One of the primary aims of providing pro bono legal services is to improve access to justice for individuals experiencing disadvantage. When developing a pro bono program, a firm will need to make decisions about the kinds of legal needs its pro bono program aims to address, and develop strategies for identifying and sourcing pro bono legal work in those areas.
This chapter provides information about unmet legal needs in the community and discusses strategies firms may use to effectively and efficiently source pro bono legal work. It suggests that developing partnerships with community legal organisations is one of the most effective strategies for a firm to ensure that its pro bono legal services are effectively targeted to the areas of need that it wishes to address.
1.6.1 UNMET LEGAL NEEDS
Pro bono legal services should generally be regarded as a last resort for people with unmet legal needs who are unable to pay for legal services and cannot access Legal Aid or other publicly funded services. However, many people with unmet legal needs do not recognise their problems as being legal in nature and may not be aware of available free legal services.
The Law Council of Australia’s Justice Project Final Report is a comprehensive resource that can help pro bono lawyers understand the state of access to justice in Australia for people experiencing significant disadvantage. The Final Report focuses on the following 13 priority groups, highlighting the justice issues and unmet legal need experienced by these groups:
- Aboriginal and Torres Strait Islander people
- Asylum seekers
- Children and young people
- LBGTI+ people
- Older persons
- People experiencing economic disadvantage
- People who are homeless
- People who experience family violence
- People who have been trafficked and exploited
- People with a disability
- Prisoners and detainees
- Recent arrivals to Australia
- Rural, Regional and Remote (RRR) Australians
The Justice Project Final Report found that ‘people experiencing disadvantage are often more vulnerable to legal problems and frequently have greater, and more complex legal needs than the general population’. The report noted that people experiencing disadvantage are disproportionately represented within the justice system, and experience ‘formidable barriers’ in accessing justice.
Another significant resource which can help pro bono lawyers understand the legal needs of people experiencing disadvantage in Australia is the Legal Australia-Wide Survey: Legal Need in Australia (LAW Survey), a major research project conducted by the Law and Justice Foundation of New South Wales in 2012. The LAW Survey assessed the prevalence of legal problems across the community, and the vulnerability of various demographic groups to different types of legal problems.
The LAW Survey’s major findings were consistent with previous legal needs surveys, confirming that:
- legal problems are widespread and often have an adverse impact on people’s life circumstances;
- some people, most notably disadvantaged people, are particularly vulnerable to legal problems, including substantial and multiple legal problems;
- a sizeable proportion of people take no action to resolve their legal problems and consequently achieve poor outcomes; and
- most people who seek advice do not consult legal advisers and resolve their legal problems outside the formal justice system.
Some members of the community have their legal needs met by paying for legal services. However, of the respondents to the LAW Survey who actually sought advice to deal with a legal problem, only 21.3% used a private lawyer as their adviser.
PUBLICLY FUNDED LEGAL SERVICES
For people who cannot afford private legal services, the following publicly funded legal services may be available to address their legal needs.
The largest publicly funded legal services are the State and Territory Legal Aid Commissions (LAC). The vast bulk of the resources of the LACs are spent providing representation in criminal law matters and, to a lesser extent, family law matters where children are involved, and other civil law matters in very limited cases.
There are also Aboriginal and Torres Strait Islander Legal Services (ATSILS) in each State and Territory. These services generally concentrate on providing advice and representation for Aboriginal and Torres Strait Islander peoples in criminal matters. Family Violence Prevention Legal Services (FVPLS) are also located in rural and remote locations across all States and Territories other than Tasmania and the Australian Capital Territory. FVPLS are Aboriginal community controlled, not-for-profit organisations providing holistic and culturally-safe frontline legal services to Aboriginal and Torres Strait Islander victims/survivors of family violence and sexual assault.
There are many services offering legal advice: for example, community legal centres (CLCs), the advice services of LACs (including those based in their regional offices), most ATSILS, and some legal advice services offered by law societies and other bodies such as the Citizen’s Advice Bureau in Western Australia.
