This chapter outlines the importance of adopting a clear definition of pro bono legal work and provides examples of Australian and international definitions of pro bono, which are often used in conjunction with aspirational targets for pro bono legal work.
A coordinated pro bono program requires a definition of pro bono legal work to clarify the structure and ambit of the program and against which requests and referrals for pro bono assistance can be assessed. A definition also enables a firm to communicate its expectations and priorities to its partners, staff, and the community, and allows for the planning of targeted projects. A definition is particularly important when the firm needs to meet pro bono targets, so it can correctly classify pro bono legal work. A well understood definition is also required if pro bono legal work is to be recorded for performance evaluation, or as a contribution to a lawyer’s billable hours quota or work effort generally.
A firm’s definition of pro bono legal work is usually set out in its pro bono policy. Some pro bono policies provide a definition with criteria that must be met before a pro bono matter is taken on. Others may have a general definition and provide more explicit criteria elsewhere in the policy, or in other documents or manuals. The most useful approach is a policy that includes a general definition plus criteria, with the latter adjusted from time to time as the firm’s focus or capacity evolves.
1.2.1 THE NATIONAL PRO BONO TARGET
The Australian Pro Bono Centre’s National Pro Bono Target (Target), established in 2007, is now a widely accepted benchmark for measuring pro bono legal services. For example, the Australian Commonwealth government requires all legal services providers to sign up to the Target, use their best endeavours to meet or exceed it, and maintain records and report on pro bono work at the end of the financial year under the Whole of Australian Government Legal Services Panel (the procurement model for external legal services). The New South Wales, Queensland, South Australian, Victorian and Western Australian Governments also require their panel legal services providers to meet certain pro bono requirements.
Signing up to the Target is voluntary. By becoming a signatory, law firms, incorporated legal practices, individual lawyers and barristers agree to strive to achieve the target of at least 35 hours of pro bono legal services per lawyer per year. Signatories to the National Pro Bono Target endorse, as applicable, a Statement of Principles.
The Centre opened up the Target on 1 July 2020 to in-house legal signatories who commit to use their best endeavours to achieve at least 20 hours of pro bono legal services per in-house lawyer per year. The Centre, in consultation with the In-house Pro Bono Steering Committee,has decided to take a staged approach and will review whether this hourly target should be raised to be aligned with other legal professionals in the future. The 20-hour benchmark reflects what many in-house lawyers are already doing and takes into consideration the unique context for in-house legal professionals.
The definition of ‘pro bono legal services’ adopted for the purposes of the Target is also used in the Centre’s biennial National Law Firm Pro Bono Survey.While there are different definitions of pro bono, examples of which are set out below, the Target definition reflects the general approach taken by firms in Australia and internationally regarding what constitutes pro bono legal work. For Australian firms on the Commonwealth Whole of Australian Government Legal Services Panel or the legal services panel of most of the Australian State governments, adopting the Target definition will also allow them to use the same set of data for internal reporting as for external reporting.
The definition of ‘pro bono legal services’ included in the Target Statement of Principlesand adopted in the National Law Firm Pro Bono Survey is as follows:
- Giving legal assistance for free or at a substantially reduced fee to:
- individuals who can demonstrate a need for legal assistance but cannot obtain Legal Aid or otherwise access the legal system without incurring significant financial hardship; or
- individuals or organisations whose matter raises an issue of public interest which would not otherwise be pursued; or
- charities, other non-profit organisations or social enterprises, in each case where their sole or primary purpose is to work in the interests of low income or disadvantaged members of the community, or for the public good;
- Conducting law reform and policy work on issues affecting low income or disadvantaged members of the community, or on issues of public interest;
- Participating in the provision of free community legal education on issues affecting low income or disadvantaged members of the community or on issues of public interest; or
- Providing a lawyer on secondment at a community organisation (including a community legal organisation) or at a referral service provider such as a Public Interest Law Clearing House.
The following is NOT regarded as pro bono legal work for the purposes of this statement:
- giving legal assistance to any person for free or at a reduced fee without reference to whether that person can afford to pay for that legal assistance or whether that person’s case raises an issue of public interest;
- free first consultations with clients who are otherwise billed at a firm’s normal rates;
- legal assistance provided under a grant of legal assistance from Legal Aid;
- contingency fee arrangements or other speculative work which is undertaken with a commercial expectation of a fee;
- the sponsorship of cultural and sporting events, work undertaken for business development and other marketing opportunities; or
- time spent by lawyers sitting on the board of a community organisation (including a community legal organisation) or a charity.
