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 in order 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 the 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 where the firm has pro bono targets in order to 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 is usually set out in its pro bono policy. Some firms’ 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 ASPIRATIONAL TARGET
The Australian Pro Bono Centre’s National Pro Bono Aspirational Target, established in 2007, is now a widely accepted benchmark for measuring pro bono legal services. For example, the Commonwealth Government now requires firms with 50 or more full-time equivalent lawyers to sign up to the Target in order to qualify for the Legal Services Multi-Use List (LSMUL), the gateway to tendering for legal work from most Commonwealth agencies.1
Signing up to the Target is voluntary. By becoming a signatory, law firms, individual lawyers and barristers agree to strive to achieve the aspirational target of at least 35 hours of pro bono legal services per lawyer per year.
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.2 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. Adopting the Target definition will also allow a firm to use the same set of data for internal and external reporting purposes, such as reporting to the Office of Legal Services Coordination as part of the LSMUL.
The definition of ‘pro bono legal services’ included in the Target Statement of Principles3 and 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 or other non-profit organisations which work on behalf 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 he/she can afford to pay for that legal assistance or whether his/her 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 covers not only legal advice and representation but also law reform, community legal education and secondments to community legal organisations, and 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 PBROs). 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.
- Only work that involves the delivery of pro bono legal services as defined for the purposes of the Target should be reported.
- Many firms 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 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 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
(Where a new Target firm 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.)
- ‘Firm’s lawyers’ 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.4
- 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 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.
In this context references to ‘community’ in the definition of ‘pro bono legal services’ include communities outside of Australia.
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.5
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.6 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
Since 2002, firms appointed to the Victorian Government’s Legal Services Panel, entitling them to provide legal services to departments and participating statutory bodies, 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.7 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 the following way:
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 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 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 (eg equipment, sponsorship etc.) to a CLC or other community organisation.8
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.
Below is a selection of the most influential international definitions of ‘pro bono legal work’ and its variants.
AMERICAN BAR ASSOCIATION
Model Rule 6.1 (Voluntary Pro Bono Publico Service) of the American Bar Association’s Model Rules of Professional Conduct provides that every lawyer should aspire to provide 50 hours of ‘pro bono publico legal services per year’.
The American Bar Association provides the following guidance on the meaning of ‘pro bono publico legal services’ in Model Rule 6.1:
Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year. In fulfilling this responsibility, the lawyer should:
- provide a substantial majority of the (50) hours of legal services without fee or expectation of fee to:
- persons of limited means or
- charitable, religious, civic, community, governmental and educational organizations in matters which are designed primarily to address the needs of persons of limited means; and
- provide any additional services through:
- delivery of legal services at no fee or substantially reduced fee to individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization’s economic resources or would be otherwise inappropriate;
- delivery of legal services at a substantially reduced fee to persons of limited means; or
- participation in activities for improving the law, the legal system or the legal profession.
In addition, a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means.9
The majority of US States have adopted the Model Rules.10
PRO BONO INSTITUTE
The Law Firm Pro Bono Challenge® was established by the US based Pro Bono Institute in 1995. Law firms with 50 or more lawyers are eligible to become signatories to the Challenge. Law firms that become signatories can nominate one of two minimum annual targets for ‘pro bono work’:
- five percent of the firm’s total billable hours or 100 hours per attorney; or
- three percent of the firm’s total billable hours or 60 hours per attorney.11
For the purpose of the Challenge pro bono:
Refers to activities of the firm undertaken normally without expectation of fee and not in the course of ordinary commercial practice and consisting of:
- the delivery of legal services to persons of limited means or to charitable, religious, civic, community, governmental, and educational organizations in matters which are designed primarily to address the needs of persons of limited means;
- the provision of legal assistance to individuals, groups, or organizations seeking to secure or protect civil rights, civil liberties, or public rights; and
- the provision of legal assistance to charitable, religious, civic, community, governmental, or educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization’s economic resources or would be otherwise inappropriate.12
The formulation of the Challenge goal as a percentage of total firm billable hours seeks to underscore the institutional commitment that pro bono represents and ‘ties pro bono to firm productivity and profitability.’13 Approximately 140 of the United States’ largest law firms have become Challenge signatories with virtually all of the signatories to the Challenge nominating one of the Challenge’s percentage of total billable hours goals, rather than an hours per attorney goal.
