Issue 73: July 2012
|Welcome to the July 2012 edition of the e-Newsletter of the National Pro Bono Resource Centre. We welcome your feedback/contributions/ideas – please email [email protected]. In this edition, read about:
The Centre has published a new report which finds that in the context of the increasing use of ADR as a way of resolving disputes, that lawyers need to be better equipped to assist people experiencing disadvantage.
The research finds that legal assistance can improve the ability of people experiencing disadvantage to effectively participate in ADR, for example by explaining the nature of the ADR process, ensuring that the ADR process is conducted fairly, advising on the strengths and weaknesses of the client’s case, and ‘reality testing’ any settlement options that may arise in the process.
However, the research also finds that to be effective in providing assistance to disadvantaged and marginalised parties participating in ADR, lawyers needed more than just knowledge of the law and legal skills. They also need to have a strong general knowledge about the legal issues that affect people experiencing disadvantage, the types and sources of their disadvantage, and the ADR skills and knowledge to navigate the specific type of ADR process being practised.
The report draws on the experience of those involved in organizing and delivering legal assistance to parties participating in ADR processes, particularly to people who cannot afford to pay for such assistance. Much of the substance of the report is contained in key comments extracted from submissions from a broad range of stakeholders including National Alternative Dispute Resolution Council (NADRAC), ADR practitioner professional associations, pro bono mediation services, legal aid, community legal centres, industry ombudsman schemes, community mediation services, ADR practitioners and academics.
The report will be of interest to all lawyers and ADR professional who assist people experiencing disadvantage.
A copy of the paper can be downloaded here.
A judgement by the Queensland Court of Appeal has implications for the ability of lawyers to recover costs from the losing party when representing their client on a pro bono basis in litigation, and firms and CLCs should review their costs agreements used in pro bono litigious matters.
The Queensland Court of Appeal in its judgement in King v King  QCA 81 has rejected the use of a condition, that the solicitor can recover costs from the client only in circumstances of a favourable court costs order, as a valid basis for the solicitor/client indemnity necessary for a court to make a costs order in the first instance.
Chesterman JA, in the lead judgement said:
Catch 22 it may be, but the reality is that the client’s liability to pay his solicitors stands on a whirligig which moves beneath it, and cannot support the need for an indemnity.
While the judgement did not turn on this point, and Wilson JA expressly declined to have a view on ‘the circularity argument’, this decision has come down clearly on one side of the differences of opinion expressed by Santow JA and Basten JA in the previous leading case of Wentworth v Rogers (2006) 66 NSWLR 474.
The decision in King was based on the court’s refusal to accept a variation to the costs agreement made only fifteen minutes before delivery of the judgement that sought to insert a “condition subsequent” to an agreement. The court said this variation ‘appeared artificial and of doubtful validity’ and in any event no consideration passed between the client and the solicitor for the variation. If it had been valid the court also indicated that it would not have been minded to exercise its discretion to make a favourable costs order as the ‘costs agreement appeared to be a contrivance to alter the nature of his representation ex post facto’.
However, in light of this further judicial statement that a condition subsequent cannot support the need for an indemnity upon which a costs order is based, it would seem prudent for law firms and CLCs acting pro bono in litigious matters to review their 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 not at any later point in time. This is akin to a no win/no fee agreement as to which there is no question of its validity.
Lawyers acting pro bono in litigious matters have typically used a form of conditional costs agreement – an agreement which provides that the lawyer will charge the client for his services only if the client is awarded costs in the matter and only to the extent that the client is able to recover costs from the losing party.
Whether such a “condition subsequent” in the costs agreement creates sufficient legal liability between client and solicitor to be the basis of an indemnity upon which a court can make a costs order, has been in doubt for some time. In Wentworth, 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. Basten JA, on the other hand, 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’.
The Queensland Court of Appeal in its judgement in King has agreed with Basten JA thus fuelling the controversy and highlighting the need for law reform that has previously been called for by the Centre, the Law Council of Australia, PILCH (VIC) and others to make clear that courts can award costs in pro bono matters regardless of the client contractually indemnifying the solicitor for costs. This change has occurred in the UK.
