NATIONAL PRO BONO TASK FORCE
RECOMMENDED ACTION PLAN
FOR NATIONAL CO-ORDINATION AND DEVELOPMENT OF PRO BONO LEGAL SERVICES
14 June 2001
INTRODUCTION
The establishment of the National Pro Bono Task Force was announced on 13 October 2000 by the Attorney-General of Australia, the Hon Daryl Williams AM QC MP (see Appendix B), following on from the success and undissipated energy of “For the Public Good: The First National Pro Bono Law Conference”, held in Canberra on 4-5 August 2000.
The First National Conference was attended by about 500 members of the public, private and community legal sectors, legal educators, judges and judicial officers, government officials, and representatives from professional associations and the business and philanthropic sectors. The 17-member Task Force is similarly broadly constituted with respect to work experience, professional orientation and geographic base (see Appendix A).
The Conference was the initiative of the Attorney-General, and a number of working groups were formed to assist with the development of the program, as well as to come together as an “Outcomes Working Group” at the conclusion of the Conference, to debrief and consider how to advance matters further. It was that large group that suggested the creation of a smaller Task Force which, as a practical matter, would be in a better position to do the necessary detailed follow-up work.
The Task Force has had the benefit of the notes capturing the major consultative/deliberative exercise conducted at the Conference – the Roundtable Discussion involving all Conference participants (see Attachment C) – as well as an Outcomes Issue Paper (see Attachment D) prepared by some of the Conference organising group.
The role of the Task Force is to crystallise the suggested outcomes of the First National Conference, and to report to the Attorney-General with a practical blueprint about how best to achieve progress in the implementation of those outcomes. In particular, the Task Force sees its mission as:
(1) identifying and weighing options for the development of pro bono initiatives nationally, especially those areas in which the federal government can assist with leadership, targeted funding, or the removal of impediments to enhanced levels of pro bono legal work; and
(2) identifying the means, and the organisations, institutions and individuals, best placed to advance these priority activities.
One of the working groups established at the time of the Conference was a Research and Publications Working Party, with responsibility (among other things) for developing and publishing the Conference Proceedings. This collection, For the Public Good: Pro Bono Law in Australia, is being co-edited by Associate Professor Chris Arup and Associate Professor Kathy Laster of La Trobe University’s School of Law and Legal Studies, and will be published simultaneously as a double Special Issue of the journal Law in Context, as well as in book format.
A number of other publications in recent years have looked at pro bono practice in Australia. The Law Foundation of New South Wales published two major studies in 1998: Centre for Legal Process, Future Directions for Pro Bono Legal Services in New South Wales and Supplementary Report: Proposed Models. The Pro Bono Secretariat of Voluntas, a project of the Victorian Law Foundation, conducted a valuable survey in 1999 on the pro bono practices and attitudes of Victorian practitioners. The Australian Law Reform Commission considered pro bono practice in the federal civil justice system, as part of its Managing Justice inquiry.[1] During the life of this Task Force, the Law Society of New South Wales also published a Discussion Paper on pro bono practice and its place in Australian legal culture.[2]
Consequently, this Report is not designed to be a comprehensive treatise on pro bono legal practice, but rather is organised primarily around the Task Force’s Recommended Action Plan.
Some original research is presented in the form of survey research projects undertaken on behalf of the Task Force by student summer clerks in the Sydney office of Malleson Stephen Jaques, who surveyed almost all Australian law schools (see Appendix F), and 60 metropolitan firms in New South Wales (Appendix G, hereafter ‘MSJ law firm survey’).[3] A small survey of firms in country New South Wales (about 20 lawyers in five firms) also was conducted, but has not been written up (hereafter ‘MSJ country survey’).
‘Regional’ meetings of the Task Force were held in Sydney (6 December 2000) and Melbourne (11 December 2000), as well as meetings with individual members in Adelaide and Perth (in early March 2001). The full Task Force met in Sydney for a weekend workshop (30-31 March 2001) aimed at refining its previously circulated Draft National Plan for Pro Bono Legal Services.
In the modern manner of things, most of the work of this Task Force has been conducted by way of ‘virtual collegiality’, utilising new information technology to arrange meetings, set agendas, and disseminate material and documents for information and comment.
In part, this reflects the logistical difficulties involved in managing a large and geographically dispersed group of busy people. However, there also was a conscious strategy adopted by the Chair and endorsed by the Members that this should be a low-cost process, with no suggestion that resources have been diverted from the delivery of legal services to support the work of the Task Force. For example, no sitting fees have been paid to any member of the Task Force – all of whom have accepted this responsibility in the spirit of pro bono practice.
DEFINING ‘PRO BONO’ PRACTICE
There are very interesting and important – and difficult – philosophical questions about the essential nature of legal ethics and professional responsibility, and increasingly about how the changing nature of the market for legal services (with increased competition and a premium placed upon ‘business-like’ practices) may clash with the ‘service ideal’ which traditionally is said to distinguish the ‘profession’ from other ‘occupations’ and service-providers. However, the role of the Task Force is to focus on pragmatic methods for enhancing access to the justice system (and equity within it), especially for disadvantaged members of the community, outside of the formal system of publicly funded legal aid.
