Issue 83: October 2013
Welcome to the October 2013 edition of National Pro Bono News, from the National Pro Bono Resource Centre.
We welcome your feedback/contributions/ideas – please email [email protected].
In this edition, read about:
The Sixth Annual Performance Report on the Aspirational Target shows that signatories provided an average of 33.7 hours of pro bono legal work per lawyer this year similar to the 34.2 hours per lawyer reported in 2011/2012. Law firms that had been signatories for at least one year averaged 35.9 hours per lawyer per year and those that had been signatories at least three years averaged 42.7 pro bono hours per lawyer.
There were some stand-out performances by firms this year. Ten out of 28 large firm signatories with more than 50 lawyers provided a total of 218,933 pro bono hours, which equates to an average of 51.2 hours per lawyer per year. It was also pleasing to see some mid-tier firms starting to exceed the Target for the first time.
Many firms reported that the Target had a positive impact on their pro bono work with 32 firms reporting that the Target increased their focus on the legal needs of disadvantaged people and the organisations that assist those people, and 30 firms indicating that being a signatory to the Target led to an increase in the amount of pro bono work being undertaken.
Congratulations to Clayton Utz and Anti-Slavery Australia on winning the Pro Bono Partnership Award at the recent NSW Justice Awards. Congratulations also to Greta King, for winning the NSW Law Society President’s Award for her outstanding pro bono work referred through the Law Society of NSW’s Pro Bono Scheme and David McMillan, for winning the Community Legal Centres NSW Award, for his 26 year commitment to volunteering at Kingsford Legal Centre.
We also applaud Patricia Mathews from King and Wood Mallesons for winning the Negocio Resolutions Pro Bono Award at the Lawyers Weekly Women in Law Awards for her long term commitment to the Homeless Persons Legal Clinic in Footscray, Melbourne.
The purpose of the annual Pro Bono Partnership Award, sponsored by the Centre, is to celebrate and draw attention to innovation in effective pro bono relationships. Accordingly here is a short description of all five partnerships nominated for the award this year:
Clayton Utz and Anti-Slavery Australia
For over four years, Anti-Slavery Australia and Clayton Utz have worked together to pioneer a path to compensation for women in NSW who have been sex-trafficked into Australia and forced to work in sexual servitude. Prior to this partnership, no-one had recognised the possibility of statutory compensation being available in NSW for these trafficked women. The legal pathway was pioneered with the assistance of Fiona McLeod SC, and has now achieved significant outcomes for this group of highly disadvantaged women. The awards of compensation have been substantial enough to empower the victims to repair and rebuild their lives and the model has now been used successfully to obtain compensation in other states and territories. For more information see this article in the Sydney Morning Herald.
Inner City Legal Centre and Gilbert + Tobin
The association between the Inner City Legal Centre and Gilbert + Tobin dates back more than a decade but in 2009 the relationship strengthened into a multi-faceted partnership that has enabled one of the smallest community legal centres in NSW to assist a broad range of very disadvantaged people, as well as freeing-up the Centre to dedicate more resources to casework and submissions to challenge laws that discriminate against the Centre’s LGBTI clients across the State.
This partnership is noteworthy not only for the breadth of services that Gilbert + Tobin have provided but their “can do” attitude. Help has included hosting functions for volunteers, drafting a human resources policy, preparing annual reports together with taking on a wide variety of legal matters and providing research and editing services.
This is a partnership that started in 2001 with a focus on making a difference on key issues affecting Aboriginal people in the area of civil law. A focus for the Indigenous Justice Program has been the existence of a full-time dedicated Indigenous Justice Solicitor position that has been significantly financially supported by Allens. Through this initiative hundreds of Aboriginal people have secured legal representation.
The partnership has had a focus on the issues of the Stolen Generations, Aboriginal Stolen Wages, and policing and discrimination matters. With Allens standing shoulder-to-shoulder with PIAC right through the advocacy for the establishment of the Aboriginal Trust Fund Repayment Scheme in 2004, and all the work associated with the claims made under the Scheme, through to its closure in 2012, many Aboriginal people have received payments under the Scheme. Allens has also provided legal advice and casework in racial discrimination matters, matters concerning deaths in custody, unlawful arrest and civil claims against NSW Police.
