Issue 50: April 2009
Welcome to the April 2009 edition of the e-Newsletter of the National Pro Bono Resource Centre (the Centre). We welcome your feedback/contributions/ideas. In this edition, read about:
Register Now to Walk for Justice on National Pro Bono Day
There is only 6 weeks to go until National Pro Bono Day and the Walk for Justice. The walk is confirmed to take place in Brisbane, Sydney, Melbourne and Adelaide on Friday 15 May starting at 7 – 9am depending on the city.
The Commonwealth Attorney-General, Robert McClelland, NSW Attorney-General, John Hatzistergos and Supreme Court judge, Justice McClellan have agreed to lead the walk in Sydney. In Brisbane the walk will be led by the Hon Justice Margaret McMurdo AC, President of the Queensland Court of Appeal.
Encourage your firm or chambers to get a team together. Click on the links below to register to walk:
In South Australia (Details for the walk in South Australia will soon be provided on our website).
|Pro Bono or Legal Aid?
“It was an extraordinary case which has huge ramifications for battered wives and battered children,” says Victorian solicitor Brian Birrell. He is referring to the plight of a girl in Victoria who killed her stepfather after being, “effectively raped for four years by him.”
While the matter was running, Birrell tried on numerous occasions to obtain Legal Aid funding for senior counsel to advise, but without success. “As a test case for new defences to homicide legislation, this was clearly a case for a QC,” says Birrell.
In spite of the lack of funds, Birrell approached Robert Richter, whom he believes to be the best QC practicing in criminal law.
“I spent months trying to get Legal Aid for Richter and exhausted all of their internal appeal procedures. I may as well not have wasted my time,” says Birrell. Luckily for the defendant, Richter’s response was, “Don’t worry about it. Let’s just get on with the job; get her bail and try and persuade the DPP that they cannot win.”
The case highlights one of the major themes emerging from the National Pro Bono Resource Centre’s recent survey into the pro bono work of barristers. Many indicated in the survey that they thought legal aid fees were so low that they found it easier to do the work pro bono rather than having to negotiate with Legal Aid.
Birrell is not at all surprised by this.
Richter appeared pro bono in the Supreme Court four times, including a successful bail application. “In Victoria, if you are charged with murder you are automatically locked up, and must satisfy the Supreme Court that there are exceptional circumstances to get bail,” says Birrell.
While he and junior counsel, Peter Chadwick, were being paid by Legal Aid, Birrell believed that having a QC of Richter’s stature involved would affect the outcome of the case.
Even though a trial date had been set for September for six weeks, the legal team still worked behind the scenes, without success, attempting to convince the DPP that no jury would convict.
In February, Birrell finally persuaded Legal Aid to fund Richter if there was a trial. This was to be done partly by reducing Chadwick’s daily fee to little more than that payable for a 10 minute plea in the Magistrates Court. But by this time, there were signs that pressure was building on the DPP (with considerable assistance from Supreme Court Justice Cummins in Directions hearings) not to proceed.
On Friday 27 March, Director of Public Prosecutions, Jeremy Rapke QC, appeared personally in the Supreme Court to announce that he was filing a nolle prosequi to end the proceedings on the basis that a jury would be unlikely to convict.
“My client was finally discharged and the case is all over,” says Birrell. “Richter will charge nothing.”
In 2007, the Victorian Government passed the Human Rights and Responsibilities Act declaring that every person has “a minimum guarantee . . . to have adequate time and facilities to prepare his or her defence and to communicate with a lawyer . . . chosen by him or her.” The Act does not define “adequate”.
Birrell says: “Every lawyer who does Legal Aid does much of it pro bono. There are men and women like Richter and Chadwick out there trying to make this government guarantee work and they will continue to do so. But should a government guarantee any right when it is almost totally predicated on the altruism of a profession?”
“VLA Managing Director Bevan Warner acknowledged the limitations imposed on funding this defence and commended senior counsel for their contribution, observing that the decision to limit funding to junior counsel was upheld by the Independent Reviewer; a former County Court Judge of Queens Counsel and member of the Bar themselves.”