In calling for legislative change, the key issue is not costs recovery but ensuring that a level playing field exists between the parties as to their risk to pay the other’s costs. Without this level playing field the party being acted for pro bono is at a significant disadvantage when to comes to negotiating a settlement offer. Acting pro bono is significantly different from acting on a no win/no fee basis and the costs law should reflect this.
The first Asia Pacific Pro Bono Conference will be held in Vientiane, Laos PDR on 28-29 September 2012. The conference is being hosted by Bridges Across Borders Southeast Asia Community Legal Education Initiative (BABSEA CLE) and the National University of Lao, Faculty of Law & Political Science.
The conference theme is “Developing pro bono initiatives to strengthen access to justice in the Southeast Asia Region and Internationally” and aims to promote and explain the idea of pro bono, provide workshops for countries seeking to develop their legal pro bono culture, provide opportunities for law firms to identify possible projects in the region and discuss how law students and clinical legal education can play a part in the pro bono movement. The international organising committee for the conference includes Annette Bain from Freehills and John Corker from the Centre. The program can be seen online at the BABSEA CLE website. Registration is now open.
The Centre is currently undertaking a major research project titled “What Works in Pro Bono”. It is intended to create a practical resource that assists those involved in providing, seeking and brokering pro bono legal assistance to better understand best practice working models of pro bono assistance, such as case referral, specialist and outreach clinics, telephone advice, co-counselling and secondments.
The publication will identify different models of pro bono legal assistance and provide information about each model as follows:
Consultations with interested stakeholders are underway, with a particular focus on learning from the practical knowledge of those experienced with pro bono partnerships, and capturing that experience in case studies illustrating the features of successful projects. All pro bono coordinators were invited to be consulted for the project, and most of those who wished to participate have been interviewed. Further meetings with key community legal centres and pro bono clearinghouses and are continuing this month.
If you would have experiences or case studies that you would like to contribute, please contact the Centre’s Senior Policy Officer Leanne Ho on (02) 9385 7380 or [email protected].
The Centre in a joint bid with Hobart Community Legal Service (HCLS) has been awarded a grant under the NBN Regional Legal Assistance Program to research using the NBN to provide pro bono legal support in regional Tasmania. It is proposed that lawyers at firms in capital cities on the mainland would provide support to the HCLS legal team and legal advice to clients of HCLS at the existing HCLS outreach service at Sorell in Tasmania.
The total grant amount of $59,700 (ex GST) is to provide for installation of equipment, promotion of the outreach service, and detailed data collection and reporting of the experience of users of video conferencing and other online support facilities using the NBN.
The Centre would like to establish a dedicated team of lawyers who would be involved in the service design from the beginning, and willing and able to participate in service delivery from September 2012 to at least June 2013.
Firms interested in being involved in this project should contact Leanne Ho on (02) 9385 7380 or [email protected].
The fifth annual Walk for Justice took place on National Pro Bono Day, Tuesday 15 May 2012 in New South Wales, Queensland, South Australia and Victoria.
Every year the number of participants and money raised has increased steadily, but 2012 marked a massive growth in the event’s success. The amount raised nationally for the participating pro bono clearing houses more than doubled, from $34,000 in 2011 to more than $68,000 in 2012.
The support for th e Walk shown by patrons, firms and individuals was impressive. In Brisbane, the Hon Paul de Jersey AC, Chief Justice of Queensland, again agreed to lead the Walk, along with the Hon Jarrod Bleijie MP, Attorney-General of Queensland. In Adelaide, Fisher Jeffries, a firm with less than 60 staff, was the top fundraising firm. PILCH NSW for the first time held a Walk in Newcastle as well as Sydney and celebrated the participation of 49 walkers from Henry Davis York. In Melbourne, Minter Ellison had the honour of carrying the Lady Justice flag for adding $2,400 to PILCH Victoria’s coffers.