Redfern Legal Centre and Clayton Utz
Rather than the common “referral model” for pro bono cases, this partnership created a model in 2011 which allows RLC and Clayton Utz lawyers to work jointly and closely to provide a representation service for disadvantaged clients appearing before the Fair Work Commission. These clients typically have low levels of literacy and communication skills and would otherwise be unrepresented. Cases concern unfair dismissal, underpayment of wages, sham contracting, bullying, discrimination and work injuries.
What is unique about this model is, that whilst RLC runs the scheme and is principal solicitor on the record, Clayton Utz solicitors attend to the casework and provide the client with representation.
This scheme is innovative, efficient and has been shown to provide a high rate of settlement of matters and a higher level of compensation than the national average.
Income from the corporate law firm, Salvos Legal, subsidises the Salvos Legal Humanitarian operation, which provides services from ten offices in NSW and four in Queensland, each in a context where people with ‘problems’ can also source social and pastoral, as well as legal services. This highly innovative business model, became entirely self sustaining financially in October 2012, and currently provides free legal services in over 260 cases per fortnight for disadvantaged people who are on a low income, but who are ineligible for Legal Aid and cannot afford a lawyer.
Providing legal services that are predominantly criminal law, family and children’s law, welfare, debt, housing and refugee and immigration law this service is unique in providing pro bono legal support in areas of law where large and mid-tier firms generally do not have the expertise, or have conflicts and so is an important addition to the diversity of available pro bono services.
Congratulations to all nominees this year. Each of these partnerships are outstanding and provide an inspiration to us all.
See the Law and Justice Foundation website for more details on the Justice Awards.
Like the first conference held in 2012 in Vientiane, Laos, the Second South East Asia/Asia Pro Bono Conference and Workshop held from 11-12 October 2013, on the banks of the Saigon River in Ho Chi Minh City, Vietnam, was infused with an unbridled enthusiasm for justice and “pro bono lawyering”. With well over 200 delegates and a significant number of law students also attending, this enthusiasm was infectious and provided the right environment for fruitful discussions, networking and exchanges of information that furthered the development of pro bono legal culture in many countries in the region.
Coinciding with the two-day state funeral of the legendary Vietnamese military commander, General Giap, the conference opened with a tribute and a memorial silence which reminded us all of the history of a country that had struggled long for its independence and the ongoing plight of the poor and disadvantaged in Vietnam but also in many countries of the region.
Delegates from 17 countries attended and in the fun spirit of a BABSEA CLE– style of conference, each delegate drew a picture of their country’s flag and then “Hello” was said in 17 different languages and ways. Instantaneous translation between English, Vietnamese and the Myanmar language was provided throughout the conference.
The theme of the conference was strengthening the role of pro bono in improving access to justice in the region. Antje Kraft, justice and human rights specialist from the United Nations Development Programme (UNDP), provided an overview of social need in the area and a definition of access to justice used by the UNDP, being “the ability of people to seek and obtain a remedy through formal or informal institutions of justice, and in conformity with human rights standards”.
Examples of pro bono projects throughout the region were provided, but as often happens at pro bono conferences, this led to a discussion about the various meanings of pro bono with views ranging from a definition of the delivery of all free legal services, to only those services provided to the poor, disadvantaged and marginalised by the private legal profession.
The concepts were soon clarified, particularly by the international experts, Esther Lardent, Nicolas Patrick and Ed Rekosh, each providing a unique global view of the pro bono movement and its many moving parts, with Nic Patrick suggesting that the path to increased pro bono growth in China may be under the umbrella of corporate social responsibility citing Article 5 of the Chinese company law that states ‘in the course of doing business, a company must…conform to social morality and business ethics, act in good faith…and undertake social responsibility’.
