This chapter is about how to implement effective casework procedures.
Developing efficient casework procedures involves establishing clear written intake criteria against which each potential matter or project is assessed. This involves getting the right information from referral agencies in their referral requests, and having established assessment procedures, with ready access to those required to give their approval. Established procedures for referring matters that are declined will also boost the efficiency of the pro bono practice.
The firm should also develop processes for:
- client access and referrals;
- allocating matters that have been accepted;
- matter opening and management;
- letters of engagement; and
- matter closure.
Some firms also develop specific instructions for support staff, including matter opening instructions and billing instructions (for internal accounting purposes). Small law firms may have simpler procedures than those described in this section.
- 2.1.1 Intake criteria
- 2.1.2 Assessment and approval
- 2.1.3 Allocation and supervision
- 2.1.4 Matter opening and management
- 2.1.5 Letters of engagement
- 2.1.6 Matter closure
2.1.1 INTAKE CRITERIA
The firm’s pro bono policy usually sets out the criteria for undertaking pro bono legal work, such as whether the work falls within the firm’s definition of pro bono legal work, whether it falls within one of the practice’s areas of focus, whether the firm has the capacity and expertise to do the work. The intake of pro bono cases involves assessing each potential matter against these criteria. This will ensure that assessments are fair and defensible, and will help referring agencies to make successful referrals to the firm.
Other intake considerations for pro bono casework include:
- ensuring there is no conflict of interest;
- a fee estimate (for internal accounting purposes);
- an estimate of disbursements or other expenses; and
- an estimate of the hours to be spent on the matter.
Firms might wish to develop a casework criteria checklist, for use by the person or committee responsible for assessing pro bono matters.
A number of firms also prepare a ‘pro bono request’ form or ‘referral and assessment’ form which they use to collect the information required for each matter assessment. These forms can be used for requests from within the firm, direct requests from clients and requests from referral agencies. The form could include:
- the name and address details of the individual or organisation;
- for an organisation, the ABN, which can help the firm determine if the organisation has charitable, deductible gift recipient and/or tax exempt status;
- the financial position of the individual or organisation, as most pro bono practices are directed at providing pro bono assistance to people experiencing disadvantage and marginalisation or to the organisations that assist them;
- other parties who may be involved in the matter, allowing the firm to undertake a preliminary conflict check;
- a brief overview of the matter, including its urgency, enabling the firm to make a preliminary assessment as to whether it has the expertise and capacity to provide assistance;
- whether the individual or organisation has previously sought assistance and from whom; and
- any other relevant information and documents.
Firms that accept direct client referrals should take care to communicate their intake criteria and assessment procedures clearly with the clients, bearing in mind any particular barriers the client may experience in accessing justice: for example, due to experiencing disability, or being of Aboriginal and/or Torres Strait Islander Peoples or culturally or linguistically diverse background. See Chapter 1.14 Assisting clients with diverse needs.
INTAKE CRITERIA WHEN ACTING FOR NOT-FOR-PROFIT (‘NFP’) ORGANISATIONS
There are additional factors to consider when the pro bono client is a not-for-profit (‘NFP’) organisation, whether it be a start-up NFP or one that is more established. These factors are listed below.
- Who will the NFP organisation assist? What is its mission? Most pro bono practices are directed at providing pro bono assistance to NFP organisations that assist people who are experiencing marginalisation or disadvantage or for the public good;
- What are the NFP organisation’s proposed activities? For example, service delivery or fundraising;
- When does the NFP organisation expect to start providing services and/or undertaking fundraising? A firm may have a timeframe it uses as a guideline in relation to the commencement of activities;
- How much money does the NFP organisation expect to raise in the first three years and how will these funds be raised?
- What is the NFP organisation likely to achieve in its first three years?
- Who will be on the NFP organisation’s Board or Management Committee?
- Will the organisation be applying for charitable, deductible gift recipient and/or tax exempt status?
- Which organisations have similar objects to the NFP organisation and why does the client wish to set up a separate organisation rather than work with an already established NFP with similar objects?
