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PLANNING,
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A practice guide and resource kit for law firms

The Australian Pro Bono Manual

Chapter 1.7: Current Models of Pro Bono Legal Work

Pro bono legal work can take many forms. Most commonly, it involves providing some form of legal advice or legal representation, either to individual clients or to not-for-profit organisations and charities. However, lawyers can also provide pro bono assistance in the form of law reform and policy work or community legal education.

There are also various ways of delivering pro bono legal assistance. They include:

case referral;
clinics;
outreach services;
secondments to community legal organisations;
co-counselling;
‘secondary consults’ or ‘phone a friend’ assistance;
technology-based services: telephone, video conferencing, online and mobile technology;
collaborative service delivery programs; and
international pro bono.

While this chapter provides an overview of the most common forms of pro bono legal work and models of assistance, there may be others, including combinations of those discussed here.

Partnering with organisations with relevant expertise underpins the success of many of these models. Before establishing any formal partnership it is important that firms take the time to develop an understanding of the partner organisation’s particular expertise.

For detailed information and case studies illustrating these models see What Works, Part 4 Models of pro bono legal assistance.

1.7.1 LEGAL ADVICE AND REPRESENTATION

Pro bono legal work most commonly takes the form of providing legal advice or representation to clients on a pro bono basis, leveraging the core skills and experience of practising lawyers.

The pro bono programs of many firms prioritise acting for individuals, rather than organisations, as a means of enhancing access to justice.

However, some firms include in their pro bono programs providing legal assistance to NFP or community organisations on a pro bono basis. This allows the organisations to direct their resources towards achieving their core objectives, rather than towards paying for legal services. There is often a natural match between the skills of pro bono providers and the areas of law in which NFP organisations and charities require assistance: for example, governance, deductible gift recipient applications, commercial agreements and incorporations.¹ Pro bono providers may also provide training to NFPs on legal issues affecting them.

See further What Works, Chapter 28 Assistance to not-for-profit organisations and charities, Chapter 13 Not-for-profit organisations and charities and Chapter 15 In-house/corporate lawyers.

1.7.2 LAW REFORM AND POLICY WORK

This model of pro bono legal work aims to address unmet legal need by advocating for change to an aspect of the law or its administration that is a source of injustice, or for the introduction of a new law or policy.

Pro bono lawyers can use their expertise to assist organisations undertaking public advocacy by:

engaging in targeted casework and/or strategic litigation to highlight an unjust aspect of the law;
contributing to law reform submissions and proposals with partners (eg CLCs);
commenting on other proposals (including government proposals);
letter writing; and
participating in inquiries and campaigns.

See further What Works, Chapter 27 Law reform and policy work.

1.7.3 COMMUNITY LEGAL EDUCATION

Pro bono providers and PBROs may partner with community organisations to deliver CLE, which can take a number of forms. For example:

‘plain English’ written materials (often in a number of different languages);
website based legal information;
general legal information seminars or webinars; and
specific and targeted training to other organisations or individuals.

See What Works, Chapter 29 Community legal education.

1.7.4 CASE REFERRAL

The archetypal form of pro bono legal assistance takes the form of case referral: a lawyer or firm accepting instructions to advise or represent an individual who meets the criteria of their
pro bono policy. The legal work is generally performed at the lawyer’s or firm’s office, although clients interviews and client representation may occur elsewhere. The only difference between a pro bono engagement and a commercial engagement is that, in the case of a pro bono engagement, the client will not have to pay any, or will pay a significantly reduced, fee.

Lawyers and firms receive case referrals from various sources:

pro bono referral schemes and organisations;
community legal centres;
Legal Aid Commissions;
direct requests; and
through personal connections.²

See Chapter 2.1 Casework procedures and What Works, Chapter 19 Case referral.

1.7.5 CLINICS

The clinic model involves pro bono lawyers directly helping community legal organisations (such as CLCs or PBROs) to provide free legal assistance to their clients in an area of unmet legal need. Typically the pro bono lawyers help to triage clients, conduct research, interview and advise clients or draft legal documents. Law firms also support pro bono clinics by, for example:

co-locating with the community legal organisation at a place that provides access to the target client group, whether at the community legal organisation’s premises, the firm’s premises, or the premises of another client support service;
training the organisation’s staff with knowledge and skills to provide legal advice/representation in areas of unmet legal need;
undertaking training to develop expertise in assisting clients experiencing disadvantage or in areas of unmet legal need;
providing premises in a place that is geographically and physically accessible, safe and trusted by clients;
promoting or publicising the service to the relevant client group; and
committing to the partnership for a significant period of time to ensure the viability of the service.

Clinics include ‘specialist’ clinics and ‘outreach’ clinics. Specialist clinics focus on a particular area of legal need or on particular categories of clients experiencing disadvantage (eg homeless or Indigenous Australians). Outreach clinics provide pro bono legal services at an outreach location, which may be in a RRR area.

Pro bono lawyers can also support clinics as secondees; in other words, there can be overlap between the clinic and the secondment models. See further 1.7.7 Secondments to community legal organisations.

For more information on the clinic model, see What Works, Chapter 20 Clinics.

