Pro bono legal services – a Queensland perspective

Introduction

The legal profession has a long history of helping people who could not afford a lawyer because of its commitment to the principle of equal access to justice that all people, irrespective of their financial situation, should have access to the legal help they need. No other profession has the same level of commitment to helping their communities.

Before the 1970s, most legal work for disadvantaged people was undertaken by lawyers through low level law society based schemes or on an ad hoc basis.

From the 1970s, governments made significant funding contributions through legal aid schemes and an Australian network of community legal centres (CLC), which coordinated the pro bono commitment of individual volunteer solicitors and barristers.

From the early 1990s, Federal Governments increasingly reserved legal aid funding for criminal and family law, which now makes up the bulk of legal aid commission budgets. Other areas of law are less well resourced. Smaller allocations and grants for civil law services are made by federal, state and territory governments and through ‘public purpose’[1] funding.

Also from the 1990s, the harnessing of pro bono resources gradually increased as the private legal profession observed the growing demand for civil law assistance and recognised it could help fill a small gap in civil law. Increasingly, law firms see that pro bono work can provide young lawyers with different types of work experiences, training opportunities and dovetail with their major clients’ embrace of corporate social responsibility.

Many law firms and barristers participate willingly in structured pro bono programs that have been established to assist disadvantaged citizens. Structured referral schemes have in turn evolved to target the most vulnerable people who had rarely obtained civil law assistance in the past, such as the homeless, people with mental illness and self-represented litigants.

These structured pro bono programs are now located through ‘clearing houses’ in each state and territory:

NSW and Victoria JusticeConnect
Queensland LawRight (formerly QPILCH)
SA JusticeNet SA
WA Law Access Pro Bono Referral Scheme
Tasmania Law Society of Tasmania Pro Bono Clearing House
NT The NT Pro Bono Clearing House (based at the Law Society of the NT)
ACT The ACT Pro Bono Clearing House (based at the Law Society of the ACT)

Note 1: This paper focuses on law firm and barrister pro bono, facilitated by the clearing houses. However, some information on volunteering by individual lawyers and students through community legal centres and services provided by Legal Aid Queensland is also provided for context. It is LawRight’s perspective of the current pro bono landscape.

Note 2: The term ‘civil law’ used in this paper means all types of law except family law and criminal law and some specified areas of law such as dangerous prisoners and criminal confiscation, which Legal Aid Queensland includes in its definition of civil law.

What is pro bono?

The term ‘pro bono’ derives from the Latin ‘pro bono publico’ which means ‘for the public good’. It refers to professional services provided for free or at reduced fee.

The Law Council of Australia defines pro bono work as:

  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:
    1. a client has no other access to the courts and the legal system; and/or
    2. 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.

For the purposes of its Aspirational Target and National Survey (see later), the Australian Pro Bono Centre (APBC) (formerly called the National Pro Bono Resource Centre) defines ‘pro bono legal services’ as:

  1. Giving legal assistance for free or at a substantially reduced fee to:—
    1. individuals who can demonstrate a need for legal assistance but cannot obtain Legal Aid or otherwise access the legal system without incurring significant financial hardship; or
    2. individuals or organisations whose matter raises an issue of public interest which would not otherwise be pursued; or
    3. charities or other non-profit organisations which work on behalf of low income or disadvantaged members of the community or for the public good;
  2. Conducting law reform and policy work on issues affecting low income or disadvantaged members of the community, or on issues of public interest;
  3. Participating in the provision of free community legal education on issues affecting low income or disadvantaged members of the community or on issues of public interest; or
  4. Providing a lawyer on secondment at a community organisation (including a community legal organisation) or at a referral service provider such as a Public Interest Law Clearing House.
  The following is NOT regarded as pro bono work for the purposes of this statement:
  1. Giving legal assistance to any person for free or at a reduced fee without reference to whether he/she can afford to pay for that legal assistance or whether his/her case raises an issue of public interest.
  2. Free first consultations with clients who are otherwise billed at a firm’s normal rates;
  3. Legal assistance provided under a grant of legal assistance from Legal Aid;
  4. Contingency fee arrangements or other speculative work which is undertaken with a commercial expectation of a fee;
  5. The sponsorship of cultural and sporting events, work undertaken for business development and other marketing opportunities; or
  6. Time spent by lawyers sitting on the board of a community organisation (including a community legal organisation) or a charity.

Who does pro bono?

Law firms

Most law firms of all sizes and in all locations do pro bono work. However, the larger firms have more capacity and resources and are therefore more likely to participate in the structured schemes, although some small firms are also involved.

The APBC’s 2014-15 national survey of law firm pro bono shows that the main pro bono providers are large law firms. 95.3% of all lawyers are employed in firms with 50 or more lawyers that are signatories to the National Pro Bono Aspirational Target. Small firms that are signatories to the Aspirational Target account for roughly 5 per cent of lawyers.

Not only do the large law firms do the bulk of structured pro bono casework, largely through the clearing houses, they also have the capacity to second solicitors to the clearing houses and other community legal services for lengthy periods or in times of high demand.

In the smaller jurisdictions, there are less pro bono resources generally with fewer and smaller firms. However, involvement is often tailored to suit jurisdictional needs and resources. The clearing houses offer a range of opportunities that permit small firms as well as large to assist with targeted services.

Individual solicitors

Many solicitors in private and government practice volunteer at community legal services outside work hours, primarily giving advice, referral and minor assistance in 20-30 minute appointments.

Barristers

Barristers are active providers of pro bono services. Despite being sole practitioners without the resources and support of the large firms, many barristers give of their time to provide opinions to the clearing houses and other CLCs, volunteer at CLCs and advocate in courts and tribunals on behalf of pro bono clients. Generally, barristers require an instructing solicitor but will undertake direct briefs within the strict rules set by bar associations and practice directions of the courts.

Corporate and government pro bono

Lawyers in corporations and government do some pro bono work in a limited capacity. In Victoria, several corporations provide a team to staff the Homeless Persons’ Legal Service and in Queensland Crown Law provides volunteers for the Self Representation Service (SRS). The Australian Government Solicitor has an active pro bono program and regularly seconds solicitors to assist the clearing houses. However, the use of corporate and government legal units is largely undeveloped in Australia.

Universities and students

The contribution of students to the provision of pro bono is often ignored and undervalued. Some critics have expressed concern about ‘letting students loose’ on clients and providing sub-standard assistance. However, many community legal services rely heavily on students, and student programs are very structured and their work is stringently supervised.

Students are already an important part of the resources available (in terms of hours available) for pro bono services. A 2012 survey reported that 55 per cent of all individual volunteering hours came from students (NPBRC 2013d).[2]

Who is assisted?