In 2006 a review by the Legal Aid Review Committee in Singapore found that:
Basic legal services are not within the reach of the poor when their income levels are so low that they are hard put to meet their basic needs.14
As part of this Review the Committee recommended that every lawyer should be encouraged to pledge 25 hours per year to pro bono work.15 The Committee’s other main recommendation was the establishment of the Pro Bono Services Office at the Law Society of Singapore to manage and develop the Law Society’s pro bono programs.16
Mandatory reporting for pro bono legal work was introduced on 1 March 2015 and is based on the following definition of ‘specified pro bono service’:
‘Specified pro bono service’ means engaging in an activity referred to in the following paragraphs without any fee, gain or reward (other than an honorarium for, or reimbursement of any expenses incurred in, the activity):
- providing any relevant law-related service —
- to any individual who is reasonably perceived, by the solicitor providing the service, to be a disadvantaged individual;
- under the auspices of any ministry or department of the Government, any Organ of State, any statutory board or any charitable or community organisation, in connection with any activity organised primarily to assist disadvantaged individuals;
- to any ministry or department of the Government, any Organ of State or any statutory board; or
- to any charitable or community organisation, for any of the purposes for which that organisation is lawfully conducted;
- participating in any activity under any relevant legal assistance scheme;
- participating as a member of any relevant committee;
- participating in any relevant matter under the auspices of any relevant body.17
PRO BONO DECLARATION OF THE AMERICAS
In 2008 the Pro Bono Declaration for the Americas (PDBA) was launched as the culmination of a consultation process that commenced in 2001 in Buenos Aires. The PBDA was developed as an initiative of the New York Bar Association and the Cyrus R. Vance Center for International Studies.18 As of August 2015 there were 500 signatories to the Declaration, including law firms, bar associations, corporate law departments, law schools and non-government organisations.
For the purpose of the PBDA ‘pro bono legal services’ are defined as:
Those provided without a fee, or expectation of a fee, principally to benefit poor or underprivileged persons or communities or the organizations that assist them. They may include representation of persons, communities or organizations in matters of public interest who otherwise could not obtain effective representation. In addition, pro bono legal services can also benefit civic, cultural and educational institutions serving the public interest who otherwise could not obtain effective representation.19
The PBDA includes a commitment to:
Provide, on a pro bono basis, more than 20 hours or three days of legal services per individual lawyer per annum, or in the case of law firms, institutions or other groups of lawyers, an average of more than 20 hours per lawyer per annum.20
While the PBDA begins as an aspirational target for signatories the terms of the PBDA indicate that
This commitment should be met within three years of endorsing this Declaration.21
Signatories to the PBDA are invited to report on their pro bono performance, including in relation to the 20 hour target, as part of the Latin Lawyer and Vance Center Pro Bono Survey.22
The Thomson Reuters Foundation launched the TrustLaw Index of Pro Bono in 2014. The purpose of the Index is to analyse international pro bono data and trends.
In collecting data as part of the Index:
Pro bono is defined as legal assistance provided without expectation of payment to people of limited means or to organisations that have a social, environmental, humanitarian or community focus (including certain government agencies and entities).23
In order for pro bono legal work to be treated as ‘Qualifying Pro Bono’ within the definition the work must be considered to be:
Qualifying Work done by Qualifying Fee-Earners for Qualifying Clients.24
TrustLaw has provided detailed guidelines on each of these criteria.25 The Collaborative Plan for Pro Bono in the UK has adopted the TrustLaw definition of ‘Qualifying Pro Bono’ as part of its 25 hour per fee earner aspirational pro bono target.26
1 For more information about the Legal Services Multi-Use List, please see the Attorney-General’s Department website at www.ag.gov.au/LegalSystem/LegalServicesCoordination/Pages/Legalservicesmultiuselistandserviceproviders.aspx and the Centre’s website at probonocentre.org.au/provide-pro-bono/government-tender-arrangements/lsmul/.
2 The National Law Firm Pro Bono Survey Reports are available on the Centre’s website at https://probonocentre.org.au/information-on-probono/our-publications/survey/.
3 See the Centre’s website at https://probonocentre.org.au/provide-pro-bono/aspirational-target/statement-of-principles/.
4 In June 2014, the Centre consulted with pro bono coordinators on whether the definition of ‘firm’s lawyers’ should be changed to permit work undertaken by a paralegal to be counted for the purposes of the Target. This consultation was prompted by a number of mid-sized law firms raising the issue, primarily on the basis that this would reflect the commercial practice of billing clients for paralegal time spent undertaking work that is legal in nature.
The result of the consultation process was that the Centre decided to maintain the current Target metric without any change to include paralegal hours. However, with effect from the 2014/2015 financial year the Centre amended the Law Firm Reporting and Incorporated Legal Practice Reporting forms to provide firms and practices the option of reporting paralegal hours separately.
