Issue 54: August/September 2009
Welcome to the August 2009 edition of the e-Newsletter of the National Pro Bono Resource Centre (the Centre). We welcome your feedback/contributions/ideas.
Click on any headline to read the full story.
In this edition, read about:
- Optus first in-house team approved under new PI Scheme
- Pro Bono Practices Guide launched
- Sexual Assault victims service meets a gap in need
- Stories from the Homeless Persons Legal Clinic in Victoria
- New Online Resources
- In the News – July 2009
Optus first in-house team approved under new PI Scheme
A small Optus in-house team of four lawyers managed by Alasdair Fuller, Optus Director of Procurement is the first team to be approved under the National Pro Bono PI Insurance Scheme. Initiated and led by Elaine Leong, this hands-on group intend doing pro bono legal work for charities with which Optus already has relationships. The team have a united vision of using their professional skill-set to give back to our community.
Read more about the National Pro Bono PI insurance Scheme.
Pro Bono Practices Guide launched
Pro Bono Practices Guide – A national guide to the pro bono practices of 30 Australian law firms”, a joint publication of the National Pro Bono Resource Centre and NSW Young Lawyers was launched at the Australian Law Students Association’s Annual Conference in Brisbane on 17 July 2009 by the Honourable Justice Roslyn Atkinson of the Queensland Supreme Court.
The Guide provides comprehensive information about the pro bono practices of 30 law firms across Australia and illustrates the unique and interesting nature of each firm’s program and its pro bono philosophy and culture.
The Guide gives students and young lawyers an idea of what to expect from a firm’s pro bono practice as a summer clerk, graduate lawyer or associate. Readers will also be able to compare and contrast the practices of different firms.
In addition to profiling the pro bono practices of law firms, the Guide contains tips for students on how to critically evaluate pro bono programs, some sample interview questions and an analysis of the submitted law firm profiles.
Sexual Assault victims service meets a gap in need
In April 2009, an innovative pilot project initiated by Women’s Legal Services (WLS) brought Blake Dawson, Clayton Utz and Freehills together with the Office of the Director of Public Prosecutions NSW (ODPP) and the NSW Bar Association to assist in keeping the records of sexual assault victims confidential when their private files are subpoenaed for use in trials.
The Sexual Assault Communications Pro Bono Referrals Project has met a real gap in unmet legal need as Nicolas Cowdery, NSW Director of Public Prosecutions (DPP) explained in April, “Victims are rarely in a position to argue privilege and the ODPP, who act on behalf the state, cannot give legal advice to the victim.”
Since February 2009 there have been 19 cases referred from the DPP for assistance and WLS has assisted in a further seven privilege matters outside the pilot. This has occurred at committal hearing and before and during trial. Alicia Jillard, solicitor at WLS who is managing the project said, “The firms and Louise Goodchild, of the NSW Bar have made invaluable contributions to the project. On one occasion Brian Ferrari of counsel spent a whole week in court acting pro bono on behalf of a complainant.” The pro bono effort has been great and the complainants have really appreciated the support.
Following a sexual assault, many victims seek assistance from counsellors, psychologists and other health professionals. If victims perceive those discussions may not remain confidential, but instead may be shown to the perpetrator of the assault or his or her lawyer, it could deter them from seeking the help they need.
Under the current legislation, a privilege exists to protect a sexual assault victim from the harm that may be caused if his or her records are revealed as well as to safeguard the broader public interest in maintaining the integrity of counselling. For the privilege to be maintained, the holder of the records must be aware that the documents contain “protected confidences” and object to production. Without objection there is a risk that the sexual assault victim’s confidential records will be disclosed.
The project is highlighting the problems with the privilege as it currently stands. The results of the pilot will inform the law reform debate regarding the sexual assault communications privilege both in NSW and in relation to the Commonwealth Model Uniform Evidence Bill. All those involved in the project are also calling for permanent funding to assist complainants to assert the privilege in all sexual assault cases.
The DPP referred an urgent matter to the pilot group: the trial was due to start on that day and the Defence had served a notice of their intention to adduce evidence of a protected confidence in a psychiatrist’s records. The DPP then referred the matter to WLS by phone so we could advise the client and establish if she wished to maintain privilege. We confirmed, late in the day, that the client objected to adduction.
As neither WLS nor the firms could send a solicitor the next day, WLS drafted a letter to the court advising of an intention to object and requesting an adjournment on the basis of inadequate notice. Time was of the essence, if the privilege issue was not dealt with promptly the trial faced a further two to three month delay of the trial. The DPP solicitor mentioned the matter that day and the Judge adjourned it for two days to allow for the objection.