The 2014 APBC survey of large law firms indicated that the majority (65 per cent) “of pro bono work is undertaken for not for profit (NFP) organisations who operate in areas such as health, social services, sports, arts and culture, the environment and animal welfare”. The Productivity Commission (PC) found in relation to the 2013 survey that “… these results are likely to be influenced by seven firms who reported that over 90 per cent of their pro bono work was undertaken for organisations (NPBRC 2013a).”[3]

In Queensland the position is starkly different. In 2013-14, the majority of LawRight’s referrals were for individuals – 74% compared to 35% nationally; with 26% for organisations – compared to 65% nationally.

LawRight has long emphasised the importance of helping the most marginalised and vulnerable Queenslanders, and the pro bono policies of some law firms take this approach. However, the higher number of individuals assisted could reflect the low level of full civil law assistance available in Queensland.

The National Association of Community Legal Centres has reported that nationally, clients of community legal centres (including the clearing houses) are:

  • 68% female
  • 62% have an annual income under $26,000
  • 44% receive a government pension, benefit or allowance
  • 62% live as a boarder, alone or in a shared house or hostel
  • 17% are in a sole parent family with dependent children
  • 16% have a disability
  • 6% are Aboriginal and/or Torres Strait Islander.

Only clients with limited means are assisted. While people in poverty are helped by legal aid, most community legal centres have more liberal means tests and help people who may not technically be in poverty but nonetheless have insufficient funds to afford a lawyer.

CLCs will only assist a client who has reasonable prospects of success in taking or defending a legal action.

What are the main legal areas assisted with?

The Productivity Commission found that nationally, across all services:

Of those areas of pro bono practice that principally affect individuals, housing and tenancy, human rights and discrimination matters rank highly, while family law, domestic violence and social security matters feature far less (reasons for this are discussed in section 23.4 of the PC’s report).[4]

Structured pro bono

The Australian Pro Bono Centre (APBC) reports from the 2013-14 national survey of large firms that the top five areas of law were: employment, governance, commercial agreements, DGR applications and intellectual property, while family law and criminal law were the most rejected.

In Queensland, the top areas of law assisted by LawRight in 2013-14 were:

‘Referrals to law firmsCredit and debt, government and administrative law, not-for-profit issues, employment and property disputes.

‘Homeless legal servicesDebt, tenancy and housing, criminal law, family law and fines.

Self representation services

  • Federal Courts – employment, bankruptcy, judicial review and appeals;
  • State Courts – commercial disputes, property disputes, consumer and debt, mortgage repossessions and wills and estates;
  • QCAT – residential tenancy, guardianship and administration, minor civil disputes, administrative review.

‘Mental health law servicesThe main areas of law assisted by LawRight through its Mental Health Law Practice were mental health law and credit and debt.

Community legal centres

In 2013-14, the top five areas of law assisted by Queensland’s community legal centres were: family law contact and residency, tenancy, family law property, family and domestic violence and credit and debt, accounting for 64% of all advice given. Other key areas of law included: divorce and separation, immigration law, consumer and complaints and government pensions and benefits.

How many are assisted?

Community legal centres provide the great bulk of advice services, coordinating free volunteer sessions outside work hours. Legal aid commissions provide the bulk of casework services, funding representation by the private profession or in-house advice, duty lawyer and representation services, primarily in criminal and family law.

Private firms and barristers through the clearing houses

In 2013-14, over 2,600 new matters were assisted through LawRight’s various programs, mostly full casework services, largely undertaken by legal staff of law firms and barristers:

  • 544 homeless clients
  • 245 clients with mental health issues
  • 60 refugees
  • 605 people representing themselves in Queensland courts and tribunals, and
  • 105 people and community groups referred for full pro bono representation.

Community legal centre volunteers

CLCs take two main forms – generalist centres, which assist in broad areas of law (usually providing advice and minor assistance through volunteer programs) and specialist centres, which specialise in an area of law such as refugee law, environmental law, welfare rights, and youth advocacy (providing advice and representation services). Some generalist centres operate specialist services.

In 2013-14, Queensland’s 33 CLCs provided 42,609 information services, assisted people with 60,096 advices and opened 8,991 new casework files. The total number of new clients assisted amounted to 46,337. Of the advices given, approximately 50% was in civil law, 45% family and 5% criminal law.

CLCs have traditionally relied on volunteer lawyers to provide the bulk of advice and assistance services. It is estimated that 1,215 volunteers provided 3,379 hours of free legal services per week in 2013-14 across Queensland’s 33 CLCs.

Information about Queensland’s CLCs can be accessed here.

How are pro bono services provided?

In dealing with law firm pro bono (as distinct from individual lawyer volunteering), the Productivity Commission (PC) noted two pathways through which the private profession delivers pro bono: case referral services coordinated by the clearing houses; and partnerships between law firms and community legal centres (CLCs).

This view does not fully appreciate the level of sophistication of the clinical programs coordinated by pro bono services, which is as important as referral and partnerships.

Referral services

Where generalist CLCs assist primarily with advice and minor assistance through advice sessions staffed by volunteer lawyers (usually outside work hours), the clearing houses refer clients for free full representation to law firms and barristers.

As the Productivity Commission points out: “Case referral is the traditional model for the provision (and coordination) of pro bono services, whereby parties seeking legal assistance approach an organisation who then refers them to a law firm that is prepared to provide services on a pro bono basis.”

Service providers choose the level of resources they are prepared to contribute, and even nominate particular areas of law that match the skills and interests of the staff they have available. Using a pool of providers spreads the demand for pro bono services and broadens the range of matters that pro bono providers can assist with.
…
This oversight and ‘triage’ role can also lead to the identification of trends at a higher level than individual law firms would be capable of (NPBRC 2013d).[5]

In making referrals, the clearing houses undertake detailed assessments of an application so that pro bono resources are applied to meritorious cases. However, some clearing houses also use their resources to explain to clients in detail why cases do not have reasonable prospects of success (called legal merit) and therefore cannot be referred.

Services provided through legal clinics

The PC lumped clinic services in with partnerships, but they need to be considered separately.

The clinic model involves partnerships between private firms and other service providers such as welfare and support agencies to address particular areas of legal need that other services do not reach. In the main these clinics are coordinated by the clearing houses, although some CLCs are now using this model to target specific client groups.

The first such service (PILCH Victoria’s Homeless Persons’ Legal Clinic) entails coordination of a service for homeless people provided by volunteers from member law firms in firm time seeing clients at places where homeless people congregate for welfare services such as food and accommodation.

LawRight operates four separate ‘clinical’ services based on this model:

  • Homeless Persons’ Legal Clinic
  • Refugee Civil Law Clinic
  • Self Representation Service
  • Mental Health Law Practice.

These clinics are characterised by their outreach focus. Some vulnerable people may not know they have a legal problem or do not approach a lawyer to help them if they do, so services that go to where people go for other types of assistance such as food and shelter are important for reaching the most vulnerable citizens.

Volunteers from firms and students attend a range of community welfare organisations and hospitals to provide extensive services to clients and patients.

The clinics are a useful platform for the profession to provide assistance to individuals because it enables law firms to determine the level of pro bono activity and to maintain their anonymity, while still using their skills and experience to benefit their communities. They benefit clients because they go to where the client is.