“While we cannot be certain that the decision to not proceed with the prosecution would not have been taken without the involvement of senior counsel we are grateful for the result and for the pro bono support from the Bar more generally.’ Mr. Warner said.
Victorian Bar Thanks its Barristers
Last Thursday the Victorian Bar held a function to thank all those barristers who have so selflessly given of their time to assist people and organisations that wouldn’t otherwise have obtained legal help.
Alexandra Richards QC and the Hon. Michael Kirby AC CMG addressed about 150 attendees. Richards noted that the Victorian Bar Legal Assistance Scheme (VBLAS) run by PILCH (VIC) relies upon more than 600 Victorian barristers who have indicated a willingness to accept instructions on a pro bono basis (this equates to 33% of the practising list. In the past 12months VBLAS had received 571 requests for pro bono assistance and successfully referred 259 to counsel. The greatest number of referrals were in the areas of immigration, criminal, family law and debt recovery.
Richards noted that the advent of Bushfire Legal Help had created a new network of cooperation for pro bono delivery in Victoria which included all major bodies in the legal community. 250 barristers had come forward to volunteer their services for the new service and a number of senior barristers, herself included had been busy much of last week developing applications to appear at the forthcoming Royal Commission.
In a warm and inspiring address, the Hon. Michael Kirby AC CMG argued that pro bono makes a unique and essential contribution to the proper administration of justice, noting particularly the cases of Mallard and Roach, that respectively led to anullment of a conviction for murder and prisoners obtaining voting rights.
The case of Mallard concerned Kirby personally as he had been one of 3 judges who refused the first application made for special leave to the High Court. He noted that if it not been for the hundreds of pro bono hours which led to the successful second special leave application to the High Court and the setting aside of the conviction for murder, Andrew Mallard would still be in jail and a gross miscarriage of justice would have occurred. [NB With the consent of the applicant, His Honour, as he then was, sat on the second successful special leave application (argued on quite a different basis to the first)]. He made special mention of Clayton Utz and Malcolm McCusker QC in Mallard and Ron Merkel QC in Roach.
Having spent an hour and a half at PILCH (VIC) that afternoon meeting and talking with many of the staff, Kirby had great praise for their work and suggested that many of them may go on to have great careers in the law.
The point was made by both Richards and Kirby that pro bono is not a substitute for legal aid and government must honour its side of the bargain to do what whatever it can to provide adequate funding to Legal Aid.
Legal Ethics: Special Edition on Large Law Firms Publishes Centre’s Research
The first truly international journal devoted to ethics in the legal profession has published a special edition on the challenge of ethical practice in large law firms. It includes an article by Maria Twomey and John Corker on the Centre’s research on the pro bono legal work of 25 large Australian law firms which can be accessed in full here.
Special Issue guest editors were Suzanne Le Mire, (University of Adelaide) Adrian Evans (Monash University) and Christine Parker (University of Melbourne).
Other articles of interest include Ethics in the Relationship between Large Law Firm Lawyers and the Corporate Clients through the eyes of in-house Counsel (based on Australian Research) by Suzanne Le Mire and Christine Parker; and
The Power of Rationalisation to influence Lawyers’ Decisions to Act Unethically by Kath Hall and Vivien Holmes (ANU) looking at the role of the lawyers in the Australian Wheat Board’s behavior when selling wheat to Iraq.
Articles from Legal Ethics, Volume 11, No. 2 are available online from Hart Publishing.
Remote Pro Bono in Qld
Nearly four years after the success of its Rural, Regional & Remote (RRR) pilot program, QPILCH has secured funding to get the program up and running again for the first half of this year. And maybe this time around it will gain permanence.
In order to enhance the program, QPILCH contracted Dr Belinda Carpenter from QUT in 2007 undertake research into the provision of pro bono services in remote Queensland.
“The findings of the research indicated that there were a number of barriers that were preventing regional law firms from providing pro bono legal assistance in their communities ,” says Aimee McVeigh, coordinator of the RRR project.