5 Law Council of Australia, Law Council of Australia Policy Statement: Pro Bono Publico — For the Public Good, 1995, www.lawcouncil.asn.au/lawcouncil/index.php/library/policies-and-guidelines.
6 For further information on the National Pro Bono Professional Indemnity Insurance Scheme see the Centre’s website at https://probonocentre.org.au/provide-pro-bono/pi-insurance-scheme/.
7 For further information please see the Victorian State Government website at www.procurement.vic.gov.au/State-Purchase-Contracts/Legal-Services-Panel and the Centre’s website at https://probonocentre.org.au/provide-pro-bono/government-tender-arrangements/victorian-government-legal-services-panel/.
8 Department of Justice, State of Victoria, Policy Guidelines for the delivery of Pro Bono Services for an Approved Cause under the Government Legal Services Contract (2016) Sch 7 cl 1.3, http://www.procurement.vic.gov.au/State-Purchase-Contracts/Legal-Services-Panel and clause 11 of the Panel Contract.
9 Model Rule 6.1 of the American Bar Association’s Model Rules of Professional Conduct, www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_6_1_voluntary_pro_bono_publico_service.html (accessed 10 November 2015).
10 American Bar Association Center for Professional Responsibility, State Adoption of the ABA Model Rules of Professional Conduct, www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/alpha_list_state_adopting_model_rules.html (accessed 10 November 2015).
11 Pro Bono Institute, Law Firm Pro Bono Challenge,® 2016, p 1, http://www.probonoinst.org/wpps/wp-content/uploads/Law-Firm-Challenge-2016-1.pdf.
12 Pro Bono Institute, above n 11, p 2. http://www.probonoinst.org/wpps/wp-content/uploads/Law-Firm-Challenge-2016-1.pdf.
13 Pro Bono Institute, above n 11. http://www.probonoinst.org/wpps/wp-content/uploads/Law-Firm-Challenge-2016-1.pdf.
14 V Lok SC, Growing a Pro Bono Culture in Singapore’s Legal Profession: An update from the Law Society of Singapore, The Law Society of Singapore, p 2, www.aseanlawassociation.org/11GAdocs/workshop6-sg.pdf.
15 Lok Vi Ming SC, above n 14, p 2. www.aseanlawassociation.org/11GAdocs/workshop6-sg.pdf.
16 Pro Bono Services Office of The Law Society of Singapore, About Us, http://probono.lawsociety.org.sg/pages/default.aspx.
17 See Rule 2 of the Legal Profession (Mandatory Reporting of Specified Pro Bono Services) Rules 2015, http://statutes.agc.gov.sg/aol/search/display/view.w3p;page=0;query=CompId%3A31cd008f-f2c5-4d38-ad2d-d6967e120856;rec=0.
18 Vance Center, Pro Bono Partnerships, www.vancecenter.org/vancecenter/index.php/our-partners/pro-bono-partnerships.
19 Pro Bono Declaration of the Americas at www.vancecenter.org/vancecenter/index.php/our-partners/pro-bono-partnerships.
20 Pro Bono Declaration of the Americas, above n 19. www.vancecenter.org/vancecenter/index.php/our-partners/pro-bono-partnerships
21 Pro Bono Declaration of the Americas, above n 19. www.vancecenter.org/vancecenter/index.php/our-partners/pro-bono-partnerships
22 Latin Lawyer and Vance Center, Pro Bono Survey 2014, November 2014, p 3, www.vancecenter.org/vancecenter/images/stories/vancecenter/pro%20bono%20survey%202014.pdf.
23 Thomson Reuters Foundation, TrustLaw Index of Pro Bono: The Thomson Reuters Foundation Global Pro Bono Survey, p 2, http://one.trust.org/contentAsset/raw-data/a51d16cb-d9fb-47f9-8e72-2e7187edb003/file.
24 Thomson Reuters Foundation, above n 23, p 2. http://one.trust.org/contentAsset/raw-data/a51d16cb-d9fb-47f9-8e72-2e7187edb003/file
25 Thomson Reuters Foundation, above n 23, pp 2-3. http://one.trust.org/contentAsset/raw-data/a51d16cb-d9fb-47f9-8e72-2e7187edb003/file
26 Thomson Reuters Foundation, Collaborative Plan for Pro Bono in the UK, www.trust.org/spotlight/Collaborative-Plan-for-Pro-Bono-uk/ (accessed 10 November 2015). The average number of pro bono hours recorded during the first year of reporting (2014-2015) was 28 hours per fee earner.