The next day WLS succeeded in finding a firm who could take the matter on at such short notice. The following day the firm, instructing counsel, appeared on behalf of the complainant. It was also discovered that a lot of other privileged materials had been produced on subpoena without objection, in other words, confidential material had slipped through the cracks. The representatives of the complainant managed, to the extent possible, to cure this error as the Judge ordered all of the psychiatrists records to be kept out and limited the material to be adduced from the GP’s records. This meant that the complainant would not be cross-examined in relation to the confidential communications between her and her psychiatrist.
The DPP referred a sexual assault complainant to the pilot scheme regarding a claim of privilege. WLS accepted the referral at short notice and instructed counsel to appear pro bono to object to production of records subpoenaed by Defence from a sexual assault unit based in a hospital. The hospital did not send a representative to court and did not object to production, the sexual assault service told us they believed she had waived privilege verbally. The complainant said she had not waived privilege. In any case, consent to waive the privilege is subject to strict requirements in the NSW Criminal Procedure Act and it must be in writing.
At the mention we sought and were granted leave to appear on behalf of the complainant for the purpose of objecting to production of the material returned on subpoena. The Judge inspected the material for the purpose of ruling on the objection and granted leave for the complainant’s representatives to inspect it as well. Neither the Defence nor the Crown (who have duties of disclosure) had access.
Following argument by counsel for the complainant (who had seen the records) and counsel for the Accused (who hadn’t seen them), the Judge made an order restricting production for inspection to all but a single expert certificate contained in the records. The client was very happy with this outcome, however she now has reservations about opening up to a counsellor again knowing that it can be used in court or subpoenaed.
Stories from the Homeless Persons Legal Clinic in Victoria
Al is an asylum seeker who arrived in Australia in 2003. Until mid-2006, Al spent significant time and energy going through the court system in order to obtain a protection visa, but his application was ultimately rejected by the Federal Court. In 2004, Al spent several months in immigration detention.
These experiences left him extremely traumatised, leading to the development of Post-traumatic Stress Disorder and Major Depressive Disorder. For the past two years, while living destitute in the community, Al incurred a range of infringements, amounting to over $2000. Al wanted to pay these infringements, but he had no right to work or earn money and was living on only $30 per week, provided by an asylum seeker support program.
Al’s financial counsellor assisted him to have his infringements considered in the Special Circumstances List at the Magistrates’ Court. He was extremely anxious about attending court due to his fear of authority and the traumatic memories of his time in immigration detention. HPLC lawyers were engaged to appear in the Magistrates Court on his behalf and were able to demonstrate that special circumstances existed at the time of the offences. The Magistrate dismissed all of his fines without condition. Al was ecstatic with the result and left the court jumping up and down in excitement.
With the fines now behind him, Al is able to continue to make positive changes to his life and improve his health and financial situation.
Kevin, who lived in a rooming house, faced eviction because he had not been able to keep up with his rental payments. He fell behind with his rent when he became unemployed. A few weeks before the birth of his first child, Kevin received a notice from VCAT informing him of a hearing of his landlord’s application for his eviction. Assisted by the HPLC, Kevin successfully negotiated a payment plan with his landlord, allowing him to stay in the rooming house and pay his overdue rent back over a period of some months.
Unfortunately, due to circumstances beyond his control, Kevin failed to make one of the payments under this payment plan. However, with further assistance from the HPLC, Kevin succeeded in having the Application for Possession filed against him dismissed by VCAT, meaning that he did not have to repay the rental arrears. Although he was not able to remain at the rooming house, he has found alternative accommodation which is more comfortable and secure, and looks forward to raising his child in a more peaceful environment.
To contact the Homeless Persons’ Legal Clinic in Victoria, phone (03) 8636 4408 (FREECALL) 1800 606 313.
New Online Resources
Two high quality significant resources useful for any caseworker have just come online. Bookmark them now!
The first is the Fitzroy Legal Service’s Law Handbook. The new Law Handbook Online site contains the full handbook which has evolved in Victoria over 30 years and also a large database of addresses and links to useful websites that are related to specific topics. This is a really excellent resource. As Peter Cundall says, “It’s your bloomin’ law”.
The second is the Bushfire Legal Help Handbook – a guide to the law for people affected by the February 2009 Victorian bushfires. This publication, coordinated by Victoria Legal Aid draws together expertise from across the Victorian legal profession to cover many topics such as insurance, fencing, family law, employment, lost documents, victims of crime and the coroner’s process.
In the News – July 2009
The National Pro Bono Resource Centre has suggested retired High Court judge Kirby could encourage retired judges to turn to provide pro bono mediation services.
The Environmental Defender’s Office, a community legal centre, has released 1,000 copies of the second edition of its ACT Environmental Law Handbook.
Daniel Sheen is representing the relatives of the murdered Lin family pro bono.