LIMITATIONS OF PUBLICLY FUNDED SERVICES
In civil law matters, the availability and quality of free and affordable legal assistance varies considerably between different jurisdictions and different areas of law. For example, most LACs provide at least some assistance in areas of civil law governed by Commonwealth statutes (for example veteran or social security entitlements), but some LACs do not have a significant practice in State or Territory based areas of civil law. Increasingly, the advice services described in this chapter identify the need for further legal work to fully assist a disadvantaged client, but cannot proceed due to limited resources. In many cases there are no other free or affordable services available to provide further assistance or representation.
Almost all of the free legal services respond to the self-identified legal needs of an individual. While some of them also engage in policy and law reform work, many do not have the resources to marshal legal services for the benefit of a group or class of disadvantaged people. Many do not assist not-for-profit organisations or charities to address their legal needs.
In 2014, the Productivity Commission reported on the funding constraints faced by these organisations in its Access to Justice Arrangements Inquiry Report. One of the Productivity Commission’s main recommendations was the need for an injection of an additional $200 million per year in funding to the legal assistance sector. In 2018, the Law Council of Australia recommended a substantial additional investment of a minimum $390 million per annum in funding for legal assistance services to address critical gaps, including civil law gaps.
These are examples of the limitations of publicly funded legal services that may give rise to the need for people to seek other sources of assistance, such as pro bono legal assistance.
IDENTIFIED AREAS OF NEED
While it is recognised that pro bono legal services play an important but small role in addressing unmet legal needs, pro bono providers are increasingly seeking to strategically direct their pro bono resources to areas of need where they will have the greatest impact.
The following summarises information regarding identified areas of need in Australia from several key sources. As noted above, unmet legal needs vary according to jurisdiction and region. Some pro bono programs also focus on needs outside Australia as part of their international pro bono legal work. See What Works, Chapter 31 International pro bono.
The LAW Survey found that the four most prevalent legal problem groups were consumer (21%), crime (14%), housing (12%) and government (11%). In Australia as a whole, 22 percent of respondents experienced three or more legal problems within the 12 month reference period, with some individuals particularly likely to experience multiple legal problems.
The types of legal problems that respondents experienced concurrently or in quick succession were clustered in three combinations:
- A combination comprising the consumer, crime, government and housing problem groups — that is, the problem groups that were particularly prevalent across jurisdictions.
- A combination dominated by ‘economic and family’ issues, comprising the credit/debt, family and money problem groups.
- A combination dominated by ‘rights and injury/health’ issues, comprising the employment, health, personal injury and rights problem groups.
The NPA Report found service gaps for civil matters, including employment; equal opportunity and discrimination law; migration and refugee law; and guardianship law. It reported that many stakeholders providing input into the NPA Report expressed concern that disadvantaged individuals were still unable to obtain legal assistance services to meet their needs. These concerns were most prevalent for disadvantaged groups with civil law matters, particularly people with a mental illness, people with a disability and people experiencing or at risk of homelessness.
Although it was beyond the scope of the NPA Report to provide specific detail about who should receive which types of legal assistance, the Report indicated that current policy settings and practice suggest that the following groups of disadvantaged Australians should be targeted for assistance:
- children at risk;
- financially disadvantaged people;
- Aboriginal and Torres Strait Islander peoples, particularly those who are victims/survivors of family violence, those who are financially disadvantaged and/or those who are living in remote communities;
- people facing serious criminal charges; and
- people experiencing or at risk of domestic violence.
The Centre’s biennial National Law Firm Pro Bono Survey has consistently reported that family law (not including family violence) and wills/probate/estate are areas where firms most often reject requests for assistance from individuals. Employment law and immigration are areas where pro bono assistance is frequently provided but also frequently rejected, which may suggest that unmet legal need remains high in these areas.
Drawing on the findings of the LAW Survey, which found that a small proportion of the population (8.8%) accounted for 64.5 percent of the legal problems experienced, the NPA Report recognised that for many of the most disadvantaged Australians it is the multiplicity of legal problems facing them that results in a substantial and negative impact on their lives, and reinforces their disadvantage. Accordingly, the NPA Report’s key findings were focused on improving the coordination of legal and related support services provided to these clients with complex needs, particularly preventative and early intervention efforts to reduce the impact that legal problems have on their clients’ lives.