The PC commented:

While pro bono providers may find the limited time commitments of clinics (‘one afternoon a week’) appealing, there is also a risk that, if poorly targeted and not integrated with other services, the clinic may do little to address unmet need, especially for clients with complex needs that span several areas of law. This problem can be compounded if pro bono lawyers are not appropriately trained or experienced to deliver appropriate services for the target group (including communication and interview skills).[6]

In LawRight’s experience, these concerns are unfounded. LawRight, for example, uses its Legal Health Check to identify multiple legal needs, actively refers clients for non-legal assistance and conducts regular training for its volunteers. LawRight’s cross disciplinary Health Advocacy Legal Clinic assists in and out-patients of St Vincent’s Hospital, Brisbane, through services provided by senior law and social work students and medical clinicians under intense supervision. Much time is spent in developing these clinics, working closely with welfare agencies and other stakeholders to ensure that the clinics are appropriately located and sensitively conducted. Increasingly, the value of legal services integrated with other health and human services providers is being recognised.

Partnerships

Partnerships provide opportunities for the legal profession to work with community services in a whole range of different circumstances and ways. Partnerships can involve private firms, barristers, university staff and students, corporate and government legal units and welfare agencies in any combination.

From a systemic perspective, partnerships (and clinics) may represent an issue specific and relatively ‘patchwork’ approach to addressing broad legal need compared to a more centralised clearing house model. However, partnerships also offer the opportunity for experimentation, and a degree of competition, as particular causes or non-profit groups may seek to make themselves more attractive as pro bono partners to firms (Cummings and Sandefur 2013). Over time, such experimentation could lead to improvements in both the amount, and effectiveness, of pro bono delivered.[7]

The ways can include: litigation; research; co-counselling; projects; mentoring; supervision – any role that can bring stakeholders together for the delivery of services where they are most needed. Such partnerships have resulted in experiments such as the self-representation services, which have now been rolled out across Australia in the Federal Courts jurisdiction.

Partnerships are a key catalyst for pro bono work. Law firms need the community legal service as a conduit to the community and clients, while CLCs need access to the skills and resources of the private profession to extend their services and develop innovative ones.

The leaders of the big firm pro bono programs recently stated:

Scale efficiencies and funding uncertainties are already a challenge for the community legal sector. Government-funded civil law assistance for disadvantaged Australians is delivered in large part through 200 small and under-resourced independent CLCs which must rely heavily on volunteer lawyers while facing complex multiple and short-term funding arrangements. Locking in restored funding for only two years would seem to make funding more unpredictable, and further reduce the capacity of CLCs to assist low-income and disadvantaged clients.
Pro bono legal assistance cannot be a substitute for government-funded Legal Assistance Services in Australia. This is much more than a statement of fundamental principle. Not just philosophically, but also as a matter of practical reality, pro bono assistance by private lawyers could not possibly fill the gap which exists. Australia has a pro bono culture stronger than almost every other country, and yet pro bono work at large firms might amount to less than 3% of the capacity of Legal Assistance Services to assist low-income and disadvantaged clients. We have little or no pro bono capacity to assist with family law, criminal law, immigration or with clients in regional Australia. We cannot come close to meeting the level of unmet legal need which will be created by a reduction of CLC capacity.
We cannot provide effective pro bono assistance without an effective Legal Assistance Sector. Virtually none of our pro bono work for low-income and disadvantaged people could be performed without partnerships and relationships with Legal Assistance Services, including with CLCs. The individual clients we assist on a pro bono basis usually are referred to us by a Legal Assistance Service or attend one of the outreach clinics we conduct with a Legal Assistance Service. The delivery of many pro bono services by the private legal profession requires a partnership or collaboration with effectively-functioning Legal Assistance Services (letter to Australian Attorneys General, 21 May 2015).

Research

CLCs are in a privileged position in the legal system as they can bridge the divide between theory and practice – not university researchers with limited access to casework or private practitioners whose clients rarely pay for broad policy research. CLCs are also independent of government and work closely with their communities in advocating legal change that benefits the community as a whole, not just their immediate clients.

What is the pro bono contribution?

The Australian Pro Bono Centre (APBC) was established to promote and develop pro bono work and culture within the legal profession. One of the main tools it has used to facilitate pro bono work is the Aspirational Target (AT). Law firms are encouraged to sign up to the AT and seek to achieve 35 hours of pro bono work per year per lawyer in the firm. The APBC conducts an annual survey of law firms to see if their target has been reached.

The most recent national survey was conducted for 2014-15. It reported in October 2015:

  • There are currently 131 law firm signatories to the AT, including 19 of the largest law firms in Australia.
  • Of the 101 signatories that reported on their performance against the target, there were 11,235.4 FTE lawyers who worked 33.2 hours on average, performing 372,601.8 hours annually on pro bono legal work.
  • The largest law firms which responded – 9 Group A firms (with 450 or more FTE lawyers) collectively performed 227,148.3 hours of pro bono legal work; 10 Group B firms (with 201-449 FTE lawyers) collectively performed 133,835 hours; and 18 Group C law firms (with 50-200 lawyers) performed 41,678 hours.
  • Large firm signatories provided on average 33.5 pro bono hours per lawyer.
  • The average participation rate for all lawyers is 64.4%, meaning that 64.4% of lawyers at signatory firms performed at least one hour of pro bono work in 2014-15.
  • This can be compared to the participation rate of 50% in 2014, which was a reduction on previous years – 53% in 2012 and 59% in 2010.
  • The average participation rate for large firms was 54.5%, a slight increase from 53.2% in 2013-14.
  • in 2013-14, 18 out of 41 respondents provided secondments.
  • The greatest areas of law which were accepted for pro bono assistance were: governance; employment law; commercial agreements; DGR applications; and intellectual property.
  • The areas which were most rejected were: family law; criminal law; wills/probate/estate; DGR applications; and immigration law.
  • 35% individual clients and 65% organisation clients were assisted.
  • The primary sources of referrals were from direct client requests, Legal Aid agencies, internal projects and from other organisations. Referral schemes like LawRight were the next source of referrals and CLCs were the third source.

This data relates only to the work of the big firms. While it is not reliable to extrapolate these figures to the profession as a whole, it is still clearly an underestimation of the amount of pro bono work done across the profession, including the work of barristers and many small firms for existing clients who have run out of money or who approach them directly.

