This chapter focuses on what drives barristers to undertake pro bono legal work, how to encourage their assistance and how to work well with them. More information for barristers who are interested in doing pro bono work can be found at 2.6 ‘I am an individual lawyer or barrister looking for opportunities to get involved’.
The best way to pitch a matter to a barrister is to appeal to their sense of professional interest in a complex, untested area of law. (Barrister)
Barristers provide a significant amount of pro bono assistance. While the majority of their pro bono work involves representation and advice, and acting as counsel running matters in court, it also includes being involved in pro bono duty lawyer schemes, settling court or inquiry submissions,1 providing legal education, or providing mentoring support to CLC solicitors. For example, the Principal Solicitor at the Public Interest Advocacy Centre (PIAC), Alexis Goodstone, said that PIAC often uses barristers to provide advice over the phone on particular questions of law.
Barristers are generally motivated to undertake pro bono legal work by a sense of professional responsibility and a personal interest in public interest, social justice and human rights issues. Their pro bono legal work is voluntary in the sense that, unlike solicitors employed in large law firms, they are not paid to do it. Referrals are most likely to be accepted where the focus is on making a difference by applying high-level skills to an interesting, complex, untested area of law.
Many lawyers also have a genuine belief in the law as a vehicle for social change. These lawyers push the boundaries of the law where there are principles of justice involved or law reform needed … A frequently cited example of this, that has lost none of its resonance with the passage of time, is the Mabo Case … I think there could be few better examples of the way in which barristers can, through engaging in pro bono work, exercise their skills and knowledge not only for personal benefit, but for the benefit of the community in which we live.2
The NSW Bar Association’s Legal Assistance Manager, Heather Sare, explained that while a complex and interesting matter is an ‘obvious drawcard’ for engaging a barrister’s assistance, ‘there have been many instances of barristers agreeing to help in more straightforward matters because of their overriding sense of professional responsibility and a willingness to attempt to make a difference in the lives of people facing difficult circumstances.’
Most of those consulted who expressed views about the contribution of barristers agreed that barristers make an important contribution to pro bono work, with some individual barristers making an extraordinary personal contribution.
Barristers are self-employed and so, in doing work on a pro bono basis, bear the opportunity and associated costs personally, unlike a law firm lawyer who continues to be paid by their firm.3
- 14.1 Working with Barristers: At a Glance
- 14.2 Benefits
- 14.3 Challenges
- 14.4 Features that Make it Effective
14.1 WORKING WITH BARRISTERS: AT A GLANCE
Features that make it effective
Those consulted identified that one of the key benefits of having barristers undertaking pro bono as volunteers is that the barristers are generally motivated by a deep personal interest and commitment to social justice, and provide pro bono assistance of a very high quality. For example, the Principal Solicitor at Women’s Legal Services NSW (WLS), Janet Loughman, said that while barristers have a less concentrated involvement with WLS than law firms, barristers contribute greatly and do so without being paid by a firm. ‘Some individual barristers make an outstanding contribution. The barristers that WLS have currently engaged on a pro bono basis in a very complex matter are highly skilled and responsive.’
Barristers come face to face with social justice, public interest and human rights issues. Those who become involved in pro bono work seem to do so out of a personal interest and commitment to social justice. (CLC solicitor)
Even when barristers are partly motivated by an opportunity to gain experience, the recipients of their assistance still stand to benefit from their pro bono contributions.
When I worked at West Heidelberg Community Legal Service in the early 1980s, the Service relied heavily on young barristers who were eager to build up experience with a few pro bono cases. That worked well, especially when the Service was struggling for funding. (CLC solicitor)
Individual barristers are relatively autonomous and can have a degree of flexibility about accepting pro bono work at a particular time. By contrast, pro bono coordinators or other lawyers wanting to undertake pro bono work within a law firm are often required to check with the relevant practice group, their supervising partner, or others in the firm.
