6.1 SIZE OF JURISDICTION
The size of a jurisdiction has an impact on the capacity of lawyers to provide pro bono legal services.
Smaller jurisdictions have a smaller pool of legal professionals to draw on for pro bono legal assistance. For example, the Director of QPILCH, Tony Woodyatt, explained it is difficult to obtain a secondee in Queensland where the firms or branches of firms are smaller and have less capacity than in Sydney and Melbourne. JusticeNet in South Australia has also found it challenging to develop and staff services such as clinics, being a relatively young organisation.
CLCs are not as well resourced in Queensland as they are in NSW or Victoria so they need firms to do more frontline service delivery work, which firms here are reluctant to do. There are fewer pro bono resources in the smaller law firm offices in smaller jurisdictions. (CLC coordinator)
The risk of conflicts, real or perceived, is also greater in a smaller jurisdiction. For example, Hobart Community Legal Service (HCLS) found it difficult to obtain pro bono assistance for their clients in certain areas of law. The Manager of HCLS, Jane Hutchison, explained that ‘Industrial law is particularly difficult because there are only a couple of firms with the requisite level of expertise to enable them to provide mentoring/training assistance or advice/representation in complex cases, and they are usually acting for the few large employers in Tasmania so they always have a conflict (or fear having a future conflict).’1
Smaller jurisdictions may also lack the pro bono infrastructure that can help to support and drive pro bono assistance. For example, Jane Hutchison explained that the historical absence of pro bono referral organisations or well-established pro bono practices in Tasmania has meant that the development of a pro bono culture is not as strong as in larger jurisdictions, with a prevalent view being ‘why should we do it’, and leading to pro bono being confused with no-win-no-fee arrangements. Jane said that the establishment of the Law Society’s pro bono committee and referral scheme has had a very significant positive impact on promoting an understanding of what pro bono means and the development of pro bono culture in the profession, particularly within the members of the Law Society.
Not all national firms with organised pro bono practices have a significant presence or profile in smaller states and territories, and as a result the pro bono culture that has developed within these firms, which may include a certain competiveness that helps to drive pro bono work in larger jurisdictions, is less evident in the smaller jurisdictions.
There are no large or national firms with a presence in Tasmania, and the largest firm in Tasmania would be considered to be a small firm in larger jurisdictions. (CLC coordinator)
A dedicated coordination point like a pro bono referral organisation can be particularly helpful in a smaller jurisdiction. For example, the small size of the jurisdiction in SA made it easier for JusticeNet to quickly develop relationships with firms, barristers and CLCs. Many pro bono relationships in South Australia rely on personal contacts between particular CLC staff and particular barristers or law firm staff. However, given that there can be a relatively high turnover of CLC staff, JusticeNet appears to have become a reliable channel of communication between different parts of the profession. Justice Net’s Executive Director Tim Graham explained that ‘a request for assistance will reliably reach the Bar in a timely manner if it is made via JusticeNet and is not reliant on having someone in a CLC who knows a particular barrister’.
South Australia is a small jurisdiction so it is difficult to find lawyers who will accept matters on a pro bono basis. Most would like to charge for their services. JusticeNet is a great model for a small market like SA because it has the ability to capture and enhance the willingness of private practitioners to participate in pro bono work. (CLC solicitor)
While there are pro bono referral organisations or schemes in each jurisdiction, some are much better resourced than others. In the absence of developed infrastructure, informal relationships are even more crucial as the ability to obtain pro bono resources relies more on personal connections and appealing to individual lawyers’ sense of justice. One clc Principal Solicitor explained that while it would be helpful to work with a referral organisation or scheme, a potential disadvantage of the organisation or scheme making the referrals is that the project/CLC loses control of the relationship-building. ‘It is difficult to build a sense of ownership or emotional link to the work if you are only calling on someone once a year to assist with an isolated matter.’
