Issue 33: November 2007
- Helping the Helpers — Australia’s first specialist legal service for community and not-for profit organisations
- Conference Time
- Law Firm Profile — If it Feels Good, Do it!
- Pro Bono in the News
1. Helping the Helpers — Australia’s first specialist legal service for community and not-for profit organisations
Can a lawyer bring more meals to the homeless, better play facilities to a childcare centre, and improve local bush care initiatives? The answer will be ‘yes’, if a new service in Victoria is a success.
PILCH Victoria is establishing a specialist legal service for community organisations – this service will utilise pro bono legal assistance to ‘help the helpers’. The service will assist community organisations to preserve their finances and concentrate their efforts on service delivery. Rather than dissipating resources on legal costs, they can concentrate on the ‘core business’ of delivering meals, purchasing playground equipment or planting more trees.
The new specialist legal service will assist community organisations to improve their own capacity, management and organisational strength – supporting them to be become more effective and accountable. Proposed aspects of the service include a web portal, a basic telephone enquiry service, development of the existing seminar and workshop program, a community organisation ‘legal health check’ process and development of training for lawyers and advisors (eg accountants) about the NFP sector.
“The community, not-for-profit sector is of critical importance for the social and economic well being of Australian society”, says Sue Woodward, policy officer with PILCH Victoria who prepared the report for PILCH recommending the introduction of the service. “During their lifetime, every Australian benefits from the sector in some way, and millions of Australians also gain great satisfaction from volunteering for these organisations.”
In spite of the vital role that the not-for-profit (NFP) sector plays, it has for some time been known as ‘the hidden sector’ because of a lack of figures about its true size.
Official (ABS) estimates are that (including the contribution of volunteers) NFPs contribute 4.7% of our GDP with total revenue of approximately $33.5 billion, and account for 6.8% of total employment in Australia. There are lots of them: nationally, approximately 700,000, with around 380,000 being incorporated. Most are small and rely heavily on the commitment of volunteers/members.
According to Woodward, the regulatory environment for community organisations is even more complex than for businesses. Conversely, their ability to pay for high quality legal assistance is very limited.
Though PILCH Victoria already offers a referral service and low cost seminars to NFPs – 140 ‘public interest’ community organisations were referred for free legal assistance last financial year – there is no discrete, specialist free or low cost NFP legal advice service in Australia.
“While legal aid is provided for individuals who meet a means test and other eligibility criteria, there is no similar government assistance for community organisations”, says Woodward.
In researching her proposal for the pilot project, Woodward looked to the US for models. “There are well developed examples in the US, especially in highly populated areas such as New York. But the UK isn’t even doing what PILCH currently provides.”
“The service is not intended to cover the needs of every not-for-profit or answer every legal question. There are many small groups that don’t have the pulling power (to get pro bono assistance) and that don’t have the capacity (to pay legal fees). Sometimes they can fall in a hole, with their volunteer contribution and financial resources being wasted, when some simple, early advice could have prevented the problem. We’re aiming at them”, says Woodward.
Asked to give examples of NFPs likely to benefit from the service, she refers to new groups thinking of setting up, existing groups that are growing and wanting to expand interstate, organisations that have been around for a while but want to re-think their governance. The new PILCH service will work closely with peak bodies in responding to legal issues faced by different parts of the sector, and will develop pro-active services such as organisational legal ‘health checks’ and assistance law reform submissions.
She sees the new service providing a range of responses: “There’ll be complex legal problems that need help right now; problems that are not really legal and would be better handled by a mediation service; issues such as privacy obligations where general information is needed (eg, via a fact sheet or seminar); or quick queries that an in-house lawyer with experience in common NFP issues can deal with.”
Woodward hopes to develop and share precedents with support from PILCH’s members. For those groups that want to incorporate, she envisages a checklist of questions for them to consider (is another organisation already doing work in this area? is this a project that an existing organisation could auspice? what will be the main source of funding? are there going to be members? who will be the directors? etc). This extra thought may prevent unnecessary duplication and, if a new organisations is warranted, will help a solicitor (pro bono or fee paying) to draw up the necessary documents more quickly and efficiently therefore saving costs.
While the new service is for Victorian organisations, there will be a comprehensive web portal that the other states can access, and national legislative information (eg, tax, company, workplace) will be available. Woodward says there is a clear path for the national roll-out of the program and, as other states join, the website can be expanded to accommodate state-specific legislation.
There is no doubt in Woodward’s mind that there is a huge need for the service. “I don’t think we’ll have any trouble drumming up demand.” It’s a sector with which PILCH is very familiar, having conducted referrals for NFPs since its inception in 1994.
