Hannon, Michelle; Harrison, Kate --- "Delivering pro bono services: promoting access, equity and efficiency" [1998] ALRCRefJl 23; (1998) 73 Australian Law Reform Commission Reform Journal 26

	Home \| Databases \| WorldLII \| Search \| Feedback Australian Law Reform Commission - Reform Journal

The recent publication of a report by the NSW Law Foundation’s Centre for Legal Process¹ examining pro bono services in New South Wales has focused attention on whether the legal profession is currently delivering pro bono services in the way which is most effective from the clients’ perspective.

The report provides an overview of the current state of pro bono legal service schemes in NSW.

Pro bono legal services are services provided, usually by private lawyers and law firms, free to people who cannot otherwise afford to pay for a lawyer. Some people include services provided for a reduced fee as pro bono services, while others consider that only free services are genuinely pro bono. The services provided by legal aid or legal centres are not usually seen as pro bono services.

Private sector pro bono legal services are currently provided by individual lawyers and law firms in a variety of ways. Assistance may be provided from individual lawyers or law firms through their own schemes or on an ad hoc basis to clients. Solicitors may participate in the Law Society’s Pro Bono Scheme and accept referrals of pro bono work from that scheme. Other lawyers or firms work with community legal centres or other organisations with a direct client relationship as an avenue for the delivery of services.

Many barristers also provide pro bono services directly to clients through their own efforts or through their associations with individual solicitors or law firms. Others provide assistance through the Bar Association’s Legal Assistance Scheme, which was established in 1994.

The recent report focuses on the three pro bono referral schemes operating in NSW - the Law Society’s Pro Bono Scheme, the Bar Association’s Legal Assistance Scheme and the Public Interest Law Clearing House (PILCH). For all three services, clients must satisfy both a merits test and a means test, although these tests are not standardised across the three referral schemes. The Bar Association has no restrictions on the types of matters that may be referred for pro bono assistance. The Law Society will also take referrals for a wide range of matters, excluding business law, intractable neighbourhood disputes and family law property settlements, workers’ compensation, personal injury and professional negligence.

For PILCH, all referrals must raise a legal matter of public interest, defined as affecting a significant number of people, raising matters of broad public concern impacting particularly on disadvantaged or marginalised groups, which should be addressed for the public good.

Table one (overleaf) reflects the information presented in the report about these three schemes and compares the funding available to them, the network of resources used to handle pro bono matters, the number of applications for assistance received, and the number of matters referred to a lawyer for a provision of pro bono services. As the report notes, because there are differing definitions in this area, it is not clear when a service counts as a pro bono service, and the figures include matters where a lawyer acts for the client at a reduced fee, rather than for free. Under a stricter definition of pro bono work, matters where a client is charged even at a reduced rate may not be considered pro bono. It is also not known whether the barristers providing pro bono services are simply providing initial advice on the merits of the case, as opposed to handling urgent court applications or acting in an ongoing role.

Much of the pro bono work done by lawyers in NSW now is probably carried out without the involvement of any of the three schemes, although attempts to collect data on the amounts of pro bono work done by the profession have not produced reliable results.

More than 200 firms are involved in the Law Society scheme, 32 firms belong to PILCH, and a few law firms in Sydney provide co-ordinated pro bono services as well as, or instead of, accepting referrals through the Law Society scheme or through PILCH. Gilbert & Tobin has had a long standing commitment to pro bono work and in 1996 employed a full-time solicitor purely to provide pro bono services. Solicitors throughout the firm also help in the provision of pro bono services, and the firm has guidelines with selected target areas for pro bono work. Many of the firm’s pro bono cases are referred from the Legal Aid Commission and community legal centres, and from the Law Society scheme.

In 1997, Clayton Utz also engaged a solicitor to undertake a purely pro bono role, which for Clayton Utz, involves greater monitoring of the pro bono work of other solicitors throughout the firm.

Freehill Hollingdale & Page also provide extensive pro bono assistance by seconding a solicitor to Kingsford Legal Centre, as well as staffing the Shop Front Centre to provide legal assistance to young people at Kings Cross and providing pro bono advice from within the firm to other clients.

Many other law firms provide pro bono services and firms have addressed the issue of the provision of these services in a variety of ways. Some have pro bono committees, with referral guidelines and acceptance procedures, others have created positions within the firm or have guidelines regarding the role solicitors within the firm are expected to take or assistance that should be provided to community legal services. Other firms and individual lawyers also provide pro bono services, sometimes extensively, although not under such formal programs. A significant issue is how these efforts can be both extended by the profession and most effectively directed towards clients, and whether the experiences of those practitioners can also inform the delivery of other pro bono services through the referral schemes.

