In the process of setting up or maintaining a pro bono practice, firms should take steps to identify, analyse and manage any issues that may impede effective pro bono service delivery. This serves to minimise exposure to liability and to maximise opportunities for undertaking pro bono legal work. It also ensures that pro bono clients receive the best possible service. In the context of addressing unmet legal needs and access to justice with pro bono legal work, an innovative response to requests for assistance might involve looking at risk management through a different lens.
This chapter examines some of the issues that may arise in a pro bono practice, such as lawyers’ duties, supervision, and conflicts of interest, as well as tips to navigate and overcome common hurdles. It also looks briefly at issues relating to practising certificates and professional indemnity insurance to the extent that these issues may affect pro bono service delivery. The chapter continues with a discussion about disclosure to the court when acting on a pro bono basis, including when working on a discrete task or when providing limited pro bono assistance. The chapter concludes with an examination of relevant IT security factors, data protection as well as work health and safety considerations.
This chapter deals with the risk management issues of specific relevance to pro bono. It does not deal with other risk management issues that arise in legal practice generally (for example, legal practitioner liability issues arising under the Civil Liability Act 2002 (NSW)), which also need to be considered in setting up and running a pro bono practice.
- 2.2.1 Pro bono matters falling outside a firm’s areas of expertise
- 2.2.2 Conflicts of interest
- 2.2.3 Practising certificates & professional indemnity insurance
- 2.2.4 Disclosure to a court
- 2.2.5 IT security
- 2.2.6 Data protection
- 2.2.7 Health and safety
2.2.1 PRO BONO MATTERS FALLING OUTSIDE A FIRM’S AREAS OF EXPERTISE
Pro bono legal work should be undertaken with the same degree of competence, expertise, and to the same high standard as any other legal work.
Some firms explicitly state in their pro bono policies that they will only provide pro bono legal assistance where they can do so competently. Some firms specify particular areas in which they will not provide pro bono legal services (most commonly for large firms, these are family and criminal law).
Firms can, however, consider acquiring expertise in new areas not covered by their commercial practice areas (for instance, residential tenancy or infringements/fines). Indeed, a key component of many successful pro bono partnerships is the expert training provided to pro bono lawyers by their partner organisations in areas in which they have not previously practised. It should also be remembered that all lawyers have skills and knowledge that can be used to assist clients with a limited understanding of the legal system and with limited resources, particularly as clients receiving pro bono assistance usually have few other options. However, it is important that firms take a cautious approach to new areas of practice and ensure that relevant work is well-supervised by senior practitioners with relevant expertise or a good general understanding of risk management principles. See further Chapter 1.14 Training and skills. For examples of these kinds of initiatives, see Chapter 1.7 Current models of pro bono legal work and What Works, Part 4 Models of pro bono legal assistance.
2.2.2 CONFLICTS OF INTEREST
When deciding whether it can provide pro bono assistance, a firm should refer to its intake criteria which are generally formalised in the firm’s pro bono policy. These criteria usually include consideration of conflicts of interest. Conflicts of interest may be:
- legal conflicts — also known as direct conflicts; or
- commercial conflicts — also known as indirect conflicts.
Firms generally have systems in place to identify and respond to legal conflicts of interest.
Commercial conflicts, which however, are the more contentious area in pro bono legal work, are discussed further below.
A commercial conflict is the firm’s perception that taking on a particular pro bono matter may deter a current or potential commercial client, because the matter is seen as raising questions regarding the firm’s allegiances or relationships or is prohibitively controversial. This is a particular barrier in a competitive legal market. Situations that can give rise to commercial conflicts in pro bono legal work include:
- doing pro bono legal work that raises concerns for a commercial client or advocating a point of view that is antagonistic to them or their interests, or acting in proceedings against their interests. This may include acting in a matter that directly impinges on the known and explicit legal or business interests of a client: for example, hosting a workshop for a community legal centre (‘CLC’) that is considering a class action against an industry where the firm has a significant practice in that industry. In some cases there can be a number of ‘layers’ in a situation which presents a perceived commercial conflict. That is, a reluctance to act not simply because of a perceived conflict in relation to a client but also a client’s client. For example, where a firm acts for a number of banks and a proposed pro bono matter will impact on one of the banks’ major clients;
- appearing in matters against a particular class of clients (for example, doctors) from whom a firm regularly receives instructions;
- acting in a matter perceived as contrary to the firm’s general vision or strategic plan ;
- acting for plaintiffs in a class action against a corporation, institution or government agency to whom unrelated legal advice was previously given (but where no legal conflict exists);
- acting for ‘the other side’: for example, acting for a patient or aggrieved customer, when the firm normally acts for doctors or banks, even though the defendant in question is not a client;
- acting in politically sensitive or ethically controversial matters or matters seen as ideologically charged; or
- acting against an organisation that the firm is trying to attract as a client.