Notwithstanding a plea ‘not to get bogged down in issues of definition’, there inevitably was considerable discussion about what is meant by ‘pro bono’ practice at the First National Conference. This was repeated as well as in the early stages of the Task Force’s deliberations, and we note that the Law Society of New South Wales’ Working Group on Pro Bono Legal Services also ‘discussed extensively’ the ‘definition of what constitutes pro bono work’, before settling on the one established by the Law Foundation of New South Wales for its report on Future Directions (see above):
Pro bono work is generally in the nature of legal advice or legal representation performed free of charge or at a substantially reduced rate, for clients who cannot afford to pay full market rates or for an organisation working for disadvantaged groups or for the public good.
This is similar to the definition adopted by the Law Council of Australia in a 1992 resolution, and utilised by many practitioners,[4] which states that:
Pro Bono work is defined in instances where:
1. A lawyer, without fee or without expectation of a fee or at a reduced fee, advised 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.
At the Roundtable discussions held during the Conference, a number of general approaches to defining ‘pro bono’ legal practice emerged. One approach – strongly advocated by many participants – was that you need a client-centred definition, emphasising:
· advice and assistance to clients suffering disadvantage;
· matters in which a client would suffer serious consequences;
· an expansive definition, without the superimposition of ‘an overriding requirement of a public or community benefit’ – which might prevent otherwise deserving and needy parties from receiving assistance;
· matters in which the client is itself an organisation which assists the disadvantaged (eg community welfare groups, the Salvation Army, etc); and
· the pursuit of public interest test case litigation.
Another approach defined pro bono work more from the perspective of the lawyer or law firm involved, to cover any work done for no fee, or for a substantially reduced fee. There were mixed views about whether this also should include legal work done ‘on spec’ (speculative fees) or on a contingency fee basis.
There were also those who argued that, from a private lawyer’s perspective, even legal aid work should be considered pro bono practice, given the relatively low level of fees paid. For example, a survey by National Legal Aid of 260 private firms doing legal aid family law work showed that in 1998-99, Australian solicitors ‘provided a subsidy of at least ,500,000 and more likely in excess of ,000,000 if they had agreed to accept 80% of the ordinary professional rate of 3 per hour’.[5]
There was also a view that definitions of pro bono work must not be overly fixated on representation, and that non-litigious work should be included within the concept. This would take in such (no fee or reduced fee) legal assistance as:
· involvement in ADR processes, mediation, and ‘preventative law’;
· involvement in law reform work, lobbying on justice issues, and making submissions to parliamentary committees, inquiries, and law reform commissions;
· involvement in the regulation of the legal profession, or service on committees of professional associations;
· offering community and/or continuing legal education; and
· broad community service work (eg general legal advice/assistance to community groups, such as Rotary).
In 1994, the federal Access to Justice Advisory Committee (AJAC) considered a wide range of mechanisms aimed at achieving greater equality of access to the justice system. In setting out its mission, AJAC noted that:
Equality of access to legal services requires that individuals who may not be able to afford legal services, but who have arguable cases, should have a range of opportunities available to them to bring (or defend) proceedings, without necessarily incurring liability for their fees. Legal aid, provided through publicly funded authorities and community legal centres, is critical in assisting such people. It is fundamental to access to justice that legal aid agencies (including community legal centres and services catering for disadvantaged groups) should have adequate resources. Inevitably, however, legal aid agencies do not and cannot have unlimited resources and complementary schemes, such as litigation assistance funds, group legal insurance and contingency fee arrangements, are beginning to emerge. The need for a variety of approaches has influenced us in our treatment of these complementary schemes.[6]
Interestingly, the enhancement of pro bono legal services was not among the matters considered by AJAC in 1993-94 – perhaps this area has a higher profile now that ‘community-business partnerships’ and ‘social coalitions’ are part of the common discourse of politics and community development in Australia and overseas.[7]
For example, in the United States, President Bill Clinton issued a “Call to Action” to American lawyers in 1999, urging a greater commitment to pro bono legal services, and applauding the legal professional associations and institutions working individually and collectively to promote diversity and community service.[8] Among other things, this call led the American Corporate Counsel Association and the Pro Bono Institute at Georgetown University law school to establish CorporateProBono.Org (CPBO) – an initiative designed ‘to exponentially increase the amount of pro bono work performed by in-house counsel and to assist legal services, pro bono, and public interest programs in publicizing and placing pro bono matters with in-house lawyers’.[9]
Similar partnership initiatives have been emerging in Australia in recent times. For example, the Consumer Law Centre in Melbourne has been commissioned by the Victorian Department of Consumer Affairs to provide a consumer litigation service, in addition to the work the Centre already does in research, education, policy development and lobbying. The Centre’s full-time lawyers will be supplemented by a practitioner seconded from Victorian Legal Aid; backroom support is being provided by the Lance Reichstein Foundation and the major commercial law firm Blake Dawson Waldron. With assistance from the Ronald Henderson Foundation, there are also plans to establish pro bono internship placements at the Centre for law students.[10]
This all suggests that the establishment and work of this Task Force is timely. The Task Force agrees strongly with AJAC that it is important to develop our strategies and recommendations in terms of ‘complementary schemes’ aimed at articulating with – rather than in any way derogating from or supplanting – the critical frontline services provided by legal aid services and community legal centres. (See the Preamble, below.)
