro bono each year, both in terms of a dollar value and number of hours for the firm as a whole.
Comments This system has the advantage of clarity in that only billed matters are in fact called billable. However, under this model there may be concern among some lawyers that pro bono work will not in practice be given equal weight with billable work. If so, those lawyers may be less inclined to allocate time and effort to pro bono work. As with Model 2 above, a firm would need to make its commitment to pro bono very clear to all in the firm and this commitment would need to be overtly reflected in the firm’s decision-making about remuneration and advancement.
Model 4 – Specified pro bono hours = billable hours Under this model, each lawyer within the firm receives a credit against her or his expected weekly/monthly/annual billable hours for hours billed to pro bono matters as if such work were billed and collected. For example, up to one and a half hours per week or up to fifty hours per year. Pro bono work is also considered in performance appraisals. This appears to be a popular model in the United States, perhaps in part because of the American Bar Association’s Model Rule of Professional Conduct (Rule 6.1) which provides that a lawyer should aspire to render at least fifty hours of pro bono publico legal services per year. A number of American firms exceed this aspirational target. One firm, for example, recognises 100 pro bono hours per year per associate (and more with prior approval) as equivalent to billable hours, for all purposes including compensation and bonuses. That firm’s policy also gives credit for every hour above 2100 per year (at least 2000 of which are billable) in the total for production bonus purposes.[64] One Australian firm using this model sets a pro bono budget of 5 per cent of budgeted fees. It employs a time code for pro bono work that is different from codes for billable and non-billable time in order to monitor how much time is spent on pro bono. The weekly chargeable hours budget for
Australian pro bono manual 56 1 Planning, developing and maintaining a program solicitors includes an amount for pro bono that correlates to the 5 per cent figure for the firm as a whole. Thus the expectation is that each full-time lawyer will do one and a half hours pro bono per week. Pro bono work is also taken into account in performance appraisal. In practice, some lawyers in the firm do more than an average of one and a half hours pro bono per week and others do less or none. However the figure is included in all budgets so that lawyers will not consider that they are being penalised for doing pro bono work by having to do it in addition to budgeted billable hours. Another option is to recognise a different number of hours for different levels within the firm. For example, one overseas firm provides: • For partners: up to fifty hours of pro bono service (or higher with management committee approval) will be treated for compensation setting purposes as if fees were received therefore. • For assistant solicitors: up to 100 hours of pro bono service (or higher with management committee approval) will apply towards the assistant standard hours requirement. • For trainee solicitors: all hours of assigned pro bono service will apply towards the trainee hours requirement.
Comments The extent to which this model encourages pro bono depends upon where the specified levels are set and whether they are absolute or capable of variation after an approval process. If hours per employee are set at a high level, this model can promote pro bono by giving lawyers a target for which they can aim, especially if it is accompanied by recognition of pro bono work in performance evaluations.
Evaluation, advancement and remuneration A firm will maximise participation in pro bono by ensuring that an individual’s pro bono work counts in compensation, evaluation and advancement decisions at all levels of the firm and by communicating this clearly. This may involve considering more than merely the number of hours performed. For example, one American firm’s pro bono policy provides that all lawyers in the firm should do at least thirty-five hours per year pro bono and that to encourage pro bono the firm will recognise pro bono work in evaluating and compensating both partners and associates who provide more than fifty hours. The policy goes on: We also believe that each lawyer’s contribution to the firm and community cannot be measured based merely upon the number of hours of pro bono legal services that person has provided. … The quality and level of an associate’s pro bono work will also be considered in evaluating that associate’s advancement and compensation, as they are with respect to fee-generating work. Each partner’s pro bono contributions should be evaluated by his or her partners with the same care that each partner’s fee-generating and other contributions to the firm are evaluated in determining partnership compensation each year. Firms adopt a variety of processes for making decisions about performance, compensation and advancement, including ‘360° reviews’, partner compensation meetings and/or self-assessments, performance appraisals and others. Ideally pro bono should be addressed in all such processes.
Performance appraisal and pro bono Performance appraisals provide a practical way of recognising the pro bono contributions of people within the firm. By specifically focussing on pro bono in the appraisal process, and taking it into account in decision-making, firms are sending a message that this work is valued and rewarded. This kind of recognition is particularly important in firms where pro bono hours are not treated as ‘billable’. Issues to consider in relation to performance appraisals include:
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• The best way to include pro bono as an express item on relevant documentation, for example, forms completed by the relevant employee and her or his supervisor/s. What matters should people be encouraged to address? Possibilities include numbers and kinds of matters and hours worked, nature of activities undertaken, skills acquired by reason of doing pro bono work and how work has contributed to the firm and the community. • Should the firm’s pro bono committee/partner/coordinator have a role to play? This might depend upon the size of the firm and the size of the pro bono practice. For example, in one United Kingdom firm, just prior to annual evaluations, the pro bono committee requests that solicitors provide a short memorandum describing their pro bono activities during the past year. These are forwarded, along with any additional comments from the committee, to the relevant evaluation committee. • If evaluation forms and procedures are being developed by human resources personnel, they should liaise with the pro bono committee/coordinator/partners. There may need to be training provided in how to use the forms. • How should pro bono be considered at the review? For example, pro bono can be considered in the context of employees contributing to the values of the firm. On a much more specific level, solicitors can be encouraged to identify the skills they have acquired by doing pro bono and how these can be transferred to their ordinary practice. This might be particularly important in relation to lawyers who have undertaken secondments. Solicitors and evaluation committees could be encouraged to look to pro bono work to meet any identified gaps in skills and as a component of personal development plans.
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11 Pro bono policy Developing and circulating a clear and comprehensive written pro bono policy is generally regarded as an important activity for large and medium-sized firms.[65] It demonstrates the firm’s support of and commitment to pro bono and allows individuals in the firm to know how they can become involved. It also acts as a document against which requests for assistance can be assessed and decisions justified. Sample pro bono policies are provided at 3.1 of this manual. Firms might wish to encourage broad involvement in the development of the policy, so as to heighten awareness of pro bono, generate innovative ideas and projects and maximise ownership of and participation in the program. Some commentators have stressed the particular importance of ensuring that all partners have the opportunity to become involved in creating the policy. The policy should be approved at the highest level in the firm (for example, by the board). Once approved, it should be widely and regularly (for example, annually) circulated within the firm. It should also be included in recruitment materials and in any materials prepared for orientation programs for new employees. Firms can encourage staff to provide ongoing feedback about the policy to, for example, the pro bono committee (see, for example, 3.1 Sample pro bono policies: 3). Some firms engage in periodic review of their policies – which can serve as an opportunity to evaluate and possibly restructure their programs and to create new opportunities and directions.
Contents Pro bono policies differ considerably, particularly in the level of detail included. Some firm pro bono policies are quite detailed and include guidance on procedures as well as matters of principle and structure. Other firms choose to develop separate procedures documents, such as intranet manuals, and have fairly brief policy documents. The Solicitors Pro Bono Group[66] identified three factors that have been common to the most successful law firm pro bono programs: • The policy makes it clear that the firm encourages all lawyers as well as other staff to get involved. Many US firms make it clear in their policies that the firm recognises it has a professional obligation (shared by its staff) to undertake pro bono work. Some go further by including an aspirational pro bono target for all lawyers in the firm (for example, 50 hours per year, based on the American Bar Association’s professional conduct rule, or a percentage of the firm’s total billable hours) … • The policy makes it clear that pro bono work is not treated in any way differently to paying work – both in theory and practice. • The policy includes a clear definition of what the firm regards to be pro bono work. In practice, policies tend to include: • Policy statement – this is generally a statement of commitment by the firm to the effect that pro bono is important, the firm is committed to it and why and that lawyers and non-lawyers are expected or encouraged to participate. • The principle of equal treatment of pro bono work – that it must be done to the same standard and given the same priority as the rest of the firm’s work. • A definition of pro bono for the purposes of the firm’s program, including criteria. • Responsibility for oversight and administration of the program – for example, pro bono committees, partners, coordinators (policies often state the names of the people on the committee, etc., and also spell out the responsibilities of the committee, pro bono partners or others involved); • Intake, approval and assignment procedures and supervision, including conflicts checks, opening and closing files and the like (some firms put the detail of these procedures in a separate document).
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• How pro bono time is recorded and credited. • How costs and disbursements are to be dealt with. Some firms also include information about: • the goals of the program and/or evaluation criteria (see, for example, 3.1 Sample pro bono policies: 4); • referrals and the referral process; • budgets and/or targets.
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12 Costs and disbursements This section discusses policy questions in relation to costs awards in litigious pro bono matters and options for meeting internal and external disbursements.
Costs Most firms include within their pro bono programs work done at reduced fees or significantly reduced fees, as well as work done without fees. A minority of firms also include work done on a speculative or contingency basis, or some forms of such work.[67] There have been debates, as yet unsettled, about whether all of these arrangements are appropriately called ‘pro bono’. Firms acting pro bono in litigation matters need to decide whether they will seek to recover their costs (and disbursements, if paid by the firm) in the event that the matter is concluded in their client’s favour either through settlement (with a costs component to it) or pursuant to a court/tribunal order. Firms also need to decide whether their recovery will be limited to the costs ordered by the court or agreed to in settlement. This is essentially a policy question – whether the firm’s definition of pro bono contemplates any fees being paid personally by the client. In either case, if firms decide they will seek to be paid their costs in the event the litigation is successful, this will need to be addressed in a conditional costs agreement. In relation to the threshold policy issue of cost recovery in pro bono matters, some might suggest that it is not appropriate for lawyers acting pro bono to be paid costs – even by the opponent pursuant to a court order – on the basis that the work is done out of a sense of professional responsibility rather than to earn fees. On the other hand, why should an opponent benefit from the fact of pro bono assistance to the other side? In practice, many firms have conditional costs agreements allowing for recovery of costs in pro bono matters pursuant to court or tribunal order (or out of a settlement including costs), but limiting recovery to the extent of the order. Such matters arguably retain their pro bono character because the client is not required to pay for the legal services provided.[68] Whatever arrangements are adopted by a firm, they must be communicated clearly to the client (see 2.3 Letters of engagement). Note that the rules of court establishing court-based referral schemes explicitly entitle a practitioner to recover costs and disbursements if a costs order is made in favour of the pro bono client.[69] These provisions apply only if a referral is made under the relevant court’s scheme.
What to do with recovered costs In the spirit of pro bono, firms could consider the benefits of allocating moneys received from successful pro bono litigation to their firm’s pro bono budgets, and/or specifically towards meeting disbursements in other pro bono cases. For example, the pro bono policy of one firm provides: The firm has a strict policy whereby any costs recovered are added to the existing pro bono budget with the firm’s financial contribution to the pro bono program remaining the same (see 3.1 Sample pro bono policies: 1). Similarly, the following appears in the pro bono policy of one American firm: Where pro bono matters are taken on a no win – no fee basis, and are successful, any contingent or court-awarded fees received in connection with the successful resolution of the matter are used to defray the firm’s out-of-pocket costs for pro bono matters. Another option is to donate the monies recovered to a charity. One American firm acted pro bono in a class action of 25000 pre-school children in a claim against the New York City and State Boards of Education to comply with state law requiring them to provide certain educational services. The firm
Australian pro bono manual 61 1 Planning, developing and maintaining a program donated the substantial legal fees received from the opposition in a settlement to various children’s charitable organisations.[70] Another American firm providing legal assistance in an outreach service donates any proceeds of cases run on a contingency fee basis to local and national charities.[71]
Disbursements Firms should decide on a policy position for charging internal and external disbursements in pro bono matters, and include this in the firm’s pro bono policy and procedure documents. Even if the firm’s policy is that decisions on disbursements are to be made on a case-by-case basis by the supervising partners, this should be reflected in the firm’s policy and procedures documents so that all are aware of this position. Firms may decide on a number of ways of handling disbursements. In some firms this may change from matter to matter, depending on the ability of the client to bear those costs. The ways in which disbursements in pro bono matters are handled by firms include: • charging no disbursements (meeting the cost of both internal and external disbursements); or • not charging for internal disbursements and charging only for external disbursements; or • charging for internal disbursements and/or external disbursements only above a certain cap –for example, the firm may adopt a policy whereby they will not charge the client for disbursements in respect of photocopying, postage, telephone and fax charges unless they exceed, for example, $500 (see 3.1 Sample pro bono policies: 2) or that the firm will cover the first $200 of internal disbursements and $150 of external disbursements on each matter (see 3.1 Sample pro bono policies: 6); or • charging both internal and external disbursements. In some conditional costs agreements for litigious matters, provisions may be made whereby disbursements are payable only if there is a successful outcome in the matter and out of any costs order (see discussion in 2.3 Letters of engagement and 3.3 Sample letters of engagement). As with costs, the arrangements for disbursements should be communicated clearly to the client, and set out in the letter of engagement (see 2.3 Letters of engagement). Firms should explain to the client what kind of costs are disbursements, and whether the pro bono client will be responsible for these. It is important that the pro bono client be consulted, and agree to, any liability for disbursements as they arise. The client should be informed whether the firm considers such expenses are necessary for the continuation of the matter. Firms also need to be aware of any disbursement assistance that might be available. One firm’s pro bono policy specifically provides that ‘every effort will be made to make use of Court fee waiver arrangements, the various bar pro bono schemes and schemes such as the Law Society of New South Wales pro bono disbursement fund and the Law Aid disbursement fund, where appropriate’ (see 3.1 Sample pro bono policies: 6; see also 4.5 Disbursement assistance). Costs such as filing fees for courts and tribunals may be waived for indigent litigants – firms should check the relevant court/tribunal rules. Limited grants of legal aid may also be available in some jurisdictions for disbursements. Ideally firms should consider maintaining a degree of flexibility in relation to the payment of disbursements. Firms undertaking a pro bono matter could consider budgeting some funds to cover the necessary expenses, despite any disbursement cap, if the client is clearly not in a position to pay for them, and disbursement funding is not available. As mentioned above, some firms allocate fees recovered from other pro bono matters towards meeting disbursements in these kinds of cases. Many firms, including these, choose to confer discretion upon their approval authority, or supervising partners, to exceed caps or pay disbursements in cases of need (see, for example, 3.1 Sample pro bono policies: 2).
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13 Measurement, record keeping and evaluation
What gets measured gets valued, and what gets valued gets done.[72] This section discusses why, and how firms should measure, maintain records and evaluate their pro bono work.
Why measure and keep records of pro bono efforts? Measuring and keeping records of pro bono efforts allows a firm to assess whether its resources are being used effectively and efficiently, and whether the pro bono program is meeting its goals, complying with its policy and operating within budget (if any). Other practical reasons for a firm wanting readily accessible information on its pro bono efforts are to: • demonstrate the firm’s contributions and commitment to the community; • use it in the firm’s public relations, marketing and communication activities; • use it in recruitment and training of employees, and in retaining employees; • provide insights on how the program can contribute to meeting strategic business goals of the firm; • allow the firm to respond accurately to surveys on pro bono, for example, the periodic Australian Bureau of Statistics survey of legal practices; • facilitate the provision of accurate statistical information to pro bono scheme coordinators at the completion of pro bono matters, such as the Law Institute of Victoria’s Legal Assistance Scheme; • evidence compliance with a firm’s contractual obligations with respect to the provision of pro bono legal services by the panel firms who have successfully tendered for government legal work with the Victorian Government under their Legal Services Panel scheme. Firms on the panel must record the pro bono work done, the dates on which it was done, the name and level of each of the lawyers performing the pro bono work and the number of hours of pro bono work undertaken.
What to measure and record? A firm may wish to measure and record both quantitative and qualitative information about its pro bono activities.
Quantitative information Reliable data on the cost to the firm of pro bono work is important in enabling the firm to assess its program and the contributions of program participants. For example, firms can, and should, collect information on the pro bono participation and performance of their lawyers and staff to enable firms to accurately quantify and track the costs of its allocation of resources. (This would include lawyer and other staff time contributions, and costs to the firm of secondees or pro bono coordinators, if any, and any other costs such as disbursements.) Information that a firm might wish to measure and record could include: • the number of pro bono clients assisted/number of cases handled;
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• sources of referral (this will assist the firm to evaluate whether the sources of referrals are working to their optimum: firms may need to better develop their relationships with referring agencies); • the types of pro bono matters and areas of law (this will assist the firm to evaluate the areas where pro bono need is evident as well as areas in which the firm is not receiving referrals); • client profiles - this could include demographic information, such as gender, ethnicity, location of client. Information of this kind will enable the firm to identify the kinds of clients receiving (and by implication, those not receiving) assistance, which in turn can inform decisions about targetting resources and/or developing referral sources; • the number of hours worked, and pro bono hours as a percentage of total billable hours; • value of hours worked; • the number of people in the firm participating in pro bono work (lawyers and non-lawyers) and participation levels for different divisions and levels (for example, senior associates, salaried partners); the firm may want to achieve a more even distribution of pro bono work, and non- participation by people from particular levels or divisions may indicate an obstacle that needs to be addressed (see 1.9 Involvement of all levels); • any other pro bono activities undertaken, for example, contributions to inquiries and other law- reform initiatives. It is also useful to keep records of: • the number/percentage of referrals that fall within and outside the firm’s targeted areas, if any; and of those, the number/percentage of matters that are taken on or declined; • why referrals were declined (for example, conflict of interest, outside target area, other source more appropriate for assistance, client had means, no current expertise in area, no lawyers available); and where they were referred to. The above information will assist the firm assess whether it is effectively identifying and targeting areas of pro bono need, and whether it needs to adjust or restructure its program or better coordinate its contacts and sources of pro bono work to facilitate more appropriate referrals (see 1.6 Identifying needs and sources of work and 2.1 Casework procedures).
Qualitative information Contributions to, and outcomes and benefits of, pro bono work cannot always be measured by reference alone to quantitative data or financial criteria. Methods of measuring should also accommodate the less tangible benefits, contributions and outcomes. Measurement, recording and evaluation of pro bono outcomes may include quantifying results, for example, where a pro bono matter results in a client receiving compensation from an unfair dismissal action the amount can easily be quantified and recorded. Other matters resulting in a non-financial benefit can also be identified and recorded. Some matters have significant benefits to the larger community. Some less tangible outcomes can be analysed (and quantified to some extent) by client satisfaction surveys, or interviews with key community representatives or focus groups. Furthermore, firms should gauge the impact of pro bono work on those undertaking the work, and on the firm itself. For example, the firm could ask whether pro bono work has enhanced staff job satisfaction and morale. Has the work brought new skills? If so, what skills? The firm could seek to assess whether the pro bono work has positively promoted the firm and extended its image as a good corporate citizen. Examples of the qualitative information which a firm might record include the following:
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• Information about case outcomes and community benefits. For example, one large in-house corporate pro bono program in the United States prepared wills and advance directives for over 100 low-income and elderly clients in Atlanta. While the direct benefits to the clients themselves could be easily quantified, the benefits to extended families (who would thereby avoid the costs and difficulties of intestacy) and others (such as medical providers who would hopefully avoid some uncertainty involving medical treatment) are also worthy of recording in terms of positive outcomes.[73] • Benefits to the firm, including measuring the impact on staff attitudes, morale and loyalty, and satisfaction with the work, including the effect on team building and skills acquisition (see, for example, 3.9 Evaluation form which seeks to elicit this kind of information). • Whether the work has enhanced the reputation or standing of the firm with particular clients or in the general community. • Feedback from referring agencies and communities served by the firm’s pro bono work.
How to measure and record? Firms may already have some of the quantitative information referred to above on their file- management or billing systems. Some firms with established pro bono practices set up customised databases for pro bono matters to capture a range of information, including client profiles (gender, ethnicity, income source, location), area of law and referral source. Either the database and/or the billing system should record the type of work being performed so that the firm can see how pro bono time is being allocated (for example, casework and advice, law reform, pro bono administration, CLE, training). The firm’s billing system should also capture who is doing the work, for example, partners, senior associates, and how much work is being done. One of the advantages of setting up databases for recording information about pro bono work is that they can be used as both measurement and supervisory tools. (See, for example, 3.5 Pro bono database and sample monthly report. This kind of database is also useful for recording information such as court or limitation dates. See also discussion at 2.2 Supervision.) Information in the database can be regularly updated by staff involved in the matter. Relevant segments of information can then be extracted for different purposes such as financial reporting, current status reports and for measuring demographic information about clients or to ascertain where referrals are, or are not, coming from. Pro bono coordinators, committees or others can periodically access the information to compile reports, supervise work and evaluate the program. Some of the ways qualitative information referred to above may be recorded include: • recording comments in a register when a paying client makes favourable mention of pro bono work done by the firm; • tracking and recording media references to the firm’s pro bono work; • obtaining testimonials from beneficiaries and/or participants in pro bono programs; • incorporating questions (and recording information) about the firm’s pro bono practice into staff appraisals, intake interviews and orientations; • devising surveys and/or evaluation forms for staff (see discussion below and 3.9 Evaluation form and 3.10 Matter closure report).
Evaluation Measuring pro bono can provide information on whether, and to what extent, pro bono has created ‘added value’ for the individual pro bono providers, the individuals and communities served and the strategic business goals of the firm.[74]
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An accessible and well-maintained database will assist a firm to assess and evaluate its pro bono efforts both internally and externally. The information that can be extracted from pro bono databases will guide the firm in determining the kinds of matters it takes on, and better enable it to identify trends that will in turn assist with evaluation of the work done and with the planning, development and extension of its program. Clearly, the more detailed the information recorded, the better placed the firm is to properly evaluate its pro bono program. Having records of pro bono work provides information and feedback to improve the program: Do additional referral sources need to be identified? Which agencies are not making referrals? Are the types of clients being assisted consistent with the targets set for the program (if any)? Are there some departments who are not participating in the program? Why not? How could they? Are intake procedures working well? What kinds of cases are being refused? Can and should the program be adjusted to cater for those cases? One firm uses a ‘matter closure report’ to record information and assist in evaluating its pro bono matters and program (see 3.10 Matter closure report). Another firm asks participating lawyers to complete an evaluation form at the end of each pro bono matter (see 3.9 Evaluation form) and has specific procedures for evaluating secondments. These include the secondee providing reports to the pro bono coordinator after three months and at the conclusion of the secondment. Some firms, as part of their pro bono policy, will set criteria by which they assess the effectiveness of their policy and program generally (see, for example, 3.1 Sample pro bono policies: 4). This might involve the pro bono partner and pro bono committee asking: • Does the scheme deliver results to clients? • Has the scheme operated within budget? • Have referrals been made to appropriate related services? (See 2.1 Casework procedures.) Another firm undertakes an annual ‘audit’ of its pro bono program using guidelines which include measuring costs and benefits, and assessing the extent to which awareness and interest in pro bono has spread among clients and employees, extent of staff involvement, obtaining feedback from pro bono clients and views of those involved in the work on a day-to-day basis and considering the amount of media coverage.
Quality assessment Finally, any evaluation process should involve assessing the quality of the pro bono work undertaken by the firm (see 1.15 Standards). Clearly, all pro bono work must be performed to the same high standard as all other work in the firm. Ideally, compliance with this standard should be monitored and evaluated, and would include having systems in place to ensure that pro bono work is properly supervised.
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14 Training and skills One commonly identified barrier to the provision of pro bono legal services is the mismatch that can arise between the skills and knowledge of lawyers willing to undertake pro bono work and the skills necessary to provide the legal and related services typically required by pro bono clients. This section notes a number of possible responses to this dilemma. First, the mismatch is less serious than sometimes supposed – lawyers have a range of generic and specialist skills that can be adapted and built upon. Moreover there are opportunities for firms to start from their existing skill base to identify ways in which those particular skills may be of use to disadvantaged communities. Second, there are some areas where it is relatively easy to acquire the necessary skills and knowledge through research, training or supervised practice. Third, it is possible to explore models of pro bono practice that involve complementary partnerships between pro bono lawyers with particular skills and community legal sector or legal aid staff with different skills.
Adapting the current skill base Most lawyers will have a range of skills that can be put to use in the interests of disadvantaged clients. The generic skills of a typical lawyer, namely legal research and writing, fact-gathering, the ability to marshal persuasive arguments, advocacy and negotiation skills and particular specialist skills can all be used to assist disadvantaged clients or to meet the needs of community organisations created to provide services to those clients. Lawyers are asked on a regular basis to do things they have not done before. They are able to do this because they know the framework of a particular area, where to look for detail and where to obtain support including conceptual and strategic advice. The law required to advise disadvantaged clients is not always so complex that a competent lawyer with adequate time and access to appropriate support cannot readily provide useful assistance. In a similar vein, in developing a pro bono program the firm could work from its existing skill base to identify ways in which it can use the skills it does have to meet important community needs. One obvious area relates to the needs of community organisations themselves, which may include advice, drafting, negotiation or representation needs in areas such as tax, contract, incorporation and governance, employment, intellectual property and government tendering. An emerging potential area for increased pro bono work is the possibility of providing legal support to ‘social entrepreneurship’[75] and community building activities.
Training for pro bono There are areas of law of particular relevance to the legal needs of disadvantaged clients where it is relatively easy for potential pro bono lawyers to build on their generalist skills with a modest amount of training. Some examples are explored below. There are, of course, other areas where adequate advice or representation will require an in-depth knowledge of technical law and/or considerable experience in the relevant jurisdiction. This is not likely to be readily obtained in, say, commercial practice and not practicable to impart in a few hours’ or days’ training. The following examples illustrate the possibilities for training for pro bono lawyers. • The New South Wales Refugee Advice and Casework Service coordinated a training program for PILCH (NSW) who brought together 150 lawyer members to provide assistance to holders of temporary protection visas. In Western Australia, CASE for Refugees has developed a similar model and in Victoria the Refugee and Immigration Legal Centre will be training participating lawyers for PILCH Victoria. • The Homeless Persons’ Legal Clinics in Queensland and Victoria provide training to participating lawyers on issues such as social security, mental-health legal issues, housing and tenancy, victims of crime assistance and fines and infringement notices.
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• Some firms organise training for their lawyers to participate in particular pro bono services, for example, to provide advice and assistance at a community legal centre (CLC) or at some other community advice clinic,[76] or to provide assistance in a particular area of law, for example, migration law or child-protection proceedings.[77] Firms may make their pro bono training available to lawyers in other firms, as well as to their own lawyers. For example, Blake Dawson Waldron has twice designed and organised training programs, each attended by around forty lawyers from several firms, to equip participants with the skills necessary to represent clients in defended applications for domestic violence orders. Other areas in which training could assist pro bono practice include: • the legal aid system, including eligibility for legal aid, and the role of community legal centres, key referral agencies and welfare and other client support services; • client interaction, including interviewing and communication,[78] challenging behaviour and divergent expectations. Training activities are a good way of forging relationships with key community agencies, such as welfare rights, consumer credit and other legal centres and tenancy advice services. The training programs referred to above frequently use staff from CLCs, legal aid commissions and other agencies to act as trainers. Given the limited resources of these community agencies, cooperative inter-firm training programs are highly desirable.
Partnership models Pro bono lawyers can work in partnership with community sector or legal aid lawyers who have all or some of the relevant skills to assist them to spread their expertise over a greater number of matters. Such arrangements can involve firms providing research support or case mentoring to a solicitor based in a community organisation or legal aid with conduct of a matter, or could involve some kind of co-counsel arrangement. An example would be a community sector lawyer with good technical knowledge of an area of law (as well as the other skills of a legal aid lawyer) benefiting from a partnership with an experienced litigator. Alternatively the strengths of the firm and CLC could be applied to different stages of a matter. In one case a CLC acted and obtained certain orders for a client in an area of law in which they had expertise. Freehills then assisted the client with the enforcement of those orders.
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15 Standards Pro bono work should, of course, always be done to the same standards of attention, priority and professional performance as fee-paying work. All professional codes binding on lawyers apply equally in respect of pro bono work. However, unlike some other countries, there are no provisions in codes of practice developed by Australian legal professional associations expressly dealing with pro bono work. The National Pro Bono Task Force did not perceive a need for a separate comprehensive code of practice governing the provision of pro bono services: the governing standards should be identical regardless of fee-paying status.[79] The Task Force considered that pro bono clients should be expressly assured of this position in professional practice rule(s), and recommended that such provisions be developed by the Law Council of Australia and the National Pro Bono Resource Centre.
United Kingdom protocol for pro bono legal work In the United Kingdom a Protocol for Pro Bono Legal Work developed by the Solicitors Pro Bono Group and the Bar Pro Bono Unit sets out the following key standards for pro bono legal work: [80] How should Pro Bono Legal Work[81] be done? 2.1 Pro Bono Legal Work should always be done to a high standard. That means in particular that: 2.2 The availability of appropriate publicly funded legal advice or representation should always be considered before a lawyer undertakes Pro Bono Legal Work. 2.3 When a lawyer is requested to agree to undertake a piece of Pro Bono Legal Work the lawyer should give his/her decision within a reasonable time. 2.4 The terms on which the Pro Bono Legal Work is undertaken including the circumstances in which the relationship may be terminated should be made clear at the outset. 2.5 The Pro Bono Legal Work should only be undertaken by a lawyer who is adequately trained, has appropriate skills and experience and, where necessary, is adequately supervised for the work in question. 2.6 The lawyer undertaking a piece of Pro Bono Legal Work (and where appropriate his or her supervisor) should have no less than the minimum level of legal expertise and experience as would be required if the particular work in question was paid work. 2.7 In no case should the client be misled as to the lawyer’s skill or ability to undertake the Pro Bono Legal Work. 2.8 Once a lawyer has agreed to undertake a piece of Pro Bono Legal Work the lawyer (and if appropriate his or her firm) must give that work the same priority, attention and care as would apply to paid work. 2.9 Pro Bono Legal Work must not be undertaken without appropriate insurance. 2.10 A lawyer in doubt or difficulty in relation to a piece of Pro Bono Legal Work should seek advice from a Pro Bono organisation or from the Bar Council, the Law Society or the Institute of Legal Executives. ‘Ancillary provisions’ in the United Kingdom Protocol include: 2.1 Non-lawyer staff within a set of chambers or a firm should be enabled to make the same contribution to the undertaking of a piece of Pro Bono Legal Work as they would for a piece of paid work. 2.2 Law students, pupil barristers and trainee solicitors have an important contribution to make to Pro Bono Legal Work. However that contribution must be properly supervised and must to preceded by proper training. In the absence of pro-bono-specific Australian standards, firms might consider using the above standards as a guide in developing their pro bono practices.
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16 Reflections of a pro bono coordinator The following reflections have been contributed by the experienced pro bono coordinator of a large firm. Conducting a pro bono scheme can be extremely rewarding for firms, but it is important to appreciate that its success requires more than simply the allocation of a certain number of hours to pro bono work. In short, a pro bono scheme requires a significant cultural commitment by the firm. Pro bono matters cannot be conducted ‘on the cheap’. Pro bono clients are owed the same professional responsibilities as all other clients, and if a law firm is to take its pro bono responsibility seriously, then it must ensure that pro bono matters are given an appropriate level of resources. Pro bono work is not an excuse for cutting corners or simply a training ground for junior lawyers. A law firm should recognise that conducting a pro bono practice may require skills and training additional to those needed when acting for commercial clients. It will be unfair to both your lawyers and your pro bono clients to simply assume that lawyers who ordinarily conduct commercial practices for corporate clients will automatically pick up the necessary community legal skills as they go along.
What type of pro bono work?
The firm should decide in advance the type of pro bono work that it is prepared to conduct. It may be that acting for charities or community organisations will involve the type of work and legal issues much closer to a firm’s regular commercial practice, and a pro bono practice directed entirely at charities or community organisations may involve less obvious changes to the way in which you conduct your practice. If the firm chooses to conduct matters for individual clients, then serious consideration must be given to the areas of law in which assistance will be offered. Matters should not be conducted unless the partnership of the firm has the capacity and expertise to supervise the files. It is inappropriate to use pro bono clients as an opportunity to train lawyers in new areas of law.
Issues to consider
Acting for individual clients can often bring a number of challenges. If your firm does not ordinarily act for individuals, and is more comfortable with corporations, then it will be necessary for you to prepare your lawyers honestly for the challenges that lie ahead. A commitment to pro bono work must come with a commitment to deal sensitively with the requirements of pro bono clients. Many pro bono clients are unfamiliar with the legal process. Some may feel uncomfortable speaking with lawyers. It is important to ensure that your lawyers are confident and capable of creating a professional relationship with clients which allows them to obtain appropriate instructions, and to give clear advice in a way which the client can understand. Lawyers should also be prepared for the fact that individual pro bono clients may require more time than commercial clients. Some may ring frequently and may prefer to receive advice face to face, as well as in writing. Some issues which you should consider include: • Individuals can sometimes be emotional and, occasionally, demanding. Some may be so distressed by what is confronting them that they may cry. Your lawyers need to be aware of these possibilities and be prepared to respond appropriately. • Many clients will never have needed a lawyer before, and may not understand too much about the legal system. They will need to have carefully explained to them their rights under the firm’s terms of engagement, and the firm’s responsibility to act only on the client’s instructions. You must not simply assume that if someone does not ask a question, that they understand or agree with what you are suggesting.
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• Lawyers should be properly trained to be patient, and modify their ‘legalese’, in order to communicate at an appropriate level of language. It is essential to ensure that your lawyers are able to do so in a manner that is not seen as patronising. • If your pro bono practice is going to involve new areas of law, then you should consider what training of staff will be necessary. A community legal centre or other community group may be able to provide your staff with training in areas of law with which those community organisations are more familiar. • If your clients will require interpreters, it is important that your staff be familiarised with how to use an interpreter. The firm should also develop a policy as to who will pay for those interpreter costs. • Some clients may find it difficult to travel to your office, and the firm needs to consider whether it will arrange for its lawyers to visit clients at a more suitable venue. • The firm needs to be prepared to have pro bono clients sitting in reception. They should be made to feel as comfortable and as welcome as all other clients of the firm. Some pro bono clients will have unrealistic expectations about the prospects of their matter. A significant part of a lawyer’s task is to advise the client of the reality of their prospects. An important part of our pro bono role is often to do no more than to advise a client that they should not continue with a matter, that they should settle or withdraw. Many clients need to hear that advice, and often for a new solicitor, the idea of providing disappointing advice to clients can seem difficult. It is therefore important that firms also provide some training for lawyers as to the appropriate manner in which to provide advice that a client does not necessarily wish to hear.
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2Procedures and practice issues 1 Casework procedures This section discusses some issues relating to casework procedure. Firm procedures could usefully cover the following topics: • intake criteria; • assessment and approval; • allocation, monitoring and supervision; • file opening and matter management; • conflicts check; • letter of engagement; • file closure; • client access and referrals. Some firms also develop specific instructions for support staff, for example, file-opening instructions for secretaries.
Intake criteria Intake criteria assist the firm decide what work to take on. Some firms include criteria in their definition of pro bono (see 1.3 Defining pro bono for the firm), others specify them elsewhere in their policy or in their procedures. Criteria might include consideration of the source of 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, and the level of expertise and the availability and willingness of a lawyer 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 the criteria (see, for example, 3.7 Application and approval forms). For an example of criteria adopted by one firm, see 3.2 Sample procedure. Criteria relevant to intake, assessment and approval processes should be communicated to pro bono referral schemes and other referring agencies to minimise inappropriate referrals.
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 (see 1.8 Coordinating pro bono work in the firm). In other firms, general partners, team/division leaders or other particular 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. Firms will also need to consider various procedural issues, for example, will a client interview be necessary before approval is given? If so, who will attend the interview, and where will the interview take place? This is an important consideration: some pro bono clients may not have the same degree of legal sophistication as the firm’s usual clients and/or may be intimidated by an interview in the firm’s offices. It may be more appropriate for interviews to take place at the offices of the referring agency.
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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. Some firms place fee or hours caps on each pro bono matter. 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 (see, for example, 3.7 Application and approval forms). 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. Such a procedure would ideally include a designated time-frame for reply to the application (for example, notification within forty-eight hours of application).
Declining a matter In some cases, for example, where the firm has reviewed documents provided by a client, it might be appropriate to formally decline a matter. Any such letter advising that the firm is unable to assist should give general 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 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 program (see 1.13 Measurement, record keeping and evaluation).
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 be the coordinator, although in at least one firm, the memorandum to the responsible solicitor is signed-off by the pro bono partner for that office. In some firms, pro bono partners or others (for example, team leaders) may allocate matters. A range of approaches is adopted in determining allocation of matters, including emails to all staff or to lawyers 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 lawyers in relevant practice groups; or contacting a partner in the relevant area to see who in the group might be able to take on the matter. A lawyer’s expertise, availability and interest in the matter should be considered when allocating matters. In some cases lawyers 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 lawyers to work on cases they are particularly interested in. There are various procedures adopted for formally allocating matters once particular lawyers 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. See, for example, 3.8 New matter memorandum and 3.6 Referral and assessment form to which the memorandum refers. Firms with structured pro bono programs 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 (see
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2.2 Supervision), internal and external reporting and evaluation (see 1.13 Measurement, record keeping 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 programs 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 (see 1.10 Counting and crediting time) and whether a fees or hours cap is to be placed on the matter. One firm requires the dated signature of the pro bono coordinator or partner on the first page of the matter opening to indicate that it is approved under the firm’s pro bono scheme and the fee cap (if any) is authorised. 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 lawyer’s time on a pro bono matter, a firm may consider whether the lawyer 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 (see 1.10 Counting and crediting time). Any file-management system or software will need to reflect the relevant arrangements for charging in the matter, for example, no fees, reduced fees or other arrangements. 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 procedures document should give clear instructions for each step involved. For example, are there specific pro bono codes or prefixes for pro bono matters? How is the client to be described? Is a partner’s signature necessary? What information needs to be entered about chargeable basis and disbursements? How is a fees or hours 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 program. This is discussed in further detail in 1.13 Measurement, record keeping and evaluation.
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. For a discussion of some of the issues in relation to conflicts of interest, see 2.4 Risk management.
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 fee-paying 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. In general, the letter of engagement should include: • the scope of the assistance to be provided with reasonable particularity;
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• disclosure of the basis of any costs (including fees and disbursements) to the client; • if a contingency arrangement is entered into, the rate at which costs will be payable. Letters of engagement and costs are discussed in detail in 2.3 Letters of engagement and examples can be found at 3.3 Sample letters of engagement.
File closure Pro bono matters should be closed upon completion, as other matters are, ensuring bills 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. In the interests of recording time and costs expended on pro bono matters and to assist with evaluation of their pro bono programs, some firms include matter closure reports or evaluation forms as part of their pro bono matter management procedure (see 3.9 Evaluation form and 3.10 Matter closure report). 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, lawyer, the firm and others from the matter. Evaluation of a firm’s pro bono program is discussed in 1.13 Measurement, record keeping and evaluation.
Client access and referrals Sources of referrals are discussed in detail above in 1.6 Identifying needs and sources of work. 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 referral schemes, community legal centres (CLCs), Aboriginal and Torres Strait Island legal services (ATSILSs) and legal aid 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 program, 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 program 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 program. 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 program. • 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 a CLC or the staff member with carriage of the matter to avoid confusion.
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• 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, a professional association or trade union in the case of some industrial law matters). • Time frames within which the firm will assess and approve (or decline) applications for pro bono assistance (ideally, within forty-eight 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 a 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, Centrelink, 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 bureaux, social work and counselling services and local council transport services. Firms and clients may also need the assistance of interpreter services (see 4.6 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.’ (An important issue arises for clients with disabilities. Firms should be conscious that clients with disabilities are not referred to disability agencies because they have a disability: the client’s legal problem may have little or nothing to do with their disability.) CLCs often maintain referral manuals of services available in local areas. People working in pro bono should familiarise themselves with the kinds of services available, and liaise with CLCs to maintain up-to- date lists of these services and/or to obtain assistance in making appropriate referrals.[82]
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2Supervision This section considers direct and indirect means of supervising the conduct of pro bono files. The starting point is the principle that pro bono work should be subject to the same standards of attention, priority and professional performance as any other work undertaken by the firm. Supervision arrangements adopted by the firm should ensure this outcome is achieved and that the firm’s resources are used efficiently and effectively. Firms generally provide that pro bono matters should be subject to the same supervision as matters for fee-paying clients. Pro bono matters may also benefit from additional supervision as discussed below. Firms allocate supervising partners to pro bono files and the usual rules apply in relation to sign-off of letters and advices. In addition, established practices for periodic file review are followed for pro bono matters. One firm’s pro bono policy provides: In all instances where a solicitor is primarily responsible for handling a particular pro bono matter the work must be supervised by a partner in that solicitor’s department in the same manner and with the same diligence as work performed by the solicitor for a fee-paying client. Good pro bono practice in medium and large firms generally involves some kinds of additional and different supervision arrangements. These might be because: • the nature of work or practice sometimes differs from the firm’s other casework, for example, involving lawyers participating in community advice clinics; • pro bono clients may not be as familiar with legal processes and lawyers as commercial clients and may not themselves be in a good position to monitor or query the quality or timeliness of service provided; • in relation to pro bono matters, the client may not be engaging in the kind of supervision or scrutiny that arises from paying for a service. Some pro bono work entails matters or projects that cut across different practice areas in the firm. Indeed, for some firms, part of the attraction of pro bono lies in the opportunities it can provide for lawyers in different divisions of the firm to work together in a team. Appropriate supervision arrangements are needed for these kinds of matters and projects, which may well involve particular partners or associates supervising lawyers working in other practice groups. Similarly, where a lawyer in the firm has a particular interest in a pro bono cause or organisation but does not work within the practice group with relevant expertise, the firm could accommodate that lawyer by ensuring that they work with a person at supervisory level from the practice group with the expertise.
