Issue 82: August/September 2013
Welcome to the August/September 2013 edition of National Pro Bono News, from the National Pro Bono Resource Centre.
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In this edition, read about:
|Commonwealth Attorney-General, Mark Dreyfus QC, wrote to firms on its Legal Services Multi-Use List (‘LSMUL’) last month congratulating those firms that are signatories to the National Pro Bono Aspirational Target (‘the Target’), particularly commending those firms that are exceeding it, and acknowledging those firms seeking to build their pro bono practices. In reinforcing the Commonwealth Government’s expectation that law firms providing legal services to it will be leaders in demonstrating a commitment to pro bono work, he indicated that the Target should be the primary means by which providers satisfy their pro bono obligations and that firms with more than 50 lawyers providing legal services to the Commonwealth will be required to be signatories to the Target by 1 July 2014.
The Commonwealth’s arrangements for purchasing legal services from firms are governed by the LSMUL that commenced operation on 1 June 2012. As of 1 June 2013 most Commonwealth departments and agencies are required to purchase legal services under these arrangements. The Attorney-General also asked his Department to reinforce with all departments, agencies and statutory authorities the requirement to assess the amount and kind of pro bono legal work that firms have or will undertake, and whether they are a Target signatory, in deciding whether to hire a particular firm to undertake legal work
The conditions for participation in the LSMUL currently require all appointed legal service providers to commit to pro bono legal work either by being a signatory to the Target or specifying a value of the pro bono legal work they aim to undertake in the coming year. As of 1 July 2014, firms with more than 50 lawyers will no longer be able to nominate a value for the pro bono legal work they seek to undertake but will have to sign the Target which is based on hours of pro bono legal work per lawyer per annum (at least 35 hours) rather than the financial value of the work.
Whilst no metric is perfect, and both systems of measurement can be useful as management tools in running a pro bono practice, the Centre supports hours per lawyer as a better primary metric than financial value. Two reasons for this are firstly, it is not realistic to value the time taken to do the work at the commercial rates of the lawyers involved mainly because of the nature of the work involved, and secondly, there is no common practice between providers as to the charge-out rates thus making comparisons between firms and benchmarking unreliable.
Lawyers and firms can become Target signatories by signing up online.
Each year the Centre publishes a Target Performance Report. The 2013 report is due to be published at the end of September 2013.
|The number of Volunteer Practising Certificates issued in the three States where they are available has been increasing steadily since their introduction. Volunteer practising certificates have been available in Victoria since December 2005, in Queensland since 1 July 2007 and in Western Australia since 1 July 2012. In Victoria, 245 certificates were issued in the 2011-12 year up from 147 in 2008-2009, in Queensland, 52 certificates were issued in the 2011-2012 year up from 17 in 2007-2008 and in WA, 12 certificates were issued in the first year of the operation of a new system with most of these being issued in the last six months.
Different systems exist in each of the three states but in all three, the certificates are issued at no cost to the applicant. The volunteer practising certificate in Victoria only permits the holder to practice as a volunteer at a community legal centre including an Aboriginal Legal Service (CLC). The certificate affords no right of private practice. However a corporate legal practitioner in Victoria, under their practising certificate, may undertake pro bono legal work in their own capacity provided they have insurance under an approved professional indemnity insurance scheme. The National Pro Bono Professional Indemnity Insurance Scheme (administered by the Centre) is such an approved scheme. The limitation of the Victorian scheme is that a retired or career-break lawyer who wants to undertake pro bono legal work (other than at a CLC) is unable to obtain a volunteer practising certificate.
In Queensland, volunteer practising certificates are available on a restricted or unrestricted basis. A restricted certificate does not allow the holder to supervise a CLC or operate a trust account. The certificate permits the holder to engage in legal practice as a volunteer at a CLC, an Aboriginal or Torres Strait Islander Legal Service, or for a pro bono project approved by the National Pro Bono Resource Centre. This system therefore does facilitate career-break or retired lawyers to undertake pro bono legal work provided the project is a pro bono project approved by the National Pro Bono Resource Centre who can also provide the PI insurance without charge to the lawyer under the National Pro Bono Professional Indemnity Insurance Scheme. The Centre approves a pro bono project if the work falls within the definition of pro bono used by the Law Council of Australia and is to be undertaken without fee to the client.
