Issue 92: November 2014
Welcome to the October 2014 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 results of the seventh annual performance report of the National Pro Bono Aspirational Target, released this month, show that after seven years, the influence of the Target as a tool to drive pro bono performance continues to grow.
Of the 20 largest firms in Australia1, 17 are now signatories to the Target of at least 35 hours of pro bono legal work per lawyer per year. Ten of these signatory firms (59%) met or exceeded the Target in 2013/2014.
Nearly 11,000 Australian legal professionals are now covered by the Target. Those reporting (84%) performed a total of 365,716 hours of pro bono legal work, equivalent to 203.2 lawyers working pro bono full-time for one year, or an average of 34.2 pro bono hours per lawyer per year.
The number of lawyers covered by the Target grew by 20% during the year, with the total number of hours reported under the Target growing by 24% due in large part to two large international firms becoming signatories this year. Approximately 47% of all reporting signatories indicated that they had met or exceeded the Target.
The growth in the number of signatories to the Target and the fact that almost half of them either met or exceeded it in 2013/14 demonstrates that it remains well-positioned as a benchmark for the conduct of pro bono legal work across the entire Australian legal profession. It provides a robust and achievable goal for all Australian law firms and, in conjunction with the Commonwealth government’s pro bono conditions in their ‘Legal Services Multi-Use List’ for purchasing legal services from the private profession, is effective in encouraging law firms to support and develop the pro bono legal culture, practices and programs within their firms.
The pro bono performance of Target signatories is better compared to non-signatories in relation to all the key metrics, and is consistently stronger in firms which have been Target signatories for a longer period of time. For example, firms which have been signatories for at least three years reported an average of 39.2 pro bono hours per lawyer compared with an average of 34.1 hours per lawyer for all signatories.
The Seventh Annual Performance Report on the National Pro Bono Aspirational Target is available in full online.
1 By number of FTE lawyers as at 1 July 2014.
The was released this month. The results indicate that Australian law firms with 50 or more lawyers are continuing to increase the amount of pro bono legal assistance they provide.
Forty of the 55 Australian firms with 50 or more lawyers, including 24 of the 25 largest law firms, responded to the Survey which is conducted every two years by the Centre. Overall the average pro bono hours per lawyer was 32 hours per annum, up 7.0% from 2012 and up 10.3% since 2010.
Large Australian law firms have continued to make a strong pro bono contribution despite the challenges that changes in the law firm sector have brought over the past few years, particularly new market entrants, significant merger and acquisition activity, and the increasing globalisation of the legal services market in Australia. Of the 40 large firm respondents, 12 of them (40%) had gone through a merger or acquisition in the last four years, and eight of them (20%) indicated that they are now “international law firms” (employing more lawyers overseas than in Australia).
However, similar to the 2012 Survey, there was significant variation in the performance of the 40 firms which responded to the survey, ranging from 1.6 to 67.4 hours of pro bono legal work per lawyer per year. This indicates that there is still room for growth in the pro bono contribution of some firms.
Of the 30 firms that reported in both 2012 and 2014, 11 firms reported a significant increase (>20%) in their pro bono hours per lawyer result whilst 4 firms reported a significant decrease (>20%).
The average participation rate, that is the percentage of lawyers at a firm who undertook at least one hour of pro bono legal work, was 50 percent (compared with 53% in 2012 and 59% in 2010). The highest participation rate reported was 89%. The overall downward trend may in part be explained by a rise in the number of secondments which means that many pro bono hours are undertaken by the particular lawyers on secondment rather than being spread across the firm’s lawyers.
In this survey, law firm respondents were asked for the first time about the proportion of partners that participated in pro bono legal work. The average participation rate of law firm partners was 40%, the highest being a firm with a 75% partner participation rate.
With few exceptions, all firms continued to report doing more pro bono legal work for organisations than individuals, the average across all firms being 64 percent for organisations with this proportion being 56:44 amongst the largest nine firms (similar to 2012). Only eight out of 38 firms that responded to this question reported doing more work for individuals than for organisations. These results support the long held view that, while pro bono makes a significant contribution to access to justice for people experiencing disadvantage, it cannot be a substitute for an adequately funded legal assistance sector.