- Who does the NFP organisation assist? What is its mission? Most pro bono practices are directed at providing pro bono assistance to organisations that assist people who are experiencing disadvantage or marginalisation or for the public good.
- What are the income and assets of the NFP organisation? Do they have the capacity to pay for legal services without a significant impact on their ability to provide services? Does it have charitable, deductible gift recipient and/or tax exempt status?
- What other professional services does the NFP organisation pay for (e.g. accounting)?
- What percentage of the NFP’s income is spent on administration rather than on the provision of services?
- Is the activity for which the NFP organisation seeks assistance beyond the work for which the organisation receives government funding?
- How much are the NFP organisation’s top three executives paid?
- What type of legal assistance does it require, how much work and how regularly?
- What is the nature of the specific matter being referred? Does it aim to benefit low income, socially disadvantaged or marginalised group of individuals?
WORKING WITH REFERRAL AGENCIES
Many firms with active pro bono casework practices source referrals from external agencies, such as pro bono referral schemes and organisations (‘Referral Organisations’), Community Legal Centres (‘CLCs’), Aboriginal and Torres Strait Islander Legal Services and Legal Aid Commissions (‘LACs’).
It is helpful to discuss the firm’s intake criteria with these agencies, as well as the preferred procedure for receiving referrals. To facilitate effective and timely referrals, firms could, for example, provide these organisations with their referral guidelines. Information of this type helps the referral agencies and their clients to understand what they can expect of the firm, and to preclude inappropriate applications and double-handling. Discussing the intake criteria also provides opportunities to discuss associated issues such as training. Discussing the preferred process provides opportunities to streamline the process. The guidelines should ideally cover the following issues:
- What kinds of matters is the firm prepared to consider for pro bono referrals? This will include the types of casework as well as other pro bono assistance a firm will consider providing. Firms should endeavour to be precise. For example, specifying ‘refugee and immigration work’ rather than ‘administrative law’.
- What kinds of matters or clients are specifically excluded from the firm’s pro bono practice? Firms might also wish to specify if they will not take on pro bono matters involving litigation against a particular group of clients (for example, banks).
- Who in the firm is the appropriate person to communicate with about proposed pro bono referrals?
- In the first instance, does the firm prefer to liaise with the referral agency, or with the prospective pro bono client? Firms should also make it clear if they would prefer to deal only with the principal solicitor of a CLC or the staff member with carriage of the matter to avoid confusion.
- What information will the firm expect from the referral agency? Is a brief outline of the matter communicated by telephone or email sufficient? Will the firm need detailed documents or financial information about the client? Firms should not make these requirements too onerous for the referring organisation, especially if the matter is urgent.
- Will the firm expect that the client’s eligibility for legal assistance from other sources has been checked: for example, LACs, a professional association or trade union in the case of some industrial law matters?
- What are the time frames within which the firm will assess and approve (or decline) applications for pro bono assistance? Ideally, the firm should respond to requests within 48 hours.
Firms should be as clear and as sensitive as possible when describing their processes. Even if a client is successfully referred, the firm may subsequently do a merits assessment and decline to take the matter further. It is important that the client or referral agency is not given false expectations.
2.1.2 ASSESSMENT AND APPROVAL
Assessing and approving pro bono matters is an important element of coordinating pro bono casework. The firm needs to decide who has the authority to assess each matter against the intake criteria and give their approval, and how this will be done. These roles and processes should be clearly set out in firm’s pro bono policy or procedures documents.
There are various approaches to assessment and approval, for example:
- The pro bono manager has the authority to assess and approve pro bono matters within certain limits as to, for example, the number, size or commercial value of matters. Beyond these limits the manager needs to seek further approval from a supervising pro bono partner or pro bono committee; or
- The pro bono manager generally acts autonomously but consults the supervising partner or a pro bono committee in difficult cases. The supervising partner or pro bono committee is available to help make decisions on matters that are not straightforward, such as matters that may require heavy resourcing, that involve a possible commercial conflict or that pose a difficult public interest question; or
- Some smaller firms may have a pro bono committee that assesses pro bono matters. This model can help to ensure consistency in decision-making. However, its success will depend on the interest and availability of committee members, and the urgency of pro bono matters needing to be assessed.