The Task Force did not see any need to resolve the global debate about what is or is not included in ‘pro bono’ legal services, and it is arguable that adopting a fixed definition actually may be counter-productive. Different working definitions and operational assumptions and models may be required for different contexts and purposes. For example, a private law firm may utilise a different definition of pro bono work than, say, a community legal centre, for its billing and internal record-keeping purposes and to encourage (or at least not discourage) its solicitors to engage in pro bono work.
There would be little public benefit in forcing a ‘one size fits all’ approach upon this dynamic. Dubious claims about the provision of pro bono services would be better dealt with through the development of professional ethics and practice rules, as well as through the development of a best practice management handbook – as suggested in the Task Force’s Recommended Action Plan (below).
Thus, in carrying out its work, the Task Force has utilised a broadly inclusive operational definition of ‘pro bono legal practice’. In the words of one Task Force Member, wherever possible we have endeavoured to ‘fudge the definition in the spirit of generosity and inclusiveness’.
PATTERNS OF PRO BONO PRACTICE
Figures released around the time of the First National Conference confirm that the legal profession makes a very significant contribution to the community through its pro bono work. According to the Australian Bureau of Statistics,[11] solicitors donated approximately 1.8 million hours and barristers a further 489,000 hours doing pro bono work in 1998-99 – services worth at least some hundreds of millions of dollars in cash terms.
The Law Society of New South Wales, utilising data from its 1997-98 practising certificate renewal survey, estimated the amount of pro bono work at around 63,000 hours, or about million in value.[12]
The Australian Law Reform Commission’s review of the federal civil justice system noted the comparison between the considerable amount of pro bono work undertaken and the federal government’s funding of legal aid commissions and community legal centres, which in 1997-98 totalled about 4 million.[13]
The Commission’s own empirical research on Family Court matters showed that many self-funded litigants also received some pro bono assistance from their lawyers. Even in cases funded by legal aid, a larger proportion of the time spent on the case by lawyers was uncharged time.[14] The Federal Court also acknowledged ‘with gratitude the substantial amount of pro bono work undertaken by the legal profession and the widespread support by the profession for the Federal Court’s own pro bono scheme’.[15]
The 1999 Voluntas survey of Victorian practitioners, however, also pointed to the problem with statistics in this area – 91 per cent of respondents reported that they did not keep formal records of pro bono work undertaken, and 87 per cent did not account for such work in the system of recording ‘billable hours’.[16] The MSJ law firm survey also found problems with billing systems unable to record pro bono work, and practitioners eager for advice about how this might be improved.[17]
It is often suggested that pro bono work is mainly the preserve of the large commercial law firms located in the capital city CBDs, which have the size, flexibility, and economies of scale to ‘leverage’ the legal and other resources (such as administrative, IT and management support systems) necessary to sustain an active pro bono practice.
However, the ‘MSJ country survey’ of some small-to-medium sized firms in rural and regional New South Wales found that most of the solicitors contacted were undertaking very high levels of pro bono work, ranging from 2-7 hours per week. Many of the pro bono clients in these circumstances are former paying clients who are not presently able to afford the full level of fees. The subject matter tended to be criminal law, family law, wills and estates, and work for charitable organisations and community groups. For the country solicitors concerned – and no doubt the same situation would obtain in the outer metropolitan suburbs – pro bono work is not so much a professional lifestyle choice as an essential aspect of living and working in communities with a high level of disadvantage and unmet legal needs.
Even the large, well-resourced law firms face a number of challenges in providing extensive pro bono services. These include ensuring that:
(a) pro bono activities are built into the structure of the firm, and are not regarded as a ‘side activity’ or an ‘add-on’ to the ‘real work’ of the firm;
(b) there is equal treatment of pro bono files, in terms of quality, resources, the seniority of lawyers involved, reward structures, and inclusion in group/departmental/divisional budgets; and
(c) mechanisms exist for the ready identification, and proper handling, of real and potential commercial conflicts of interest.
Most importantly, law firms (of all sizes and practice types) need to develop and maintain a healthy ‘pro bono culture’ – and in this regard, all of the evidence suggests that the attitude of senior partners is critical in setting the right tone.
Despite the scale of activity, it is clear that much of the pro bono work in Australia takes place in an unstructured – even disorganised – manner. There is no doubt that pro bono services would benefit greatly from better coordination, more information and education, and the introduction of some best practice management principles. For example, the 1999 Voluntas survey of Victorian legal practitioners found that only 25 per cent of respondents reported having a pro bono policy in their firm, and of these only 11 per cent had a written policy.[18] Two-thirds reported that their firms did not have a designated staff member responsible for the coordination of pro bono work.[19]
Similarly, the MSJ law firm survey found that only five of the 60 firms telephoned had a designated pro bono contact point; many receptionists professed to knowing nothing about any pro bono services, and some actively discouraged any further inquiries. Most respondents accepted the importance of developing pro bono policies and guidelines, and expressed strong enthusiasm for external assistance in this regard, including the development of a best practice management handbook or manual.[20]
THE TASK FORCE’S APPROACH
The Task Force identified a list of specific (but inevitably related) needs, aims and projects, including among other things:
· the improvement of communication and information-sharing among pro bono providers;
· the active promotion of a strong pro bono culture in Australia, commencing at law school and continuing through all levels and styles of professional practice;
· the development of clear, consumer-oriented standards of professional practice for insertion into the Law Council of Australia’s proposed National Conduct Rules, to guide lawyers undertaking pro bono work;
· the creation of a ‘best practice’ management handbook and other guides and material to encourage and enhance pro bono practice;
· the removal of a variety of structural barriers to pro bono practice;
· the negotiation of protocols regarding inter-professional cooperation in pro bono efforts;
· the commissioning of solid empirical research to underpin reform efforts, such as a client-centred ‘needs and pathways’ study; and
· the facilitation of partnership opportunities – across the different parts of the legal profession, as well as between lawyers and other community organisations, professions and business enterprises.