The areas of law and practice where respondent firms most often accepted requests for pro bono assistance reflected the large amount of pro bono legal work large firms undertake for not-for-profit organisations. The top five areas were governance, employment, commercial agreements, Deductible Gift Recipient (DGR) tax status applications and intellectual property.
The factors that limit the ability of law firms to provide more pro bono assistance in certain areas, such as firm capacity or lack of expertise, were reflected in some of the areas where firms most often rejected requests for pro bono assistance, such as family law and criminal law.
The Fourth National Law Firm Pro Bono Survey Interim Report is available in full online.
The Final Report is planned to be released later in the year with a series of forums for those interested in discussing the results.
The decision of the Victorian Court of Appeal in Manieri & Anor v Cirillo  VSCA 227 has confirmed that a conditional costs agreement, where a client being represented on a pro bono basis is liable to pay costs if a costs award is made in their favour, satisfies the indemnity principle. This decision brings much needed certainty to the issue of whether a party who is represented on a pro bono basis can be awarded costs.
The indemnity principle means that costs cannot be awarded to a party unless they have an obligation to pay their lawyer. A costs agreement that creates this obligation before the time when the costs order is to be made creates a “condition precedent”. A costs agreement that provides that the client only has to pay the lawyer if they are able to recover costs from the other party creates a “condition subsequent”. In the pro bono context, the costs agreement often creates a condition subsequent.
Whether such a “condition subsequent” in the costs agreement creates sufficient legal liability between the client and the lawyer to be the basis of an indemnity upon which a court can make a costs order, has been in doubt for some time. Courts have grappled with the circularity of the argument: the client has no obligation to pay the lawyer until a costs award is made, but costs cannot be awarded unless the client already has an obligation to pay the lawyer.
In the NSW Court of Appeal decision of Wentworth v Rogers (2006) 66 NSWLR 474, Santow JA thought it did not matter whether the condition was expressed as a condition precedent or subsequent in order to justify a costs order. However, Basten JA thought that there was a fatal circularity when the condition “made the existence of a right to charge dependent on recovery of the monies from which the charges would be paid and was of the view that there may be no extant legal obligation to be indemnified even when a costs order is made”.
In the Queensland Court of Appeal decision of King v King  QCA 81, Chesterman JA expressed a preference for Basten JA’s analysis in Wentworth, and White JA said in a very short judgment that he agreed with the reasons of Chesterman JA. While the judgement did not turn on this point, and Wilson JA expressly declined to provide a view on ‘the circularity argument’, the decision clearly supported the view of Basten JA.
In Manieri, the Victorian Court of Appeal unanimously agreed with the views of Santow JA in Wentworth, and expressly rejected the reasons identified by Basten JA as justifying the opposite view. The Court also warned against a “triumph of form over substance”.
“…[A]lthough it may be that an obligation to pay fees which is conditional on the actual recovery of costs would not impose a sufficient obligation to warrant an order for costs in accordance with the indemnity principle, logically it does not follow that an obligation to pay costs which is conditional on obtaining a costs order ought not be regarded as sufficient.”
In reaching this the decision, the Court recognised that the ongoing contingent obligation was not only “of a kind for which the Act expressly provides” but also regarded by the law as “just and socially desirable”.
Lawyers acting pro bono in litigious matters have typically used a form of conditional costs agreement which provides that the lawyer will charge the client for their services only if the client is awarded costs in the matter and only to the extent that the client is actually able to recover costs from the losing party (condition subsequent). However following the decision in King, many lawyers acting on a pro bono basis in litigious matters have drafted costs agreements to ensure that the client’s legal obligation to pay costs arises at the point at which the client is entitled to receive any benefit or financial compensation and not at any later point in time (condition precedent). This is akin to a no win/no fee agreement.
