The traditional barriers of adequate professional indemnity insurance, and lack of a practising certificate authorising this work, have been overcome in New South Wales and Queensland by regulatory change, but not in Victoria where these barriers continue to exist. 

However, there are a surprisingly diverse range of solutions where in-house counsel have become involved.

Individual projects

The National Pro Bono Resource Centre has approved thirteen pro bono projects under the National Pro Bono Professional Indemnity Scheme since it was introduced on 1 July 2009, eleven of these based in NSW. The ideas for the projects have come from the applicants many of whom are in-house counsel.

The scheme provides professional indemnity insurance cover without charge to lawyers and paralegals who wish to work on an approved pro bono project. 

The Scheme also provides a special National Pro Bono Project letterhead to facilitate individual lawyers to undertake the work and to make clear that their employer is not providing the legal advice. Two examples of approved projects are the legal work for the Brainchild Foundation, a charity that assists children with brain tumours, being done by lawyer Peter Feros from Flight Centre, or the legal work for the Karma Currency Foundation, a charitable non-for-profit that seeks to revitalize the philanthropic landscape in Australia by facilitating individuals and organisations charitable givings, being done by Sarah Turner, General Counsel for SMS Management & Technology Ltd.

Working with existing Referral Schemes

Lawyers from Westpac Banking Corporation’s Counsel & Secretariat team have been looking for opportunities to develop a pro bono initiative for some time and, having launched a limited program in partnership with panel firm Gilbert & Tobin, have recently decided to expand the initiative to take on referrals from the Public Interest Law Clearing House in NSW from not-for-profit organisations seeking various forms of governance and commercial advice.  PI insurance for Westpac’s pro bono initiative is provided by the National Pro Bono PI Insurance Scheme.  The Westpac team is now exploring further expansion of their pro bono initiative to encompass direct referrals from charities and indigenous and community organisations with which the bank already has an existing relationship.

Kathryn Robertson, Corporate Counsel at Ramsay Health Care, with members of her legal team and Michelle Maynard, Senior Legal Counsel at Perpetual and 11 lawyers from her team, are all taking referrals from the Cancer Council Legal Referral Service. These come from right across NSW being referred from hospitals and medical centres specializing in cancer patients. This service is expanding out of NSW. The areas of law and practice most involved are wills and powers of attorney; early access to superannuation; mortgage hardship and other consumer credit problems; insurance; employment and family law advice relating to parenting arrangements following the death of a primary carer.

Meg O’Keefe, a secondee from the Telstra Legal Department in Melbourne is working with PILCH Victoria’s Corporate Pro Bono Project for 6 months on a 3 day per week basis,. This is a joint project with the Australian Corporate Lawyers Association. The project aims to continue to advance the resolution of the legal and regulatory barriers to corporate pro bono practice, particularly in Victoria, where the Legal Practice Act still prevents corporate lawyers from giving advice to anyone other than their employer and to promote corporate lawyers undertaking pro bono legal work, including by gathering case studies of successful involvement of corporate lawyers in pro bono work and identifying what works – and doesn’t work – for corporate lawyers.

Working with law firm pro bono projects

Larger law firms are involved in variety of pro bono projects themselves and have welcomed lawyers from some of their clients becoming involved in these projects. 

Some examples of these are Telstra and ASIC lawyers working with Mallesons to provide written advice to requests generated by the Lawstuff website operated by the National Children’s and Youth Law Centre.

Lawyers from HP and IBM are working with Blake Dawson lawyers on various of their pro bono projects that include an Impaired Capacity Planning Project, Victims Compensation Tribunal Applications, Sexual Assault Communications Privilege Project, Small Claims Credit and Debt Matters, Assisting NFPs, Legal Clinics (Lou’s Place and Exodus Foundation), Law and Policy Reform and Community Legal Education.

DLA Piper Australia has partnered with Ramsay Health in relation to the Cancer Council Legal Referral Service where they provide support such as access to precedents, telephone advice and assistance, review of documents such as wills, powers of attorney etc. DLA Piper lawyers also occasionally go out and see clients. DLA Piper are also partnering with Voiceless, the animal protection institute though their in-house lawyer, Ruth Hatten.

Working with Community Legal Centres (CLCs)

Many in-house counsel have over the years volunteered to provide legal advice to persons attending CLC evening clinics. This has expanded to involve in-house counsel providing written advice working from their desks. In this model the principal solicitor at the CLC takes responsibility for the legal advice and the professional indemnity insurance is provided under the national CLC PI policy. Under the risk policy of the CLC the volunteer lawyer must hold a practising certificate.