Queensland Attorney-General Cameron Dick today announced almost $1.5 million in Bligh Government justice grants to support some of Queensland’s most vulnerable people, including three grants to QPILCH for its pro bono referral services, rural regional and remote project, and self-representation civil law service.
Maribyrnong City Council will send ‘Do Not Knock’ stickers to local households after Footscray Community Legal Centre released a report that found many door-to-door salespeople, including energy companies, were getting African migrants and residents from other non-English speaking backgrounds to sign contracts they didn’t understand.
NSW lawyers want the Federal Government to subsidise legal services for working families under a Medicare-style scheme. People with legal problems who did not qualify for legal aid or pro bono services could visit a participating firm and get written advice for a fixed fee paid by the Government.
A Senate committee inquiry into access to justice has stirred up long-standing frustrations on the inadequacy of legal aid and community legal centre funding.
Attorney-General Robert McClelland opened the new premises of the Launceston Community Legal Centre.
A team of budding young moviemakers from Minter Ellison has won second prize in this year’s National Pro Bono Resource Centre’s short film competition.
Darren Yandle, who wants to provide crisis accommodation, says the Environmental Defenders Office had referred his case against Council to the Public Interest Legal Clearing House (PILCH) for pro-bono representation but they were unable at the last minute to find a firm to take on the case.
John Digby, QC, chairman of the Victorian Bar Council, said that expert criminal lawyers were abandoning legal aid work in droves as those working in the magistrates courts struggled to make a living on a $36,000 wage. Since 2005, the number of barristers working on criminal cases funded by legal aid had dropped by 26 per cent.
Devonport firm partner Cath Church said lawyer numbers were at crisis point and her firm did a lot of legal aid and pro bono work.
UK lawyers who acted pro bono to save a family from eviction of their home of 20 years obtained the first large Section 194 “pro bono costs order”, requiring the losing party to pay £20,000 to the Access to Justice Foundation to support yet more pro bono.
Desmond Tutu has urged lawyers to contribute to global development through pro bono work.
A pensioner maimed when arrested by Perth train station railway guards is seeking a pro bono lawyer to help him sue the Public Transport Authority.
Clarendon Lawyers, which is acting for the Timbercorp Growers Group, estimated it would need around $300,000 to continue the case and it could no longer provide services pro bono.
A national Law Council survey shows that regional Australia faces a potential dearth of lawyers, with more than 40 per cent of country practitioners saying they do not intend to be in the profession in five years. The survey showed 71 per cent of practices took part in unpaid volunteer work, while 64 per cent regularly undertook pro-bono work.
An elderly man who lost the right to handle his own financial affairs for making hundreds of calls to sex chat lines is taking his fight to regain control of his life to the Supreme Court and has been supported by advocates from Carers Queensland and pro bono lawyers appointed by the Queensland Public Interest Legal Clearing House.
Prominent Darwin lawyer and past President of the NT Law Society, Ian Morris, the first NT person to die with swine flu, is described as having done, “an awful lot of pro bono and free work for people who desperately needed a lawyer but couldn’t afford one.”
The Bushfire legal help handbook – a guide to the law for people affected by the February 2009 Victorian bushfires is the result of collaboration between Bushfire Legal Help partners including staff from Victoria Legal Aid, Public Interest Law Clearing House, Law Institute of Victoria, members of the Federation of Community Legal Centres and the private profession.
The Public Interest Law Clearing House says average Australians routinely abandon their pursuit of justice because our user-pays system of litigation favours the rich.
After seven years of lobbying by the Griffith University Innocence Project, which employs students to examine cases under the direction of pro bono lawyers and academics, the State Government has agreed to let DNA evidence used to convict Shane Davis for a 1990 murder be re-tested.
Senator Kate Lundy welcomes the A-G’s announcement of one-off funding for legal services including a trial clinic for homeless people in the ACT.
PILCH’s Homeless Persons Legal Clinic is supporting a coalition of peak welfare agencies challenging the Victorian Government to take on a growing number of ‘slumlords’ who are operating unsafe, overcrowded and often squalid private rooming houses and exploiting thousands of the state’s most vulnerable citizens.
The Attorney-General has launched the International Pro Bono Advisory Group to promote international pro bono work by Australia’s legal profession and identify links with the Government’s international development assistance programs.
AmLaw’s annual list of top US law firms uses four measure: revenue per lawyer, commitment to pro bono, diversity among lawyers, and associate training and satisfaction. The formula gives more weight to the first two factors, doubling a firm’s scores for revenue per lawyer and pro bono.
Annual survey results from The American Lawyer show that Am Law 200 firms logged a record 5.57 million pro bono hours in 2008 – a 15 percent increase from 2007. At a blended hourly rate of $300, The Am Law 200 provided roughly $1.67 billion in free legal services.
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