This definition covers not only legal advice and representation but also law reform, community legal education and secondments to community legal organisations. It is limited to work done by lawyers (including graduates, but not paralegals). It does not cover forms of assistance that firms may wish to include as an adjunct to their pro bono programs, such as secondments of non-legal staff and/or the provision of financial or in-kind assistance to community organisations engaged in activities that enhance access to justice (including CLCs and pro bono referral schemes and organisations). Importantly, the definition also makes it clear that certain types of work are not considered pro bono legal work.
The Centre has produced the following Guidance Notes to assist Target signatories record and report their pro bono legal work in accordance with the definition in a consistent way.
PART 1 – General
- Only work that involves the delivery of pro bono legal services as defined for the purposes of the Target should be reported.
- Many firms, in-house legal teams and organisations have Community Service and Corporate Social Responsibility programs under which their lawyers and non-lawyers provide a broad range of community service work. Examples of this include literacy and mentoring work, and volunteering to provide services at community organisations. These programs may also involve the firm, in-house legal team or organisation donating to charities. These activities do not fall within the definition of “pro bono legal services” and should not be reported.
- Signatories should calculate the number of full-time equivalent (FTE) lawyers for the year by using the average of the number of FTE lawyers at the first day and the last day of the reporting financial year.
(FTE lawyers at 1 July + FTE lawyers at 30 June) ÷ 2
- All signatories that signed up to the Target during the reporting period must report their hours, regardless of how recently they became a signatory. If a signatory is a new Target signatory (i.e. signed up to the Target on or after 1 July, but on or before 30 June of the reporting period), they should only report on the pro bono hours undertaken since they became a Target signatory – not the whole financial year.
- “Firm’s lawyers”or “in-house legal team’s lawyers”, as applicable, includes law graduates not yet admitted to legal practice and thus their pro bono hours should be reported. It does not include paralegals, and their hours should not be reported as pro bono hours.
- Signatories have the option of separately reporting paralegal hours where the work performed is of a legal nature and would otherwise be charged to the client if it were a commercial matter.
- Time recorded for the purpose of delivering pro bono legal services should be treated in the same way that work performed for commercial clients is treated. In this respect, each signatory firm’s or in-house legal team’s policies for the treatment of travel time should apply to their pro bono legal work.
- Each signatory should have systems in place to ensure that accurate records are kept of the pro bono legal work performed.
- Pro bono legal services may include international pro bono legal services,that is, pro bono legal work undertaken:
- outside Australia, by lawyers who are supervised by, or provided from, an office based in Australia
- for clients based outside Australia, by lawyers based in Australia; or
- for organisations based in Australia where the work concerns an initiative outside Australia.
- When reporting on the percentage of the firm or in-house team’s lawyers that did at least one hour of pro bono legal work in the reporting period, the response should capture the staff’s overall engagement in pro bono. Please therefore report on the percentage of the total number of lawyersin the firm or in-house legal team throughout the year that participated in at least one hour of pro bono work, including those who commenced work for or left the firm or in-house legal team throughout the year (and not the percentage of FTE lawyers).
- In relation to pro bono legal services provided for a “substantially reduced fee”:
- Signatories will be asked to report separately on pro bono legal services provided for a “substantially reduced fee” compared to pro bono legal services provided for no fee.
- “Substantially reduced fee” pro bono hours reported to the Centre should only count on a pro rata basis based on the proportion that the reduced fee bears to the fee that would otherwise be charged. For example, if the fee charged is reduced by 75% of what would otherwise be charged for the matter, then 75% of the hours worked on the matter can be counted towards the Target.
- The Centre will only count “substantially reduced fee” hours reported against the Target if those fees have been reduced by at least 50% of what would otherwise be charged for the matter.
- The term “otherwise be charged for the matter” as used in this Note 11 refers to what the fee would be if the matter were not considered a pro bono matter.
PART 2 – PRO BONO WORK FOR CHARITIES, OTHER NOT-FOR-PROFIT ORGANISATIONS AND SOCIAL ENTERPRISES
The following Guidance Notes relate specifically to clause 1(c) of the definition of “pro bono legal services”:
In assessing whether legal work for a charity, other not-for-profit organisation or social enterprise should be undertaken on a pro bono basis, the key factor is whether the mission and impact of the organisation is likely to benefit low income or disadvantaged members of the community, or be for the public good.