In Western Australia, a ‘volunteer or pro bono only’ condition can be applied to a practising certificate with the consent of the holder of the certificate. As this is a ‘restrictive condition‘, the issue of each certificate requires a decision of the Legal Practice Board of WA. These practising certificates authorise the holder to undertake pro bono legal work either at a CLC or otherwise and so are potentially available to government, retired or career-break lawyers However there are still regulatory barriers to the National Pro Bono Professional Indemnity Insurance Scheme operating in WA. The Law Society of WA would like to see amendments made to the Legal Profession Regulations to rectify this situation. In the meantime there are in place significant discounts for holders of volunteer certificates to obtain PI insurance from the PI insurer, Law Mutual (WA).
In all states, the holder of each of these volunteer practising certificates must have PI insurance and is subject to the same CPD/CLE requirements as other practising certificate holders.
In summary, the Queensland system seems to be the one that best facilitates its lawyers to undertake pro bono legal work and is the most administratively straightforward. The Centre will be advocating to other States and Territories that they consider introducing a similar system.
The Centre thanks Bianca Parussolo from DLA Piper for assistance with the research for this article.
In the forthcoming Report of the Second Phase of the International Bar Association (IBA) Presidential Taskforce on the Global Financial Crisis, Centre Director, John Corker writes a chapter on the Role of International Pro Bono in addressing the Social Impact of the Global Financial Crisis . The report, titled, “Poverty, Justice and the Rule of Law” will be launched at the forthcoming Annual Conference of the IBA, to be held in Boston, USA from 6-11 October 2013. The fourteen-chapter report includes chapters from other Australian authors, Professor Adrian Evans, Dr Bryan Hourigan and Shelley Marshall from Monash University and Dr Livingston Armytage from the University of Sydney.
The chapter on International Pro Bono traces the history of its development and analyses 100 international pro bono projects to makeobservations about the nature of this work and to identify trends and patterns to draw conclusions about where international pro bono work can perhaps best help in a post-financial crisis world and to provide key messages for those seeking to access or provide this support.
The chapter can be downloaded here. The full publication will become available after it has been formally launched.
DLA Piper have just released the third edition of The Australian In-House Legal Counsel Pro Bono Guide, a useful resource that includes sample pro bono policy and sample costs agreements together with other useful tips for in-house lawyers wanting to get involved in pro bono work. The first edition of this Guide was published in June 2009 at the time of the launch of the National Pro Bono Professional Indemnity Insurance Scheme which has now provided PI insurance for over 40 pro bono projects.
The 2nd Southeast Asia/Asia Pro Bono Conference and Workshop is being held in Ho Chi Minh City, Vietnam from 11-12 October 2013 and follows on from the successful 1st SE Asia pro bono conference held last year in Vientiane, Laos that brought together 150 delegates from 20 countries. The program and speakers indicate that it will be an important event for the development of pro bono legal culture in the Southeast Asia region.
Speakers this year will include Esther Lardent, President and CEO of the Pro Bono Institute from the USA; Gregory Vijayendran, Council Member of The Law Society of Singapore, Edwin Rekosh, Executive Director, PILnet, Nic Patrick, Head of Pro Bono & Corporate Responsibility, International, DLA Piper, Mark Woods, Chair, Access to Justice Committee, Law Council of Australia, Annette Bain, Head of Pro Bono and Community, Herbert Smith Freehills but importantly many others just telling stories about undertaking pro bono work in their own countries and their successes and challenges.
As with the first conference there will be plenty of opportunity for participation and dialogue. The format of conference, workshops and social gatherings will provide a unique opportunity for participants to collaborate in order to improve access to justice for some of the region’s most marginalised communities.