Supervision of time Requiring records to be kept of time spent on pro bono work facilitates supervision. The firm can allocate the function of reviewing those records to a supervising partner and/or pro bono partners/committees/coordinators or someone else to see that work is being done and that reasonable amounts of time have been worked on particular matters.
Supervision through billing arrangements and financial reporting Firms that treat pro bono work as billable hours require bills or ‘billing guides’ to be prepared on pro bono matters (see 1.10 Counting and crediting time). As with other matters, these can be adjusted to reflect and give credit for time reasonably spent on a matter. Some of these firms also require at the outset of pro bono matters that estimates are made of likely work and disbursements and caps are set for each matter. This sets a boundary for the matter that can be adjusted if necessary. Processes of setting estimates, approving and revising capped expenditure all result in accountability and supervision of pro bono matters.
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In one firm, as part of the monthly ‘billing’ of the firm’s pro bono files, a monthly financial report is produced for every pro bono file, showing the solicitor(s) working on the matter, the supervising partner and the hours of work recorded in that month. This report gives the pro bono coordinator and the committee an indication of what is or is not happening on each file. If, for example, the report shows that no work has been recorded for a matter for some time, the coordinator or pro bono partner can follow this up by liaising with the partner responsible.
Supervision by pro bono partners, coordinators and/or committees In part to ensure that pro bono matters are given the same priority as fee-paying work, some firms have given supervision and monitoring functions to their pro bono partners, coordinators and/or committees who exercise these functions in a variety of ways. In one firm the pro bono policy provides that pro bono files are supervised in the usual manner by the responsible partner and all correspondence is to be signed by the lawyer’s supervising partner. In addition, the policy requires lawyers to provide three-monthly email reports for each pro bono file to the pro bono committee. Policies that treat pro bono hours as billable hours also provide supervision in relation to ‘billings’ on pro bono files. In one firm, a draft bill is prepared on each file and sent to the pro bono partner who then allocates to the practitioner an appropriate equivalent in costs, based upon the reasonable time spent on the matter (see 3.1 Sample pro bono policies: 3). Another firm’s policy provides that there will be minimum six-monthly reviews of all pro bono work undertaken in the firm and that, ‘The pro bono partner should obtain information from clients regarding their satisfaction with [the firm’s] pro bono program and the lawyers who provide services under it’. In another firm, pro bono matters are supervised by the use of a ‘pro bono database’. (See 1.13 Measurement, record keeping and evaluation and 3.5 Pro bono database and sample monthly report). Information on every pro bono matter being conducted by the firm is entered on the database. It includes the type of matter, source of referral, the names of the solicitor(s) working on the matter and the supervising partner. Solicitors are required to make monthly updates to the database concerning the ‘status of the matter’ and the pro bono coordinator sends a monthly email to solicitors reminding them of this requirement. The pro bono coordinator can then print out from the database a simple summary of current pro bono activity (a ‘monthly report’) showing the responsible solicitors and partners and status of the matter (see 3.5 Pro bono database and sample monthly report). Each partner supervising a pro bono matter is sent an email advising them of their particular pro bono matters and the current status of each. The coordinator reviews the monthly report to make sure that pro bono matters are progressing appropriately and takes whatever steps are necessary to progress matters. The coordinator meets monthly with a partner from the pro bono committee and any unresolved supervision issues can be raised with that partner. Additional supervision in this firm also occurs through a productivity summary sent by the accounts department to the pro bono coordinator each month. This summary shows the number of hours spent on pro bono each month by each lawyer. The coordinator looks at these recorded hours to check that people are not under-recording or mistakenly recording their pro bono time. In addition, the coordinator uses this information to work out how many pro bono hours are being worked in each group in the firm (each group has a target number of hours). The coordinator then sends an email to each group’s ‘Pro Bono Point Partner’ advising them how many hours their group has done as a percentage of the group’s total budget. Another firm utilises a system where the coordinator oversees the opening of all pro bono files and the delivery of each file to the appropriate lawyer in the office with the fee and hour estimates highlighted. The coordinator retains a ‘dummy file’ in relation to each file opened under the program. Each month the coordinator, with reference to the ‘dummy file’, follows up with the relevant staff member to ascertain progress on the matter. The coordinator also monitors general progress on pro bono matters through a monthly billing process that generates a set of financial reports similar to those discussed above.
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Pro bono partners and coordinators in some firms are also responsible for carrying out day-to-day supervision of particular pro bono matters in areas where they have expertise.
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3Letters of engagement This section discusses issues that are particularly relevant to letters of engagement in pro bono matters. Firms’ general obligations to clients in relation to other matters customarily included in letters of engagement (for example, how to deal with trust money and privacy legislation disclosures) are not discussed. Included in 3.3 of this manual are sample letters of engagement for pro bono matters used by some firms. Legislation dealing with lawyers’ obligations to their clients varies in each state and territory. Firms should ensure that any letters of engagement and costs agreements they use comply with the relevant statutes. There is no statutory obligation for legal practitioners to use letters of engagement, however, there are statutory obligations for lawyers to disclose to their clients information about their costs or charges, which generally include that such disclosure be in writing, and up front. Most firms include costs agreements within or attached to their engagement letters. Practitioners should refer to the requirements of the legal profession legislation relating to costs disclosure and costs agreements in their state or territory.[83] Although legal profession requirements generally do not require a letter of engagement if legal costs are likely to be under a certain amount or if no fees are being charged,[84] good practice dictates that pro bono clients should be sent a letter of engagement at the outset which outlines 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. Some firms may use different letters of engagement for pro bono clients according to whether and how costs and disbursements will be charged (if at all) or recovered (if at all). For example, a firm might use one form of engagement letter for non-litigious matters where there is no expectation of recovery of professional costs and expenses, but use another letter of engagement for litigious matters where the firm wants to provide for recovery of their costs and expenses from any costs award or settlement made in favour of their client. For examples of different kinds of engagement letters for each of these situations, see 3.3 Sample letters of engagement. Engagement letters for litigious matters undertaken on a conditional costs basis will need to disclose information about how costs are calculated, and how costs will be recovered should the matter be successful. Furthermore, each jurisdiction has different legislation which may prescribe the information that lawyers are required to give clients about their bills, including the basis of calculating the bill and the right to have the bill assessed. Firms will therefore need to draft their engagement letters taking account of these considerations. Issues relating to costs, costs recovery and conditional costs agreements are discussed in further detail below.
Pro bono clients Pro bono clients may not have the same level of business sophistication as a firm’s commercial clients. This does not mean that pro bono clients necessarily need be treated with any less or more care, but lawyers need to be sensitive to their particular needs (see 4.8 for information about clients with disabilities). A few general points should be noted. A pro bono client should be carefully taken through the engagement letter, rather than the letter only being sent by post. Furthermore, lawyers should be aware that some pro bono clients might feel intimidated by and suspicious of the legal system and lawyers (see 1.16 Reflections of a pro bono coordinator). Plain English should be used in the letter of engagement and costs agreement, and when explaining the terms of these agreements. No matter how carefully the letter of engagement is worded, there may be instances where a client holds a mistaken belief that the agreement may render them liable for unspecified costs. In such cases it may be necessary or advisable for the client to obtain independent advice (for example, from a community legal centre) to reassure them about costs.
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Description of the work It is essential that both the client and lawyer 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 lawyer’s assistance. The assistance provided may be limited to part of a matter only (for example, assistance in negotiations, or settling court documents), 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 lawyer may agree to give a client an advice on the prospects of their claim, but only agree to act for the client if the prospects of success are reasonable. Or a lawyer 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. If a lawyer 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 agreement may be necessary. The letter should also clearly set out contact details for the lawyer within the firm who will have carriage of the pro bono matter, and include the contact details of the supervising partner.
Termination Letters of engagement should make provision for the termination of the retainer in certain stated circumstances so that the client is clear on his or her 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 lawyer considers essential to the conduct or satisfactory settlement of their matter, or if the client’s financial circumstances change in a material way. Some examples of how some firms provide for termination of a retainer include: (i) We may end this agreement if any of the following occurs: • your financial circumstances change such that we no longer consider you fall within our pro bono scheme • you do not follow our professional advice • we consider your chance of winning your case is weak • you do not keep in contact with us • you fail to provide us with adequate instructions • you show you have lost confidence in us • you retain another lawyer to act in the case • you lose legal capacity • a conflict of interest arises or becomes apparent or • you do not pay your disbursements within 30 days. We will advise you in writing of our intention to end this agreement and of the reasons for ending this agreement. (ii) We reserve the right to cease acting in the matter and to withdraw as your solicitors if:
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• a request for funds to cover disbursements, barrister’s fees, other essential expenditure or fees on account is not complied with within the time nominated in the request • adequate instructions or replies to correspondence are not forthcoming within a reasonable time • we perceive that the necessary mutual relationship of trust and confidence required for a workable solicitor/client relationship no longer exists. See also 3.3 Sample letters of engagement for further examples.
Client and solicitor protocols Some letters of engagement describe in broader terms the lawyer’s and client’s respective responsibilities in relation to how they will conduct their relationship under the agreement. These are sometimes known as solicitor and client ‘protocols’. The protocols may include matters such as the client agreeing that they will: • provide the solicitor with clear and timely instructions; • pay disbursements when advised and requested; • keep the solicitor fully informed of any change in their personal circumstances or details. The solicitor might acknowledge that he or she will, amongst other things: • treat the client the same as any fee-paying client; • communicate with the client in a clear manner; • give the client the time the client needs to understand the advice they are giving. For further examples of these responsibilities see the annexures to 3.2 Sample procedure.
Costs This section discusses how firms can consider addressing costs in engagement letters. Depending upon the arrangements made by a client and firm in a particular case, costs for which a client may be liable include professional costs and disbursements, the costs of an adverse costs order by a court or tribunal in a litigious matter, or costs agreed in a settlement.
Professional costs Firms need to consider in advance whether professional costs will be waived, charged on a reduced fee basis, or recovered (at full or reduced rates) only if there is a successful outcome. Before opening a pro bono file, a firm should discuss with the client the appropriate arrangements in relation to professional costs (and disbursements), and these arrangements should be set out clearly in the engagement letter. As mentioned above, firms may use different letters of engagement which include costs agreements according to whether the matter is litigious or not, and if the matter is litigious, whether the firm intends to recover their costs and/or disbursements (in full, or limited to the amount of the costs order or any settlement agreement). As also noted above, professional legislation in each jurisdiction prescribes the information that lawyers are required to give their clients about their costs or charges, and the rights of clients in relation to costs. Where a firm wishes to retain the right to recover their costs if their pro bono client is successful in their matter, information on the firm’s costs and charges must be disclosed, and agreed to, by the client. Costs recovery is discussed in further detail below. See also 1.12 Costs and disbursements.
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Disbursements The need for firms to determine, as a matter of policy, how disbursements are to be handled was discussed at 1.12 Costs and disbursements. 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. Courts and tribunals generally make provision for fee exemptions or waivers for indigent litigants. Disbursement funding and court and tribunal fee waiver and exemptions are described in 4.5 Disbursement assistance. Firms should always check to see whether fee waiver or exemptions or disbursement assistance is available for their clients. 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. The following are examples of ways by which some firms explain the client’s liability to pay disbursements. The explanation appropriate to a particular firm will depend on the firm’s policy in relation to the payment of disbursements. We will not charge you for the work of the lawyers in the case. We may, however, incur expenses (called ‘disbursements’) in acting on your behalf which we will ask you to pay. Those expenses may include: • Court filing fees • Expert reports • Barristers fees • Land Titles Office fees • State Revenue Office fees • Australian Securities & Investments Commission search fees. If you would like to see the current detailed rates of disbursements, please ask us. The example below makes explicit the distinction between internal and external disbursements and charges only for the latter: We will not charge for in house expenses for telephone calls, sending or receiving facsimile transmissions or incidental photocopying. Other expenses incurred by us in acting for you for services provided to us by third parties on your behalf will be charged to you. We will consult you before incurring any fees or expenses for which funding is unavailable. In some cases, the letter of engagement 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.
Costs orders It may not be clear to a pro bono client that when a lawyer 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. In this respect, terms such as ‘no win – no fee’ may be misleading to the pro bono client. 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 are able to access pro bono representation may be deterred from pursuing their claims because of the risk of an adverse costs order.
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The following are examples of how some firms explain the client’s liability for costs in the event of an adverse costs order: (i) If you are unsuccessful in your case, the court may order you to pay the fees and expenses of the other party. We do not pay these for you. You will be liable for these fees and expenses yourself. Likewise, if you agree in settlement to pay the whole, or part of another party’s fees and expenses, you will be responsible for paying those fees and expenses. (ii) Costs are in the discretion of the court. If you are successful in litigation, it is possible that the court will make an order that requires the unsuccessful party to pay some of your costs. Conversely, if you are unsuccessful in the litigation, it is possible that the court will make an order that requires you to pay the other party some of their costs. This firm is not liable for any costs awarded by the court against you. Those costs are your responsibility. It is difficult to provide you with an estimated figure. As a general rule in the range of one-half to two-thirds of a successful party’s costs are paid by the unsuccessful party. (iii) If you are unsuccessful in the proceedings to which the work relates you could be ordered to pay the costs incurred by the other party to the proceedings.
Legal aid indemnities Some jurisdictions have costs indemnity provisions that apply, with certain exceptions, to people granted legal aid.[85] There may be circumstances where a potential pro bono client may be able to benefit from this indemnity.
Costs recovery in litigious pro bono matters As noted above, legislation generally prescribes the information that lawyers are required to disclose to their clients about the way lawyers charge their costs or charges, and the timing and manner of the disclosure, as well as the rights clients have in relation to those costs. Costs agreements in litigious pro bono matters should be drafted to reflect the parties’ agreement that: • neither professional costs nor expenses will be charged or recovered; • only expenses will be charged and recovered; or • professional costs and expenses (either at full or reduced rates) will be charged and recovered from the opposing party in the event the pro bono client is successful (pursuant to a conditional costs agreement). (There are clearly other forms of costs agreements, for example, agreements which provide for delayed, but full fee recovery. However, this would generally not be regarded as pro bono assistance.) The policy issues informing the decision to recover costs and disbursements, including whether a client may be liable for costs beyond costs awarded or agreed to in settlement, are discussed briefly in 1.12 Costs and disbursements. Under conditional costs agreements, firms generally disclose the rates of their professional costs and disbursements, as well as an estimate of the total costs based on those rates (some firms annex a schedule of their charges – rather than list each cost item – to the letter of engagement, which then forms part of the costs agreement). Where an estimate is not presently possible, some letters of engagement may state that an estimate will be provided after the matter has been investigated further and the firm is clear about the work to be provided.
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A firm wishing to benefit from a favourable costs order, or settlement with a costs component, in a pro bono matter should ensure that it complies with relevant legislation regulating the legal profession, in particular in relation to the disclosure of costs to the client.[86] Accordingly, a lawyer should enter into a written costs agreement with the client, clarifying (or estimating) what they will charge the client in the event of a favourable costs order or settlement with a costs component. Failure to disclose costs, and enter into a costs agreement, may mean that there is no obligation for a client to pay costs.[87] Where there is no obligation or liability of the client to pay the solicitor, there is some doubt as to whether a lawyer acting pro bono can recover their costs. In other words, for recovery under a costs order there must be some liability, satisfied or unsatisfied, to indemnify or compensate for.[88] It is the liability of the successful party to pay costs to their solicitors that is essential to the recovery of costs.[89] In the absence of a written costs agreement there is some doubt as to whether the lawyer has agreed not to charge the client at all, or only in certain circumstances. The Law Foundation of New South Wales notes senior counsel’s opinion that conditional costs agreements can be drafted so that there is an entitlement to costs in the event that a costs order is made and recovery is effected from the unsuccessful party following the making of the order. Provided that the basis upon which fees will be charged and the condition(s) on which they will become payable are clearly spelled out, and payment is sought in accordance with the terms of the agreement, the successful party’s legal representative will be entitled to recover costs following the making of a costs order.[90] Accepting that there needs to be a written conditional costs agreement, the question arises as to how the condition giving rise to the liability to pay costs should be expressed. The following are examples of terms included in retainer letters by some firms doing pro bono work: (i) We will act for you in this matter under a conditional costs agreement. We will not charge you for our lawyers’ time in acting for you in this matter unless you are successful. Under this agreement, ‘successful’ means: (a) The court orders another party to pay your legal costs; or (b) Your case is settled and your settlement includes legal costs. (ii) As we are acting on a pro bono basis, we will waive our entitlement to professional fees subject to the fact that if you are awarded and recover costs in the matter, we will render to you an account equivalent to those costs awarded and recovered by you. Practitioners should consider the requirements of the legal professional legislation in their state or territory. See 3.3 Sample letters of engagement for further examples of how some firms deal with this issue. Some firms’ letters of engagement provide that if there is a successful outcome in litigation which includes orders that the other side pay the client’s legal costs, or if the case is settled and part of that settlement includes a sum for the client’s legal costs, and the other party fails to pay those costs, the client authorises the firm to take action on the client’s behalf to recover those costs.
How much to recover? Conditional pro bono costs agreements are commonly drafted to allow the lawyer acting for the client to reduce their costs on a discretionary basis. This is to ensure that the client is not charged any amount above that recovered through any costs order or costs component of a settlement agreement.
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The following are examples of how some firms deal with this matter: (i) … if the amount you receive in costs is less than our bill, we will not ask you to pay the difference between the amount recovered in costs or agreed to in settlement and the bill. (ii) … in the process of recovering costs … we will invoice you for costs and disbursements for our professional services. However, in relation to costs we will not seek to recover from you any more than the amount to be paid to you by another party for your costs. See also 3.3 Sample letters of engagement. Some firms, as a matter of policy, direct any costs recovered in successful litigation to the firm’s pro bono budget or other charitable causes, see 1.12 Costs and disbursements.
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4Risk management In the process of setting up or maintaining pro bono practices, firms should take steps to identify, analyse and manage any issues that may impede effective pro bono service delivery both to minimise exposure to liability and to maximise opportunities for undertaking pro bono work. This section of the manual discusses some of the issues that may arise in pro bono practice such as solicitors’ duties and conflicts of interest. It also looks briefly at issues relating to practising certificates and professional indemnity to the extent that these issues may affect pro bono service delivery. The section concludes with a discussion about disclosure to the court when acting pro bono and discrete task or limited pro bono assistance. The section does not deal with risk management issues that arise in legal practice generally (for example, legal practitioner liability issues arising under the Civil Liability Act 2002 (NSW)) but only those of specific relevance to pro bono.
Conflicts of interest When deciding whether it can provide pro bono assistance, a firm generally refers to its criteria which are often formalised in the firm’s policy and procedure documents. These criteria will include consideration of conflicts of interest. Conflicts of interest may be: • legal conflicts; • ‘indirect’ or ‘commercial’ conflicts (in this manual, the term commercial conflict is used to describe the 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 legal conflicts of interest do not arise. No unique or additional policy or procedure is necessary in relation to direct legal conflicts and pro bono matters.[91] 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.[92] Commercial conflicts sometimes arise in the banking and insurance area because of the tendency of these clients to manage their legal needs through the use of panels of law firms.[93] In some cases, a firm may perceive a commercial conflict with a prospective pro bono client whose matter involves the company simply because the firm is listed on the company’s panel, even though the firm may have never received instructions from that company. Some government agencies and utilities also use the panel system. Similar concerns about commercial conflicts are also raised in the context of debates about mandatory pro bono regimes or in the awarding of government tenders to firms that demonstrate commitment to pro bono work.[94] Some matters are perceived to be so politically, ideologically or ethically controversial that the firm may have reservations about taking on the matter. This is usually for reasons similar to those related to commercial conflicts: a fear of alienating current, or prospective clients.
How some firms perceive commercial conflicts or controversial matters Firms may be understandably sensitive about deterring current or potential clients, especially in the context of intense competition for legal work, and the tendency for corporations and government agencies to tender different aspects of their legal requirements to different firms. This sensitivity may manifest as reluctance to provide pro bono legal services in certain
Australian pro bono manual 87 2 Procedures and practice issues matters, for example, acting pro bono against government agencies because of a perception that this will prejudice the firm in securing or retaining government legal work. The following are some situations that may give rise to perceived commercial conflicts or prohibitions in relation to pro bono work: • doing pro bono work that represents a ‘concern’ to, or advocating a point of view that is antagonistic to, or acting in proceedings against, the interests of a firm’s existing clients (this may include acting in a matter that will directly impinge upon the known and explicit legal or business interests of a client, for example, where the purpose of a pro bono matter is to establish a legal principle that conflicts with a principle that an established client is continually seeking to defend and protect); • appearing in matters against a particular class of clients (for example, doctors or banks) from whom a firm customarily receives instructions; • 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; • acting for what is perceived to be ‘the other side’, for example, a firm that normally acts for doctors or banks, and then takes instructions to act for a patient or aggrieved customer, even though the defendant in question is not a client of the firm;[95] • being accepted on a panel of a company against which a pro bono matter is referred, even though the firm has never received instructions from that company; • providing pro bono assistance to non-profit organisations with a political or campaigning objective; • acting in politically sensitive or ethically controversial matters or matters perceived to be ideologically charged.
Overcoming barriers to commercial concerns It is up to the firm to decide how it will deal with commercial conflicts. An overly cautious approach to commercial conflicts has the clear potential to unduly 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.[96] Firms should, without prejudicing their business interests, adopt a commonsense approach to commercial conflicts to ensure worthy clients are not precluded from accessing pro bono assistance. One approach that may allay concerns of commercial clients is for firms to clarify that their commitment to pro bono is an integral part of their corporate image and public relations strategy. [97] This approach may well be consistent with the corporate client’s own image: if commitment to pro bono work is one of the defining characteristics of corporate culture within many medium and large firms, it is not unlikely that the concerned corporate client would wish to be positively associated with the goodwill that attaches to it through encouragement and tolerance of that pro bono activity. (Such an understanding between the firm and client has the potential to lead to productive pro bono partnerships with corporate clients, as outlined in 1.2 Current models of law firm pro bono.) The following are some of the practical ways some firms accommodate commercial conflicts: • Where a pro bono matter is being assessed for commercial conflict with an existing client of the firm, that client is contacted so that the perceived conflict can be discussed, and consent from that client may be obtained. (There is evidence that corporations view firms’ pro bono efforts as analogous to, and compatible with, their own community
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service obligations; the assumption that corporate clients are critical of pro bono work in general, or particular pro bono clients or controversial causes, may be unfounded.) • Where a matter referred from a community organisation is found to constitute a commercial conflict, a firm may nonetheless give some general advice about the issues to the community organisation and/or undertake research into particular areas relevant to the issues,[98] or offer assistance by way of administrative support or secondment. See 1.2 Current models of law firm pro bono, for some examples of non-legal pro bono support. • The firm can undertake to place the refused referral elsewhere. • In one American firm’s practice, if the firm’s pro bono committee perceives that a proposed matter gives rise to a commercial conflict or is otherwise of concern to others at the firm, the committee publishes a notice inviting those interested in the matter to attend a meeting or communicate with the committee. In some cases this may placate those concerned, or at least give the committee the opportunity to explain why they have pursued the matter. In other cases, this process has lead to the firm declining to pursue the matter, or to modify the focus of the proposed matter in such a way that it accommodates the concerns expressed. • As part of their pro bono development, firms could define and publish policies and procedures to identify and resolve potential commercial conflicts. A component of this policy could include staff training and legal education on appropriate interpretation of commercial concerns. Ideally, any such policy would adopt a narrow definition of commercial conflict to ensure that pro bono work is not inhibited. • Firms could consider forming a commercial conflict committee. The committee could identify in advance areas that they suspect may cause problems with particular commercial clients, and consult and liaise with those clients to determine whether the client will support the firm’s pro bono commitment to a particular matter or cause. This kind of approach would obviate ad hoc decision-making in relation to pro bono. • Firms should develop ties with other firms with pro bono practices with a view to referring to those firms pro bono matters that they are unable to undertake because of a conflict. • In the case of conflicts of interest and secondments, at least one firm equips its lawyers on secondment with a list of the firm’s top fifty clients to facilitate quick conflict checking. In some cases, lawyers on secondment may be precluded from handling a particular matter. The National Pro Bono Resource Centre (NPBRC) has written to the Commonwealth Attorney-General asking the Government to adopt and implement a protocol designed to minimise the perception that lawyers undertaking pro bono work against government may be prejudiced in securing government legal work.[99] The Attorney-General has agreed that legal service providers should, subject to conflicts rules, be given the same level of consideration in relation to the provision of tender bids for legal services, regardless of whether those lawyers have acted pro bono for clients against the Commonwealth. At the time of writing, the Attorney-General’s Department was considering how best to address this issue. The NPBRC intends to pursue adoption of the protocol at a state and territory level. Additionally, 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 would ideally be made available to the referring agencies to avoid inappropriate referrals (see 2.1 Casework procedures).
Procedures for accommodating controversial matters The controversial or sensitive nature of some matters may mean that some firms may be cautious about taking them on. In these rare cases, a firm may wish to adopt similar
Australian pro bono manual 89 2 Procedures and practice issues procedures to those that apply to commercial conflicts: additional scrutiny of the matter at a senior 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 thus buffer the pro bono work from undue criticism.[100] Another procedure used by smaller firms in the United States is to circulate all potentially controversial matters to all partners in the firm for approval and provide a short period during which a partner can ask for a review.[101] Yet another approach adopted in some American firms is to permit partners to take on highly controversial matters in their own names, rather than in the name of the firm.[102]
Risk management: practice issues and pro bono work Some firms with pro bono policies explicitly state that they will only provide pro bono legal assistance where they can do so with competence. Some firms exempt particular areas in which they will not provide pro bono legal services, most commonly, family and criminal law. Clearly, pro bono legal work should be undertaken with the same degree of competency, expertise and professionalism and to the same high standard as any other legal work. Firms can, however, consider acquiring expertise in new areas. Many successful pro bono initiatives are partnerships with special interest community organisations and/or involve expert training of pro bono lawyers in areas in which they have previously not practised (see 1.14 Training and skills). For examples of these kinds of initiatives, see 1.2 Current models of law firm pro bono.
Practising certificates and professional indemnity insurance Each jurisdiction has its own rules in relation to practising certificate and professional indemnity insurance requirements. Lawyers undertaking pro bono work should contact their relevant professional association and professional indemnity insurers on any specific requirements or exemptions. Employed solicitors undertaking in-house pro bono work will have their practising certificates and insurance needs met by the firm. Professional indemnity generally extends to pro bono work so long as it is undertaken in connection with the practice of the firm. Pro bono work done in this context should be undertaken with the knowledge and approval of the firm, and subject to the same supervisory arrangements as fee-paying work. Lawyers employed as ‘in-house’ legal advisors to corporations should check whether their practising certificates and professional indemnity insurance includes coverage when undertaking pro bono work for clients outside the firm or corporation. For example, in Victoria, in-house counsel who only hold corporate practising certificates and are doing pro bono work for the Public Interest Law Clearing House (PILCH) must hold practising certificates as ‘sole practitioners without the authority to receive trust monies’, and must vary the conditions of their practising certificates. There is no cost involved. Lawyers who hold sole practitioners’ certificates for PILCH matters will need to have appropriate professional indemnity insurance. A reduced premium ($65) is applicable for sole practitioners who receive nil fees. There is no need to make fidelity fund trust contributions if not receiving trust money. Pro bono work undertaken by a pro bono lawyer on secondment to a legal practice in a community organisation is generally covered by the community organisation’s professional indemnity insurance policies. The obligation for the organisation to maintain adequate professional indemnity insurance for a secondee is sometimes reflected in the formal agreement between the organisation and the firm providing the secondee (see 3.11 Secondment agreements).
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Duty to disclose to the court that you are acting pro bono The question has arisen as to whether a lawyer who has filed a notice of appearance for a client and is acting pro bono should notify the court of that fact. There is no statutory obligation, nor principle of general law requiring lawyers to inform the court that they act pro bono. However, in certain circumstances, disclosure may be advisable. The first issue concerns costs orders. A court can make costs orders without needing to know whether a liability exists for a client to pay costs to the solicitor. Once a costs order is made by the court, the question of what costs can be recovered is one for parties to agree on or the relevant costs assessment process to determine.[103] It is only at this stage that a lawyer may be obliged to disclose to the costs assessor that he or she is acting on a pro bono basis. There may be practical reasons why disclosure may be, at least strategically, advisable in particular circumstances. Courts have taken account of pro bono representation in the following cases: • In Turner v Leda Commercial Properties [2002] ACTSC 5, the appellants received some pro bono assistance with their matter. Connolly M dismissed an application for security for costs by the respondents who argued that the appellants would not be able to meet any adverse costs order. Connolly M said that the fact that the appellants had pro bono assistance did not support the exercise of the court’s discretion to order security for costs pursuant to O81 r1(2) of the Supreme Court Rules. Connolly M also said (para 8) it would stifle the development of pro bono schemes, and be contrary to public policy, if referrals to pro bono representation were taken to indicate that security for costs should follow. • In Ruddock v Vadarlis (No.2) (2001) 115 FCR 229, the Full Court of the Federal Court considered the fact of pro bono representation as a matter relevant to costs orders. The matter concerned litigation surrounding the detention of rescuees on the Norwegian vessel, the MV Tampa in 2001. The proceedings were brought by way of urgent applications for injunctive relief, and conducted on a pro bono basis. The rescuees were ultimately unsuccessful in litigation. In its decision on costs, the court discussed public interest litigation at length, and affirmed that there is no general principle that usual costs orders should not apply if the subject matter of litigation is a matter of ‘public interest’.[104] The majority also restated the principle that costs awards remain an exercise of the discretion of the court having regard to all the circumstances of the case.[105] However, having regard to the character and circumstances of the litigation in the case,[106] the majority departed from the usual rule and ordered that the parties bear their own costs. The majority took into account, amongst other things, that the proceedings raised novel and important questions of law and that the legal assistance given to the rescuees was free of charge and of such quality that it ensured that both the proceedings and the important questions the litigation raised were pursued and resolved with expedition and efficiency.[107] • In Le v Minister for Immigration & Ethnic Affairs[108] Sheppard J considered it relevant that the applicants (in immigration detention in Port Hedland) had pro bono assistance available in Sydney when granting their application to be transported to Sydney. • In WABF v Minister for Immigration and Multicultural Affairs[109] the applicant sought to adjourn his hearing pending the outcome of a decision by a specially constituted five- member bench of the Full Court of the Federal Court of Australia which was due to hear a number of appeals relating to matters of law relevant to his case. In granting the adjournment, McInnes FM took account of, amongst other things, the pro bono representation of the applicant, noting that ‘the administration of justice in these courts would not be otherwise able to be conducted effectively were it not for the assistance of pro bono lawyers’.[110]
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Must a lawyer disclose their name on pleadings or other court documents? Practitioners preparing documents to be used in court proceedings should check relevant rules of court as to whether there is an obligation, amongst other things, to set out their name on those documents.[111] In NADG of 2002 v Minister for Immigration, Multicultural & Indigenous Affairs[112] the Court held that when a legal practitioner draws a document which is filed in a proceeding, the practitioner is to that extent acting on behalf of the litigant on whose behalf the document is filed. The Court noted that the line between when a legal practitioner is acting on behalf of a litigant in a proceeding and when he or she is merely providing informal assistance which the litigant may or may not act upon is not always easy to draw.
‘Discrete task assistance’ and professional liability As noted above, good practice dictates that pro bono work should be undertaken in the same way as any other work for any other client. It is well established that a legal practitioner will be liable in damages for failing to carry out in a timely manner and with reasonable skill and care that which he or she was engaged to do. (Liability of lawyers is generally founded on breach of contract; breach of a general duty in tort to take reasonable care; breach of statutory duty in relation to misleading or deceptive conduct, and breach of fiduciary duty.) The scope of this engagement is generally identified in the solicitor’s retainer which of course should be described with reasonable particularity and care (see 2.3 Letters of engagement). Questions have been raised about liability of lawyers providing pro bono assistance for ‘unbundled’ services, that is, for assistance with part of a legal problem.[113] There does not appear to be any reason why there should be particular professional liability issues by virtue of the fact alone that legal assistance for a discrete task is provided pro bono. Differences of opinion between client and lawyer about the scope of assistance being offered, difficulties of communication between lawyers and clients and restrictions on the services available in particular circumstances are neither novel nor unique to pro bono. However, in the context of the provision of pro bono assistance, firms should not ignore the distinctive circumstances or features of a particular case. For example, if the client is from a non-English-speaking background, has poor literacy skills or is not educated, particular care should be taken to ensure the client understands both any advice given and the limits of the scope of such advice. The essential element is that there is clear understanding of and agreement to the limited scope of the assistance offered and provided.
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5Taxation issues
Pro bono legal services – income tax and GST issues By John Emerson, Partner, Freehills[114]
Income tax
Are losses or outgoings incurred by a firm in providing pro bono services deductible? For example, is the whole of the salary paid to a solicitor doing pro bono work deductible to the employer? Or, if the solicitor spends 20 per cent of his or her working hours doing pro bono work, should only 80 per cent of the salary be deductible?
Statutory provision Section 8-1 of the Income Tax Assessment Act 1997 provides that you can deduct from your assessable income a loss or outgoing to the extent that: (a) it is incurred in gaining or producing your assessable income; or (b) it is necessarily incurred in carrying on a business for the purpose of gaining or producing your assessable income; and it is not capital, of a capital nature, or of a private or domestic nature.
Rulings and cases The Commissioner and the courts have taken a reasonably wide view of the circumstances in which a loss or outgoing is deductible. In Taxation Ruling TR 95/33, the Commissioner states that if: … after weighing all the circumstances, including the direct and indirect objectives and advantages, in a common sense and practical manner, it can be concluded that the expenditure is genuinely and not colourably used in an assessable income producing activity, a deduction is allowable for the loss or outgoing. On the other hand: if it is concluded that the disproportion between the outgoing and the relevant assessable income is essentially to be explained by reference to the independent pursuit of some other objective [e.g. – to do good] … then the outgoing must be apportioned between the pursuit of assessable income and the other objective. In Fletcher’s case (1991) 173 CLR 1; 91 ATC 4950, the High Court stated that an outgoing will be characterised as having been incurred in gaining or producing assessable income if it is incidental and relevant to that end. It also considered that the motive of the taxpayer in making the outgoing may be a relevant factor, at least in cases where the outgoing had been voluntarily incurred. In a 1958 Board of Review decision, a minister of religion claimed the amount he tithed to his church as a deduction. The payments were made in adherence to church teaching but there was no strict obligation to make the payments. It was held that the payments were of a private nature. Similarly, in a 1977 Board of Review decision, an accountant claimed deductions for amounts he had contributed to a charity. Ninety per cent of the taxpayer’s income came from clients who were supporters of and collectors for the charity and he asserted that failing to contribute to the appeal could lead to a loss of clients. It was held that the contributions were made
Australian pro bono manual 93 2 Procedures and practice issues pursuant to a moral, social or religious obligation and as such they represented outgoings of a private nature and therefore were not deductible. In the Federal Court decision of Ure v FCT (1981) 81 ATC 4100, 34 ALR 237, the taxpayer had borrowed money at commercial rates and onlent it at interest of only 1 per cent per annum to his wife and a family company. The funds were ultimately used, among other things, to buy a home for the taxpayer to occupy. He claimed a deduction for all of the interest paid by him. Brennan J pointed out that the disparity in interest rates was itself ‘eloquent to suggest the existence of purposes ulterior to the earning of interest ... and the evidence confirms the existence of further purposes. Those purposes included … providing the taxpayer with a residence’. Deane and Sheppard JJ said as follows: The question whether an outgoing should properly be seen as being wholly or in part ‘incidental and relevant’ to the ‘end’ of gaining or producing the assessable income and the question whether the outgoing is wholly or in part of a private or domestic nature are both questions of characterisation. Where liability to make the outgoing has been voluntarily incurred, those questions of characterisation will ordinarily be determined by reference to ‘the object’ which the taxpayer had in view...the ‘result aimed at’ by the taxpayer or ‘the advantage which the expenditure was intended to gain, directly or indirectly, for the taxpayer’ in the context of the relevant facts and circumstances. In the ordinary case where the income which is expected to flow from an outgoing offers an obvious commercial explanation for incurring it the relevant characterisation can readily be determined by reference to the gaining or producing of that income. In the more complex case, however, where there is no such obvious commercial explanation, the solution of the problem of characterisation must be derived from a weighing of the many aspects of the whole set of circumstances including direct and indirect objects and advantages which the taxpayer sought in making the outgoing … In a case such as the present where the outgoing claimed as a deduction is interest paid on borrowed money, one … must, of necessity, look more to the objects or advantages which the application and use of the borrowed money were intended to gain. Similarly, in FCT v Groser (1982) 65 FLR 121; 82 ATC 4478 the taxpayer had charged his mentally retarded brother $2 a week as ‘rent’ of a house owned by the taxpayer. Jenkinson J in the Supreme Court of Victoria doubted that the $2 a week was assessable income but in any event held that even if it were, the taxpayer had incurred the interest and other outgoings in respect of the house for mainly private or domestic considerations and to that extent they were not deductible.
Analysis Applying the above principles to the provision of pro bono work is not always easy. It is, of course, clear that practitioners will normally obtain a deduction for donations or sponsorship payments made for marketing or business development purposes. Similarly, losses or outgoings incurred in respect of the provision of pro bono work for public relations purposes should be deductible. Further, there are very real commercial imperatives for practitioners to carry out pro bono work other than marketing or business development. Pro bono work is increasingly being demanded by employees and clients, particularly government. For example, the Victorian Department of Justice requires that firms on its legal panel provide pro bono work to a percentage of the value of government legal contracts with them. But what of practitioners who provide the work without seeking, and indeed shunning publicity. The mere fact that publicity is not the expressed motivation for pro bono work should not, in my view, determine this issue. Many would argue that practitioners who quietly and effectively provide pro bono work without seeking or receiving publicity in the traditional sense may well maintain and enhance their reputation and business goodwill to a greater
Australian pro bono manual 94 2 Procedures and practice issues extent than those who brazenly seek publicity. A clear business ‘reward’ from doing the pro bono work should result, even though it is more subtly achieved. On the other hand, an issue as to deductibility may arise where pro bono work constitutes a significant proportion of all work done by a firm. For example, if 20 per cent or 30 per cent of a firm’s work were done on a pro bono basis, the Commissioner might assert that this indicated the pursuit of a non-income-producing objective, namely, a private desire to help the community. But each case should be considered on its own merits. A country practitioner spending a day a week in the local magistrates court appearing on behalf of unrepresented parties, perhaps at the request of the magistrate, could well be able to show the business justification for doing so.
No deduction for value of work It should also be noted that it is only losses or outgoings that are deductible and so a deduction cannot be claimed for the value of pro bono work provided by a practitioner. Neither is the value of the work provided to an organisation which is a deductible gift recipient deductible under the deductibility of gift provisions in Division 30 of the Income Tax Assessment Act 1997. They apply only for gifts of money and certain property. Services are not included. Nor in my view should they be. The current law places practitioners in the same position as if they had charged fees for the work and then made a deductible gift of the amount of the fees to the client.
Goods and services tax
Is GST payable in respect of the supply of pro bono services? GST is generally payable on taxable supplies. Section 9-5 of the A New Tax System (Goods and Services Tax) Act 1999 states that you make a taxable supply if, among other things, you make the supply for consideration. While it is clear that the provision of pro bono services is a supply, where there is no consideration for the supply, which is normally the situation if no fees are payable, no GST is payable on the supply. If pro bono work is provided on a reduced fee basis, GST is payable on the fees actually paid rather than the market value of the services provided. Special rules apply where the pro bono work is provided to associates. ‘Associate’ is defined in section 318 of the Income Tax Assessment Act 1936 and encompasses a wide range of individuals, companies and trusts. If services are provided to an associate, then GST is payable on the GST exclusive market value of the services, whether done without charge or at a discount. It is unlikely that pro bono work genuinely provided for the benefit of the community would be provided to associates. Normally, the associate would have to be linked in some relevant way with the practitioner. This would occur, for example, if a firm established its own foundation and a majority of the directors of the trustee were partners of the firm.
Is a provider of pro bono services entitled to input tax credits for those services? For example, if 5 per cent of a practitioner’s legal work is carried out on a pro bono basis, must it reduce its input tax credits by 5 per cent?