To be for the public good the mission of the organisation must be to advance a broad public interest, namely that it is likely to affect a significant number of people and/or that it raises a matter of broad public concern.
Mission alone may be a sufficient determinant subject to the unique criteria to be considered for social enterprises (see below).
If the mission that would justify the matter being a pro bono one is partial, or not sufficiently compelling, the nature of the proposed legal matter should be considered. If the matter is one that aims to benefit a low income, socially disadvantaged or a marginalised individual or group, or is clearly in the broader public interest, the matter may be considered a pro bono legal matter.
Where neither the mission nor matter is itself conclusive, a matter may still be considered a pro bono legal matter if the organisation cannot afford to pay for legal services. However, a lack of means alone is not sufficient to meet the criteria for pro bono legal work. Other factors for consideration may include all or any of:
- the constituency ordinarily served by the organisation and their disadvantage (if any);
- the nature and extent of the legal services requested and the possible outcome if legal services are not obtained;
- whether the organisation has been referred by a pro bono legal referral agency;
- the overall financial position of the organisation; and
- the stage of development of the organisation.
Social enterprises are not defined in Australian law but for the purposes of this Guidance Note their key characteristics are that they operate as a business seeking to generate revenue and have a primary social, humanitarian, cultural or environmental mission. Social enterprises aim to benefit the public and the community rather than shareholders and owners.
Since the circumstances of each social enterprise will be different, professional judgment should be applied in each case.
Work for social enterprises will be considered pro bono legal work if:
(a) Profit Allocation: At least 50 percent of the social enterprise’s profit is used or to be used to support its mission, whether as a continual re-investment into the enterprise itself or donation to a third-party charity or other not-for-profit organisation.
To demonstrate that a social enterprise reinvests at least 50 percent of its profits to support its mission, the pro bono legal service provider could seek documented evidence, which may include:
- the social enterprise’s governing documents;
- evidence of commercial joint ventures with charitable or not-for-profit organisations;
- evidence of the social enterprise’s historic payout to investors or owners, if relevant; and/or
- other publicly available information; and
(b) Phase and Duration of Engagement
The pro bono relationship is viewed, from its inception, as lasting only until the social enterprise becomes profitable from a market perspective and can pay for reasonably-priced legal services.
The size and phase of development of the social enterprise should therefore be considered. Early-stage start-up ventures will often have less capacity to pay for legal services than more established enterprises.
The duration of the pro bono legal representation should be determined on a case-by-case basis with reference to, for example, when:
- the social enterprise closes its first round of funding;
- the social enterprise begins to generate revenue or profit; or
- the annual profits of the social enterprise exceed a pre-determined amount.
Additional criteria to be considered in determining whether a social enterprise is eligible for pro bono legal assistance may include:
- Cost ratio: the ratio of expenditure on administrative costs (including remuneration of owners, directors and employees of the social enterprise) compared to expenditure on programs or services of the social enterprise in pursuit of its social, humanitarian, cultural or environmental mission;
- Funding sources and expected investor rates of return: the funding sources of the social enterprise and the rate of return expected by investors. Whether the social enterprise is funded through debt or equity or a hybrid of both, the social return expected by investors should be weighed against the expected financial return.
Social enterprises that are funded by low (below market) interest loans or other debt instruments and/or through share purchase where equity investors expect a below market rate of return are more likely to qualify for pro bono legal assistance by prioritising their Social Mission above financial return;
- Suppliers: whether any other service providers or suppliers to the social enterprise are providing services on a commercial basis;
- State of market: the state of development of the market(s) in which the social enterprise operates; and
- Joint venture arrangements: any joint venture arrangements with other organisations.
1.2.2 OTHER DEFINITIONS OF PRO BONO
LAW COUNCIL OF AUSTRALIA
In 1992, the Law Council of Australia developed the following definition of pro bono legal work:
- A lawyer, without fee or without expectation of a fee or at a reduced fee, advises and/or represents a client in cases where:
- a client has no other access to the courts and the legal system; and/or
- the client’s case raises a wider issue of public interest; or
- The lawyer is involved in free community legal education and/or law reform; or
- The lawyer is involved in the giving of free legal advice and/or representation to charitable and community organisations.