The PC concluded:

Even based on the survey of large firms, it appears that pro bono only adds a small percentage to other sources of free legal services for the disadvantaged:
…it appears that [large firms] add around 7% to 8% to the capacity of free legal services through their total pro bono legal work. Given that less than 40% of this reported work was done for individuals (the remainder being for not for profit organisations), their pro bono work for individuals makes up less than 3% of the capacity of legal assistance services. The percentage from that work actually performed for marginalised and disadvantaged clients is expected to be even lower. (Justice Connect, sub. 104, p. 6)
Expressed as a FTE number of lawyers, the work of lawyers surveyed at large firms equates to 191 lawyers, plus a further 134 lawyers volunteering in CLCs — some 325 lawyers in total. However, this equates to just over 0.5 per cent of the total number of practising lawyers. As Hillard et al. (2012) observed:
More than 300 extra free lawyers is impressive, but to put that in context, there are about 60,000 lawyers in Australia. About 2000 lawyers work in community legal centres, legal aid commissions and Indigenous legal services (some part time).
In addition, private lawyers conduct more than two million hours of legal aid funded work, equivalent to an extra 1190 full time legal aid lawyers a year.[8]

However, to put this into a Queensland context, the pro bono assistance provided to disadvantaged individuals is indeed impressive.

LawRight does not keep data on the hours worked by its members, though it estimates a contribution of more than 23,000 hours per year or an extra 13 full-time lawyers working on pro bono matters. In Queensland, this means an extra 13 full-time lawyers every year helping individual clients. This is a conservative estimate and only includes the pro bono contribution performed through LawRight, resulting in full service assistance in over 2,600 new matters in 2013-14.

Legal Aid Queensland’s (LAQ) 2013-14 civil law expenditure for private practitioner grants was $3.7m. However, this funding was used for specified matters that are defined as civil law by LAQ, such as child protection, domestic violence, dangerous prisoners, criminal confiscations and inquests. LAQ makes no external grants of aid for general civil law such as debt, employment law, discrimination or social security law. This work is down in-house by LAQ, which expended $1.26M in 2013-14, assisting 328 clients in 342 cases.

While some specialist CLCs undertake representation services for clients such as refugees, welfare recipients, older people and youth etc, full representation for general civil law matters is limited.

Accordingly, LawRight is Queensland’s largest single free civil law service provider. While its work may be comparatively small, it coordinates full casework services in civil law that no other service routinely provides.

How is pro bono coordination funded?

Pro bono services are not a substitute for government funded legal aid. Just as government funding is not bottomless and must balance competing demands, pro bono resources have limits.

Pro bono legal services have been organised and structured to fill the gap primarily in the area of civil law where government funding for crime and family law has been, since the early 1990s, the priority of legal aid funding.

However, government funding of CLCs and its contribution to the coordination of structured pro bono services ensures civil law problems are in part addressed and services are targeted and effective.

Greater funding is needed for all areas of law as legal needs increase with population growth and Australian communities become more complex. However, as the poor cousin of criminal law and family law, the need for increased civil law funding is vital.

Clearing house funding

While government funding for the clearing houses means that pro bono is not cost neutral (to the taxpayer), it is nonetheless a recognised part of the infrastructure of the civil justice system. As mentioned above, for a modest recurrent contribution from consolidated revenue in 2013-14 of $255,000 (along with other funding), LawRight attracted more than $7m in pro bono value from the legal work provided by its members. The largest contributors to pro bono are the largest law firms, most of which have national reach. These firms specialise in commercial and corporate law and do not normally offer services in family law or criminal law. The clearing houses therefore do not, as a matter of course, refer family and criminal matters to its members.

The PC reported:

Further, even though pro bono is a volunteer based service its provision is not ‘free’ and incurs a range of direct and indirect costs. The direct costs to government include the funding allocated to referral services. For example, in 2012 13, the Queensland Public Interest Law Clearing House (QPILCH) received nearly $1 million of funding from a range of sources, including the Australian and state governments, and recurrent and non recurrent funding from the Queensland Legal Practitioner Interest on Trust Accounts Fund (QPILCH 2013a). Similarly, the Public Interest Law Clearing House in Victoria (which has now merged into Justice Connect) received just under $1 million in Commonwealth and state funding in 2012 13 (PILCH 2013a, 2013b).
In isolation, these may not appear to be large sums. But the important issue is whether these funds are devoted to their best possible use in improving access to justice for disadvantaged people. For example, could the funds better be devoted to CLCs or legal aid commissions directly delivering services, or are there genuine benefits from leveraging these funds into pro bono service provision? Such questions accentuate the need for evaluation of pro bono programs (section 23.6).[9]

Contrary to the implication raised by the PC in this quote, while government funding is essential to proper coordination of the pro bono commitment of the profession, most funding for the coordination of pro bono is derived from non-government sources.

In 2013-14, with a special one-off grant from the Commonwealth to open a Townsville office and four-year recurrent funding for a Federal Court Self Representation Service, LawRight received 22% of its funding from Commonwealth consolidated revenue. The Queensland Government contributed 0% from consolidated revenue and 49% from LPITAF (the interest on solicitors’ trust accounts – see endnote i). 29% was obtained from other sources such as project funding, philanthropic bodies, members’ contributions, university clinics and fundraising. Accordingly, less than a quarter of LawRight’s funding is taxpayer funded.

Law firms pay membership fees for the privilege of doing pro bono. This is an important cash contribution which while not at the level of government funding, is a vital component of the clearing house budgets. Such funding, free from government prescription, has permitted the clearing houses to experiment resulting in new and innovative services.

The PC’s assessment does not appreciate that the clearing houses generally facilitate the cases that are often too complicated and difficult for generalist CLCs, which do the bulk of advice and minor assistance services. Law firms would also be unlikely to take these cases on a paying basis because they would be uneconomic to do, or even if a grant of legal aid was available. The PILCHs take on these difficult civil cases for initial assessment and referral to the private profession in the interests of justice. This can involve full representation or assistance through the clinics from skilled volunteers. Pro bono work undertaken by the private profession represents a significant return on the investment of public funds to coordinate it.

In addition, only community organisations with Deductible Gift Recipient status, such as most CLCs (including the clearing houses) can attract philanthropic grants, adding considerably to their overall funding levels and enabling them to extend their reach far wider than if relying on restricted government funding alone.

Community legal centre funding

In 2012-13, CLCs in Queensland receive 38% of their funding from Commonwealth consolidated revenue, 30% from Queensland Government consolidated revenue, 19% from LPITAF and 13% from other sources such as project funding and philanthropic bodies.

Evaluation

The PC recommended:

RECOMMENDATION 23.4
The provision of public funding (including from the Australian, State and Territory Governments, and other sources such as Public Purpose Funds) to pro bono service providers should be contingent upon robust evaluation of the services provided. This evaluation should be conducted as part of the periodic review of broader legal assistance outcomes and resourcing.[10]

The clearing houses have long acknowledged the need to evaluate their services. LawRight for example has conducted external evaluations of its pilot Federal Court Self Representation Service, its Homeless Persons’ Legal Clinic, its new Federal Court Self Representation Service and its Legal Health Check. More evaluation work would be done if funding was available. However, LawRight has also been mindful of using its funding for services, rather than for evaluation, although it recognises the need to ensure that services best meet the needs of clients and are cost effective.