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Section 11-20 provides that you are entitled to an input tax credit for any ‘creditable acquisition’ that you make. The input tax credit is, however, reduced ‘if the acquisition is only partly creditable’. An acquisition of a supply is only partly creditable if you acquire the supply only partly for a creditable purpose (sections 11-25 and 11-30). It is here that we encounter language similar to section 8-1 of the Income Tax Assessment Act. Section 11-15 provides that you acquire a thing for a creditable purpose to the extent that you acquire it in carrying on your enterprise except to the extent, among other things, that the acquisition is of a private or domestic nature. Accordingly, two questions arise: (a) is the supply acquired in carrying on your enterprise; and (b) is the supply of a private nature? In my experience, acquisitions made by providers of pro bono services are almost always made in carrying on an enterprise and, for the reasons I have touched upon, it would only be in unusual cases that a supply by practitioners carrying on pro bono work could be said to be of a private or domestic nature.
Summary In summary: • losses or outgoings incurred in providing pro bono services will normally be deductible; • no deduction is available for the value of pro bono services; • input tax credits will generally be available to practitioners even though providing pro bono services; and • unless there is a relevant association with the recipient of pro bono services, no GST is payable on the value of pro bono services provided free of charge.
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6Troubleshooting This section addresses some of the problems that can arise in coordinating and administering a law firm pro bono program. It is written from the perspective of a pro bono coordinator or other person with responsibility for coordinating the firm’s program.
1Partner support
The partners in my firm don’t seem to support pro bono. What can I do about this? There are several strategies to win partner support for a pro bono program. If your firm does not yet have a program, you could seek out the partners who support pro bono and like the idea of their firm formalising a pro bono program. In any reasonable sized firm there is bound to be at least one, and sometimes many, partners who support pro bono. Ideally, the support will come from a senior and highly respected partner, amongst others. You could ask among the lawyers and secretaries who work for partners to identify those most likely to be interested. Your next step is to convince the partner or partners that the firm will benefit from an organised program. If there is reticence on the part of partners, make it clear to them that, as owners of the firm, they ‘own’ the pro bono program. Circulating a draft pro bono policy for partner input and review can be helpful, as can reminding partners that they can refuse to take on pro bono matters. Agreeing to a pro bono budget up front can also help to reassure partners that their profit share will not be significantly affected. There are also articles on, for example, the benefits of pro bono in recruitment and skills development (including human interaction skills) that partners could be referred to. If a pro bono program has already been approved in your firm, you should have the senior partners or at least the board supporting the program. You can use the chair or other senior partners in building support by, for example, publicising the pro bono work of the firm, or the pro bono work of individual partners. You could report to the chair or the board on participation levels in pro bono including participation among partners. It should be made known that such reports are being made. Another way of building on the goodwill of supportive partners is to use them to place matters and encourage them to be ambassadors for pro bono within their practice groups. If you are aware of partners who are particularly uninterested (especially if they are influential), you could arrange to meet with the partners to discuss areas of pro bono work they may be interested in. If those areas fit within the pro bono scheme, start feeding work to them in those areas. Advise partners of any positive feedback for the firm from the program including in areas such as graduate recruitment, thank-you letters, or referrals to the pro bono program from clients or other friends of the firm. You may never get support from 100 per cent of partners, however, the support of a reasonable number can mean that you have a useful and effective pro bono program. You could think about working in with other initiatives being run by your firm. For example, if the firm is running a leadership program for partners and senior associates, see if it is possible to include a presentation on your pro bono program. This way you get the future leaders of the firm thinking about pro bono as integral to the firm’s future directions. Another suggestion is to get your managing partner on board and ask him or her to speak about pro bono as part of the annual ‘state of the firm’ or other ‘annual report’ to partners and staff. It might be useful to have internal firm presentations on what the pro bono practice has been doing to encourage a sense of ownership throughout the firm. A presentation by lawyers undertaking pro bono work themselves can be very infectious.
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You could also think about working with your human resources personnel to integrate pro bono into their projects, for example, including it in induction sessions and staff surveys and making sure there is a place in performance review forms to discuss pro bono. Including pro bono in review forms enables lawyers to tell reviewing partners what skill development they have gained through pro bono work. Another thing to consider is how the pro bono monetary commitment is reported to the partnership in the partners’ accounts. For example, is it reported to partners as an ‘expense’ together with rent, salaries and the like? Perhaps a better approach is to report the pro bono monetary commitment in its own budget line as a ‘community contribution’ of the partners. That is, change the focus from an ‘expense’ to a ‘personal contribution’ in which the partners feel pride.
2Writing off billable time
Partners in my firm hate to write off billable time. How do I account for pro bono time to minimise partner write-offs? There are various means of avoiding writing off billable time. The need to write off time depends on how pro bono work is credited within the firm. Where pro bono matters are billed as commercial matters would be, and a single accounting adjustment is made, pro bono work is not written off by any partner. See 1.10 Counting and crediting time.
3Blow-outs
How do I make sure that a pro bono matter I accept does not ‘blow out’? What do I do if it does? The following strategies will help limit the potential for matters to blow out: • Select the right people. You should as far as possible select people with experience in the relevant area who will not need to spend large amounts of time familiarising themselves with the area of law. If no one has the required experience, choose people who are quick at learning new areas and who easily recognise the relevant issues which need to be followed through. • Ensure there is a supervising partner who understands that it is their responsibility to ensure a matter does not blow out (in the same way a partner would for a commercial matter). • Some firms adopt a process of setting fee estimates or budgets at the outset of each matter. Setting these at realistic and achievable levels is one way of ensuring that pro bono matters do not blow out. The pro bono committee, partner or other person approving pro bono work may wish to hold its approval of the matter, subject to being satisfied that the estimate has been carefully worked out and is not just a quick guess. If a matter has the potential to be very large and is hard to cost at the outset, it may be appropriate in some cases to approve the matter in stages, subject to review and with further approval based on the results and outcomes of the previous stage. If this per- matter budgeting process is adopted, ensure that the supervising partner and lawyers on the matter understand that it is their responsibility to monitor the budget for the matter. You could arrange for finance personnel to provide the partner/lawyers (and pro bono coordinator) with electronic reminders as budget targets come close, for example, at 70 per cent and 90 per cent. Such reminders allow for timely review of matters that are approaching estimate caps. Fee estimates can also be used as a basis for approving fee credits – that is, lawyers will only get fee credits to the agreed cap unless there are reasonable grounds for reviewing the fee estimate.
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• Limit the credit (be it fee, time or other credit) available to the person or people working on the matter to an amount that is reasonable for the work to be done. • Some firms have a procedure of reviewing on a regular basis the progress of pro bono matters, including hours spent/value of fees. This monitoring, which might be by the pro bono coordinator, committee or other person, can prevent or at least detect potential blow-outs. • If a particular matter is likely to be large and complex, you could consider whether to undertake the work on a staged basis where this is appropriate and not detrimental to the client’s interests. • Make sure that the letter of engagement clearly sets out the scope of the work. If a matter does blow out, you could speak with the partner or other senior lawyer on the matter and set priorities with them for completing the work as efficiently as possible. You could also seek to ensure that credit is not received for unnecessary work.
4Streamlining referrals
If my firm takes too long deciding whether to accept a pro bono matter, when I phone to accept the matter the referring agency tell me they have already made a referral to another firm. This wastes our time and annoys our partners. How can I avoid this in future? Speak to the referring agency about the issue and discuss the difficulties with them. When the agency calls, you could ask whether or not the matter needs to be placed urgently and, if it does, indicate when you are likely to be able get back to them. Ask them if, on that basis, they want to contact another firm or, if not, whether they can hold off until you get a decision. You could also circulate your referral criteria and preferred referral protocol to referring agencies. Another suggestion is that you work with other firms to try to ensure that there is a standard protocol. When accepting a referral, you could ask whether the referral is currently with any other firm and if it is, you could decline to consider it until the other firm(s) has made its intake decision. You could also consider whether there is scope for speeding up the approvals process in the firm either generally or in particular cases. For example, in liaising with practice groups or individual lawyers about taking on a new matter, you could advise that time is of the essence in responding. Where appropriate, you could seek the assistance of your pro bono partner in getting a response.
5 Areas of competence
Many of the requests for pro bono legal assistance we receive are for areas of law outside my firm’s area of competence. What should we do about this? Pro bono clients are entitled to the same levels of quality and service as full-fee-paying clients. Firms should not accept a matter that is outside the firm’s areas of competence and pro bono matters should not be taken on solely because a lawyer or firm wants to gain experience in an unfamiliar area of law. Having said this, some firms have made a decision to meet a significant legal need by acquiring the expertise necessary to carry out pro bono matters which are outside the firm’s core areas of practice. This sometimes involves engaging experienced lawyers and others to train solicitors to perform the work (and partners to supervise them). You need to make a decision about whether or not the number of requests reflects the gap in the availability of legal services. If it does not, you should attempt to find out where those matters could be better placed, and then advise the referring agencies of your findings and
Australian pro bono manual 99 2 Procedures and practice issues also that the matters are outside your firm’s area of competence. Alternatively you could train relevant staff to obtain preliminary information on a referral and to reject referrals that are outside your firm’s area of competence. If requests are being made because there is a lack of legal services in that area of law and the area of law fits within your pro bono program (although not within your current areas of competence), you could consider a training program to develop the required skills within your firm. If the requests your firm is receiving reveal a gap in legal services, consider raising this with organisations such as the Public Interest Law Clearing Houses, the National Pro Bono Resource Centre and at meetings with other pro bono coordinators. Firms are increasingly working on a collaborative basis in this area and it may be that by identifying ‘gaps’ in such forums, new service delivery models can be identified.
6 Intake procedures
I want to set up an intake procedure that is fast and efficient. Any suggestions? The efficiency of a firm’s intake procedure is going to depend very much on having clear guidelines about the sorts of matters that you act in, the information that you need from referring agencies, and ready access to the person or committee with authority to accept or reject matters. An intake form can assist in obtaining relevant information quickly. Advising referral agencies what you need to know is a good means of ensuring they will have all the information when they ring you. If your pro bono procedure involves decision-making by committee, you might want to set up mechanisms to ensure it is not too time consuming. These might include approval by email with a permitted response time of twenty-four hours and a return rate of over 50 per cent being sufficient for decisions. One way of setting lines of authority is to develop a policy on who can accept matters that are likely to generate ‘fees’ to a certain sum. For example, pro bono coordinators can approve matters below $X, a pro bono partner can approve up to $Y and anything beyond $Y must go to the committee. See also 1.3 Defining pro bono for the firm, 1.8 Coordinating pro bono work in the firm and 2.1 Casework procedures.
7Group emails
I have been receiving group emails from pro bono referral agencies. I start intake only to find out later that the matter was referred two hours after the initial email. What can I do about this? Group emails – or referring matters by any means to more than one potential legal service provider – may appeal to a referring agency in some circumstances. However they can have practical implications for firms. It is desirable that protocols be developed by referring agencies and firms. If a firm is considering taking a matter referred by group email and/or takes the matter, the firm could send an email to the group saying that they are considering or have taken the matter. In the absence of improved referral protocols, you might explain to referring agencies what the issues are for your practice and how you would like to receive referrals. If you do not wish to receive group emails, let the referring agencies know this. If you do receive such an email, you could if you wish respond by asking the sender to contact you again if they have exhausted all other avenues of referral. See 2.1 Casework procedures.
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8Problems with clients
I have a pro bono client who is not acting in accordance with the firm’s instructions. What should I do? When you establish your relationship with a client you need to be clear about the basis on which you are acting. You can send a letter of engagement indicating that if the client does not follow your reasonable advice then you will cease to act. Before terminating the relationship with the client, however, you should ensure that the client properly understands the advice which he or she has been given and the legal consequences of the decision they are taking. The client should also understand that the course of action they intend to take is against your advice and as a result you will cease to act. You also need to consider how serious the damage will be if they act against your advice. If it is only a minor matter, you may be able to continue acting. If it is a serious departure from your advice, it suggests that the client does not have confidence in the advice and you should consider withdrawing from the matter. Termination of the relationship is a serious step to take. It is desirable that a firm’s pro bono policy or procedures document makes clear who in the firm can make this decision and what steps will be taken before this occurs, for example, discussing the matter with the client.
I have a very difficult pro bono client who is giving our staff a very hard time and they are furious with me. What should I do about this? Often pro bono clients will have different expectations from commercial clients about the services you will provide. Generally the matter they are seeing you about impacts on their personal life and it is not part of their job, or their general skill set, to be liaising with lawyers. They might be slower than commercial clients to respond to your requests for information. Some pro bono clients will require more detailed and sometimes repeated information about their matter. Some will have particular needs that must be accommodated, for example, a disability that requires documents in a particular format. If these kinds of issues are explained to the lawyer taking on the matter, it might avoid situations that lead to the client being perceived as ‘difficult’ rather than just having different needs. An early assessment of the client by the pro bono coordinator (or other person responsible for intake) should be made in order to see whether or not they are likely to be ‘difficult’, and any perceived problems should be relayed to the lawyers taking on the matter. Some clients are difficult because they do not understand the way law firms work, have been forced to fight at each stage in the matter before they got to you, or do not understand the way the law or legal processes work. You should ensure at the beginning of the matter that clients understand what you are going to do for them, how long it is likely to take, the reasons for any requests you make, any deadlines in the matter (and what are not deadlines) and how the matter is likely to proceed. It may be wise to go over these if and when a client becomes difficult. Sometimes the pro bono coordinator will need to intervene in the matter and become a point of contact for the client. It may also be that one person working on the matter is better able to handle the client than others. It may be appropriate to instruct the client that they need to contact that person only. You should attempt to understand why the client is difficult and explain the client’s position to the solicitors. Very often you need to be a cultural interpreter for solicitors within the firm as well as for clients. It may be appropriate in some circumstances to move the matter to a person who perhaps has the skills to deal with the client. Depending upon the particular problems with the client, it may be appropriate to seek to resolve them by meeting with the lawyer/partner doing the work and the client. Where necessary and appropriate, the client may need to be reminded of the possible grounds for termination which should have been articulated in the letter of engagement.
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Finally, it might be appropriate to discuss the difficulties with the referring agency, particularly if they have had a long-term relationship with the client prior to the matter being referred.
9Hospital handpasses
I have just received a call from a person who received my number from another pro bono firm. What can I do about ‘hospital handpasses’ from other firms? If it is the case that you do not accept referrals directly, you should contact the firm which passed your details on and advise them of this. Bear in mind that the client may not be accurately reporting the circumstances of the referral. Again the development of a protocol between firms is useful. If a coordinator is unable to take on a matter but genuinely believes that the matter has merit, good practice would suggest that the coordinator (who may already have done at least some intake) would themselves refer the matter to another firm. In terms of the particular client who has contacted you, insisting that you take them on, you should explain that the firm has guidelines and you can only accept the matter if it comes within those guidelines.
10 Defining pro bono work
Some partners within the firm classify work for friends, family, school, etc., as pro bono when really it doesn’t fall within our agreed definition of pro bono work. How should I handle this? You should ensure that the definition of pro bono for acceptance into the pro bono program is clear and that, where appropriate, the definition specifically excludes work for family, friends and children’s private schools. This document should be circulated throughout the firm and be readily available on internal document management systems. If necessary and where appropriate, you could ask the pro bono partner (if your firm has one) or other supportive partners to help convey the message about the firm’s pro bono criteria. Consider regularly advertising the pro bono criteria within the firm. The pro bono criteria should be approved at the highest level in the firm (for example, by the Board). If you are then approached to do work that is outside the criteria, you can refuse on the basis that it is outside the firm’s pro bono criteria. You can explain that there are all types of matters which people would like to be able to do without charge but that the firm has determined the criteria for the types of matters the firm will act in without charge. Ensure that the partners are aware that the criteria have been approved by the firm’s managing body. Alternatively, you might advise the partner or other person who has approached you that whilst the matter may not fit within the pro bono criteria, there may be other reasons (such as public relations) why the firm might want to consider doing the work on an unpaid basis. For example, in one firm such work is undertaken on a ‘productive non-billable’ basis so that a person’s time is recorded but there is no fee credit applied. The decision to do this kind of work is not one that is approved under the firm’s pro bono procedures but rather a decision of the relevant practice group or managing partner. So it may be that the person in fact does the work but it does not come out of the firm’s pro bono budget nor is it counted towards the firm’s pro bono work. If your firm’s accounting system has a specific code for pro bono matters, you can check to see whether files that are outside the pro bono guidelines are being opened. Some firms have mechanisms in place so that no new pro bono matters can be opened on their system without the appropriate approval process having been completed. See 1.3 Defining pro bono for the firm and 1.11 Pro bono policy.
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11 Pro bono budgets
I have been asked to prepare a pro bono budget for my firm. We haven’t really had a formalised program before, so I have nothing to guide me. How can I accurately determine my firm’s annual pro bono budget? First you need to decide what will be accounted for within the budget. For example, is it just the salary or charge-out rate of the pro bono coordinator that will be taken from the budget, or do you also pay the cost for secretarial support, occupancy, or other charges often attributed to practice groups? You will also need to determine the types of work the scheme is likely to do. Litigation, for example, is expensive and time-consuming, however, you can do a number of short advices quite cheaply. Consider making provision in the budget for disbursements consistent with your firm’s policy on internal and external disbursements. Remember to include provision for conferences and seminars which are important networking and learning opportunities, such as community legal centre conferences and pro bono conferences. It may be necessary or desirable to allow for travel, for example, to interstate offices or to rural locations to develop pro bono opportunities. It may be worthwhile talking to other firms which are roughly the same size and have similar aims in their pro bono program to get an idea of what to budget for. See also 1.7 Setting targets and budgets.
12 Distributing pro bono work
Some lawyers in my firm complain they are approached too often with pro bono work while others complain that they never have the opportunity to do pro bono work. How can I achieve even distribution of pro bono work throughout my firm? It is unlikely that you will ever achieve even distribution of pro bono throughout the firm. Some areas of the firm will always have more of the skills needed to meet the needs of pro bono clients. Nevertheless there are ways to try to improve distribution. One approach is to work out in which areas your firm has strengths and then seek to build the pro bono program to match these strengths with community need. Another possibility is to develop expertise in areas which do not naturally fall into any particular group and train interested people across the firm. Teams of lawyers can be trained to take on work outside their general area of practice. For example, lawyers from any practice in the firm can be trained to do general advice work if your firm does outreach, or they can be trained to undertake work in a particular area such as refugee law, domestic violence court rosters or victims compensation work. In addition, many matters don’t fall within the expertise of a specific practice group but rely more upon general legal skills shared by all lawyers. These matters can be given to groups normally not receiving pro bono referrals. You could think about setting up a matching system, whereby a junior lawyer in a group that does not receive much pro bono work may be able to work under the supervision of a partner in another group. Where there is some discrete research task within a larger matter, you could ask the supervising partner to think about getting someone from another group to do that component of the work, provided this is not at the expense of quality of work. Think proactively about pro bono opportunities for groups that might not get many casework referrals. For example, is there scope for involvement in community legal education work? Would individuals in those groups be interested in secondment opportunities or being on the pro bono committee?
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Our firm receives frequent requests for pro bono assistance in one particular area. I am concerned that I am overworking those in this high demand area of law. What can I do about this? You need to consider capacity in accepting pro bono matters. If the demand is in one area you should consider whether or not you can train lawyers from another area of the firm to do this work. You need to balance what you can achieve given the human resources you have in that area of law. You may reach the stage where you decline further referrals in that area for a period.
13 Means tests
I find it hard to draw the line in relation to means tests. What means test do other firms use? Most firms do not have a specific financial means test but their definitions of pro bono work for individuals focus upon people who are disadvantaged and marginalised. The ability to pay for legal services, or otherwise obtain legal services, should be taken into account. So, for example, firms accept people who would fall outside the legal aid means test but who could not reasonably pay a lawyer. A degree of flexibility is important. It is a matter of the firm being satisfied that the particular person does not have the capacity to obtain other representation. In part this is a financial question but other matters may also be relevant, such as the area of law (for example, could the case be done on a speculative basis) or, for some firms, whether it is a public-interest matter. Firms will also take account of other matters, such as the likely resources required by the matter. See 1.3 Defining pro bono for the firm.
14 Unpopular matters
I have just received a referral for a matter that satisfies my firm’s means and merits test and is within our sphere of competence. However it is an unpopular matter for an unsympathetic client. How do I present this matter to the firm? The more you get to know people within various groups of the firm the more you will realise which solicitors and partners may be prepared to act in particular matters. It is better to send ‘unpopular’ work to sympathetic partners or solicitors to avoid generating ill will for the pro bono program. If you have a solicitor and partner prepared to act in the matter, it becomes easier to have the matter accepted by the firm. If the referral satisfies your pro bono criteria, this should be pointed out to the firm. If the engagement letter makes it clear that the firm is not prepared to act against the firm’s advice you can use this as a means of reassuring the partners that the matter will not get out of hand. Ultimately one of the reasons pro bono law can never replace publicly funded services is because firms have the option of declining instructions.
15 Commercial conflicts
How do I deal with commercial conflicts? Commercial conflicts in pro bono matters should be dealt with at first instance in the same way as for commercial matters. If you feel that the policy should be more relaxed for pro bono matters, you will need to speak to the person within your firm who is responsible for the conflicts policy and to the partners in charge of client contact in the areas where you wish to act pro bono and seek to have a pro bono specific policy.
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In particular cases, your firm could consider a dialogue with the client with whom there may be a perceived commercial sensitivity. It may be that they don’t find it problematic. In one firm, where a matter is potentially commercially sensitive, the coordinator might do an email to all partners asking for any reasons for the matter not being taken on (rather than asking if they think the firm should take it on). If there are any replies, there is then a discussion with those partners before the pro bono/managing partner makes a final decision. Consulting is a good protection policy in case of later problems and at least it provides an opportunity for some debate about the perceived conflict. The National Pro Bono Resource Centre is pursuing the adoption by governments of a protocol designed to assist in dealing with perceived government conflicts. See generally 2.4 Risk management.
16 Non-English-speaking clients
How should my firm accommodate pro bono clients from non-English-speaking backgrounds? Often if a client is referred by, for example, a community legal centre or legal aid, the referring agency will allow you to use the interpreting services available to them without charge. If that is not possible, the firm will need to ensure that there is a properly qualified interpreter to assist the client. It is not acceptable to have friends or family interpreting anything but the most basic conversations (for example, to organise an appointment). The firm needs to accept that it will sometimes need to bear the cost of an interpreter in order to ensure equal access to its pro bono program by people from all backgrounds. See also 4.6 Interpreter services.
17 Part-time pro bono coordinators
I am a part-time pro bono coordinator. How do I balance client work with pro bono administration and work? In part, the answer depends on how your pro bono administration time is credited. If you don’t get any credit for this time, you will probably fit the pro bono work in around the edges and never feel as though you can spend much time on it. If you are able to record your time as if it were a normal file, or if you get fee relief for a portion of your time, you will do more of it and will feel less pressured. In either event, it is an ongoing challenge because administrative tasks can get pushed to the side when particular client matters demand attention. It might help if you set aside a particular day(s) or afternoon(s) each week (depending upon how part-time your pro bono work is) which you try to designate as pro bono administration time. If you are a part-time coordinator it is important to review your status as the program grows. For example, in a particular firm one day per week may be sufficient at the development phase of a pro bono program, but insufficient twelve months later. It is a good idea to keep detailed records or time sheets of all time spent on pro bono intake, administration and matters. Many junior lawyers and support staff are keen to support the firm’s pro bono program, so you may be able to delegate discrete administrative tasks, such as minuting committee meetings and preparing agendas or maintaining pro bono administration files.
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18 Sourcing work
Where do we find pro bono clients? Those in the community legal sector are best placed to identify pro bono clients. This is because they work in areas and organisations that are accessible to people who are disadvantaged or marginalised and they have a good idea of the legal resources available to assist clients. Generally if you are contacted by such an agency it is because they are aware that there is no other form of support available. You should build contacts within the community legal sector including with Indigenous legal services, community legal centres and legal aid. In addition, if there are pro bono referral schemes in your state, these can be an additional source of work. If you develop an interest or expertise in a particular area, you may wish to contact the peak bodies for that area (for example, if you were developing expertise in issues for people with a disability you would contact disability organisations). See 1.6 Identifying needs and sources of work.
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3 Precedents and pro formas
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 programs. The documents have been rendered anonymous and are provided as practical examples and are not intended to be definitive or exhaustive. The commentary in 1 Planning, developing and maintaining a program and 2 Procedures and practice issues refers to these documents at relevant points. The materials in this section are likely to be of use to firms in the process of developing their pro bono programs and also to firms with established pro bono practices. For example, firms drafting or revising their pro bono policy may get useful ideas from the sample policies included at 3.1; documents relevant to a firm’s procedures for dealing with requests for assistance and matter management can be found at 3.2–3.3 and 3.5–3.10. Firms wishing to adopt procedures to facilitate evaluation of their pro bono casework may be assisted by the sample forms at 3.9 and 3.10. Firms developing engagement letters for pro bono matters may benefit from the samples at 3.3. The section also includes a sample memo and questions that a firm could include in a firm-wide survey of pro bono (3.4), examples of secondment agreements (3.11) and material relevant to encouraging pro bono work (3.12). Firms should adapt or modify the materials in this section to suit their own requirements. Where relevant, firms should check the relevant legislative and professional requirements in their state or territory. The National Pro Bono Resource Centre intends 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 the Centre at [email protected] to discuss their inclusion in updates to the manual. The Centre is extremely grateful to the firms who have already shared their materials for the manual and encourages other firms to do the same. The online version of this manual allows each of these precedents and pro formas to be downloaded in Microsoft Word format for adaptation according to firms' requirements.
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1Sample Pro Bono Policies
Sample pro bono policy: 1
Pro Bono Scheme – National Policy & Guidelines
1Introduction [Firm] has a long tradition of pro bono work, particularly in its Sydney and Melbourne offices. This has included carrying out legal work in-house on a no fee or reduced fee basis, participating in court rosters, assisting on a voluntary basis in community legal centres and entering into secondment arrangements with community legal centres and the Public Interest Law Clearing House. In 1999 the firm decided to increase and formalise its involvement in pro bono work with the annual allocation of approximately 1% of gross national turnover to pro bono and through the development of a national pro bono scheme with national policy and guidelines. A major objective was to ensure that the scheme operates effectively, by being focussed and properly coordinated. A Pro Bono Steering Committee was formed, chaired by [..], then Chairman to direct implementation and National Pro Bono Partners and a full time National Pro Bono Coordinator were appointed. The purpose of this document is to describe the scheme and its rationale, to assist in setting it up and to set out guidelines for its operation.
2 Definition of pro bono work Pro bono work for the purpose of the [Firm] scheme means "legal work provided free of charge, or for a substantially reduced fee to the same standard as the rest of the firm's work, for • disadvantaged or marginalised people who cannot afford legal services, • non-profit organisations working for such people, or • work for the public good on matters of broad public or community concern”. To make the best use of the firm's pro bono resources and to maximise the impact of the scheme, the firm will, from time to time, nominate certain legal areas or client groups upon which it shall focus attention or to which it will give special priority (see 4 Features of the Scheme: Targeted Areas, below). Pro bono work is not limited to litigation but includes a full range of legal activities including legal opinions and advice, drafting of documents, research, negotiations, involvement in law and legal policy reform and community legal education. Pro bono work does not include work performed at no charge as a favour to a friend or an existing or prospective client for "business development" reasons. Nor does it include work performed for private schools, clubs or other organisations (such as arts and cultural organisations) with which a lawyer has an association, meritorious as these activities may be.
3The benefits of a pro bono scheme The benefits of a well-constructed pro bono scheme accrue to the community, the firm and its employees, and can be summarised as follows:
Community benefit The community stands to benefit through the pro bono scheme as the scheme makes available the skills, talents and resources of the firm and its people to people and organisations which would otherwise not have access to them.
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Pro bono work has historically been regarded as part of a lawyer's professional duty. While this ideal may be perceived by many today as having been eroded, the firm accepts and takes seriously a responsibility to contribute to the community and, in particular, to assist disadvantaged people. A more focussed, targeted effort under the pro bono scheme should maximise the impact of the scheme for the community.
Firm benefits The firm clearly stands to benefit from: • the enhanced professional development and varied experience gained by its lawyers; • the enhanced morale of employees who gain from these opportunities, or simply value the fact that they work for a firm that values more than “bottom line” profits; • the enhanced recruitment opportunities with potential employees, particularly summer clerks and student graduates; and • the improved client and public perceptions of the firm. Having a formal policy and a properly designed scheme will also mean: • better supervision and quality control of pro bono work carried out within the firm; • an opportunity to track and record the pro bono work that the firm does and consequently, to monitor the benefits and the costs; • the potential for a more focussed, targeted effort that should maximise its impact for the firm.
Employee benefits Lawyers and other employees benefit from: • enhanced professional development, • varied and life enriching experience, and • enhanced morale. Many partners and employees enjoy and benefit personally from the opportunity to make a social contribution in this way.
4Features of the scheme The firm believes that, to maximise its success, the scheme must: • have the clear support of the firm's leaders and be professionally planned and managed, • have a substantial, dedicated budget, • be nationally coordinated but locally administered, • have both in-house and external components, • be targeted to areas of greatest need and where the firm's skills and resources can best be utilised, • ensure that, to the maximum extent possible, pro bono work is treated, performed and credited in the same way as other work that the firm undertakes, • ensure that all interested personnel at all levels within the firm can participate, and • operate according to a clear policy, guidelines, and procedures.[115]
Leadership, planning and management The firm's long tradition in pro bono work has already been mentioned, and the current scheme has the strong and manifest support of the firm's senior management. The Board's decision to increase and formalise pro bono efforts followed proposals from senior partners and was unanimously taken.
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The firm's Chairman convened the Pro Bono Steering Committee and the Chairman from time to time sits on the National Pro Bono Committee. An essential component of the design of the scheme is that it is managed and coordinated by people with sufficient time, expertise and seniority to command respect and to ensure high-quality, effective work.
Budget and allocation The budget for the scheme is 1% of gross annual billings which, after retention of 10% by the National Committee for discretionary purposes, is apportioned between state offices in proportion to their contribution to national turnover.
National coordination The scheme has a national policy framework. Major decisions and strategic directions are set at a national level to ensure uniformity and maximum impact. However, within that, the state offices administer the scheme according to local circumstances and needs, and with scope for local initiative and innovation. Individual case allocation and management, and relationships with local community agencies, including arranging secondments are substantially state matters. The full-time National Pro Bono Coordinator will assist states to establish, develop and operate the scheme in a consistent, coordinated way.
In-house and External Components The scheme has both in-house and external components. The in-house component involves the use of the firm's lawyers in carrying out legal work for pro bono clients. It provides an opportunity for all lawyers who are interested to participate and is valuable in developing and maintaining a culture of community responsibility. The in-house component is not restricted to litigation, but includes the full range of legal activities.[116] There is a capacity and willingness to undertake routine cases and matters as well as major legal projects, and test case litigation. The external component provides scope for the firm's lawyers to work in a range of agencies providing legal services to disadvantaged people or engaged in other activities within the definition of pro bono work. This includes secondments to community legal organisations[117], citizen's advice bureaux, legal aid offices, community or charitable organisations, international aid agencies and courts or tribunals dealing with clients and matters relevant to pro bono work. A strong external program maximises the social contribution the scheme can make. Community legal centres and similar agencies are located in places and operate in ways which are accessible to and geared to meeting the needs of clients who are likely to benefit from the service. Secondments can, if handled properly, increase the ability of the agencies to meet their clients' needs. The external program involves establishing and maintaining strong links with people and organisations which understand community needs well and are best placed to identify cases and issues which would benefit most from the firm's involvement. The external program also allows for the development of legal skills and provides personal development opportunities for the firm's lawyers, including those on rotation. Finally, some cases and causes which might, if handled internally, create conflicts of interest for the firm, can sometimes be conducted or assisted through external agencies.
Targeted Areas While any work which meets the guidelines is eligible under the scheme, the firm will from time to time identify certain categories of law, geographic areas and/or groups of clients where it believes there is a special need and where the firm's skill can best be utilised. Priority is to be given to work in these areas.
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One such area is that of direct assistance to non-profit organisations working for disadvantaged or marginalised people. This may be provided in-house in the form of legal advice, representation, drafting or other legal work, or may be in the form of temporary secondment for a particular project, or by the provision of in-kind assistance (see 7 Guidelines for External Pro Bono Work: In-kind assistance below).
Equality of Treatment Pro bono work is treated, as far as possible, in the same way, according to the same procedures, with the same diligence and timeliness, subject to the same supervision and review and with the same recognition for time spent, as any other work undertaken by the firm. Lawyers performing work on a pro bono basis will receive full fee credit in the same way as any other work undertaken by them for the firm.
Maximum Participation The scheme allows for participation by all interested lawyers and other personnel at all levels within the firm and should make the best possible use of the high level and diverse skills that the firm possesses.
5Structure and management of the scheme The structure recognises that decision-making needs to take place at both a strategic level and an operational level. It also recognises that some matters are better resolved at the state level and others, that are relevant to the overall operation of scheme, must be resolved at a national level. It encourages participation of interested staff from all levels and it allows the flexibility necessary to take account of different sized state offices
The National Structure There is a National Pro Bono Partner, a National Pro Bono Coordinator and a National Pro Bono Steering Committee. The latter has evolved from the project steering committee with extra membership as State appointments are made and implementation progresses.
(a) National Pro Bono Partner The National Pro Bono Partner is charged with: • the general strategic oversight of the firm's pro bono scheme from a national perspective • ensuring that potential conflicts of interest are identified and dealt with, and • ensuring the scheme's cohesion and performance against its goals and budget.
(b) National Pro Bono Coordinator The National Pro Bono Coordinator is a full-time employed solicitor, initially based in Sydney office, whose functions are combined with a State coordinator's role (see below). With the National Pro Bono Partner, the National Coordinator assists States (particularly the smaller ones) with the establishment, development and on-going operation of the scheme, and ensures that lessons learned in one place are applied elsewhere. The National Coordinator is expected to have a Pro Bono case load of their own as well as advising on major cases and promoting the scheme both internally and externally.
(c) National Pro Bono Steering Committee The National Pro Bono Steering Committee is a strategic decision-making body to oversee the establishment and on-going operation of the scheme. The Committee comprises the National Pro Bono Partner and Coordinator, one member from each of the state Pro Bono Committees, a Board representative, a representative of the Human Resources
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Director and a person from outside the firm with experience in “poverty law”, legal aid and/or public interest law. It has the power to co-opt others as necessary. Members of the Board and the Executive Group have a right of attendance at any time.
The State Structure There is a State Pro Bono Partner, a State Pro Bono Coordinator at senior solicitor level and a State Pro Bono Committee to be established in each state. The Committee should be formed from professional and support staff with an interest in the area. The functions of each of these is as follows:
(a) State Pro Bono Partner The Pro Bono Partner in each state is responsible for: • liaising with their national counterpart; • strategic oversight of the state scheme; • resolving issues of conflicts of interest at a state level; and • monitoring pro bono policy in their state and its performance against its goals and budget. The State Pro Bono Partner will be appointed by the State Managing Partner, and if no other partner is so appointed, the State Managing Partner will be the State Pro Bono Partner.
(b) State Pro Bono Coordinator The State Pro Bono Coordinators are normally employed solicitors with an interest in pro bono work who are expected to devote a fixed percentage of their time to the scheme and their time is billed against the pro bono budget for this work. In Sydney, this is a full-time position, when combined with the National position. The State Pro Bono Coordinators are the central point of contact for both internal clients and external pro bono agencies. Their responsibilities include: • processing pro bono applications; • maintaining and circulating an up-to-date record of all pro bono work being handled by the state office; • monitoring regular billing of pro bono matters in accordance with approvals; • liaison with external agencies involved in the provision of pro bono legal services; • reporting to and liaison with National Steering Committee and National Coordinator; • reporting to and liaising with the State Pro Bono Committee through regular meetings, internal seminars and workshops; • preparing material for information and marketing purposes; • monitoring performance against the pro bono budget; and • monitoring performance against the pro bono policy. (c) State Pro Bono Committee The Pro Bono Committee in each state comprises the State Pro Bono Partner and Coordinator plus such other persons as they determine. The State Pro Bono Committees are a way of allowing a wide range of involvement in pro bono policy and activities. They are a group of professional and support staff members who volunteer their involvement in the pro bono scheme. Their responsibilities include: • making recommendations as to the suitability of referred pro bono legal work; • communicating with the State Pro Bono Coordinator and the State Pro Bono Partner; and
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• periodically reviewing the scope of the state's pro bono policy. The roles of the partners in this structure is largely strategic and oversight, whereas the coordinators is largely operational. The roles are both internally and externally focussed and include, at their respective levels, responsibility for the scheme fulfilling its objectives. To that end, they are responsible for promoting the scheme internally and externally and for monitoring its effectiveness. The proportion of partner and coordinator time spent on the pro bono scheme is determined by State Managing Partners according to the needs and size of each state office, but allowing sufficient time to perform the functions described and to ensure that the scheme operates effectively and efficiently. The pro bono partners meet periodically, usually in connection with other partnership meetings. It is also desirable that the pro bono coordinators meet at least annually.
6Guidelines for in-house pro bono work The following national guidelines apply across the firm:
Sources of referrals It is desirable that pro bono matters come to the firm by way of referrals from an existing community or legal aid agency, which can act as a "filter" for the scheme. These agencies are closer to the coalface and thus better placed to identify cases and issues of real need and merit. They can also be useful in helping to determine whether or not a client could afford to pay for their own representation and whether there is an alternative, preferable way of having the matter dealt with. These sources of referral include: • community legal centres, • Aboriginal legal services, • the Legal Aid Commissions, • PILCH (the Public Interest Legal Clearing House), • the Law Society/Institute and Bar Association referral services, and, on occasions, • courts and tribunals. Of course, some matters will inevitably come from within the firm or from other sources. These are to be assessed and approved in the same way and according to the same criteria. They should not receive preferential treatment.
Intake Matters accepted by the firm as appropriate to be undertaken as pro bono matters should meet the following guidelines: • they should come within the firm's definition of a pro bono matter; • the firm should have the appropriate skills and present capacity to undertake the matter and to see it through to its conclusion; • there should be no other more appropriate avenue of assistance available for the client; • there must not be a conflict of interest (see Conflicts of interest below). Priority is given to work falling within an area that the firm has decided to target (see 4 Features of the Scheme: Targeted areas above). There is no formal means test, but a general inquiry should be made as to the client's capacity to pay for legal services sought. In public interest and test cases for the public benefit, capacity to pay will be a less relevant consideration. There is no formal "merit" (ie prospects of success) test, but clearly cases with no prospect of success would not usually be undertaken.
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Matter assessment Pro bono matters should be assessed in the first instance by the State Pro Bono Coordinator who is authorised to approve the intake of matters involving likely expenditure of $5,000 or less. Allocation of matters in excess of $5,000 should be approved by the State Pro Bono Partner. In matters likely to exceed $50,000, the National Pro Bono Steering Committee should be consulted to ensure that it meets national priorities.
Allocation, registration and supervision Matters are allocated to solicitors by the State Coordinator in consultation with the solicitor's relevant group convenor or supervising partner, on the basis of expertise, availability and interest. All pro bono matters should be registered and their progress monitored (but not supervised) by the State Coordinator.[118] Participation in pro bono work is encouraged but is not mandatory. This is subject to the normal expectation that a solicitor, except in unusual circumstances, will undertake work that is assigned to him or her by a supervising partner or group convenor who considers that a matter is appropriate for them to handle. There is no upper limit placed on the amount of pro bono work that a lawyer in the firm could undertake (provided, of course, it is inside the pro bono budget) unless this is limiting the opportunity for other lawyers within the firm to undertake such work. This is consistent with the notion that pro bono matters should, as far as possible, be treated in the same way as other work in the firm.
First interviews and terms of engagement Given the lack of sophistication of many potential clients and their inexperience with the law, special care may be needed in communicating expectations and the way a matter is likely to proceed. The State Pro Bono Coordinator should sit in on the first interview with pro bono clients in most cases and should ensure that the terms of engagement are clearly articulated and understood.
Disbursements There is a cash budget allocation for disbursements in pro bono matters involving a cash outlay, such as medical or other expert reports, court filing fees and the like. Internal disbursements such as photocopying, faxing etc are charged at cost plus an overhead margin. State Pro Bono Coordinators should be aware and make use of the various mechanisms in each state for obtaining funding for disbursements. For instance, the Law Society of NSW administers a Pro Bono Disbursement Fund. Legal Aid is sometimes granted for the payment of disbursements if the matter is taken on a pro bono basis. Some courts have special provisions for seeking relief from the payment of court fees. Pro Bono Coordinators should take an active role in monitoring disbursements and seeking disbursement relief where available.