If the assessment and approval is done by a committee, having an agreed process in place will ensure the committee operates efficiently. For example, approvals could be made by email (attaching the completed intake request form), with an agreed response time of 24 hours, and the decision being made by agreement of the majority. If the committee includes a person who is empowered to assess conflicts of interest and other risks, this will also facilitate the assessment process.
Firms might also consider whether a client interview should be a step in the assessment of certain cases. If so, the interview location and attendees should be chosen with care. If the client is likely to find the firm’s offices intimidating, an office of the referral agency might be a more appropriate venue.
REFERRALS FROM WITHIN THE FIRM
A firm should also have internally publicised procedures in place to facilitate staff-initiated referrals. Such referrals should be assessed for approval according to the same criteria as other referrals. Some firms use an application form which is completed by a staff member and forwarded to the firm’s pro bono committee or manager for assessment and approval. If a form is used for internal referrals it could include:
- a fee estimate for the proposed matter;
- confirmation that a conflict check has been carried out;
- brief description of the matter; and
- the names of the proposed lawyer and partner who will work on the matter, if it is approved.
In other firms, emailing, telephoning or meeting with the firm’s pro bono partner, pro bono manager or other designated person may be sufficient, at least as a starting point. The procedure would ideally include a designated timeframe for a reply to the application (for example, notification within 48 hours of receiving the application).
DECLINING A MATTER OR REFERRING IT ON
In some cases where the firm has reviewed documents provided by a potential client, it might be appropriate to formally decline the matter. Any letter or email advising that the firm is unable to assist should give general reasons for the refusal. For example, the letter could state that the matter does not fall within the firm’s guidelines, or creates a conflict with another client, or that there is no lawyer with the relevant skills and experience available to take on the matter. All documents forwarded by or on behalf of the potential client should be returned to ensure confidentiality.
If the matter has been referred by a Referral Organisation or CLC, feedback should also be given as to why it has been declined and as to the types of referrals that would be accepted. The refusal and reason for refusal should be recorded. Such records will assist the firm to evaluate its pro bono practice.
Individuals or organisations that contact the firm directly may need to be referred on if their matter doesn’t fall within the firm’s intake criteria or if there’s a conflict of interest. Pro bono managers should be familiar with other firms, CLCs, Referral Organisations and court-based legal assistance programs to which the client can be referred, while being careful not to consign the client to the ‘referral roundabout’. Alternatively, the client can be referred to self-help legal information or self-representation services.
Given that individual clients are often dealing with interrelated legal and non-legal issues, in some circumstances referrals to non-legal services may be appropriate. For example, the client may benefit from referrals to health and medical services, mental health services, Centrelink, short-term and long-term housing providers (including homelessness support services), migrant resource centres, disability advocacy and support services, financial counsellors, emergency assistance providers, neighbourhood centres or citizens advice bureaux, social work and counselling services, or/and local council transport services. The client’s local CLC or Referral Organisation may be able to advise the firm about services relevant to the client’s geographical locality. An important issue arises for clients with disabilities. Firms should be conscious that clients with disabilities are not referred to disability agencies just because the client has a disability: the client’s legal problem may have little or nothing to do with their disability.
2.1.3 ALLOCATION AND SUPERVISION
In firms with pro bono managers, the task of allocating pro bono matters is usually assigned to the manager. In some firms, pro bono partners or others (for example, team leaders) may allocate matters.
Matters are assigned in various ways, for example:
- emails to all lawyers who have expressed interest in doing pro bono work (usually identifying the nature of the matter, the kind of work required and any deadlines);
- personally approaching lawyers in relevant practice groups; or
- contacting a partner in the relevant area to see who in the group might be able to take on the matter.
Expertise, availability and interest in the matter are all factors to consider when allocating matters, if they have not been addressed at the assessment stage. If individual lawyers lack the relevant expertise, consider whether specialist training would enable them to participate. For example, certain models of pro bono work such as legal clinics allow lawyers to support pro bono clients while undertaking training to develop the relevant expertise with pro bono partners such as CLCs, See Chapter 1.7 Current Models of Pro Bono Legal Work.