The workshops on the second day of the conference were held at the ‘high rise’ University of Economics and Law (UEL) situated in the fields about 40 km outside of Ho Chi Minh City. These included issues of how to develop support from government and the legal profession for pro bono, working with clearing houses, how to develop a pro bono-minded legal profession and how to manage working partnerships. The clearing house workshop brought an Australian perspective through Sue Garlick from QPILCH talking about their Legal Health Checklist and the Homeless Persons Legal Service, a South African perspective from Erica Emdon, the Director of Probono.Org who discussed the challenges faced in a country that has mandated that its lawyers undertake 24 hours pro bono work per lawyer per year, a global perspective from Ed Rekosh, Executive Director of PILnet, who discussed PILnet’s development and the operation of their clearing house in China, and Serena Grant, Senior Manager – Legal at the Thomson Reuters Foundation informing people about the international TrustLaw Connect pro bono clearing house and the opportunities it presents.
Singapore was again identified as a leader in pro bono development in the region but it was fascinating to hear from the Indian speakers, including Nisha Saxena from the Supreme Court of India about the constitutional and legislative underpinnings for ‘legal aid’ services in India and the leadership being shown by the court and government. The Hong Kong delegates seem to think that the time is right for creation of a clearing house or similar in their city.
The Australians attending were all speakers in various workshops and sessions and consisted of Annette Bain (Herbert Smith Freehills), Anne Cregan (Ashurst), Nic Patrick, Claire Donse and Michael Gill (DLA Piper), Hai Van Nguyen (Clayton Utz), Sue Garlick, (QPILCH), Geetha Nair (Australian Government Solicitor), Mark Woods (Law Council of Australia), Judith McNamara and Rowena Maguire (QUT) and John Corker (NPBRC).
Members of the Vietnam Bar and the Director of Vietnam’s National Legal Aid Agency participated in the conference and were keen to further develop the pro bono ethic amongst their lawyers.
Even though it is early on in the development of a pro bono legal culture for a number of the countries involved, the conference showed that the pro bono movement is alive and well in the South/South East Asian region of the world.
As the conference drew to a close against the backdrop of a bust of Ho Chi Minh framed by a dark green curtain with the red star and hammer and sickle high above, a banner reading “Viva Pro Bono” was passed from the Director of UEL to Tanguy Lim, Director of Pro Bono Services, Singapore Law Society passing to Singapore the responsibility to host the 3rd South East Asia/Asia pro bono conference to be held in Singapore from 9-11 October 2013.
Earlier this month the Centre released its report on Pro Bono Legal Services in Family Law and Family Violence, which draws attention to the considerable amount of free and discounted work done by specialist family law practitioners in private practice ‘embedded’ into their regular casework. It also articulated the significant constraints faced by large and mid size firms in addressing the unmet legal need in family law.
Early discussion about the report has reinforced the view that many family law practitioners do work in this way, often at a loss to themselves. One of the reasons cited that compels them to do this is their sense of social responsibility even though very few legally assisted litigants ever say thank you, or understand that as a general rule that their matters are more difficult than privately funded matters. This sense of social responsibility is an issue that is missing from the current debate about legal aid funding for family law matters. The challenge seems to be to return to a paradigm where both Government and the private legal profession strongly respect this aspect of service provision. Some say that this can only occur with increased funding so that practitioners can afford to undertake legal aid work but whatever the truth is, it is suggested this social responsibility factor is a vital factor in the ongoing debate about how to address the ongoing legal need in family law matters.
A further observation that has been made in relation to the Centre’s report is that it portrays a system where legal assistance for family violence matters is available but once the matter involves arguments over who should care for the children and/or parenting orders are sought, it becomes much more difficult to obtain legal assistance. The argument is put that therefore the system is in effect ‘dropping people’ once the initial family violence matters are addressed possibly leading to further issues of violence erupting due to this frustration.
The Centre, in its report recommends that further research be undertaken to shed light on the way family law practitioners work so they can be supported in continuing to assist clients with no or limited means in the best way possible. We welcome discussion on whether this is worthwhile and if so, how it might occur.
One of the key successes of the Centre’s NBN Regional Legal Assistance Program pilot project in partnership with Hobart Community Legal Service (HCLS) and DLA Piper was the use of video conferencing technology by pro bono lawyers to provide mentoring and professional development to build the capacity of HCLS solicitors.