1.6.2 SOURCING PRO BONO LEGAL WORK
A firm interested in taking on pro bono legal work has a number of options available to source such work. These include:
- joining a pro bono referral organisation and/or registering with pro bono referral schemes;
- working with CLCs, LACs, Aboriginal and Torres Strait Islander legal organisations and other community and NFP organisations that have regular contact with disadvantaged clients and communities;
- encouraging the referral of pro bono matters through the formal and informal contacts of law firm staff;
- suitable organisations with which a firm has an existing relationship;
- the firm developing its own pro bono project; and
- accepting direct requests for pro bono assistance.
WORKING WITH PRO BONO REFERRAL SCHEMES AND ORGANISATIONS
Pro bono referral schemes and organisations (PBROs) facilitate the efficient provision of pro bono legal services by acting as an intermediary between people or organisations in need of legal assistance and the lawyers willing and able to assist.
A strong feature of pro bono in Australia is the existence of PBROs in every State and Territory. These provide a point of focus for pro bono activity in each jurisdiction. For further discussion on the role of PBROs in the legal assistance sector see Chapter 3.3 Pro bono referral schemes and organisations.
The various referral organisations and schemes are markedly different in scale and size and they operate in different ways. Pro bono referral organisations are organisations that were originally established by their law firm members, but now have a broader membership, including universities, CLCs and corporate and government legal departments. Members of a pro bono referral organisation pay an annual membership fee. For a law firm the fee is based on the number of partners in the firm. The largest of the pro bono referral organisations is Justice Connect which operates in New South Wales and Victoria. Membership-based pro bono referral organisations also exist in Queensland (LawRight) and South Australia (JusticeNet SA).
Pro bono referral schemes are mainly run by law societies or bar associations. Another example of a pro bono referral scheme is the Cancer Council Pro Bono program which is managed by the Cancer Council in NSW and Victoria. For information on developing referral guidelines when working with PBROs see Chapter 2.1.1 Intake criteria.
WORKING WITH COMMUNITY ORGANISATIONS AND LEGAL AID COMMISSIONS
One of the best ways to identify where legal assistance is most needed and to develop an effective response is to develop and maintain strong ties with community organisations and LACs that have regular contact with the people experiencing the unmet legal need that the firm seeks to address.
The following are some examples of strategies to source pro bono opportunities:
- Target particular client groups and develop ties with relevant community organisations, as well as peak organisations.
- Provide assistance in a particular geographical area or community and develop links with organisations that provide legal assistance, and welfare and advocacy services in that area.
- Provide a broad range of pro bono assistance and develop relationships with a range of community organisations that are willing and able to refer appropriate matters to the firm.
- Investigate opportunities to establish a program that focuses on a particular social issue, for example, the legal needs of inner-city homeless youth (such investigation should include consultations with relevant peak and local community advocacy organisations).
- Pursue a community development approach to the legal needs of a particular region or a particular social group — the firm would undertake a commitment to the particular region/issue and over time structure and adapt its pro bono program in light of changing relationships and increasing understandings of the needs of the client community.
- Explore options for undertaking joint projects with CLCs, ATSILS, LACs, other law firms (for example, sharing a roster for court referrals for pro bono assistance), PBROs, or with corporate clients.
For detailed case studies see What Works, Part 4 Models of pro bono legal assistance.
Consulting organisations with direct experience and knowledge of the issues affecting people experiencing disadvantage is a good way for firms to explore the potential for them to focus their pro bono practice on a particular area of law or social issue. These consultations could explore whether there is a need for a legal response, the ways in which the firm could contribute to addressing the need, and how the firm could work effectively with the community to deal with the specific issue.
If there is no obvious State, Territory or national peak community sector body in the area, appropriate organisations could be located through the State Council of Social Service or a CLC specialising in the area. Other relevant organisations may include migrant resource centres, health centres, financial counsellors, family support services, women’s services, housing and crisis accommodation agencies and major welfare providers, as well as CLCs, ATSILS and LACs.