Recovery of costs Some cynicism has developed in the legal aid community against law firms who boast that they do not charge their clients for work undertaken, but then only take litigation cases they feel assured of winning and thus recover costs, at least on a party-party basis. Some of these firms go further by undertaking such work on a percentage basis and thus recover more than they might have been entitled to on a solicitor-client basis. Matters where costs are likely to be recovered and a solicitor is likely to take the matter on a 'no win – no fee' basis would generally not be taken under the pro bono program as there are other sources of assistance available.
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The firm has a strict policy whereby any costs recovered are added to the existing pro bono budget with the firm's financial contribution to the pro bono program remaining the same.
Charging for pro bono work It is sometimes suggested that clients who cannot afford to pay full fees should, if they are able, make some contribution. However, the difficulties involved in making these assessments, and the trouble sometimes encountered in recovering the fees charged, usually makes this an unattractive proposition. This firm does not charge individual clients except where costs are recoverable from another party. When costs are recovered, clients will be charged the standard [Firm] charge out rate. Contingency fees are not to be charged. In the case of non-profit organisations with the capacity to pay, a substantially reduced fee may be charged.
Adverse costs orders Clearly, it is one thing to obtain free legal representation but, in the event that court proceedings are not successful, an adverse costs order can be devastating to the client. This is a concept little understood by many pro bono clients and must be properly explained, where applicable, at the outset of the matter. The NSW Legal Aid Commission Act provides an indemnity against such orders for people in receipt of legal aid, subject to certain exceptions (see ss 30 & 47 Legal Aid Commission Act 1979 (NSW)). Similar arrangements may apply in other states. The decision whether to underwrite or indemnify pro bono clients against an adverse costs order should be made on a case by case basis and articulated to the client from the outset.
Conflicts of interest The scope for both legal and commercial conflicts of interest for the firm in carrying out pro bono work is clearly substantial. This applies to in-house and external activities, including the question of which agencies the firm should have close relationships with. Such conflicts, of course, arise regularly in all large firms, and the likelihood of them arising in connection with pro bono activities should cause no great alarm. The issue does not arise as frequently in practice as might be expected once a matter has been accepted within the program. The most sensible and principled way to deal with conflicts is to confront them on a case-by-case basis in a conscientious and ethical manner, rather than to make any blanket rules. Conflicts of interest are to be dealt with in accordance with the firm's conflicts management procedures and policy.
7Guidelines for external pro bono work The following guidelines are universal across the firm:
Agencies Agencies with which the firm works should be non-profit organisations working for disadvantaged or marginalised people, or performing work that falls within the firm's definition of "pro bono work". Selection of agencies should primarily be a state matter, but the National Pro Bono Committee should be consulted to ensure that they are consistent with national objectives.
Secondments While almost any assistance is welcomed by cash-strapped community agencies, the firm should be sensitive to the fact that secondments are difficult to manage and can be severely disruptive,
Australian pro bono manual 115 3 Precedents and pro formas particularly to small agencies. The firm can assist greatly by making arrangements well in advance, in full consultation with the agencies, by adhering to these arrangements as far as possible, and by taking steps to ensure smooth transitions between secondees. Lawyers on secondment should be placed for sufficiently long periods (at least six months) to ensure real benefits for them and for the agencies with which they are placed. Also, full-time secondments are generally of far greater benefit to the agency and to the lawyer than part-time (such as one day per week) secondments, although there may be circumstances, in consultation with all concerned, when a part time secondment is preferable. Finally, from a practical point of view, a six-month secondment may cause difficulties for the agency if it does not continue. These are formal arrangements and should be committed to writing. They should cover such matters as the period of the placement; the frequency if part-time; legal responsibility for lawyer's work; insurance including professional indemnity insurance, and salary. It is usually preferable that secondees work with other lawyers rather than in isolation. Thus, where possible, preference should be given to secondments in organisations that are already performing work that falls within the definition of "pro bono work”. It is vital that secondees are well supported by the firm and are not abandoned to their placement. They should receive regular debriefings, some of which should be in situ. They should also continue to receive all relevant in-house communications and be invited to meetings and social functions. Pro bono secondments should only ever be voluntary.
Rotators The firm's rotator scheme has been extended to allow rotators who wish to do so, to undertake a secondment of six months as (or after) their third rotation and prior to their return to their substantive practice group without prejudice to their career progression.
Volunteer lawyers When and where lawyers volunteer their time is a matter for them. However it is in keeping with the firm's pro bono spirit and culture to encourage and support to such initiatives. This support usually involves no more than being prepared, within reason, to allow lawyers to leave work in sufficient time for them to perform their volunteer duties and to permit them to make phone calls and to perform other minor work on community agency matters in firm time. It should also be made clear to all concerned that volunteer lawyers are acting personally and not on behalf of the firm. On the other hand, there may be occasions when volunteer positions may be converted to firm secondments with the approval of the State Pro Bono Partner, provided it meets the external Pro Bono guidelines.
In-kind assistance It is easy to underestimate the value to small community agencies of in-kind assistance such as access to library or internet information and research resources, access to entertainment or conference facilities, donations of superseded equipment and access to specialised legal and other advice. The firm’s pro bono scheme allows and encourages the provision of such assistance.
Date: January 2000
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Sample pro bono policy: 2
Pro Bono scheme
1 Pro Bono Work We are committed to pro bono work and to developing a coordinated, focused, well balanced and meaningful pro bono practice. The phrase pro bono derives from the Latin pro bono publico meaning for the public good. It usually refers to the provision of legal services either free or at substantially reduced cost to those who would otherwise be unable to protect their lawful rights and interests. The firm’s criteria for pro bono work is relatively broad so as to increase our commitment to people in need and causes that benefit the community. Our substantial charity client base enables the firm to best utilise our core expertise as corporate lawyers, while acting in the interests of the public good.
2 Criteria for Selection of Pro Bono Matters
Criteria for selection In order for a pro bono matter to be undertaken by the firm, the committee must be satisfied of the following. (a) The work: (i) establishes or preserves the rights of those who cannot afford professional legal advice without subsidy (other than in respect of purely commercial disputes), the disadvantaged or marginalised, or classes of persons who otherwise deserve public support; (ii) seeks to further a particular public good, correct a perceived injustice or otherwise address issues which are of broad community concern; (iii) assists non-profit organisations having objects for the benefit of the public, sections of the public or the natural world; or (iv) improves the laws or the administration of the legal system from the perspectives of availability, efficacy, equity or justice (including through law reform participation and legal education). (b) The work is in the form of providing legal advice, representation or using legal skills. For example, community service is not regarded as being of a pro bono nature for this purpose but time spent by members of the firm where our legal skills and training are used other than for a specific matter will generally be recorded by the firm. (c) The matter does not create a legal conflict of interest with another existing or former client of the firm. Commercial conflicts may impact on the decision to act if the nature of the matter or the identity of any current client or the pro bono client is such as to warrant the firm not acting. The committee will consider whether commercial conflicts can be dealt with by receiving the consent of the fee paying client. (d) The matter falls within the professional expertise of the partner who will be responsible for it.
Additional criteria (a) In complex cases or cases where the committee is unsure whether to act, the committee may consider the following means and merit tests.
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(i) Means test: A general enquiry may be made of an applicant’s capacity to pay for legal services to ensure they properly come within the objects of the firm’s pro bono policy. If the applicant is in receipt of welfare benefits he or she will, prima facie, meet the informal means test. Satisfying a means test is unlikely to be a consideration in clear public interest cases. In addition, where the client is a charity or non profit organisation with public good objects a means test will not be applied. (ii) Merits test: Although there will be no formal merits test, all litigious matters should have reasonable prospects of a successful outcome and comply with legislative ‘merits’ requirements in relevant states. In NSW, Division 5C of Part 11 of the Legal Profession Act (1987) (the ‘NSW Act’) provides that a solicitor or barrister must not provide legal services on a claim for damages or defence of a claim for damages unless the solicitor or barrister reasonably believes on the basis of provable facts and a reasonably arguable view of the law that the claim for damages or the defence of a claim for damages (as appropriate) has reasonable prospects of success. See the NSW Civil Liability annexure to this policy for further details. Where we are asked to act for a client in place of other lawyers, the committee will need to be satisfied that the circumstances in which the client is changing firms do not suggest that the firm should not act. (b) The cab rank rule does not apply to the firm. The committee will assess matters against the selection criteria in this policy on a case by case basis. In particular, when considering litigious matters the committee will have regard to future staffing availability. In controversial or difficult decisions, managing partner signoff may be sought by the committee and where the matter is sizeable then executive or deputy executive partner sign off will be sought to confirm we have the capacity.
3 The Firm’s Policy (a) Pro bono work is of equal importance to fee paying work and for all purposes must be treated in the same way. In particular: (i) pro bono matters should be initiated, conducted and supervised by a partner in the same way as fee paying matters; (ii) matters of a pressing commercial or litigious kind will be given equal priority as for similar fee generating work; and (iii) solicitors will be given credit for time spent on a pro bono matter in the same way as for fee paying matters. (b) Solicitors will be asked to specify their pro bono activities in the self-assessment forms filled out for performance reviews.
4 Opening and Conducting a Pro Bono Matter
Receiving instructions You may be asked to take on a pro bono matter by the committee, by a partner or directly by a prospective pro bono client (eg, a charity or community group). You may only open a pro bono matter if either: (a) it has been referred to you by the committee; or (b) the committee has approved the matter.
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Approval by the Pro Bono Committee The committee must approve all pro bono matters for new and existing pro bono clients. The committee will consider whether the matter should be approved on the basis of the criteria set out in section 2 and, where relevant, the firm’s general policy for opening new matters, including assessing risk management issues. The matter will be referred to the managing partner by the committee for approval where it is unusual or sensitive.
Opening matters Before opening a pro bono matter you must carry out a conflict search in the usual way to ensure it does not create a legal or commercial conflict of interest with another client of the firm.
Fees and Disbursements Before opening a pro bono matter you should discuss with the client and, where relevant, the supervising partner appropriate arrangements in relation to fees and disbursements. Once established, these arrangements should be set out in an engagement letter for the matter (see Engagement letters, below). (i) Fees Usually the firm undertakes pro bono matters for no cost, particularly where the client is financially disadvantaged (whether in absolute terms or relative to the expected cost of the matter). However, in some circumstances it may be appropriate to charge a reduced fee or fees which exceed a certain limit, for example where the pro bono client is a charity or other non profit organisation which has substantial funds. The preference is for this to be determined by the committee, having regard to the client, the nature of the matter and the current level of pro bono work undertaken by the firm, however individual partners will be able to take their own view. Where the matter is litigious, consider entering into a conditional costs agreement so that the firm can recover costs if the proceedings are successful (but make sure you consider carefully the requirements of the Legal Profession Act relevant to your state). A matter will not be pro bono merely because it is taken on a success fee basis – it must satisfy the pro bono criteria referred to above. Note that where we charge a fee (even at a reduced rate) to a pro bono client, GST will be added to our bill unless the matter relates to GST free services. In NSW, if the matter involves a claim or defence of a claim for damages (defined to include any form of monetary compensation) relating to the death of or injury to a person caused by the fault of another person, the costs for legal services that our client may be able to recover with respect to party and party costs may be capped by Division 5B of Part 11 of the NSW Act. (ii) Disbursements The firm will generally bear disbursements such as fax, photocopying, postage and courier which are less than $500 in total for the matter. The client will usually bear out-of-pocket and third party expenses (such as search, filing and lodgement fees and counsel's fees). In relation to some of these fees such as counsel's fees, you will have to indicate at the time of billing whether the relevant services were acquired by the firm as agent of the client or by the firm as principal. That impacts on the GST treatment of our bill. If the client is or may be unable to pay disbursements over $500 or its expenses, please consult the committee. In exceptional circumstances all or part of them may be paid by the firm.
Engagement letters You must send out an engagement letter for a pro bono matter in the same way as for a fee paying matter. You will need to adjust the section on fees and disbursements in accordance with the arrangements agreed with the client. If no fees will be charged you should state that and, if relevant,
Australian pro bono manual 119 3 Precedents and pro formas include any assumptions/scope of work beyond which fees will be charged. Similarly, with disbursements you should state which disbursements the client will be expected to cover (with an estimate of those amounts) and those which the firm will cover. In NSW, if fees are to be charged and the matter involves a claim or defence of a claim for damages (defined to include any form of monetary compensation) relating to the death of or injury to a person caused by the fault of another person, our costs may be subject to legislative limits imposed by Division 5B of Part 11 of the NSW Act. In these circumstances you must ensure that we clearly contract out of the cost limitations in Division 5B in our engagement letter. If we are engaging counsel or agents on behalf of the client: (a) the ‘costs’, in respect of which we contract out of Division 5B, should expressly include the costs for legal services provided by barristers or agents that are incurred in connection with the matter; and (b) a letter should be sent to the barrister and the agent (if the agent is a solicitor).
Time recording and billing You should record your time in the same way as for a fee paying matter. To the extent fees and disbursements are to be billed this should be done through the usual billing system. If you are charging a reduced fee you should bill that monthly, subject to any agreement reached with the client. Subject to any alternative arrangements, disbursements on pro bono matters will be billed on request and at least once a year or at the end of the matter. Accounts will send a ledger report at the relevant time on each matter asking whether disbursements should be billed or written off.
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Sample pro bono policy: 3
Pro Bono Scheme
What is Pro Bono work? Pro Bono work is work undertaken by law firms, legal organisations and lawyers in the provision of assistance to people or groups who require legal representation but who would otherwise be unable to obtain it and would therefore suffer an injustice. In particular, pro bono work at [Firm] relates to work done: • which requires the use of professional legal skills • for people who cannot afford a lawyer or who have no other real access to the courts and the legal system and for whom legal aid is not available • without a fee or without expectation of a fee or at a reduced fee • that raises an issue of public interest • for non-profit organisations such as charitable organisations who work on behalf of members of the community who are disadvantaged or marginalised • relating to law reform.
Why do it? [Firm] believes that the provision of pro bono assistance to organisations and individuals is a valuable contribution both to our firm and to the community at large. Participation in pro bono work is an individual and voluntary decision by each Partner and Solicitor at [Firm]. Pro bono work may provide the opportunity for professional and personal development and often presents opportunities for experiences outside the more typical city law firm work. The Pro Bono Policy has the commitment and support of the Partnership and pro bono work is strongly encouraged. The firm has established a Pro Bono Committee which meets monthly. The Committee comprises [names]. The role of the Committee is to allocate pro bono work from clients, monitor the pro bono work the firm handles and report to the Management Committee, make recommendations for new pro bono clients and be a discussion forum for queries from partners or staff. Along with many major Australian law firms, [Firm] is a member of PILCH, the Public Interest Law Clearing House, which will be a referral source for pro bono work. In addition, the firm has close associations with the [named Community Legal Centres].
Procedures for undertaking Pro Bono work at [Firm] Pro bono matters are handled in exactly the same manner as all others. The highest standards of work must be maintained at all times in relation to file work and liaison with the client; files will be supervised in the usual manner. All correspondence must be signed by your supervising Partner. Partners and staff interested in undertaking pro bono work should consult with [Pro Bono Partner] in regard to Litigation matters and [Partner] for Commercial matters. A register of interested practitioners can be found on the [Firm] pro bono Intranet web site. If you wish the firm to handle a specific pro bono matter you should follow the procedure outlined below.
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Categories of Pro Bono work Pro bono work falls into 2 categories:
(a) Work done externally and after hours For example, work at voluntary legal services or charitable organisations. This does not need approval of the pro bono partners however the Pro Bono Committee would like to be informed of this work so a register can be maintained. The time undertaken is to be recorded by the partner or staff member.
(b) Work done in firm time and using the firm’s resources (i) This work will either by referred to the firm by PILCH or other organisations and if so will be directed to the pro bono partners who will contact staff directly for assistance or e-mail those listed on the Pro Bono register. (ii) Alternatively, Partners and staff can refer requests for the firm to do pro bono work to the pro bono partners.
Approval Process (i) Prior to undertaking any pro bono work the staff member should discuss the expected time commitment with their supervising partner to ensure they have their support to do the work. (ii) Work can be referred to [Pro Bono Partner] for approval. (iii) Work done externally and in the staff member’s own time does not require approval of the pro bono partners, however as noted above ideally the pro bono Committee will be advised of your involvement. (iv) A conflict search must be undertaken prior to any pro bono work being accepted by the firm as with any usual file. Work which may represent concern for the firm’s existing clients may not be approved. Not all pro bono requests will be undertaken. (v) Approval will ideally be provided without delay unless the matter raises issues which the Pro Bono Committee will need to discuss in a meeting or which will require Management Committee approval.
File Management Procedures (i) Pro bono matters are now treated in the same way as chargeable matters. A detailed memorandum outlining the procedures that are now in place can be found in Imanage Document #. For reference, the Control Code is […] the Client Code is […], the Classification is […] and the Description should read [Firm: pro bono] then details of client. (ii) The work will be supervised in the usual manner by the responsible partner. The pro bono partners require 3 monthly reports in relation to each file. These reports should be sent by e- mail to the Pro Bono Committee. (iii) A draft bill is to be prepared on each file and sent to the pro bono partner. The particular practitioner will then be allocated an appropriate equivalent in costs based upon the reasonable time spent on the matter. Bills are to go to [Pro Bono Partner] in the first instance. (iv) The firm monitors the time spent on pro bono work and the equivalent financial commitment being made on an annual basis to pro bono matters. (v) The Pro Bono Committee reports to the Management Committee on a 3 monthly basis.
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General Points • The firm will continue to establish further guidelines regarding the nature of the work. • The Pro Bono Committee and the firm will consider establishing appropriate relationships with referring organisations; community legal centres, Law Society and the Bar Association in addition to the current membership of PILCH. • Your comments and feedback about the firm’s policy or generally about pro bono issues are welcome to be sent to the Pro Bono Committee e-mail group or to any members of the Committee. • It is worth outlining that Pro Bono work is not: (i) work undertaken for a business development purpose. (ii) work undertaken at reduced rates for employees, acquaintances, family or clients of the firm or work undertaken as a loss leader. (iii) work undertaken for the primary purpose of having junior solicitors gain more experience.
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Sample pro bono policy: 4
Pro Bono Scheme – general approach and administrative procedures
Purpose This Pro Bono policy is a statement of staff and partnership commitment to the firm’s core purpose of ‘making a difference’ in a positive way in our community and is an accurate reflection of our commitment to our corporate responsibility to act for the good of our community and our approach to Pro Bono work within [Firm]. [Firm] recognises that there are individuals and organisations that work for the public good in our community or that cannot afford the professional services of a lawyer. In appropriate cases, we seek to provide legal services to such organisations and individuals on a without charge or reduced charge basis.
Scope This policy is a statement of intent covering the general approach to the performance of Pro Bono work throughout the firm by all staff and partners. It puts into practice the firm’s core values and confirms the firm’s commitment to make a difference to the wider community. This policy also sets out the administrative procedures that should be adopted for Pro Bono matters.
What is pro bono work? Pro Bono legal services include the rendering of legal services: • without expectation of compensation; or • for less than our usual commercial rates, for certain individuals and organisations; in accordance with this policy. It also includes active involvement in not for profit community based organisations where legal work is conducted by [Firm] for that organisation in accordance with this policy. Pro Bono work does not include work performed for a not for profit organisation that has not been approved in accordance with this policy. It does not include work done without charge or at a reduced rate for family and friends of firm members. Pro Bono work is not a substitute for legal aid work, although the firm does have a formal commitment to the legal aid assistance scheme. We will only provide legal services where we can do so with competence. We will not endeavour to provide legal services in areas of the law in which the firm does not practice such as matters under the Crimes Act, personal injury and family law matters. We cannot, of course, provide legal services in circumstances that would give rise to a conflict with our existing clients or parties for whom we provide Pro Bono services.
Benefits of the Pro Bono Scheme to [Firm]
Practical benefits • Provides a practical means by which the firm can contribute back to the community • Enhances personal development of lawyers in the firm • Improves the quality of advice given by lawyers in that they have a more well rounded and informed perspective on life
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• Harnesses the enthusiasm of lawyers interested in public interest matters • Increases the knowledge base of lawyers • Increases job satisfaction, gives lawyers a greater consciousness of the worth of their jobs (varied and life enriching experience) • Improves firm morale, emphasises firm's core values and signals to clients and staff that the firm values more than simply the bottom line • Broadens the culture of the firm.
Strategic Benefits • Promotes good corporate citizenship in a spirit of community responsibility • Reinforces the reputation of the firm and individual lawyers in the community and to clients • Assists in attracting to the firm lawyers who share the firm's core values
Tender/Contract Commitments The firm has made a commitment as a condition of its appointment to the State Government's panel to provide Pro Bono services to the value of 10% of the annual income earned from State Government clients under the tender.
Responsibilities
The Pro Bono Partner (Currently [name]) • ensure that the Pro Bono policy is approved and endorsed by the partners • ensure that all staff are aware of and familiar with the policy • allocate Pro Bono work throughout the firm in consultation with Practice Group Heads • monitor the time and cost of performing such work • with the assistance of the Pro Bono committee and in liaison with Practice Group Heads, decide whether to accept a particular Pro Bono matter • with the assistance of the Pro Bono committee arrange conflict of interest checks and client screening for potential Pro Bono clients • liaise with other partners and senior associates and special counsel to monitor staff performance of Pro Bono work • liaise with and report to the Executive Chairman in relation to the operation of the Pro Bono program • endeavour to raise public awareness of the firm's Pro Bono program.
Pro Bono Committee members (Currently [names]) • facilitate consultation with employees on the Pro Bono policy • ensure that all staff are aware of and familiar with the policy • assist the Pro Bono partner • prepare an annual report to the Board on the operation of the Pro Bono policy • provide mentoring and tutoring to other members of the firm in relation to the performance of Pro Bono work in consultation with Practice Group Heads • endeavour to raise public awareness of the firm's Pro Bono program • liaise with the Marketing Director to develop a Pro Bono segment for the firm's intranet and web site and ensure that they are kept current Review and Development of the Pro Bono Policy The Pro Bono policy will be developed jointly by the Pro Bono partner and the Pro Bono committee in consultation with partners and staff.
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The policy will be reviewed annually. The Pro Bono policy will be displayed on the firm's intranet.
Training All staff will be informed of the Pro Bono policy and training will be provided in relation to opening and managing Pro Bono files as required.
The Policy This policy is intended to provide direction for the growth and development of the Pro Bono program and to encourage and promote a Pro Bono culture within the firm. While it is recognised that a framework for the policy is appropriate, it is also recognised that certain situations will need to be dealt with on a case by case basis and with a level of flexibility.
Membership of Assistance Schemes The firm is a member of the Law Institute of Victoria legal assistance scheme and the Public Interest Law Clearing House (PILCH) and will accept referrals in appropriate matters. The firm does not accept referrals in criminal, personal injury or family law matters or in matters which would require acting against a client of the firm.
Public Interest Matters The firm will accept instructions in public interest matters on a case by case basis where they do not cause a conflict of interest with a current client of the firm.
Charitable Organisations The firm currently acts for a number of charitable and non profit organisations. The firm will continue to provide legal services to current charitable and non profit organisations with a Pro Bono component to those services as determined by the Pro Bono partner and committee in consultation with the partner in charge of that client. The firm may provide Pro Bono legal services to charitable, public interest and non profit organisations who are not current clients of the firm with the approval of the Pro Bono partner and the Pro Bono committee and in consultation with the appropriate Practice Group Head.
Special Needs Community Organisations The firm is committed to providing Pro Bono legal services particularly to those individuals and organisations in the following groups: • the physically and mentally disabled • the underprivileged in our community • not for profit community based arts organisations • protection of the environment • charitable work under the auspices of local government
Sources of Referral The firm will: • Develop and maintain strong ties with community sector organisations, particularly those already clients of the firm and in accordance with the Government Pro Bono Secondment Scheme • Make sure organisations are aware of the policy and any limitations in the policy
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• Develop ties with other legal firm Pro Bono Practices with a view to referring applications to them that fall outside of the expertise of the firm
Budget [Firm] Pro Bono practice has an annual budget of $... for the 2002/2003 financial year. This budget is to be reviewed annually by the Pro Bono partner in consultation with Director of Finance and the Committee and approved by the Executive Chairman.
Judging the Effectiveness of [Firm’s] Pro bono Scheme The following criteria will be used to assess the effectiveness of the Pro Bono Policy and scheme generally, by the Pro Bono Partner and Committee. • Is the Policy and Procedure easily found and accessible to all staff (on the intranet) and is it kept up to date • Is the scheme responsive to need • Does the scheme deliver results for Pro Bono clients • Does the scheme have potential to grow to meet these needs • Is the resourcing of the scheme effective – does it give value for money • Is the scheme well coordinated and managed • Has the scheme been operated within budget • Have relationships been formed or developed with appropriate organisations and related service groups • Have referrals been made to appropriate related services • Has Pro Bono work been given the same standard of care and attention as any other file • Has Pro Bono work been appropriately and adequately supervised • Was the client satisfied with the results of the legal service and has the client been followed up after finalisation of the matter
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Sample pro bono policy: 5
Pro Bono Work
Definition In order for a matter to be considered as pro bono it should: • involve the exercise of legal skills; • be provided on a free or substantially reduced fee basis or on a speculative basis where the prospects of recovering fees do not commercially justify undertaking the work on a speculative basis; • be provided to clients who are disadvantaged or marginalised and cannot afford to pay full market rates; and • be provided to clients who are unable to access legal aid, assistance from community legal centres or assistance from other community organisations providing legal services. Pro bono services are provided to both individuals and organisations representing those individuals. Our pro bono services include: • provision of advice on commercial and litigious matters; • undertaking commercial legal work, for example, incorporating associations, drafting, contracts, negotiating leases, property work; • advocacy services; • negotiation services; and • assistance to improve laws or the legal system in a manner which will benefit marginalised or disadvantaged individuals or groups.
Eligibility In order for a client to be eligible for pro bono assistance the following factors must be considered: (a) The client must be disadvantaged or marginalised either economically or socially; (b) The client must be on a low income and clearly unable to afford legal assistance; (c) If the client is an organisation, it must be a non-profit organisation without access to large funds; (d) If the matter is litigious it must have reasonable prospects of success; (e) If the matter is of public interest it might be accepted even though its prospects of success are not strong; (f) [Firm] must be able to adequately resource the matter at the time of the application. (g) [Firm] will prioritise matters involving children and young people, people with disabilities, Aboriginal people and public interest concerns. (h) The matter must fall within the expertise of the lawyers working at [Firm].
To this end we do not assist in the following matters: • Child care and protection matters • Family law matters • Criminal law matters • Wills and estate matters • Personal injury matters (with rare exceptions, for example, stolen generation matters).
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Referral process Referrals can be made by telephoning the [Pro Bono Coordinator]. Most referrals come from organisations such as Community Legal Centres, the Legal Aid Commission of New South Wales, the Public Interest Law Clearing House, the New South Wales Anti-Discrimination Board and the Law Society Pro Bono Scheme on behalf of individuals. However, [Firm] accept referrals directly from individuals. Each week referrals are accessed to determine whether or not they can be accepted. Referrals can be assessed more urgently if need be. [Pro Bono Coordinator] must be made aware of all pro bono referrals.
File administration Each pro bono matter is opened under its own file number and must be supervised by a partner. Pro bono time is recorded differently from chargeable time. (See doc ##) Each pro bono matter must be recorded on the pro bono database. This database must be updated monthly as it is reviewed by the [Pro Bono Coordinator] and pro bono partners at monthly meetings (See doc ###). All partners supervising pro bono matters receive a status report in relation to their matters each month. Pro bono review meetings are held fortnightly and attended by [Pro Bono Coordinator] and two of the pro bono partners. A quarterly report outlining the progress of some pro bono matters and other developments in the practice is provided to the partners each quarter.
Nature of Pro Bono work [Firm] provide a broad range of pro bono services including: 1. Representing clients involved in litigation; 2. Providing commercial advice to clients on a variety of issues including incorporation, tax issues, lease issues, funding contract issues and employment issues; 3. Assistance on policy issues and drafting submissions; 4. Assistance for parts of matters for example conducting specific research or providing advice on a particular point, drafting of court documents, acting in negotiations and advising on strategy.
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Sample pro bono policy: 6
National Pro Bono Scheme
Why does [Firm] have a Pro Bono Policy? [Firm] has had a long commitment to conducting pro bono work. The [Firm] Pro Bono Scheme is a primary example of [Firm's] community leadership role. The Firm recognises and supports the inherent professional responsibility of all lawyers to provide assistance to those within our community who would be otherwise unable to obtain access to legal advice and representation. This responsibility is a key value of our professional culture. At [Firm], pro bono work is therefore not seen as an act of charity, a marketing opportunity or a recruitment gimmick. It is at the very heart of what we do, and how we view our success as a Firm. The [Firm] Pro Bono Scheme is managed by the National Pro Bono Director. Each office has a nominated Pro Bono Partner and Pro Bono Co-ordinator. This core group forms the basis of the National Pro Bono Management Committee.
What types of matters qualify for the [Firm] Pro Bono Scheme? Pro bono assistance is available to: • individuals who are unable to obtain Legal Aid and are otherwise unable to afford legal representation; and • community organisations, non-profit organisations and charitable bodies who are unable to afford appropriate legal representation or whose resources are better directed towards providing community services. Our pro bono client must be: • willing to accept our advice when given and to act appropriately on that advice; and • the matter must not create a conflict of interest with existing clients of the Firm.
Disbursements • [Firm] will cover the first $200 of internal disbursements and $150 of external disbursements incurred on each pro bono file. No additional disbursements are to be incurred without the client's consent to meet those costs. Every effort will be made to make use of Court fee waiver arrangements, the various bar pro bono schemes and schemes such as the Law Society of NSW pro bono disbursement fund and the Law Aid disbursement fund, where appropriate.
Types of matters • [Firm] will provide free legal advice and representation across a range of matters, where we have appropriate partnership expertise to supervise files. • We will not accept pro bono matters in areas of law where we cannot provide the client with appropriate legal expertise. This includes criminal matters and family law matters. • Although there will be significant input by partners into the Pro Bono Scheme, the majority of pro bono matters are those where solicitors primarily conduct the matter themselves, under a partner's supervision.
Opening new pro bono matters • Requests for pro bono assistance are directed to the National Pro Bono Director, the state Pro Bono Co-ordinator or the state Pro Bono Partner. No pro bono file will be opened without the approval of one of these members of our National Pro Bono Management Committee. These
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people will consult with appropriate partners to ensure that the relevant group has capacity to conduct a pro bono matter before allocation.
What types of matters do not qualify for the [Firm] Pro Bono Scheme? Pro bono matters are not: • matters which have been undertaken for some business development purpose; • matters which are performed at reduced rates for acquaintances, family or clients; or • matters which are performed for charitable or non-profit community organisations which have the capacity to pay for legal representation. This does not mean that work in these types of matters should be curtailed. Rather, such matters must not be opened as [Firm] pro bono matters and must not be assigned a '[pro bono code]' prefix. Any matters which are opened as [pro bono code] matters but do not qualify for the [Firm] Pro Bono Scheme must be reclassified with the appropriate code.
The [Firm] commitment to pro bono legal services • [Firm] is committed to conducting legal work in pro bono matters in [geographical area] offices up to the value of [quantity] in a single financial year. • Pro bono matters do not qualify for second rate service. It is essential that [Firm] pro bono matters are conducted with the same high standards expected of all other [Firm] legal work. [Firm] pro bono clients are entitled to receive the same high quality of service provided to all [Firm] clients.
The role of partners • Partners have a key role in the management of the National Pro Bono Scheme. It is essential that partners maintain proper supervision of pro bono files, to ensure that each matter receives an appropriate level of resources. • Our National Pro Bono Scheme is not intended ordinarily to assist on extremely large matters or to undertake repeat work for the same client. If the supervising partner becomes aware of a file which appears to be developing into a much larger matter than was originally intended or requests for further work are received, the partner should contact the National Pro Bono Director, the state Pro Bono Co-ordinator or the state Pro Bono Partner. • If the supervising partner forms the view that a matter does not have reasonable prospects of success, the client should be properly advised. [Firm] will not continue to act in pro bono matters where the matter does not have reasonable prospects of success or where the client does not accept our advice.
All solicitors are expected to conduct pro bono matters • The [Firm] Pro Bono Scheme is the shared responsibility of all legal staff. Pro bono work is not to be undertaken only by a few partners or solicitors. • All solicitors are expected to conduct at least one pro bono matter each financial year. It is the responsibility of the National Pro Bono Director and National Pro Bono Management Committee to ensure that pro bono matters are properly allocated to all solicitors. • Pro bono matters which are conducted by solicitors will be included as part of a solicitor's annual professional review.
Pro bono matters are recognised as part of a solicitor's budget performance • Work conducted under the [Firm] Pro Bono Scheme is fully recognised within individual and practice group budgets, and must be properly recorded. An individual legal staff's budgetary performance is calculated through the combination of billable time and pro bono time.
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2 Sample pro bono procedure At the end of this section a legal assistance agreement, schedule and client protocol are included.
Pro bono procedure This procedure sets out the process for: • applying for Pro Bono assistance; and • opening, managing and billing Pro Bono files. This procedure is to ensure that: • accurate and reliable Pro Bono data can be obtained from Law 3000 when monitoring and billing Pro Bono matters; and • lawyers receive credit for work they do on Pro Bono matters.
Creating a new pro bono matter Create a Pro Bono matter through … [explain procedure as per relevant software program]
Lawyer charge out rates Previously, when creating a Pro Bono matter the lawyer's charge out rate was set to zero. This is not to be done for future Pro Bono matters. The lawyer's charge out rate will be set as per any normal matter depending on the client.
Entering time for a pro bono matter Lawyers will enter their time as chargeable as per any normal matter. This will enable the fee earner to get recognition for any Pro Bono work they may do.
Pro bono files and file administration Where Pro Bono files are conducted for no charge, and involve a litigious matter, a Legal Assistance Agreement must be signed by the Pro Bono client in the form attached at Appendix 1 to this policy. The legal assistance agreement clearly sets out the work to be undertaken on a Pro Bono basis and must be regularly reviewed by the lawyer in charge of the Pro Bono matter and the supervising partner. In all other Pro Bono matters conducted for no charge, the client should be sent the Pro Bono Client Protocol in the form attached at Appendix 2. Clients being charged a Pro Bono discounted rate are to receive initial cost letters in the usual manner, edited to reflect the Pro Bono discount applying to that client.
Billing pro bono files All Pro Bono billing must be done by the Accounts department. When billing a Pro Bono matter, a discount will be applied to the bill to reduce the bill to either nil (if the work is completely free) or to the amount we wish the client to pay. In order to do this, the person responsible for billing Pro Bono work will need to [explain procedure for relevant software program in relation to billing and discounting].
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Applications for pro bono work by staff Any member of staff wishing to provide Pro Bono services to any individual or organisation is to apply in writing to a Pro Bono committee member for approval. This may be done via email. The Pro Bono committee member will provide a copy of the application to the members of the committee and liaise with the appropriate Practice Group Head. A meeting will be held for consideration of the application within 48 hours. Meetings may be held via email. The staff member will be provided with a response to the application within 5 working days of the application.
Applications for pro bono work by external parties Any application received by any member of the firm to provide Pro Bono legal services must be forwarded to a Pro Bono committee member. The Pro Bono committee member will provide a copy of the application to the members of the committee, liaise with the appropriate Practice Group Head and call a meeting for consideration of the application within 48 hours. Meetings may be held via email. The applicant will be provided with a response to the application within 5 working days of the application
Criteria for consideration of a pro bono application • The ability of the applicant to pay for legal assistance • Whether or not the applicant falls within the Policy • Whether there is a sufficient element of public good to be achieved in the performance of the Pro Bono legal work • The projected extent of the legal assistance required • The projected length of the Pro Bono project • Whether there are staff within the firm with sufficient expertise to carry out the Pro Bono work with efficiency and competency • Whether there is any conflict of interest.
Legal costs and disbursements For matters approved by the Pro Bono partner and Committee in accordance with this policy, our services are to be provided free of charge. For approved clients, such as charities or religious bodies, the Pro Bono Partner and Committee in consultation with the relevant Client Partner, may approve the provision of Pro Bono services at a fixed percentage for different types of work, at no charge or for a combination of both no charge and reduced charge rates. As a general guide, the percentages to be applied are: • 0%; • 50%; or • 75%, of our usual rates. For example, we may provide miscellaneous telephone advice to a particular charitable institution at no fee (0%) and otherwise charge that institution 75% of our usual fees. The applicable fees are to be determined by the Client Partner for that client in consultation with the Pro Bono Partner and Committee.
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The firm will not charge for internal disbursements such as photocopying, faxing and telephone charges. The client will pay for any external disbursements unless otherwise agreed with the firm.
Engaging counsel Counsel who are engaged to work on any Pro Bono matter must be engaged to provide those services on a Pro Bono basis or the client must agree to provide payment for any Counsel's fees prior to any liability being incurred.
Office resources On a case by case basis, the Pro Bono partner and committee may allow the use of office equipment and office resources to assist a special needs or charitable organisation.
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Appendix 1
Legal assistance agreement [Firm] agrees to accept instructions from [Client] in relation to the matter referred to in the attached Schedule on the basis set out below. This is an agreement in relation to the terms and conditions of the retainer of [Firm] by [Client].
Terms and conditions [Firm] will charge for professional services in accordance with the method of charging set out in the attached Schedule if the action is successful and a costs order is made against the other party; [Firm] agrees to waive charges for professional services in the event that the action is unsuccessful; [Firm] will not charge an amount for professional services which is higher than the amount recovered for professional services as party and party costs; [Firm] will charge all reasonable disbursements incurred and also all disbursements authorised by [Client] whether or not party and party costs are recovered; [Firm] may request [Client] to pay to [Firm] such amounts as are required for anticipated disbursements and [Client] shall pay such amounts to [Firm] immediately; [Client] will pay the sum of $##.00 at the commencement of instructions which will be held in trust to cover the anticipated disbursements set out in the Schedule; [Firm] will not be responsible for contracting with any barrister on behalf of [Client]; [Firm] will be entitled to cease to act for [Client] without explanation on giving seven days written notice of intention to do so; [Firm] will be entitled to cease acting for [Client] without notice should [Client] choose not to accept a recommendation regarding conduct or resolution of the action made by [Firm].
Notes • Party and party costs are legal costs which are given by the law as a partial indemnity to the successful party in litigation. • Disbursements are payments made by the legal practitioner on behalf of the client to third parties.
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Schedule Legal Practitioner: [Name], lawyer, will have the care and conduct of this matter under the supervision of [Name], partner.
Client: ##
Matter: Legal services with respect to ## involving: ## ##
Method of charging: In the event of a successful outcome to the action, [Firm] will charge at the rate ordered by the Court on the appropriate Court Scale. A copy of the Scale can be provided on request.
Anticipated Disbursements: Disbursements [Client] will be required to pay include:
## Filing fee: $ STD phone calls: current rate Expert reports: $
……………………………………………………………. for [Client]
…………………………………………………………… for [Firm]
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Appendix 2
Client protocol I acknowledge that I am being assisted under the [Firm] Pro Bono Scheme and I agree that: • My solicitor has offered to assist me because of concern for justice and for the public good, and not for any motive of profit. • My solicitor will provide his or her services free of charge but if my case is litigious and is successful and a costs order is made by a court against the other party I will permit my solicitor to be paid to the extent of that order. • I will be treated the same as a fee paying client by my solicitor and this means that I will respect my solicitor's time as I were paying for it. • I have the same legal rights and obligations as fee paying clients. • I will keep my solicitor fully informed of any change in my personal circumstances or details. • I will provide clear and timely instructions to my solicitor. • I will pay disbursements to my solicitor in advance and when requested. • I will be responsible for Counsel's fees and will pay them to my solicitor in advance of Counsel's appearance. • I will listen carefully to my solicitor's advice about the running of my case respecting that it is his or her professional training which qualifies my solicitor to give the advice. • I will not waste the resources of my solicitor. • If I have a complaint about my solicitor I will discuss it with my solicitor first.
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3Sample letters of engagement The sample letters of engagement in this manual have been included as examples only. Samples 1 - 4 have been prepared by particular law firms based on NSW legislation. Sample 5 is Queensland- based. Firms should check the legislative and professional requirements in their state or territory and should also adapt their letters to the particular circumstances of each engagement.
Sample letter of engagement: 1 Pro bono costs letter to be issued in circumstances where no costs are to be charged and no conditional fee agreement is to be made but allowing an option for the firm to charge for or recover disbursements
To: [Name of client] Re: [Matter description] Thank you for your instructions to act for you in relation to the above. The purpose of this letter is to inform you of our terms of engagement.
Introduction The Legal Profession Act 1987 (the Act) requires lawyers to give their clients prescribed information about their costs or charges and the rights which the Act gives to their clients in relation to the costs. This letter and the enclosed Terms of Engagement contain the terms on which we will act for you during the period of our engagement. They include information required by the Act. Please confirm that you agree to our terms by signing the note at the end of the enclosed copy of this letter and return that copy to us. We will, however, assume your agreement if you do not inform us to the contrary and continue to instruct us to act for you.