OVERCOMING AND MANAGING COMMERCIAL CONFLICTS OR CONCERNS
While commercial conflicts can arise from time to time when pro bono requests are made, there are various ways to mitigate or eliminate them.
Given that commercial conflicts are about perceptions, it is ultimately a matter for each firm to decide whether such a conflict exists and how best to respond. It is understandable that a firm may be sensitive about deterring potential or existing clients. It is worth noting though that an overly cautious approach to commercial conflicts can inhibit a firm from taking on pro bono legal work, and consequently, limit the firm’s ability to help address unmet legal need. A commercial conflict may, on occasion, be erroneously interpreted as a legal conflict due to anxiety about alienating a long-standing or desirable client. This may in part stem from confusion about terms and definitional issues.2 Without prejudicing business interests, adopting a common-sense approach to commercial conflicts will ensure that clients are not denied pro bono assistance unnecessarily.
The following strategies are options for addressing commercial conflicts:
- Contact the client to discuss the perceived conflict and obtain the client’s consent to the firm’s acting. Both the Commonwealth and the Victorian governments have made clear in their documentation concerning pro bono legal work and service providers that government agencies, departments and statutory authorities should not adversely discriminate against legal service providers that have acted, or may act, pro bono for clients in legal proceedings against government. In Victoria, any potential conflict can be raised with the contract manager within the Department of Justice and Community Safety. In the Commonwealth, the Office of Legal Services Coordination in the Attorney-General’s Department administers the purchase of legal services under the Legal Services Directions 2017 (Cth) and enquiries should be directed to the office’s principal solicitor;
- Clarify with the commercial client that the firm’s commitment to pro bono is an integral part of its corporate image and public relations strategy. Pro bono legal work is proudly promoted by many mid-sized and large firms as a cornerstone of their corporate culture. The client may in fact prefer to partner with businesses that demonstrate similar values and a similar corporate culture to their own;
- It may be possible to accommodate a firm’s involvement in a particular matter by having its staff act as volunteers or secondees at a CLC, non-government organisation or charity that is supervising the matter and acting on the record. The firm’s lawyers would still do the work and the principal lawyer of the organisation would act as the supervising lawyer. In this way the client is the organisation’s client (and not the firm’s) and any risk rests with the organisation;
- Where a matter referred from a community legal organisation raises a commercial conflict, give general advice about the issues to the community legal organisation and/or undertake research into areas relevant to the issues, or offer alternative assistance such as administrative support or secondments;
- Undertake to attempt to place the refused referral elsewhere — this will require developing ties with other firms with pro bono practices that can accept referrals on this basis. The National Law Firm Directory allows, amongst other things, firms to log in to see the focus areas of other firms. This may be helpful in placing a refused referral. The referral can also be sent to the local pro bono clearing house;
- Take on certain aspects of a matter, limiting the scope to what would not be considered a commercial conflict;
- Develop and publish policies and procedures to identify and resolve potential commercial conflicts. A policy could require staff training and education on appropriate interpretation of commercial concerns; or/and
- Form a commercial conflicts committee that identifies in advance areas that they suspect may cause problems with particular commercial clients, and consults and liaises with those clients to determine whether the client will support the firm’s pro bono commitment to a particular matter or cause. This approach can help prevent ad hoc decision-making in relation to pro bono.