In some cases, lawyers self-select for pro bono legal work by ‘referring in’ a matter (which is then subject to the firm’s usual approval process) and indicating a desire to work on it. In these cases, provided the lawyer is appropriately skilled to undertake the matter, allocation might simply involve approaching and designating a partner to supervise them. If the lawyer is not working in the practice group with expertise relevant to that matter, the firm could approach a partner in the relevant group and, in this way, facilitate opportunities for lawyers to work on cases they are particularly interested in.
The matter should be monitored and supervised by a partner whose expertise enables the same standards of work to be applied as to commercial work, and who is aware of applying this principle. In practice this generally means that the supervising partner ensures ordinary practices and rules apply in relation to advices and correspondence and signs off on correspondence and documents in the usual way. The lawyer may also need to provide, for example, three-monthly email reports for each pro bono matter to the pro bono committee or a minimum six-monthly review of all pro bono legal work undertaken in the firm.
Once particular lawyers have agreed to work on or to supervise a matter, there are various procedures for formally allocating the matter. Best practice requires some form of written communication of the allocation, both to the lawyer, the supervising partner and possibly the support staff who will be assisting.
This initial communication could be by way of internal memorandum or email and should outline:
- the scope of the matter;
- the lawyer allocated to the matter who is responsible for its efficient carriage;
- that the matter should be treated in the same way as commercial work;
- the process that should be adopted in relation to finalising the engagement letter, including the timeframe in which this should be completed;
- the process that should be adopted in relation to arranging an initial meeting or telephone call;
- the fee cap for the matter (if relevant) and guidance about the process that should be adopted if the fee cap is approached or exceeded; and
- any particular cost or disbursement arrangements that are relevant to the matter.
Firms with structured pro bono practices tend to maintain a register or database of all pro bono matters in the firm which captures the above information. This is used for a number of purposes, including supervision of work and internal and external reporting and evaluation. See Chapter 1.13 Evaluation and Impact Measurement.
2.1.4 MATTER OPENING AND MANAGEMENT
Firms use different matter management and billing systems to record and manage their matters. The procedure for opening and managing pro bono matters should match the firm’s formal matter opening policy. Matter opening procedures may vary according to whether the firm is going to count pro bono hours as billable or not, and whether a fee or hours cap is to be placed on the matter. One firm, for example, requires the dated signature of the pro bono manager or partner on the first page of the matter opening to indicate that it is approved under the firm’s pro bono practice and the fee cap (if any) is authorised. Another firm, for example, requires the finance team to see an email from the pro bono partner approving the matter before opening a pro bono file.
The systems created and implemented to facilitate pro bono matter management may vary from the firm’s normal procedure. For example, in determining in advance how it intends to account for a lawyer’s time on a pro bono matter, a firm may consider whether the lawyer will enter their time as chargeable as per any other matter, or whether time will be entered under a different code, or as a different kind of work (see Chapter 1.11 Crediting and recognising pro bono legal work). Any matter management system or software will need to reflect the relevant arrangements for charging in the matter, for example, no fees, reduced fees or other arrangements. Procedures should also deal with disbursements in accordance with the firm’s pro bono policy. For example, this may require the firm’s payment of disbursements to be approved on a case-by-case basis or beyond a certain limit.
Ideally, the firm’s pro bono procedures document should give clear instructions for each step involved. For example, it should answer the following questions:
- Are there specific pro bono codes or prefixes for pro bono matters?
- How is the client to be described?
- Is a partner’s signature necessary for the matter to be opened?
- What information needs to be entered about fees and disbursements?
- How is a fee or hours cap (if any) recorded?
- How should other parties be recorded?