1.7.6 OUTREACH SERVICES

A distinguishing feature of the outreach model is that the legal assistance takes place at a location other than the pro bono lawyer/firm’s office, and usually away from the community legal organisation’s premises. Usually the assistance is provided at the premises of a community organisation or health care provider.

Outreach can take the form of clinics, workshops, CLE or secondments to outreach locations. Technology is often used to provide legal services to a client located some distance away. The legal assistance may be part of a discrete project, or ongoing.

Some practitioners use the term ‘outreach’ to refer to the delivery of legal services in RRR locations. Others use it more broadly to mean any services provided away from the lawyer’s office.³

Increasingly, outreach clinics and CLE programs are developed in the context of collaborative service programs, in which lawyers work together with non-legal service providers to address interrelated legal and non-legal issues: see 1.7.11 Collaborative service delivery programs.

See further What Works, Chapter 21 on Outreach.

1.7.7 SECONDMENTS TO COMMUNITY LEGAL ORGANISATIONS

Some law firms provide one or more pro bono lawyers as secondees to community legal organisations or other not-for-profit organisations. This boosts the capacity of a community legal organisation to undertake legal work, thereby helping to address unmet legal need. Secondments may be:

full-time or part-time, for a fixed period (for example, for three, six, or 12 months). A fixed period secondment may be part of a single firm or multi-firm rotation that ensures that a secondee is always available to the community legal organisation;
sessional (for example, a lawyer attends a community legal organisation to operate an advice clinic one afternoon each week);
short-term locums to cover a staff shortage; or
specific secondments (for example, for the period of a particular project or initiative of a community legal organisation).

As touched on above, the secondment model overlaps with the clinic model because lawyers who are considered to be on a ‘sessional secondment’ are often used to staff clinics.

Secondments to community legal organisations are a well-used and effective way for firms to involve themselves in pro bono activities in the community.⁴

Secondments also offer valuable benefits to the law firm providing the secondee. They contribute to the professional development of staff, and also raise awareness of social issues in the firm. Seconded lawyers may be exposed to hands-on legal work advising or representing clients which is quite different to their usual work. As a result the secondees bring enhanced legal, communication and managerial skills back to the firm, as well as an improved understanding of the needs of the community legal organisation. Firms benefit from improved employee morale, as secondees often have a heightened sense of professional satisfaction. Secondees also help to build relationships between the community legal organisation and the firm, thereby increasing the visibility of the firm’s pro bono programs and engendering an improved sense of community and a continuing commitment to pro bono legal work within the firm.

For further information see Chapter 2.3 Secondments and for case studies see What Works, Chapter 22 Secondments.

1.7.8 CO-COUNSELLING

In this model, firms and community legal organisations work together to undertake public interest litigation either for an individual client or as a law reform initiative. Typically the community legal organisation does the initial work establishing the merits of the case or issue and maintains the client relationship. The firm may then give written advice, do background research and draft court documents as required. The firm or the community legal organisation (or both) may be on the record. The key benefit of a co-counselling arrangement is that the law firm increases the capacity of the community legal organisation to undertake public interest litigation or law reform. However, sometimes it is challenging having two sets of lawyers involved in the work and decision making process, particularly if they have conflicting views.

See further What Works, Chapter 24 Co-counselling.

1.7.9 ‘SECONDARY CONSULTS’ OR ‘PHONE A FRIEND’ ASSISTANCE

‘Secondary consults’ or ‘phone a friend’ assistance involves the mentoring of lawyers at community legal organisations by pro bono providers. This can occur through formalised arrangements like the provision of community legal education or less formal arrangements where advice or an opinion is sought and provided in a particular area of law or in relation to a particular matter. Benefits of this type of assistance include the informal, accessible and the de-identified nature of the inquiries and that there is no issue of conflict for the firm. However, timing may become an issue if a lawyer at the firm with the required expertise is not immediately available.

See further What Works, Chapter 25 ‘Secondary consults’ or ‘phone a friend’ assistance.

1.7.10 TECHNOLOGY BASED SERVICES: TELEPHONE, VIDEO CONFERENCING, ONLINE AND MOBILE TECHNOLOGY

There are growing opportunities to use the following types of technology, either alone or in combination, to deliver pro bono legal services:

telephone;
video conferencing;
websites; and
email.

The use of telephone and online video conferencing facilities, in particular, are often viewed as a way to address unmet legal need that is exacerbated by the lack of physically available or accessible services (for example, where a service is geographically inaccessible to people in RRR areas, or where a client has limited mobility). In addition, there may also be client groups, such as children and young people, who do not live in a RRR area but prefer the immediacy and anonymity of the online medium.

An inherent challenge of providing pro bono legal services using technology is the limited access that clients may have to the requisite facilities, together with the need for clients and their support workers (such as CLC staff) to be familiar with and/or comfortable using the associated technologies (for example, computers and video-conferencing systems).⁵

See further What Works, Chapter 26 Technology-based services: telephone, video-conferencing, online and mobile technology, and case study 29.4.2 on the delivery of community legal education via Skype in Chapter 29 Community legal education.