Practical tips for developing pro bono partnerships with community organisations include:
- Plan networking opportunities to meet potential partners. This could involve attending conferences, training or meetings and being prepared to talk about what your firm is doing, and hearing about the work other organisations are doing.
- Identify the impact that the pro bono legal assistance will have on unmet legal need or on the capacity of a partner community organisation.
- Be clear about what each partner’s interests and constraints are early in the planning process, particularly conflicts of interest.
- Take positive steps to increase the level of understanding between the partners about each organisation’s philosophy, objectives and how they work to ensure they are a good fit and will work well together.
- Discuss and agree on the roles and responsibilities of the partners.
- Be realistic about the time it takes to coordinate a collaborative project.
- Where community organisations partner with pro bono providers to deliver legal services to their clients, ensure that clients also understand the arrangement between the partner organisations. For example, who is their point of contact and who is the other party in their lawyer-client agreement?
- Think about how the project’s success will be evaluated.
For more practical tips on planning, developing and maintaining relationships with potential and existing pro bono partners, see What Works, Part 3 understanding your potential partner and Part 4 models of pro bono legal assistance.
MEMORANDUM OF UNDERSTANDING
It may be helpful to formalise the firm’s arrangement with a community organisation or referral agency in a memorandum of understanding (MOU), although this is by no means essential. The document should cover both the abstract and practical issues including:
- Who is responsible for doing the work, who is supervising, and are the risk and insurance arrangements aligned with this?
- What standard documents and processes can be used and who will prepare them?
- What training is needed and who will provide it?
- Who will pay for items such as travel costs and accommodation?
Importantly, the MOU should reflect that this is a collaborative partnership, not an arms-length commercial transaction. An MOU that is legalistic in tone or overly self-serving is unlikely to foster a successful pro bono relationship. Precedent MOUs are provided in Appendix 1 Precedents.
The parties should periodically revisit the MOU as part of a broader project evaluation, and amend it if necessary. (See Chapter 1.13 Evaluation)
LEGAL AID COMMISSIONS
Understanding the type of work LACs do can assist firms in determining the areas of legal need that remain unmet and therefore the nature of work a firm might want to undertake.
There is one LAC in each Australian State and Territory. The LACs have offices all over Australia and see thousands of clients each year. Contact details for each LAC are maintained by National Legal Aid and each LAC also has its own website. See Chapter 3.1 Legal Aid Commissions for further information.
It is useful to become familiar with the LAC guidelines to understand when legal aid is available and to whom it is available. Firms may also wish to contact either the head of civil law, criminal law or family law at their local LAC office to discuss how the firm’s pro bono practice might be able to provide assistance. The person to contact will depend on the area of law in which the firm wishes to practice. It is important to have clear guidelines on the types of cases or work the firm wishes to have referred to it, and how the firm wants referrals made. See Chapter 2.1 Casework procedures.
COMMUNITY LEGAL CENTRES AND ABORIGINAL AND TORRES STRAIT ISLANDER LEGAL ORGANISATIONS
Community legal centres are a very good source of referrals and of valuable information regarding the needs and issues of disadvantaged and marginalised clients. CLCs see thousands of clients every year. They work on tight budgets and cannot assist all of the clients who meet their criteria. They also know where their clients can get help in relation to those issues and can therefore identify areas of need that might be useful for law firms to consider when deciding the focus areas for their practice. CLCs can provide a range of opportunities for law firm pro bono practices, including referrals of cases, secondment placements, rostered participation in advice clinics, law reform and community legal education work, opportunities for transactional work, as well as ideas for particular projects such as outreach services.
A firm wishing to develop a relationship with a CLC should contact the principal solicitor, coordinator or director of the CLC and arrange to meet with them. It is also important to appreciate that although CLCs may already have well developed relationships with pro bono practices at one or more law firms and with PBROs, many will often welcome a new relationship with another firm. In terms of casework referrals, CLCs frequently make decisions about how they can best assist a particular client. The number of clients who will be referred for pro bono assistance by any one centre is generally quite small as the CLC will be conscious of not overusing pro bono services. The level of referrals will, of course, depend upon the kinds of work the firm has indicated it will accept. Ideally this should be explored in discussion with the particular CLC, taking into account clients’ needs as well as the expertise of the firm. It may be feasible for the firm to acquire the necessary expertise to deal with particular areas of need, for example, assisting clients to file victims’ compensation applications or appearing in applications for apprehended violence orders. See Chapter 1.14 Training and skills.
