The consultations indicate a tension between the ideal that pro bono resources should be directed to address the greatest unmet needs (where they can make the greatest impact), and the reality that pro bono is voluntary and that lawyers will choose to support the work and causes that they feel strongly about, or feel comfortable doing.
This tension is felt at an ideological and practical level, and influences decisions about how to allocate pro bono resources. For example, one large firm pro bono coordinator said there was a distinction to be made between not-for-profit organisations which delivered services directly to those in need (eg The Salvation Army) and those which empower others to provide services to those in need (eg Engineers Beyond Borders) or public interest causes, and explained that their firm was more likely to support a public benevolent institution than something like an arts institution.
We have been careful to ensure that the pro bono work done by our firm is addressing a high priority unmet legal need. We are not involved with seniors rights services, or animal rights. (Large firm pro bono coordinator)
The Chief Executive Director of the Arts Law Centre of Australia, Robyn Ayres, said that while it is understandable that some firms take the view that supporting artists may not be as high a priority as more obvious forms of poverty alleviation (for example, some view artists as undeserving as they have made a lifestyle choice, and some firms only provide assistance to Indigenous clients), providing pro bono legal services in this area indirectly and proactively reduces poverty and conflict in indigenous communities, as artists are less likely to be exploited. The Artists in the Black (AITB) wills project,1 for example, helps to avoid community conflicts and ensures that an artist’s wishes are followed in relation to who in their community benefits from the work. ‘Supporting artists is also about valuing the contribution that artists make to quality of life.’
- 5.1 Clients with the capacity to pay
- 5.2 The pro bono work that lawyers are interested in doing
- 5.3 What if the greatest needs are not the popular ones?
- 5.4 ‘Strategic pro bono’ or access to justice?
5.1 CLIENTS WITH THE CAPACITY TO PAY
Another question that arises is whether to allocate pro bono resources to services targeting client groups who often have the capacity to pay. One mid-sized firm pro bono coordinator has expressed the view that a number of people who approach the Seniors Rights Legal Clinic in Melbourne could afford to pay for legal services and are sometimes ‘service shopping’.
One coordinator of a CLC wills program explained that ‘Some solicitors criticised the program for providing a free service where it was reasonable to request remuneration. They declined to support such an initiative in their region. Further, they felt that the services could be provided on an ad hoc basis and that patients that could afford legal services would receive them in the ordinary manner.’2 However, many of the clients might have assets but have no cash flow. ‘A simple will or power of attorney can be done quickly. If the matter is more complex, and the person has capacity to pay, then the service will end the retainer and refer the person.’ Means was only one of three considerations for providing the service — 1) Capacity to pay, 2) Urgency and 3) Vulnerability.
5.2 THE PRO BONO WORK THAT LAWYERS ARE INTERESTED IN DOING
One view is that given the voluntary nature of pro bono, it is important to take into account the type of pro bono work that lawyers want to do, even if the work is not necessarily about meeting the greatest unmet legal need.
Some large firms choose focus areas, in addition to assisting where there is a public interest and areas of greatest need, in response to feedback from their partners and staff about needs that they feel a connection to. For example, Special Counsel, Pro Bono and Community at King & Wood Mallesons (K&WM), Jane Farnsworth, explained that matching the firm’s unique mix of skills and interests with areas of need ensures that its pro bono assistance resources are strategically targeted to areas where it can make the most impact. K&WM surveyed staff across core areas to find out the areas of need where staff had an interest and which would therefore be a good fit for the firm. Children and young people at risk, and alleviating poverty and improving community welfare emerged from both the initial survey and one-on-one feedback with a staff consultant as the areas of need thought to be a good match for the firm. ‘The firm’s pro bono program is embedded into the culture of the firm by having these focus areas, which make it clear to everyone within the firm what the pro bono program is trying to achieve.’
