Developing a clear written pro bono policy and communicating it to the firm is best practice. A clear policy, whether concise or comprehensive, will set the tone of the pro bono practice from the outset. It is also the central document underpinning the direction of the pro bono practice.
- demonstrates the firm’s support of and commitment to pro bono legal work;
- facilitates ownership of pro bono work by the firm’s leadership and staff;
- allows individuals in the firm to know how they can become involved;
- acts as a document against which requests for assistance can be assessed and decisions justified;
- aligns the pro bono practice with the firm’s strategy and facilitates integration of pro bono into the business; and
- enables identification and communication of the purpose of pro bono legal work for the firm.1
Key aspects of the pro bono policy are the objectives of the pro bono program and the criteria for pro bono legal work that the firm is prepared to do. The policy may also describe any non-legal volunteer work that the firm may do as an adjunct to the pro bono program.
Like all key internal policies, the pro bono policy should be reviewed regularly. Periodic review can also serve as an opportunity for firms to evaluate, reaffirm, restructure and/or create new opportunities and directions for their pro bono programs.
See Appendix 1 for law firm pro bono policy precedents including a short form policy, a long form policy and a policy for small firms.
- 1.3.1 Developing a policy
- 1.3.2 Contents of a pro bono policy
- 1.3.3 Program objectives
- 1.3.4 Criteria for pro bono legal work
1.3.1 DEVELOPING A POLICY
Engaging the leadership of the firm in helping to develop a policy will provide a good foundation for establishing a pro bono program with broad support. Leadership engagement will also help to align the policy with the firm’s strategic objectives and ensure it reflects the culture of the firm.
A firm might also encourage broader involvement in the development of the policy. This can heighten awareness of pro bono, generate innovative ideas and projects and maximise staff ownership of and participation in the program.2
The policy should be approved at the highest level of the firm’s governance structure (for example, by the Board). Once approved, it should be widely and regularly promoted within the firm. It should also be included in materials used for recruitment or in induction programs for new employees. Firms can encourage staff to provide ongoing feedback about the policy to, for example, the pro bono committee, leader or coordinator.
1.3.2 CONTENTS OF A PRO BONO POLICY
Pro bono policies differ considerably, particularly in relation to the level of detail included. Some firms’ pro bono policies are quite detailed and include guidance on procedures as well as matters of principle and structure. Other firms choose to develop separate procedures documents, such as guidelines or manuals, and have fairly brief policy documents.
In practice, policies (and/or their supporting procedural guidelines) tend to include:
- a policy statement — generally a statement of commitment made by the firm indicating:
- that pro bono legal work is a professional responsibility of all lawyers;
- why the firm is committed to it;
- that lawyers are expected and encouraged to participate in the pro bono program;
- the principle of equal treatment of pro bono legal work — that pro bono legal work must be done to the same standard and given the same priority as the firm’s commercial work;
- program objectives — the high-level strategic objectives (or goals) of the program;
- a definition of pro bono legal work for the purpose of the firm’s program, which also refers to types of volunteer work that fall outside the definition;
- criteria for taking on pro bono legal work or projects, which indicate the program’s areas of focus and which ensure the program meets its objectives;
- coordination processes, including the roles and duties of pro bono committees, partners and coordinators;
- procedures for assessment and approval, allocation, supervision, conflict checks, and matter opening and closing;
- how letters of engagement, costs (including the recovery of costs and adverse costs orders) and disbursements are to be dealt with; and
- how pro bono time is to be recorded and credited.
The pro bono policies of some firms also cover:
- evaluation criteria;
- referrals and the referral process; and
1.3.3 PROGRAM OBJECTIVES
Most large and mid-sized firms develop clear strategic objectives for their pro bono programs. Objectives can be outward-looking and focused on access to justice (for example, helping address unmet legal need in women and children experiencing disadvantage), designed to boost the performance of the firm’s pro bono practice (for example, meeting the National Pro Bono Aspirational Target or another target), or firm-related (for example, supporting the firm’s strategic objectives regarding recruitment or staff retention). Most policies will include several program objectives, and the emphasis will change over time as the policy is reviewed and updated.
Some firms take a strategic approach in the sense that their objectives reflect, or respond to, the current pro bono landscape. One objective, for example, might be to address unmet legal need in a particular region where few other firms are providing assistance.
Communicating the program’s strategic objectives to the firm helps to gain support for resourcing the program, and helps to build strong participation in the program.
Firms may also create a separate strategic plan that sets out the types of projects, partnerships, timeframes and resources required to meet its strategic pro bono objectives.
1.3.4 CRITERIA FOR PRO BONO LEGAL WORK
Setting criteria for taking on pro bono legal work and clearly outlining these in the policy is an important aspect of developing a structured program, and ensures the program meets its objectives.
The criteria may specify:
- the nature of the legal work the firm will do and/or will not do;
- the basis on which work will be done — for example whether, or when, reduced fee work will be done;
- areas of law in which the firm will act and/or areas of law that will be excluded, and other considerations such as public interest;
- types of clients or matters that will be prioritised or that will be excluded; and
- firm-related criteria such as overcoming any conflict of interest, the firm having relevant expertise and capacity, and benefits to the firm’s community profile.
