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Weisbrot, David --- "Comment" [2001] ALRCRefJl 1; (2001) 78 Australian Law Reform Commission Reform Journal 1


Reform Issue 78 Autumn 2001

This article appeared on pages 1 & 70 - 72 of the original journal.

Comment

Professor David Weisbrot, President, ALRC

In late October 2000, the Attorney-General of Australia, the Hon Daryl Williams AM QC MP, announced the appointment of a National Pro Bono Task Force. Although not strictly-speaking an ALRC project, the Commission has been actively involved in the work of the Task Force through my involvement as Chair.

The establishment of the Task Force follows on from the success and undissipated energy of For the Public Good: The First National Pro Bono Law Conference, held in Canberra last August. The conference was the initiative of the Attorney-General, and was attended by about 500 representatives from the public, private and community legal sectors, legal educators, government officials, and representatives from the business and philanthropic sectors from around Australia.

Figures released around the time of the conference confirmed that the private profession continues to make a significant contribution to the community through its pro bono work. According to the Australian Bureau of Statistics, in 1998-1999, solicitors spent approximately 1.8 million hours and barristers a further 500,000 hours doing pro bono work – services worth some hundreds of millions of dollars in cash terms.

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 (for example, administrative, IT and management systems support) necessary to sustain an active pro bono practice.

However, a survey of some small-to-medium sized firms in rural and regional New South Wales conducted on behalf of the Task Force1 found that most of the solicitors contacted were undertaking very high levels of pro bono work. 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. For the country solicitors concerned – and no doubt the same situation would obtain in the outer 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.

Even the large, well-resourced law firms face a number of challenges in providing extensive pro bono services. These include ensuring that (1) 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; (2) 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 (3) mechanisms exist for the ready identification, and proper handling, of real and potential conflicts of interest. Most importantly, law firms (of all sizes and practice types) need to develop a healthy ‘pro bono culture’, and in this regard, the attitude of senior partners is critical in setting the right tone.

The role of the Task Force is to crystallise the suggested outcomes of the First National Pro Bono Law Conference, and to report to the Attorney-General on how best to achieve progress in the implementation of those outcomes. Among other things, the Task Force needs to identify the organisations, institutions and individuals best placed to advance these priority activities, and the 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.

In carrying out its work, the Task Force has utilised a broadly inclusive operational definition of ‘pro bono legal 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.

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 working assumptions.

Pro bono practice is not a substitute for legal aid. It is necessary 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. However, there is also a recognition that even dramatically increased levels of legal aid funding (as many on the Task Force would applaud) would not relieve the demand for pro bono work, given the high level of unmet legal need in the community. Further, pro bono schemes have a number of benefits that are not always possible through legal aid schemes, such as: choice/diversity; flexibility; motivation; the ability to tap the specialist expertise of leading practitioners; and the 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’ clients. Professional associations need to clarify the ethical framework for pro bono legal work – this involves a recognition that pro bono practice involves different circumstances, but not 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, and is the shared responsibility of individual practitioners, law firms and peak professional bodies. There is strong opposition in Australia to any element of compulsion in the performance of pro bono legal work (for example, through the imposition of conditions for the maintenance of a current practising certificate) – including from those lawyers with the strongest record of actually providing such services. There appears to be less opposition to, but no clear ground swell 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.

In the interests of a fair and efficient justice system, there is a role for government in encouraging and supporting (including through the provision of resources) – but not controlling – pro bono initiatives. For example, governments can assist in overcoming some of the structural barriers to pro bono work (for example, filing fees and other court-related costs and disbursements), and can encourage pro bono practice by taking into account such work as a factor in awarding tenders for government legal work.

The Task Force also is considering whether to recommend the establishment of some sort of government-supported secretariat or centre that might (a) broker relationships between local organisations (community legal centres, small firms, rural and regional practices, community organisations) and large firms; (b) support the development or improvement of referral schemes at the state/territory/local level; (c) focus on best practice management models and practices for pro bono activities; (d) serve as a national information clearinghouse; and (e) provide ‘back-up’ advice, support and training in key areas of unmet legal need and demand (for example children, family law, criminal law, migration).

The Task Force met in Sydney for a weekend workshop (30-31 March 2001) aimed at refining its Draft National Plan for Pro Bono Legal Work. It is expected that the Task Force will present its advice and recommendations to the Attorney by 30 June 2001. The Task Force will then maintain a watching brief over these matters until the anticipated second national pro bono conference in mid-2002.

Endnotes

1. This was one of three empirical research projects on behalf of the Task Force carried out by student summer clerks in the Sydney office of Mallesons Stephen Jaques. The other two involve a survey of pro bono programs by major Sydney law firms, and a survey of pro bono programs in Australian law schools.


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