The Task Force also spent considerable time addressing in particular the key issue of the mismatch between client needs on the one hand, and the supply (and accessibility) of pro bono legal services on the other. At the Conference, it was widely remarked upon that major law firms were reporting that they had a strong commitment to pro bono practice, but were actually unable to spend their annual pro bono budgets because of insufficient referrals – this despite the high level of unmet demand for legal assistance.
To some extent, this mismatch could be addressed at the local level by improvement and better coordination of the various referral schemes. However, the Task Force believes strongly that the problem goes much deeper than fine-tuning the mechanics of referral. At the heart of the mismatch is the fact that the areas of greatest need are in family law and criminal law,[21] personal injury, migration and administrative matters (eg social security appeals). However, these are precisely the areas in which the large corporate law firms do not have in-house expertise – indeed, they generally have made a strategic commercial decision not to work in these areas of ‘personal plight’, most of which are associated with legal aid (to the extent it is available) and/or low fees.
Thus, the Task Force believes that an effective remedy for the mismatch must involve a more long-term and complex approach, that includes most of the matters referred to above: promoting a culture receptive to pro bono work; improving outreach services and community education; providing tools and training to willing lawyers; providing ‘matchmaking’ opportunities that will enable skills and resources to be sent from wherever they are located to wherever they are most needed; removing structural barriers; sharing information about successful programs in Australia and overseas; and so on.
All of these matters find expression in the Recommended Action Plan, below. After considerable discussion, and the emergence of a clear consensus about what needed to be done, the Task Force was left with the issue of who would be responsible for all of this facilitation, creative development, liaison, and coordination in the first instance – and then who would be responsible for maintaining oversight, ensuring that valuable corporate memory was not lost, and sustaining the commitment, energy and continuity?
The centrepiece of the Recommended Action Plan, therefore, became the establishment of an Australian Pro Bono Resource Centre, with a mission to help facilitate, coordinate and sustain pro bono activity in this country. As designed (see Action 1, below), the Task Force does not believe that the Centre will be (or be seen to be) overly prescriptive, or likely to stultify local initiatives or draw resources away from the frontline delivery of pro bono legal services – which is paramount.
UNDERLYING PRINCIPLES/PREAMBLE
As noted above, the Task Force has utilised a broadly inclusive operational definition of ‘pro bono legal practice’ for the purposes of this report. This is in keeping with the primary role of the Task Force to focus on pragmatic methods for addressing access and equity concerns about the justice system, complementing the role of publicly-funded legal aid and community legal centres.
Although the Task Force did not need to specify the precise contours of pro bono practice for these purposes, it was nevertheless influenced by a number of shared assumptions about the principles that should underpin the organisation and provision of pro bono legal services, including that:
Pro bono practice is not a substitute for legal aid. It is essential to distinguish lawyers’ professional/ethical obligation to do pro bono work from the fundamental government/community responsibility to provide adequate levels of legal aid, especially in such core areas as criminal law and family law. Therefore, there was appreciation of the Attorney-General’s express assurance at the First National Pro Bono Law Conference that the present Government’s encouragement of pro bono activities was not a precursor to decreased levels of legal aid funding or to a diversion of funds from basic legal aid to other areas of legal assistance.
However, there is also a recognition that even dramatically increased levels of legal aid funding would not completely relieve the demand for pro bono work, given the high level of unmet legal need in the community.[22]
Further, pro bono schemes have a number of benefits that are not always possible through legal aid schemes, such as: choice/diversity; flexibility; motivation; ability to tap the specialist expertise of leading practitioners; and ability to tap the resources/infrastructure of major law firms, the Bar and the legal academy.
The design and provision of pro bono services should be driven by client needs. The provision of pro bono services should not be driven by what lawyers are prepared to offer. Rather, there is an urgent need to ‘map client needs’ – and if corresponding legal resources are not available, then there should be a concerted effort to recruit and/or equip lawyers with the necessary skills and expertise, and provide the necessary back-up support.
Pro bono clients should expect, and receive, the same high quality of service as all other clients. Pro bono legal work always must involve legal services of the highest quality – not ‘second rate justice’. Similarly, pro bono work should not be regarded as being the preserve of young lawyers, giving them an opportunity to learn on the job before they are let loose on ‘real’ paying clients. Professional associations need to clarify the ethical framework for pro bono legal work – this entails a recognition that pro bono practice may involve different circumstances, but must never mean lower standards of ethics or quality of service. Common problems that may inhibit or compromise the delivery of pro bono services, such as conflicts of interest, also need specific treatment.