The pro bono matter management system adopted should also provide the pro bono manager with clear oversight of the pro bono practice. For example, one firm has incorporated the following into its matter management and time keeping system:
- notification when a lawyer allocated to a pro bono matter leaves the firm, transfers to a new office or goes on extended leave (for example, parental leave or secondment). This allows the pro bono team to ensure that the matter is appropriately reallocated; and
- a regular report on matters which have been dormant (that is, no time recorded) for six months. This allows the pro bono team to identify matters which have been closed and those which may require additional support.
Efficient matter management procedures also have particular collateral benefits in terms of evaluating and promoting a firm’s pro bono practice. This is discussed in further detail in Chapter 1.13 Evaluation and Impact Measurement.
2.1.5 LETTERS OF ENGAGEMENT
Once the matter has been approved for intake, a conflict check has been undertaken and a matter opened, the client should be sent a letter of engagement. The firm’s precedent letter of engagement should be consistent with its precedent commercial letter of engagement but some adjustments will be required. Pro bono clients need to be made aware of the same issues as a commercial client, including the terms, scope and limitations of the pro bono assistance being provided and the costs implications to them (if any) of their matter. Consideration needs to be given to the mandatory requirements in the Legal Profession Uniform National Law. For example, a Costs Disclosure may be required in a litigious matter.
The letter of engagement will often serve as a costs agreement. Firms often use different forms of letters of engagement for non-litigious and litigious matters. There may also be a distinction between litigious matters seeking a financial outcome and those seeking a non-financial outcome; in the first case, the letter of engagement needs to deal with whether the firm will recover its costs and expenses from any costs award or settlement.
In essence, the key to any engagement is in communicating effectively and setting expectations. The letter of engagement should include:
- an accurate, detailed description of the scope of the work agreed to be done;
- disclosure of the basis of any costs (including fees and disbursements) to the client. If no fees are chargeable this should be made clear in the letter;
- an explanation if the client is liable to pay costs conditionally upon an award of costs being made by the court, and the rate at which costs will be payable;
- circumstances in which the engagement will be ended; and
- if applicable, the client’s consent to the firm’s publicising the pro bono legal work, including the use of photographs or logos.
If a lawyer is to go on secondment to a pro bono client, a secondment letter should be sent detailing the terms of the secondment. Different issues will need to be considered to those set out on the standard pro bono engagement letter. See Chapter 2.3 Secondments.
COMMUNICATING THE ENGAGEMENT TO THE CLIENT
An individual pro bono client (as distinct from an NFP or a lawyer within a CLC) should be carefully taken through the engagement letter in a face to face or telephone discussion, particularly as some individual pro bono clients who are unfamiliar with the legal system might be intimidated by, or suspicious of, legal letters and lawyers in general. The discussion should be in plain language, taking into account particular client requirements, and should include disclosure of any fees or costs related to the engagement. If the client remains uncertain as to whether the agreement renders them liable for costs, they should be advised to seek independent legal advice (for example, from a CLC) to clarify the nature of the engagement.
See Chapter 1.14 Assisting clients with diverse needs, which includes further information on working with Aboriginal and/or Torres Strait Islander Peoples clients, clients who are from culturally or linguistically diverse backgrounds and clients experiencing disabilities.
TIMING AND SCOPE OF THE WORK
It is essential that both the client and lawyer understand and agree upon the nature and extent of the work to be provided on a pro bono basis. This will assist in dispelling any unrealistic or misconceived expectations the client may have about the scope of the firm’s assistance.
- whether the work will cover a whole matter, or be limited to particular assistance (for example giving advice, assisting in negotiations, or settling court documents);
- whether the work includes representation in court or tribunal hearings, and to what extent (for example, representation at a conciliation conference, but not at a hearing or in appeal proceedings);
- whether the work will be subject to review at predefined stages (for example, agreeing to provide an advice on the prospects of a claim, but only agreeing to act for the client if the prospects of success are reasonable);
- the proposed timeframe in which the work or services will be provided; and
- contact details for the lawyer with carriage of the matter, those of the supervising partner, and if appropriate, those of the pro bono manager as a further reference point.
If the parties subsequently agree that the firm will provide pro bono assistance beyond the scope outlined in the letter of engagement, or if the nature of the matter changes substantially, a new letter should be sent to the client confirming the new nature and extent of the work to be provided.