Each of these types of criteria is discussed further below.
NATURE OF WORK
Firms should determine the nature of the pro bono legal work they are prepared to undertake and outline these in the pro bono policy. Usually this will include providing legal advice and legal representation. Firms that run a pro bono litigation practice often require that each case has reasonable prospects of success and that the client does not have access to assistance from Legal Aid or some other source.
In addition to working directly with clients, many policies permit other types of legal work such as providing community legal education, which involves conducting educational seminars, or preparing fact sheets and other legal information for community legal organisations, or doing law reform and policy work, which includes research and submission writing or participating in a policy working party. In addition to assisting the community, these types of work can be enormously satisfying and offer opportunities for lawyers in all areas within the firm to do pro bono legal work. In practice, firms tend to undertake these activities in conjunction with community legal organisations or other community organisations.
The criteria may also refer to particular models of pro bono legal assistance: for example, accepting case referrals, attending clinics, assisting with outreach programs (including collaborative service models) or engaging in secondment programs.3
As an adjunct to the pro bono program, some firms offer a range of non-legal assistance to NFPs or community partners, including the use of meeting rooms, library or research assistance, catering or other facilities, printing or publications assistance, administrative assistance, information technology, public relations and marketing, assistance with fundraising, donation of equipment (for example, desks or computers) and financial donations. While this type of assistance does not fall within the definition of pro bono legal work, and should not be credited or recognised as such, it can be a significant aspect of the firm’s CSR program. See further What Works, Chapter 30 Non-legal assistance.
One firm describes the nature of services provided through its pro bono practice as follows:
- providing advice on commercial and litigious matters;
- undertaking commercial legal work, for example, incorporating associations, drafting contracts, negotiating leases, property work;
- advocacy services;
- negotiation services; and
- assistance to improve laws or the legal system in a manner that will benefit marginalised or disadvantaged individuals or groups.
BASIS ON WHICH WORK IS DONE
Definitions of pro bono legal work commonly include services provided free of charge or for a reduced or substantially reduced fee and sometimes also, ‘without expectation of a fee’. Firms usually choose to retain a degree of flexibility, especially in relation to charging fees for pro bono legal work done for charities and other not-for-profit organisations. If services are to be offered for a reduced fee, clients should be made fully aware of the extent to which they will be required to contribute to the costs of the case and referring agencies need to know that clients may be charged.
The meaning of ‘substantially reduced fee’ has not been set and is a matter for each firm to determine.
Under a ‘conditional’ costs agreement, no fees are charged unless the client is successful in the matter and the settlement includes a costs component or the court makes an order for costs in the client’s favour. Recovery is then specified to be limited to the amount of the costs component in the settlement agreement or to that ordered by the court or tribunal so that the client effectively pays no legal fees.4
Work done on a speculative/no win no fee basis, however, which is done with the commercial expectation of a fee, is not considered pro bono legal work for the purpose of the Target, the Commonwealth LSMUL or the Victorian Panel.
AREAS OF LAW
A pro bono policy usually sets out the areas of law in which the firm will not act, based on the areas of law in which the firm does not have expertise: for example, larger firms most commonly exclude criminal and family law. A requirement that the firm accept only matters in which it has (or is able to develop) appropriate expertise may be included as a separate criterion. Ideally, firms’ lists of the type of work they will, and will not, do should be developed with input from referral sources. A firm might decide, for example, that while it will not generally accept criminal law referrals, it will acquire the necessary expertise to assist with apprehended violence order matters because of a particular need and the relative lack of complexity.
Many firms accept any meritorious casework in relation to which they have expertise, while some give priority to targeted areas, and some restrict their casework to ‘public interest’ matters.
PUBLIC INTEREST TESTS
It can be argued that all pro bono legal work is in the public interest, because it is in the public interest to provide low-income and disadvantaged individuals with greater access to legal services.5 In a more limited sense, ‘public interest’ is generally used to describe legal work that is intended to advance the interests of a broader group rather than an individual client. While matters raising an issue of public interest is one of a number of separate criteria, and falls within the Target and Victorian Panel definitions of ‘pro bono legal work’ or ‘approved causes’, its meaning is not elaborated. As most definitions do not require clients with a public interest matter to meet a means test, it is important to clarify the meaning of the term if it is included in a pro bono policy.
Firms have addressed this issue in a number of ways:
- consideration of ‘the significance and potential impact of the matter’ and/or ‘the public policy issues involved’;
- adoption of a policy that, while eligible matters must have reasonable prospects of success, ‘if the matter is of public interest it might be accepted even though its prospects of success are not strong’; and
- requiring that the matter ‘arise[s] from harsh or unjust treatment by a powerful individual, corporation, government or law enforcement agency’.