The service has received part funding for the Service through a substantial grant from the William Buckland Foundation and hopes to obtain matching funding from a major corporate and government. We understand that the Foundation “was looking for something quite strategic across the sector. Something that would be a major project with have a big, long term impact”, says Woodward.
2. Conference Time
September and October are definitely the conference months. Centre Director, John Corker, reports back from the National CLC conference (Brisbane 9-12 Sept), the Victorian Pro Bono Workshop (Werribee 15-16 Oct) and PIAC’s 25th anniversary conference (Sydney 18-19 Oct).
National CLC conference
The Pro Bono Session this year was extremely well attended with about 70 people from across Australia raising a diverse range of issues. Of considerable interest were those questions and comments about how relationships with pro bono providers could be improved thus signifying a greater level of understanding and participation by CLCs than a few years ago.
The session was chaired by Annette Bain from Freehills and the panelists were Michelle Hannon and Tamara Sims (Gilbert + Tobin), Anne Cregan (Blake Dawson Waldron) and Belinda Wilson (Clayton Utz).
The issues raised included:
- The lack of a pro bono focus point in Tasmania and SA for referrals and sector development
- The importance of ‘solicitor experience’ feedback to CLCs from firms following a client referral
- The need for a simplified firm/client agreement for pro bono matters
- The difficulty of getting assistance in RRR areas
- The need for a single CLC contact person in relationships and the benefits that can be obtained from this model, particularly the ‘multilayered’ types of assistance
- The importance of a CLC thinking laterally about how a firm may be able to assist and the great utility of non-legal assistance
- Exploring the possibility of mediators providing their services on a pro bono basis
- The visibility raising achieved by the National Pro Bono Aspirational Target
- The perennial issue of the prospect of a CLC obtaining a secondee from a firm
- Law firm capacity and managing expectations as to what is possible.
In a plenary session, the Centre launched its survey report on CLCs and their use of pro bono services which was distributed to all conference participants. This report is available on the Centre’s website.
We heard about the Loddon Campaspe CLC which has established an Older Persons Legal Program with Bendigo Health in Victoria where local practitioners visit clients at hospital and undertake urgent legal work (e.g. preparing a Power of Attorney or a will) on a voluntary basis. This illustrates that regional practitioners can be involved in organised pro bono programs. If clients have ongoing legal work the volunteer solicitor refers them back to the program or provides them with a list of three solicitors who would be able to provide assistance for a fee.
Also discussed was the National Valuing Volunteers Project to be run by Penninsula CLC in Victoria. This is project which has received funding from the Commonwealth Attorney General’s Department to adapt and expand nationally a ‘Valuing Volunteers Kit’ which was produced about 18 months ago on the Penninsula CLC. The kit is a resource to assist individual Centres to produce their own volunteer guide. The kit addresses such issues as legislation, legal practice requirements, insurance and accountability and will facilitate legal volunteering.
2007 Victorian Pro Bono Workshop
Last held in 2005, this is the third Victoria Law Foundation Pro Bono Workshop. It provides a valuable opportunity to discuss issues, challenges and practices and to develop recommendations for improvement.
- hearing from young lawyers in firms about their pro bono experiences and the skill development and great satisfaction achieved by them in working face-to-face with individual clients
- looking at the methods and difficulties of evaluating pro bono programs
- hearing useful and informative accounts of the working relationships between the Human Rights Law Resource Centre, Allens Arthur Robinson and Ron Merkel QC, counsel in the recent Vicki Roach case in the High Court which has resulted in many prisoners having the right to vote in the upcoming federal election.
- That the LIV and Vic Bar consider amending their Continuing Professional Development rules to mandate one CPD point a year is undertaken on access to justice issues
- That a knowledge sharing resource be developed through the National Pro Bono Resource Centre in collaboration with e pro bono and community legal sectors
- That the Victorian Government supports and resources the establishment of a ‘not for profit’ legal service (see story ‘Help the Helpers’)
- That the Victorian Government increases funding to Victoria Legal Aid to enable effective funding of civil law matters
PIAC’s 25th anniversary conference
This conference celebrated 25 years of PIAC’s operation by looking forward towards the big picture pubic interest issues such as climate change, peak oil, water shortages and wellbeing of Aboriginal Australians and Torres Strait Islanders.
Speakers stressed the importance of the role of civil society in participating in debates and discussions and noted that legal strategies are only one of the many options to obtain worthwhile outcomes.
A session devoted to litigation and lawyering looked at the ‘practising law in the public interest’ course at Latrobe University, the pros and cons of seeking leave to intervene as amicus curiae, class actions and defending those whose cases raise significant issues about the rule of law. Pro bono assistance is but one resource in pursuing what are often difficult and time consuming matters but without doubt an absolutely vital one.
