Welcome to the September 2008 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:

1. Top Australian Law Firms Giving it Away
2. National Access to Justice and Pro Bono Conference 2008 Program Strengthened
3. Esther Lardent Visits Australia
4. Rivers of Legal Need in Northern NSW
5. Law Student Profile
6. The Importance of Clinical Legal Education
7. Addressing the Expert Evidence Barrier
8. Pro Bono in the News – August 2008

Top Australian Law Firms Giving it Away

$48.5 million of work was undertaken on a pro bono basis by 25 of Australia’s largest law firms in the past year. These firms delivered a total of nearly 200,000 hours of pro bono legal work during the year or an average of 3,740 hours a week.

The findings come from a national survey and the results of the first performance report on the National Pro Bono Aspirational Target both released by the National Pro Bono Resource Centre on 10 September 2008.

However, the survey shows contributions varying greatly between the firms. The range of pro bono contributions varied between 0.5% and over 3% of total practice income with the median being 1.1% – 1.5%. Whilst law firm offices averaged between less than five hours per lawyer per year, to more than 90 hours, the median was approximately 21 hours per lawyer per year.

Firms that were signatories to the National Pro Bono Aspirational Target (“the Target”) generally had higher participation rates (74%) and average pro bono hours per lawyer (39.4 hours) although there we re a couple of non-signatory firms that performed well. All firms who reported a pro bono contribution of greater than 2.6% of total practice income were Target signatories.

The five largest law firm signatories between them provided a total of 111,747 hours of pro bono legal work in the past year which is more than half of the total contributions by the 25 firms.

The full reports can be downloaded here:

National Pro Bono Aspirational Target Performance Report Sept 2008
Report on the pro bono legal work of 25 large Australian firms Sept 2008

National Access to Justice and Pro Bono Conference 2008 Program Strengthened

The National Access to Justice and Pro Bono conference now offers two exciting new pre-conference sessions to be held on Thursday 13 November 2008. The first is titled “Managing and Meeting the Needs of Self Represented Litigants” presented by the Centre in association with the Australasian Institute of Judicial Administration. Experts from the UK, USA and Australia will be speaking. This session will be of interest to court officers but also barristers, solicitors, referral scheme staff and community legal centre workers. This program will run from 9am -5pm on the Thursday. There is small additional registration fee to cover the cost of lunch and morning and afternoon tea.

Also on Thursday afternoon will be a workshop titled “Law Students Learning by Doing- Linking Law Schools, Law Firms & Government” which will provide an opportunity for those that are passionate about the importance of experiential learning by law students to exchange ideas and information. This event is free but registration is essential.

Details of both sessions, the conference program and Registration Forms can be found at www.asj08.com.au. REGISTER NOW! .

Esther Lardent Visits Australia

Esther Lardent, Director of the Pro Bono Institute (“PBI”) in the U.S. and Tammy Taylor, Director of the institute’s Law Firm Project, visited Sydney during the first week of September. The purpose of their visit was to conduct workshops with many of the national pro bono coordinators on practical issues that arise in the everyday running of a pro bono program.

In a presentation at Clayton Utz on Thursday 4th September, Esther gave a fascinating account of the state of pro bono legal work in the United States today. Some of the trends of pro bono today include pro bono providers now focussing on Big Hairy Audacious Goals (“BHAGs”) and Signature Projects. For example Microsoft’s lawyers’ BHAG in D.C. is to ensure that no minor goes through immigration detention unrepresented.

Even with US law firms providing an enormous 4.3 million hours of pro bono in the 07/08 year; it is still difficult to see what a difference it is making to improving justice. This is slowly changing, according to Lardent. Lawyers are more and more willing to take on controversial cases. One example of lawyers renewed commitment to access to justice is the fact that there are now more lawyers willing to act for Guantanamo Bay detainees than there are detainees. This was not always the case.

Other important trends from the US include the continuing rise of in-house legal department lawyers becoming involved and initiatives being taken by PBI to facilitate and encourage greater involvement by retiring and transitioning lawyers and the massive increase for legal help due to housing foreclosures. Clients have become more pro bono-savvy, too. It is not uncommon for a client to ask about a firm’s pro bono program in tender submissions. This signifies a greater awareness of access to justice issues, which is emerging not only in the U.S, but in Australia as well.