1.7.11 COLLABORATIVE SERVICE DELIVERY PROGRAMS

Increasingly, LACs, CLCs and PBROs are developing collaborative service delivery programs, in which lawyers actively collaborate with legal and non-legal service providers to identify and address the needs of disadvantaged clients. This approach is based on the understanding that individuals often have interrelated legal and non-legal issues including housing, domestic violence and health issues.

Health justice partnerships (HJPs), for example, are (typically) outreach clinics in which pro bono lawyers work together with medical staff at a hospital or other health care location to improve the health and wellbeing of individuals, with an emphasis on early intervention.⁶ Legal issues disclosed in a health care setting can be identified and can start to be addressed on site. HJP programs are being developed or expanded in areas such as family violence prevention and with senior citizens. For more information see What Works, Chapter 21 Outreach and the National Centre for Health Justice Partnerships.

At a strategic level, taking a collaborative approach recognises that coordinating the planning and delivery of legal services, particularly in regional areas, enhances the use of scarce resources to improve access to justice. In regional NSW, for example, under the Collaborative Legal Service Delivery (CLSD)⁷ program coordinated by Legal Aid NSW, regional coalitions between CLCs, PBROs, Legal Aid NSW, Local Courts, law firms (both local and Sydney-based) and community organisations work to improve client outcomes by taking a coordinated approach to providing pro bono legal assistance, referrals to Legal Aid and/or referrals to non-legal agencies. Regional coalition projects include outreach clinics as well as referral programs, community legal education and training.

1.7.12 INTERNATIONAL PRO BONO

International pro bono legal work is generally defined as legal work that is focused outside of the country where the lawyer is based, and provided in response to both need and disadvantage within a recipient country. However, much of the work is usually performed in the country where the lawyer is based, rather than on an outreach basis, and may be done for organisations that operate programs in developing countries.⁸

There is a diverse range of international pro bono legal work. Clients may be individuals, charities, development or aid organisations, other NGOs or governments. Legal work might include training, preparation of legal information/summaries of legislation, legal research, advising, negotiation, drafting, representation or advocacy, particularly in relation to rule-of-law development and public interest matters. International pro bono legal work also includes in-country volunteering programs where individual lawyers take on opportunities to provide pro bono legal work with a government or NGO in a particular country for an extended period.

See further What Works, Chapter 31 International pro bono.

1 See National Pro Bono Resource Centre, Fourth National Law Firm Pro Bono Survey (Australia firms with fifty or more lawyers) — Final Report, December 2014, https://probonocentre.org.au/information-on-pro-bono/our-publications/survey/, p 33.

2 For a break-down of the sources of pro bono legal work reported by respondents to the Centre’s 2014 National Law Firm Pro Bono Survey see National Pro Bono Resource Centre, above n 1, p 42. https://probonocentre.org.au/information-on-pro-bono/our-publications/survey/

3 For more information on pro bono in a RRR context, including on an outreach basis, please see National Pro Bono Resource Centre, above n 1, p 76. https://probonocentre.org.au/provide-pro-bono/aspirational-target/.

4 In 2014, 61 percent of respondents to the Centre’s 2014 National Law Firm Pro Bono Survey indicated that they were providing more secondments (in hours) than they were in 2012. See National Pro Bono Resource Centre, above n 1, p 53. https://probonocentre.org.au/information-on-pro-bono/our-publications/survey/.

5 For further information on video conferencing see the Centre’s paper ‘The use of video conferencing technology to provide pro bono assistance to self-represented litigants in regional, rural and remote Australia’, paper presented at the Assisting Unrepresented Litigants – A challenge for Courts and Tribunals Conference, Sydney, 15-17 April 2014, https://probonocentre.org.au/information-on-pro-bono/our-publications/#toggle-id-7 and the Law and Justice Foundation of NSW, Legal Assistance by Video Conferencing: What is Known? , 2011, www.lawfoundation.net.au/ljf/app/&id= B0A936D88AF64726CA25796600008A3A.

6 See, for example, Justice Connect, ‘Health Justice Partnerships’, https://www.justiceconnect.org.au/tags/health-justice-partnerships.

7 For more information see Legal Aid NSW, ‘Cooperative Legal Service Delivery’, http://www.legalaid.nsw.gov.au/what-we-do/community-partnerships/cooperative-legal-services-delivery-clsd-program.

8 For more information on international pro bono see J Corker, ‘The Role for International Pro Bono Work by Lawyers in Addressing the Social Impact of the Global Financial Crisis’ in P Maynard and N Gold (eds) Poverty, Justice and the Rule of Law: the Report of the Second Phase of the IBA Presidential Taskforce on the Global Financial Crisis, International Bar Association, London, 2013, pp 23-35, http://www.ibanet.org/PresidentialTaskForce FinancialCrisis2013Report.aspx. For more information on the amount of international pro bono legal work that Australian law firms with 50 or more lawyers undertake please see National Pro Bono Resource Centre, Fourth National Law Firm Pro Bono Survey (Australian firms with fifty or more lawyers) – Final Report, December 2014, p 33, https://probonocentre.org.au/information-on-pro-bono/our-publications/survey/.

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