The PC added:

Both pro bono and government funded legal assistance providers share a common aim — to provide a good outcome for (generally) disadvantaged clients. Despite these good intentions, there appears to be little analysis of programs to highlight the best way to use limited pro bono resources for the benefit of those in need:
No matter what drives the provision of pro bono legal assistance, having more information about the impact of pro bono projects and programs would help to inform decisions about where pro bono resources should be allocated. However there is currently little evaluation of the impact of pro bono programs/projects on addressing unmet legal need. (NPBRC 2013d, p. 36)
As noted above, both CLCs and clearing houses seek to address the legal needs of the disadvantaged and attract government funding to do so. It is therefore important to understand the relative costs (and, where possible, benefits) of these and other approaches to addressing legal need. At an extreme, this could mean that the important social aims of pro bono work could be achieved in other ways:
If expanding sources of legal aid is the goal, researchers should focus on gathering evidence about whether pro bono is, in fact, an effective way to achieve this. … there is little evidence on the questions of whether pro bono services are effective, whether lawyer charity is a cheaper way to provide them (because it does cost money to do pro bono), or whether it would in fact be more efficient and effective if firms and attorneys stopped giving their time and instead donated money to the organizations already specializing in these clients and causes. (Cummings and Sandefur 2013, p. 91)[11]

This view is misguided. First, evaluations that have occurred have demonstrated that pro bono is cost-effective. Second, only the biggest law firms would have the profitability to enable them to make cash donations of a size that would be sufficient and sustainable. Most firms are unlikely to do so. What they have in abundance are skilled, well-resourced and confident lawyers and pro bono schemes tap into this valuable and needed resource. Funding more lawyers in legal aid commissions and CLCs, while necessary to meet growing demand, would not only lose this potential extra resource and representation in difficult cases, but also the cross fertilisation of skills, knowledge and experience between lawyers in private practice and the community sector and between corporate and community law, and the enthusiasm of many lawyers motivated by their sense of professional responsibility.

Pro bono benefits and incentives

The importance of a pro bono coordination and organisation

The community benefits derived from the clearing house model are:

  • assistance is directed to those most in need and where they need to access it;
  • a more even spread of pro bono work between firms and barristers;
  • people seeking assistance can call one number instead of having to ring around;
  • a more structured process resulting in a better utilisation of resources;
  • requests for assistance are monitored and areas of legal need are identified; and
  • there is a forum for members of the legal profession to raise and discuss issues of public interest.

The clearing houses assist member firms and barristers in the provision of pro bono assistance by:

  • providing a centralised point of contact for applicants seeking legal assistance;
  • promoting collaboration between the profession and other stakeholders;
  • undertaking initial assessment of applications for assistance including:
    • collation of relevant information and documentation to make an assessment;
    • assessment of the applicant’s entitlement to pro bono legal assistance (that is, whether the applicant meets a means test and that the referral would make the best use of scarce pro bono resources);
    • assessment of the matter for merit;
  • referring only meritorious matters and where the applicant cannot afford legal services;
  • referring matters which are appropriate to the firm’s or barrister’s experience and expertise;
  • spreading workload between member firms and barristers;

developing services that fit with firms’ interests and capacities;

  • preparation of a brief, often including initial case assessment, for referral; and
  • providing ongoing support, if needed, to firms and barristers who accept referrals.

Law firms and barristers are under no obligation to accept a matter for referral. However, when a firm accepts a referral, the applicant becomes a client of the firm.

In fulfilling the clearing house and coordination role, the clearing houses provide training for the legal profession, law students, CLC lawyers, volunteer lawyers, community organisations and the public. The training acquaints practitioners and caseworkers with the legal issues of people who need free services, pro bono issues, working in partnership and emerging issues in order to maximise the limited available resources. The clearing houses are better able to target the pro bono contribution of the profession to help people most in need.

It is through training that the clearing houses: • enhance coordination and delivery of community legal services by ensuring consistent knowledge development in areas of legal need relevant to pro bono and their areas of interest; • improve the quality of and access to community legal education; • improve services in the community by enhancing governance of not-for-profit organisations which support the community; • increase availability of legal information in an accessible and practical format; • coordinate and publicise pro bono legal work and promote a pro bono culture within the profession; • develop relationships and partnerships between the legal profession and other sectors, such as caseworkers in welfare agencies to deliver better legal services; • equip lawyers of the future with an understanding of pro bono and poverty law issues; and • promote understanding within the profession of pro bono needs and issues.

This approach accords with the collaborative planning principles agreed to by all Queensland legal assistance providers.

Aspirational targets

There are two aspects to the Aspirational Target (AT) established by the Australian Pro Bono Centre (APBC).

First, by signing up to the AT, law firms indicate their commitment to pro bono and to regularising and increasing the amount of pro bono conducted by the firm.

Second, governments can encourage pro bono by using a tendering policy that gives credit and priority to firms that sign up to the AT. The Australian and Victorian governments have implemented such a policy.

The Australian Government only requires tendering law firms to be a signatory to the AT, currently 35 hours per lawyer per year. Firms do not have to actually meet the target.

The Victorian scheme sets the target on the percentage of hours billed in the government contract (requiring at least 5 and up to 15%). To avoid unfair application of the rules on smaller and regional firms, the Victorian scheme only applies to government departments, permitting statutory agencies to opt in, and the Regional Sourcing Policy (2002) allows departments to engage regional and rural firms outside the scheme where a regional or rural matter is expected to cost less than $25,000. There is also an exemption in Victoria to use non panel firms where firms are conflicted or do not possess the appropriate expertise.

In Victoria, a firm’s commitment to its target is enforceable:

… and in some circumstances firms can make a payment (to a pro bono service provider or to the Victorian Government) in lieu of the obligation. … Allowing flexibility in how firms meet the target (through lawyers’ time, in kind donations or payments) may improve the efficiency of pro bono delivery as firms are able to determine the methods that suit them best.[12]

The PC found that:

The Aspirational Target is generally regarded as being effective in increasing the amount of pro bono services provided. Results from the NPBRC’s survey of firms with 50 or more lawyers show that Aspirational Target signatories provided higher average hours, and had higher participation rates (numbers of lawyers within the firm who provided pro bono work) (table 23.2).
Most larger firms (over 70 per cent of respondents) also indicated that the pro bono conditions in the Australian and Victorian Government tender arrangements were ‘useful in encouraging their firm to undertake pro bono legal work’ (NPBRC 2013a, p. 6).[13]

According to the PC, the extent of administrative compliance is an issue for some firms and may not be a motivating factor in smaller jurisdictions to participate in pro bono work, but appears beneficial for large firms:

… the process requires a substantial amount of administrative time … [and] appears to be designed to assist firms that have dedicated pro bono teams. … [Victorian] reporting requirements are extremely onerous – more so than [the] Commonwealth. (NPBRC 2013a, pp. 51–2)[14]

The PC recommended:

RECOMMENDATION 23.3 The Queensland, New South Wales and Western Australian Governments should consider adopting the National Pro Bono Aspirational Target, tied to their legal panel arrangements.