3. Law Firm Profile – If it Feels Good, Do it!
Darwin firm De Silva Hebron has been undertaking pro bono work since it was established 12 years ago, and it just can’t stop.
“We have no pro bono guidelines like the big law firms where it is part of their commercial dynamic. It’s not a requirement for our staff and it’s not a firm policy. We do it because it feels good.”
David De Silva, partner and co-founder of De Silva Hebron in Darwin insists that there is no formal process for undertaking pro bono work at the firm. Though they have given thought to structuring it or allocating time for hours, they have not pursued that option, leaving it an informal matter for staff to choose ‘what works for them’.
But while it is not a requirement for staff, they are encouraged to do pro bono work, and the majority of those who have been with De Silva Hebron do. “They run it alongside their normal work and fit it in!”
Though there’s no explicit policy, pro bono is entrenched in the firm’s culture, having started at the inception of the firm. Along with his founding partner James Hebron, De Silva was involved with the Darwin Community Legal Service (DCLS), and they would bring some of the volunteer work they did there, back to the office. De Silva still does volunteer work at DCLS along with De Silva Hebron’s current Managing Partner, Susan Porter, and several of their solicitors. Susan Porter also holds a position on the DCLS Management Committee and all their solicitors are encouraged to volunteer at DCLS.
“We were a young firm and we didn’t have oodles of (paid) work,” says De Silva. “It was not something we set up to do, but it came naturally. It wasn’t calculated to get kudos.”
Twelve years on, and even though he’s no longer sitting around with time on his hands, De Silva insists on making time for his pro bono clients because he obviously gets such a kick out of it.
“It’s a good thing to do and you feel good!” So alongside their litigation and commercial work, the firm has been happy to take up causes such as, the case of an old-age pensioner who’s having trouble with her landlord. “Now, that’s a worthy cause and we’re prepared to help.”
Among his pro bono clients, De Silva numbers community groups and sports clubs (“they don’t have much money and they also need help”), as well as individuals, some of whom have come back to him over and over again.
De Silva was 12 years old when he came here from Bahrain and was encouraged by his mother to ‘embrace Australia’. He’s been in the Territory now for 19 years. “It’s an important thing to be involved in the community and not always look to getting something back. Lawyers are seen to be such takers and we are not all like that. We’re just not money grabbers.”.
“Lawyers who get into community work are generally better practitioners. They have empathy for everyday people. They’re not just hired guns. When we interview, we ask prospective employees if they have done voluntary community work in the past”.
“One of our practitioners is involved in assisting refugees, helping them to adjust to living in Australia. That’s not legal work. When she came to tell me about it, I encouraged her to do whatever she felt like she had to do.”
De Silva’s personal pro bono effort was recognised earlier this year with an award by the NT Law Society.
Of all the pro bono cases he’s handled, one stands out: “A man I’ve been assisting for quite a while has just won an appeal in the full Court of the Federal Court, arguing against a national firm and against senior and junior counsel. He was told he would fail by a Sydney firm and by counsel appointed by the Court. He came here to bounce ideas off me and he got up on appeal. All by himself. He took on everyone and won.”
4. Pro Bono in the News
A round-up of pro bono mentions in the Australian media — October 2007
Lawyers want greater enforcement of animal cruelty laws (ABC News Oct 1)
A group of Brisbane lawyers against animal cruelty is looking to rally the legal fraternity to undertake pro bono work in this area.
Murray Gleeson: some legal scenery (The Australian, Oct 6)
Retired Chief Justice of the High Court, Murray Gleeson, in his speech to the Judicial Conference of Australia, makes passing reference to the fact that lawyers doing pro bono work ameliorate the limited availability of legal aid for civil cases.
These moral lectures sure don’t come cheap (Herald Sun blog, Oct 12)
Commentator Andrew Bolt, critical of lawyer acting for wrongly deported Australian citizen Vivian Alvarez, claims that the legal bill presented to government was not in keeping with the lawyer’s original announcement that the work was being done on a pro bono basis.
Legal Centres (Sydney Star Observer, 18 Oct)
Information in the business directory of the Sydney Star Observer highlighting the free legal advice and pro bono services of the Inner City Legal Centre available to gay, lesbian and transgender people. The listing is an initiative of the NSW Young Lawyers Human Rights Committee.
Colleagues heap praise on new Justice Lex Lasry (The Age, Oct 24)
Announcement of Lex Lasry’s judicial appointment to the Victorian Supreme Court makes reference to his 2006 Distinguished Pro Bono award by the Law Foundation.