CLCs have a national association, Community Legal Centres Australia (CLCA), and also State and Territory associations that provide some secretariat support to CLCs. There is a CLCA Conference held in a different jurisdiction each year. This can be a good opportunity for pro bono practices to meet and network with CLCs, and present information on their work. There are also various networks of CLCs organised around particular issues or themes such as: youth, welfare rights, tenancy, Aboriginal and Torres Strait Islander women, disability rights, and Rural, Regional and Remote (RRR needs. These networks engage in mutual support, policy work and joint initiatives and can be another point of contact for law firms wishing to engage on similar issues.
Aboriginal and Torres Strait Islander legal organisations include ATSILS, Indigenous women’s legal services, FVPLS, and native title representative bodies and land councils. Firms might consider contacting one or more ILOs to learn more about their work and to explore how the firm could provide pro bono assistance.
For an overview of the roles played by CLCs and ILOs in the legal assistance sector see Chapter 3.2 Community Legal Centres, Aboriginal and Torres Strait Islander Legal Organisations & other legal organisations .
OTHER COMMUNITY AND NOT-FOR-PROFIT ORGANISATIONS
Community welfare and NFP organisations are another potentially large source of pro bono referrals. They can also provide firms with information that helps in deciding whether to concentrate on the needs of a particular group, and help firms implement effective programs. Services that might be useful for a firm to contact include: family support services, neighbourhood centres or citizens advice bureaux, disability advocacy, young people’s drop-in centres, court assistance schemes, land councils, migrant resource centres, women’s refuges, Aboriginal and Torres Strait Islander peoples and other organisations.
Developing relationships with community organisations and NFPs is also helpful for firms wanting to assist with addressing a range of needs in a particular geographical area, for example, a RRR area of the State or a particularly disadvantaged urban community. Information about community organisations can be obtained from State-based Councils of Social Service. Contact details are available on the website of the Australian Council of Social Service. 
Many community organisations that refer their disadvantaged clients to pro bono legal services also need pro bono legal assistance themselves. These organisations are generally not well-funded and rarely have any budget for legal assistance as they focus the funding they do have on meeting their core objectives. They can benefit enormously from pro bono assistance on a range of issues they face as they carry out their core objectives: for example, advice on leases, employment issues, legal structures, contracts and funding agreements, intellectual property issues, tax issues and general commercial issues.
Community organisations may also benefit from pro bono assistance in the form of community legal education and legal training, which may address their own needs or those of their clients. For example, a firm might conduct training sessions with a large number of community organisations about applying to the Australian Taxation Office for deductible gift recipient endorsement. This is often more efficient than individually advising each organisation.
Many parts of the community sector belong to or are supported by ‘peak’ organisations at a State or national level. Examples include the Refugee Council, Inclusion Australia (formerly the National Council on Intellectual Disability), COTA (formerly the Council on the Ageing), National Shelter, and the Women’s Services Network.
Many of these peak bodies will be in a position to coordinate legal assistance on matters relevant to the organisations they service. They are likely to be aware of potential public interest issues relevant to the ultimate clients of their constituents which may be pursued through strategic litigation or law reform submissions.
For information about pro bono partnerships with NFPs and charities, see What Works, Chapter 28 Assistance to not-for-profit organisations and charities.
SOURCING WORK FROM WITHIN THE FIRM
Staff of the firm, particularly those with links to community organisations, may be able to make the firm aware of new opportunities to undertake pro bono legal work. For example, some lawyers may volunteer at a CLC or know colleagues there who can identify the need for pro bono assistance. Others may be involved with other community NFPs, including migrant or Aboriginal and Torres Strait Islander communities, or may have colleagues working in LACs.