1 The work required by your instructions We expect that your present instructions will require us to do work of the kind and scope described below. Any estimate of our costs and disbursements given to you in this letter is based on our present assessment of the work and may have to be revised if work, different from, or additional to, that now expected, is required as a result of later events or a variation of your instructions.
Description of the Work [Describe with care and reasonable particularity the nature and scope of the anticipated work in order that the responsibilities being assumed by the firm are indicated and the basis for the estimates of costs and disbursements which follow is readily apparent]
2Waiver of Professional Costs (a) We will not charge you costs for our professional services applied to your work. (b) We will try to assist you to obtain funding for expenses or fees (other than our costs) which it may be necessary for you to incur. If those efforts are unsuccessful we may ask you to pay, or reimburse us for, disbursements (expenses) incurred on your behalf. (c) Paragraph 4 below sets out the terms on which disbursements are payable.
3 The conduct of the work (a) We will apply to your work the services of our lawyers and the other resources of our firm as we consider necessary and appropriate from time to time.
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(b) The partner who will be responsible for your work is [name of responsible partner] and we ask you to contact [partner’s name] if you wish to discuss any matter concerning the conduct of your work. (c) If circumstances occur, requiring the transfer of responsibility for your work to another partner, unless of very short duration, we will inform you promptly.
4Expenses – Disbursements (a) We will not charge for in house expenses for telephone calls, sending or receiving facsimile transmissions or incidental photocopying. Other expenses incurred by us in acting for you and fees for services provided to us by third parties on your behalf will be charged to you. (b) If a barrister has already been engaged on your behalf or we believe that it is necessary to engage the services of a barrister, we will negotiate with you and the barrister to settle the terms of the engagement. (c) If we become liable to pay GST on disbursements charged to you the GST will be added to our charges in the way described in our enclosed Terms of Engagement. (d) We include in the following paragraph our estimate of disbursements to the extent that we are presently able to do so.
5Present Estimate of Disbursements We estimate, having regard to the nature of the work described in paragraph 1, that the disbursements that it may be necessary to incur are as follows: [Total] If we become aware that the disbursements are likely to exceed significantly the above estimate, we will notify you of a revised estimate.
6Payment on account of disbursements (a) We may ask you to pay to us at the beginning, or in the course, of our engagement a sum of money on account of disbursements. (b) The money you pay will be deposited to your credit in our trust account on the understanding that we have your authority to withdraw money to pay any disbursements after we have sent you a bill. We may withdraw money held to your credit in our trust account after 30 days from the delivery of our bill if you do not object to the bill.
7Termination We may terminate this agreement on the grounds described in the enclosed Terms of Engagement (under the heading ‘Termination’). For the purposes of these terms we will assume that we have lost your confidence, in relation to the continuing conduct of the matter on your behalf, if you refuse to accept our considered advice in respect of an issue which is essential to the conduct, or satisfactory settlement, of your matter.
8 Limitation of liability This firm is a member of the Solicitors (Limitation of Liability) Scheme approved under the Professional Standards Act 1994 (NSW). Our liability for damages claimed in a cause of action, to which the Scheme applies, is limited to the amount it prescribes and for which we are insured. Our agreement to act for you is also subject to the “limitation of liability” provisions expressed in the enclosed Terms of Engagement. Thank you for your instructions. Yours faithfully [Firm]
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[insert name] I/we accept the terms stated above and in the attached Terms of Engagement. ______Signature Date
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Sample letter of engagement: 2 The sample letters of engagement in this manual have been included as examples only. Samples 1 - 4 have been prepared by particular law firms based on NSW legislation. Sample 5 is Queensland-based. Firms should check the legislative and professional requirements in their state or territory and should also adapt their letters to the particular circumstances of each engagement.
Pro bono costs letter based on the standard letter of engagement and intended to constitute a conditional costs agreement.
To: [Name of client] Re: [Matter description] Thank you for your instructions to act for you in relation to the above. The purpose of this letter is to inform you of our terms of engagement.
Introduction The Legal Profession Act 1987 (the Act) requires lawyers to give their clients prescribed information about their costs or charges and the rights which the Act gives to their clients in relation to the costs. This letter and the enclosed Terms of Engagement contain the terms on which we will act for you during the period of our engagement. They include information required by the Act. Please confirm that you agree to our terms by signing the note at the end of the enclosed copy of this letter and return that copy to us. We will, however, assume your agreement if you do not inform us to the contrary and continue to instruct us to act for you.
1 The work required by your instructions We expect that your present instructions will require us to do work of the kind and scope described below. Any estimate of our costs and disbursements given to you in this letter is based on our present assessment of the work and may have to be revised if work, different from, or additional to, that now expected, is required as a result of later events or a variation of your instructions.
Description of the Work [Describe with care and reasonable particularity the nature and scope of the anticipated work in order that the responsibilities being assumed by the firm are indicated and the basis for the estimates of costs and disbursements which follow is readily apparent.]
2Costs payable conditionally (1) (a) We will only charge you costs for our professional services applied to your work, subject to our rights on termination of this agreement, if there is a successful outcome to this matter. (b) Expenses (disbursements) which we incur or pay on your behalf will be repaid by you if there is a successful outcome to this matter unless they have been already paid by you or from another source. (c) We will try to assist you to obtain funding for expenses or fees (other than our costs) which it may be necessary for you to incur. If those efforts are unsuccessful we may ask you to pay, or reimburse us for, disbursements (expenses) incurred on your behalf in the course of the matter irrespective of the outcome.
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(d) Paragraph 4 below sets out the terms on which disbursements are payable. (e) The circumstances which will constitute a successful outcome will be: (i) your receiving any benefit or financial compensation, including an order or agreement for payment of your legal costs; (ii) your receiving an offer of settlement which is fair and reasonable according to relevant objective standards whether or not you accept it. (f) If you terminate this agreement we may require payment of our costs and disbursements as provided in our enclosed Terms of Engagement. (g) We may terminate this agreement on the grounds described in the enclosed Terms of Engagement (under the heading “Termination”). For the purposes of those terms we will assume that we have lost your confidence, in relation to the continuing conduct of the matter on your behalf, if you refuse to accept our considered advice in respect of an issue which is essential to the conduct, or satisfactory settlement, of your matter. (2) The basis on which our costs, if payable, will be calculated is as follows: (a) We will charge for the time spent on your work by each lawyer or paralegal an hourly rate determined by the person’s level of skill and experience. The rates are apportioned to periods of less than an hour. (b) The hourly rates of the lawyers and paralegals who may be engaged in doing your work are as follows: Partners $[insert amount] -[…] Lawyers $[ …] - $[ …] Paralegals $[ …] - $[ …] (c) We review our rates each year. The rates noted above will apply until 30 June 2003 or until they are varied on or after 1 July 2003. We will notify you of any variation. On request we will inform you of a particular lawyer’s hourly rate. (d) The hourly rates above do not include GST. Where we are liable to pay GST on a supply of our services we will include the GST in our costs billed to you in the way described in our enclosed terms of engagement. (e) We make no additional charge for the work of our secretarial and administrative staff.
3 The conduct of the work (a) We will apply to your work the services of our lawyers and the other resources of our firm as we consider necessary and appropriate from time to time. (b) The partner who will be responsible for your work is [name of responsible partner] and we ask you to contact [partner’s name] if you wish to discuss any matter concerning the conduct of your work. (c) If circumstances occur, requiring the transfer of responsibility for your work to another partner, unless of very short duration, we will inform you promptly.
4Expenses – Disbursements (a) We will not charge for in house expenses for telephone calls, sending or receiving facsimile transmissions or incidental photocopying. Other expenses incurred by us in acting for you and fees for services provided to us by third parties on your behalf will be charged to you. We will consult you before incurring any fees or expenses for which funding is unavailable. (b) If a barrister has already been engaged on your behalf or we believe that it is necessary to engage the services of a barrister, we will negotiate with you and the barrister to settle the terms of the engagement.
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(c) If we become liable to pay GST on disbursements charged to you the GST will be added to our charges in the way described in our enclosed Terms of Engagement. (d) We include in the following paragraph our estimate of disbursements to the extent that we are presently able to do so.
5Present Estimate of Costs and Disbursements (a) Costs (i) We estimate that our charges (exclusive of disbursements) for completing the work above described will be about $[insert] exclusive of GST. (ii) Our estimates of costs, and the disbursements that follow, are based on our present assessment of the nature and scope of the work that your instructions will require as described in paragraph 1 above. We have also estimated the time and resources that are likely to be needed to do the work and, therefore, its cost on the following assumptions: [Here set out particulars of the facts or circumstances assumed in relation to the likely length or complexity of the matter by reference to which the estimates have been made.] (b) Disbursements We estimate, subject to the qualifications above, our disbursements exclusive of GST, will be about $[….]. That estimate is determined as follows: [Here set out estimates of the disbursements expected to be incurred in relation to the items referred to in paragraph 4(a) and (b) above. In respect of third parties, such as expert consultants and barristers, the estimated amounts of their fees should be stated so far as possible. Note that a barrister has costs disclosure obligations to an instructing solicitor under section 176 of the Legal Profession Act. A solicitor instructing a barrister has an obligation under section 175(3) of the Act to disclose the barrister’s fees to the client.] (c) Revision of Estimates When we become aware that our costs and disbursements are likely to exceed significantly the estimates we have given, we will notify you of our revised estimates. ------[OR]* Costs (a) We cannot now estimate the total costs that may be incurred in relation to the work as those costs will be affected by future events and circumstances which are not presently ascertainable; (b)(i) We estimate that our costs for only that work described in the next paragraph will be about $[…] exclusive of GST. (ii) The work to which our estimate refers is [insert particulars to which the estimate refers eg. the work required (particularise) up to and including the filing and service of a statement of claim]; (c) We will continue to inform you, when it is practicable to do so, of the costs estimated to be incurred for work up to a particular time or event if we are unable to give you an estimate of the total amount of our costs. Disbursements We estimate that disbursements which may be anticipated in relation to only that work described in paragraph (b)(ii) above, exclusive of GST, will be about $[ …]. That estimate is determined as follows:
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[Here insert the individual estimates of disbursements. See note above.] *[The provisions grouped above and below the line are alternative. Those above deal with a “total” estimate for the whole of the work. Those below deal with a partial “staged”, estimate. Delete the provisions which are not appropriate.]
6Payment on account of costs and disbursements (a) We may ask you to pay to us at the beginning, or in the course, of our engagement a sum of money on account of our costs and disbursements. (b)The money you pay will be deposited to your credit in our trust account on the understanding that we have your authority to withdraw money to pay our costs and disbursements after we have sent you a bill. We may withdraw money held to your credit in our trust account after 30 days from the delivery of our bill if you do not object to the bill.
7 Limitation of liability This firm is a member of the Solicitors (Limitation of Liability) Scheme approved under the Professional Standards Act 1994 (NSW). Our liability for damages claimed in a cause of action, to which the Scheme applies, is limited to the amount it prescribes and for which we are insured. Our agreement to act for you is also subject to the “limitation of liability” provisions expressed in the enclosed terms of engagement.
8Legal Aid We have considered with you your possible eligibility for legal aid and this agreement is made on the understanding that whether or not you may be eligible for Legal Aid you have elected to instruct this firm to do the work described in paragraph 1.
9Risk of adverse costs order If you are unsuccessful in the proceedings to which the work relates you could be ordered to pay the costs incurred by the other party to the proceedings. 10 Billing arrangements (These arrangements apply in place of those noted in the attached Terms of Engagement). If there is a successful outcome to this matter (as described in paragraph 2(1)) we will send to you a bill for our costs and disbursements when our work is completed. If we have agreed with you that you should pay, or reimburse us for, disbursements (expenses) incurred on your behalf, irrespective of the outcome, we may send to you a bill in respect of those disbursements monthly or at other appropriate times while the work is in progress.
11 Recovery of costs and disbursements Our costs and disbursements will be payable on a successful outcome of this matter whether or not an order is made by a court or tribunal which might entitle you to recover your costs in whole or in part from another party. In appropriate circumstances, however, we may waive payment of any part of our costs to relieve you of hardship. Thank you for your instructions. Yours faithfully [insert name] I/we accept the terms stated above and in the attached Terms of Engagement. ______Signature Date
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Sample letter of engagement: 3 The sample letters of engagement in this manual have been included as examples only. Samples 1 - 4 have been prepared by particular law firms based on NSW legislation. Sample 5 is Queensland- based. Firms should check the legislative and professional requirements in their state or territory and should also adapt their letters to the particular circumstances of each engagement.
Litigious matters
[Date] Our Ref: [ref] Partner: [name] Contact: [lawyer] Direct Tel No: [number] Email: [email] Doc Id: [doc id]
[Name and address]
Dear [Name]
Matter description We refer to our [letter/telephone call] with [name of person] of [date] and confirm that we are pleased to be able to act for [name of client or you] on a ‘pro bono’ basis in relation to [details of work to be done]. We look forward to working with you. The purpose of this letter is to: • confirm the scope of the services you have asked us to provide; • confirm the conditions on which we are to be engaged, including the nature and extent of our ‘pro bono’ arrangement; and • satisfy certain requirements of the Legal Profession Act. The Fee Schedule and Engagement Conditions with this letter form part of the conditions of our engagement and should be read with this letter. If you are satisfied with our proposal, please sign and return the attached copy of this letter to confirm your acceptance. Alternatively, if you continue to instruct us, this will be considered to mean that you agree with this proposal. We understand that the services you have asked us to provide are as follows: [Description of work] We agree to provide these services. [Lawyer] will have the general conduct of your matter under the supervision of [partner], who is a partner of the firm. It may be necessary for other lawyers or paralegals to work on the matter and we reserve the right to use the people we think appropriate for the work from time to time. This means that other lawyers in this firm may also contact you about this matter. We agree to act for you on a ‘pro bono’ basis. This means that you will not ordinarily be charged fees by us for our professional services. However, please understand that:
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1. We are entitled to charge you costs for our professional services applied to your work in the event of: a) a court or tribunal ordering [name of other party] or another party to pay your costs in relation to the current proceedings (‘Costs Order’); b) an agreement being reached between you and any other parties in respect to the payment by another party of your legal costs and disbursements as agreed or assessed by a costs assessor under the Legal Profession Act. 2. In the process of recovering costs under paragraph 1 above, we will invoice you for costs and disbursements for our professional services. However, in relation to costs we will not seek to recover from you any more than the amount to be paid to you by another party for your costs. 3. The Fee Schedule and Engagement Conditions set out the method for calculating our fees and disbursements. We will record time spent and, therefore, legal costs in accordance with the Fee Schedule and Engagement Conditions. We emphasise that the recording of costs throughout the matter does not affect our agreement that costs are only payable as described in paragraph 1 above. 4. From time to time we may incur out-of-pocket expenses (eg court filing fees or medical reports) known as disbursements. We may ask you to pay these expenses for us up front or to reimburse us if we pay these amounts for you. We will not ask you to pay these expenses unless we have first asked you to agree to those amounts being paid and that you will pay them. If another party reimburses us for some or all of the disbursements you have already paid, we will pay you back for the disbursements up to the amount paid by the other party. 5. The scope of our agreement to work for you and the work we will do for you is limited to the work described in this letter. 6. You must co-operate with us giving us instructions when asked and giving us the help you are capable of giving in the preparation and conduct of your case. 7. You must tell us immediately if you seek to obtain legal advice from someone else in relation to your case. 8. We reserve the right to cease to act for you as your lawyers if: • you give us instructions which require us to act against the advice we have given to you; or • where we have given you advice but you choose not to act in accordance with that advice; • you fail to co-operate with us as is required by paragraph 6 or fail to tell us that you have sought or got legal advice elsewhere as is required by paragraph 7 above. 9. You must immediately tell us if at anytime you do not want us to continue acting for you as your lawyers. 10. The use of the term ‘pro bono’ in relation to this case does not prevent us from exercising the rights described in paragraphs 1 and 2 above. We estimate that, if this matter were not be undertaken on a pro bono basis, the fees would be in the range of $[…] to $[…] to provide the services listed above.
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The costs of other parties It is possible that [name of court or tribunal] may make an order that you pay the legal costs of [name of other party]. (This is likely, for example, if you lose your case.) You must be aware that you will be personally responsible for the payment of those costs.
Please let us know if there is anything further you need at this stage. [Lawyer] will be happy to answer any questions you may have about the documents. Please contact [him/her] on [phone no].
Yours faithfully
[Encl 2] Agreement confirmed
______Signature
______Please Print Name
______Date
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Sample letters of engagement: 4 For pro bono clients
[Note: This sample letter has been prepared as a guide only. It is based on the requirements for engagement letters in NSW. It is intended to assist practitioners address some of the issues that arise in respect of pro bono engagements. It should be amended to take account of the specific circumstances of the client and to ensure that all legislative and professional requirements of the relevant state or territory have been complied with.] [Name and address of client]
Dear [insert name] Pro bono assistance – [Name of matter] This letter sets out the terms on which we are willing to assist you.
1 What we will do for you [Note: Practitioners will be liable for any work they do in the same way as with a fee paying client. In some cases lawyers have been found liable for failure to undertake matters they did not regard as being within their responsibility. Good communication with your client is the best way to ensure that you both understand the limits of the assistance you can provide, and thereby reduce the risk of you being liable for matters outside of those for which you thought you had responsibility. Therefore, it is important to provide as much detail as possible concerning the scope and the limitations of the specific tasks you have agreed to undertake.] 1.1 We will assist you only in relation to: [insert specific tasks to be undertaken – for example: a) written advice in relation to any claims for damages you may have in respect of your injury on 2 August 2003; b) drafting of Family Court application in relation to access orders for your children] 1.2 Unfortunately we cannot assist you generally in relation to your legal problem(s) and we cannot provide any professional assistance outside of the tasks described above, even if you want or need that assistance. 1.3 Please let us know if you do not understand the limits of what we have offered to assist you with.
2 Our work 2.1 I will be the partner primarily responsible for this matter and will have responsibility for the firm’s work. I will be assisted by [insert names of solicitor(s)] who will work on the matter on a day to day basis. 2.2 We undertake our pro bono work with the same care as our fee paying work. 2.3 If you are unhappy with any part of our work you may contact [our managing partner [insert name]/pro-bono partner, etc].
3Your co-operation In order to assist you it is important that you provide us with your full co-operation, including providing us with information that we request.
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4Costs Alternative 1 – Matter does not involve litigation [Note – In NSW the Legal Profession Act 1987 (NSW) contains disclosure requirements in respect of costs. However, there is an exception to these requirements where the total amount of costs (excluding disbursements) will be less than $750.]
4.1 We will not charge you for the following specific costs: a) costs of our time; [insert any costs (other than professional time) which your firm will bear, such as: b) photocopying; c) courier fees; d) etc]. 4.2 You will need to pay all other costs necessary in respect of your matter. These may include: [insert any costs (other than professional time) relevant to the matter such as: a) search fees to obtain documents; b) doctor’s fees; c) photocopying and other administrative fees].
Alternative 2 – Matter involves litigation [Note – A party is entitled to enforce an order for costs notwithstanding those costs have not previously been paid, provided the client is liable for those costs (Wentworth v Rogers [2002] NSWSC 709). The following clauses are thus intended to establish the necessary liability of your pro bono client, albeit contingent on a successful outcome. Given a conditional liability is established, it is necessary to comply with the costs disclosure requirements in the Legal Profession Act 1987 (NSW). This is so even though the client will not be rendered a bill for the costs unless successful in obtaining an award for, or agreement to pay its, costs. As the conditionality of this arrangement may be confusing to a client you should consider verbally explaining that the net effect of the arrangement is that they will not bear the costs in 4.1. However, it is important that such a discussion does not undermine the necessary contingent liability. Of course, this complexity may be avoided by simply following alternative 1 in which case you will have less chance of recovering your costs. It should be noted that contingent costs agreements may be regarded as maintenance or champerty. While some states have abolished the crime or tort, the common law prohibits contracts which involve maintenance or champerty, making the contract unenforceable. This can be overcome by statute. In NSW conditional costs agreements are permitted under s186 of the Legal Profession Act 1987 (NSW).]
What you have to pay 4.1 We will not charge you for the following specific costs: a) cost of our time; [insert any other costs which your firm will bear, such as: b) photocopying; c) courier fees; d) etc],
Australian pro bono manual 149 3 Precedents and pro formas unless you become entitled to your costs as set out in 4.3 below. 4.2 You will need to pay all other costs necessary in respect of your matter whether or not you become entitled to a payment for your costs. These may include: [insert any costs relevant to the matter such as: (a) barrister’s fees; (b) search fees to obtain documents; (c) doctor’s fees; (d) photocopying and other administrative fees].
When we will send you a bill 4.3 You may be entitled to your costs if: (a) the other side is ordered to pay your costs; (b) the other side agrees to pay some of your costs as part of an out of court settlement; or (c) you have some right to payment for your costs from a government or other fund. 4.4 If you become entitled to your costs, then we may send you a bill for the costs described in 4.1 above. You will be required to take reasonable steps, and provide us with any necessary instructions, to recover those costs. 4.5 As we may send you a bill if you become entitled to your costs, we are required to advise you that: (a) we estimate that the total costs for the work described in 1.1 above will be at least $[insert amount] (including GST). Our usual fees and expenses are set out in annexure 1; (b) normally we may not commence proceedings against you for recovery of our costs unless at least 30 days have passed since the bill was given to you; and (c) you have the right to have the bill assessed for its fairness and reasonableness by a Costs Assessor appointed by the Supreme Court.
Other party’s costs [Note – The potential exposure of a pro bono client to an opponent’s legal costs is a significant issue which should be highlighted whenever legal proceedings arise. Some states and territories have specific obligations in this regard.] 4.6 At any stage of proceedings, you may be ordered to pay the other side’s legal costs. These costs may be large. You may be required to pay them within a short period of time.
5Confidentiality and privacy 5.1 We will keep information you give us confidential except where you agree that it can be disclosed or where we are required by law to give information to others. 5.2 Our policy for the use of your personal information is set out in annexure 2.
6 Limitation of liability [Note - This section must be amended to comply with the specific legislative and professional requirements of the relevant state or territory.] The liability of our partners and employees is limited under the Professional Standards Act 1994 (NSW) and the Solicitors’ Limitation of Liability Scheme approved under that Act.
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7Ending our agreement
By you 7.1 You have the right to stop the firm assisting you for any reason. If you do so, you will need to advise us in writing.
By us 7.2 We may stop assisting you on a pro bono basis if your financial circumstances change significantly so that you are able to pay, or make a contribution towards, our costs. 7.3 We may stop assisting you altogether if: a) there is a serious breakdown of confidence and trust between us; b) a conflict of interest arises which prevents us from continuing to act; or c) you do not comply with your obligations in this letter, and we give you reasonable notice (subject to court approval if required).
8Agreement 8.1 If you wish us to assist you on these terms, please sign the enclosed copy of this letter and return it to us. 8.2 If you have any points which you do not agree with, do not understand or which you would like to talk about, please contact me. Yours sincerely
[Partner’s name] [Note - It is recommended that in all cases the contents of the letter are verbally explained to the client before they sign it.] On copy of letter I have read and understood this letter and agree with its contents
…………………………. …………………………. [Client]Date
Annexure 1 Copy of the firm’s usual fees and expenses.
Annexure 2 Copy of the firm’s privacy policy.
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Sample letter of engagement: 5 The sample letters of engagement in this manual have been included as examples only. Samples 1 - 4 have been prepared by particular law firms based on NSW legislation. Sample 5 is Queensland- based. Firms should check the legislative and professional requirements in their state or territory and should also adapt their letters to the particular circumstances of each engagement. Pro Bono Client Agreement (To be adapted to suit the circumstances of each matter)
Date: Name/s: Address:
Dear
Re: Our legal services to you Thank you for your instructions. This letter sets out our understanding of what our role will be, how we will charge you (if at all) and what will happen next.
1 Our role We will be acting for you [or insert names if there is more than one client] and you [insert if more than one] will give us our instructions. The work we are to do is [insert description of matter, eg assisting establishment of community group (including names of parties and property if any) and what work will be done, eg drafting of rules and incorporation, taxation advice, and if specialist advice is required from third parties]. The scope of the work may expand beyond this at your request, but the estimate of fees outlined below (if any) may change. We reserve the right to cease acting for you if you do not follow our advice.
2 Our lawyers who will be assisting you Our team will consist of [insert name of partner and other lawyers/staff who will be working with the client].
3 Our fees and disbursements
3.1 Our fees We will be acting for you on a pro bono basis and so will not charge you any professional fees. OR We will be acting for you on a pro bono basis and so will charge you only to the extent that you are able to recover fees from the other parties [see NSW Supreme Court decision of Wentworth v Rogers (decided by Barrett J on 15 August 2002)] OR We will be acting for you on a reduced fee basis (which will be capped at $[…] or charged at […]% of our normal fees). OR
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We will be acting for you for a fixed cost of $[estimate] based on… [insert assumptions or include as separate schedule].
3.2 Disbursements We will only charge you for fax, photocopying and courier charges to the extent they exceed $[... ] in total. However, we will charge you to the extent disbursements can be recovered from the other party (in litigious matters only). We will charge you for out-of-pocket expenses, including counsel’s fees [unless counsel acts pro bono], search, filing and lodgment fees whether or not they are recoverable from the other party. Our estimate of these fees is $[…].
3.3 GST If we charge you for professional fees and/or disbursements and GST is payable in relation to the services we provide to you, an amount of 10% will be added to those fees and/or disbursements and will be payable by you at the time we issue our bill.
4Your right to a review of costs You may have your bill assessed by a costs assessor in some circumstances. If you apply to have a costs assessor appointed, you agree to pay the costs assessor’s costs regardless of whether the assessment is favourable to you or not.
5 Quality control We have quality control procedures in place. If you require review by an external auditor, we require your written approval.
6 What will happen next? The next step is [insert details…..we will require…/we need you to…]
Our standard terms are enclosed. Please take the opportunity now to read these standard terms as they set out further information for you. This letter overrides those terms to the extent of any inconsistency. The law in Queensland requires us to enter into a written client agreement, which will be formed by this letter and the standard terms. To meet that legal requirement, we need you to sign the enclosed duplicate and return it to us as soon as possible. In the meantime, your ongoing instructions in this matter indicate your acceptance of these terms. Yours faithfully
[Insert name of Partner] [Firm name]
[Insert name of Client] agrees with the above:
Dated this day of 20 .
Signed
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4Pro bono survey The following sample memo and questions may be used or adapted by firms who wish to undertake an audit of the current pro bono work being undertaken by staff and others at firms. Included also are sample questions designed to provide people in the firm with an opportunity to express interest or opinions on the kinds of pro bono activities they would like to undertake and see the firm undertake in the future.
Sample memo covering survey Many of you would have noticed that an increasing number of firms are looking at ways of organising and targeting their pro bono activity. The firm is currently reviewing its pro bono policy and formalising its pro bono activities. By pro bono, we mean [consider inserting the firm’s definition of pro bono]. We are aware that many people in the firm have been undertaking pro bono work for some time. To assist the firm review and organise its pro bono activities, we are undertaking a survey of the kind of pro bono work you may have done, or are currently doing. The information from this survey will ensure that the firm, in reviewing and assessing its pro bono activity, is aware of its current commitment and contacts and the expertise that currently exists within the firm. The survey also gives you the opportunity to give us an idea of the kind of pro bono work you would like to do and would like to see the firm undertaking in the future. This will assist the firm to develop and expand its pro bono commitment in a way that is cohesive and appropriately reflects the aspirations of those wanting to undertake pro bono work in the future.
Sample questions surveying current/past pro bono practice Do you currently undertake pro bono work? If yes, what is the nature of that work? How were you referred this work? (For example, Public Interest Law Clearing House, Law Society, Community Legal Centre (CLC) or other community organisation, court, direct request from individual/organisation, barrister, friend/other associate, follow up work from volunteer session at a CLC or other organisation, other?) Have you made any contacts with individuals from outside agencies/organisations (for example, community legal centres, legal aid commissions, non-profit organisations)? If so, please describe.
For work undertaken within the firm: (for each matter) What is the matter number and matter description? Who was the partner supervising the matter? What other lawyers/partners/non-legal staff were working on the matter/s? Who is the client? How was the client referred to you? (For example, PILCH, Law Society, CLC or other community organisation, court, direct request from individual/organisation, barrister, friend/other associate, follow up work from CLC or other organisation, other?) What is the nature of the work being undertaken (specify area/s of law) How have you been accounting for your time on the work? (Possible response codes: not recorded time, entered as pro bono, entered as billable/non-billable and applied/sought fee credits/write offs, other method, etc?)
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What was the basis upon which the work was done? (For example, no fee, reduced fee, charge/no charge for internal/external disbursements, etc.) What is the approximate (dollar) value of services/advice provided in this work?
For work undertaken outside the firm: Do you undertake pro bono work outside the firm? (For example, at a community legal centre as a volunteer?) How often do you attend? (Could include questions about hours/days of week) What is the nature of the work you undertake? (For example, direct legal advice/assistance, involvement in CLE, member of organisation’s board etc.) Does the firm support you in this work in any way? (For example, travel assistance, ability to leave work early, use of firm resources (specify), fee/time credits, other?) If respondents answer ‘no’ to the above question, firms could ask whether respondents would like the firm to provide support, and if so, what?
Sample questions surveying interest in pro bono What areas of pro bono casework interest you? Bankruptcy Housing and tenancy Business assistance Human rights Consumer Immigration Corporate work Indigenous rights Criminal law Legal research and writing Disability rights Migrant/NESB rights Discrimination Powers of attorney/guardianship Domestic violence Refugee Employment Social security Family law Tax HIV/AIDS Wills Homelessness issues Other (please describe)
Are there particular types of activities you would like to undertake other than casework? For example, secondments to community legal organisations, law reform and policy work, community legal education, participation in specialist advice clinics. Are there particular areas, issues or client groups or organisations that you would like the firm to consider giving priority to? Any other comments?
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5 Pro bono database and sample monthly report
1 Database - sample fields
Request Date: Matter Number: Accepted:
Client: Contact Made By: Date Of Birth: Address:
Town/Suburb: State: Postcode: Telephone: Facsimile: Language Spoken at Home if not English:
Income Source:
Client Category: Referred From: Referred To: Area Of Law: Outline of Case: Decision: Other Side: Specify: Costs Letter: Costs letter signed: Limitation Date: Supervising Partner: Group: Solicitor(s): Completed: No File: Open Date Closed: Rate:
Status of matter
29/04/2003 Details of the status of the matter go in here. 29/04/2003 Previous status reports go below.
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2 Sample monthly report – status of matters
Client Starting Matter Partner Solicitor(s) Matter Type Outline of Current Date # Matter Status Creators 10/12/02 239999 Joanne Jo Yong Entertainment Solicitor/legal 01/04/03 – JY Rights Bloggs advice night advising Brown Centre family regarding publishing/ recording agreement Maria 20/02/03 101010 Andrew Lisa Pierce Discrimination Communication 01/04/03 – Veska Smith to the Human Communication Rights forwarded to the Committee UN. Awaiting response. 01/03/03 – Taken initial instructions, drafting Communication John Doe 03/06/02 100009 Wendy Lindsay Employment Workplace 01/04/03 – No Hu Brown Agreement further developments – ready to go to hearing.
01/03/03 – all documentation completed. Applications to dismiss revocation application and appeal lodged - waiting hearing dates. Wage increases should be paid this week and back dated.
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6Sample referral and assessment form
Referral Date referral received: Source of referral: Organisation: Contact person: Phone:
Client Details Name: Contact (where client an organisation): Street address:
Postcode:
Postal address: Postcode:
Telephone: work: home:
Guidelines Description of matter:
Within pro bono ? Yes No Targeted area ? Yes No Other party/ies: Conflict? Yes No
Client's general financial position:
Can the client pay disbursements ? Yes No Alternative forms of assistance available ? Yes No
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Comment:
General assessment of merit:
Limitation date/next court date: Referral rejected: Referral accepted:
Solicitor acting:
Supervising Partner:
Group Convenor:
Pro Bono Coordinator/ Partner:
Note: You have received approval for $ in fees and $ for disbursements on this matter. Any application to increase the fee cap must be made in writing to the State Pro Bono Partner or Coordinator.
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7Application for assistance form and related pro bono committee decision form
Application for pro bono assistance This form must be completed in accordance with the Pro Bono guidelines.
Matter name:
1. Facts of the Matter (Please provide a brief overview of the relevant factual background of the matter.) 2 How is this matter in the “Public Interest”? (Please provide an explanation) 3 Level of Pro Bono Assistance Sought (Please tick) Full assistance (that is, client to pay disbursements only) Concessional fee arrangement (that is, client to pay professional costs at a reduced rate) Fee deferral (that is, client to pay all professional costs at conclusion of matter) Contingency (that is, client to pay professional fees only if outcome successful)
4 Comments on Assistance Sought (Provide any relevant details)
5 Cost estimate: $ ______to $ ______6 Financial Year in which majority of costs likely to be incurred: 20___/___ 7 Merits of the Prospective Client’s Case as Assessed by Team Leader Responsible (A brief explanation of merits of the case)
8 Financial Resources of the Prospective Client (Please list assets and/or access to financial resources)
9 Seriousness and Complexity of Matter (Assess seriousness and complexity and consider whether the matter could be readily conducted by other representatives such as a trade union at an affordable cost)
10 Capacity; as far as can be predicted, does [Firm] have available resources, given other commitments, to be devoted to the matter? 11 Does the matter afford a good training opportunity to practitioners within the Firm or allow the Firm to explore a novel point of law or otherwise allow the Firm to expand its profile within the community? 12 Are there any other matters which the Committee should consider which have not been addressed?
Signature of Team Leader Signature of Solicitor Acting Dated: ______
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Pro Bono Committee Decision When reviewing an application for pro bono assistance, the Pro Bono Committee must adhere to the Pro Bono guidelines. The following information must be completed and a recommendation made.
Matter name:
Points for consideration Comments Does the Committee believe that pursuing the matter will be in the public interest? Has the Team Leader assessed the merits of the prospective client’s case as reasonable? Does the Committee believe the prospective client has insufficient financial resources? Could the matter be readily conducted by other representatives at an affordable cost? Does [Firm] have available resources given other commitments? Does [Firm] overall performance for the year enable acceptance of this application? Does this matter provide an opportunity for training of junior solicitors/expanding firm profile?
Decision The Pro Bono Committee is satisfied that this matter meets the [Firm] pro bono guidelines or The Pro Bono Committee is not satisfied that this matter meets the Pro Bono Committee guidelines for the following reasons:
Signed______For and on behalf of the Pro Bono Committee Dated ______
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8Sample new pro bono matter memorandum
Thank you for accepting this pro bono matter. Attached please find:
The Referral and Assessment Form This form provides: a) contact details for the client; b) a description of the work to be undertaken. Additional work for the client must not be undertaken without the written approval of [Pro Bono Partner] or [Pro Bono Coordinator]; c) the fee cap and disbursement cap. In order to manage the pro bono budget, a cap is placed on fees and disbursements for all pro bono matters. The fee cap in this matter is $ and the disbursement cap is $ . If the fee cap is exceeded, all fees above the cap will be written off and your time reversed. This means you will not receive fee nor utilisation credit for time spent on the matter once the fee cap has been exceeded. Please therefore carefully consider whether the fee cap is reasonable for the work to be done, and contact [Pro bono coordinator] immediately by e-mail if you do not consider it to be reasonable, setting out your estimate of fees and the reasons for that estimate. Fee caps will only be increased in exceptional circumstances once work has commenced. Exceptional circumstances may include that additional work has been approved or that the matter is more complex than it first appeared (as to which a rigorous test will be applied). If during the course of the matter you think the fee cap will be exceeded and there are exceptional circumstances justifying an increase in the fee cap, please e-mail [Pro Bono Coordinator] before the cap is exceeded setting out: • the matter name and number • why the fee cap is likely to be exceeded • current fee cap • current billings • an estimate of fees to completion.
The draft letter of engagement Please consider the engagement letter, amend as necessary and forward to the supervising partner for signature. Two copies of the letter should be forwarded to the client, one for the client to sign and return. You should not commence work on the matter until the signed letter of engagement is received unless the matter is urgent.
The following documents received from the client • • •
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Opening the matter The matter opening form has been forwarded to the supervising partner for signature. You will be notified by finance of the matter number.
Initial interview Please notify me of the date and time of the initial interview. Usually I will sit in on the initial interview, and at that interview ensure the client is aware of the terms of engagement.
Billing Please enter your time against the matter number in the usual way. The matter will be billed in a billing run on or about the 15th of each month. You do not need to prepare a bill yourself. The unauthorised bill will then be forwarded by […] to the supervising partner's billing in tray for authorisation and printing. Finance will pay all authorised bills around the 23rd of each month.
Finalising the matter On completion of the matter, please: a) ensure all bills are paid; b) close the file in the usual way; c) archive the file in the usual way. Procedures for pro bono matters are set out in full in the Procedures Manual at […]. If you have any questions about the procedure for pro bono matters, please do not hesitate to contact me. Once again, thank you for your assistance with this matter. Regards
[Pro Bono Coordinator]
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9Sample evaluation form
Pro Bono Scheme
Client Name: Matter Number:
Solicitor Supervising Acting: Partner:
Date Completed:
Assistance Provided:
Outcome:
Total Cost: $ Fees: $ Disbursements: $
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Benefit of assistance to:
Client:
Yourself:
Firm:
Other:
Ways the matter could be handled more efficiently or effectively (if any):
Is it worthwhile undertaking similar work on a pro bono basis? Why/why not?
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10 Pro bono matter closure report
Closure report
1. Responsible solicitor
2. Name of client
3. Client types
4. Nature of matter and area of law (eg incorporation of charitable trust)
5. File number
6. Fee basis (eg significantly reduced fee; no fee; or hybrid fee - part paid/part free or reduced)
7. Detail of the source of the referral of this matter, including any linked relationship to paid or pro bono work from this client or from any other source resulting in the referral.
8. Date matter commenced
9. Date matter closed
10. Approximate number of hours spent on the matter
11. Approximate value of work completed on the matter, assuming it was on a paid basis and at full rates.
12. Indicate the primary reason for closing the matter
13. Describe outcome of the matter (please attach a copy of the advice given, agreement reached; terms of settlement; or judgment, whichever is appropriate)
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14. Summarise feedback received from client and/or from within [the Firm]
(please attach any letters received)
15. Describe any media attention to the matter
(please attach copy of any newspaper or journal article published on the matter by any third party)
16. Pro-active public relations on the matter
(please attach copy of any press releases or articles published, drafted by the responsible solicitor)
17. Detail any internal value adding arising out of the matter
(please attach a copy or provide details of any internal seminar given; memoranda sent to staff etc)
18. Detail any new legal expertise gained from working on the matter
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11 Secondment Agreements
Sample secondment agreement: 1
Secondment agreement between [Community Legal Centre] and [Firm] and [Secondee]
Partner
CONFIDENTIAL
Contact
Attention: Dear Secondment to [Community Legal Centre] We are pleased to confirm that [Secondee] will commence his secondment with [Community Legal Centre] on …… 2003. We confirm the secondment on terms as follows:
1The Secondment [Firm] (the Firm), as part of its pro bono commitment, will provide to [Community Legal Centre] (the Centre) a lawyer, without charge or cost to the Centre and the Centre recognises and accepts that the purpose of the position is to assist the Centre in the provision of the legal services it provides in the local community. [Secondee] will work with the Centre […] days each week for 6 months from ……. 2003. [Secondee] is: a) admitted to practise as a solicitor in NSW and has a current practising certificate; b) has good oral and written communication skills; c) has good computer skills; and d) has an interest in social justice.
2 Direction and Responsibility [Secondee] will work under the direction of the Principal Solicitor of the Centre from time to time and be responsible to the Principal Solicitor, or any other officer or officers of the Centre nominated by the Management Committee for the Centre. The Centre will be responsible for all of [Secondee’s] work for the Centre during the course of the secondment. The Firm may not direct [Secondee] in the performance of his work for the Centre during the period of the secondment, and the Centre will have sole control of the tasks which he performs, and the manner in which those tasks are performed, during that period.
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[Secondee] will be treated by the Centre like all other employees of the Centre, and [Secondee] will be bound by the policies and procedures of the Centre from time to time. The Centre will ensure that [Secondee] has read and has access to the Centre's policies and procedures. If the Centre or [Secondee] perceives any actual or potential conflict of interest arising out of the work to be done by [Secondee] during the secondment, the Centre will consult the Firm, and if required by the Firm, exclude [Secondee] from such work or take any other steps necessary to eliminate the conflict. The Centre will notify its Management Committee of any conflict of interest when it occurs.