A good example of where many in-house counsel have become involved is with the Arts Law Centre of Australia, the national community legal centre for the arts. It provides legal advice and information on a wide range of arts related legal and business matters including contracts, copyright, business structures, defamation, insurance, employment and taxation to artists and arts organisations across all art forms. Included in the Arts Law annual pro bono awards winners for the past two years are Deborah Doctor and Katherine Giles from ABC Legal Services, Adam Flynn from the National Film & Sound Archive, Megan Pitt from the Australian Government Solicitor, Adrian Goss from ACP Magazines, Cass Matthews from UBI World TV, Jamie Lyford from Elevation Partners Pty Ltd, Kate Erman from CSIRO, and Tracey Wren from Orica Australia.

Conclusion

The diversity of these various models are testament to the strength of the desire of in-house lawyers to do pro bono legal work.

What one sees from these various examples is a variety of solutions to the issues of who is responsible for the provision of the legal advice or the supervision of the lawyer who provides the advice and who provides the professional indemnity insurance, sometimes the National Pro Bono PI Insurance Scheme, the National Community Legal Centre PI Insurance Scheme, the pro bono clearing house, the law firm involved or a combination thereof.

It should all become a lot easier when the Legal Profession National Law comes into force as the new law will ensure that all practising certificates authorise the holder to work on a pro bono basis. Also the consultation paper on the draft National Law indicates that all government legal practitioners will be required to hold practising certificates thus removing this constraint for government lawyers.

In–house lawyers looking for opportunities can start by talking to the pro bono clearing house in their State, the pro bono coordinator of one of their law firms, or to a pro bono project coordinator such as Louisa Fitzgerald at the Cancer Patients Legal Referral Service in NSW or Robyn Ayres at the Arts Law Centre. 

Under ACLA’s Policy on Pro Bono Work by In-House Counsel, ACLA maintains a list of in-house counsel available to perform pro bono work.  You can add your name to this list. The list records the practice areas in lawyers have experience. Contact details of persons on the list are made available to third parties only with written permission.

For further reading see the Australian In-House Counsel Pro Bono Guide prepared and published by DLA Phillips Fox in 2009 and to obtain free PI insurance for a pro bono project under the National Pro Bono PI Insurance Scheme download the application form from the National Pro Bono Resource Centre website.

In a report commissioned by CLC NSW, Mercer conducted work value assessments of 6 positions in CLCs including Manger/Coordinator, Principal Solicitor and Solicitor. Work value assessments were based on compensable factors such as size, scope, complexity, specific knowledge, experience requirements and accountability.

Market comparisons were made between the NSW SACS award (or state equivalents), under which most CLC workers are paid, and nine relevant separate awards/agreements.

For example, for the Principal Solicitor position comparative market salary ratios (based on the NSW SACS award (or equivalent) for CLC salaries) were 0.44 (WA Government Officers), 0.49 (APS and Vic Legal Aid (Mercer determined classifications), 0.53 (Cth A-G’s), 0.56 (Vic Legal Aid (VLA determined classifications), 0.62 (Legal Aid Qld), 0.68 (Crown employees legal officers NSW) highlighting the significant disparity between the salary for the principal solicitor position in a CLC against a similar position in government employment.

A ratio of at least 0.85 is considered by Mercer to be a minimum competitive ratio and recommends alignment for CLCs with the APS award “as the broadest and most relevant comparator market for all CLC positions”.

The report says, “For CLC positions to remain competitive the following increases would need to be applied: Centre Manager 75%, Principal Solicitor 75%, Solicitor 24%, Community Worker 14% …”

The Walk for Justice was held for the fourth time this year simultaneously in Brisbane, Sydney, Melbourne and Adelaide on Monday 17 May 2011 being National Pro Bono Day, the first day of National Law Week. The Centre coordinated a series of teleconferences between the PILCHs and JusticeNet SA and liaised with the National Law Week organising committee with a view to better national coordination and profile of the event.

In Sydney lead walkers, included the Commonwealth Attorney-General, Robert McClelland, the NSW Attorney -General, Robert Clark, the Hon Greg Smith SC and acting Director of Public Prosecutions, Mr Ian Temby QC AO and the Legal Services Commissioner, Mr Steve Mark.  See the photos …

In Melbourne lead walkers included Robert Clark MP, Attorney-General and Minister for Finance, The Honourable Michael Rozenes QC, Chief Judge of the County Court of Victoria, The Honourable Martin Pakula, Shadow Attorney-General, Mark Moshinksy SC, Chair Victorian Bar Council, Bevan Warner, Managing Director, Victoria Legal Aid and the Honourable PD Cummins, Chair, Victoria Law Foundation.  See the photos …

In Brisbane the walk was led by QPILCH’s patron, The Honourable Paul de Jersey AC, Chief Justice of Queensland and Attorney-General and Deputy Premier the Hon. Paul Lucas MP.  See the QPILCH slideshow..