QPILCH adopts the following as key elements of its definition of legal public interest matters:
- the matter affects a significant number of people; or
- the matter raises matters of broad public concern; or
- the matter impacts on disadvantaged or marginalised groups.6
Justice Connect includes as a consideration:
Whether the matter raises public interest criteria (for example, the proceedings will determine an important right affecting a significant sector of the community, or advance the rule of law).7
Another firm, which describes its pro bono program as public interest work, has adopted additional criteria — some related to public interest and some not — that are intended to be applied flexibly and inform its choices:
- legal significance — the significance of the matter to the law or to the administration of justice;
- conflicts of interest;
- costs — what resources will be required by the matter or a certain stage of it?
- numbers — how many people will be affected by the outcome of the matter?
- political dimension — is the matter likely to be highly political?
- innovation — would acting in this matter require the firm to be innovative?
- past refusals — who has already said no and why?
- obviousness of match to the firm — some applicants in some matters will be such clear matches to the firm’s strengths and culture that it will be natural to take them on;
- justice question — is there a fundamental justice question that the firm wants to take on?
While requiring pro bono cases to meet a public interest test provides a filter for the firm’s resources and places emphasis on cases that maximise benefit, in practice, it is not always easy to apply. One risk is that it can involve the interpolation of ‘the lawyer’s own political and social judgments about the worthiness of causes’ amongst other considerations.8
Further, the application of a strict public interest test could mean that disadvantaged people would find it even more difficult to obtain assistance in matters of major importance to them but which do not raise wider issues.
Other than for some public interest matters, many firms and pro bono referral organisations (PBROs) consider the financial means of clients and usually take into account whether there is any other assistance (such as Legal Aid) available. The criteria as to the types of clients the firm will act for typically refer to disadvantaged people and/or to people who cannot access the legal system without incurring significant financial hardship. Given the difficulties Legal Aid Commissions have in applying their strict means tests, firms generally do not fix a cut-off at an income or asset amount, as ability to pay varies depending on factors including number of dependents, liquidity of assets and debt level. Pro bono legal services may extend to the ‘middle ground’ — clients who fall outside legal aid eligibility guidelines but who are unable to afford a private lawyer. This approach helps the firm to demonstrate that the clients it takes on clearly fall within its policy objectives of helping to address unmet legal need or helping to address public policy issues.
Some firms’ criteria give priority to clients from specific demographics, such as people with disabilities, those who are Indigenous and/or from a non-English-speaking background. Other firms (and some CLCs) consider clients who are otherwise vulnerable (such as older clients) or where the work is urgently required, even if the client has some capacity to pay legal fees.9
Many firms define their program as including assisting charities and other not-for-profit organisations that work for disadvantaged people, including CLCs and advocacy groups. While a ‘capacity to pay’ means test may be applied to these organisational clients, it needs to be understood within the context that funds expended for legal services are funds that are no longer available for the organisation’s core work. It is worth noting the American Bar Association’s definition of pro bono includes work done for stated kinds of organisations.
Where the payment of standard legal fees would significantly deplete the organization’s economic resources or would be otherwise inappropriate.10
This may make many large charities eligible for pro bono assistance, which would otherwise be ineligible due to their significant available funds.
If the firm’s pro bono clients include social enterprises, it is important to define this category: for example, as businesses with a social, humanitarian, or community focus that re-invest all or a majority of their profits into the social enterprise and where social mission is the primary aim of the business. If the social, humanitarian, or community focus is incidental or a fortunate by-product of the business, it is not a social enterprise and therefore should not be considered a pro bono client.
Other criteria that firms take into account, or include elsewhere in their pro bono policy, are:
- the absence of any conflict of interest (legal or commercial);11
- whether the firm has sufficient expertise;12
- whether the relevant lawyers, and the firm as a whole, has capacity to do the work;
- whether the matter affords opportunities for staff development; and
- whether the matter benefits the firm’s community profile.13
1 A clear written pro bono policy is also a vital component of any in-house pro bono program. The commentary that follows is equally applicable in an in-house context.
2 For in house legal teams, the development of the policy may be linked with other internal documents and strategies or require particular approval processes.
4 For further information please see the Centre’s Recovery of costs page at http://probonocentre.org.au/information-on-pro-bono/case-law/recovery-of-costs/.
5 J Anderson and G Renouf, ‘Legal services “for the public good”’ (2003) 28(1) Alternative Law Journal 13; and F McLeay, ‘Partners in the same endeavour’ (2003) 28(1) Alternative Law Journal 38.
7 Justice Connect, Getting a Legal Referral, http://www.justiceconnect.org.au/get-help/referral-service/getting-legal-referral.
8 For a discussion of the advantages and disadvantages of a public interest test see C Arup, ‘Defining pro bono: models and considerations’, paper presented at the First National Pro Bono Conference, Canberra, 4–5 August 2000, p 8, www.nationalprobono.org.au/ssl/CMS/files_cms/DefiningProBono-ChristopherArup.pdf.
9 See, for example, the discussion in Pro Bono Partnerships and Models – A Practical Guide to What Works, 2nd ed, LexisNexis, Sydney, 2016, Chapter 5, http://probonocentre.org.au/information-on-pro-bono/our-publications/what-works/.
10 Part (b)(1) of Rule 6.1 of the American Bar’s 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).