  • This target should remain aspirational, and be expressed in hours per lawyer. Reporting required for pro bono targets should be clear and simple.
  • At the same time, appropriate arrangements should be put in place to ensure that firms located outside capital cities are not disadvantaged and are encouraged to provide pro bono services where practical for their local circumstances.[15]

Several other inquiries have recommended that the Queensland Government adopt the AT in its tendering process, but it was not adopted in recent changes to the government tendering scheme.

Government policy

In addition to adoption of the AT for government tendering purposes, as noted by the PC:

Even if it is ultimately determined that targets may not be appropriate for all jurisdictions, as noted by the NPBRC (sub. DR199), Attorneys General in all jurisdictions should encourage pro bono work by publicising its importance, and raising awareness of the resources available to practitioners wishing to undertake pro bono (including referral schemes, CLCs and the NPBRC itself).[16]

Attorneys-General in Queensland have been very supportive of pro bono and have shown their commitment through funding of LawRight, the primary coordinator of pro bono, and through support of the profession’s contribution. However, Queensland has not introduced incentives to Queensland law firms to encourage more pro bono activity.

Professional requirements

An incentive to pro bono is the availability of volunteer practising certificates. The Queensland Law Society was the first to implement a free scheme that enables retired and career break lawyers to volunteer at CLCs. This harnesses enormous experience and skills for the often understaffed and under-resourced CLCs.

The PC noted:

In examining these schemes, the APBC remarked that the Queensland system was ‘the one that best facilitates [pro bono] … and is the most administratively straightforward’ (NPBRC 2013g).

There is evidence that where volunteer certificates are available, individuals are utilising them. The NPBRC submitted (sub. DR199, p. 11) that in Victoria, volunteer certificates issued went from 80 in 2006-07 to 277 in 2012-13. Similarly, in Queensland the number of volunteer certificates went from 17 in 2007-08 to 82 in 2012-13.

… Importantly, such free certificates would also provide a quality control mechanism, for example, by requiring continuing professional development (CPD) and, in some cases, supervision requirements — an approach supported by the NPBRC (sub. DR199, p. 12). Including CPD requirements addresses the concerns of some participants, such as the Law Society of New South Wales (trans., p. 131) that retired practitioners may be ‘out of touch’ with current laws and may not provide the best service to the disadvantaged. Notably, CPD requirements are not necessarily expensive to meet, and can be done in a number of ways:
…there is quite a lot of free CPD available. There’s lots of ways that you can get your CPD points without having to spend that much money. You can write an article for a magazine. Even that will give you CPD points. (NPBRC, trans., p. 156)[17]

Some states in the United States recognise pro bono work itself for the purposes of CPD.

In house lawyers hold practising certificates and insurance but usually for the purpose only of their work for their corporate employer. The APBC has organised professional indemnity insurance for in-house lawyers to access to facilitate pro bono work. The PC noted:

In relation to fidelity and indemnity insurance, the Commission notes that CLCs’ fidelity insurance generally covers volunteers, and the professional indemnity insurance cover provided by the NPBRC appears to be appropriate (though the Western Australian government would need to remove barriers to its operation there).[18]

Disbursement funds

Disbursements are costs incurred in the course of a legal action other than the fee for the lawyer themselves. There are two categories of disbursements: internal disbursements (non legal costs incurred within a law firm, such as photocopying) and external disbursements (incurred where the law firm engages third parties such as experts or barristers).

For pro bono matters, of the firms that took part in the NPBRC’s survey of larger firms, most (83 per cent) met the cost of all internal disbursement themselves, with only 6 per cent applying to disbursement assistance schemes to cover internal costs.
External disbursements were less likely to be covered by the firm, and there was a higher rate (31 per cent) of applying to disbursement assistance schemes (NPBRC 2013a).
Of the barriers to pro bono represented by disbursements, expert witnesses (both medical and non medical), and filing fees were regarded by the surveyed firms as the greatest, while internal disbursements and government fees were relatively minor (NPBRC 2013a). However, as noted above (section 23.3), disbursements did not feature as an important barrier to the provision of pro bono.[19]

There are several government assistance schemes that providers can apply to offset the cost of disbursements in pro bono actions:

There are currently nine different disbursement assistance schemes … at least one in each state and territory with the exception of the ACT, and a separate scheme for Commonwealth law matters. … only the NSW and Commonwealth disbursement assistance schemes … have been established specifically to fund disbursements in pro bono matters … (NPBRC, sub. 73, p. 28)
… the responses to the 2010 Survey indicated that many respondents were dissatisfied with the operation of some of these schemes.[20]

In Queensland, the Civil Law Legal Aid Scheme (CLLAS) is funded by the Public Trustee of Queensland and administered by LAQ. It provides a small grant to law firms (disbursements and a small amount towards fees) in civil law matters, usually of a speculative kind, such as in personal injury cases. CLLAS must be refunded if the case is successful and a costs award made.

LawRight also has a small disbursement fund which it uses to provide disbursements to firms in matters referred by LawRight and for CLCs which cannot otherwise raise the funds. This fund has funded transcript and filing fees, travel costs and the costs of medical reports.

Student involvement

The PC noted the importance of instilling a sense of pro bono and social justice in the next generation of lawyers:

Law graduates who are actively involved in pro bono work at university are more likely to enter legal practice with a personal commitment to undertake pro bono work as part of their professional obligations as a solicitor or barrister. Although these cultural practices are difficult to quantify in economic terms, it is clearly a phenomenon which, in the Centre’s view, is likely to generate costs savings across the board as it leads to greater numbers of legal professionals actively engaged in pro bono work. (University of Queensland Pro Bono Centre, sub. 74, p. 5)[21]

Most CLCs and clearing houses offer opportunities for students to understand the value of pro bono work and develop skills while at the same time making a real contribution to people in need of assistance.

LawRight currently offers six student clinics and volunteering opportunities for approximately 10 students per day in Brisbane and three in Townsville. More clinics are planned for the regions. All students are subject to clear and strict supervision.

Griffith University, The University of Queensland, Bond University, Queensland University of Technology and James Cook University have active clinical and volunteer programs.

Barriers to pro bono

LawRight’s experience is that its members provide sensitive, confident and expert assistance to clients. Nonetheless, barriers to pro bono can arise, including a non-supportive culture and a lack of professional interest, conflicts of interest and restricted capacity and expertise.

Culture

Law firms

The large law firms are profitable businesses that through government deregulation have moved away from the service model to embrace a business one. However, as a profession with a monopoly and therefore a privileged market position, most lawyers recognise an obligation to give back to their communities.

The APBC’s 2014 national survey of law firms’ pro bono identified that the crucial factor to the success and greatest threat to law firms’ ongoing support for pro bono work is “management and partner support”.

It is the firm’s partners that set the tone and culture of the firm. LawRight’s experience is that where partners participate and/or provide encouragement and support for other lawyers’ participation, the firm’s culture for pro bono will be strong.