Some of those consulted, especially those in small firms, found it difficult to find barristers to act on a pro bono basis, which deterred them from taking on matters that involved briefing counsel.4
Small firms will generally only take on matters which are a match with their core expertise so they can do it on their own. They also do not want to put another practitioner in the position of losing money by taking on a pro bono matter. (Small firm principal)
One Senior Counsel explained that, where a barrister who is unknown to the organisation is seeking to do pro bono work primarily as a means of building experience, it can be difficult to assess their skills. Many of the CLCs consulted said that they prefer to use barristers with whom they have an existing relationship rather than being referred to someone new.
It can be challenging to assess whether the barrister has sufficient experience to run the matter so they are a help rather than a hindrance. Junior barristers sometimes seek pro bono work when they are trying to build their experience or do not otherwise have much work. (Barrister)
It is important for CLCs to work out how to find a barrister with the relevant skills set required for the case and the time to devote to doing a good job. CLCs need experience with how to manage barristers and decide whether to instruct or brief them to do a matter uninstructed. Junior barristers who want some casework experience or to move into a new area, and have not yet developed the necessary skills to do the work, can be a drain on CLC resources. (CLC solicitor)
Providing support to help a pro bono barrister manage their workload is important, especially in a matter that runs for several months.
It is crucial for firms to do more than send a client with papers. They need to support the action with litigation solicitors. (Barrister)
The way in which costs are awarded potentially disadvantages a client who is represented on a pro bono basis.5 Fiona McLeod SC said that she regards pro bono assistance as meaning there is no fee on the back sheet and does not operate on a no win/no fee basis. She believes that it is best if potential conflict is avoided by ensuring that she has no financial interest in the outcome. However, she does see the potential for the pro bono client to be disadvantaged if the other party finds out that they are being represented on a pro bono basis and knows that they will not have to pay significant costs.6 ‘Donating an award of costs may be a good way to avoid the conflict issue while not putting the person being represented on a pro bono basis at a disadvantage.’
14.4 FEATURES THAT MAKE IT EFFECTIVE
It is important to provide avenues for building relationships with barristers, as these relationships facilitate the provision of assistance.7 For example, the Solicitor Director at Phang Legal, Ern Phang, has developed and maintained a relationship with a barrister who provides counsel at a reduced rate whenever needed.
Some of those consulted prefer pro bono work arising from established relationships more than via formal referral pathways. For example, one CLC Solicitor said that the CLC had a pool of well-known and trusted barristers. ‘Some have been volunteers at the CLC, either as barristers or solicitors that went to the bar. Others are known through broader networks. We have had great success with our familiar pool of barristers and prefer to brief barristers whose work we are familiar with.’
If engaging a barrister who is unknown to the CLC, we will send a solicitor to instruct. (CLC solicitor)
One CLC principal solicitor has found that having in-house solicitors instructing barristers, rather than referring the matter to a pro bono solicitor, made it much easier to harness the goodwill of the Bar Association because they were able to build a relationship over time by working together on different matters or in relation to particular issues.
If they have a pre-existing relationship with a CLC, barristers prefer to receive requests for assistance directly from that CLC rather than from a clearing house. However, they would prefer to receive a request from a clearing house, than from a CLC or client that they do not have a pre-existing relationship with, so that the clearing house can do the initial means and merits assessment. (Barrister)
Fiona McLeod SC agreed that the best way to pitch a matter to a barrister is to appeal to their sense of professional interest in an untested area of law, while Dan O’Gorman SC said he prefers to be approached with an email outlining the matter and the assistance being sought. ‘Barristers need time to consider such a request out of court hours. Those seeking assistance need to understand that it may take a couple of days for a barrister to respond or could ask the barrister when would be an appropriate time to call.’ Barristers are often willing to consider a pro bono matter in conference and provide verbal advice about the merits or identify further evidence that needs to be gathered, but it can be more difficult to obtain written advice. It may also be helpful to create a written record of any advice provided verbally by a pro bono counsel, by writing up notes for them to settle. Having a system in place to assess whether a barrister has sufficient experience to run the matter is necessary to avoid a mismatch of skills, especially if they are not senior. Dan O’Gorman suggested that ‘this could be a simple questionnaire asking how long they have been admitted, their areas of experience and what resources they have behind them (for example, whether they have access to someone who can help a less experienced barrister)’.