Although there is no data on the extent of unmet legal need, some idea of the potential demand for services is suggested by the fact that in 1995-96 more than 132,000 applications for assistance were made to the NSW Legal Aid Commission. More than 13,000 of those applications were refused. The extraordinary disparity between the 13,000 refused legal aid and the 1,200 or so people seeking assistance to the three pro bono legal schemes suggests there must be a substantial gap between access to legal aid and access to pro bono referral schemes.

The three referral schemes do not widely advertise their services and their existence may not even be well known within the profession, let alone in the broader community or among the agencies that would be likely to refer clients for assistance. This lack of broad awareness of the schemes is obviously a substantial obstacle to their ability to effectively reach potential clients or referring agencies.

	Law Society	Bar Assoc.	PILCH
Referral networks	225 firms	1,100 barristers	32 member firms
Funding 1996-97	$105,540	$75,145	$83,194
Applications for Assistance 1996-97	787	230	266
Applications referred 1996-97	321	194	86
Percentage referred 1996-97	41%	32%	84%
Estimated cost per referral	$328	$387	$967
Funding source	Law Foundation ($101,300). In kind support from Law Society ($4,240)	Law Foundation ($69,433). In kind support from Bar Association ($5,712)	Membership fees, functions ($64,187). In kind support from PIAC ($19,007)
Staffing	1 full time L, 3 part time SS	1 manager 1 part time SS	3 part time L, 1 seconded L, 1 part time SS

NB: L denotes lawyer; SS denotes support staff source: Future Directions for Pro Bono Legal Services in NSW

The report by the Law Foundation in NSW is an important contribution towards focusing the attention of the profession on pro bono services, and on the specific issue of how the delivery of those services could be improved. Although the report did not conduct a full evaluation of the existing schemes, reviewing the quality, accessibility or availability of the current services, it did look to the future of pro bono service delivery and proposed four alternative models for enhancing pro bono services. Three of those models leave the three existing schemes of the Law Society, the Bar Association and PILCH operating separately. A fourth option involves the merger of those schemes into a new centralised pro bono clearing house.

Of the models which involve leaving the three existing schemes in place, the report discusses the option of establishing an advisory committee, which would provide a forum for the schemes to meet to discuss issues of common interest. Such a committee would also provide a platform for work that was relevant to all three schemes, such as co-ordinating registers of legal experts, or collecting and publishing statistical data.

The second model, which leaves the current schemes operating separately, proposes the establishment of a support agency. The support agency would operate alongside the existing schemes. It would foster the exchange of information, collect and disseminate policies and procedures between the schemes and promote pro bono work to lawyers. This model is based on the UK Solicitor Pro Bono Group.

The third model involves establishing a co-ordinating agency, or a central contact point, existing on top of the three schemes. The co-ordinating agency would carry out many of the same functions as the advisory committee or support agency, such as promoting pro bono services, creating registers, engaging in training and policy issues. But a co-ordinating agency would also have the additional significant task of acting as a contact point for people seeking pro bono services, directing them to the most appropriate scheme.

The report also presents a central clearing house model, which proposes a merger of the three existing schemes into a single Pro Bono Clearing House. Such a clearing house would carry out all the functions currently carried out by the three schemes, as well as the policy and procedural functions, which would be provided by the support agency or advisory committee. The central clearing house could refer clients to an appropriate service provider, whether a solicitor or a barrister, and could screen and refer public interest cases to lawyers with an interest in acting in such matters.

Although the report prefers the model of a central contact point, which enables the existing organisations and professional bodies to retain ‘ownership’ of the schemes that are currently operating, the option of the central pro bono clearing house has considerable advantages from a client-oriented perspective. It allows the creation of an organisation with a larger critical mass of staff, and provides a one stop shop for consumers who will no longer have to search for assistance.

The central clearing house model also facilitates a centralised approach to some procedural matters such as collecting statistics, setting out eligibility guidelines, and encouraging lawyers to participate. It would provide a stronger basis for the policy work that could emerge from a pro bono scheme based on the breadth of types of matters that would be referred through the scheme. A central clearing house would also reduce costs, eliminate duplication, and ensure that consistent policies could be developed and applied across all pro bono matters, such as any means and merits eligibility tests. Individual lawyers and law firms could still take on pro bono matters outside the clearing house at their own discretion. However, the eligibility requirements would set the threshold to determine which clients could obtain pro bono services. A larger clearing house could also put more resources into the promotion of the scheme, both to referral agencies, and to lawyers to expand the scope of the services.