It is a positive and welcome development to have certainty provided by the Victorian Court of Appeal decision in Manieri, subject to any appeal, that this form of conditional costs agreement satisfies the indemnity principle. However, the Centre maintains that it would be preferable for legislative reform to make it clear that courts can award costs in pro bono matters regardless of whether the client has contractually indemnified the lawyer for costs. Acting pro bono is significantly different from acting on a no win/no fee basis and the law on costs should reflect this. This change has already occurred in the United Kingdom.
The key issue is not costs recovery but ensuring that a level playing field exists between the parties in relation to their exposure to the risk of paying the other’s costs. Without this level playing field the party being represented on a pro bono basis is at a significant disadvantage when it comes to negotiating a settlement offer.
For more information from Clayton Utz, the firm that ran the case on a pro bono basis, see Lawyers acting pro bono for successful litigant can recover costs from losing party, by David Hillard.
Every year, thousands of hours of free legal help for the community are channelled through community legal centres (CLCs). Two recent publications by the National Association of Community Legal Centres illustrate how CLCs facilitate the volunteer programs (said over the years to be the lifeblood of CLCs) and pro-bono partnerships with law firms that have increasingly facilitated CLCs to provide their services, to strategically tackle unmet legal need and to improve social justice for disadvantaged or marginalised groups.
Lawyers who work at community legal centres usually choose their job because they want to use their expertise to help those most in need – the family facing eviction, the young person being treated unfairly at work, the woman trying to escape family violence or the elderly person trapped in an unfair credit contract. These motivations also induce private lawyers to become involved.
Private solicitor, Ron Lawford, has been volunteering at the Darwin CLC for over 20 years. Ron supervises the legal advice clinic on Monday nights. He finds the work rewarding, and he says it keeps him in touch with the “grassroots”, as he helps with day-to-day legal problems such as financial matters, family disputes and employment issues.
Richard Adamczyk started volunteering at Western Suburbs CLC in Melbourne when he was a law student, but in the 11 years since he was admitted to practice as a lawyer, he has continued to volunteer regularly. Richard finds this work very satisfying, and the CLC says that volunteers have enabled them to expand the service they provide.
Marrickville Legal Centre in Sydney is one of around 150 CLCs around Australia that have pro-bono partnerships with private law firms. Since 2007, law firm Corrs Chambers Westgarth has helped by providing lawyers to the centre to provide advice and casework to clients. One of these lawyers, Annabel Lee, who helped at the centre’s specialist youth legal service said, “It was extremely rewarding to be able to assist these young people and provide a positive contribution to their lives”.
The Arts Law Centre of Australia introduced an “adopt a lawyer” program, which links up private law firms with Aboriginal and Torres Strait Islander community arts centres. The arts centres appreciate access to legal help on governance and contractual issues which might otherwise be unavailable to them.
AED Legal Centre specialises in disability employment issues. A partnership with two law firms and the Victorian bar enabled the centre to run a case for underpaid disabled workers. The outcome of this important case impacted about 20,000 people with disability.
Pro bono and volunteer legal services are not a substitute for properly funded legal assistance through community legal centres and legal aid offices, but they make a very valuable contribution that increases access to justice for disadvantaged clients.
Many more examples of the astonishing commitment of individual volunteers (lawyer and non-lawyer) and the achievements of pro bono partnerships are highlighted in the Working collaboratively publications on volunteer and pro bono contributions.
Volunteer programs and pro bono partnerships provide benefits for clients as well as the lawyers providing the services. They also benefit the community as a whole by the provision of legal help with issues that could escalate (and increase pressure on the legal system) if not addressed.
Of about 150 centres that responded to the survey, 131 used volunteers comprising of about 4,500 volunteers contributing about 25,000 hours per week – over 85 per cent of those hours from lawyers or law students.
In addition, of these about 150 CLCs, 60% reported having worked with a pro bono partner in the previous year with over 50,000 hours being provided to the Centres and their clients (over 40,000 hours of direct help to clients) through pro bono partnerships.