The main barrier to law firm pro bono is where law firms are not committed to the programs they have established.

The PC noted:

Lawyers are more likely to put their hand up to do pro bono work if their supervising partner has been involved in pro bono work themselves. (Large law firm pro bono coordinator) (NPBRC 2013d, p. 63)
Some secondees have been told by partners in firms that are not supportive of pro bono that doing a secondment will be a black mark in their career. We recently lost a secondee this way. (A pro bono clearing house manager) (NPBRC 2013d, p. 29)[22]

To increase pro bono in Queensland, LawRight regularly meets with its members to make clear our objectives and community needs, provides training to its members’ staff, and seeks feedback from them about LawRight’s services. LawRight is managed by a committee that represents its members and is responsive to the needs of its members, creating services that accommodate the varied needs of its member base. LawRight also encourages law firms to become members, to structure their pro bono commitment and to increase pro bono in their communities, and promotes the benefits from involvement with LawRight from merit assessment to staff satisfaction. However, while important, it is no substitute for a clear and unambiguous commitment from the leaders of a firm that their interests and the interests of their staff to participate in pro bono is valued and supported.

Corporations and government

The PC noted that nearly one quarter of the roughly 60,000 practising solicitors in Australia work within corporations or government. It suggested that ‘smaller jurisdictions may be able to increase pro bono service provision by drawing on these (relatively) untapped resources.’

While large corporations must maximise profits for their shareholders, more and more corporations are adopting corporate social responsibility policies. However, they have been slower to embrace pro bono initiatives within their legal units, unlike the USA where corporate pro bono is strong. Lack of effective avenues to provide assistance and insurance issues have been the main barriers.

Governments have been quick to encourage pro bono in the private profession, seeing it as a saving to the taxpayer, but have been reluctant to encourage departmental legal units to become involved in structured programs, though the Australia Government Solicitor’s office has had an active ‘pro bono’ program for many years and Queensland’s Crown Solicitor’s office participates in LawRight’s Self Representation Service.

The PC reported that government lawyers are ‘less engaged with their professional bodies … and therefore less immersed in the culture of pro bono as a professional obligation’ (NPBRC 2013d, p. 92).[23] The Queensland Government has previously taken the view that it is a matter for each departmental legal unit to decide if it wishes to participate.

LawRight has made a number of attempts to encourage corporate and government involvement, so far with limited success.

Conflicts

A conflict of interest arises where a law firm acts for both parties to a dispute or transaction. Lawyers risk breaching their duties of confidentiality and disclosure if they do so. Law firms and barristers therefore cannot accept a referral of a client when the lawyer is also acting for the other party in the same matter. This may extend to where the lawyer has acted for the other party in another matter.

Many law firms also have a policy to avoid ‘commercial conflicts’, for example, if a firm acts for a bank, it might not accept a referral involving another bank for fear it may disrupt their long-term commercial interests.

This may also be the case when a firm is asked to assist in a matter involving government. Even if the firm has never acted for the government department in question, it might feel that acting against it might be acting against its interests in obtaining retainers from existing departmental clients and other government departments in future.

Some firms have sophisticated conflict policies and systems to avoid conflicts. For example, volunteers from firms that participate in LawRight’s Self Representation Service are provided with the names of the parties two days in advance of the appointment so that the firm can do a conflict check.

Alternatively, a firm might seek the consent of the parties to act, although in LawRight’s experience at least, this is rare.

Section 11.3 of the Commonwealth Legal Services Direction 2005 seeks to increase pro bono work by not penalising firms that act pro bono for clients against the Australian Government:

The Chief Executive of an FMA [Financial Management and Accountability Act] agency is responsible for ensuring that the agency, when selecting and retaining legal services providers, does not adversely discriminate against legal services providers that have acted, or may act, pro bono for clients in legal proceedings against the Commonwealth or its agencies.

The Victorian Government has attempted to overcome fears by firms that they will be penalised for acting against the government, by creating a pro bono coordinator in the Department of Justice “who will relay the concern in a generalised form (so as not to unnecessarily expose the potential pro bono client) to the relevant agency or department. The relevant agency then determines whether any conflict would prevent pro bono service. The coordination role performed by the Department of Justice provides important ‘distance’ for the firms, allows the nature of the concern to be relayed to the relevant agency in an anonymous form (preventing any risk of the agency ‘retaliating’ against the potential pro bono client), and fit naturally with the centralised tender arrangements for government legal services.”[24]

The PC recommended:

RECOMMENDATION 23.2
The Australian Government, and the remaining State and Territory Governments, should adopt the Victorian Government’s use of a pro bono ‘coordinator’ to approve firms undertaking pro bono action. The coordinator should be situated within the department with primary responsibility for legal policy.
Where they have not already, State and Territory Governments should also adopt provisions in their legal tendering or panel arrangements which state that firms undertaking pro bono against government will not be discriminated against in allocating government legal work. Such provisions should be based on s. 11.3 of the Commonwealth Legal Services Direction 2005.[25]

Attempts in Queensland to establish a ‘coordinator’ in the Department of Justice has not yet been realised.

Capacity and expertise

An important aspect of a law firm’s pro bono culture is that systems are in place to give effect to it and are properly organised and integrated into a firm’s operations and practices. Without appropriate systems, the best commitment will be unrealised. With the moral support and leadership of its partners and with appropriate systems, a firm can make a positive and practical contribution no matter its size. With partner support, the firm’s pro bono program is likely to be satisfying for staff and effective for clients. Good systems can also mean that a firm can properly and rightfully promote its pro bono work as part of its culture and character.

Billable hours

Billable hours are the work that lawyers can justifiably charge against a client’s account. Most law firms require their legal employees to perform a certain amount of billable hours per day. However, not all firms count their lawyers’ pro bono work as billable time, so if staff do not reach their billable hours because of time spent on pro bono work, there can be consequences such as loss of a bonus. If pro bono work is undertaken in their own time to ensure they make up the billable hours, it is not the commitment of the firm, but rather the voluntary contribution of the individual lawyer.

The PC noted:

Indeed this view appears to be validated by results from the NPBRC’s survey of larger firms. These results show that just over half of firms treat pro bono hours as billable, but this figure is down from almost two thirds in 2010 (NPBRC 2013a). Further, the proportion of firms that apply a lower value to pro bono for financial targets (and implicitly, a lower priority) has risen from 5 per cent in 2010 to 11 per cent in 2012. The proportion of firms that treat pro bono hours as non billable, but recorded as a special category with lower value for financial targets, also increased from 18 to 20 per cent over the same period.[26]

If law firms are fully committed to pro bono participation, it works best if the work is included in staff members’ billable hours, with appropriate limits (such as the Aspirational Target’s 35 hours per year), to ensure that it is manageable and within budget.

While firms indicated in the APBC national survey that capacity was the top challenge for pro bono, LawRight is usually able to refer matters without difficulty.