CLIENT AND LAWYER RESPONSIBILITIES
Some letters of engagement describe the lawyer’s/firm’s and client’s respective responsibilities in the relationship. These are variously known as lawyer and client ‘protocols’, ‘obligations’ or ‘responsibilities’.
The client might agree to:
- provide the lawyer with clear and timely instructions;
- pay disbursements when advised and requested; and
- keep the lawyer fully informed of any change in their personal circumstances or details.
The lawyer might agree to:
- communicate with the client in a clear manner; and
- give the client the time the client needs to understand the advice they are being given.
COSTS AND DISBURSEMENTS IN LETTERS OF ENGAGEMENT
The arrangements relating to professional costs should be set out clearly in the engagement letter or costs agreement. The firm’s protocols governing these issues should be included in the pro bono policy.
Check the Legal Profession Uniform National Law in each jurisdiction as regards the prescribed information required to be given to clients about professional costs or charges, and the rights of clients regarding costs. In the event of a successful outcome, a firm will only be able to recover costs if it has appropriately disclosed its costs and the client has agreed to those costs.
The firm should set out in its letter of engagement whether, and how, it intends to recover its costs and/or disbursements (in full, or limited to the amount of the costs order or any settlement agreement). Options include agreeing:
- that neither professional costs nor expenses will be charged or recovered from the client;
- that only expenses will be charged and recovered from the client; or
- that professional costs and expenses will be charged and recovered from the opposing party in the event the pro bono client is ‘successful’ (pursuant to a conditional costs agreement).
Other forms of costs agreements provide for delayed, but full fee recovery. However, such arrangements are generally not regarded as pro bono assistance.
CONDITIONAL COSTS AGREEMENTS
It is important to use a particular form of conditional fee arrangement in pro bono matters if the firm wishes to recover costs following a successful outcome. The costs agreement must require the client to contractually agree to pay the firm in the event of being successful and being awarded a costs order.
A conditional costs agreement specifies that fees are only payable if either a settlement includes a costs component or the court makes an order for costs in the client’s favour. When conditional costs agreements are used, firms generally disclose the rates of their professional costs and disbursements, as well as an estimate of the total costs based on those rates. Some firms annex a schedule of their charges — rather than listing each cost item — to the letter of engagement, which then forms part of the costs agreement. Where an estimate is not currently possible, the letter of engagement may state that an estimate will be provided after the matter has been investigated further, when the firm is clear about the work to be provided.
A firm wishing to benefit from a favourable costs order, or settlement with a costs component, in a pro bono matter should ensure that its conditional costs agreement complies with Legal Profession Uniform National Law regulating the legal profession, and clarify (or estimate) the amount it will charge the client in the event of a favourable costs order or settlement with a costs component.
Examples of this type of clause in an engagement letter include:
We will act for you in this matter under a ‘conditional costs agreement’. This means we will not charge you for the time spent by our lawyers on the matter unless you are successful, that is:
- the court makes a decision about your case and orders another party to pay some of your legal costs; or
- your case settles, and as part of the settlement the other party agrees to pay some of your legal costs.
As we are acting for you ‘pro bono’, we will not charge you professional fees unless you are awarded and paid legal costs in the matter. If that occurs, we will charge you the same amount as the legal costs that have been awarded to you.
Conditional pro bono costs agreements are commonly drafted to allow the lawyer acting for the client to reduce their costs on a discretionary basis. This is to ensure that the client is not charged any amount above that recovered through any costs order or costs component of a settlement agreement.
These are examples of clauses dealing with this issue:
… if the amount you receive in costs is less than our bill, we will not ask you to pay the difference between the amount recovered in costs or agreed to in settlement and the bill.
… in the process of recovering costs … we will invoice you for costs and disbursements for our professional services. However, in relation to costs we will not seek to recover from you any more than the amount to be paid to you by another party for your costs.
Some firms, as a matter of policy, direct any costs recovered in successful litigation to the firm’s pro bono budget or other charitable causes.
