Other Definitions of Pro Bono

While the Centre’s definition of “pro bono” is widely accepted, there are a number of other definitions of pro bono in use in Australia:

• Law Council of Australia definition (1992)
• Law Foundation of New South Wales (now Law and Justice Foundation of New South Wales) definition (1998)
• Victorian Government Legal Services Panel definition
• Western Australian Pro Bono Legal Services model

In addition, several definitions are used outside of Australia:

• ABA Model Rules of Professional Conduct
• Law Firm Pro Bono Challenge® (Pro Bono Institute)
• UK Joint Protocol for Pro Bono Legal Work (UK Bar Pro Bono Unit and LawWorks)
• TrustLaw Index of Pro Bono
• UK Collaborative Plan
• Rules for the Attorneys’ Profession (South Africa)
• Legal Profession (Mandatory Reporting of Specified Pro Bono Services) Rules 2015 (Singapore)

In 1992 the Law Council of Australia developed the following definition of pro bono work:

Pro bono work is defined to include situations where:

1. A lawyer, without fee or without expectation of a fee or at a reduced fee, advises and/or represents a client in cases where:
   1. a client has no other access to the courts and the legal system; and/or
   2. the client’s case raises a wider issue of public interest; or
2. The lawyer is involved in free community legal education and/or law reform; or
3. The lawyer is involved in the giving of free legal advice and/or representation to charitable and community organisations.

This is a broader definition than the Centre’s. It covers not only legal advice and representation but also law reform and community education. It is limited to work done by lawyers and does not cover some kinds of assistance that firms may perform and capture as part of their broader corporate sustainability programs, such as the work of non-legal staff and/or the provision of financial or in-kind assistance to community organisations (such as community legal centres and Public Interest Law Clearing Houses). Unlike the Centre’s definition it does not provide further guidance about what is not pro bono legal work nor does it provide the same level of guidance in relation to the circumstances of the individuals or community organisations who would fall within the definition.

The definition includes free and reduced-fee services and services performed “without expectation of a fee”. Chris Arup has analysed¹ the phrase “without expectation of a fee” and lists the following as its advantages:

• it excludes consideration of the difficult cases of conditional fee and contingency fee based services;
• it excludes speculative work where the underlying motivation is commercial gain, albeit at a risk; and
• it may possibly credit cases where the lawyer is taking a very real risk, essentially for the sake of the client.

The disadvantages of incorporating “without expectation of a fee” into the definition of pro bono include that it may have the effect of benefiting the other side when they would normally be expected to pay costs, although please see our Recovery of Costs page for the latest developments in this area.

¹ C Arup, “Defining pro bono: models and considerations“, paper presented at the First National Pro Bono Conference, For the public good, Canberra, 4–5 August 2000, p7.

In 1998 the Law Foundation of New South Wales (now the Law and Justice Foundation of New South Wales) (LJF) developed the following definition:

Pro bono legal services are services that involve the exercise of professional legal skills and are services provided on a free or substantially reduced fee basis. They are services that are provided for:

1. people who can demonstrate a need for legal assistance but cannot afford the full cost of a lawyer’s services at the market rate without financial hardship;

2. non-profit organisations which work on behalf of members of the community who are disadvantaged or marginalised, or which work for the public good; and

3. public interest matters, being matters of broad community concern which would not otherwise be pursued.

This definition is also restricted to legal services and many of the comments made with respect to the Law Council definition also apply here. The LJF definition does not cover speculative or contingency fee work, although the LJF considered that “work performed on a conditional fee basis could be referred by a pro bono scheme if fee recovery only occurs to the extent that a costs order is made in favour of the client and costs are recovered from the losing party”.¹

¹ Law and Justice Foundation of NSW 2002, Future directions for pro bono legal services in New South Wales, Sydney at 32.

As part of the tender process, firms listed on the Victorian Government Legal Services Panel were required to commit to a Pro Bono Percentage of at least five percent of the value of legal fees (excluding GST, expenses and disbursements) under the Contract to pro bono work, defined as an “approved cause.”

“Approved cause” is defined as:

the provision of any services by lawyers or other staff based in Victoria or other financial or in kind assistance which will enhance access to justice for disadvantaged persons or organisations and/or promote the public interest including but not limited to circumstances where a Panel firm:

1. without fee or without expectation of a fee or at a reduced fee, advises and/or represents a client in cases where:

   1. a client has no other access to the courts and the legal system; and/or
   2. the client’s case raises a wider issue of public interest; or

2. undertakes the following, provided the provision of these services or financial or in kind assistance will enhance access to justice for disadvantaged persons or organisations and/or promote public interest:

   1. is involved in free community legal education and/or law reform;

   2. is involved in the giving or free legal advice and/or representation to charitable and community organisations;

   3. provides staff (legal or other) on secondment to a CLC or other community organisation; or

   4. provides financial or in kind assistance (e.g. equipment, sponsorship etc.) to a CLC or other community organisation.

The Victorian Panel definition includes work by non-lawyers and non-legal assistance, such as financial and in-kind contributions. This element makes it broader than the Centre’s definition of “pro bono legal services.” It also requires that assistance to community organisations enhances access to justice for disadvantaged persons or organisations and/or promotes the public interest. In contrast the Centre’s definition includes work for charities or other non-profit organisations which work on behalf of low-income or disadvantaged members of the community or for the public good. In this regard the Centre’s definition is broader.

The WA Pro Bono Legal Services Model adopts the Centre’s definition of “pro bono legal services” and requires firms who provide legal services to the WA Government to be signatories to the Target.

However, law firms who provide legal services to the WA Government are required to commit to undertake pro bono work for “approved causes” in Western Australia, to the value of at least 10% of the value of each firm’s Government legal work.

“Approved causes” are defined to mean the provision of pro bono legal services:

1. to people in Western Australia who cannot obtain Legal Aid or otherwise access the legal system without incurring significant financial or other hardship;

2. which will enhance access to justice for disadvantaged people in Western Australia;

3. to Law Access, a community legal centre in Western Australia, the Aboriginal Legal Services of Western Australia, and to bodies in Western Australia whose primary focus is representation of Aboriginal people; or

4. by way of secondment of legal staff to Law Access, a community legal centre in Western Australia, the Aboriginal Legal Services of Western Australia, or bodies in Western Australia whose primary focus is representation of Aboriginal people.

The key difference between the Target definition and WA’s definition of “approved causes” lies in the approach taken to providing pro bono legal services to organisations. Under the WA model, the definition will only be met if pro bono assistance is provided to specific not-for-profit organisations (such as Law Access and the Aboriginal Legal Services of Western Australia). By contrast, the Target definition takes a broader approach, allowing pro bono assistance to be provided to any charity, not-for-profit organisation or social enterprise so long as the organisation’s sole or primary purpose is to work in the interests of low income or disadvantaged members of the community (or for the public good).

Please see the Centre’s Government Tender Arrangements page for more information.