For those interested in volunteering at a CLC start by looking at www.clcvolunteers.net.au to identify centres near you that may be seeking volunteers.
The Working Collaboratively reports can be found here.
A year after launching its Self-Representation Service (SRS) in the Supreme Court of South Australia as a 12 month pilot project, JusticeNet SA continues to provide pro bono assistance to self-represented litigants and has now expanded the service to the Federal Court.
JusticeNet’s SRS is closely modelled on the SRSs operated by the Queensland Public Interest Law Clearinghouse (QPILCH) since 2007. Similar services were launched last month by JusticeConnect in Sydney and Melbourne to support self-represented litigants in the Federal Court and Federal Circuit Court.
Like the QPILCH SRSs, JusticeNet SA’s SRSs have been very successful in diverting unmeritorious matters from court. The majority of the matters in respect of which assistance has been sought, fall into two categories – appellate proceedings or mortgagee repossession proceedings.
With regard to appellate matters, as at May 2014, seven of nine clients who were advised by the SRS against commencing an appeal, to withdraw an appeal already underway or to refrain from commencing proceedings, appear to have accepted that advice.
The assistance provided in respect of possession-related matters has helped disadvantaged clients to avoid repossession or at least mitigate its impact. For example, one client sought assistance to prevent repossession of the marital home pending the outcome of Family Court proceedings. The SRS helped the client to make an application to vary the possession orders to extend the time to deliver possession of the property to the lender. Other clients have been aided in negotiating hardship arrangements with lenders or to set aside improperly obtained orders.
An interesting observation of JusticeNet SA based on its experience of running the SRS is that a client is more likely to accept the advice of the service to settle, discontinue or refrain from commencing an action when that advice is coupled with practical legal task assistance. In its submission to the Productivity Commission, JusticeNet SA offered the following explanations, which highlight the value of the SRS early in the litigation process and throughout the course of a matter:
Lawyers on the SRS roster, supported by law student volunteers provided by Flinders University, provide such practical assistance. This may include ensuring litigants have the correct information to appear in court, have properly drafted documents and forms, have obtained advice on options for alternative dispute resolution and have received an explanation of court processes and gained some understanding of these.
Elizabeth Boxall, Referrals Lawyer, Tim Graham, Executive Director, JusticeNet SA
and Deborah Ankor, Director of Professional Programmes, Flinders University
Finlaysons, a South Australian-based firm, is one of the firms providing pro bono legal assistance via the JusticeNet SA SRS. However, given their strong banking practice and client base and the risk of associated conflict issues, they do not provide assistance in respect of any possession, bankruptcy or winding up proceedings or other issues arising in a banking/finance context.
Kirsten Dow, Head of Finlaysons’ Pro Bono Committee, noted that the SRS has provided a great opportunity for Finlaysons to increase its pro bono contribution.
“The SRS provides a readily accessible opportunity for a firm to provide pro bono legal assistance in both a meaningful and manageable manner.”
Kirsten is responsible for rostering and supervising Finalysons’ lawyers who participate in the SRS and has seen the benefits for the lawyers involved.
“Participating in the SRS can be a very rewarding experience for our lawyers, particularly those who are ordinarily engaged in a solely corporate-focussed legal practice. It allows our more junior lawyers to further develop their communication, legal skills and experience in an entirely different environment (and often in unique areas outside of their usual practice). They are appropriately supervised by more experienced lawyers with expertise in that specialty area, and have the opportunity to work with a different client base and feel as though they are making a contribution of a very different nature.”
On the occasions when Kirsten has provided advice to self-represented litigants as part of the SRS she said she has found it personally rewarding.
“It is very rewarding to see someone’s outlook and demeanour change after a consultation – often it means so much for a lawyer to have listened to them and to demystify some of the process.”