In some smaller jurisdictions there are very few national firms. When JusticeNet conducted a review of its members two years ago, the motivation for firms to join seemed to be primarily about doing the right thing, followed by Corporate Social Responsibility and, to a smaller extent, keeping up with what other firms were doing in a smaller jurisdiction. A core of 15 mid- to large-sized (for Adelaide) firms became members of JusticeNet. Tim Graham said ‘There isn’t the sense in SA that any firm feels ‘forced’ to join. The NPBRC Aspirational Target and publicity for firms are not as significant for Adelaide firms.’ Similarly in Tasmania, Jane Hutchison observed that ‘Pro bono providers who have joined the Law Society’s pro bono list seem to have done so out of a personal sense of ‘doing the right thing’ and have made significant contributions, while some of the larger firms that were expected to join the list have not yet done so.’
More could be done in the future to publicise the successes of pro bono work, for example, having a pro bono award (similar to the Justice Awards in NSW). However word of mouth is a very effective means of spreading the message in a small jurisdiction, and therefore forming relationships with pro bono providers is very important. (CLC coordinator)
6.2 DISTANCE FROM MAJOR CITIES
In addition to the size of jurisdiction, the distance from a capital or major city also has an impact on the availability of pro bono resources. CLCs that are well positioned (that is, near the city and better resourced with personnel and the capacity to promote themselves) are better placed to develop relationships with firms and are more likely to be successful in requesting resources than those in regional, rural and remote (RRR) areas. For example, solicitors at Caxton Legal Centre Inc explained that the Centre is well resourced and has comparatively easy access to pro bono resources compared to CLCs in other areas of Queensland.
Finding pro bono lawyers who will travel to RRR areas or local lawyers who will do pro bono work is difficult… Without access to lawyers willing to do Legal Aid or pro bono work, representation in all courts is an issue. (CLC principal solicitor)
Many of those consulted expressed concern that CLCs with the greatest needs are missing out on partnership opportunities because they are in a RRR area and identified the need for firms to better understand the needs and difficulties they face.
Many firms don’t understand the issues facing RRR CLCs. For example, we organised a seminar in a RRR area, taking three days to get there, deliver and get back. The course participants had driven 450 km to go to the training because there is nothing else available. The firm wanted to do it in a day, not understanding that there weren’t flights available to allow them to get there and back in a day. (PBRO manager)
Firms like the idea of doing more pro bono work via online technology like Skype or podcasts. However they need to fully understand the loss of interaction and networking opportunities with a web-based seminar (and that a number of RRR organisations are unable to access adequate technology). (PBRO manager)
However, there were some success stories from RRR areas. The Bendigo Health Outreach Service, for example, has created targeted, structured and supported (rather than ad hoc) pro bono opportunities for smaller firms in regional areas and currently has 30 lawyers volunteering. (See case study on Bendigo Health Outreach Service at 19.5.3).
Another example is the Arts Law Centre of Australia’s partnership with the Copyright Agency and Gadens to provide legal services to Indigenous artists in remote Central Australian communities, so that they can prepare wills and manage how their property will be distributed after passing away. Other pro bono providers that have contributed to this work include DLA Piper, Minter Ellison and Telstra.
While it is normally difficult to find lawyers/firms that are able/willing to provide resources for pro bono work in remote areas, Arts Law has found that its wills project is very popular. There is competition amongst lawyers to participate in this work, and those who do it come back with stories that promote it to their colleagues. For firms, it ticks many boxes (Indigenous, Arts, lawyers want to do it). (Robyn Ayres, Arts Law Centre of Australia)
While this resource provides a number of case studies demonstrating successful pro bono projects that have been undertaken in RRR areas, it is beyond the scope of this resource to tackle the entire issue of improving access to legal assistance in RRR areas. It is hoped that a separate resource will be developed on this topic in the future.