Rivers of Legal Need in Northern NSW

The crisis in the rental market makes it tough for all tenants, but if you are a low income earner, rising rents can mean the difference between having a roof over your head – and not.

Angela Pollard, Centre Manager at the Northern Rivers Community Legal Centre (CLC), says that their Tenants Advice and Advocacy Service has seen a massive increase in the past 12 to 18 months.

“Landlords are trying to terminate leases so that they can more easily increase rents and they are using as many different ways as you can imagine to do that. Many of our clients come from severe socio-economic hardship, often with mental health and drug and alcohol issues, and they are very vulnerable. Landlords are using the low vacancy rates to choose tenants with fewer disadvantages, putting more disadvantaged tenants at increasing risk of homelessness,” says Pollard.

The service first attempts to negotiate with the landlord and, if that fails, they will appear at the Consumer Trader and Tenancy Tribunal when this is appropriate. Fortunately for the service’s clients, Pollard says they have a pretty good success rate here.

Even when the landlord is the government housing department or another social housing provider, tenants are not spared the rough hand. “Tenancy legislation is harsher for these clients, and this results in evictions being easier to obtain,” says Pollard. And when the government ‘kicks you out’, there are not too many places to go.

“We try to settle these disputes and nip them in the bud, but the major problem is that we are not getting to all our clients. The first point of contact for clients is our telephone advice line, but it is so busy that we have calls banking up on our message bank. We are chasing our tails and there is significant unmet demand,” says Pollard.

Northern Rivers CLC also provides a domestic violence court advocacy service, assisting women through the local courts (there are eight in the region) with AVO applications.

“We have the 10th highest rate of AVOs in the state and there’s been an increase in these, possibly because women have more confidence in reporting abuse. There’s also been an increase in the take-up of our service for elder abuse victims. We are seeing a trend where young males are staying at home and exhibiting violence against their mothers,” says Pollard.

The CLC covers the area from Grafton to Tweed Heads and carries out a number of outreach programs, including two specific Aboriginal outreach programs for the Tabulum and Ballina /Cabbage Tree Island communities.

Issues covered include everything from victim’s compensation for childhood sexual assault, family assault, traffic offences and discrimination in employment.

“These two programs received funding for an initial 12 months and we’ve just been given funding for another year. We’re hopeful that it will become recurrent,” says Pollard.

“We have also had an on-going Mirrung Ngu Wanjarri project which has been carried out for the past eight years with different pieces of funding. It provides anti-violence strategies, particularly in relation to family violence, and connects community members to appropriate legal services or other community services.”

The CLC has just launched a report into the shortage of legal practitioners in regional NSW .  The Centre claims that once you get away from the popular tourist areas along the coast of the State, it is very difficult to find lawyers.

“The bigger firms are buying up the smaller firms and the number of sole practitioners is on the decline. This raises conflict of interest concerns, where disputing parties have access to only the one legal firm in the area. We’re also seeing the take-up of legal aid grants diminishing. In the Tweed, it is virtually impossible to find a family lawyer to take up a case.

“In eight or nine year’s time, when the boomers retire, there will be significant difficulty in accessing practitioners in regional NSW, just as there is a scarcity of teachers and health professionals,” says Pollard.

Tristan Garcia

Tristan Garcia’s recent internship with the Public Defenders Office was a bit like legal sleuthing: trawling through court transcripts and evidence to assist his barrister, Chrissa Loukas, with the material to run an appeal.

Did the jury reach a reasonable verdict on the evidence? Was there an error in sentencing? It was Tristan’s job to research the matter.

“The last case I worked on related to inconsistent verdicts in a sexual assault matter involving two males on a remote farm property”, says Tristan. “The defendant was found guilty on half the counts but not on the others. It was not obvious how the jury could have reached this conclusion on the basis of the evidence. If he was found guilty on half the counts, why was he found innocent on the others? Or should he have been found not guilty on any of the charges?

