In-house pro bono in England and Wales – an international perspective

The Law Society of England and Wales recently released a Practice Note entitled In-House pro bono practice: regulatory requirements to assist in-house lawyers that are wishing to offer pro bono services in that jurisdiction. The significant restrictions enumerated in the Practice Note highlight the progressive regulatory environment in Australia, and the comparatively broad range of pro bono opportunities available to Australian in-house counsel. In-house counsel in most Australian jurisdictions are currently permitted to undertake pro bono legal work, with only Tasmania and the Northern Territory not facilitating corporate lawyers to give pro bono legal advice.

As in Australia, in-house solicitors in England and Wales generally obtain an exemption from the requirement to obtain professional indemnity insurance (PI insurance) on the basis that they only do legal work for, and provide legal advice to, their employer. This means in Australia, England and Wales that most in-house counsel are not insured for any legal work they do for third parties, including pro bono clients. Where an Australian in-house lawyer or team partners with a pro bono referral scheme, organisation or community legal centre, it is likely that the partner organisation’s professional indemnity insurance may extend to cover the in-house team’s pro bono legal work.

For projects or programs that are not otherwise covered by PI insurance, the Australian Pro Bono Centre operates the National Pro Bono Professional Indemnity Insurance Scheme, which provides Australian lawyers with free professional indemnity insurance for approved pro bono projects. In England and Wales, in-house counsel can partner with a law firm on a pro bono project, create a pro bono program that is insured as part of the employer’s business, or join LawWorks, a charity which provides PI insurance coverage for pro bono activities undertaken via the LawWorks programmes.

However, in England and Wales, in-house counsel are generally unable to provide legal services in connection with “reserved legal activities” unless it is part of the employers business, including advocacy and the conduct of litigation. A pro bono program may be considered “part of the employers business” in certain circumstances, including if the work is required, the employer provides management, supervision, PI insurance or training or the employer publicises the pro bono efforts. By contrast, in-house counsel in most Australian jurisdictions are not limited in the type of pro bono work they may undertake.

For more information on undertaking pro bono legal work as a part of an in-house legal team in Australia, see For In-House Lawyers and Legal Teams.