The future of pro bono relies on capturing the interest of young lawyers (who are the future partners of the firm) so providing them with opportunities to participate in pro bono work (even if it is only work within their comfort zone) is still valuable. (Large law firm pro bono coordinator)
Similarly, the Lodden Campaspe Community Legal Centre Bendigo Health Outreach Service (see case study at 19.5.3) creates targeted, structured and supported (rather than ad hoc) pro bono opportunities for smaller firms in regional areas, many of whom have considerable skills to offer in the health setting but would not normally do much pro bono, and might not be so inclined to do pro bono work for a less sympathetic client group.
It is often the client group that evokes the most sympathy that can obtain better pro bono assistance. It is often the client group that is seen as more blameless (for example, being diagnosed with a terminal illness) rather than someone who has had a difficult and traumatic life and is not coping well (criminal convictions, addictions, homeless, mentally ill etc). (PBRO manager)
5.3 WHAT IF THE GREATEST NEEDS ARE NOT POPULAR ONES?
Clients with the greatest needs may also be less likely to obtain legal assistance because there is more work involved in assisting them.
Firms are generally reluctant to take on litigation. However they are still willing to take offshore asylum seeker cases because they are attracted to the work with refugees. In contrast, matters involving a complaint to the Human Rights Commission are often refused on the basis that they could lead to litigation. We have had to do a number of discrimination matters in-house because, although the barristers who gave the advice on prospects were willing to run the matters, they couldn’t find instructing solicitors who were willing to take on clients with complex needs. Whilst it is appreciated that this work is time consuming, it means the clients with the greatest needs are unable to get assistance. Note both examples are about clients who are arguing about their human rights, procedural fairness etc. (PBRO manager)
While it is concerning that people with high needs may be less likely to obtain legal assistance if they are not from a sympathetic client group, understanding what drives pro bono providers to give their support may provide some guidance for those seeking/brokering pro bono assistance about how to pitch their requests for assistance, and realistically which matters are likely to be placed (see Part 3 Understanding your potential partner).
The reasons that firms provide for not taking referrals are not consistently applied. While firms think their guidelines are clear, they are often difficult to apply. Often it comes down to personal relationships with pro bono coordinators and people’s personal experience of issues (for instance, if someone has a family member or friend that has had a specific legal issue — eg has been made homeless — then they are more likely to want to engage with the issue).
Some PBRO managers encourage firms to acquire the skills needed to address the greatest unmet legal needs, on the grounds that the criteria or parameters for pro bono programs should respond to the greatest unmet legal need.
The model chosen for the delivery of pro bono legal assistance is not as important as the law firm’s willingness and openness to address unmet legal need as it is identified and when firms are willing to skill up in an area of law where they do not have expertise, but there is a clear unmet legal need. (PBRO manager)
It feels like it is getting more and more difficult to refer cases to firms. Firms are by nature risk averse and will often not want to take on a matter if they do not have legal expertise in the area. This is difficult to fathom from a CLC lawyer perspective where with limited resources (no law libraries, no researchers or partners with expertise) your job often requires you to research new areas of law and provide advice. (PBRO manager)
However one mid-sized law firm pro bono coordinator questioned the extent to which firms can and should adapt their skills to meet the need given that firms’ lawyers already contribute their many existing skills to meet existing demands.
5.4 ‘STRATEGIC PRO BONO’ OR ACCESS TO JUSTICE?
Some law firms have a preference for ‘strategic pro bono’ and law reform rather than individual case work, which they see as the responsibility of legal aid. For example, family law is an area of great unmet legal need which is seen by many in the pro bono community as being ‘the government’s job’ and therefore not appropriate for pro bono legal assistance.3 However, others identify with the need to provide access to justice for individuals.
Many firms are keen to do law reform and are willing to invest significant resources in test cases which can lead to systemic change. One pro bono coordinator said that their primary goal was to move the firm’s pro bono practice from being responsive to ad hoc case referrals to achieving systemic change by being more proactive and strategic (noting that the case referral model can also be more or less strategic, depending on how it is organised).