Firms may be especially cautious about taking on matters of a controversial or sensitive nature. In these rare cases, a firm can adopt similar procedures to those that apply to commercial conflicts, for example, additional scrutiny of the matter at a senior or committee level. This approach has the advantage of putting the firm’s management on notice, enabling the firm to develop in advance an appropriate strategy to deal with any media attention, and therefore shield the pro bono legal work from undue criticism.
As a matter of procedure, if the firm’s policy is not to take on matters against a particular client, or class of clients, this information should ideally be made available to the referring organisations to avoid inappropriate referrals. See Chapter 2.1 Casework procedures.
2.2.3 PRACTISING CERTIFICATES AND PROFESSIONAL INDEMNITY INSURANCE
While each jurisdiction has its own rules concerning practising certificates and professional indemnity insurance requirements, it is a requirement of the Legal Profession Uniform Law in force in Victoria and New South Wales and of the equivalent legislation in force in all other states and territories that all legal services are covered by an approved professional indemnity insurance policy, with limited exceptions.
Firms undertaking pro bono legal work should contact their relevant professional association and professional indemnity insurer in relation to any specific requirements or exemptions in respect of pro bono work. Larger firms often have internal risk and compliance teams that can often also provide useful support.
Employed lawyers undertaking pro bono legal work within their firm will generally have their practising certificates and insurance needs met by the firm. Professional indemnity insurance generally extends to pro bono legal work so long as it is undertaken in connection with the practice of the firm. Pro bono legal work done in this context should be undertaken with the knowledge and approval of the firm, and subject to the same supervisory arrangements as commercial work.
Pro bono legal work undertaken by a lawyer on secondment to a community legal organisation is generally covered by the community legal organisation’s professional indemnity insurance policy. It is essential for this to be clarified prior to the secondment starting, and for any requirements or limitations for insurance cover of the secondee to be noted and otherwise covered. In addition, it is best practice for the obligation of the organisation to maintain adequate professional indemnity insurance for a secondee to be reflected in a formal secondment agreement between the organisation and the firm providing the secondee. For secondment agreement precedents see Appendix 1 Precedents.
There are also various clinic and partnership arrangements that either carry their own professional indemnity insurance or rely on the professional indemnity insurance provided to all community legal centres nationally.
Lawyers employed as in-house lawyers by corporations and government should check whether their practising certificates permit them to undertake pro bono legal work and confirm this with the relevant professional association. In most states and territories (including in NSW, Victoria and Queensland), in-house lawyers are permitted under the terms of their existing practising certificates to do pro bono legal work. However, it is important that in-house lawyers check the arrangements in the state or territory within which they are registered.
In-house lawyers and government lawyers will also require suitable professional indemnity insurance for any pro bono legal work they undertake. The cost of this insurance may present a barrier to in-house and volunteer lawyers undertaking pro bono legal work. To address this barrier, in 2009, the Centre established the National Pro Bono Professional Indemnity Insurance Scheme which provides free professional indemnity insurance for approved pro bono projects (see below).
NATIONAL PRO BONO PROFESSSIONAL INDEMNITY INSURANCE SCHEME
The National Pro Bono Professional Indemnity Insurance Scheme was launched by the then Attorney-General of NSW, The Hon John Hatzistergos on 3 June 2009. The Scheme removes one of the key barriers to pro bono legal work for in-house and volunteer lawyers: the need for professional indemnity insurance cover for any civil claims arising from their pro bono legal work.
The Scheme’s Policy is underwritten by Lawcover Pty Ltd and is held and administered by the Australian Pro Bono Centre. The Policy insures lawyers and paralegals who undertake pro bono legal work on pro bono projects approved by the Centre in certain Australian states and territories.
A project is defined broadly, for example, it can be:
- legal work for a charity or community organisation;
- work being referred through pro bono referral schemes and organisations ;
- work as part of a multi-partner project involving a law firm pro bono practice; or
- a single legal case.
However, any work conducted as part of a project must conform with the definition of ‘pro bono legal work’ in the Policy. The definition of ‘pro bono legal work’ contained in the policy is based on the Law Council of Australia’s definition of pro bono legal work. Projects are also assessed against the National Pro Bono Target definition of ‘pro bono legal work’. See Chapter 1.2 Defining pro bono legal work.