3Salary and Benefits Notwithstanding 2 above, [Secondee] will remain the employee of the Firm and the Firm will remain financially responsible for the payment of [Secondee’s] salary and other benefits, including superannuation contributions, holiday pay and other leave entitlements. The Firm will continue to comply with its obligations under superannuation guarantee legislation.
4 Leave As a continuing employee of the Firm, [Secondee’s] rights in respect of annual leave, long service leave and sick leave will remain unaffected. Leave other than sick leave will only be taken with the approval of the Centre. The Centre will inform the Firm of any annual or sick leave taken by [Secondee] so that the Firm's personnel records may be kept up-to-date.
5 Confidentiality The Firm will not require [Secondee] to divulge any information in relation to any matters in which he has worked for the Centre except for: a) matters in relation to which the Centre has given instructions to the Firm to act; or b) information which may be necessary for the purposes of resisting or defending any claim or demand made against the Firm or [Secondee] arising out of or in connection with his secondment.
6Permitted Contact with the Firm Without affecting the obligation under 5 above, [Secondee] may: a) consult with the Firm for advice and assistance in the performance of his work; b) for those purposes, maintain a computer link with the Firm; c) receive internal Firm correspondence and publications for the purpose of keeping up-to-date with developments in the law or the Firm's practice.
7Termination The Centre or the Firm may terminate the secondment at any time by notice in writing to the other party and to [Secondee].
8 Liability and Indemnity The Centre will ensure that the Centre's professional indemnity insurance will cover [Secondee] for the period of the secondment. If necessary, the Centre will advise its insurers of the secondment arrangements.
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The Firm will not be liable for any act or omission of [Secondee] during the secondment, including any liability by way of negligence or arising from any duty of care which may exist, whether by way of contract or otherwise and the Centre will not make any claim against the Firm based on any act or omission of [Secondee] of any nature. [Secondee] will not be liable to the Centre for, and the Centre will not make any claim against [Secondee] in relation to any act or omission by [Secondee] during the secondment, except an action based on fraud, serious misconduct or wilful neglect of duty. The Centre will indemnify the Firm and [Secondee] in respect of any claim or liability made by or to any third party in relation to the secondment on a full indemnity basis, except to the extent that the claim or liability is occasioned by [Secondee’s] fraud, serious misconduct or wilful neglect of duty.
9Appraisal At the time at which the Firm conducts its staff performance and salary reviews, we may request that you give us a brief review of the nature of the work performed by [Secondee] to that date and your assessment of his performance. On completion of the secondment, we would be grateful if you would provide us with a review of the secondment indicating the nature of the work [Secondee] performed for you and your assessment of how well the arrangement met your needs and expectations.
10 Acknowledgment The Centre may, with the prior approval of the Firm, make any local media release or otherwise publicise the Firm's contribution to the service delivery of the Centre in recognition of that fact.
11 Communication Any questions regarding the legal professional aspects of the secondment should be directed to [Firm pro bono partner] on …. Any queries regarding other aspects of the secondment should be directed to [Firm Pro Bono Coordinator] on ……
______
If the above terms are acceptable to the Centre would you please have the appropriate officer sign the enclosed copy of this letter on behalf of the Centre and return it to [Firm Pro Bono Coordinator]. As discussed, we are unable to guarantee a lawyer beyond any individual secondment. We are hopeful however that the secondment will be a continuing one. Yours sincerely
[Firm Pro Bono Partner] cc:
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Sample secondment agreement: 2
Secondment agreement between [Community Legal Centre] and [Firm] and [Secondee]
1Introduction The purpose of the Pro-Bono Secondment Scheme is to increase the participation of the private legal profession in the provision of not-for-profit, or community, legal services. Additionally, the Scheme aims to complement available resources, and to provide an opportunity for young lawyers engaged in the private legal profession to be exposed to and to experience community legal issues.
2Operation of Agreement 2.1 This Agreement comes into force on the date the secondment commences. 2.2 The secondment shall commence on ……. on a full-time basis for a period of 6 months. 2.3 The secondment will cease on….., unless otherwise agreed by all parties and in consultation with the Pro-Bono Secondment Committee (“Committee”).
3 Direction and responsibility 3.1 [Secondee] will work under the direction of and be responsible to the [Community Legal Centre]. 3.2 Subject to Clause 7.2, [Firm] may not direct [Secondee] in the performance of her work for the [Community Legal Centre] during the secondment, and the [Community Legal Centre] will have sole control of the tasks which she performs and the manner in which those tasks are performed. 3.3 The [Community Legal Centre] will be responsible for all of [Secondee’s] work for the [Community Legal Centre] during the course of the secondment.
4 Centre’s Obligations [Community Legal Centre] agrees to:
4.1 Provide and maintain so far as practicable, a working environment that is safe and without risk to the health of the secondee. 4.2 Ensure the secondee is sufficiently covered under the Centre’s existing professional indemnity insurance policy to enable the secondee to provide legal services in the Centre’s name. 4.3 Maintain proper and adequate additional insurance at all times during the secondment including Public Liability Insurance and professional indemnity insurance. 4.4 Provide adequate supervision and training to the secondee during her time at the Centre. 4.5 Allow the secondee to attend meetings, training sessions, seminars and social events conducted by [Firm]. 4.6 Allow the secondee to consult with [Firm] for advice and assistance in the performance of her work and maintain a computer link with [Firm] for those purposes.
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4.7 Permit the secondee to receive internal [Firm] correspondence and publications for the purpose of keeping up-to-date with developments in the law or [Firm’s] practice.
4.8 Allow [Firm] to state that the secondee is or was on secondment to [Community Legal Centre] in its annual report, business capability statements, tenders, etc. [Firm] may also refer to the secondment during employment interviews with graduates or other candidates, and in other internal publications. In all other circumstances, [Firm] will not, without prior written permission of the [Community Legal Centre] and Committee, promote or advertise in any way that [Firm] has provided the secondee on secondment to [Community Legal Centre]. 4.9 Not, at any time during the secondment, employ or make an offer of employment to the secondee or by any direct or indirect means encourage the secondee to make, or intimate to the secondee that [Community Legal Centre] would be prepared to entertain an application for employment with [Community Legal Centre].
5Firm’s Obligations [Firm] agrees to: 5.1 Not charge [Community Legal Centre] for the secondee’s time and service. This arrangement is being entered into on a pro-bono basis and no fees will be applicable. 5.2 Continue full payment of the secondee’s salary, leave entitlements, employer superannuation contributions, WorkCover and related employment costs during the secondment. 5.3 The secondee remaining an employee of the firm for the duration of the secondment.
6Secondee’s Obligations [Secondee] agrees to: 6.1 Abide by the policies, guidelines and principles of the Centre while conducting work in the Centre’s name. 6.2 Strictly comply with client confidentiality procedures of the Centre. 6.3 Observe safe work practices and procedures of the Centre, accept personal responsibility for protecting her own health and safety and to act in a manner that does not jeopardise the health and safety of others. 6.4 Attend training sessions and meetings as required by the Centre.
7 Conflict of Interest 7.1 [Firm] will not be taken to have a conflict of interest where [Firm] provides services to a third party who has had dealings with [Community Legal Centre] merely because [Secondee] is seconded to the Centre. 7.2 The parties acknowledge that from time to time [Secondee’s] work at the Centre may involve issues which relate directly or indirectly to matters or clients with which [Firm] may be involved. [Secondee] agrees to bring any such issues of which she has knowledge to the attention of the Centre and [Firm] who shall discuss and agree [Secondee’s] involvement in such matters or clients.
8 Complaints and Grievance Procedures 8.1 Parties understand that grievances, complaints and concerns regarding the secondment can be raised with either the Pro-Bono Secondment Facilitator or the party’s relevant representing
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committee member. The parties are encouraged to undertake informal resolution of such issues prior to raising them with the Facilitator or Pro bono Secondment Committee.
SIGNED for and on behalf of the [Community Legal Centre] by ......
SIGNED for and on behalf of the [Firm] by ......
SIGNED by [Secondee] by ......
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12 Encouraging pro bono The following three sample memoranda are examples of those used by firms to encourage and promote pro bono within the firm.
Memorandum to all lawyers
Pro Bono Program We are extremely pleased to report that [number] solicitors volunteered to work on new pro bono matters in response to the [date] appeal. Solicitors volunteered to work on projects with [list of agencies]. [Number] solicitors responded to the request for help with the [agency project]. We are also grateful to those partners who have agreed to supervise on pro bono projects. Listed below are some additional appeals for assistance which we have received in recent weeks: [List details]
Other organisations The groups listed above represent only a fraction of the groups with which we work and. Of course, each group has many more cases than those mentioned. If you are interested in volunteering to work in a different area, please contact [name].
Memorandum to all fee earners from the Pro Bono Committee • Our first pro bono newsletter has produced a gratifying response. Attached as Exhibit A is a list of new matters taken on as a result. You will soon receive an updated list of current pro bono matters with these incorporated. • Our enquiry regarding the need for assistance produced a list of projects, listed in the attached Exhibit B. Some require the assistance of more than one solicitor. • We have compiled a list of available pro bono training materials (attached as Exhibit C). Those marked with an asterisk are already in out library. • We are about to canvas all lawyers who do not appear on any of our records as having billed any time to pro bono matters since [date] to ensure that our records are complete. • We plan to send a notice to all lawyers working on pro bono matters to remind them that: (a) all original correspondence and pleadings must be filed; and (b) the substance of and contacts involved in all non-litigation matters should be documented somewhere in [Firm] records (in the form of memoranda to the files, if necessary). All lawyers will be reminded of and encouraged to review the firm’s Pro Bono Manual.
Memorandum to solicitors At [time] on [date] the Pro bono Committee will hold the firm’s annual pro bono seminar for solicitors to discuss the wide variety of litigation and non-litigation pro bono projects available. We have invited representatives from [name of agency] which has helped match [Firm] solicitors with pro bono clients. [Senior partner] will also attend to describe the firm’s pro bono policy and commitment Because of the high value placed on pro bono work by the firm, we believe that it is important that you attend if at all possible. The seminar will help you to become familiar with [Firm] pro bono practices and available projects. If you do not plan to attend the seminar, please fill out the attached form and send it to [name]. I will not attend the pro bono seminar on [date] Name: ______
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Sample policy statements regarding credit given for pro bono time The following statements are taken from law firm pro bono policies and show how some firms express their position on crediting time.
Example 1 Policy on billable credit for pro bono time by lawyers The management committee is committed to the principle that pro bono time should receive appropriate credit during evaluations and partnership selection. For years we have looked at ways to further encourage pro bono activity, such as by giving billable credit for pro bono time; but the cost in programming time and inaccurate financial records required to implement such a change proved too high. Recently however, the Management Committee has adopted the recommendation of the Firm’s Pro Bono Committee and Pro Bono Advisory Committee, effective immediately, to treat all pro bono time as billable time on the year-end reports provided to members of the management Committee as they begin deliberation on the appointment of new partners and to the Evaluation and Compensation Committee. All monthly and other interim reports during the year will remain unchanged and will continue to show pro bono time as Firm time. But the final, year-end reports used for associate evaluation and compensation and for partnership selection will treat pro bono time as if it were time that had been reported, billed and collected. We hope that this will reinforce the Firm’s desire to encourage individual lawyers to find time to participate in serving those unable to pay.
Example 2 Equality of treatment Pro bono work is treated, as far as possible, in the same way, according to the same procedures, with the same diligence and timeliness, subject to the same supervision and review and with the same recognition for time spent, as any other work undertaken by the firm. Lawyers performing work on a pro bono basis will receive full fee credit in the same way as any other work undertaken by them for the firm. (See 5.1 Sample pro bono policies: 1)
Example 3 Pro bono matters are recognized as part of a solicitor’s budget performance Work conducted under the [Firm] Pro Bono Scheme is fully recognized within individual and practice group budgets, and must be properly recorded. An individual legal staff’s budgetary performance is calculated through the combination of billable time and pro bono time. (See 5.1 Sample pro bono policies: 6)
Example 4 How does [Firm] regard pro bono work? Pro bono work is highly regarded by the firm and advances a solicitor’s career. As much as possible both partners and legal staff will be involved in pro bono work. Time engaged by all lawyers in pro bono work is to be properly recorded and valued in the usual way in the firm’s records.[119]
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4 Information and resources 1Secondment issues Many firms find that secondments to community legal organisations are an effective way of providing pro bono legal services. The following are some of the issues a firm may need to consider in relation to secondments.
Duration of a secondment Consideration should be given to the needs of both the firm and the community organisation. Larger firms may be able to release solicitors for longer periods, although this may be more difficult in respect of more senior solicitors. A community organisation may wish to have a solicitor available on a longer term for work on a particular project or to participate generally in the advice and casework of the service (and have sufficient time to acquire any necessary expertise) or for a shorter term to work on a project with a specific deadline. There is a trade-off between shorter secondments, which allow more lawyers from firms to participate in secondments, and longer secondments, which tend to be more beneficial to the community organisation. Secondment programs that operate on short-term staff rotations need to be managed sensitively to avoid the possibly disruptive effect of staff movements on the community organisation’s clients and staff.
Recruitment and seniority of seconded lawyers Firms will need to consider the process used for recruiting secondees. Ideally, lawyers self-select for positions on secondment. However, firms should advertise the availability of secondment positions to lawyers at the appropriate levels within the firm.[120] Ways of eliciting interest in secondment opportunities include using email messages, newsletters, bulletin boards and presentations at firm functions, as well as including information in induction materials for lawyers joining the firm. Firms should also consider the experience and seniority of secondees, balancing the requirement that the lawyer be sufficiently experienced to manage the placement and the need for the firm to maintain its in-house expertise.
Recognition for work of seconded lawyers Seconded lawyers should receive recognition for work performed on secondment and not be penalised or disadvantaged in terms of performance appraisals or future advancements. Ideally, pro bono work done on secondment should be treated in the same way and with the same recognition for the time spent as any other work undertaken by the lawyer for the firm. Additionally, firms may consider giving special recognition to the work of the lawyer by publicising their work in newsletters, or acknowledging the pro bono participants at events such as annual pro bono lunches or other events.
Supervision, training and support In situations where secondees are undertaking work in which they are not experienced, it is essential for adequate supervision, training and support to be provided within the organisation. When secondees are placed on a rotational basis, firms could arrange for the past secondee to provide some training to the new secondee. Some firms provide solicitors on a rostered basis to staff advice sessions at a community organisation and also organise training for those lawyers. This training, and training materials, may in part be provided by people in the firm and/or be provided by the community legal organisation.
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Remuneration and other expenses Secondees remain the employee of their law firms. Their salaries and on-costs (superannuation, relevant workcover, annual leave, sick leave and other entitlements and benefits) are met by the seconding private firms.
Professional indemnity The seconding law firm is generally not responsible for work performed by the secondee at the community organisation. The community legal organisation will normally be responsible for the secondee’s professional indemnity insurance, and firms and community organisations need to make arrangements in relation to this coverage for the seconded lawyers. See the sample secondment agreements at 3.11 Secondment agreements for examples of how professional indemnity may be addressed.
Maintaining contact with the firm during the secondment In the case of full-time or long-term secondments, it will be in both the secondee’s and firm’s interest that mechanisms are in place to ensure that the secondee maintains an ongoing relationship with the firm during the secondment. This can by done by having provisions in the secondment agreement that reflect the intention that the secondee continue to attend the firm for practice group meetings, training seminars and social functions, where relevant and appropriate.
Conflicts of interest There may be occasions where a secondee’s work at a community legal organisation will relate directly or indirectly to matters or clients with which the firm may be involved. Mechanisms should be in place so that any identified conflict is drawn to the attention of the firm and the organisation. Some firms supply the secondee with a list of the firm’s clients so that the secondee can be aware of potential conflicts. In some circumstances it may be appropriate for the community organisation to require the secondee and/or firm to sign an agreement to ensure the confidentiality of any information acquired during the course of the secondment.
Secondment agreement Parties to the secondment arrangement should commit the terms of relationship to writing. Such an agreement should include the period of placement, responsibilities, insurance issues, and salary. Examples of secondment agreements are found in 3.11 Secondment agreements.
Administrative and other costs An important consideration for any secondment to a community organisation is the potential burden a poorly managed secondment may entail. Before a secondment is undertaken, it is appropriate that important resource, training and supervision issues are considered so that the community organisation is not put to any added expense or risk by virtue of that secondment.[121] If secondment programs are being expanded and encouraged, there should be a concomitant recognition that this may involve extra work for the community organisation. Firms should consider assisting this expansion by providing support for any additional staff, resources, capital equipment and training needs.
Pro bono work post-secondment Successful secondments promote a close relationship between the firm and the community organisation, and have the potential to lead to other kinds of pro bono assistance that are beneficial to both. In addition, lawyers who have undertaken secondments are usually keen to continue their involvement in pro bono work and some firms take steps to identify opportunities for them to do so, to ensure their continuing job satisfaction at the firm.
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Firms may wish to think about ways of maintaining a relationship with the community organisation after a secondment and/or for the secondee to otherwise engage in pro bono work at the firm. Firms could give the secondee, upon their return to the firm, the opportunity to attend the community organisation on a casual, and ideally fully billable/credited time basis. Firms could also identify opportunities for doing additional kinds of pro bono work with the organisation, for example, establishing a mentoring relationship whereby former secondees maintain involvement with the centre’s casework by undertaking reviews or advising on litigation strategies. The secondee’s familiarity with the community organisation’s client base may lead to more and better pro bono referrals to the firm. It might also lead to other kinds of assistance such as becoming a member of the organisation’s management committee or providing administrative or library or subscription support to the organisation. Other examples of the kinds of support a firm could offer are found in the section Multi-tiered relationships in 1.2 Current models of law firm pro bono.
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2Pro bono referral schemes This section discusses some of the formal pro bono schemes coordinated or established by professional associations, courts and Public Interest Law Clearing Houses around Australia. Each scheme has different criteria or guidelines by which eligibility or referrals for assistance are assessed. Firms interested in participating in these schemes can contact the organisations or court registries listed below. The schemes referred to do not represent every pro bono referral service. There are other schemes, of varied formality, under which pro bono assistance is provided. For example, some local professional associations (such as the City of Sydney Law Society) or groups of firms operate pro bono duty lawyer schemes at particular courts. Some courts have informal arrangements for making referrals with professional bodies or firms. For example, the Sydney and Adelaide registries of the Federal Magistrates Court have arrangements with a panel of solicitors who provide initial advice, and, in appropriate cases, representation at hearings. An example of an issue-specific referral scheme is that operated by the Refugee Advocacy Service of South Australia (RASSA) under which some matters involving appeals to the Federal Court against refusal of refugee applications by the Refugee Review Tribunal are referred to lawyers for pro bono advice and/or representation.[122]
Professional association legal assistance schemes Some professional associations coordinate pro bono legal assistance schemes. The following general comments can be made about these schemes: • eligibility for assistance is assessed under each scheme’s own guidelines; • assistance under the schemes may be provided on a without-fee, reduced fee or conditional fee basis; • assistance will generally not be provided under the schemes if there is another form of assistance available (such as legal aid, or assistance from a CLC); • the schemes are discretionary and there is no right to assistance; • some schemes exclude certain kinds of matters;[123] • the schemes generally apply a means test,[124] and a merits test;[125] • applicants must complete an application form, provide information about their case, and detailed information and documentation about income, assets and expenditure; • the schemes do not themselves provide disbursement assistance for matters referred. in relation to disbursement assistance, see 4.5 Disbursement assistance; • participation in a scheme is likely to result in only a few referrals to a firm per year. The following schemes are currently operating. The Bar schemes listed below may be relevant to a firm undertaking a matter that requires pro bono assistance from counsel.
Law Society of New South Wales The Pro Bono Scheme 170 Phillip Street Sydney NSW 2000 or DX 362 Sydney Phone: (02) 9926 0364 Fax: (02) 9231 5809 Email: [email protected] Internet: www.lawsociety.com.au
New South Wales Bar Association Legal Assistance Referral Scheme Selborne Chambers 174 Phillip Street Sydney NSW 2000 or DX 1204
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Phone: (02) 9232 4055 Fax: (02) 9221 1149 Email: [email protected] Internet: www.nswbar.asn.au Law Institute of Victoria Legal Assistance Scheme[126] PO Box 13121 Law Courts Melbourne VIC 3000 or DX 38227 Flagstaff Phone: (03) 9225 6675 Fax: (03) 9225 6678 Email: [email protected] Internet: www.liv.asn.au/public or www.pilch.org.au
Victorian Bar Legal Assistance Scheme[127] GPO Box 13121 Law Courts Melbourne VIC 3000 or DX 38227 Flagstaff Phone: (03) 9225 6687 Fax: (03) 9225 6686 Email: [email protected] Internet: www.vicbar.com.au or www.pilch.org.au
Law Society of Western Australia Law Access Public Law Clearing House Level 4, 89 St George’s Terrace Perth WA 6000 Phone: (08) 9322 4911 Fax: (08) 9322 7544 Email: [email protected] Internet: www.lawsocietywa.asn.au/access.html
Queensland Bar Association Chief Executive Officer Level 5, North Quay Brisbane QLD 4000 Phone: (07) 3236 2477 Fax: (07) 3236 1180 Email: [email protected]
Other schemes Some state and territory professional associations coordinate reduced fee legal advice programs.[128] Firms interested in participating in these programs should contact the relevant association in their area.
Public Interest Law Clearing Houses Independent Public Interest Law Clearing Houses (PILCHs) have been established in New South Wales, Queensland and Victoria. PILCHs’ operations are substantially funded by fees from member legal practices. PILCHs refer public interest matters to member law firms and other members (for example, barristers and some corporations’ legal departments). PILCHs receive and assess requests for assistance and then contact member firms to see if they will accept a referral. Members pay annual membership fees (for firms, calculated on a per-partner basis). Each member firm generally receives a small number of referrals each year and is under no obligation to accept referrals. Referrals include matters requiring the provision of legal advice or transactional work as well as litigious matters and acceptance is usually based on a member’s interest, expertise and
Australian pro bono manual 180 4 Information and resources available resources. Firms can also directly assist PILCHs by providing secondees, financial and in- kind assistance. The West Australian Law Society’s Law Access Scheme (contact details above) operates a Public Interest Law Clearing House for the purpose of making referrals to firms that have indicated interest in undertaking pro bono matters. It does not involve membership or fee payments by firms. Firms can also participate in specific PILCH projects such as the Homeless Persons’ Legal Clinics operating in Brisbane and Melbourne (see 1.2 Current models of law firm pro bono). PILCH in New South Wales is currently exploring the feasibility of such a clinic in Sydney. There are many advantages for firms in being involved in PILCH referral schemes. PILCHs solicit enquiries and requests for legal assistance and screen those inquiries against the relevant PILCH criteria, including any merits criteria. PILCHs may also prepare factual and legal memoranda and collect relevant documents, refer matters to PILCH members with relevant expertise and capacity to accept the referral, facilitate initial conferences between pro bono clients and PILCH members and monitor the progress of the referrals. PILCHs may also be able to coordinate advice and/or representation from counsel where appropriate, and draw on the expertise of academics and other relevant professionals. PILCH (Victoria) PO Box 13121 Law Courts Melbourne or DX 38227 Flagstaff Phone: (03)92256680 Fax: (03)92256686 Email: [email protected] Internet: www.pilch.org.au/
PILCH (NSW) Level 1, 46–48 York Street Sydney NSW 2000 or DX 643 Sydney Phone: (02)92997833 Fax: (02)92997855 Email: [email protected] Internet: www.piac.asn.au/legal/pilchhelp.html QPILCH GPO Box 1543 Brisbane QLD 4001 Phone: (07)30129773 Fax: (07)30129774 Email: [email protected] Internet: www.qpilch.org.au/
Court-based pro bono referral schemes Some courts have established formal pro bono referral schemes under their rules. The purpose of the schemes is to facilitate the provision of legal assistance to litigants who are otherwise unable to obtain it and where it is in the interests of the administration of justice. Referrals under the schemes are generally made by the court to a registrar of the court for referral to a barrister or solicitor. Court registries maintain lists of lawyers and firms who have agreed to participate in the schemes. There is no stated means or merits test. However, the court may take into account the litigant’s means and capacity to obtain legal assistance, the nature and complexity of the proceedings and any other matter it considers appropriate. Referrals are not intended to be a substitute for legal aid, nor is a referral an indication that the court has formed an opinion on the merits of the litigant’s case. There are only a few referrals made to each firm each year, and firms are under no obligation to accept a referral. Details of schemes and their contact details follow, for any firms interested in receiving referrals under those schemes.
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Federal Court Legal Assistance Scheme Referrals under Order 80 of the Federal Court Rules are made by the court or judge to registrars of the court who maintain a panel of lawyers who have agreed to participate in the scheme. (The majority of referrals to date have been in immigration matters.) Firms interested in participating in this scheme should contact the registry in their state or territory: see www.federalcourt.gov.au.
Federal Magistrates Service Legal Assistance Scheme The court can refer a party to a registrar for referral to a lawyer on the pro bono panel, under Part 12 of the Federal Magistrates Court Rules. Registrars in each registry of the court maintain lists of lawyers who agree to participate in the scheme. Firms interested in participating in this scheme can contact Adele Byrne on (03)86004470, or by email to [email protected].
Supreme Court of New South Wales Legal Assistance Scheme Referrals for legal assistance are made by the court or judge pursuant to Part 66A of the Supreme Court Rules (NSW). Firms interested in participating in this scheme should contact: The Prothonotary, Supreme Court of New South Wales, GPO Box 3, Sydney NSW 2001 or DX 829 Sydney, or telephone (02)92308071, fax (02)92308628; email [email protected] or visit the court’s website at www.lawlink.nsw.gov.au/sc/sc.nsf/pages/scpractice.
District Court of New South Wales Legal Assistance Scheme Referrals for legal assistance are made by the court pursuant to Part 28C of the New South Wales District Court Rules. Firms interested in participating in this scheme should contact Assistant Registrar Anthony Grew at the District Court on (02)93775862, PO Box K1026, Haymarket 1240, or DX 11518 Sydney Downtown.
Court duty lawyer schemes A number of courts operate duty lawyer schemes. The schemes are sometimes coordinated by the courts, which maintain a roster of lawyers available to give limited assistance to unrepresented litigants. Some of these schemes are assisted and/or coordinated by professional associations. Firms interested in participating in these kinds of schemes should contact their local professional association.
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3Legal aid This section provides information regarding the availability of services and grants of legal assistance provided by the legal aid commissions. It aims to assist firms developing pro bono programs by outlining the services available from legal aid commissions and identifying those areas where services are unable to be provided by commissions due to limited funding or restrictions placed on the use of that funding by commonwealth and/or state and territory governments. The section will also assist lawyers to identify when a referral to legal aid is appropriate. Each state and territory in Australia has a legal aid commission. Because laws, legal practices, the guidelines and the funding to commissions differ across jurisdictions, the services and assistance offered by each commission differ too. The best method for determining likely eligibility for services and grants of legal assistance is to contact the appropriate commission. At the end of this section you will find the name, address and contact points for each commission.
Legal aid services
Services provided free of charge The following services are generally provided free of charge and without means testing. To be sure of the situation in a particular state or territory it is recommended that you contact that commission. • Legal information and referral services – the provision of initial legal information, and referrals to appropriate services. Information and referral will be provided face to face and by telephone. If appropriate, written information may be sent to people or accessed by them via each Commission’s website. • Advice and minor assistance – some commissions operate telephone services which extend beyond the provision of information and referral services to the provision of legal advice. Face-to-face legal advice is also offered. Most commissions also provide assistance in addition to advice, for example, help in drafting a letter or completing a form. • Duty lawyer – duty lawyers are available at many magistrates’ and children’s courts to provide advice and to assist clients with restraint orders, to seek remands, apply for bail and/or present pleas in mitigation. Commissions provide a range of services which are not limited to those listed above.
Grants of aid • Commissions can grant aid for legal representation for lawyers to undertake ongoing matters for clients. If a grant of aid is made it will be referred to either a private practitioner or a lawyer from the commission’s in-house practice. Grants of legal aid for representation in an ongoing matter are not available to everyone. Aid will be granted if: _the matter is of a type the commission is able to take on in accordance with commonwealth and/or state government guidelines; _the applicant passes a means test, based on the applicant’s income and assets and those of any financially associated person; and _the matter is assessed as having merit.
What matters are grants of legal aid available for? Information, referral, advice and minor assistance as referred to above are generally available for all kinds of legal matters and do not involve a grant of legal aid.
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Legal matters for which grants of aid for representation can be made by commissions vary in accordance with the guidelines applicable, and the funding available, in each jurisdiction. Grants of aid for representation are more likely to be available for family and criminal law matters than for civil law matters. Note that aid may also be granted, when it would not otherwise be, if the applicant has special circumstances which include language or literacy problems, intellectual, psychiatric or physical disabilities, lives in a remote location or if, in relation to family law matters, there is a likelihood of domestic violence.
Civil law Grants of aid are not as readily available as they are for family or criminal law matters. Applications will be subject to means and merits testing. Grants of aid will not be made for commercial or investment transactions, conveyancing, preparation of wills or probate, association or building disputes and defamation proceedings. Aid is also unlikely to be granted for neighbourhood and motor vehicle damage matters. Matter types where grants of aid may be available but are more likely to be limited include: Migration cases – grants of aid will be provided only if the matter raises an area of unsettled law, or if the proceedings seek to challenge the lawfulness of detention, not including a challenge to a decision about a visa or deportation order. Further legal assistance for migration matters may be available under the Immigration Advice and Application Assistance Scheme (IAAAS).[129] Employment cases – grants of aid are not readily available for employment cases although a matter arising under a commonwealth Act is a commonwealth priority (and thus aid may be more readily available) if it relates to: a decision affecting the receipt or amount of a commonwealth employees’ compensation, or a commonwealth pension, benefit or allowance; a decision or action by a commonwealth authority in relation to a person that has a real prospect of affecting a person’s capacity to continue in his or her usual occupation; discrimination. Other – for matters involving environmental law, mental health, consumer protection, tenancy and housing, reference should be had to individual commissions as the policies vary considerably. (Note that community legal centres may be able to assist with such matters.) Legal Aid Commissions are more likely to be able to assist with regard to the following civil matter types: •Veteran’s law – grants of aid are available for war veterans and their dependents in relation to appeals from decisions of the Veterans’ Review Board about war-caused disability pension entitlement or assessment claims. Applicants are not means tested. •Social security and other commonwealth benefits appeals. These include appeals to, and representation at, the AAT in certain circumstances. (Note also that some community legal centres operate welfare rights advocacy services.) •Equal opportunity and discrimination cases. (Note also that some community legal centres operate disability discrimination services.) It is sometimes possible to obtain grants of aid for disbursements only. A firm willing to act pro bono – without payment of fees – may find that a grant of aid is available for this limited purpose.
Family law Applications are subject to means and merits testing. Grants of aid for primary dispute resolution (PDR) are also available. Grants for PDR will usually be made before any grant of aid to commence proceedings except if PDR is not appropriate in the circumstances of the applicant’s case.
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Criminal law Applications are subject to means and merits testing. Aid will usually be available for trial if the applicant has a reasonable prospect of acquittal, and conviction would be likely to have a significant detrimental effect on the applicant’s livelihood or employment, actual or prospective; or the applicant has a disability or disadvantage which would prevent self-representation; or conviction would be likely to result in a term of imprisonment, including a suspended term, being imposed. Aid will usually be available for a guilty plea if, because of complexity or other aggravating circumstance, the commission determines that the matter should not be dealt with by a duty lawyer service. Aid may be available from some commissions in other circumstances, for example, minor traffic matters where large fines or issues of civil liability might attach. Reference should be made to individual commissions.
The merits test Matters that fall within the guidelines for grants of legal assistance are also likely to be subject to a merits test. The test to be applied in commonwealth matters has three elements: •the chances of the proposed legal proceedings being more likely than not to succeed; and •the ‘ordinarily prudent self-funding litigant’ would risk his or her own funds in undertaking the proceedings proposed; and •the costs involved in providing legal assistance are warranted by the likely benefit to the applicant, or to the community. Every commission has its own test that it applies to matters arising under state law. These tests are similar in principle to the commonwealth test. Note, however, that in limited circumstances certain types of applicants or certain types of matters may not be required to pass a merits test.
The means test Every commission applies a means test. In limited circumstances and depending on the jurisdiction, certain applicants and types of matters will not be subject to a means test. The means test will assess both the income and assets of the applicant. The income and assets of any person financially associated with the applicant will also be assessed (for example: a spouse, parent or trust providing financial support to the applicant). In assessing income, the commissions may allow for certain deductions, such as deductions for rent, dependants and child-care costs. Similarly, some assets may be fully or partially exempted from the commission’s assets assessment, such as the full or partial value of the applicant’s house, car, or tools of trade.
Contributions Even where a grant of legal aid is available, the client may have to pay a contribution towards the costs of legal services. This may be a small amount or up to the total cost of the matter if the applicant has the capacity to pay it by reason, for example, of recovery of money.
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Level of means test Due to the complexity of the means test and variations amongst jurisdictions, for example, in the cost of living, it is not possible to identify a generally applicable cut-off point for grants of legal aid for representation.
Legal aid – implications for pro bono There are a number of implications for pro bono arising from the above. In particular: •Application of the legal aid means test may result in applications for aid being rejected even though the unsuccessful applicant may not have sufficient funds to pay a lawyer. The majority of people who are eligible for legal aid are people in receipt of social security pensions or benefits. There are many other people who are financially ineligible for legal aid who are in need of pro bono assistance. •The biggest gap in legal aid coverage is in civil law where it is difficult if not impossible to get a grant of aid for many kinds of cases. •Legally aided people may be required to make a financial contribution and, if monetary sums are recovered, may be required to reimburse commissions for some or all monies paid out to their lawyers under a grant of aid. This will depend on the circumstances of the situation. •Some jurisdictions have costs indemnity provisions[130] with regard to legally aided persons and a practitioner prepared to undertake pro bono work should ensure that she or he is familiar with any such provision in the relevant jurisdiction.
Further information Northern Territory Legal Aid Commission Office: 6th Floor, National Mutual Centre, Cavenagh Street, Darwin NT 0800 Other offices: Alice Springs and Katherine Main switchboard: (08)89993000 Legal information only: 1800019343 Website: www.ntlac.nt.gov.au Legal Aid Commission of the Australian Capital Territory Office: 4 Mort St, Canberra ACT 2600 Main switchboard: (02)62433411 Information and advice: 1300654314 Website: www.legalaid.canberra.net.au Legal Services Commission of South Australia. Office: 82-98 Wakefield Street, Adelaide SA 5000 Other offices: Elizabeth, Holden Hill, Noarlunga, Port Adelaide, Whyalla Main switchboard: (08)84633555 Legal advice and information: 1300366424 Website: www.lsc.sa.gov.au Legal Aid Queensland Office: 44 Herschel Street, Brisbane QLD 4000 Other offices: Cairns, Townsville, Mount Isa, Mackay, Bundaberg, Rockhampton, Maroochydore, Caboolture, Toowoomba, Inala, Ipswich, Woodridge, Southport Main switchboard, information and assistance: 1300651188 Website: www.legalaid.qld.gov.au
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Legal Aid Commission of New South Wales Office: 323 Castlereagh Street, Sydney NSW 2000 Other offices: Bankstown, Blacktown, Burwood, Campbelltown, Coffs Harbour, Dubbo, Fairfield, Gosford, Lismore, Liverpool, Manly, Newcastle, Nowra, Orange, Parramatta, Penrith, Sutherland, Tamworth, Veterans Advocacy: Wagga Wagga, Wollongong Main switchboard: (02)92195000 Legal advice and information: 1300888529 Website: www.legalaid.nsw.gov.au Legal Aid Commission of Tasmania Office: 123 Collins Street, Hobart TAS 7000 Other offices: Launceston, Burnie and Devonport Main switchboard: (03)62338383. Legal advice and information: 1300366611 Email: [email protected] Website: www.legalaid.tas.gov.au Legal Aid Commission of Western Australia Office: 55 St Georges Terrace, Perth WA 6000 Other offices: Fremantle, Midland, Bunbury, Broome, Kalgoorlie, South Hedland, Christmas Island Main switchboard: (08)92616222 Information and advice: 1300650579 Website: www.legalaid.wa.gov.au
Victoria Legal Aid Office: 350 Queen Street, Melbourne VIC 3000 Other offices: Bendigo, Morwell, Bairnsdale, Geelong, Broadmeadows, Dandenong, Frankston, Preston, Ringwood, Sunshine Main switchboard: (03)92690234 Legal information and advice: (03)92690120 (or 1800677402 for information only) Email: for legal information: [email protected] Website: www.legalaid.vic.gov.au
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4Community legal centres and Indigenous legal organisations
Community legal centres Community legal centres (CLCs) are independent, non-profit organisations that provide free referral, advice and assistance to approximately 400,000 people each year. There are around 200 centres in Australia. They range from centres with no paid staff to offices of ten or more employees, with most having three to six staff including at least one employed solicitor. Many CLCs involve volunteer lawyers and law students in their service provision. There can be quite a high turnover of staff in CLCs, especially in rural, remote and regional CLCs. Most CLCs are either generalist centres that provide services to their local areas with defined geographical boundaries, or specialist centres that provide assistance to a particular client group or in a particular area of law. There are, for example, centres which specialise in immigration law, disability discrimination and consumer credit and those that offer services targeted to the particular legal needs of women, young people or tenants. Note that many generalist centres may in addition be funded to operate a specialist service, for example, advising parents liable to pay child support, or providing a local tenancy advice service. Over 50 per cent of people who seek help from CLCs receive some form of government assistance or income. Approximately 25 per cent live in government-funded housing. Between a third to a half of clients are born in countries where English is not the dominant language. About 40 per cent of clients have one to three dependants. CLCs are normally independently incorporated community organisations with volunteer community management committees or boards who draw their members from community agencies, volunteer lawyers and law students and community members. CLCs have a national association, the National Association of Community Legal Centres (NACLC), and also state or territory associations, some of which operate a secretariat which provides support to CLCs in the state. There is a national conference of CLCs every year, normally in September. This can be a good opportunity for pro bono practices to meet and network with CLCs. There are also various networks of CLCs organised around particular issues or themes such as: youth; welfare rights, human rights, tenancy, Indigenous women, disability rights, and regional, rural and remote issues. These networks engage in policy work and joint initiatives on areas of law and can be another point of contact for law firms. See www.naclc.org.au for more information, a list of all CLCs in Australia and a list of national CLC networks. CLCs provide legal advice, referral and casework services to clients and undertake community legal education, law reform and policy work and community development. CLC activities focus on areas of law relevant to disadvantaged clients where no other services are available. The areas of law covered by generalist CLCs include employment, social security, consumer credit, housing, discrimination, protection from violence, crimes compensation and those aspects of family law and criminal law not adequately covered by legal aid commissions.
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Legal advice, referral and casework Almost every CLC offers some kind of legal advice service, whether face to face or by telephone. Local generalist CLCs tend to operate legal advice clinics at their premises and/or at outreach locations. Advice clinics are frequently operated out of business hours for the convenience of clients and often make use of volunteer lawyers to provide advice. Statewide specialist services also offer advice clinics and outreach services but also offer telephone and sometime email services due to the greater geographical dispersion of their clients. Although anyone can get free advice from a CLC, CLCs target their services to those financially in need. For many clients, CLCs are the first point of contact about a legal issue. CLCs are skilled in identifying a client’s needs and either referring them to the appropriate agencies or providing advice to that person. Most funded CLCs are also able to offer a limited casework service. As CLCs have few staff solicitors and a number of competing priorities, only a small proportion of clients seeking advice are likely to be offered casework assistance. Matters are accepted according to guidelines developed by each centre having regard to factors such as the other services that are available in their area, the perceived needs of the local community, the requirements of any targeted funding they may receive, the hardship that may be suffered by the client if assistance is not provided, the likelihood that acting in a particular matter may benefit a group of disadvantaged people beyond the particular client and whether centre staff have the skills required to undertake particular types of matters. CLCs will generally not undertake casework where other services are available, including private solicitors who are willing to undertake no win – no fee litigation. Accordingly CLCs rarely provide assistance with personal injuries or criminal law matters nor family law matters where legal aid is available.
Community legal education CLCs have been active in community legal education (CLE). CLE programs usually aim to provide information to avoid legal problems or to assist the resolution of legal problems, or provide information to assist people recognise their legal rights. The means of education vary widely: from visits to schools and community groups, to work with local media. Some CLCs also produce education material in plain English and/or translated into community languages. Some, especially those that specialise in a particular area of law, prepare specialist guides for community workers and practitioners.
Law reform and policy work CLCs play an important role in identifying legal issues that impinge on their client groups. Through the experience of their advice and casework services CLCs acquire knowledge about the way in which the law or the absence of law affects the lives of their disadvantaged clients. CLCs are in a position to use this information to provide advice to government on policy development and work towards improvements in laws and the administration of the legal system. CLCs can do this through activities such as participating in advisory councils, writing law reform submissions and lobbying government.