Pro bono practice is a voluntary activity, deriving from the legal profession’s service ideal,[23] and is a shared responsibility involving individual practitioners, law firms, peak professional bodies, courts, law foundations and others. There is strong opposition in Australia to any element of compulsion in the performance of pro bono legal work (eg, through the imposition of conditions for the maintenance of a current practising certificate) – including, it should be said, from those lawyers with the strongest record of actually providing such services. There is somewhat less opposition, but certainly no clear groundswell of support, for any statement of ‘aspirational targets’, such as the American Bar Association’s Model Rule urging lawyers to perform at least 50 hours of pro bono work per year.[24] The Task Force has chosen not to press for such targets, noting that this approach may be inconsistent with the essential voluntariness of pro bono work, the accepted and acknowledged importance of this work, and the willingness with which it has been provided in the past by the Australian legal community.
In the interests of a fair and efficient justice system, there is an important role for government in encouraging and supporting – but not controlling – pro bono initiatives. For example, governments might: (a) assist in overcoming some of the structural barriers to pro bono work (eg, filing fees and other court-related costs and disbursements), (b) provide resources to facilitate coordination and enhancement of pro bono services, and (c) encourage pro bono practice by taking into account evidence of a record of such ‘good professional citizenship’ as a factor in awarding tenders for government legal work.
The Task Force sees this statement of principles as constituting, in effect, a Preamble to the detailed recommendations contained in the Action Plan following immediately below.
NATIONAL PRO BONO TASK FORCE
RECOMMENDED ACTION PLAN
FOR NATIONAL CO-ORDINATION AND DEVELOPMENT OF PRO BONO LEGAL SERVICES
14 June 2001
Responsibility for the project
Given the other tasks and responsibilities of the Australian Pro Bono Resource Centre in its start-up phase, and the imminent need for the Handbook, the Task Force believes it would be best for this project to be tendered out to a third party, for production within about one year. (Copyright for the work should remain with the Centre.)
The Centre would be charged with: (a) awarding the tender and overseeing the development of the Best Practice Handbook; (b) maintaining the currency of the Handbook over time; and (c) ensuring its widespread accessibility (both in hard copy, and over the Centre’s website).
ACTION 3: SUPPORTING CLIENT-FOCUSSED RESEARCH
Empirical research exploring clients’ needs and knowledge
Another theme that emerged at the First National Conference was the need for empirical research into client needs and knowledge about how to access pro bono legal services, to complement the emerging understanding of what lawyers do, and are prepared to do, in this area. The notes of the Roundtable Discussion at the Conference (see Appendix ) relate that:
There was also a strong view that the provision of pro bono services should not be driven entirely on the basis of what lawyers were prepared to offer. Rather, there is an urgent need to ‘map client needs’ – and if corresponding legal resources are not available, then there should be a concerted effort to recruit and/or equip lawyers with the necessary skills and expertise, and provide the necessary back-up support. (Concern was expressed that it sometimes happens that well-meaning lawyers do clients a disservice by providing pro bono services in areas in which they have no specialist expertise, such as family law or migration.)
Other recent research indicates that some commercial law firms have expressed a desire for such a ‘needs analysis’ in order for them to structure properly referral services and their own pro bono practices.[34]
The Task Force strongly agrees with the need for an empirical study looking at client needs and how (potential) pro bono clients actually go about searching for, and securing, the provision of pro bono legal services. Such a study should build upon the research, consultation and recommendations of the Attorney-General’s Family Law Pathways Advisory Group, established in May 2000, which is focussed on improving coordination of services in the family law system and improving outcomes for those experiencing family breakdown.
Specifically, the Task Force recommends the initiation of research into:
(a) the nature and scope of clients’ pro bono needs; and
(b) mapping client pathways to accessing pro bono legal services. (For example, do clients access pro bono legal assistance via professional associations’ referral services; legal aid commissions, hotlines, websites, community legal centres, other bodies or individuals?)
The aims of the project would be to:
enable the supply of pro bono services to be aligned more closely with demand for those services;
gain a better understanding of the pathways clients utilise to obtain pro bono assistance, and the perceived problems in gaining access, so that steps can be taken to maximise access;
encourage community agencies, who are often the first port-of-call for clients, to think carefully and creatively about how pro bono services can most effectively meet client needs.
The research methods would include consultation and interviews with key community referral agencies (such as community legal centres, Aboriginal Legal Services, migrant resource centres, domestic violence advisory services) in order to ascertain both the nature and scope of client pro bono needs, including:
· what forms of pro bono assistance are needed (eg, advice, representation, ongoing assistance etc), and in what proportions;
· in which subject areas;
· what kinds of pro bono services are currently utilised by clients and by referral agencies;
· how pro bono services could be most effectively delivered to clients; and
· the strengths and weaknesses of current referral systems for pro bono service provision.
Responsibility for the project
As with the Best Practice Handbook, the Task Force believes that given the other tasks and responsibilities of the Australian Pro Bono Resource Centre in its start-up phase, and the imminent need for this research, it would be best for this project to be tendered out to a third party, for production within about one year. (Copyright for the work should remain with the Centre.)