“Another matter involved a woman charged with burning down a property in the early hours of the morning, following an argument with the person that she believed to lived in the house. In summing up, the trial judge directed the jury to disregard the possibility that the fire had been caused by accident. By taking that option away, the only possible conclusions that the jury could come to were that she was guilty or completely uninvolved. And yet, the woman was known to be present at the scene, in a drunken state, and a smoker, so it was certainly possible that the fire could have been caused accidentally by a cigarette,” says Tristan.

As well as these, Tristan also worked on a number of sentencing appeals.

“All matters that go to the Public Defenders are referred through Legal Aid. Then a barrister has to think there is some substance to it before taking it on. Barristers also provide advice to people who are considering their options of appealing to see if there is any merit to their argument.

“I had the opportunity to draft a response to someone in which, after doing the research, it appeared that an appeal would have very limited prospects of success. It was checked by my supervisor who agreed that I had reached the right conclusion. My advice was sent with only a few changes.

“The Public Defenders do an invaluable but very difficult job. There are a lot of difficult matters and difficult clients. It’s no walk in the park.”

Having completed his time here during the first semester of this year, Tristan is now up in Cairns, working with the Cape York Land Council for three months. He’s an Aurora intern, and the position is funded by Allens Arthur Robinson and the Land Council.

“I will be involved in shadowing one of the lawyers dealing with several land claim applications. A couple of applications have been refused registration on the Native Title Tribunal Register and I will look at what needs to be amended so they can be successful,” says Tristan.

“I was interested in Native Title at university and now I can test out what it’s like to work in the field. There’s a lot of activity in the Cape York area so the Land Council is a really good place to be. Hopefully I will also get to visit the areas to which the claims relate.”

The Importance of Clinical Legal Education

A survey of Kingsford Legal Centre (“KLC”) Alumni 2007 showed 46% of respondents had participated in pro bono work since leaving University.

This great little booklet just published by KLC asks other questions too such as, “Did your experience at KLC change the way you see the law?” The survey report, by reproducing all the responses verbatim, illustrates forcefully the importance of clinical legal education in a social justice environment for law students. It shows how the experience engenders in many a pro bono ethos, a sense of justice and fairness and an understanding of the satisfaction of the public interest lawyer career path. “

Addressing The Expert Evidence Barrier

The frustration of not being able to obtain expert reports for clients of the West Heidelberg Community Legal Service led Joanna Malseed-Harris, a La Trobe Law student under the supervision of Dr Liz Curran, to writer a paper titled, “The Disadvantage of the Cost of Litigation Expert Evidence for people who are financially disadvantaged.” The issue of the difficulty of obtaining expert evidence and reports for impoverished clients has been raised with the Centre a number of times and presents a real barrier, particularly for smaller firms to taking litigation through to hearing with the appropriate evidence. Existing litigation assistance schemes in most states are focussed on litigation lending with application fees and detailed criteria to be established and then cost recovery is usually after the event.

This refreshing report recommends the establishment of a publicly-funded scheme whose function it is to cover these disbursements for financially disadvantaged clients not just in civil matters and that Medicare consider covering the cost of medical and allied health reports in appropriate cases. The report details two case studies, one a victim’s compensation claim and the other an application for waiver of PERIN fines where medical reports would have made a big difference to the outcome but could not be obtained. This report is available from the Centre’s website or from West Heidelberg Community Legal Service.

Pro Bono in the News – AUGUST/SEPTEMBER 2008

Big isn’t bad (The Australian 12 September)
National Pro Bono Resource Centre study finds big law firms pulling their pro bono weight.

Pro bono scheme mooted (The World Today ABC Radio 12 September)
The Federal Government is considering a scheme that would make pro bono work mandatory for law firms that want to work for the Commonwealth, but a survey of Australia’s top legal firms by the NPBRC suggests a voluntary program may work just as well.

Research shows big firms’ pro bono worth $48m (The Australian 12 September)
The case for forcing law firms to undertake pro bono work has been thrown into doubt by research from the National Pro Bono Resource Centre showing the nation’s top 25 firms provided $48.5 million worth of such services last financial year.