Expertise and training

The PC found that:

Referral centres and CLCs must also use money and resources (that could be devoted to alternative service delivery methods) in order to facilitate pro bono. As the Public Interest Advocacy Centre noted, the mismatch between the expertise of the volunteer lawyers and the areas of pro bono law (and skills needed to effectively interact with pro bono clients) means that the CLCs themselves must expend staffing resources to coordinate, supervise and assist the pro bono lawyers:
… all of the pro bono lawyers need training, and HPLS [Homeless Persons’ Legal Service] staff supervise the information and advice given to every client who attends every HPLS clinic in a timely manner. During an average week, this involves the supervision of at least 20 solicitors providing advice to at least 35 clients face to face at an HPLS clinic, in addition to 200 ongoing casework files.
This example illustrates that pro bono does not equate to free. There are substantial costs associated with training and supervising lawyers to do pro bono work, and this coordination role needs to be properly funded so the benefits of pro bono work can be fully realised. (sub. 45, p. 5)[27]

LawRight does not see this issue as a concern. Continuing Legal Education (CLE) is necessary for all lawyers, whether volunteers or paid staff. While the cost of preparing and delivering CLE is usually borne by the service, it is not a great expense because firms host and participate in training and it contributes to the training of staff. Training sessions also enable interactions between private and CLC lawyers. It is a minor expense that does not offset the enormous benefits derived from the voluntary casework provided.

The clearing houses focus on civil law because the big firms have the pro bono resources and the civil law expertise. Even though criminal and family law are well funded through the legal aid commissions, they are nonetheless areas of unmet need. While it is important that new ways are found to address these needs (and people are agitating for a pro bono contribution to family law), it is best that the resources that are currently available are utilised where they are best suited. It would be unwise for the clearing houses to stray away from their current remit of targeting clients who are vulnerable and disadvantaged and have very limited access to civil law assistance, such as the homeless.

In relation to the barriers to pro bono, the PC concluded that:

Given these limitations, no matter how well organised or resourced, pro bono service provision is unlikely to become the dominant means of assisting disadvantaged people with legal needs.[28]

While it is true the pro bono contribution is relatively small, it should not be undervalued because it fills a definable gap, usually helps with hard cases where clients have no other avenue for assistance, and is generally the most targeted and far reaching of free legal services.

Coordination

Coordination is a key issue in delivering free legal services. Pro bono coordination occurs through internal and external mechanisms:

  • Law firm policies
  • The Australian Pro Bono Centre (APBC)
  • The clearing houses
  • The National Legal Assistance Forum (NLAF) and respective state and regional forums.

Internal policies

Most major law firms have clearly defined pro bono policies and committees that coordinate the firm’s internal pro bono programs. They also have dedicated pro bono staff, either full or part-time. Such staff members greatly contribute to the efficient and effective operation of the firms’ pro bono culture and operations and add value to the firm’s pro bono commitment.

Australian Pro Bono Centre (formerly the National Pro Bono Resource centre)

The PC commented:

The work and publications of the NPBRC also provide a valuable basis for providers to draw on when examining best practice approaches and benchmarks. And as large law firms gain more experience in the pro bono sector, they too are seeking out better methods of coordination and ways to improve the availability of pro bono services (box 23.3).[29]

The work of the APBC is valuable to both firms and the clearing houses.

Clearing houses

The PC argued that significant efforts to coordinate pro bono provision are exemplified by ‘the consolidation of some clearing houses (as is the case with Justice Connect in New South Wales and Victoria)’, which ‘shows that those within the sector are examining opportunities to improve service delivery.’

The clearing houses themselves are important coordination mechanisms and in LawRight’s view, their amalgamation will not necessarily have the effect of improving service delivery. While it would be of benefit to coordinating the work of large national firms it could have the effect of reducing the contribution of the smaller firms in the smaller states and territories and losing the community focus of the clearing houses in the smaller states.

The national trend to concentrate community services in the large national welfare agencies is already showing some strain and steps to follow suit where the goodwill and generosity of firms of all sizes and barristers is involved, should be taken carefully. National coordination is vital, but integration on a national scale is yet to show on the ground benefits to local communities. In any event, the clearing houses meet annually to coordinate their activities.

Queensland Legal Assistance Forum (QLAF)

The PC did not comment on the significant role of the Legal Assistance Forums (LAFs) in each state and territory that have been the most significant factor in improving sector-wide coordination.

QLAF is comprised of representatives from LAQ, CLCs, LawRight, Aboriginal and Torres Strait Islanders Legal Service, Family Violence Legal Advice Services, government, Queensland Council of Social Services, the Queensland Law Society and the Bar Association of Queensland.

This important mechanism is responsible for ensuring all parts of the infrastructure of justice (including the pro bono contribution) are working together, with limited resources, to develop and target services for disadvantaged Queenslanders.

It works with regional legal assistance forums to understand legal needs around the state and has working groups that consider issues such as best practice in service delivery to ensure that services are working and delivering expected results.

References

  1. ‘Public purpose’ funds are funds that are derived from the interest on solicitors’ trust accounts, for legal aid commissions (LAC), CLCs and pro bono coordination. In some states, these funds are independently administered by state-based law foundations. In Queensland, the fund is called the Legal Practitioner’s Interest on Trust Accounts Fund (LPITAF) and is administered by the Queensland Attorney-General.
  2. Productivity Commission, Inquiry into Access to Justice Arrangements, Report No. 72, 5 September 2014, p 840.
  3. Productivity Commission, Inquiry into Access to Justice Arrangements, Report No. 72, 5 September 2014, p 811.
  4. Productivity Commission inquiry report, p 812.
  5. Productivity Commission inquiry report, p 813.
  6. Productivity Commission inquiry report, p 826.
  7. Productivity Commission inquiry report, p 826.
  8. Productivity Commission inquiry report, p 816.
  9. Productivity Commission inquiry report, p 823.
  10. Productivity Commission inquiry report, p 844.
  11. Productivity Commission inquiry report, p 841.
  12. Productivity Commission inquiry report, p 837.
  13. Productivity Commission inquiry report, p 833.
  14. Productivity Commission inquiry report, p 835.
  15. Productivity Commission inquiry report, p 838.
  16. Productivity Commission inquiry report, p 836.
  17. Productivity Commission inquiry report, p 828.
  18. Productivity Commission inquiry report, p 829.
  19. Productivity Commission inquiry report, p 839.
  20. Productivity Commission inquiry report, p 839.
  21. Productivity Commission inquiry report, p 840.
  22. Productivity Commission inquiry report, p 822.
  23. Productivity Commission inquiry report, p 822.
  24. Productivity Commission inquiry report, p 831.
  25. Productivity Commission inquiry report, p 832.
  26. Productivity Commission inquiry report, p 822.
  27. Productivity Commission inquiry report, p 824.
  28. Productivity Commission inquiry report, p 823.
  29. Productivity Commission inquiry report, p 825.