The Centre would be charged with: (a) awarding the tender and overseeing the research project; and (b) ensuring that the information and insights that emerge are disseminated widely, and used effectively in designing and delivering pro bono services.
ACTION 4: DEVELOPING NATIONAL PROFESSIONAL PRACTICE STANDARDS FOR PRO BONO LEGAL SERVICES
Setting professional standards for pro bono practice
As part of its national professional blueprint, the Law Council of Australia has developed and adopted Model Rules of Professional Conduct and Practice. The ‘advocacy rules’ included in the Law Council’s Model Rules are based upon uniform practice standards developed by the Australian Bar Association in 1995.
In the Managing Justice report, the Australian Law Reform Commission strongly encouraged legal professional associations and regulatory bodies to ‘give priority to the development and implementation of national model professional practice rule’.[35] The Task Force agrees that there is a need to develop client-focussed, national rules of professional practice, particularly dealing with matters of ethics and quality assurance.
Unlike the position in some other countries (see, eg the American Bar Association’s Model Code), there are no provisions in the codes of practice developed by the Australian legal professional associations expressly dealing with pro bono practice.
The Task Force does not believe that there is a need for a separate comprehensive Code of Practice governing the provision of pro bono services. Once a practitioner undertakes to provide legal professional services, the governing standards should be identical regardless of fee-paying status (whether full fee, reduced fee, speculative fee, or no fee).
However, we do believe that pro bono clients should be expressly assured of this position in a professional practice rule. Because many pro bono clients are disadvantaged in social, economic and/or political terms, they may wield less power than other clients in directing the conduct of their matters. A guarantee that they will not be receiving ‘second class’ services, but rather the same high level of services that all clients are entitled to expect, is thus an important statement for the legal profession to make.
It should not require a lengthy process to develop one or more dedicated provisions in this area that may be integrated within existing professional codes or rules. The MSJ law firm survey indicated strong support for the development of such industry standards relating to pro bono work.[36] Reproduction of these provisions for pro bono clients in a brochure or similarly accessible form would be highly desirable.
As noted in the introductory material, there is a strong view in the Australian legal profession that pro bono work should remain a voluntary activity, with no formal requirements making it compulsory (eg for the maintenance of a current practising certificate). The Task Force has chosen not to press for ABA-style ‘aspirational targets’, on the basis that such targets may be seen as by some in the profession as a first step towards compulsion (‘the thin edge of the wedge’), or as a ploy designed to take the pressure off governments to provide adequate legal aid funding. Equally, the Task Force believes that such targets can militate against a true embrace of the spirit of pro bono practice by appearing to establish a maximum expectation, discouraging the provision of higher levels of pro bono service (as presently achieved by some Australian lawyers).
Responsibility for the project
The Law Council of Australia, with the assistance of the Australian Pro Bono Resource Centre, should develop the suggested pro bono practice provisions as soon as possible, for inclusion in its own Model Rules, and to serve as a model for state and territory professional associations and other bodies responsible for professional practice standards.
ACTION 5: FOSTERING A STRONG PRO BONO CULTURE IN AUSTRALIA
The challenge of enhancing pro bono practice
The Actions recommended above relate primarily to facilitating the operations of the private profession in providing pro bono legal services to clients in need. The ethical imperative to do pro bono work stems from the legal profession’s traditional ‘service ideal’.
However, one of the major debates within the profession – reflected by statements by the Chief Justice, and other commentators – is the extent to which such professional sentiments can survive the application of competition policy to, and competitive pressures upon, the market for legal services.
The notes of the Roundtable discussions at the First National Conference (see Appendix C) record that
There was frequent comment that the challenges of ‘Hilmerisation’ have not yet been fully thought-through or addressed – ie, if law is ‘just another service industry’, legal services are subject to competition policy, and lawyers are instructed to act more ‘business-like’, then what remains of ‘professional’ values, such as the ‘service ideal’, which underpin the pro bono ethos? (On the other hand, it was noted that a record of pro bono work also can be ‘good for business’, in terms of marketing, attraction and retention of quality staff, and so on.)
The Law Society of New South Wales conducted a survey of members in 1999-2000 (in association with the renewal of practising certificates) and found that, of the nearly 10,000 respondents, only 36 per cent said that they were personally handling a pro bono matter at the time; only 6 per cent reported that were conducting more than five pro bono matters.[37]
There is also evidence of a significant drop in pro bono performance in the United States over the past decade, despite a strong economy and record profits for law firms. According to a survey conducted last year by American Lawyer magazine, the average time spent doing pro bono work by lawyers at the 100 highest-grossing law firms in the US fell from 56 hours per annum in 1992 to 36 in 1999. Only 18 of those 100 firms reported that their lawyers met the ABA’s 50-hour target.[38]
A similar survey in February 2000 in Washington DC – long considered the centre of pro bono activity – conducted by a committee of the DC Circuit Court found that less than 25 per cent of the lawyers in the 142 law firms surveyed were meeting the 50-hour target. On the positive side, there is evidence that some firms have stepped up their donations to legal services providers in an effort to compensate for declining pro bono hours.[39]
The Task Force believes that it is essential to complement the recommended Actions with sustained efforts aimed at fostering a strong pro bono culture in the Australian legal profession, commencing at law school and meaningfully supported at all levels of continuing professional practice.