Like the Target definition, the Law Council definition is limited to work done by lawyers, but in many ways it is broader than the Target definition. For example, there is no requirement in the Law Council’s definition, as there is in the Target definition, that:
- the client’s case which raises a wider issue of public interest ‘would not otherwise be pursued’;
- charitable or other community organisations need to ‘work on behalf of low income or disadvantaged members of the community or for the public good’; or
- the provision of free community legal education be focused ‘on issues affecting low income or disadvantaged members of the community or on issues of public interest’.
Prior to the establishment of the Target, the Law Council’s definition was used by many firms and remains the definition that applies to the Centre’s National Pro Bono Professional Indemnity Insurance Scheme, although the Scheme does not permit ‘reduced fee’ work. The application of this broader definition in the context of providing professional indemnity insurance cover is consistent with the Scheme’s aim of encouraging as many in-house and volunteer lawyers as possible to undertake pro bono projects.
VICTORIAN GOVERNMENT LEGAL SERVICES PANEL
Firms appointed to the Victorian Government’s Legal Services Panel are entitled to provide legal services to departments and participating statutory bodies. Since 2002, firms appointed to the Victorian Panel have been required to commit to providing legal and non-legal services on a pro bono basis to an ‘Approved Cause’ (or to make a payment in lieu) equivalent in value to a nominated percentage of the fees they generate under the panel arrangements. Unlike the Commonwealth requirement that firms undertake to use their ‘best efforts’ to meet the Target, the Victorian scheme requires firms to actually perform an agreed amount of Pro Bono Services (defined with reference to Approved Cause), measured in dollar terms rather than hours.
The Victorian Government has defined an ‘Approved Cause’ in Schedule 7 of their Deed of Standing Offer for the Provision of Legal Services as follows:
1.3 Approved Cause
b) For the purposes of a Panel Contract an “Approved Cause” is the provision of any services by lawyers or other staff based in Victoria or other financial or in kind assistance which will enhance access to justice for disadvantaged persons or organisations and/or promote the public interest including but not limited to circumstances where a Panel Firm:
- without fee or without expectation of a fee or at a reduced fee, advises and/or represents a client in cases where:
- a client has no other access to the courts and the legal system; and/or
- the client’s case raises a wider issue of public interest; or
- undertakes the following, provided the provision of these services or financial or in kind assistance will enhance access to justice for disadvantaged persons or organisations and/or promote the public interest:
- is involved in free community legal education and/or law reform;
- is involved in the giving of free legal advice and/or representation to charitable and community organisations;
- provides staff (legal or other) on secondment to a CLC or other community organisation; or
- provides financial or in kind assistance (e.g. equipment, sponsorship etc) to a CLC or other community organisation.
The key difference between the Target and Victorian Panel definitions is that the latter includes work by non-lawyers and non-legal assistance, such as financial and in-kind contributions or sponsorship. It should also be noted that the Victorian Panel requires that assistance to CLCs and community organisations enhance access to justice for disadvantaged persons or organisations and/or promote the public interest, while the Target includes work for charities or other non-profit organisations which work on behalf of low-income or disadvantaged members of the community or for the public good — the latter arguably being a wider category.
WESTERN AUSTRALIAN PRO BONO LEGAL SERVICES MODEL
The WA Pro Bono Legal Services Model adopts the Centre’s definition of “pro bono legal services” and requires firms who provide legal services to the WA Government to be signatories to the Target.
However, law firms who provide legal services to the WA Government are required to commit to undertake pro bono work for “approved causes” in Western Australia, to the value of at least 10% of the value of each firm’s Government legal work.
“Approved causes” are defined to mean the provision of pro bono legal services:
- to people in Western Australia who cannot obtain Legal Aid or otherwise access the legal system without incurring significant financial or other hardship;
- which will enhance access to justice for disadvantaged people in Western Australia;
- to Law Access, a community legal centre in Western Australia, the Aboriginal Legal Services of Western Australia, and to bodies in Western Australia whose primary focus is representation of Aboriginal people; or
- by way of secondment of legal staff to Law Access, a community legal centre in Western Australia, the Aboriginal Legal Services of Western Australia, or bodies in Western Australia whose primary focus is representation of Aboriginal people.
The key difference between the Target definition and WA’s definition of “approved causes” lies in the approach taken to providing pro bono legal services to organisations. Under the WA model, the definition will only be met if pro bono assistance is provided to specific not-for-profit organisations (such as Law Access and the Aboriginal Legal Services of Western Australia). By contrast, the Target definition takes a broader approach, allowing pro bono assistance to be provided to any charity, not-for-profit organisation or social enterprise so long as the organisation’s sole or primary purpose is to work in the interests of low income or disadvantaged members of the community (or for the public good).