“We also identified a number of small regionally based firms that were interested in commencing or increasing their pro bono activities but were unable to do so due to capacity issues and lack of expertise. Through the RRR Project, QPILCH will partner small RRR law firms with big city firms for the purpose of increasing the capacity of the small firms to provide pro bono assistance. The partnership might involve the big firm being available to field enquiries or complete a discreet part of a matter.”
“One of the outcomes of this program will be the development of precedent documents and protocols that will enable regional firms to access the resources of city firms for the purpose of pro bono activities,” says McVeigh, adding that these resources will still be available as a tool for regional firms to broker partnerships with larger firms, regardless of whether the RRR project continues.
As well as assisting regional firms to offer pro bono services, QPILCH hopes to have an increased capacity to refer applications for legal assistance to a solicitor in the client’s local area.
And there are other planks in QPILCH’s RRR Project.
“In addition to our pro bono schemes, QPILCH currently provides direct services to disadvantaged people in Townsville and Toowoomba through Homeless Persons’ Legal Clinics. QPILCH’s Self Represented Civil Law Service also has regional access. Through this project and our other services we are continually trying to address the need for free, quality civil law legal services in regional Queensland,” says McVeigh.
“The RRR Project works in conjunction with our public interest pro bono scheme as well as with the Queensland Law Society and the Bar Association pro bono schemes; both of which are managed by QPILCH. All Queenslanders, regardless of where they live, should be able to access all of our pro bono schemes”.
If you want to be involved contact Aimee by email on RRR@qpilch.org.au or phone: 07 3012 9773.
Clearing House News
PILCH NSW has a number of Law Week events on its calendar, including:
Launch of PALS@PILCH pro bono animal law service.
Does Pro Bono provide access to justice?
A debate moderated by Justice Ruth McColl AO
Law Walk on National Pro Bono Day – 7am Hyde Park
PILCH film night – Kayani (a film about the Stolen Generation and stolen wages)
Venue: Freehills, PILCH member, level 38 MLC Centre 19 Martin Place 6pm.
The big news at QPILCH is that they have moved premises. After six years in Margaret Street, QPILCH has moved to West End. QPILCH thanks Legal Aid Queensland for its assistance with removal and other costs associated with the move.
For new contact details and recent stories from QPILCH see Issue 16 of ‘In the Public Interest’, the QPLICH enewsletter.
To coincide with the National Human Rights Consultation, the PILCH Homeless Persons Legal Clinic (HPLC) has been conducting workshops about human rights in Australia with people who are experiencing, or have experienced, homelessness. The central aim of these workshops is to promote the right for these people to participate in the consultation process, engage in the debate and write their own submissions. In addition, the de-identified results of the surveys conducted at these workshops will be provided to the Government.
The resounding response from participants has been that their human rights are not sufficiently protected and the Government must take steps to better protect people’s human rights (such as the right to adequate housing, the right to social security, the right to be free from discrimination etc) by introducing a Federal Human Rights Act and by committing resources to ensure realization of those human rights that are protected by law.
At this stage, the HPLC has consulted with over 100 people and will continue to conduct these workshops until late April. If you have any questions about the human rights workshops, please contact Amy Barry-Macaulay, HPLC Lawyer, on (03) 8636 4409.
JusticeNet SA, a not for profit association formed to run a pro bono clearing house in South Australia, is seeking an executive officer (salary range – $60,000 – $70,000 plus superannuation). This is a fixed term position for 12 months, subject to probation.
Applicants require post admission experience as a legal practitioner and need to be currently eligible to hold an unrestricted practising certificate in South Australia.
Enquiries contact: Nicholas Linke phone: 08 8233 0628 fax: 08 8233 0699 mobile: 0412 784 218 or e-mail: firstname.lastname@example.org
Closing date for applications is 4pm on Thursday 9 April 2009.
In the News – March 2009
Click the title of any news article to read the article in full.
Lawyer Amy Barry-Macaulay, from the PILCH homeless persons’ legal clinic, says a Frankston bylaw which allows police to move people from an area and order them not to return for 24 hours , will not help prevent crime. “Also it can be exercised in a way that discriminates against minorities, and this law appears to violate human rights”.