If a pro bono project is limited to just casework, then the project is not right for me. No matter what kind of project it is — clinics, case referral, secondments etc — I need to be able to engage with the issues and I always have a systemic, holistic, law reform perspective. (Mid-sized law firm pro bono coordinator)
A focus on law reform avoids pro bono becoming a substitute for legal aid. Pro bono work which has a law reform element or at the least the potential for supporting systemic change goes beyond an individual clients immediate problem. (Mid-sized law firm pro bono coordinator)
We get lots of requests for assistance to do work that is probably more appropriate for legal aid and it is a shame it isn’t taken on by them, but they have very strict criteria for funding reasons. All pro bono lawyers would probably agree that better access to legal aid would reduce their workload. Hence, we should all be campaigning for better legal aid to fund matters that are about access to justice, rather than the public interest… (Mid-sized law firm pro bono coordinator)
Doing clinic work can be very time consuming and it is sometimes difficult to see where it leads. People seeking assistance at clinics often have multiple problems so the resolution is not satisfactory for their situation. There needs to be a strategic goal for clinics so that they are doing more than resolving individual matters, for which there is a never-ending source of clients and problems. (Mid-sized law firm pro bono coordinator)
However, there are clear warnings from all sectors that the rights achieved through law reform are of little benefit if they cannot be asserted because people cannot obtain legal advice and representation. Access to legal aid and pro bono lawyers is seen as essential to ensuring that people can exercise the rights that have been won through a test case.
A change in the law can mean that people will have better access to justice but it is important that the strategic litigation is not seen as an end in itself and the work is in planning for and supporting the work that is necessary to ensure that people can exercise/assert the rights that have been won through a favourable decision. This planning can be done in conjunction with Legal Aid and CLCs who are likely to be the first places clients will go to. If not planned, there is the capacity for a new large unmet legal need to overwhelm existing services. This is where pro bono resources are particularly useful. (PBRO manager)
Law reform that can take years to achieve (via a test case), can be killed in a day (via legislation). (CLC solicitor)
Clinic work has authenticity. It is this day to day work at the coalface which is the essence of pro bono. The reality on the ground is that people need help and if firms don’t offer this assistance, nobody else will. (Large law firm pro bono coordinator)
No win no fee arrangements are important (even if not strictly pro bono) because they provide access to justice. Much of our firm works on this basis, unlike in other firms. Our lawyers feel this is a contribution to our society and I agree with that. (Mid-sized law firm pro bono coordinator)
No matter what drives the provision of pro bono legal assistance, being informed about the impact of pro bono projects and programs assists decisions about where pro bono resources should be allocated. However, models evaluating the impact of pro bono programs/projects on addressing unmet legal need are still being developed.4
Australian Pro Bono Centre, Australian Pro Bono Manual (3rd edition), LexisNexis, Sydney, 2016, 1.3.4 Criteria for pro bono legal work.
1 An instance of the Artists in the Black wills project’s work involved four lawyers including two Arts Law lawyers and the DLA Piper lawyers drafting wills for 22 artists in Derby, Western Australia, over a period of a week following recent deaths in the community and the realisation of many artists that it is important to have a will so that the artist can decide what is to happen to their property and possessions after they pass away. For more information see http://www.artslaw.com.au/art-law/entry/wills-pilot-project/.
2 See Peter Noble, ‘On Capacity: Promoting structured pro bono by regional lawyers to provide legal education and casework within the health context’, paper presented at the National Rural/Regional Law and Justice Conference, 19-21 November 2010, p 15, http://lcclc.org.au/wp-content/uploads/2012/02/On-Capacity-Conference-Paper-by-Peter-Noble-Loddon-Campaspe-Community-Legal-Centre.pdf.
3 National Pro Bono Resource Centre, Pro bono legal services in family law and family violence, Final Report, October 2013, http://probonocentre.org.au/wp-content/uploads/2015/09/Family-Law-Report-EXEC-SUMMARY.pdf.
4 See, for example Justice Connect, Impact Report 2014-15, which adopts a Theory of Change approach to measure its impact, http://www.justiceconnect.org.au/sites/default/files/FINAL_JC_Impact_Report_2015_NOBLEED%20%281%29.pdf.