Should we change the definition of “pro bono legal services”?

Should “low-bono” work count as “pro bono”? Should “pro bono” include work done for clients operating for profit?

These important questions and others around the definition of “pro bono legal services” are open for public discussion in National Pro Bono Aspirational Target: The Target at Ten Years, a paper released by the Centre to mark a decade of the Target.

Defining “pro bono legal services” is fundamental to a structured pro bono practice. In a broader sense, a shared understanding of what we mean by “pro bono” supports a cohesive Australian pro bono culture. The Centre’s definition of “pro bono legal services” is used by 93% of large and mid-sized law firms, and it underpins the Target and the pro bono obligations in several government tender schemes for legal services. “Pro bono” is given a similar meaning by the Law Council of Australia, the Law and Justice Foundation of NSW and the Victorian Government Department of Justice and Regulation (see these other definitions here).

Although this might suggest a degree of consensus on the definition, the Centre recognises that what should or shouldn’t count as “pro bono legal services” may evolve.

One question raised in the paper is whether “low-bono” – in other words, substantially reduced-fee work – should count as “pro bono” when that work is done for a disadvantaged individual or for an organisation for the public good. Reduced-fee work is included in the Centre’s current definition so as to encourage firms to take on public interest matters for charities, not-for-profits or social enterprises operating on a tight budget. But does work done for “a substantially reduced fee” cast the net too widely? Might this dilute pro bono’s core purpose of providing access to justice?

A separate question is whether “pro bono” should extend to clients operating wholly or partly for profit. The Centre’s definition does include work for organisations (whether NFP or ‘for profit’) whose matter raises an issue of public interest rather than private interests, and which would not otherwise be pursued. But the definition may not include work for various types of for-profit social enterprise whose mission is to help disadvantaged people or particular communities.  While a number of firms act for these organisations, not all will count the work as pro bono.

Although change for the sake of change has little merit, it’s important that the definition of “pro bono legal services” stays relevant by keeping up with current legal practice, and accommodating new or emerging models of legal services. The Centre welcomes your response to these, and other, issues raised in the Discussion Paper.

The full discussion paper is available here. Responses are due by 30 November 2017.

For more information about the National Pro Bono Aspirational Target, see here.