The firm’s pro bono policy would ideally encourage lawyers to bring to the attention of the appropriate pro bono contact potential matters that fall within the firm’s guidelines. Some firms have developed an application form for this purpose. Pro bono legal work that comes to the firm via this pathway can help to build support for pro bono within the firm as the staff member bringing the issue or matter to the attention of the firm may be able to act as a champion for the particular cause or for pro bono services generally.
THE FIRM DEVELOPING ITS OWN PRO BONO PROJECT
Once a firm has developed an understanding of a particular area of unmet legal need there is also an opportunity for the firm to develop its own signature or specialist project to address that need. This may be done in conjunction with a community partner, such as a CLC or NFP, or another firm.
For example, Ashurst through its work with RRR communities identified the complications that can arise for Aboriginal and Torres Strait Islander peoples who do not have a Will. Based on this understanding the Wills Project was established. Ashurst trains interested lawyers to take instructions for the preparation of Wills, Powers of Attorney and appointments of Enduring Guardian. These lawyers then spend the day at a community partner and take instructions from Aboriginal and Torres Strait Islander clients, usually returning within a few days to a week later to finalise the documents. Gilbert + Tobin also operates its own signature Wills Project.
See What Works for more examples of innovative signature projects.
RECEIVING DIRECT REQUESTS FOR PRO BONO ASSISTANCE
For many firms, receiving requests for assistance directly from members of the public is not an effective way to obtain pro bono legal work alone, and brings with it the difficulties of assessing an individual’s request. Direct requests are a reactive way of sourcing pro bono legal work, which relies on people with legal needs actually making requests for assistance, making it more difficult for firms to be strategic about targeting particular areas of unmet legal need.
With some exceptions, firms generally prefer not to take responsibility for the initial screening of clients to assess whether their matter is suitable for pro bono assistance. Particularly for large and mid-sized firms, it is generally more efficient for clients to gain access to pro bono services through a PBRO, CLC or legal aid organisation. These services are likely to be a first point of contact for the most disadvantaged members of the community and can filter out matters where there is no legal issue and/or legal merit. Given that staff at PBROs have expertise in the complex network of available support agencies, they can assist clients to identify the most suitable agency from which to obtain assistance.
However, for small firms and sole practitioners, particularly those working in rural areas, receiving direct requests for pro bono legal assistance is a routine part of operating their practice. For such practices, developing a good understanding of the legal aid system and the network of community services available in the area will be essential. A clear policy on the kinds of matters in which they will provide pro bono assistance can assist staff to efficiently screen requests.
1 Law Council of Australia, The Justice Project Final Report (Report, August 2018) .
2 Law Council of Australia, The Justice Project Final Report (Report, August 2018) 6 .
3 Christine Coumarelos et al, Legal Australia-Wide Survey: Legal Need in Australia (Report, August 2012) .
4 Christine Coumarelos et al, Legal Australia-Wide Survey: Legal Need in Australia (Report, August 2012) xiv .
5 Christine Coumarelos et al, Legal Australia-Wide Survey: Legal Need in Australia (Report, August 2012) 112 .
6 Productivity Commission, Access to Justice Arrangements (Inquiry Report, 5 September 2014) 30 .
7 Law Council of Australia, The Justice Project Final Report (Report, August 2018) 28 .
8 Law and Justice Foundation, Access to Justice and Legal Needs Legal Australia-Wide Survey (Report, August 2012) .
9 Law and Justice Foundation, Access to Justice and Legal Needs Legal Australia-Wide Survey (Report, August 2012) .
10 Australian Pro Bono Centre, Seventh National Law Firm Pro Bono Survey (Australian firms with fifty or more lawyers), (Report, February 2021) 9-10 .
11 For details, please see the National Legal Alliance website at National Legal Aid, Leading and encouraging a national system of legal aid (Web Page) .
12 Names and contact details of all CLCs in each State and Territory and details of national CLC Networks can be found on Community Legal Centre Australia’s website at Community Legal Centres Australia, Ensuring a thriving community legal sector (Web Page) .
13 Please see ACOSS (Web Page) .