Pro bono work takes a starring role (Lawyers Weekly 11 September)
Dedicated pro bono partners and directors from some of Australia’s largest law firms gathered at Freehills to listen to Esther Lardent, the president of the Pro Bono Institute in Washington, and Tamela Jacobs Taylor, the chief program officer of the institute’s “Pro Bono Project”.

Avery talks of Martin Bryant hangover (The Hobart Mercury 8 September)
John Avery, who acted for Port Arthur gunman Martin Bryant and had represented struggling clients pro bono, has pleaded guilty to 130 counts of stealing and dishonesty, taking more than $500,000 from clients. (Also reported in Adelaide Now)

Sex, drugs and rock ‘n’ roll years (The Australian 5 September)
New chief Justice of the High Court, Robert French, set up a justice committee in the 70s and provided part-time pro-bono advice to people on remand.

Lending a hand: Lex Mundi celebrates 300th pro bono project (ALB 4 September)
Within just two years, the US-headquartered Lex Mundi Pro Bono Foundation has worked on no fewer than 300 pro bono projects.

English Lord joins Westfield board (Inside Retailing 29 August)
Lord Peter Goldsmith QC PC, who founded the Bar of England and Wales’ Pro Bono Unit, has been appointed to Westfield’s board – the Australian shopping centre owner’s first UK resident non-executive director.

The heart of pro bono (Business Spectator 29 August)
Freehills and PricewaterhouseCoopers have jointly won the inaugural Private Business Award in the category of excellence in environmental practices. Freehills’ pro bono program is used to assist isolated groups in society in gaining access to legal services.

Guilt-free justice (Perth Now 28 August)
Tom Percy argues that where there is the real possibility that an objectively innocent person may have been failed by the system, the government should provide and fund an official reinvestigation process.

Justice grants for women (Get Farming, 27 August)
Pro bono lawyers will take part in education sessions for refugees being funded by Queensland government justice grants.

He’s a handy bloke to have on your side (WA Today, 27 August)
Small private company Vinca Nominees Pty Ltd fell foul of the Tax Office for failing to lodge a 2006 return. Vinca was the trustee of the Morfuni Superannuation Fund, and was represented, pro bono, by the eponymous Vincent Morfuni, SC.

Allens’ pro bono work thwarts WWF panda IP pirates (ALB, 19 August)
Allens Arthur Robinson, working pro bono for World Wide Fund for Nature (WWF), has dismantled an international operation that was illegally selling t-shirts bearing the iconic panda trademark of the WWF.

Lavan regrets delays to indigenous claims (The Australian, 8 August)
Lavan Legal, partnering the WA Aboriginal Legal Service in pursuing multi-million-dollar compensation payouts for Stolen Generations victims, has apologised for the delay. It is acting pro bono and involving volunteer law students in processing about 1000 cases of former Aboriginal child wards who had come to the Aboriginal Legal Service with allegations of abuse.

Fate of asylum seekers may depend on a judge’s gender (The Border Mail, 5 August)
A report published in the Stanford Law Review said 70 per cent of asylum claims in the US were made by people who applied before they were arrested. Of these, only 16 per cent without legal representation were successful. The chances of success rose to 40.5 per cent with legal representation and 89 per cent if they were represented by law school clinics, non-government organisations or law firms working pro bono. A female judge was 44 per cent more likely to grant asylum than a male judge. (Also in The Advocate & Coffs Coast Independent)

Punter loses Tabcorp fight (Adelaide Now, 4 August)
A chronic gambler who lost millions of dollars through a secret credit-betting system has lost his fight, with pro bono representation, against gaming giant Tabcorp, the Commonwealth Bank and his state government. (Also in the Herald Sun)

Law firm vows to defend Bradman action (Brisbane Times, 2 August)
Allens Arthur Robinson, which has acted pro bono for The Bradman Foundation, is being sued for the alleged commercial exploitation of legendary cricketer Sir Donald Bradman’s name. (Also in Nine MSN, Adelaide Now, The Australian, The Mercury & Perth Now)

Call for mandatory pro bono work

(The Australian, 1 August)
Victoria’s Public Interest Law Clearing House has called for the commonwealth to require all law firms working for the federal Government to complete pro bono work that is equivalent to at least 5 per cent of their government billings.