The project involved providing an NBN-based legal assistance service from HCLS’s outreach office in Sorell, which is an area of considerable social disadvantage outside of Hobart. Using Skype video-conferencing technology, lawyers from DLA Piper provided advice to clients referred by HCLS when the matter was not within HCLS’s expertise and delivered training and mentoring assistance to HCLS solicitors.
DLA delivered highly successful training in industrial relations, privilege and ethics which included some interactive question and answer time, leveraging existing DLA training modules that could be easily adapted to suit HCLS’s needs. This interaction helped to build rapport between the HCLS and DLA Piper lawyers which facilitated an ongoing mentoring relationship that will continue beyond the pilot project.
The NBN connection enabled high quality sound and video, and most clients demonstrated a high level of acceptance and comfort with using it. The main issues identified during the project were less to do with the reliability of and comfort with the technology, and more about how the technology impacted on the way the solicitors worked.
The main challenge that the project partners encountered was that the pro bono lawyer at DLA Piper needed information from the client that would progress their matter, but was not physically present to support the client in obtaining it. This necessitated having solicitors at both ends of the video communication and created inefficiencies, as additional time was needed on an ongoing basis to pass instructions and take necessary actions through the two sets of lawyers involved. This problem was compounded by the fact that HCLS clients were unlikely to have any access to email or fax and sometimes took a long time to find and bring relevant documents to the Sorell office where they could be transmitted to DLA. This created challenges for the relationship between project partners as HCLS felt like its clients were “mucking DLA around”.
“Notwithstanding the ability to have a ‘face-to-face’ discussion with the client, we do remain heavily reliant upon the outreach solicitor in Sorell to collate and send through documents and other materials required to open a file and provide the advice or representation sought, and this need to maintain the outreach solicitor as a conduit between advisor and client does pose a challenge in circumstances where further instructions are required to progress the matter.” (DLA Piper solicitor)
DLA Piper lawyers also found that it was not possible to establish the same level of rapport with clients using video-conferencing as in person, which made taking instructions more difficult than it would be in person and again necessitating the involvement of a solicitor at the HCLS end.
“Nuances of body language and facial expression that would normally allow a solicitor to gauge, for example, whether a client is being truthful, cannot be detected as clearly without in-person contact… Having a HCLS solicitor present at the Skype meeting between the HCLS client and the DLA Piper solicitor was essential to ensuring that the client’s needs could be fully identified and assessed.” (DLA Piper solicitor)
HCLS found that its solicitors preferred using the phone rather than Skype to communicate with a mentor at DLA Piper because it felt “less formal” and “less of an imposition” on DLA Piper solicitors.
“We felt that we needed to make an appointment to make a call on Skype, because using Skype would be more of an intrusion on the lawyers helping us at DLA Piper, but we could simply call on the phone.” (HCLS solicitor)
Clients who used the NBN-based service were generally happy with it as a mode of contact, with all of them indicating that they would use the service again. However running a remote legal assistance service via video-conferencing can be resource-intensive because there is often a need for a face-to-face support person who can prepare the client for the video-conference. The project partners found that this double handling made the process inefficient and frustrating for both the lawyers and clients involved and ultimately refocused the project on using the NBN to assist HCLS clients by using it to build the capacity of HCLS solicitors who could be there when they were needed in person.
Brought to you by the National Pro Bono Resource Centre and Salvos Legal, on Saturday 9 November 2013 hear the Hon. Greg Smith SC MP, NSW Attorney-General & Minister for Justice talk on The challenges and future for Legal Aid and ex-Victorian Attorney-General, Rob Hulls on the topic of Reframing the law and order debate, plus a judges showdown debate on the topic of Crime pays.
Salvos Legal operates as a commercial practice in order to sustain the Salvos Legal Humanitarian practice, which is a free legal service that aims to provide access to justice through full-time representation to those who could not otherwise obtain it. It was established in early 2010.
Registration for the lectures is by way of donation (as much as you can afford but suggesting at least $100 for the day) and is fully tax deductible. The proceeds from the Salvos Legal 2013 lecture series will go to support the most needy of cases at the Salvos Legal Humanitarian practice.
5 CPD/CLE points can be claimed for the full day’s attendance or 1 point per single hour lecture.