Below are links to a selection of the most influential international definitions of ‘pro bono legal work’ and its variants.
- American Bar Association – Model Rules of Professional Conduct, Model Rule 6.1 (Voluntary Pro Bono Publico Service)
- Pro Bono Institute – Law Firm Pro Bono Challenge® and Corporate Pro Bono Challenge®
- New York Bar Association and Cyrus R. Vance Center for International Justice – Pro Bono Declaration of the Americas
- Singapore – Legal Profession (Mandatory Reporting of Specified Pro Bono Services) Rules 2015
- Thomson Reuters Foundation – TrustLaw Index of Pro Bono
- South Africa – Rules for the Attorneys’ Profession
- United Kingdom – UK Collaborative Plan for Pro Bono
- LawWorks – Joint Pro Bono Protocol for Legal Work
For more information on other definitions of pro bono, visit the Centre’s website here.
1 For more information about the Whole of Australian Government Legal Services Panel arrangements, see: Australian Pro Bono Centre, ‘Commonwealth Government Legal Services Panel’, Provide Pro Bono Assistance (Web Page) <https://www.probonocentre.org.au/provide-pro-bono/government-tender-arrangements/commonwealth-government-legal-services-panel/>.
2 For more information, see: Australian Pro Bono Centre, ‘Pro Bono Requirements in Government Tender Arrangements for Legal Services’, Provide Pro Bono Assistance (Web Page) <https://www.probonocentre.org.au/provide-pro-bono/government-tender-arrangements/>.
3 For more information about the In-House Counsel Pro Bono Steering Committee, see: Australian Pro Bono Centre, ‘Pro Bono Portal: In-House Legal Teams and Lawyers’, Provide Pro Bono Assistance (Web Page) <https://www.probonocentre.org.au/provide-pro-bono/in-house/>.
4 Australian Pro Bono Centre, The National Law Firm Pro Bono Survey, Information on Pro Bono (Web Page) <https://www.probonocentre.org.au/information-on-pro-bono/survey/>.
5 Australian Pro Bono Centre, ‘Statement of Principles’, Provide Pro Bono Assistance (Web Page) <http://probonocentre.org.au/provide-pro-bono/aspirational-target/statement-of-principles/>.
6 Australian Pro Bono Centre, ‘Guidance Notes on Reporting ‘Pro Bono Legal Services’’, Provide Pro Bono Assistance (Web Page) <https://www.probonocentre.org.au/provide-pro-bono/target/guidance-notes/>.
7 Where a new Target firm or in-house legal team is reporting for a period less than a full financial year, the number of FTE lawyers should be calculated by using the average number of FTE lawyers at the first day and the last day of the reporting period.
8 For the purposes of these Guidance Notes, “firm’s lawyers” refers to lawyers and law graduates at a law firm or at an incorporated legal practice, as appropriate.
9 References to “in-house legal teams” and “in-house lawyers” in these Guidance Notes refer to in-house corporate and government legal teams and lawyers.
10 In this context references to “community” in the definition of “pro bono legal services” include communities outside of Australia.
11 Law Council of Australia, Law Council of Australia Policy Statement: Pro Bono Publico — For the Public Good, 1995, Resources (Web Page, 18 October 1995) <https://www.lawcouncil.asn.au/resources/policies-and-guidelines/pro-bono-publico-for-the-public-good>.
12 For further information, see: Australian Pro Bono Centre, ‘National Pro Bono PI Insurance Scheme’, Provide Pro Bono Assistance (Web Page, February 2022) <http://probonocentre.org.au/provide-pro-bono/pi-insurance-scheme/>.
13 Victorian Government Solicitor’s Office, ‘Deed of Standing Offer for the Provision of Legal Services’, Legal services panel contract (Web Page, July 2019) sch 7 cl 2.1(b) <https://www.vic.gov.au/legal-services-panel-contract>.
14 Department of Justice State of Victoria, Legal Services Panel Contract (Web Page, 2019) <https://www.vic.gov.au/legal-services-panel-contract>; Victorian Government Solicitor’s Office, ‘Deed of Standing Offer for the Provision of Legal Services’, Legal services panel contract (Web Page, July 2019) sch 7 cl 1.3(b) <https://www.vic.gov.au/legal-services-panel-contract>.