As this article goes to print, the Law Foundation is producing a further paper examining the proposed models in more detail. It is to be hoped the profession will then engage in a debate about which of the options will most effectively improve and enhance the pro bono services currently being offered. Perhaps the most relevant questions to be asked are:

Pro bono initiatives undertaken in other jurisdictions provide interesting and valuable suggestions about how pro bono services in Australia can be developed and implemented more effectively. Recently there have been two significant developments towards the greater co-ordination of pro bono work in the United Kingdom. First, at a profession-wide level the new Solicitor Pro Bono Group is lobbying the profession to provide a more co-ordinated approach to pro bono work. The group does not operate as a referral agency but focuses on pro bono policy and development. Second, some larger firms are taking steps to provide a more focused pro bono service within their firm by appointing lawyers to co-ordinate their pro bono practices.

The Solicitor Pro Bono Group started in September 1997. It is a small organisation staffed by a full-time director and administrator, funded through the sponsorship of major UK law firms.

In addition to the assistance provided by this newly established group, pro bono work in the UK is also conducted by long established organisations such as Business in the Community and Lawyers in the Community. Business in the Community is supported by people from various professions who are prepared to donate their services on a voluntary basis to charitable organisations. Often the members provide support to these organisations simply by sitting on their boards and providing their expertise where relevant, but members can have more extensive involvement. This scheme is particularly useful when a charitable organisation is undertaking a large project and needs assistance from all sorts of professions, such as architects, surveyors, accountants and lawyers. A branch of Business in the Community, called Lawyers in the Community, is a group of lawyers prepared to volunteer their time to charitable organisations needing legal assistance.

The US has a much stronger tradition of pro bono work than either the UK or Australia. Nearly all large firms undertake pro bono work and several have co-ordinators for their pro bono practices. Sometimes the pro bono co-ordinator position is an administrative one rather than a legal one. Pro bono practices vary and in several states there is strong co-ordination throughout the profession, including participation by the judiciary in promoting pro bono work.

In some states, professional bodies have taken a very active role in promoting pro bono work and there is a great deal of public acknowledgment of pro bono work in the United States legal culture, with several pro bono awards being made each year. The amount of pro bono work firms undertake is commonly published in legal profiles.

The view has sometimes been expressed that extending pro bono services will have a negative effect, in that it might encourage governments to reduce funding for legal aid. Concern about the shrinking legal aid dollar is understandable given the need for expansion of legal aid services and the decline in funding in the recent past. To argue, however, that promoting pro bono work within the profession will directly impact legal aid funding is unconvincing. Comparing pro bono services offered by firms through the referral schemes with the provision of services through legal aid or community legal centres is like comparing apples with oranges. Legal aid is a State-based system of access to advice services, and provides a well-known framework for the provision of legal information. Applications are assessed on strict criteria, and where an applicant meets those criteria, that person is entitled to the provision of legal aid. In contrast, the provision of pro bono legal services operates on a far more ad hoc and less formalised fashion. There is no ‘entitlement’ to be provided service, there is enormous variation in the nature of the service and the charging arrangements, and there is a broad discretion by the service provider as to whether to provide the assistance to the client.

Overall, there is also no evidence which suggests that any government decisions relating to legal aid funding are responsive to, or take into account, the capacity of the profession to deliver pro bono services. From the consumers’ viewpoint, the possible effects on legal aid funding cannot be used as a rationale for the profession not to extend and promote pro bono services.

An interesting issue about pro bono services is whether it should be mandatory for all lawyers to undertake some specific amount of pro bono service. There has been relatively little discussion in Australia about whether professional bodies should set a mandatory level of pro bono services to be met by practitioners, but debate on the issue has been more extensive in the United States. In 1990, the Marrero Report to the Chief Judge in New York² recognised that calls to the profession to voluntarily increase their pro bono services were not effective. It therefore recommended that a minimum of 40 hours of pro bono services every two years be required of all New York practitioners. The recommendation was never implemented.

In Australia there is no jurisdiction in which there is a requirement that practitioners provide any set level of pro bono services.

The issue of whether a mandatory pro bono requirement should be imposed on all lawyers is certainly open for further debate, given the high cost of some legal services, which are well beyond the reach even of people falling outside the means test for legal aid. In the US, some law schools require their students to complete 40 hours of pro bono work before they graduate. Such requirements, perhaps best seen as training in professional responsibility, should increase the awareness of those lawyers to community needs.

1. Centre for Legal Process, Future Directions for Pro Bono Legal Services in New South Wales, Law Foundation for NSW, 1998.

2. Committee to Improve the Availability of Legal Services, Final Report to the Chief Judge of the State of New York, April 1990 (the Marrero Report).

Australian Law Reform Commission - Reform Journal

Hannon, Michelle; Harrison, Kate --- "Delivering pro bono services: promoting access, equity and efficiency" [1998] ALRCRefJl 23; (1998) 73 Australian Law Reform Commission Reform Journal 26

Reform Issue 73 Spring 1998