The introduction of ‘pro bono conditions’ in relation to the Victorian Government Legal Services Panel has been a significant factor contributing to the growth in law firm pro bono in that State and more generally.
The Victorian government introduced a tender arrangement, the Victorian Government Legal Services Panel (Victorian Panel), for the provision of legal services to government on 1 July 2002. The Victorian Panel aimed to combine a more transparent system of allocating legal work to law firms, lower costs for the Victorian government and an increased commitment to social policy objectives. The Victorian Panel was refreshed in July 2009 for a period of 6 years. The arrangement led to the formation of a general and specialist panel of law firms.
On 1 July 2015 Attorney-General Martin Pakula announced the details of the new Victorian Government Legal Services Panel. For further details on changes to the pro bono conditions, please see below. These Panel arrangements commenced on 1 March 2016. There are currently 23 firms listed on the Victorian Panel.
Under the new Panel arrangements all Victorian government departments must select their legal counsel and services from the law firms listed on the Panel or the Victorian Government Solicitor’s Office. Statutory agencies can also opt-in to the Victorian Panel.
The Victorian Panel also calls for firms to dedicate themselves to pro bono work, follow model litigant principles and the Victorian Bar Council’s Model Briefing Policy. As part of the new Panel arrangements the State intends to develop other guidelines relating to diversity and work/life balance.
In the Victorian Government’s Response to the Access to Justice Review released on 23 May 2017, the Government agreed that the requirements of the Victorian Government Legal Services Panel contract should be amended in the future “to place greater weight on contributions that deliver pro bono services in areas of unmet legal needs that assist community legal centres and their clients”. Please click the following links to access Volume 1 or Volume 2of the Report and Recommendations from the Access to Justice Review.
The pro bono provisions
In 2002, as part of the tender process firms were required to commit to a Pro Bono Percentage of at least five percent of the value of legal fees (excluding GST, expenses and disbursements) under the Contract to pro bono work (defined as “Approved Causes”) and could nominate a percentage of up to 15 percent. Most firms nominated 15 percent.
Provisions introduced as part of the 2015 Panel refresh require a minimum pro bono commitment of 10 per cent, an increase from five per cent. This is a mandatory conformance criteria. In addition, there is no maximum commitment incorporated into the new Panel arrangements.
The Pro Bono Percentage that each firm must provide is incorporated into Schedule 1 of the Government Legal Services Panel Deed of Standing Offer for the Provision of Legal Services (Contract). A firm must provide the Pro Bono Amount (being the Pro Bono Percentage as applied to the legal fees), either by way of Pro Bono Services or an approved Pro Bono Payment (a payment in lieu), no later than six months from the end of the relevant financial year.
Firms are required to satisfy all mandatory criteria as well as the mandatory minimum for pro bono services in order for their tender to be considered. In the event that a firm does not derive any fees under the Victorian Panel, the firm is not required to provide the nominated Pro Bono Amount. However, if a firm fails to meet its commitment, it is enforceable.
Firms must discharge their pro bono commitment (Pro Bono Amount) by undertaking legitimate Pro Bono Services or making an approved Pro Bono Payment. A Pro Bono Service is defined with reference to an “Approved Cause” as outlined in the Policy Guidelines for the delivery of Pro Bono Services for an Approved Cause under the Government Legal Services Contract (Guidelines) and clause 11 of the Contract.
the provision of any services by lawyers or other staff based in Victoria or other financial or in kind assistance which will enhance access to justice for disadvantaged persons or organisations and/or promote the public interest including but not limited to circumstances where a Panel firm:
without fee or without expectation of a fee or at a reduced fee, advises and/or represents a client in cases where:
a client has no other access to the courts and the legal system; and/or
the client’s case raises a wider issue of public interest; or
undertakes the following, provided the provision of these services or financial or in kind assistance will enhance access to justice for disadvantaged persons or organisations and/or promote public interest:
is involved in free community legal education and/or law reform;
is involved in the giving or free legal advice and/or representation to charitable and community organisations;
provides staff (legal or other) on secondment to a CLC or other community organisation; or
provides financial or in kind assistance (e.g. equipment, sponsorship etc.) to a CLC or other community organisation.
The Guidelines also provide that pro bono services can include:
legal or paralegal advice, representation or assistance;
legal research, education or law reform work; and
provision of staff, financial assistance, equipment, sponsorship or other in kind assistance.
It is also possible for the Attorney General to approve other services or assistance as Pro Bono Services (see clause 11 of Contract).
* This is the definition that applies as part of the new Panel arrangements. The only differences between this definition and the definition originally included in the Victorian Panel arrangements is that community legal centres are now specifically mentioned.
You can also find more discussion of pro bono provisions in government tender arrangements, including a comparison of the arrangements put in place by the Commonwealth, Victorian, New South Wales and South Australian Governments here.