The character of the event is a tribute to the organiser in each State. QPILCH, for example, has a definite community and student focus and on a warm Brisbane morning, attracted around 700 walkers, the most in the country. JusticeNet SA managed to raise the most money of all the Walks (approx $20,000) despite having the lowest number of walkers on a cold Adelaide morning. A little of the traditional Sydney-Melbourne rivalry was sparked by a challenge initiated by PILCH NSW to raise more money than PILCH VIC, helping to markedly increase sponsorship in both cities (of course, it’s not really a competition… but sorry Sydney, Melbourne came out ahead raising $19,600 to Sydney’s $17,500). We look forward to the Walks in 2012!
The Walk for Justice is still looking for a national sponsor. Please contact the Centre if you wish to discuss. For reports and pics from each state’s Walk for Justice, please refer to one of the pages below:
At an event held on 30 May 2012 in Melbourne, attended by about 70 lawyers from law firms and corporate and government in-house legal teams, the National Pro Bono Professional Indemnity Insurance Scheme (“the Scheme”) was officially launched in Victoria together with a new guide to in-house pro bono prepared by law firm DLA Piper.
The Scheme’s terms and conditions were approved by the Victorian Legal Services Board on 14 May 2012 as an appropriate PI insurance policy for corporate legal practitioners under the new amendments to the Victorian Legal Profession Act.
The event was addressed by Victorian Attorney-General the Hon. Robert Clark, John Corker, Executive Director for the National Pro Bono Resource Centre, Gregor Husper, Director of Referral Services, the Public Interest Law Clearing House in Victoria (PILCH (Vic)) and Michael Coleman, General Counsel for Telstra.
The Scheme provides free PI insurance cover for lawyers undertaking pro bono legal work on pro bono projects approved by the Centre and is underwritten by insurer LawCover. The Scheme was first launched in NSW in July 2009 and already provides insurance cover for lawyers working on pro bono projects in NSW and Queensland.
The Centre has created a new dedicated web page for in-house lawyers that contains resources and links to assist both corporate and government lawyers to create and develop pro bono programs and opportunities.
Congratulations are due to Joanna Renkin, the Melbourne based pro bono and community support coordinator at Lander & Rogers who was made a partner last week.
Through her passion, drive and energy she has taken an almost non-existent pro bono practice and developed it into a sophisticated and diverse pro bono practice in Melbourne and Sydney in less than three years.
Lander & Rogers works closely with PILCH in Victoria and NSW and invests more than two per cent of its annual total revenue in pro bono work.
Check out Social Justice Opportunities 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 jobs and volunteering opportunities around the country. Currently there are more than twenty positions listed.
Articles of interest to the pro bono community from May to July 2012. Click through to read any news article in full.
22 May 2012 – Sky News Social Business
The interview covers the role of the Resource Centre, aspirational targets, government pro bono tender conditions, socialneeds.net.au and the Centre’s goals for the future.
29 June 2012 – Lawyers Weekly
23 June 2012 – Sydney Morning Herald
An increasing number of people in NSW are being shut out of the justice system because they are refused legal aid and are too poor to pay for a lawyer. New figures obtained by the Herald reveal there has been a 41 per cent rise in the number of people refused help from Legal Aid NSW because they earn more than the income test threshold of $318 a week.
23 June 2012 – The Australian
13 June 2012 – Coffs Coast Advocate
12 June 2012 – Lawfuel.co.nz
12 June 2012 – Brimbank Weekly
11 June 2012 – The Australian
11 June 2012 – Bendigo Advertiser
8 June 2012 – InternationalProBono.com
5 June 2012 – American Bar Association Journal
29 May 2012 – Lawyers Weekly
29 May 2012 – WA Today
28 May 2012 – Jacksonville Daily Record
26 May 2012 – Brisbane Times
29 May 2012 – The New Lawyer
18 May 2012 – Law Society Gazette
14 May 2012 – The Punch
9 May 2012 – Lawyers Weekly
7 May 2012 – National Law Journal