CLCs should wait for an appropriately skilled barrister and are entitled to say thanks, but no thanks to an inexperienced barrister. (Barrister)
It was also suggested that to overcome issues arising from working with inexperienced pro bono barristers, a senior person (potentially with no experience in the field) could be paired up with a junior person who has subject area knowledge. Fiona McLeod SC said ‘this is a great way to build capacity for both barristers and ensures that there is a bigger pool of people with a mix of skills and experience to draw on’. For example, ‘[j]unior lawyers who may have experience in environmental planning and understand the “ins and outs” of running a matter in VCAT can be led by a silk with experience in strategy and what to focus on.’
You could have inexperienced barristers assisting more experienced barristers who provide guidance about what needs to be done eg, what to research. A CLC, for example, could offer to involve a junior barrister when they find a more experienced barrister. After one or two similar cases they will have developed the skills to run a matter on their own, which is a win-win for everyone involved. (Barrister)
Fiona also suggested that the same pairing idea can work in law firms. ‘However the junior person cannot be too junior. They need to be able to work independently to some extent and have their work directed and checked by senior counsel or a partner at a firm playing a proper supervisory role.’
Assistance with any of the issues discussed in this section may be sought from the referral schemes of bar associations.
A number of bar associations have their own legal assistance schemes, which can assist in the identification and briefing of barristers with the relevant skills and experience. (Heather Sare, Legal Assistance Manager, New South Wales Bar Association)
The Bar Associations of New South Wales, Queensland and Victoria have formal pro bono referral schemes. In Queensland8 and Victoria9 these Schemes are managed by QPILCH and Justice Connect respectively, while in New South Wales10 the Bar Association manages the Scheme directly. The Western Australian Bar Association11 does not have a formal Scheme but liaises with LawAccess and provides pro bono assistance as appropriate. In other states and territories the local Bar Association is the best place to try. For a comprehensive list of referral schemes and contact details see the Australian Pro Bono Centre’s website.12
Australian Pro Bono Centre, Pro bono referral schemes and organisations (for barristers), https://probonocentre.org.au/provide-pro-bono/solicitor-or-barrister/pro-bono-referral-schemes-organisations/.
1 Australian Pro Bono Centre, Mapping pro bono in Australia (2007) p 29 [3.1], at https://probonocentre.org.au/wp-content/uploads/2015/09/NPBRC_mapping_book_web.pdf
2 Hon Mark Dreyfus QC MP, ‘Pro Bono – An Ethical Obligation or a sign of Market Failure?’ (speech delivered to the Victorian Bar Third Annual CPD Conference in Melbourne on 16 March 2013, in his role as Attorney-General of Australia).
3 J Corker, ‘Access to Justice – International Pro Bono Legal Assistance’, Paper presented the Meeting of Senior Officials of Commonwealth Law Ministries, 18–20 October 2010, p 2, https://probonocentre.org.au/wp-content/uploads/2015/09/SOLM-AccesstoJustice-IntProBonoLegalAssistance.pdf.
5 Australian Pro Bono Centre, Submission to the New South Wales Law Reform Commission, submitted to the Inquiry into Security for Costs and Associated Costs Order, Aug 2011, at https://probonocentre.org.au/wp-content/uploads/2015/10/NPBRC-Submission-to-NSWLRC-on-costs-August-2011.pdf
8 Queensland Public Interest Law Clearing House Inc, Pro Bono Referral Services (2015) Queensland Public Interest Law Clearing House Inc.
10 New South Wales Bar Association, Legal Assistance, New South Wales Bar Association http://www.nswbar.asn.au/briefing-barristers/legal-assistance.
11 Western Australian Bar Association, Pro Bono, Western Australian Bar Association (2010) http://www.wabar.asn.au/?rt=article/ 33&m=121&p=20.