As with professional costs, the firm’s protocol governing charging and recovering disbursements should be covered in the firm’s pro bono policy, and will be reflected in its letter of engagement or costs agreement. The letter of engagement should include:
- the anticipated amounts,
- who will be responsible for paying them; and
- when such payment (if any) is due..
Courts and tribunals generally provide for fee exemptions or waivers for litigants from financially disadvantaged backgrounds. Firms should always check to see whether fee waiver or exemption or disbursement assistance is available for their clients.
If liabilities are expected to, or do arise, the pro bono client should be advised whether the firm considers such expenses are essential to the continuation of the matter about, and consulted about their liability to pay the disbursement.
The following are examples of clauses in letters of engagement explaining the client’s liability to pay disbursements.
We will not charge you for the work of the lawyers in the case. We may, however, incur expenses (called ‘disbursements’) in acting on your behalf which we will ask you to pay. Those expenses may include:
- court filing fees;
- expert reports;
- barristers fees;
- Land Titles Office fees;
- State Revenue Office fees; and
- Australian Securities and Investments Commission search fees.
If you would like to see the current detailed rates of disbursements, please ask us.
Example 2 
We will not charge for in house expenses for telephone calls, sending or receiving facsimile transmissions or incidental photocopying. Other expenses incurred by us in acting for you for services provided to us by third parties on your behalf will be charged to you. We will consult you before incurring any fees or expenses for which funding is unavailable.
If the client’s failure to pay disbursements will lead to termination of the engagement then the letter must state this will be a possible basis the firm considers necessary for termination of the retainer.
ADVERSE COSTS ORDERS
A pro bono client might be unaware that in a litigious matter there is a risk of their being liable to pay the other party’s costs. In this respect, terms such as ‘no win — no fee’ may be misleading or misunderstood. The risk of an adverse costs order should be clearly explained to the client. Similarly, if the matter settles, and a term of the settlement is that the client pays the whole or part of the other side’s costs, it should be made clear to the client that they will be responsible for those costs themselves.
Some clients who have access to pro bono representation may be deterred from pursuing their claims because of the risk of an adverse costs order.
The following are examples of clauses explaining the client’s liability for costs in the event of an adverse costs order:
If you are unsuccessful in your case, the court may order you to pay the other party’s legal fees and expenses. We do not pay these for you. You will be liable for these fees and expenses yourself. If you settle the case, and as part of the settlement you agree to pay all or some of another party’s fees and expenses, you will be responsible for paying those fees and expenses yourself.
If your case does not settle and the court decides your case, the court will also make a decision about legal costs. If you are successful in your case, the court may order the unsuccessful party to pay some of your costs. If you are unsuccessful, the court may order you to pay some of the other party’s legal costs — and if that occurs, this firm will not pay those costs for you. Those costs will be your responsibility. It is difficult to estimate what those costs would be. As a general rule, the court orders the unsuccessful party to pay in the range of one-half to two-thirds of the successful party’s costs.
If your case is unsuccessful, you could be ordered to pay the legal costs incurred by the other party in the case. We will not pay these costs. They will be your responsibility to pay.
LEGAL AID INDEMNITIES
Some jurisdictions have costs indemnity provisions that apply, with certain exceptions, to people granted legal aid. There may be circumstances where a potential pro bono client may be able to benefit from this indemnity.
TERMINATING THE ENGAGEMENT
Letters of engagement need to provide for the termination of the retainer in defined circumstances so it is clear to both parties when termination will occur.
Some examples of how some firms provide for termination of a retainer include:
We may end this agreement if:
- your financial circumstances change, and as a result we no longer consider you fall within our pro bono scheme;
- you do not follow our professional advice;
- we consider your case is unlikely to win;
- you do not keep in contact with us;
- you do not give us adequate instructions;
- you show you have lost confidence in us;
- you engage another lawyer to act in the case;
- we consider you have lost legal capacity;
- your case gives rise to a conflict of interest; and/or
- you do not pay your disbursements within 30 days from the date of our Invoice.
We will advise you in writing of our intention to end this agreement and of the reasons for ending this agreement.