Role of university law schools
Australian law schools should be encouraged to support programs that (a) highlight the legal professions’ service ideal and promote a pro bono legal culture, and (b) enable students to acquire ‘high order professional skills and a deep appreciation of ethical standards and professional responsibility’.[40]
This would include providing all law students with opportunities for internships/outreach programs with a pro bono focus; opportunities to undertake clinical experience, clinical components within the academic curriculum, and stand alone electives such as ‘Public Interest Advocacy’; and opportunities for reflection upon and critical analysis of ethical matters (including pro bono) in the classroom.
In June 1998, the US-based Soros Foundation announced that it would match donations by law firms and corporations in order to create 70 two-year ‘public interest’ fellowships for recent law graduates, with the program to be coordinated by the National Association for Public Interest Law. With strong support from the American Bar Association and Ford Motors, among others, the fellowship program is now up and running. Fellowship recipients each receive about ,000 per annum, as well as assistance in paying off law school debts, with the aim of encouraging some of the best and brightest young lawyers to practice in areas of poverty law and public interest law, rather than go to high-paying jobs in the legal and corporate sectors.
Pro Bono Students Canada (PBSC) is an organisation with 12 member law schools across Canada, with a mandate to match law students interested in doing pro bono work with local non-profit or charitable organisations that require their assistance (under supervision from a qualified legal practitioner). The program started in Ontario (and is based at the University of Toronto), but national expansion was made possible by a large grant from the Kahanoff Foundation of Calgary, Alberta.
It is unlikely that the scale or scope of these initiatives would be matched in Australia in the short term. However, a more modest program along these lines and supported through community (university-profession-corporate) partnerships may be conceivable; for example, providing a fellowship stipend in the ,000-6,000 range (which would cover annual HECS liability) for students who undertake summer clerkships/internships in approved pro bono/public interest law programs in Australia, or perhaps even internationally. (A good precedent is the National Australia Bank (NAB) financial support for the Victorian Public Interest Law Clearing House (PILCH).)
The results of a survey of Australian law schools conducted in January 2001 by a group of summer clerks at the Sydney office of Mallesons Stephen Jaques is attached to this report as Appendix F. As a general matter, the survey indicates that, unlike many or most American law schools, very few Australian law schools have a considered or coherent policy in relation to developing a pro bono ethos in law students – although there are many scattered courses and programs.
One interesting initiative is the ‘Practising in the Public Interest’ program, a partnership bringing together the private legal sector (PILCH law firms), the community sector (PIAC/PILCH) and New South Wales law schools (the Universities of New South Wales, Sydney, Western Sydney and Wollongong). The aims of the program are to foster an understanding of public interest and pro bono legal work, and to promote greater interaction between law schools and the private legal profession.
The program both has classroom training and clinical components, the latter exposing students to pro bono work and opportunities within law firms, community legal centres, professional associations and legal aid. As raised by the MSJ survey, funding is a barrier to greater university and student participation in the program (which in most cases is now being credited as part of the core curriculum).
Clearly more work is needed, but there is a generally sympathetic environment in which further developments can take place.
Role of State and Territory admitting authorities
Following graduation from law school, intending lawyers in Australia are obliged to complete another phase of professional preparation prior to admission to practice – this generally takes the form of an articled clerkship or a further course of study at a practical legal training (PLT) institution (many of which are now incorporated within, or allied with, university law schools, in addition to the stand-alone programs such as the NSW College of Law and the Leo Cussen Institute in Victoria).
There are perhaps more limited opportunities for fostering a strong pro bono culture during this phase, but the Task Force nevertheless would encourage:
· State and Territory admitting authorities to recognise that pro bono placement work meets the practical legal experience requirements within formally taught PLT courses;
· State and Territory admitting authorities to continue the policy of giving approval for practitioners within community legal centres, legal aid offices and the like to act as principals for purposes of supervising articles and employment requirements for admission; and
· the Australasian Professional Legal Education Council (APLEC) and the Consultative Committee of State and Territorial Admitting Authorities, as part of the current review of PLT standards, to consider whether there should be any compulsory component (practical or reflective) of the curriculum which highlights the legal profession’s service ideal and promotes a pro bono culture.
Responsibilities for implementation
The Council of Australian Law Deans (CALD) should review and report to the Australian Pro Bono Resource Centre regarding policies and institutional commitment to clinical and pro bono placement programs among member law schools. CALD should consider the development of national policy about whether at least one such program should be a compulsory part of the curriculum for all law students.
The Australian Pro Bono Resource Centre, in association with CALD, should explore the possibility of developing community (university-profession-corporate) partnerships to support a national pro bono fellowship scheme.
The Australian Pro Bono Resource Centre should monitor admission standards and pre-admission requirements, and discuss these with State and Territory admitting authorities, where appropriate, measures needed to promote a strong pro bono culture among Australian lawyers.
[1] Australian Law Reform Commission, Review of the federal civil justice system (Discussion Paper 62, 1999) paras 6.2 and 6.39-6.46; and Managing Justice: A Review of the Federal Civil Justice System (Report 89, 2000) paras 5.2, 5.12-20.