6.3 SIZE OF LAW FIRM OR OFFICE
There are simply fewer pro bono resources in smaller offices. (CLC coordinator)
The size of a firm can affect its willingness and capacity to contribute resources to pro bono work. For example, the Partner, Pro Bono and Community Support at Lander and Rogers, Jo Renkin, explained that for a mid-size firm, capacity (and sometimes budget) can create more limitations than for a larger firm. ‘Landers can take on only limited public interest litigation and is generally running with its existing pro bono workload and balancing capacity needs sometimes limits the taking on of much new work. This means that the strategy for addressing of unmet legal need is ‘a bit hit and miss’ as a good case might come along at a time when there are no resources to take it on.’
She also explained that gathering a group of lawyers to take part in clinics or training over a day or days can be challenging, given the human resource constraints, and that secondments may have to be for a shorter period than she would like them to be. ‘Secondments at Human Rights Law Centre (HRLC) are three months full time, with an extension for a further month in some circumstances when the firm is not too busy. Secondments to Inner Melbourne Community Legal are two days a week for three months. It would be better if secondments could run for longer and this is something that I would like to change.’
The Partner for Pro Bono Services and Corporate Responsibility at Gilbert + Tobin (G+T), Michelle Hannon, explained that ‘G+T prefers to conduct substantial amounts of pro bono work in-house to ensure broad exposure across the firm. Of course, some practice have substantial [pro bono] practices and are of a size where they can also have regular secondees which is great. Due to our size we do not have the capacity to staff a substantial in-house practice and carry on regular secondments.’
For sole practitioners and small firms, financial and capacity constraints are even more significant. Manny Conditsis, Senior Trial Advocate at Conditsis Lawyers, which is a small firm with seven to ten lawyers, explained that small firms may not be in a position to undertake any pro bono work unless their business is doing well and they do not need to focus all their energy on keeping the business afloat.
When we do pro bono we make a conscious decision to do work for free or to discount. It is involvement at a different level to a lawyer at a large firm who is being paid to do it. It is money coming out of the business, out of my kids’ mouths. (Small firm principal)
Special Counsel, Pro Bono and Community at King & Wood Mallesons, Jane Farnsworth, explained that while there are different drivers in different sized firms, there are also differences within firms with varying sizes of offices in different cities. ‘Two thirds of K&WM staff members are in the Sydney and Melbourne offices, and the other third are spread across the Canberra, Perth and Brisbane offices (the Canberra office has less than 100 people). A national program needs to have common features but needs to suit the size of the office and work with the culture in the specific office eg what might work in the Sydney office will not necessarily work in the Canberra office.’
Understanding that there can be different cultures in offices of the same firm can help those seeking pro bono assistance to be more strategic about pitching their requests for assistance. The Operations Manager at the Geraldton Resource Centre (GRC), Chris Gabelish, explained that the CLC’s highly useful and effective relationship with Clayton Utz started because GRC had a relationship with the National Pro Bono Partner (not the Perth Coordinator). ‘This has, over the years, developed into a good relationship with the Perth office. It is not the case that positive relationships always need to start locally.’
A CLC may have more success with the national coordinator of a firm who might be more progressive than the coordinator in the local office. (CLC coordinator)
However, many of those consulted expressed the view that the culture of a firm and the strength of the relationship between a firm and its community partners have more of an impact on the amount and quality of pro bono assistance provided than the size and resource constraints of a firm (see Chapter 3 Importance of relationships and Chapter 4 Importance of developing a strong pro bono culture).
Australian Pro Bono Centre, Australian Pro Bono Manual (3rd edition), LexisNexis, Sydney, 2016, Chapter 1.15 A mid-sized firm perspective and Chapter 1.16 A small law firm perspective.
1 Lawyers at HCLS have participated in training sessions delivered remotely by lawyers at DLA Piper in areas like employment law via Skype as part of a government funded pilot project using the National Broadband Network to increase access to justice: see Chapter 26 Technology-based services like video conferencing).