We reserve the right to cease acting in the matter and to withdraw as your lawyers if:
- you do not provide funds within the requested timeframe to cover disbursements, barrister’s fees, other essential expenditure or fees on account;
- you do not provide adequate instructions or replies to correspondence within a reasonable time; and/or
- we believe that the necessary mutual relationship of trust and confidence required for a workable solicitor/client relationship no longer exists.
2.1.6 MATTER CLOSURE
Like all matters undertaken by a firm pro bono matters should be closed upon completion, ensuring bills have been paid (if bills are issued), relevant documents returned to the client, and the client notified in writing of the outcome of the matter and that their matter has been closed. The duration of time that the firm will retain the file before it is destroyed (as per its document retention policy) should also be outlined in the matter closure letter.
The closure of a matter is also an opportunity to thank the lawyers involved for the work they have completed and seek informal or formal feedback.
In the interests of recording time and costs expended on pro bono matters, and to assist with evaluation of their pro bono practices, some firms include matter closure reports or evaluation forms as part of their pro bono matter management procedure. The report may include information such as referral source, number of hours spent on a matter, reason for closing the matter, outcome of matter, feedback received from the client and/or within the firm, media attention received (if any), public relations (for example, media releases) and benefits to the client, lawyer, the firm and others from the matter. Evaluation of a firm’s pro bono practice is discussed in more detail in Part 1. See Chapter 1.13 Evaluation and Impact Measurement.
This chapter was reviewed in 2022 by the Australian Pro Bono Centre and the pro bono team at HWL Ebsworth Lawyers, headed by Karen Keogh. The Centre acknowledges and is grateful for the generous contributions of all those who assisted with the 2022 refresh of the Australian Pro Bono Manual.
 For further guidance see, for example, Association of Pro Bono Counsel, Statement on the Eligibility of Non-Profit Entities, For-Profit Entities, Social Enterprise Entities and Impact Finance Transactions for Pro Bono Legal Services (aka: MMM2.0 – Mission | Matter | Means) (Web Page) <https://apbco.org/wp-content/uploads/2020/02/Mission-Matter-Means-2.0.pdf>.
 The Centre maintains a National Law Firm Directory which is available to referral agencies, community legal centres and law firms. See Australian Pro Bono Centre, Legal Help Directory (Web Page) <https://www.probonocentre.org.au/legal-help/>.
 For information about the types of referrals other firms will accept, see Australian Pro Bono Centre, National Law Firm Directory (Web Page) <http://probonocentre.org.au/national-law-firm-directory/>; For a national guide to legal assistance services for individuals, see Australian Pro Bono Centre, ‘Legal help for individuals’, Links to Legal Help (Web Page) <http://probonocentre.org.au/legal-help/individual/>; see also Australian Pro Bono Centre, ‘Legal Help for Not-for-Profit Organisations’, Links to Legal Help (Web Page) <http://probonocentre.org.au/legal-help/not-for-profit-organisation/>.
 For a national guide to legal information sources including information in languages other than English, see Australian Pro Bono Centre, ‘Self-help Legal Information’, Links to Legal Help (Web Page) <http://probonocentre.org.au/legal-help/diy/>.
 For example, LawRight (previously known as the Queensland Public Interest Law Clearing House (‘QPILCH’)) and Justice Connect run self-representation services for unrepresented litigants in certain types of matters.
 See Legal Practitioners Act 2006 (ACT) Part 3.2; Legal Profession Uniform Law Act 2014 (NSW) Divisions 3 and 4; Legal Practitioners Act 2006 (NT) Part 3.3; Legal Profession Act 2007 (Qld) Division 3; Legal Practitioners Act 1981 (SA) Schedule 3; Legal Profession Act 2007 (Tas) s 290; Legal Profession Uniform Law Act 2014 (Vic) Divisions 3 and 4; Legal Profession Act 2008 (WA) Part 10, Division 3.
 This example makes explicit the distinction between internal and external disbursements and charges only for the latter.
 See, for example, Legal Aid Commission Act 1979 (NSW) s 47 and relevant case law.