Lawyers may seek cover under the Policy by completing an application form and submitting it to the Centre for approval. Once approved, the Policy will provide free professional indemnity insurance, subject to terms and conditions, for all lawyers and paralegals who work on that project.
The Policy is a ‘safety net’ policy, so cover will only extend to circumstances where no other professional indemnity insurance policy provides cover. The Centre has paid the premium and will cover the excess payable on any claim.
2.2.4 DISCLOSURE TO A COURT (IN LITIGATED MATTERS)
There is no statutory obligation, nor principle of general law, requiring lawyers to inform the court that they act on a pro bono basis. However, in certain circumstances, disclosure may be advisable.
The first consideration relates to costs orders. A court has a general discretion regarding costs orders without needing to know whether a contractual liability exists for a party to pay costs to their lawyer. Once a costs order is made by the court, the question of what costs can be recovered is one for parties to agree on, or alternatively, for the relevant costs assessment process to determine. It is only at this stage that a lawyer may be obliged to disclose to the costs assessor that he or she is acting on a pro bono basis (but it will be important to note on what basis the firm acts, for example, conditional costs basis). Generally a lawyer will not be entitled to recover their costs unless they are engaged pursuant to a conditional costs agreement that complies with relevant disclosure obligations for that jurisdiction. See Chapter 1.12 Costs and disbursements, Chapter 2.1 Casework Procedures and Chapter 2.2 Letters of engagement.
Separately, there may be other practical reasons why disclosure may be, at least strategically, advisable in particular circumstances. For examples of cases where courts have taken account of pro bono representation see the Centre’s ‘Pro Bono Case Law’ webpage.
2.2.5 IT SECURITY
Given that some pro bono work might be taking place in the offices of small, possibly poorly resourced organisations (and, in a ‘popup’ situation, not in an office at all), there is likely to be an increased risk that sensitive information may not be as well protected to the same standard as larger firms. It is unlikely that the level of software and hardware security that would be taken for granted in a large firm would be available to a small local community organisation. The information might be sensitive because it is privileged, concerns the identity and or characteristics of individuals, or it might be financial information.
There may also be issues around whether a lawyer’s usual computer, laptop or smartphone are appropriate for use when working on secondment or as a volunteer at a pro bono client’s organisation. Any files or systems accessed may be an IT security risk.
2.2.6 DATA PROTECTION
Similar to the above, firms should be considering whether data that is communicated or stored electronically, when carrying out pro bono work with or from other organisations, is safe. The same applies to non-electronic data. It is important to confirm files are appropriately stored and kept secure, especially if a lawyer is moving between different offices. Support staff should also be trained appropriately on confidentiality issues. These are important issues as firms have obligations under privacy law to keep personal and client information secure, as well as legal advice.
2.2.7 HEALTH AND SAFETY
The firm should be careful to ensure that staff working on other organisations’ premises are safe while they are there. Secondment agreements should also include a clause describing workers compensation arrangements in the event of an incident.
This chapter was reviewed in 2022 by the Australian Pro Bono Centre and the pro bono team at Hall & Wilcox, headed by Nathan Kennedy and consisting of Dan Poole and Andrew Banks. 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.
 Legal Services Directions 2005 (Cth) cl 11.3-11.5; Victorian Government Solicitor’s Office, Government Legal Services Panel Deed of Standing Offer for the Provision of Legal Services (Legal services panel contract, 2021) Pt C cl 22 <https://www.vic.gov.au/legal-services-panel-contract>.
 See Australian Pro Bono Centre, National Law Firm Directory (Web Page, 2019) <http://probonocentre.org.au/national-law-firm-directory/>.
 See generally ‘National Pro Bono PI Insurance Scheme’, Provide Pro Bono Assistance (Web Page, February 2022) <http://probonocentre.org.au/provide-pro-bono/pi-insurance-scheme/>.
 See Australian Pro Bono Centre ‘Can I access the Scheme’, Pro Bono Assistance (Web Page, February 2022) <https://www.probonocentre.org.au/provide-pro-bono/pi-insurance-scheme/#toggle-id-1>.
 Australian Pro Bono Centre, Pro Bono Case Law (Web Page, 2021) <http://probonocentre.org.au/information-on-pro-bono/case-law/>.