The Victorian Bar is offering free assistance to help victims of the bushfires to lodge an application to appear before the Royal Commission.
“Of all the professions, our profession stands tall for the pro bono contribution made to communities, both here and overseas.”
With pro-bono work by Arnold Bloch Leibler, a constitution was written for Jirrawun Arts Limited.
Article claiming that in the economic downturn, lawyers who had never before shown an interest in pro bono work were putting their hands up to man telephone lines and pester insurers after the Melbourne bushfires.
Article says Einfeld worked on the wrongful detention of Vivian Alvarez Solon claiming that it was pro bono but later charged the federal government $72,783.33 for his work.
Lawyer Nicholas Pullen’s firm has offered pro bono assistance to the wildlife shelter housing the 60 koalas burnt in the Melbourne bushfires.
The Valuing Volunteers Project aims to develop volunteer training and resource materials with broad application to community legal centres.
Bushfire legal help partner organisations, along with key insurance industry organisations, are running a series of free legal ‘roadshow’ information sessions on insurance, credit and general legal issues and legal advice clinics for people who have been affected by the recent bushfires.
In his speech at the award presentation, Kirby listed 10 features of law worthy of praise including independent lawyering, pro bono work, institutional law reform and human rights.
Lawyer Mary Anne Kenny’, who has won this year’s Sir Ronald Wilson Leadership Award, was a principal founder of the Centre for Advocacy Support and Education for Refugees, currently the only community legal centre in WA providing specialist legal assistance to refugees.
Lawyer Vivienne Topp, a policy co-ordinator at the Mental Health Legal Centre, says there is a growing number of people using ‘living will’ directives to prepare for times when their decision-making is impaired.
Victoria Legal Aid (VLA), in consultation with a variety of external organisations, has developed a disability action plan. ‘The plan aims to strengthen access for people with a disability to all VLA services
The Commonwealth Bank has demanded that a Sydney family pay more than $240,000 after allowing them to guarantee a friend’s mortgage, despite already defaulting on their own loan. Their pro-bono lawyer Nicolas Patrick, from city-based DLA Phillips Fox
National Pro Bono Day provides an opportunity to celebrate the pro bono work done by the legal and other professions.
AED Legal Centre, which provides free legal advocacy and representation to people with a disability who experience discrimination in employment and education, has launched a new website.
Solicitor Doug Winning appeared for the RSPCA pro bono, in a matter involving a Rockhampton dog breeder accused of docking her dog’s tail
Residents in remote Queensland unable to afford a solicitor may be eligible for assistance under QPILCH’s Rural Regional Remote program which has recommenced.
In NZ, most Citizens Advice Bureaux run a free legal service at least once a week.
World Naked Bicycle Ride organizer, Heidi Hill, says the group had enlisted a pro-bono lawyer in expectation of fines and possible arrests.
Article on Victorian Charter of Human Rights claims that it has not turned into a ‘lawyers’ picnic …with almost no exceptions, Charter cases for disadvantaged Victorians are run pro bono.”
Pentathlete Angie Darby, whose spot in the Beijing Olympic team was challenged by a fellow competitor, was represented pro bono at the Court of Arbitration of Sport in Lausanne, Switzerland, which ruled in her favour hours before the opening ceremony.
Youthlaw Online, a service dedicated to providing young people in Victoria with greater access to legal advice, has been developed by Youthlaw, a Melbourne-based community legal centre, through $150,000 in federal funding.
Lawyer Susai Benjamin set up Toongabbie Legal Centre to offer free legal advice to residents.
Dianne Sisak of Minter’s talks about their pro bono assistance to establish the Oceania Foundation – a not for profit organisation with the objectives of providing opportunities at a community grassroots level for children and persons in disadvantaged communities to engage in sport.
Former Queensland minister Gordon Nuttall has arranged new legal representation, which may be pro bono, ahead of his trial on corruption charges in the Brisbane District Court.