ABOUT THIS BOOK
If, as lawyers, we are serious about promoting access to justice we have an obligation to work together regardless of whether we are public or private, big or small, radical or conservative in our culture. Often the greatest barrier to cooperation is fear of the unknown. Let’s get to know each other better, work together and make a difference together. (CLC principal solicitor)
Pro Bono Partnerships and Models Ð a Practical Guide to What Works is the companion work to the Australian Pro Bono Manual. It aims to help those involved in providing, seeking and brokering pro bono legal assistance to:
• better understand best practice working models of pro bono legal assistance;
• better understand the issues that affect what works in pro bono;
• design and develop a project proposal that is easily recognisable by pro bono service providers as a worthwhile opportunity and that maximises the likelihood that the project will work well;
• use relevant case studies as evidence to support their proposed use of that model; and
• evaluate the likelihood of the project’s success using criteria developed from the identified features of successful projects.
In preparing this book, the Centre reviewed existing research and evaluations of past and current pro bono projects and models of delivering pro bono legal assistance, and consulted a broad range of stakeholders. For this edition, further secondary research and consultation was conducted to update the book so it reflects current best practice.
The case studies were compiled over the period from 2012 to 2016. Even though some of the partnerships and projects discussed in the first edition have now evolved or come to an end, they are included in this second edition as illustrative examples of particular pro bono models, as the insights they provide remain relevant to current pro bono practice. Some of those consulted have since changed roles or organisations; the views and insights included in the book are those expressed at the time of the consultations. This edition includes four new case studies of innovative approaches to particular models:
20.5.2 Refugee Advice and Casework Service and Henry Davis York
21.5.4 LegalPod (Queensland Public Interest Law Clearing House)
22.5.6 LawAccess and the Australian Government Solicitor
27.5.2 Law Reform Hub
Other case studies have been updated in this edition to reflect significant or innovative developments.
It is hoped that, by increasing knowledge about best practice working models of pro bono, the book will enhance the capacity of pro bono projects and partnerships developed by those providing, seeking and brokering pro bono relationships to address unmet legal need.
THE PRO BONO LANDSCAPE IN AUSTRALIA
The role of pro bono legal services in the access to justice landscape is becoming increasingly visible and it is now clear that these services play an important role in expanding access to justice.
There are Australians who, despite their difficulties and their need to appear in court, may not qualify for legal aid… Sometimes there are issues of great legal complexity, and even greater public interest… In these and other situations, the importance of pro bono contributions from the legal profession becomes clear, as pro bono services often provide vital assistance where no other avenue is available.
Pro bono comes from the Latin phrase `pro bono publico’ which means for the public good. There is no universally accepted definition of what is meant by `pro bono legal services’ although several definitions have been influential in developing pro bono practices. Most definitions focus on legal assistance provided to disadvantaged or marginalised clients who could not otherwise access legal assistance, or clients whose cases raise a wider issue of public interest. The term often includes legal services provided to organisations working for disadvantaged groups or for the public good. Many definitions include lawyers engaging in free community legal education and/or law reform. Most pro bono legal services are provided without a fee being charged to the client, although some are provided for a substantially reduced fee. There is general consensus that pro bono work should not be seen as a substitute for publicly funded legal services and that pro bono legal work complements these services. This is often reflected in definitions of pro bono work, sometimes as a criterion for acceptance of a pro bono referral.
…pro bono work tangibly contributes to improving access to justice for Australians who cannot otherwise get the help they need to enforce their legal rights and to resolve their problems….This is not to say that pro bono work should be used as a substitute for government funded legal services. Rather, pro bono legal services form one essential element of a mix of services that the government and the legal profession provide to enhance access to justice within the Australian community.
Since its beginnings in the mid-1990s the pro bono movement in Australia has grown to encompass the diverse range of stakeholders, programs and services that exist today, namely:
• structured pro bono legal programs in large law firms, and increasingly in mid-sized law firms;
• formal pro bono referral schemes run by legal professional associations;
• pro bono referral organisations established by their law firm members;
• pro bono referral schemes established by legal professional associations or created by rules of court;
• informal rosters in some courts and tribunals of lawyers taking on a duty lawyer’s role;
• inclusion of pro bono in the Commonwealth and Victorian Governments’ policy frameworks for legal assistance services, particularly `pro bono conditions’ in government tender schemes for the purchase of legal services from the private profession;
• conferences dedicated to the discussion of pro bono legal services; and
• the Australian Pro Bono Centre.
Pro bono legal services are provided across the legal profession by lawyers working in law firms of all sizes (ranging from the structured pro bono programs of large firms to the individual contributions of sole practitioners), barristers, in-house corporate lawyers, government lawyers and law students. The Australian Pro Bono Centre’s National Law Firm Pro Bono Survey of Australian firms with 50 or more lawyers shows that 41 of these firms, representing close to a fifth of the Australian legal profession, undertook 374,942 hours of pro bono work in the 2014 financial year. Another significant contribution comes from individual lawyers who volunteer their services at community legal centres across Australia in their own time, contributing a total of 24,113 hours of pro bono work per week.
This pro bono legal work takes many forms. While much of it involves legal advice and representation of individual clients in the course of normal practice, other examples include preparation of law reform submissions, corporate governance, transactional assistance and training for community organisations and charities.
There are many pathways to pro bono, including personal contacts, links between law firms (and their staff) and non-legal community agencies, referral by legal aid agencies, CLCs and Indigenous legal organisations, and referral by other community organisations and agencies. However, recent Australian research on pathways to justice indicates that when people who are socially or economically disadvantaged or marginalised are faced with a legal problem, initially they tend not to go directly to a lawyer for assistance. Some do nothing, some deal with the issue themselves, and some seek advice and assistance from non-legal sources and services. This is why partnerships with community organisations that have closer links to those in need, and can identify and refer people with legal problems, are essential for pro bono service providers seeking to make a significant impact on unmet legal need.
Pro bono referral organisations and schemes (PBROs) provide an important pathway for disadvantaged or marginalised people to access pro bono legal services by acting as an intermediary between people or organisations needing legal assistance and lawyers prepared and able to assist. In addition to their core case referral function, PBROs also coordinate projects using some of the other models discussed in this book, for example, legal clinics such as the Homeless Persons’ Legal Service/Clinics in Sydney, Melbourne and Brisbane: see case study at 21.5.1.
Government legal assistance funds are used to fund the work of [Justice Connect] in recognition that it is an effective way of meeting the legal need of certain client groups (eg outreach to people experiencing homelessness and NFPs). Pro bono lawyers bring different skills and are able to be used in different ways as compared to salaried legal aid or CLC lawyers. Sometimes legal aid commissions fund pro bono programs that complement work they are doing (eg the Equal Opportunity Legal Service at VLA in Victoria). (PBRO manager)
While case referral is probably the most commonly recognised model of delivering pro bono legal assistance, pro bono is delivered in many other ways with innovative new models being developed in response to changing needs, partnerships and technology.
Pro bono legal work has undergone a profound transformation in the past 25 years. For much of legal history, pro bono was ad hoc and individualised, dispensed informally as charity, but increasingly it has become coordinated and structured particularly within large law firms.
This book aims to shed light on best practice for a wide range of established models that are being used to deliver pro bono legal assistance.
Effective pro bono is about partnerships, between firms, organisations that help clients access them, and with government and other funders. We are all partners together in the main game, which is to ensure that disadvantaged people can access justice. (PBRO manager)