[2] Law Society of New South Wales, Pro Bono Work – Promoting Cultural Change (Discussion Paper on the Review of Pro Bono Services by the NSW Legal Profession, March 2001).
[3] That work is attached as Appendices F and G for the information of readers. Please note, however, that the full Task Force did not have the opportunity to consider these papers before publication, and the conclusions contained therein do not necessarily reflect the views of the Task Force collectively or those of any particular member.
[4] In the 1999 Victorian Law Foundation/Voluntas survey of Victorian practitioners, 80% of respondents reported that they used the Law Council definition: N Gration, Pro Bono Secretariat, Voluntas, Pro Bono Survey Report (June 1999) at p 6 (hereafter, ‘Voluntas survey’).
[5] National Legal Aid, Survey of legal firms doing legal aid family work, cited in Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System (ALRC 89, 2000) at para 5.15.
[6] AJAC, Access to Justice: An Action Plan (1994) para 1.10. The Chair of the National Pro Bono Task Force, Prof David Weisbrot, was also a member of AJAC.
[7] See, eg, S Wheeler and G Wilson, “Corporate Law Firms and the Spirit of Community” (1998) 49 Northern Ireland Legal Quarterly 239.
[8] The full text can be found at http://www.lawyersforoneamerica.com/executive_message/archive_clinton.html
[9] For further information, see the CPBO website at http://www.corporateprobono.org
[10] This material is drawn from an unpublished paper by Associate Professor Chris Arup.
[11] Australian Bureau of Statistics, Legal Services Industry 1998-99, Report No 8667.0 (18 August 2000).
[12] Keys Young, Practising certificate survey 1997-98 Final Report (September 1998) 33.
[13] ALRC 89, at para 5.14.
[14] Ibid.
[15] Ibid, at para 5,12.
[16] Voluntas survey, at pp 8, 11.
[17] MSJ law firm survey, at p 12; see Appendix G.
[18] Voluntas survey, at p 7. Firms with five or more partners were nearly twice as likely to have a pro bono policy.
[19] Ibid.
[20] MSJ law firm survey, at pp 11-14; reproduced in Appendix G.
[21] See the Voluntas survey, at p 10.
[22] The Voluntas survey, at p 10, found that 34% of respondents reported no increase in demand for pro bono services over the past three years, with 28% reporting a small increase in demand, and 29% a large increase.
[23] The Voluntas survey canvassed the reasons why practitioners did pro bono work, at p 12. The two dominant reasons were, in order, ‘Social conscience, social responsibilities, sense of duty and professional obligation’; and ‘To provide a service not otherwise available; if we didn’t who would? And to meet a need’. This was followed by ‘Justice’; ‘To put something back into the community’; and ‘Good will, public relations and marketing’. Similarly, the MSJ law firm survey found that a sense of professional responsibility was one of the main reasons lawyers did pro bono work, as well as the benefits to law firm morale and professional development; the need to meet unmet demand for legal services; and public relations and marketing: at p 7; see Appendix G.
[24] The American Bar Association’s Model Rules of Professional Conduct, rule 6.1, states that a lawyer ‘should aspire to render at least (50) hours of legal services without fee or expectation of fee’.
[25] The MSJ law firm survey, at p 16, indicated strong support for ‘the idea of a state or national body which provided training in general lawyering skills’ as well as ‘training in specific areas of law’ for pro bono lawyers; some firms preferred the idea of in-house education if ‘appropriate training manuals were produced’. See Appendix G.
[26] And see, eg, Rule 80(9)((2)) of the Federal Court Rules, which specifically provides that in Court-appointed referrals a pro bono practitioner is entitled to recover fees and disbursements if an order for costs is made in favour of the pro bono client.
[27] By Legalsure, marketed by Greystokes of the United Kingdom.
[28] Access to Justice Advisory Committee, Access to Justice – an Action Plan 1994, para 16.25.
[29] See, eg, Federal Court of Australia Regulations reg 2(4)(c); Family Court of Australia Regulations reg 11(d); Supreme Court of Victoria Act, s129(3).
[30] Federal Court Regulations, Reg 2(4)(a).
[31] Voluntas survey, at p 13.
[32] The MSJ law firm survey, at p 15, found strong support for the establishment of a network of information and expertise-sharing. See Appendix G.
[33] Most existing work of a similar nature has been developed in the United States, for use by American lawyers. See, for example, the excellent resource maintained by the US consortium CorporateProBono.Org, at <http://www.corporateprobono.org/resources/best_practices.cfm>.
[34] MSJ law firm survey at pp 9-10; see Appendix G.
[35] ALRC 89, Recommendation 13, at p 225.
[36] MSJ law firm survey, at p 16; see Appendix G.
[37] Law Society of New South Wales, Pro Bono Work – Promoting Cultural Change, Discussion Paper on the Review of Pro Bono Services by the NSW Legal Profession, March 2001, at p 11.
[38] American Bar Association, Model Rules of Professional Conduct, rule 6.1, states that a lawyer ‘should aspire to render at least (50) hours of legal services without fee or expectation of fee’.
[39] See G Winter, “Legal Firms Cutting Back on Free Services for Poor”, New York Times, 17 August 2000, at p A1.
[40] As recommended by the Australian Law Reform Commission in Managing Justice, ALRC 89, Recommendation 2, at p 142).
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