For more information about the SRS see JusticeNet’s website at www.justicenet.org.au/srs.html
The 3rd Annual Asia Pro Bono Conference held this year in Singapore has just closed. What was remarkable about it was how it illustrated the power of the concept of pro bono to make positive change in the region. The idea of lawyers doing free legal work for the public good was embraced not only through the traditional idea of helping indigent people, and the organisations that support them, with legal services but also as a tool to strengthen the rule of law and bar associations in the region, to help develop legal aid systems, and to help law students to learn about the law and go into the community to tell others about laws and human rights.
The power of this conference was demonstrated by the passionate expressions of speakers about what pro bono means to them, the broad community engagement at this conference and the diverse range of associated meetings that this conference spawned over nearly a week. The conference theme of “Public Private People Partnerships” resonated with the 350 plus delegates from over 25 countries, who attended. Conference proceedings were interpreted live into the languages of Myanmar, Laos, Thailand, and Vietnam and into English.
Mark Woods, Chair, Access to Justice Committee, Law Council of Australia with (l-r) Bar Association representatives from the
Philippines and Singapore, Malathi Das (Panel Chair), and Bar Association representatives from Malaysia, Laos and Myanmar
Strong speeches from the Senior Minister of the State Ministry of Law and Education in Singapore, a Judicial Commissioner from the State courts of Singapore, and the President of the Law Society of Singapore demonstrated their joint commitment to improve pro bono legal services in Singapore. More details on some of the recent initiatives taken and a full report of the conference will be provided in the next edition of National Pro Bono News.
Much of the thanks for this stimulating conference must go to the hosts, The Law Society of Singapore, the National University of Singapore, BABSEA CLE and BABSEA CLE Singapore, but also to the speakers at this and the previous Asia pro bono conferences who have so generously contributed their experiences. This shared knowledge has led to many people gaining not only a great enthusiasm for pro bono but also a much clearer understanding of how to develop a stronger pro bono culture in their respective countries.
Save the date NOW to join us at the 4th Annual Asia Pro Bono Conference and Legal Ethics Forum to be held in Mandalay in Myanmar from 4-7 September 2015. Further information is available on the conference website.
U Hla Ko, Mandalay Bar Association (with others from the Myanmar delegation) receiving the banner for the
next Asia Pro Bono Conference from Lok Vi Ming, SC, President, The Law Society of Singapore
Check out Social Justice Opportunities (www.sjopps.net.au) for information on finding a job or volunteering in the social justice sector. The website includes a ‘Latest Opportunities’ section, which provides a list of current employment and volunteering opportunities around the country.
If you would like to advertise a social justice job or volunteer position on the site, particularly one aimed at law students or new lawyers, please email us for details. It’s easy and free!
Here’s what’s going on in the Twitter feed right now:
Articles of interest to the pro bono community from August to October 2014. Click through to read any news article in full.
Taking good care of yourself includes getting legal help [media release]
Justice Connect Seniors Law has urged Victorian seniors not to be afraid to seek legal advice, even for what might seem at first like a trivial matter, during the 2014 Victorian Seniors Festival. Seniors Law offers free legal help to older Victorians who can’t get legal assistance any other way, through connecting pro bono lawyers drawn from the Victorian legal community to those who need them.
6 October 2014 – LawFuel
3 October 2014 – The Australian
2 October 2014 – Lawyers Weekly
30 September 2014 – Lawyers Weekly
25 September 2014 – ABC News
19 September 2014 – Clayton Utz
15 September 2014 – The Age
1 September 2014 – The Border Mail
1 September 2014 – NSW Department of Justice
29 August 2014 – Lawyers Weekly
24 September 2014 – Canadian Lawyer
29 August 2014 – Calgary Herald
28 August 2014 – The Canadian Press
31 August 2014 – Hong Kong Lawyer
28 August 2014 – The Wall Street Journal
5 October 2014 – The Straits Times
29 August 2014 – The Straits Times
28 August 2014 – Channel NewsAsia
19 September 2014 – Pioneers Post
1 September 2014 – The Law Society Gazette
21 September 2014 – Washington Times
17 September 2014 – Huffington Post
9 September 2014 – Boston Business Journal