Indigenous legal organisations There are more than sixty Indigenous legal organisations in Australia, including twenty-five Aboriginal and Torres Strait Islander legal services (ATSILS), fourteen family violence
Australian pro bono manual 189 4 Information and resources prevention units (FVPUs), eight specialist Indigenous women’s legal services and eighteen native title representative bodies (including land councils and regional authorities). Most Indigenous legal organisations are funded by Aboriginal and Torres Strait Islander Services (ATSIS) (formerly ATSIC) to provide Indigenous Australians with free legal advice and representation in particular areas of law.
Aboriginal and Torres Strait Islander legal services (ATSILS) ATSILS are normally incorporated Aboriginal associations with Indigenous management committees. They provide services in defined geographical areas. Most are located in remote or regional Australia. They range in size from three staff to more than 100, including solicitors and field officers. Most of the work done by ATSILS is in the area of criminal law (91 per cent). All ATSILS provide duty lawyers who provide advice and representation to Indigenous people charged with criminal offences. Most visit regional or remote communities on the day of, or on the days preceding, court. Lawyers have limited opportunities to provide advice and assistance in relation to matters not before the court. Some ATSILS provide family and civil law services (in 2002-03, 2 per cent and 4 per cent of ATSILS services, respectively). Some also provide specialised services such as mental health legal services, financial counselling services, prisoners’ legal services or suicide prevention programs. ATSILS with civil and family practices provide legal advice, referral and casework services. Most civil and family law practices are located in major metropolitan centres; some have outreach programs. Most ATSILS undertake a certain amount of policy advocacy work in relation to the issues faced by their clients either directly, or through the national association. The National Association of Aboriginal and Torres Strait Islander Legal Services (NAAILS) operates a secretariat which provides some legal and policy support to ATSILS. New South Wales and Queensland also have state associations (being the Coalition of Aboriginal and Torres Strait Islander Legal Services and Queensland Association of Aboriginal and Torres Strait Islander Legal Services respectively.) Assistance provided by ATSILS is not means tested and every Aboriginal and Torres Strait Islander person is eligible for assistance. Nevertheless, the great majority of ATSILS clients are in receipt of some form of government assistance. Most ATSILS provide legal advice on a ‘drop- in’ basis and many have twenty-four-hour telephone advice services for criminal matters.
Family violence prevention units Thirteen family violence prevention units are currently funded by ATSIS and more are due to open in 2004. Most of the units are small, comprising a single solicitor and one to three community violence prevention workers. The units provide advice and representation in domestic violence matters as well as court support services. In addition, most provide advice and limited casework assistance in the areas of family law and victims compensation. Family violence prevention units focus on prevention and upon providing assistance to families affected by violence. They are also active in community legal education and often provide non-legal programs such as community education workshops, family support and art programs.
Indigenous women’s legal services There are eight Indigenous women’s legal services operating in Australia. They are funded under the Commonwealth Community Legal Centres program.
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Most Indigenous women’s legal services are independent incorporated associations although some operate in conjunction with another CLC, typically a women’s legal centre. Their services are similar to those of CLCs but target the needs of Indigenous women, particularly in the areas of family law, child welfare and protection and in relation to issues of family violence.
Native title representative bodies and land councils There are sixteen organisations which have been determined to operate as representative bodies under the Native Title Act 1993 (Cth) and two land councils established under the Aboriginal Land Rights (Northern Territory) Act (NT). Taken together, their areas cover the majority of the land mass of Australia. Native title representative bodies (NTRBs) and land councils are large organisations with a range of statutory responsibilities. Their legal departments provide legal services to Aboriginal and Torres Strait Islander people and communities in the areas of land and property law, including land rights, native title, environmental law, commercial law, mining law, heritage protection, the management of national parks and pastoral land, as well as a wide range of other related matters. NTRBs and land councils are active in community legal education and also in law reform and policy work. NTRBs are generally independent incorporated Aboriginal associations, managed by boards with members elected by the relevant Indigenous communities. Land councils are statutory authorities managed by councils of elected Indigenous representatives. Most NTRBs and land councils are located in regional and remote parts of Australia and almost all have branch offices in a large number of Aboriginal communities within their geographic area. NTRBs and land councils vary in size from about ten to over 120 staff. They employ solicitors as well as anthropologists, project officers, natural resource management officers and field staff.
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5Disbursement assistance This section deals with two matters relevant to disbursements: •exemption and waiver of court and tribunal fees; and •disbursement assistance schemes.
Court and tribunal fees – exemption and waiver for pro bono matters Firms undertaking litigious pro bono matters should consider whether exemptions or waivers are available in respect of court or tribunal fees, such as filing fees and, in some cases, setting down and daily hearing fees.[131] The Acts, regulations or rules for some courts and tribunals expressly provide for fee exemption, waiver, remittal or postponement of fees. Even if there is no express provision, a waiver may nonetheless be available. For example, the Supreme Court of South Australia has no express fee waiver provisions in its Act or Rules, but people may apply to the court for waiver, using prescribed forms. Persons liable to pay fees in commonwealth courts (the High Court, the Federal Court of Australia, the Federal Magistrate’s Court and the Family Court) and the Administrative Appeals Tribunal are eligible for an exemption from those fees if they: •have been granted legal aid; •are holders of particular benefit or concession cards; •are an inmate of a prison or are lawfully detained; or •are under eighteen years of age or are in receipt of a youth allowance, Austudy or Abstudy payment. If none of the above applies, a person may nevertheless apply to the registrar for waiver of fees. Fees can be waived if the registrar is of the opinion that payment of the fee would cause financial hardship, having regard to the applicant’s income, day-to-day living expenses and liabilities and assets.[132] As mentioned above, some state and territory courts and tribunals, upon application (generally accompanied by a supporting affidavit or statement of financial affairs), provide for waiver of the payment of fees, either pursuant to a general discretion or specifically in the case of financial hardship.[133] Each court and tribunal has its own criteria for assessing applications for waiver and they generally have their own application forms. For example, in the Supreme Court of South Australia, an application for a fee waiver must set out, among other things, whether assistance might be available from friends or relatives and provide details of any requests that have been made in that regard. In New South Wales, in addition to general waiver provisions, pro bono-specific provisions have been inserted in regulations for the Supreme Court, Land and Environment Court, District Court and Local Court.[134] Pursuant to these provisions, the payment of fees by ‘a pro bono party’ is postponed until judgment is given, and fees are not payable at all if: •judgment is against the pro bono party; or •judgment is in their favour but damages are not awarded (or only nominal damages are awarded) in their favour and costs are not awarded in their favour.[135] A ‘pro bono party’ is defined as a person who is being represented under the pro bono scheme of the Law Society of New South Wales or the New South Wales Bar Association. The solicitor or
Australian pro bono manual 192 4 Information and resources barrister acting for the party must certify in writing to the relevant court that the party is being so represented and undertake to pay the fee in the event that the concession does not apply. Information and forms for fee exemption and/or waiver can be obtained from court and tribunal registries. The following resources may also be helpful: •PILCH (Vic.) has produced a fee exemption and waiver guide that covers federal courts and the AAT and Victorian courts and the Victorian Civil and Administrative Tribunal. Relevant application forms are included. Copies can be obtained by contacting PILCH on (03)92256680 or by email: [email protected] • QPILCH has produced a fee exemption and waiver guide that covers federal courts and the AAT and all Queensland courts and key tribunals. The guide includes copies of relevant forms. Copies of the guide can be obtained by contacting QPILCH on (07)30129773 or by email: [email protected] •PILCH (NSW) is currently developing a guide for New South Wales courts and key tribunals: contact (02)92997833 or email: [email protected]
Disbursement assistance schemes There is limited disbursement assistance available for pro bono matters. Relevant state and territory schemes are outlined below. A number of schemes are limited to providing assistance in relation to cases handled on a ‘no win – no fee’ basis and which are likely to result in payment of compensation or damages. Firms should of course check if the client may be eligible for legal aid (see 4.3 Legal aid). Grants of legal aid generally cover disbursements as well as costs. In some jurisdictions a grant of aid just for disbursements (provided the client is eligible for aid) might be possible.
Australian Capital Territory There is no scheme in the Australian Capital Territory offering disbursement assistance.
New South Wales
Pro Bono Disbursement Trust Fund The Pro Bono Disbursement Trust Fund provides disbursement assistance by way of reimbursement in approved matters. The fund will reimburse most disbursements, including court filing fees (provided the applicant was unsuccessful in obtaining a waiver or postponement), medical reports, searches, registration fees and translator fees. A receipt must be provided and the disbursement must be considered necessary before it will be reimbursed under the fund. Court filing fees will only be reimbursed if it can be shown that an application was made to have the fees waived. The fund will not pay for transcripts. The total repayment of disbursements will not exceed $5500 for Supreme Court actions, $3850 for District Court actions, and $1650 for Local Court actions. The maximum reimbursement for an expert report is $550, although an amount greater than this limit may be repaid if the trustees are satisfied that the greater expense was necessary. If the client is successful in their action and recovers costs, the monies are to be repaid to the fund. An application to the fund must include the client’s signature, unless exceptional circumstances prevent the signature from being obtained. The fund only provides assistance for matters conducted on a free or substantially reduced cost basis and which have been referred through either the Law Society’s Pro Bono Scheme, the Bar Association’s Legal Assistance Scheme, or through the Public Interest Advocacy Centre (which
Australian pro bono manual 193 4 Information and resources includes the Public Interest Law Clearing House). If practitioners want to do a matter on a pro bono basis and have access to the Disbursement Trust Fund they should contact the Pro Bono Solicitor at the Law Society to obtain an application form to have the matter formally referred to them under the scheme. Application forms for the fund can be obtained from the Law Society of New South Wales. Enquiries should be directed to: The Pro Bono Solicitor, Law Society of New South Wales, (02)99260364.
Northern Territory
Northern Territory Contingency Legal Aid Fund This fund is available to provide disbursement assistance to eligible persons to enable them to bring or defend civil proceedings in which an award of damages or compensation is likely. The fund is administered by the Northern Territory Legal Aid Commission, which may be requested by the applicant to fund initial inquiries in the matter such as obtaining medical reports or counsel’s opinion. The fund will reimburse the assisted person’s solicitor for approved disbursement-related expenses, as they arise. Reimbursable expenses include stamp duty, service fees, expert witness reports, expert witness court attendance fees and travel expenses. The fund does not pay solicitors’ professional fees and would not usually cover counsels’ fees or reimburse general office expenses such as photocopying, telephone or facsimile charges unless specific authorisation had previously been obtained. Applications are means tested. Assistance will only be granted to applicants unable to reasonably meet the cost of expected disbursements. The applicant may be required to make a contribution towards the costs of the disbursements and if it appears that the applicant may be entitled to legal aid the application may be rejected or postponed until the applicant has lodged an application for legal aid. Applications must be made on the prescribed form and be accompanied by a letter from the applicant’s solicitor[136] detailing the merits and prospects of success of the proposed proceedings, the expected quantum and the nature and anticipated cost of likely disbursements. There is an application fee of $200 (plus GST) although the fund manager has the discretion to waive part or all of this fee where payment would involve undue hardship to the applicant. Where financial assistance is granted, a loan contract will be offered to the assisted person that will specify the terms and conditions of assistance, the type of expenses that will be covered as well as the maximum amount of the fund’s liability for those expenses. The applicant’s solicitor and barrister are required to undertake not to recover any professional fees from the applicant until the matter is concluded. Whether or not the litigation is successful, the applicant has an obligation to repay to the fund all monies advanced by the fund, and will also be liable to pay his or her solicitor’s and counsel’s fees (if any). If the litigation is successful, the applicant must, in addition to reimbursing the fund, pay to the fund a pre-determined percentage of the monies actually advanced by the fund during the course of the litigation. Further information and application forms are available from the fund manager at the Northern Territory Legal Aid Commission on (08)89993000.
Queensland
Civil Law Legal Aid Scheme The Civil Law Legal Aid Scheme (CLLAS) was created in 1993 in response to a change to legal aid policy in 1992, whereby Legal Aid Queensland (LAQ) ceased funding civil law matters
Australian pro bono manual 194 4 Information and resources where there is a power of a court or tribunal to award costs. Funds for cases approved under the CLLAS are provided by the Public Trustee of Queensland and administered by LAQ. CLLAS provides assistance with disbursements associated with civil claims approved under the scheme’s guidelines and in some circumstances contributes towards the solicitor’s professional costs. All civil litigation cases are potentially within the ambit of the scheme, including business and commercial disputes, but priority may be given to funding personal injury cases. In recent years CLLAS has expanded its guidelines to include aid for public interest and test cases. CLLAS maintains a list of legal practitioners who have agreed to accept the scheme’s guidelines [137] and who have relevant experience. Aid under the scheme is only granted to applicants if they are represented by a practitioner on the scheme’s list. Practitioners can apply to join the scheme’s list.[138] Practitioners from the scheme’s list who agree to take on a matter in accordance with the scheme’s guidelines assist the applicant to complete a standard LAQ application form. Requests for aid under the CLLAS are determined by an advisory committee which considers the legal merits of the case, the nature and extent of any benefit the applicant will gain if aid is granted, and the detriment the applicant will suffer if aid is refused. The scheme will consider aid for public interest or test case matters. Applications are also subject to the LAQ means test. It is a condition of the grant of aid that both the solicitor and counsel speculate their professional fees and undertake not to recover their fees until the matter is successfully concluded. For matters where aid is approved to progress to trial, the solicitor shall, upon certification that work to the value of the claim has been carried out, be entitled to claim professional fees to the amount of $2000 in cases in the District and Supreme Court and $500 in the Magistrates Court. These sums will be subsequently deducted from any costs recoverable by the solicitor and be refunded to the scheme. More information about the scheme is available from the Legal Aid Queensland website at www.legalaid.qld.gov.au/services/cllas/cllas.htm#solicitors.
South Australia
The Disbursements Only Fund The Disbursements Only Fund (DOF) is an adjunct to the Legal Assistance Fund (which covers both costs and disbursements, see below). The DOF provides disbursement assistance for civil and commercial matters (excluding family law matters and de facto property claims) being handled on a contingency fee basis. The DOF operates as follows: the trustee undertakes to pay the disbursements of the solicitor, the solicitor agrees to complete the work involved on the basis of a contingency agreement (under which the client is charged fees only in the event the action is successful) and the assisted person agrees, in the event of success, to repay the total disbursements funded and a fund fee of 25–100 per cent of the value of the total disbursements funded. If the assisted person’s action is successful, the solicitor will be entitled to charge a solicitor–client fee up to double the fees the solicitor would be entitled to according to the scale contained in the Fourth Schedule to the Rules of the Supreme Court. If the litigation is unsuccessful, the assisted person remains liable for the party/party costs of the other party. Applicants must satisfy a means test, namely, whether or not the assets and income available to them are insufficient to meet the expected costs of the litigation. The application may be rejected if it is considered that the applicant may be eligible for legal aid. Except in unusual circumstances where the litigation is considered to be in the public interest, the matter must be one where it is
Australian pro bono manual 195 4 Information and resources possible for damages or property to be recovered sufficient to cover the fund fee. There must also be a good chance of recovery. Assistance will not be provided to enable a person to defend a claim unless there is a counter claim exceeding the value of the plaintiff’s claim. The fund will pay for court filing fees, medical and other expert reports, interpreters’ fees, conduct money, witness expenses, transcript fees, trial fees, solicitors’ travelling and accommodation expenses and photocopying applicable to the other party, for example, on discovery. The fund will not pay solicitors’ costs or barristers’ fees or reimburse general office expenses. The fund manager’s approval must be obtained before a disbursement of $1000 or greater is incurred. The applicant will generally have to apply for an extension of assistance as their matter moves from one stage of litigation to the next. (There are four such stages under the fund: the investigation of claim to drafting of summons with statement of claim; filing of summons to pretrial conference; the trial; and post trial procedures.) The application form is available from the Law Society of South Australia, and there is an application fee of $100, or $250 if urgent. As part of the application process, the applicant’s lawyer must provide details of how the claim will be proved, how any defence will be answered, the amount of damages sought and how damages will be proved, and an estimate of legal disbursements. Further enquires should be directed to the fund manager, on (08)82290222.
Litigation Assistance Fund The Litigation Assistance Fund differs from the Disbursements Only Fund (DOF) in that it covers both costs and disbursements. The fund aims to assist people who, although unable to obtain legal aid, cannot meet the costs of litigation. Assistance is available for civil and commercial matters (excluding family law matters and de facto property claims). The fund will pay the reasonable legal costs and disbursements of an approved matter. If successful, the assisted person must reimburse any costs paid by the fund and pay a fund fee of 15 per cent of the damages or value of property recovered. The application form is available from the Law Society of South Australia, and there is an application fee of $100, or $250 if urgent. As part of the application process, the applicant’s lawyer must provide details of how the claim will be proved, how any defence will be answered, the amount of damages sought and how it will be proved and an estimate of legal costs. A means test and merits test apply. Except in unusual circumstances where the litigation is considered to be in the public interest, the matter must be one where it is possible for damages or property to be recovered sufficient to cover the fund fee. There must also be a good chance of recovery. Further enquires should be directed to the fund manager on (08)82290222.
Tasmania There is currently no scheme in Tasmania offering disbursement assistance.
Victoria
Law Aid The Law Aid scheme provides disbursement funding for solicitors in Victoria who represent clients in civil litigation cases (excluding family law) that are conducted on a no win – no fee basis and in which an award of damages or compensation is likely, for example, personal injury, professional negligence and wills and estates claims. In addition, Law Aid has recently expanded its eligibility to include public interest matters that will not result in the payment of compensation
Australian pro bono manual 196 4 Information and resources but are considered to have real merit. For example, Law Aid recently made grants of aid in respect of court fees in a small number of refugee cases. Applications are assessed having regard to the applicant’s financial means and the merits of the matter. Application forms can be obtained from Law Aid and must be accompanied by a non- refundable application fee of $100. Disbursements covered by Law Aid may include experts’ fees, travelling and accommodation expenses, witness fees and court fees. Monies paid by Law Aid must be refunded if the case is successful but not otherwise. In addition, if successful, the client must also pay 5.5 per cent of the award or settlement to Law Aid. Further enquiries should be directed to The Manager, Law Aid, on (03)92256703.
Western Australia There is no disbursement assistance available for pro bono matters in Western Australia as at August 2003. The Law Society of Western Australia Inc. is in the course of revitalising the Litigation Assistance Fund which will provide disbursement assistance in civil matters in which an award of damages or compensation is likely. Future inquiries should be directed to the Law Society on (08)93227877.
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6 Interpreter services This section discusses the availability of interpreters and provides some tips for working with interpreters effectively.
Accreditation of translators and interpreters The National Accreditation Authority for Translators and Interpreters (NAATI) is an Australian association which attempts to establish professional standards for interpreters and translators. NAATI accreditation can be obtained by passing a NAATI test or by completing studies at an approved Australian institution. There are four levels of accreditation with NAATI. The lowest level, Paraprofessional Interpreter, is for general conversations and not sufficient for legal work. The level for legal interviews is Interpreter and Translator (formerly known as Level 3). Conference Interpreters and Advanced Translators are at an advanced professional level for more complex or technical material. The highest level is Conference Interpreter (Senior) and Advanced Translator (Senior).
National and state-based services There is a national interpreter and translating service available throughout Australia. The national scheme is called TIS, the Telephone Interpreter Service. It provides limited free interpreters to community agencies but individuals and private businesses have to pay to use it. The current charge for using TIS is $21.70 per fifteen minutes. The phone number is 131450. TIS has panels of interpreters in every language available twenty-four hours. These interpreters are then linked by telephone to the client. TIS can also provide on-site interpreters for a fee. There are state-government-based agencies that provide interpreting services. They usually charge private businesses for their services. In most states and territories community legal centres have arrangements for interpreters to be provided for free for certain legal issues.
Courts’ and tribunals’ provision of interpreters The law has generally recognised that criminal defendants have the right to an interpreter, and courts will organise and pay for interpreters, where needed, in criminal matters. The provision of interpreters by courts and tribunals in civil matters is less certain. Some tribunals, for example the Administrative Appeals Tribunal and the Refugee Review Tribunal, provide interpreters where necessary. The Federal Court provides interpreters for unrepresented litigants, but will not provide one where the litigant is represented. The Federal Court will, however, provide free interpreters for litigants who are represented pursuant to a referral for pro bono assistance under the Order 80 referral scheme. In some courts clients will have to organise and pay for interpreters themselves. If an interpreter is necessary in a particular case, pro bono lawyers should raise this in advance with the particular court or tribunal to see whether they will provide one.
Using interpreters Using interpreters effectively is a skill. Lawyers, paralegals and administrative workers should be trained in using interpreters. Some key points to remember are: • Use professional, trained interpreters, not family members or friends.
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• If the case is of a sensitive nature such as an interview relating to sexual assault or incest, ensure that an interpreter of appropriate gender, cultural or religious background is provided. •Brief the interpreter before the interview about the nature of the case and the purpose of the interview. Decide in advance whether consecutive or simultaneous interpreting will be used. •Arrange the seating to enable direct communication between you and the client. Frequently a triangular arrangement will be effective. •At the beginning of the interview you should introduce yourself and the interpreter and explain the role of each and how the interview will be run. •Speak in the first person to the client and use ‘you’ when referring to the client. For example, ‘Please tell me what you did next …’. •Maintain eye contact with the client if this is culturally appropriate. • Use short sentences and allow time for the interpreter to interpret. •Avoid any legalese, jargon or slang. •Do not speak louder when using interpreters; speak slowly and naturally. • Ask the client to repeat back to you (through the interpreter) their understanding of what has been said to ensure that they understand. •Stop the interview if the interview is not working and go over how to use interpreters with the client or interpreter. Interpreters have a professional ethical obligation to maintain client confidentiality. Where a client comes from a small community they or their associates may know the interpreter and thus the duty of confidentiality is of key importance.
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7Advising and acting for Indigenous clients By John Boersig BA, LLB[139]
Introduction A lawyer aiming to give an Indigenous client good advice needs to ensure the participation of the client in the interview process. The interview should be a key mechanism for the client to make an informed choice as to the course of action s/he wishes to take. The lawyer should facilitate this choice by effectively taking into account the cultural background of the client in the interview process.
Respect for Indigenous culture and history Indigenous people will be disadvantaged by lawyers who do not take into account cultural issues in the interview process. A non-Indigenous lawyer confronts the cultural gap between Indigenous and non-Indigenous people in the exchange of information in an interview. Finding ways to take into account an Indigenous perspective will ease the tension in this process. It is of fundamental importance that the lawyer respects Indigenous culture and history, and appreciates that the client will have a personal history inextricably tied to the colonisation of Australia by non-Indigenous people. Indigenous people have a history of conflict with the legal system, in particular police and welfare authorities. The non-Indigenous lawyer has played a key role in the administration of this system. The legacy of this conflict is distrust of the legal system and its players. It can be expected that the Indigenous client will bring this perspective into the interview. In a sense the interview is the mode through which the client tells the story of her/his experience in the legal system. Indigenous field officers can play a vital role in ensuring that the lawyer is informed of local history and culture. All Aboriginal and Torres Strait Islander legal services employ Indigenous field officers who usually come from the local community and have some training as paralegals. Their role is to act as a liaison between lawyer and client, and client and police/government authority. They may also take a significant role in case preparation, court attendance and jail visits.
Interview environment Creating an environment which is comfortable for both client and lawyer will facilitate the interview process. An appropriate environment is a combination of the creative use of physical surroundings and personal rapport. The lawyer should present her/himself as approachable and open, and make it clear to the client in the initial contact that s/he is an advocate for the client in the legal system. The office should be set out in a way that places the client at ease and does not alienate the client. It should be made clear that the lawyer is there as the client’s ally and advocate. In offices of Aboriginal and Torres Strait Islander legal services Indigenous posters, artefacts and written material signal this affinity. An interview room layout where the lawyer sits around a table with the client rather than opposite a desk is desirable. Alternatively, a desk could be situated against a wall so that the lawyer is side-on to the client, and at the same height. This kind of arrangement also ensures that any field officer can participate and has a recognised space in the interview situation.
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Interviewing away from the office There are times when the lawyer, perhaps in company with a field officer or support worker, must conduct interviews in the client’s home, in the bush, in a community centre, or at police stations or jails. Obtaining instructions in these situations can be very difficult. One must primarily rely on establishing personal rapport. Where a lawyer must interview a client outside an office, particular attention should be given to creating a ‘private’ space. No client wishes to have her/his matter discussed in public. It is often desirable in these circumstances to conduct the interview in the company of a field officer to assist in establishing a comfortable environment for the client; again, what is essential is a clear flow of information between the lawyer and client. Where police or corrective services encroach on the interview (whether by being noisy or visible), it is appropriate for the lawyer to take steps to minimise the interference. Request an interview room or ask the officer to move away. An immediate complaint to a senior officer may also be effective.
Planning a holistic interview The lawyer has a responsibility to conduct an interview in a holistic way, accounting for the socio-historic context of the client’s story, and to obtain the information needed to properly undertake the relevant legal work. The lawyer must bear in mind an overall plan for the interview. On the one hand a lawyer needs certain information from the client so that proper advice can be given; on the other hand, it is rare that a client can articulate the information conveyed in an interview in a way which allows ready access to the lawyer. The skill of the lawyer rests in obtaining this information without alienating the Indigenous client. One must be prepared for the interview to take time so that the story can be told unhurriedly and in broad terms. There may be periods of silence. Allow the story to be told fully, without interjection, in a way which suits the client. Sometimes a dialogue with open-ended questions is helpful as distinguished from ‘yes/no’ questioning. Tailor the dialogue to suit the individual needs of the client, ensuring that questioning flows out of the client’s telling of the story. The client will come into the interview with an agenda, perhaps with a number of legal and social concerns, which the client seeks to express and have seriously addressed. The client should feel that s/he is respected. The lawyer’s duty to the client includes dispelling the ‘mystique’ of the law by clearly explaining the legal process. Confirm the advocate’s role and responsibilities, and address court practice and procedures, detailing the role of the players in the legal system. It will be necessary to explain judicial language, putting the practice of law into an accessible form, so that the client can participate in an informed way. Too often an Indigenous client will come away from involvement in a legal matter wondering what has actually happened. The goal must be a situation where the client feels that the lawyer has understood, and is ‘on-side’. The client must be able to trust that the lawyer will act in her/his best interests. Once the advice is given, the point has arrived for the client to exercise the right to choose, that is, to instruct the lawyer to take a certain course of action. This is nothing less than an act of self- determination by an Indigenous client within the legal system.
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8Clients with disabilities This section provides an overview of disabilities and provides some practical tips for working effectively with clients. Some clients have disabilities that may affect their cognitive capacity and present particular issues for working with a legal practitioner. This section also outlines some general principles and points to keep in mind when assisting people whose disabilities do not affect their cognitive capacity.
What is a disability? There are many different ways of defining disabilities. Generally definitions relate to diagnostic criteria that identify the specific disability and, in many cases, the resulting functional limitation or impairment. However, many other definitions exist and these are usually linked to the provision of services and supports to individuals. For example, a typical recipient of a disability support pension will need to demonstrate that they have 20 per cent or more functional limitation in their daily activities and cannot work any more than fifteen hours per week. The Disability Discrimination Act 1992 (Cth) contains an extremely broad definition of disability, encompassing any loss or malfunction of any part of the body or mind.[140] The Australian Bureau of Statistics reports that approximately 19 per cent of the Australian population has a disability of some kind.[141] In general, however, a disability can be described as a condition, disease or illness resulting in some kind of limitation or impairment of a person’s functional ability when compared to a person without a disability.
Types of disabilities There is a great diversity of disabilities from those which result in a person being completely dependent on others for most or all of their daily needs to those which are less evident and which have very little or no impact upon a person’s capacity to live independently. Whilst it is not necessary for legal practitioners to have an exhaustive knowledge of disabilities in order to provide legal assistance to a person with a disability, it may prove helpful to develop a basic understanding of some of the more common disabilities. It will also be helpful to know which disabilities may give rise to particular needs for clients when seeking legal assistance. While it is not always possible to neatly compartmentalise disabilities, most disabilities will fall within one or more of the following broad categories. It should be remembered though, that some people have multiple disabilities across these categories, and some new sub-categories are emerging, such as behavioural disabilities.
Physical disability This broad category includes disabilities affecting the body, or a part or function of the body and that result in limited physical capacity and/or mobility from the loss of a limb, to those caused by disease or illness such as HIV/AIDS. Although difficult to estimate and survey, physical disabilities affect approximately 17 per cent of the Australian population.[142] Many of the issues affecting people with physical disabilities relate to: access to the built environment, or medical treatment and care, or illnesses and chronic disease, or compensation, physical rehabilitation, injury and trauma. Generally speaking, this category of disability would not affect legal competence or cognitive capacity; however, notable exceptions include acquired brain injury and the late stages of muscular dystrophy.
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Psychiatric disability Commonly termed ‘mental illness’, this category includes conditions such as schizophrenia or depression that affect a person’s thoughts, emotions, perceptions and/or behaviour. Such disabilities affect approximately 18 per cent of the Australian population.[143] Psychiatric disabilities can be episodic, with patients displaying few, if any, positive symptoms at other times. Many of the issues affecting people with psychiatric disabilities will be related to voluntary/involuntary treatment, family and criminal law, financial management and discrimination. Many psychiatric disabilities don’t affect legal competence and cognitive capacity; some do or only do so sporadically.
Intellectual disability This category includes disabilities that affect a person’s competence, cognitive capacity and social and adaptive skills. It includes Down’s syndrome and some kinds of autism and learning disabilities. Intellectual disability affects approximately 2.5 per cent of the Australian population.[144] Many of the issues affecting people with an intellectual disability are related to access to information and education, residential support services, community participation and integration, guardianship and administration, capacity and consent. In most cases intellectual disability will not affect legal competence although by definition cognitive capacity is limited.
Neurological disability This complex category refers to an impairment or limitation due to injury or illness affecting the central nervous system, including the brain, and includes multiple sclerosis, Parkinson’s disease and dementia. There is very little information about the numbers of people affected by neurological disabilities. Many of the issues affecting people with neurological disabilities will relate to advances in medical treatment, ethics and treatments, degenerative disability and genetic predisposition. In some cases there will be no impact upon legal competence and cognitive capacity whilst in others there may be reduced or lost capacity over time.
Sensory disability This category includes many of the more familiar disabilities such as Deafness and blindness and some that are less familiar such as being Deaf and blind. These disabilities affect a large proportion of the population particularly as people begin to age. Many of the issues affecting people with sensory disabilities will relate to access to information, access to education, communication, and technical and other aids/adjustments. There is no impact upon legal competence or cognitive capacity, however, some people who are Deaf and blind may have received less education or social interaction and may experience barriers communicating with others.
Legal competence and cognitive capacity There are some disabilities that may have an impact on how a lawyer deals with a client, obtains instructions and provides advice. Where a client’s disability has a significant impact on their comprehension and thought processes – or cognitive capacity – this may impact upon their ability to provide sound instructions.[145] This includes some people with intellectual disability, acquired brain injury, mental illness, dementia and some neurological disabilities such as certain forms of multiple sclerosis. The following notes may assist.
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Acquired brain injury • can be caused by stroke, accident (for example, in a motor vehicle accident) or excessive drug and alcohol use; • can impair memory, thinking, perception, attention and emotions; the brain injury can result in dis-inhibited behaviour or poor impulse control; • can affect very specific functions of the brain whilst other functions are unaffected; •in some cases people can rehabilitate over time. For further information, contact the Brain Injury Association or other relevant state association.[146]
Dementia •involves a loss of short-term memory and recognition of very familiar people, places and objects; • can progress into confusion and disorientation and a general decline in cognitive ability; • can be caused by other disabilities such as HIV/AIDS; •Alzheimer’s disease is one type of dementia. For further information contact Alzheimer’s Australia.[147]
Intellectual disability •Generally defined as having an IQ score of less than 70–75 and limitations in two or more skill areas. The person must be born with the disability or manifest limited cognitive capacity as determined by IQ tests prior to the age of eighteen. •People with an intellectual disability experience limitations in some of the following skill areas: communication, self care, home living, social skills, community use, self-direction, health and safety, academic functioning, leisure and work. •A psychologist is the best person to assess whether someone has an intellectual disability. •Intellectual disability affects the way a person learns. They may have difficulty understanding abstract concepts or with learning new information or understanding complex instructions. •Other terms that have been used for intellectual disability are: ‘learning disability’, ‘mental retardation’, ‘mental handicap’ and ‘developmental disability’. For further information contact the National Council on Intellectual Disability.[148]
Mental illness •May affect perception, thoughts and/or mood; •Is often episodic: a person can be well for a period of time and then experience an episode of mental illness; people with schizophrenia often display ‘negative’ symptoms which include loss of motivation and a decline in general functioning when active or ‘positive’ symptoms are not present; •Examples of mental illnesses are: schizophrenia, depression, bipolar affective disorder (formerly known as manic depression);
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•A psychiatrist is the best person authorised to diagnose and initiate treatment for someone with a mental illness.. For further information about mental health, contact the Mental Health Council of Australia.[149]
Working with clients with a disability affecting cognitive capacity A diverse range of disabilities may affect cognitive capacity and it should not be assumed that clients with a disability will all have the same needs. For example, a person with schizophrenia who is not actively symptomatic may experience no difficulties with cognitive capacity whilst a person with intellectual disability may appear extremely compliant but not be able to understand what is happening. The following points regarding the ways cognitive capacity may affect your client are worth considering: •The client may take longer to learn things, especially new information. •They may have difficulty understanding abstract concepts. •They may have difficulty reading and writing. •They may have a short attention span and might be easily distracted. •They may find it difficult to understand complex questions and instructions. •The disability may affect how the person talks. •The client may find it difficult to maintain eye contact. •The client might find it difficult to adapt to new situations.
Communication A person with limited cognitive capacity will be able to provide instructions, give evidence and make decisions about the progress of their matter to varying degrees depending on the level of their capacity, whether they are affected by their disability at the time and on how well the practitioner communicates with them.
Client interviews and speaking on the phone A person with a disability that affects cognitive capacity may have a short attention span and may have difficulty staying on the same subject. The person may appear to understand and provide the appropriate responses when in fact they have not understood. They may not have absorbed information discussed at a previous meeting. When speaking to or taking instructions from a client with limited cognitive capacity, the following strategies might assist: •Allow additional time for interviewing your client. •Select a quiet, private area free of distractions and interruptions. •Allow the person to tell their story, saving questions until the end. •Don’t interrupt or finishing the person’s sentences for them. • Use open rather than leading questions. • Use simple words and sentences – one idea at a time. •Avoid abstract concepts and don’t use jargon. •Check whether they understand by asking them to repeat the information in their own words or by asking follow-up questions.
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•Be aware that the client may need more breaks than other clients. •Be aware that the client may not wish to identify as having an intellectual disability or may wish to hide the effect of their disability. He or she might give a false appearance that they understand what is being explained to them. •Be observant of the client’s non-verbal behaviour.
Writing letters to the client Find out about the client’s skill level in reading and writing. Where the client has difficulty reading, information contained in any letter can be communicated in person or on the phone (see Communication below). Client agreements can be presented in a format that assists understanding, for example, by: •using at least fourteen or sixteen point type; •using line spacing of at least 1.5; •using a clear and easy-to-read font; •using short sentences and short paragraphs; •using headings; •writing in point form; •using plain English and everyday words; and •including only necessary information in the letter.
Support persons A person with limited cognitive capacity may bring a support person with them to an interview or to court. One of the roles of the support person is to assist the client in communicating with other people but it is important for solicitors to speak directly to the client and not the support person. A support person can reinforce the issues discussed with a solicitor through the stages of the court process and can be invaluable in assisting the solicitor to communicate effectively with their client. They should be able to indicate when they believe the client does not understand what is being said or when the client needs a break. It may be appropriate in some circumstances to ask the support person to sign a confidentiality agreement.
Court appearances It is important to explain the court process to the client and, if possible, to arrange for the client to visit the court room in advance of the hearing. If a person has a support worker or caseworker it may help to have them present at the hearing.
Clients who may lack capacity Most people with limited cognitive capacity have the capacity to instruct a solicitor, particularly if care is taken with communication. There will, however, be some people who, because of the level of their disability, lack the capacity to instruct effectively.[150] Note that some people will have had a guardian or financial administrator appointed who may need to be informed of decisions or matters affecting the client, for example, if legal proceedings are being contemplated. (Legal practitioners may also need to be cognizant that in some cases, a client with a disability may be subject to a trusted person’s exploitation or undue influence, such as family members or ‘friends’.)
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General principles and tips
Communication Some people with disabilities use communication aids such as a voice synthesiser or a communication board. They will need to show the legal representative how to work with the aid and some may take longer to communicate than others. Time should be allowed for this in consultations. Some people who are Deaf will require an AUSLAN (Australian sign language) interpreter who will need to be arranged prior to consulting. The cost of the interpreter will most likely need to be covered by the legal practitioner or firm. They may also need to communicate using a TTY (telephone typewriter) rather than a telephone or use text messages on a mobile phone. An alternative is the National Relay Service, a free Australia-wide telephone access service available to facilitate communication with people who are Deaf or have a hearing or speech impairment.[151] Some people with speech impediments or who are ‘non-verbal’ may require a specialist interpreter either in person or on the telephone. These services will need to be arranged before the consultation and are generally cost free. It is important not to assume that people who are non-verbal also have limited cognitive capacity. Some people will require information in alternative formats such as large print, audio recording, Braille or a specific electronic format. It may be the responsibility of the legal practitioner to provide these alternatives.
Medication Some people with disabilities need to take treatments and/or medications that may affect their behaviour or comprehension. This can sometimes be confused with the effects of the person’s disability upon their capacity. If a person appears affected by medication or treatment, legal practitioners should ensure their communication with the client is effective to the extent that they are confident that they are acting according to the client’s instructions, and in the client’s best interests.
Access to courts and other venues Physical access to a court or venue and access to information provided within these environments should be considered. The client should be asked if they have any particular access needs such as always having an accessible toilet facility nearby.
