This chapter focuses on what drives government lawyers to undertake pro bono legal work and how to encourage their involvement. More information for government lawyers who are interested in doing pro bono work is found at 2.5 ‘I am a government lawyer’.
Government lawyers are motivated to undertake pro bono by the same factors that motivate other lawyers, including the sense that it is part of their professional responsibility as lawyers and a strong personal belief in the importance of social justice and access to justice. The pro bono ethos is also highly compatible with the focus on public service that is at the core of the work of government lawyers.
Examples of the pro bono work undertaken by government lawyers include secondments by the Australian Government Solicitor (AGS) to Street Law (a community legal service that assists people who are homeless or at risk of homelessness in Canberra: see case study at 22.5.4), and the involvement of lawyers from the Australian Securities and Investments Commission (ASIC) with the National Children’s and Youth Law Centre (NCYLC), which offers online legal advice to children and young people (see case study at 26.5.1).
While there are significant numbers of government lawyers in Australia, the pro bono contribution of government lawyers makes up only a small part of the overall pro bono contribution of the Australian legal profession.1 There are practical and cultural factors that have constrained the growth of pro bono in the government sector.
In the past, major practical constraints have included:
- the fact that many government lawyers do not hold a practising certificate, as their roles don’t require it;
- no availability of professional indemnity insurance for government lawyers wanting to undertake pro bono work on their own behalf (rather than through a pro bono project covered by the insurance of a CLC, PBRO or law firm);
- conflicts of interest.
Our intake of clients is by the type of client, not by legal subject area. Being a generalist/holistic community legal service means there is greater potential for conflict issues with any government lawyers, although DFAT and AusAID lawyers are less likely to have conflict issues given they don’t really deal with domestic law or individuals. Given that the perception of conflict is as problematic as actual conflict in terms of building client trust and rapport, even CLE/outreach can be problematic. We do not want to give clients the impression that the service is anything but completely independent of government. Some conflict issues have arisen with AGS solicitors representing Centrelink and the Department of Immigration and Citizenship (DIAC). Even if the conflict is not direct, there needs to be an awareness that there are potential issues with having those solicitors on the premises with access to files/information. (CLC principal solicitor)
In recent years, these issues have been addressed or managed through changes to the regulatory system for practising certificates, the introduction of the National Pro Bono Professional Indemnity Scheme,2 careful structuring of pro bono work to target areas of pro bono work where conflicts are unlikely, and the use of conflict management policies and procedures for pro bono legal work.3 (For a case study on managing a conflict of interest see 15.5.1 Telstra, King & Wood Mallesons and the National Children’s and Youth Law Centre.)
However, key cultural constraints persist, including:
- the underdeveloped pro bono legal culture in government departments, agencies and authorities (this being a key driver for pro bono);
- the fact that the government’s capacity to support its lawyers to do pro bono work is more restricted than the capacity of the private sector; and
- the reality that government lawyers are less engaged with their professional bodies than private sector lawyers and therefore less immersed in the culture of pro bono as a professional obligation.4
Government departments, agencies and authorities stand to gain from having their lawyers involved in pro bono, as part of a wider profession. They can improve their skills by broadening their experience, and better understand the community context in which they undertake their usual work as a public servant.
My feedback here is that experience of pro bono volunteering has a positive impact. It helps our lawyers to develop a more rounded approach due to the variety of matters, and provides a sense of making a direct, positive impact…
… It is widely believed that an engaged employee, who is able to make a positive contribution to the community under the auspices of a company pro bono program, is likely to be more highly productive as an employee. (Justine Butler, ASIC in the Community Manager, Chief Legal Office)
Encouraging government lawyers to be involved in pro bono work, or do more, may involve identifying opportunities that avoid conflicts of interest (eg community legal education, and areas such as consumer debt, governance of non-for-profit organisations, small commercial matters, employment law, guardianship, wills and powers of attorney). The risk of conflict will vary from case to case and lawyer to lawyer, and should be evaluated on its facts. Promotion of these opportunities, and success stories from those who are already involved, could be increased, especially in the ACT where there is a concentration of government lawyers.
Government departments, agencies and authorities, in particular, can take steps to encourage their lawyers to become involved in pro bono legal work by:
- encouraging their lawyers to undertake pro bono work in a personal capacity through employment policies and promoting the benefits of being involved;
- paying for practising certificates, where relevant;
- allowing flexible work arrangements for pro bono legal work; and
- allowing reasonable use of government agency resources (such as library, telephone and photocopying) to do pro bono work.
At an organisational level, agencies or authorities can also:
- second lawyers to community legal organisations;
- become members of a PBRO and receive referrals in a designated non-contentious/conflict-free area of law; and
- participate in providing community legal education programs and materials.5
1 J Corker, ‘Government Lawyers and Pro Bono Legal Work’, Paper given at the Public Sector In-House Counsel Conference 2012, 30–31 July, Canberra ACT, p 1, at https://probonocentre.org.au/wp-content/uploads/2015/09/Government-Lawyers-and-pro-bono-legal-work-August-2012.pdf.
2 Australian Pro Bono Centre, National Pro Bono PI Insurance Scheme, https://probonocentre.org.au/provide-pro-bono/pi-insurance-scheme/.
3 See for example Commonwealth Attorney-General’s Department, Guidance Note — AGD Lawyers and Pro Bono Legal Work, p 5, https://probonocentre.org.au/wp-content/uploads/2015/05/Guidance-Note-AGD-Lawyers-and-Pro-Bono-Legal-Work.pdf.
4 J Corker, ‘Government Lawyers and Pro Bono Legal Work’, Paper given at the Public Sector In-House Counsel Conference 2012, 30–31 July, Canberra ACT, p 1, at https://probonocentre.org.au/wp-content/uploads/2015/09/Government-Lawyers-and-pro-bono-legal-work-August-2012.pdf.
5 J Corker, ‘Government Lawyers and Pro Bono Legal Work’, Paper given at the Public Sector In-House Counsel Conference 2012, 30–31 July, Canberra ACT, p 12-3, at https://probonocentre.org.au/wp-content/uploads/2015/09/Government-Lawyers-and-pro-bono-legal-work-August-2012.pdf.