In Adelaide lead walkers were Elizabeth Bolton, Chief Magistrate of the Magistrates Court of South Australia, Alex Ward, President of the Law Council of Australia, Ralph Bönig, President of the Law Society of South Australia; Mark Livesey QC, President of the Bar Association of South Australia, and Hamish Gilmore, Director of the Legal Services Commission of South Australia. See the photos …

Overall numbers registering and walking increased again to about 1700 nationally up from 1400 last year. Total funds raised across Australia were approximately $34,000.

This forum hosted by the Centre at the offices of Baker & McKenzie in Melbourne on 10 May 2011 provides for the exchange of information and discussion about a broad range of policy issues that affect the pro bono legal community. The forum attracted 29 attendees from 14 firms including representatives from PILCH (VIC), VIC Legal Aid, Federation of CLCs Victoria and the NSW Law Society pro bono scheme.

The content of the forum arose from the Centre’s role to identify unmet legal need and bring it to the attention of pro bono service providers to see how they might be able to help to meet that need and if appropriate help coordinate a response.

The guest speakers were David Manne, Coordinator of the Refugee and Immigration Legal Centre (VIC), Stuart Webb from Victoria Legal Aid and Shane Duffy, CEO of the Aboriginal and Torres Strait Islander Legal Service (Qld) Ltd (ATSILS), Chair of the National Aboriginal and Torres Strait Islander Legal Service forum (NATSILS), and current Chair of the Australian Legal Assistance Forum (ALAF).

David Manne talked about the increasing demand from asylum seekers for advice, and representation in relation to possible judicial review action against decision makers engaged by the Department of Immigration and Citizenship who made adverse Independent Protection Assessment decisions and suggested where lawyers are needed and how they might work to help meet the demand for advice and representation.

Stuart Webb indicated that legal aid assistance in these possible judicial review matters may be available in NSW, Victoria and Western Australia but not in other jurisdictions.

Shane Duffy provided a national overview of the ALS and ATSILS services and indicated he was keen to develop strategic partnerships/relationships and shift the positioning of ATSILs to be listened to more broadly than they are at present. He indicated a number of areas where pro bono assistance has been useful to date and identified a number of current law reform issues where firms could assist.

Outcomes of the forum included:

• Identification of national coordination points at PILCH (VIC) and PILCH NSW for those seeking legal assistance for asylum seekers or through legal aid offices in NSW, Victoria and Western Australia but not in other jurisdictions. Contact persons are Melanie Dye PILCH (VIC), new secondee Anna Roberts at PILCH (NSW), Stuart Webb at Victoria Legal Aid and Bill Gerogiannis at NSW Legal Aid.

• Some firms agreeing to assist in advising on the merits of initiating proceedings for judicial review in offshore-arrival asylum seeker matters.

• A number of firm coordinators offering to attend national meetings of ALS law reform officers.

Both the American Lawyer annual top 200 firms report (‘AmLaw 200 report’) and PBI Law Firm Pro Bono Challenge Report (‘PBI report’) show a decline in the total number of pro bono hours provided by US firms in the past year.

The PBI report, that examines the pro bono activities of 138 signatory firms, shows a decline of 8% in total pro bono hours on the previous year but this is still higher than the total hours for 2007 and the third highest total on record for the Law Firm Pro Bono Challenge. Esther Lardent, president of the PBI suggests reasons for this decline in a video presentation. These include pro bono as a lagging indicator of economic activity, an increase in lateral hiring, a decrease in younger associates and summer clerks and an increase in the pace of change for US firms. However as Esther argues, the rationales for firms having a strong pro bono program remain, particularly cementing relationships with key clients in a strongly competitive environment through joint pro bono work and providing younger lawyers opportunities to acquire a broad range of skills. She suggests firms must review and refresh their pro bono programs in light of the significantly changed operating landscape.

The AmLaw 200 report shows a 10.8% decline in the average number of hours lawyers at the 100 highest-grossing law firms spent on pro bono work. Am Law suggests that the associates who survived lay-off in the recession, and do much of the heavy lifting with pro bono work, have been too busy doing paid work in the turnaround and so pro bono has suffered. Most commentators suggest that this is a cyclical aberration rather than signifying a longer term trend.