For further assistance There are specialist community legal centres in some states that work specifically with clients with disabilities. Solicitors from these centres may be able to provide further information about working with clients with a disability. Contact the National Association of Community Legal Centres to find out the contact details of any such service in your state. [152]
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9Law firm pro bono contacts The following people have indicated a willingness to be contacted to talk about their firm’s pro bono program. Allens Arthur Robinson Francene Kaleel, Pro Bono Coordinator Phone: 1800115145 Email: [email protected] Arnold Bloch Leibler, Lawyers & Advisers Peter Seidel, Partner Public Interest Law Phone: (03)92299769 Email: [email protected] Fiona Shand, Partner Phone: (02)92267100 Email: [email protected] Baker & McKenzie Jennifer McVicar, National Coordinator, Pro Bono & Community Service Programs Phone: (02)92102696 Email: [email protected] Blake Dawson Waldron Anne Cregan, National Pro Bono Coordinator Phone: (02)92586179 Email: [email protected] Mary-Jane Ierodiaconou, Pro Bono Coordinator (Melbourne) Phone: (03) 9679 3372 Email: [email protected] Lucy Bretherton, Pro Bono Coordinator (Brisbane) Phone: (07)32597000 Email: [email protected] Matthew Roser, Pro Bono Coordinator (Canberra) Phone: (02)62344094 Email: [email protected] Catia Malaquias Miles Pro Bono Coordinator (Perth) Phone: (08)93668179 Email: [email protected] Clayton Utz David Hillard, National Pro Bono Director Phone: (02)93534800 Email: [email protected] Corrs Chambers Westgarth Barry O’Callaghan AO, National Pro Bono Coordinator Phone: (03)96723364 Email: Barry_O’[email protected] Coudert Brothers Albert Yuen, Pro Bono Coordinator (Sydney)
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Phone: (02) 9930 7500 E-mail: [email protected] Deacons Mitchell Mathas, National Pro Bono Coordinator (and Sydney) Phone: (02)93308008 Email: [email protected] James Hains, Pro Bono Coordinator (Melbourne) Phone: (03)86866515 Email: [email protected] John Groppoli, Pro Bono Coordinator (Perth) Phone: (08)94263252 Email: [email protected] Greg Mann, Pro Bono Coordinator (Brisbane) Phone: (07)33090863 Email: [email protected] Vince Sharma, Pro Bono Coordinator (Canberra) Phone: (02)62720414 Email: [email protected] Ebsworth & Ebsworth (Sydney office) Meghan Magnusson, Solicitor/Pro Bono Coordinator Phone: (02)92342355 Email: [email protected] Freehills Annette Bain, National Pro Bono Coordinator Phone: (02)92255000 Email: [email protected] Gilbert + Tobin Lawyers Michelle Hannon, Pro Bono Coordinator Phone: (02)92634110 Email: [email protected] Harmers Workplace Lawyers Joydeep Hor, Partner Phone: (02) 9267 4322 Email: [email protected] Henry Davis York Kathy Merrick, Pro Bono Partner Phone: (02)99476000 Email: [email protected] Herbert Geer & Rundle Henrick Lassen, Pro Bono Partner Phone: (03)96418673 Email: [email protected] Maddocks Joanna Betteridge, Pro Bono Partner Phone: (03)92880578 Email: [email protected]
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Mallesons Stephen Jaques Jane Farnsworth, National Pro Bono Coordinator Phone: (02)92962000 Email: [email protected] Amanda Milledge, Pro Bono Coordinator (Melbourne) Phone: (03)96434000 Email: [email protected] Minter Ellison Lawyers Anton Hermann, National Director Pro Bono and Community Investment Phone: ((03) 8608 2071 Email: [email protected] Clea Wiebenga, Lawyer (Sydney) Phone: (02) 9921 8548 Email: [email protected] Robert Reed, Senior Associate (Brisbane) Phone: (07)31196155 Email: [email protected] Middletons Stephen Warne, Chairman – Pro Bono Committee Phone: (03)92052000 Email: [email protected] Phillips Fox Rachel Walsh, Partner/National Pro Bono Coordinator Phone: (03)92745000 Email: [email protected] Caroline Knight, Partner/Pro Bono Coordinator (Adelaide) Phone: (08) 81241811 Email: [email protected] Paul Baxter, Partner/Pro Bono Coordinator (Brisbane) Phone: (07)32464000 Email: [email protected] Richard Garnett, Partner/Pro Bono Coordinator (Canberra) or Chris Davis, Senior Associate Phone: (02)6201 8787 Email: [email protected] or Email: [email protected] Kerry Hogan-Ross, Partner/Pro Bono Coordinator (Sydney) or Jamie Motum, Senior Associate Phone: (02)9286 8000 Email: [email protected] or Email: [email protected] PricewaterhouseCoopers Legal Sophie Cockayne, Pro Bono and Community Work Coordinator Phone: (02) 8266 6642 Email: [email protected] Sparke Helmore Solicitors Michael Rosenfeld, Solicitor/Pro Bono Coordinator Phone: (02)4924 7696 (National contact) Email: [email protected]
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Testart Robinson Sharon McRae, Pro Bono Coordinator Phone: (03)98903321 Email: [email protected] TressCox Tim Unsworth, Partner Phone: (02)92289336 Email: [email protected] Wisewoulds Katharine McCarthy, Partner Phone: (03)96127236 Email: [email protected] Woolf Associates Bruce Woolf, Principal Phone: (02)92218522 Email: [email protected]
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10 USEFUL PRO BONO WEBSITES
Australian Pro Bono and Related Sites - Resources www.nationalprobono.org.au. (National Pro Bono Resource Centre, Australia) www.victorialaw.org.au/Probono.htm (Victoria Law Foundation’s pro bono resources) http://www.lawfoundation.net.au/publications/reports/probo/index.html (Law and Justice Foundation of NSW, Future Direction for Pro Bono Legal Services in New South Wales, supplementary report: proposed models) http://152.91.15.15/ministers/attorney-general/probono/probono1.html (Abstracts and briefing papers from the First National Pro Bono Conference, August 2000) http://www.ag.gov.au/www/familylawHome.nsf/Alldocs/B7365BCBC7F19F93CA256BDF0 007AE86?OpenDocument&highlight=pro%20bono%20task%20force%20report (Report of the National Pro Bono Task Force, June 2001) http://www.alrc.gov.au/publications/index.htm (Australian Law Reform Commission: see relevant reports)
Australian Pro Bono Sites – Referral Schemes www.piac.asn.au/legal/pilchhelp.html (Public Interest Law Clearing House, NSW) www.pilch.org.au (Public Interest Law Clearing House, Victoria) www.qpilch.org.au/ (Queensland Public Interest Law Clearing House) www.lawsociety.com.au/page.asp?PartID=6744 (Law Society of NSW Pro Bono Scheme) www.nswbar.asn.au (then see ‘Legal Assistance’) (NSW Bar Association Legal Assistance Referral Scheme) www.liv.asn.au/public (Law Institute of Victoria Legal Assistance Scheme) www.vicbar.com.au (Victorian Bar Legal Assistance Scheme) www.lawsocietywa.asn.au/access.html (WA Law Society’s Law Access scheme) www.lawlink.nsw.gov.au/sc/sc.nsf/pages/probono (NSW Supreme Court Pro Bono Referral Scheme)
International Pro Bono Sites www.probonogroup.org.uk/ (Solicitors Pro Bono Group, UK) www.probonoinst.org (Pro Bono Institute, Washington DC) www.probono.net (Pro Bono Net, USA) www.cpbo.org (CorporateProBono.Org, USA) www.abanet.org/legalservices/probono/home.html (American Bar Association Standing Committee on Pro Bono and Public Service) www.juricert.com/probono/bc/index.cfm (Pro Bono Net British Columbia) www.probononet.on.ca (Pro Bono Law Ontario)
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Legal aid, legal services and access to justice www.naclc.org.au (National Association of Community Legal Centres) www.nwjc.org.au/awlsn/index.htm (National Network of Indigenous Women’s Legal Services) www.indigenous.gov.au (An Indigenous portal) www.coalsnsw.com.au/ (Coalition of Aboriginal Legal Services NSW) www.als.org.au/ (Aboriginal Legal Service of Western Australia) www.nla.aust.net.au/ (National Legal Aid) www.legalaid.qld.gov.au (Queensland Legal Aid) www.legalaid.nsw.gov.au (Legal Aid Commission of NSW) www.legalaid.canberra.net.au (Legal Aid Commission of the ACT) www.legalaid.tas.gov.au (Legal Aid Commission of Tasmania) www.legalaid.wa.gov.au (Legal Aid Commission of Western Australia) www.legalaid.vic.gov.au (Victoria Legal Aid) www.lsc.sa.gov.au (Legal Services Commission of South Australia) www.ntlac.nt.gov.au (Northern Territory Legal Aid Commission) www.lawfoundation.net.au/access (Law and Justice Foundation of NSW Access to Justice Project) www.victorialaw.org.au (Victoria Law Foundation) http://www.aph.gov.au/senate/committee/legcon_ctte/legalaidjustice/index.htm (Senate Legal and Constitutional References Committee, Inquiry into Current Legal Aid and Justice Arrangements)
Community Welfare Organisations www.acoss.org.au (Australian Council of Social Service – peak council of the community welfare sector in Australia) www.coss.net.au (Details of state Councils of Social Service and their joint projects)
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ENDNOTES
[1]. According to the Australian Bureau of Statistics (ABS) survey, Legal Practices 2001–02, solicitor practices in Australia in 2001-02 provided 692,000 hours of legal services without expectation of a fee and 94,000 hours of free community legal education and/or law reform. They provided a further 415,100 hours of legal services at a reduced fee: Report No. 8667.0, 25 June 2003, p. 22. [2]. EF Lardent, ‘Structuring law firm pro bono programs: a community service typology’, in R Katzmann (ed.) The Law Firm and the Public Good, The Brookings Institution, Washington, 1995, p. 60. [3]. This list largely derives from the statement of objectives of a law firm in the United Kingdom for its pro bono strategy: see Solicitors Pro Bono Group, The law firm pro bono manual, a guide to creating a structured pro bono programme within a law firm, Solicitors Pro Bono Group, London, 1999, p. 36; and from Roger West, ‘Characteristics of successful pro bono schemes’, First National Pro Bono Conference, 4–5 August 2000, at http://152.91.15.15/Ministers/attorney- general/probono/briefingpapersSat5Aug.doc [4]. R West, ‘Characteristics of successful pro bono schemes’, First National Pro Bono Conference, 4–5 August 2000, at http://152.91.15.15/Ministers/attorney- general/probono/briefingpapersSat5Aug.doc [5]. See National Pro Bono Resource Centre, Working together: multi-tiered pro bono relationships between law firms and community legal organisations at: www.nationalprobono.org.au/publications [6]. David Hillard, ‘The recent American law firm pro bono experience’, paper presented to the First National Pro Bono Conference, 5 August 2000, at: http://152.91.15.15/Ministers/attorney- general/probono/briefingpapersSat5Aug.doc [7]. See www.cpbo.org [8]. For a helpful discussion of definitions and the strengths and limitations of various formulations, see C Arup, ‘Defining pro bono: models and considerations’, paper presented at the First National Pro Bono Conference, For the public good, Canberra, 4–5 August 2000, at: http://152.91.15.15/ministers/attorney-general/probono/briefingpapersFri4Aug.doc [9]. In the 1999 Victoria Law Foundation/Voluntas survey of Victorian practitioners, 80 per cent of respondents reported that they used the Law Council definition: N Gration, Voluntas, Pro bono survey report, June 1999, Victoria Law Foundation p. 6, as cited in the Report of the National Pro Bono Task Force to the Commonwealth Attorney-General, 14 June 2001, p. 5, at: http://www.ag.gov.au/www/familylawHome.nsf/Alldocs/B7365BCBC7F19F93CA256BDF0007AE86 ?OpenDocument&highlight=pro%20bono%20task%20force%20reportC [10]. C Arup, ‘Defining pro bono: models and considerations’, paper presented at the First National Pro Bono Conference, For the public good, Canberra, 4–5 August 2000, p.7. at: http://152.91.15.15/ministers/attorney-general/probono/briefingpapersFri4Aug.doc [11]. Whereas the phrase ‘without expectation of a fee from the client’ would not produce this result: see C Arup, ‘Defining pro bono: models and considerations’, paper presented at the First National Pro Bono Conference, For the public good, Canberra, 4–5 August 2000, p.7. at: http://152.91.15.15/ministers/attorney-general/probono/briefingpapersFri4Aug.doc [12]. Law Foundation of New South Wales, Future directions for pro bono legal services in New South Wales, Law Foundation of New South Wales, 1998, p. 97. [13]. Law Foundation of New South Wales, Future directions for pro bono legal services in New South Wales, Law Foundation of New South Wales, 1998, pp. 96–7. [14]. Attorney-General, State of Victoria, ‘Policy Guidelines for the delivery of Pro Bono services for an Approved Cause under the Government Legal Services Contract’, March 2003. [15]. See 3.1 Sample pro bono policies: 1. [16]. See 3.1 Sample pro bono policies: 5. [17]. J Anderson and G Renouf, ‘Legal services “for the public good”’, (2003) 28(1) Alt LJ 13; F McLeay, ‘Partners in the same endeavour’, (2003) 28(1) Alt LJ 38. [18]. The QPILCH definition includes matters that require legal intervention to avoid a significant and avoidable injustice: See www.qpilch.org.au/criteria.htm. [19]. F McLeay, ‘Partners in the same endeavour’, (2003) 28(1) Alt LJ 38, referring to www.slatergordon.com.au/HTML/prac_area_pubint.htm. [20]. See C Arup’s discussion of the advantages and disadvantages of a public interest test: ‘Defining pro bono: models and considerations’, paper presented at the First National Pro Bono Conference, For the public good, Canberra, 4–5 August 2000, p.8. at: http://152.91.15.15/ministers/attorney- general/probono/briefingpapersFri4Aug.doc
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[21]. Law Foundation of New South Wales, Future directions for Pro Bono Legal Services in New South Wales, Law Foundation of New South Wales, 1997, p. 97. [22]. Future directions for Pro Bono Legal Services in New South Wales, Law Foundation of New South Wales, 1998, p. 52. [2]3. See discussion in the report of the Law Foundation of New South Wales, Future directions for Pro Bono Legal Services in New South Wales, Law Foundation of New South Wales, 1998, pp. 50–1. [24]. See 3.1 Sample pro bono policies: 5. [25]. Law Foundation of New South Wales, Future directions for Pro Bono Legal Services in New South Wales, Law Foundation of New South Wales, 1998, p. 52 and see Wentworth v Rogers [2002] NSWSC 709 and discussion at 1.12 Costs and disbursements. [26]. The New South Wales Bar Association’s Legal Assistance Scheme is the only referral scheme that includes a specific income level in its means test. Its guidelines state that a person whose gross income exceeds $1000 per week will not be eligible, however the Association does not strictly apply this and also considers applicants’ expenses. [27]. Law Foundation of New South Wales, Future directions for Pro Bono Legal Services in New South Wales, Law Foundation of New South Wales, 1998, p. 56. Pro bono services are also of particular importance for types of matters – particularly in the civil law area – for which legal aid is not available. [28]. See, for example, 3.1 Sample pro bono policies: 1, 2. [29]. For example, ‘non-profit organisations having objects for the benefit of the public, sections of the public or the natural world’ or, more narrowly, ‘non-profit organisations working for [disadvantaged or marginalised people who cannot afford legal services]’: See 3.1 Sample pro bono policies: 2 and 1 respectively. [30]. See discussion by F McLeay, ‘Pro bono lawyering in the 21st century’ and by S Parker ‘Why lawyers should do pro bono work’ in Arup, C & K Laster (eds) For the public good: pro bono and the legal profession in Australia, The Federation Press, Sydney 2001. [31]. F McLeay, ‘Pro bono lawyering in the 21st century’ in Arup, C & K Laster (eds) For the public good: pro bono and the legal profession in Australia, The Federation Press, Sydney 2001, pp. 17–18. [32]. R West, ‘Characteristics of successful pro bono schemes’, First National Pro Bono Conference, 4–5 August 2000, at http://152.91.15.15/Ministers/attorney- general/probono/briefingpapersSat5Aug.doc [33]. For example, in 2002 the Exelon Business Services Company advised law firms that they would be evaluated on their demonstrated commitment to pro bono work and requested a statement from each firm of their commitment to and plan for providing pro bono legal services. In addition, the Company asked firms to share ideas about partnering with Exelon to perform pro bono work for the greater community: Law Firm Pro Bono Project at Georgetown University Law Center, What’s new in law firm pro bono, July/August 2002, Issue #43, p 8. Similarly, First Union Corporation informed all potential outside legal providers that pro bono was an important consideration in its hiring decision and requested that firms provide information about their pro bono policies and activities; it also encouraged other business leaders to adopt similar policies: American Bar Association, Blueprint for constructing a pro bono project in a mid-size law firm, Chicago, 1997, p. 4–5. [34]. The perception that the senior lawyers in the firm do not encourage or support pro bono work may be the single greatest deterrent to the provision of pro bono legal services by more junior lawyers: Los Angeles County Bar Association, ‘Commentary to pro bono policy’, in American Bar Association, Blueprint for constructing a pro bono project in a mid-size law firm, Chicago, 1997, p. 46. [35]. American pro bono policies commonly state an expectation that all lawyers in the firm participate in the firm’s pro bono program, and some firms also specify the number of hours (for example, fifty) that are expected of each lawyer each year. [36]. These targets need to be realistic, especially if they are described as expectations. A small number of American firms have instituted two separate hourly expectations of their lawyers: one for billable hours and one for pro bono hours. It has been observed that such an approach will only succeed if the firm’s billable hour target is relatively low: EF Lardent, ‘Structuring law firm pro bono programs’, a community service typology’, in R Katzmann (ed.) The Law Firm and the Public Good, The Brookings Institution, Washington, 1995, p. 73. [37]. This section derives from Solicitors Pro Bono Group, The law firm pro bono manual: a guide to creating a structured pro bono programme within a law firm, Solicitors Pro Bono Group, London, 1999, pp. 27–8. [38]. Solicitors Pro Bono Group, The law firm pro bono manual: a guide to creating a structured pro bono programme within a law firm, Solicitors Pro Bono Group, London, 1999, p. 28.
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[39]. Recently there has been considerable research in the United Kingdom into legal needs, much of it forming the backdrop to significant changes to the legal aid system: H Genn, Paths to justice, Hart Publishing, UK, 1999, reports on a large and comprehensive study about how citizens respond to their legal problems; H Genn & A Paterson, Paths to justice Scotland, Hart Publishing, UK, 2001, is the Scottish follow-up to Genn’s work; and there are several reports by the Legal Services Research Centre at: www.lsrc.org.uk. Findings in a number of Australian reports were brought together and reviewed in Access to justice: an action plan, AGPS, 1994, by the Access to Justice Advisory Committee. More recently the Law and Justice Foundation of New South Wales’ Access to Justice Project, has explored legal need, building on previous work. This is discussed in the text below. [40]. See generally G Renouf ‘A client-centred approach to access to justice’, in Law and Justice Foundation of New South Wales Access to Justice Roundtable: Proceedings of a Workshop, July 2002 www.lawfoundation.net.au/publications/reports/ajr/ajr4.html#3 [41].This list draws on the work of the Law and Justice Foundation of New South Wales based on consultations undertaken in the course of its Access to Justice Project. [42]. Examples include the ALRC reports on Multiculturalism and the law, ALRC 57, 1992, Equality before the law, ALRC 69, 1994 and Seen and heard: priority for children in the legal process, ALRC 84, 1997 (at www.alrc.gov.au/publist/reports.htm) and the HREOC report Our homeless children: report of the national inquiry into homeless children (The Burdekin Report), AGPS, 1989. See also the report of the Access to Justice Advisory Committee. [43]. See www.lawfoundation.net.au/access [44]. The current and proposed publications of this project are: Access to justice roundtable, proceedings of a workshop, July 2002; L Schetzer, J Mullins & R Buonamano, Access to justice and legal needs; a project to identify legal needs and barriers for disadvantaged people in New South Wales – background paper, Law and Justice Foundation of New South Wales, August 2002; L Schetzer & J Henderson, Access to justice and legal needs; a project to identify legal needs and barriers for disadvantaged people in New South Wales – Stage 1: Public consultations; Access to justice data digest; Access to justice and legal needs: a project to identify legal needs and barriers for disadvantaged people in New South Wales – Stage 2: Quantitative legal needs survey Bega Valley (pilot); Legal needs of elderly people (working title); and Legal needs quantitative survey of six local government areas: see www.lawfoundation.net.au/access [45]. For a description of the changing nature of the services provided by a community legal centre as it worked with Aboriginal women in three remote communities over a six-year period, see G Renouf, ‘A client centred approach to access to justice’ in Law and Justice Foundation of New South Wales Access to Justice Roundtable: Proceedings of a Workshop, July 2002 at www.lawfoundation.net.au/publications/reports/ajr/ajr4.html#3 [46]. For example, one law firm conducted training sessions with a large number of community organisations about the effect of the introduction of the GST on their operations. This was more efficient than offering each organisation individual advice. [47]. We are not aware of any definitive list of such peak bodies, however, the list of national members of the Australian Council of Social Services is a good place to start: www.acoss.net.au/links [48]. EF Lardent, ‘Structuring law firm pro bono programs: a community service typology’, in R Katzmann (ed.) The Law Firm and the Public Good, The Brookings Institution, Washington, 1995, p. 62. [49]. EF Lardent, ‘Structuring law firm pro bono programs: a community service typology’, in R Katzmann (ed.) The Law Firm and the Public Good, The Brookings Institution, Washington, 1995, p. 63. [50]. EF Lardent, ‘Structuring law firm pro bono programs: a community service typology’, in R Katzmann (ed.) The Law Firm and the Public Good, The Brookings Institution, Washington, 1995, pp. 62 and 81. Signatory firms also agree to a number of other things, including to promulgate a firm policy, to use their best efforts to ensure that a majority of both partners and associates participate annually in pro bono activities, to provide a broad range of pro bono opportunities, training and supervision and to monitor progress and report annually to the firm and to the ABA’s Law Firm Pro Bono Project. [51]. EF Lardent, ‘Structuring law firm pro bono programs: a community service typology’, in R Katzmann (ed.) The Law Firm and the Public Good, The Brookings Institution, Washington, 1995, p. 63, observes that in the United States these costs (such as non-client related lawyer and support staff time, training costs, pro bono meeting and event expenses) are ‘far less frequently’ included in the pro bono budget than the other kinds of expenses discussed above.
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[52]. EF Lardent, ‘Structuring law firm pro bono programs: a community service typology’, in R Katzmann (ed.) The Law Firm and the Public Good, The Brookings Institution, Washington, 1995, p. 64. [53]. Law Firm Pro Bono Project at Georgetown University Law Center, What’s new in law firm pro bono, November/December 2002, Issue #45, pp. 1, 8, 12–13. [54.] Law Firm Pro Bono Project at Georgetown University Law Center, What’s new in law firm pro bono, November/December 2002, Issue #45, p. 12. [55]. For example, one American firm recognises 100 pro bono hours per year per associate as equivalent to billable hours, and more with prior approval, for all purposes including compensation and bonuses. That firm’s policy also gives credit for every hour above 2100 pa (at least 2000 of which are billable) in the total for production bonus purposes: Law Firm Pro Bono Project at Georgetown University Law Center, What’s New in Law Firm Pro Bono, May/June 2002, Issue #42, p. 15. [56]. See 3.1 Sample pro bono policies: 6. [57]. This section draws in particular from: Solicitors Pro Bono Group, The law firm pro bono manual: a guide to creating a structured pro bono programme within a law firm, Solicitors Pro Bono Group, London, 1999; American Bar Association, Center for Pro Bono, Blueprint for constructing a pro bono project in a mid-size law firm, Chicago, 1997; R West, ‘Characteristics of successful pro bono schemes’, First National Pro Bono Conference, 4–5 August 2000, at http://152.91.15.15/Ministers/attorney-general/probono/briefingpapersSat5Aug.doc [58]. Law Firm Pro Bono Project at Georgetown University Law Center, ‘Trends in Law Firm Pro Bono: Pro Bono Staffing’, in What’s new in law firm pro bono, November/December 2002, Issue #45. [59]. Compared with 47 per cent in a survey carried out by the Project in the early 1990s. [60]. Solicitors Pro Bono Group, The law firm pro bono manual: a guide to creating a structured pro bono programme within a law firm, Solicitors Pro Bono Group, London, 1999, p. 10. [61]. R West, ‘Characteristics of successful pro bono schemes’, First National Pro Bono Conference, 4–5 August 2000, at http://152.91.15.15/Ministers/attorney- general/probono/briefingpapersSat5Aug.doc [62]. For example, all lawyers in the Canberra office of Clayton Utz – including partners – participate in the First Stop Legal and Referral Service for Young People, that provides legal advice and assistance to people aged 12-25 years: see National Pro Bono Resource Centre, Working together: multi-tiered pro bono relationships between law firms and community legal organisations at: www.nationalprobono.org.au/publications [63]. See examples in 3.1 Sample pro bono policies. [64]. Law Firm Pro Bono Project at Georgetown University Law Center, What’s new in law firm pro bono, May/June 2002, Issue #42, p. 15. [65]. Solicitors Pro Bono Group, The law firm pro bono manual: a guide to creating a structured pro bono programme within a law firm, Solicitors Pro Bono Group, London, 1999, pp. 6 & 23. [66]. Solicitors Pro Bono Group, The law firm pro bono manual: a guide to creating a structured pro bono programme within a law firm, Solicitors Pro Bono Group, London, 1999, p. 6. [67]. See, for example, 3.1 Sample pro bono policies: 5 which includes in the definition of pro bono, work done ‘on a speculative basis where the prospects of recovering fees do not commercially justify undertaking the work on a speculative basis’. [68]. Law Foundation of New South Wales, Future directions for Pro Bono Legal Services in New South Wales, Law Foundation of New South Wales, 1998, p. 52. [69]. See Federal Court Rules Order 80 r 9 (1) and (2); Federal Magistrate’s Court Rules Part 12; New South Wales Supreme Court Rules Part 66A r 9 and 10; New South Wales District Court Rules Part 28C r 9 and 10. [70]. K Bennett, ‘A pro bono system: fact or fiction’, unpublished honours thesis, 2002 referring to Davis, Polk & Wardwell, Pro Bono Update, April 2002, p. 4. [71]. ‘Spotlight on . . . Bickel & Brewer Storefront’ in Law Firm Pro Bono Project at Georgetown University Law Center, What’s new in law firm pro bono, July/August 2002, Issue # 43, p. 3. [72]. EF Lardent, ‘Pro bono metrics’, What’s new in law firm pro bono, July/August 2002, Issue #43, Law Firm Pro Bono Project at Georgetown University Law Center, p. 1. [73]. EF Lardent, ‘Pro bono metrics’, What’s new in law firm pro bono, July/August 2002, Issue #43, Law Firm Pro Bono Project at Georgetown University Law Center, p. 7. [74]. In the United States, the corporate sector has embraced the use of ‘metrics’ – measuring and quantifying the impact, performance and effectiveness of its work. While still in its infancy in application to the pro bono programs of corporate legal departments and law firms, metrics is a useful measurement tool for analysing and evaluating pro bono initiatives. Metrics provides information that specifically focusses on whether, and to what extent, a pro bono program has created ‘added value’ for
Australian pro bono manual 217 4 Information and resources the client, the community at large, the staff involved in service delivery and the corporation or firm itself. Under a metrics model, information on performance measures, client and community outcomes and benefits to staff can all be collected, measured and analysed: See EF Lardent, ‘Pro bono metrics’, What’s new in law firm pro bono, July/August 2002, Issue #43, Law Firm Pro Bono Project at Georgetown University Law Center. The Pro Bono Institute in Washington is currently investigating pro bono metrics for law firms. [75]. See the Social Entrepreneurs Network at www.sen.org.au [76]. See, for example, National Pro Bono Resource Centre, Working together: multi-tiered relationships between law firms and community legal organisations, in particular case studies 1 and 4 at: www.nationalprobono.org.au/publications [77]. National Pro Bono Resource Centre, Working together: multi-tiered relationships between law firms and community legal organisations, case studies 8 and 11 respectively at www.nationalprobono.org.au/publications [78]. For example, the Homeless Persons’ Legal Clinic in Victoria recently organised a one-day training session for approximately seventy lawyers. This involved a number of the Clinic’s clients discussing their experiences of homelessness, participating in practice interviews and providing feedback to lawyers on their interviewing skills. [79]. National Pro Bono Task Force, Report of the National Pro Bono Task Force to the Commonwealth Attorney-General, 14 June 2001, pp. 28–9 at: http://www.ag.gov.au/www/familylawHome.nsf/Alldocs/B7365BCBC7F19F93CA256BDF0007AE86 ?OpenDocument&highlight=pro%20bono%20task%20force%20reportC [80]. The full Protocol, launched in April 2003, can be read at: www.probonogroup.org.uk/spbg/protocol.htm. As at August 2003 the protocol had been signed by Attorney-General Lord Goldsmith’s ‘pro bono envoy’, the former Law Society president Michael Napier, the College of Law, the Law Courts Federation, the Citizens Advice Bureau, the Free Representation Unit, the Government Legal Service and a number of law firms. [81]. This is defined as: ‘legal advice or representation provided by lawyers to individuals and community groups who cannot afford to pay for that advice or representation and where public funding is not available. Legal work is Pro Bono Legal Work only if it is free to the client, without payment to the lawyer or law firm (regardless of the outcome) and provided voluntarily either by the lawyer or his or her firm’. [82] Contact details of CLCs across Australia are available from the National Association of Community Legal Centres, at www.naclc.org.au; See also 4.4 Community legal centres and Indigenous legal organisations. [83] See Legal Practitioners Act 1970 (ACT), Legal Profession Act 1987 (NSW), Legal Practitioners Act (NT), Queensland Law Society Act 1952 (QLD), Legal Practitioners Act 1981 (SA), Legal Profession Act 1993 (TAS), Legal Practice Act 1996 (VIC), Legal Practitioners Act 1893 (WA). [84]. See, for example, s 90 of the Legal Practice Act 1996 (VIC) which provides an exception to the need to comply with certain information disclosure provisions of the Act if the total legal costs, excluding disbursements, are not likely to exceed $750. [85]. See, for example, s 47 Legal Aid Commission Act 1979 (NSW) and relevant case law. [86]. See, for example, the Legal Profession Act 1987 (NSW). Division 2 of Part 11 of the Act relates to disclosure of matters relating to costs. Section 175, especially ss(2), provides for what is to be disclosed. Section 178 provides for when disclosure is to be made; s178(1): before the solicitor is retained to provide legal services unless the section otherwise provides; s178(2): if it is not reasonably practicable to make the disclosure before the solicitor is retained, the disclosure is to be made as soon as practicable after that solicitor is retained. Section 179 requires disclosure to be in writing. [87]. See Wentworth v Rogers [2002] NSWSC 709. [88]. See Grynberg v Muller; re Estate of Bilfield [2002] NSWSC 350 per Hamilton J quoted in Wentworth v Rogers [2002] NSWSC 709 at para 36. [89]. Wentworth v Rogers [2002] NSWSC 709. The court makes costs orders without needing to know whether a liability exists for the client to pay costs to the solicitor. Once costs orders have been made, the question of what costs can be recovered is one for the parties to agree between themselves, or for the costs assessment process under the relevant legal profession legislation to determine. [90]. Law Foundation of New South Wales, Future directions for Pro Bono Legal Services in New South Wales, Law Foundation of New South Wales, 1998, pp. 49–50. [91]. In some cases, conflicts of interest are more apparent than real. A recent Victorian case has confirmed that courts will take a narrow view of whether a firm should be restrained from acting because of a breach of a duty of loyalty to a former client where not privy to confidential information of the adversary (former client). In this case, the firm had limited its retainer with the new client to
Australian pro bono manual 218 4 Information and resources ensure that it could not make use of any confidential information of the former client. See Australian Liquor Marketers Pty Ltd v Tasman Liquor Traders Pty Ltd [2002] VSC 324. An overly cautious approach to conflicts may inhibit a firm from taking on pro bono matters. [92]. E Wentworth, ‘Barriers to pro bono: commercial conflicts of interest reconsidered’, in C Arup and K Laster (eds), For the public good: pro bono and the legal profession in Australia, The Federation Press, Sydney 2001, p. 167. [93]. See F McLeay, ‘Pro bono at Clayton Utz and commercial conflicts of interest’, paper presented at Voluntas seminar, Commercial conflicts of interest in pro bono work, Clayton Utz, 16 May 2001 [94]. E Wentworth, ‘Barriers to pro bono: commercial conflicts of interest reconsidered’, in C Arup and K Laster (eds), For the public good: pro bono and the legal profession in Australia, The Federation Press, Sydney 2001, pp. 167 and 172. [9]5. E Wentworth, ‘Barriers to pro bono: commercial conflicts of interest reconsidered’, in C Arup and K Laster (eds), For the public good: pro bono and the legal profession in Australia, The Federation Press, Sydney 2001, p. 168. [96]. Abandoning the word ‘conflict’ from what is known as a commercial conflict may clarify the confusion between professional conflicts as stated in professional rules of conduct and what are really commercial concerns. See E Wentworth, ‘Barriers to pro bono: commercial conflicts of interest reconsidered’, in C Arup and K Laster (eds), For the public good: pro bono and the legal profession in Australia, The Federation Press, Sydney 2001, p. 169. [97]. See the detailed discussion of this approach and others by E Wentworth, ‘Barriers to pro bono: commercial conflicts of interest reconsidered’, in C Arup and K Laster (eds), For the public good: pro bono and the legal profession in Australia, The Federation Press, Sydney 2001, pp. 173–8. [98]. See F McLeay, ‘Pro bono at Clayton Utz and commercial conflicts of interest’, paper presented at Voluntas seminar, Commercial conflicts of interest in pro bono work, Clayton Utz, 16 May 2001. [99]. See proposed protocol at www.nationalprobono.org.au/publications/ [100]. EF Lardent, ‘Trends in law firm pro bono: taking on politically or ideologically charged matters’, in What’s New in Law Firm Pro Bono, Sept/Oct 2002, Issue #44, Law Firm Pro Bono Project at Georgetown University Law Center, p. 7. [101]. One firm allows a single partner to veto the firm’s decision. However, this approach is generally considered to limit the firm’s capacity to take on controversial matters, see EF Lardent, ‘Trends in law firm pro bono: taking on politically or ideologically charged matters’, in What’s New in Law Firm Pro Bono, Sept/Oct 2002, Issue #44, Law Firm Pro Bono Project at Georgetown University Law Center, p. 7. [102]. This approach was adopted in one US firm where several partners chose to represent an alleged terrorist. See EF Lardent, ‘Trends in law firm pro bono: taking on politically or ideologically charged matters’, in What’s New in Law Firm Pro Bono, Sept/Oct 2002, Issue #44, Law Firm Pro Bono Project at Georgetown University Law Center, p. 7. [103]. See Wentworth v Rogers [2002] NSWSC709 and discussion in 2.3 Letters of engagement. [104]. Ruddock v Vadarlis (No.2) (2001) 115 FCR 229, per Black CJ and French J at para 21, discussing the High Court’s decision in Oshlack v Richmond River Council (1998) 193 CLR 72. [105]. Ruddock v Vadarlis (No.2) (2001) 115 FCR 229, per Black CJ and French J at para 25. [106]. Ruddock v Vadarlis (No.2) (2001) 115 FCR 229, per Black CJ and French J at para 29. [107]. Ruddock v Vadarlis (No.2) (2001) 115 FCR 229, per Black CJ and French J at para 28. [108]. Le v Minister for Immigration & Ethnic Affairs (1994) 53 FCR 27. The applicants’ readiness to proceed, the existence of a suitable detention facility in Sydney and the convenience of the court was also relevant. The Court noted that it would be unreasonable to expect the generosity of the pro bono lawyers to extend to personally funding the expense of travelling to Port Hedland to take instructions and conduct the hearing. Note, however, that this decision has been distinguished in subsequent applications of a similar nature. [109]. See WABF v Minister for Immigration and Multicultural Affairs [2002] FMCA 99, per McInnes FM, ‘It seems …to me that it is relevant in circumstances of this kind where the court draws upon the limited resources of the available pro bono lawyers that it should add to the burden of those lawyers the refusal to adjourn a matter which may then in turn require significant and perhaps even substantial redrafting of submissions and revisiting material that should only be visited at least on the one occasion in order to ensure effective representation’: at para 22. [110]. See WABF v Minister for Immigration and Multicultural Affairs [2002] FMCA 99, per McInnes FM at para 21. [111]. See, for example, Federal Court Rules O11 r1A which provides that a pleading must set out the name of the person who prepared the pleading. See also Family Law Rules O16 r6(1).
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[112]. NADG of 2002 v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 893 at para 11. [113]. See (2003) 41(6) LSJ. [114]. This section is a revised version of a paper presented by the author at the First National Pro Bono Conference, For the Public Good in Canberra, August 2000. [115]. The policy, guidelines and procedure will ensure consistency, effective use of the firm's pro bono resources, the best application of its skill and maximum impact for the community, the firm and its employees. [116]. See definition of ‘pro bono work’ at 2 Definition of Pro Bono Work in this policy. [117]. There are now a large number of community legal centres and Aboriginal legal services throughout Australia, both generalist and specialist, rural and urban. [118]. Supervision of matters would be provided according to existing principles in the firm. [119]. Reference is made to another section of the policy dealing with accounts procedures and which makes clear that pro bono work is treated as billable work. [120]. Note that the Victorian Pro Bono Secondments Working Group stated a preference for secondments schemes to utilise the skill and experience of second-year solicitors. See Blake Dawson Waldron, Final report: pro bono secondments working group, Victoria, 5 April 2001, p. 15. [121]. See L Curran, ‘Demands, demands and competing demands: life in a legal clinic’, (2002) 76(8) LIJ 81, p. 84. [122]. There are a number of other such schemes. The National Pro Bono Resource Centre proposes to publish an online Directory of Pro Bono Referral Schemes in due course. [123]. For example, the New South Wales Law Society scheme excludes some types of matters including family law property settlements and maintenance matters and defended apprehended violence orders. [124]. For example, the New South Wales Bar Association Legal Assistance Referral Scheme (LARS) aims to provide legal assistance for free or at reduced rates to persons who would otherwise not be able to obtain legal assistance without suffering severe financial hardship. While its guidelines state that applicants will not be eligible for assistance where their gross income exceeds $1000 per week, the test is flexibly applied and the applicant’s outgoings and dependents will be considered. Under the New South Wales Law Society Pro Bono Scheme, assistance will normally only be granted to applicants who ‘would otherwise be unable to meet the full costs of legal representation’. The Law Institute of Victoria scheme applies the test that the applicant ‘cannot afford to pay for legal assistance’. [125]. Most schemes use the ‘reasonable prospects of success’ merits test. [126]. Administered by PILCH (Victoria). [127]. Administered by PILCH (Victoria). [128]. For example, the Law Society of Queensland organises a ‘twenty-twenty’ consultation scheme – twenty dollars for twenty minutes with a lawyer participating in the scheme and free ten-minute consultations for those with a health care card or pension. [129]. The Department of Immigration and Multicultural and Indigenous Affairs has prepared a fact sheet on the IAAAS, at: www.immi.gov.au/facts/63advice.htm [130]. See, for example, s 47 Legal Aid Commission Act 1979 (NSW). [13]1. See, for example, reg 2A Federal Court of Australia Regulations 1978 (Cth) and regs 4A, 5 High Court of Australia (Fees) Regulations 1991 (Cth) which provide specific exemptions for hearing fees; see also reg 2AA Federal Court of Australia Regulations 1978 (Cth) which provides an exemption for the setting down fee. [132]. In the Migration Review Tribunal application fees can be waived if payment is likely to cause ‘severe financial hardship’ to the applicant: reg 4.13 Migration Regulations 1994 (Cth). [133]. Some regulations confer a general discretion to waive, postpone or remit fees: see, for example, cl 11(4) Supreme Court Regulation 2000 (NSW). Other rules or regulations specifically refer to financial hardship (and sometimes to specific matters such as income and day-to-day living expenses) or to the applicant’s financial position. For example, in the Queensland Supreme, District and Magistrates Courts, the Uniform Civil Procedure Rules 1999 allow for an exemption from payment of a relevant fee if, having regard to the individual’s financial position, it is clearly in the interests of justice to exempt the individual from payment of the fee. [134]. See cl 7 Supreme Court Regulation 2000 (note it applies to filing fees for initiating processes or cross claims and hearing allocation fees); cl 6 District Court Regulation 2000 (in the same terms, except does not refer to hearing allocation fees); cl 6 Land and Environment Court Regulation 2000 (filing fees); cl 5 Local Courts (Civil Claims) Regulation 2000 (any fee in respect of the business of a court).
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[135]. Similar provisions exist in some regulations for pensioners or persons assisted by community legal centres liable to pay fees: see, for example, cl 8 Supreme Court Regulation 2000 (NSW). [136]. The solicitor must be on the list of private legal practitioners maintained under s 30 of the Legal Aid Act 1990 (NT). [137]. www.legalaid.qld.gov.au/services/cllas/docs/guidelines.pdf [138]. www.legalaid.qld.gov.au/services/cllas/docs/solicitors_guide.pdf [139]. This section was reproduced, with minor amendments, from John Boersig, ‘Acting for Aboriginal clients’, 2001 NSW Lawyers Practice Manual, reprinted with permission by the ©Lawbook Co, part of Thomson Legal & Regulatory Limited. This article is copyright. Inquiries should be addressed to the publisher, the ©Lawbook Co, part of Thomson Legal & Regulatory Limited, www.thomson.com.au. For further information, including cultural and communication issues, see S Fryer-Smith, ‘AIJA Aboriginal cultural awareness benchbook for Western Australian courts’, at www.aija.org.au/online/ICABenchbook.htm and see ‘Respect, Acknowledge, Listen: Practical protocols for working with the Indigenous Communities of Western Sydney’, available at www.ccdnsw.org/ccdnsw/artwork/protocols.pdf [140]. See s 4, Disability Discrimination Act 1992 (Cth). [141]. Australian Bureau of Statistics, Disability, ageing and carers: summary of findings, Report No. 4430.0, 1998, p. 1. [142]. Calculated from data reported in Australian Bureau of Statistics, Disability, ageing and carers: summary of findings, Report No. 4430.0, 1998, p. 14. [143]. The ABS reports that almost one [person] in five (18 per cent) had a mental disorder at some time during the twelve months prior to the survey. Australian Bureau of Statistics, Mental health and wellbeing: profile of adults, Australia, Report No.4326.0, 1997. [144]. Calculated from data reported in Australian Bureau of Statistics, Disability, ageing and carers: summary of findings, Report No. 4430.0, 1998. [145]. See, for example, Ranclaud v Cabban [1988] ANZ ConvR 134, SCNSW. [146]. See (NSW) www.biansw.org.au; (Vic.) www.headwayvictoria.org.au; (Tas) www.biat.org.au; (WA) www.headwest.asn.au; (SA) www.workable.org.au/binsa; (Qld) www.biaq.com.au [147]. See www.alzheimers.org.au and see www.cle.unsw.edu.au/dal/home.html (Dementia awareness for lawyers). [148]. See http://members.ozemail.com.au/~ncid/; see also information at www.nswcid.org.au. [149]. See www.mhca.com.au. [150]. The Law Society of New South Wales has recently released guidelines for solicitors about what to do if they believe that their client may not be competent to give proper instructions. See also ‘Client Capacity Guidelines: Civil and Family Law Matters’, in (2003) 41(8) LSJ, p.50. [151]. See www.aceinfo.net.au/Services/NRS/index.html [152]. See www.naclc.org.au or telephone (02) 9264 9595.
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