The key message that emerged from the broad range of stakeholders who were consulted for this book was that the health and strength of the relationships between partners in any pro bono project was the most important factor in determining its success (see Chapter 3 Importance of relationships and communication).
This chapter provides some practical tips on planning, developing and maintaining relationships with potential and existing pro bono partners generally. It aims to assist those seeking to partner with a particular stakeholder to understand:
- what drives them to be involved in pro bono work;
- what resources and skills they have to contribute;
- what their culture is;
- how they work;
- what their constraints are; and ultimately
- how to be more attractive to a potential partner from this stakeholder group.
8.1 PLANNING AT THE BEGINNING
|Planning at the beginning: tips
Careful planning at the beginning of the relationship-forming process can help to minimise problems, maximise the chances of finding a suitable partner organisation and help to maintain a good working relationship.
The planning process prior to the commencement of the project is vital to its success. (CLC solicitor)
Planning to network can increase opportunities to meet potential partners. This could involve planning to attend conferences, forums, training or meetings and being prepared to talk about what your organisation is doing, and then following up discussions with individuals from organisations who show interest in your work.
Law firms can network by approaching pro bono referral organisations, tapping into networks of pro bono coordinators such as the Justice Connect Pro Bono Secretariat, or directly approaching CLCs that have been identified as potential partners.
The Centre’s National Law Firm Directory1 is an online resource that lists law firms, their pro bono intake criteria and their contact details. It is an excellent way for firms to make potential partners — both CLCs and other law firms with whom they could collaborate — aware of their existing or potential pro bono program.
CLCs also need to network to increase pro bono opportunities. There are advantages to starting small because it can be daunting to cold call firms for assistance. It can also be helpful to attend networking events organised by peak bodies such as NACLC.
CLCs need training about how to approach firms and what kind of assistance firms can offer. I was involved with a CLC which was told that they could ask a firm to pay their rent, when this is not the kind of assistance that a firm is likely to provide. (CLC manager)
Most of the law firm pro bono coordinators consulted said that they were very open to being approached by CLCs and other community organisations about possible involvement in a pro bono assistance project or to provide pro bono assistance.
There is no harm in asking a firm if they are interested in assisting or being involved in a project. (Large law firm pro bono coordinator)
CLCs need to invest time in visiting firms and getting to know pro bono coordinators. (CLC manager)
CLCs can also subscribe to the National Law Firm Directory2 to discover potential pro bono partners. Several CLCs and pro bono referral organisations who regularly partner with law firms have developed resources such as brochures or web portals to explain what it is like to volunteer or do pro bono work with them.
Given that pro bono is a limited resource, it is important that all potential partners can identify the unmet legal need that will be addressed by any proposed pro bono project. Where a community organisation is seeking a pro bono partnership that will provide legal services to its clients, its ability to identify the unmet legal need enables the pro bono provider to trust that it has assessed the merits of cases being referred.
There is no point to the project if there are no clients or the claims are not worth pursuing. We had to think about whether the CLC would lose face with the firm if there were no clients to assist. (CLC solicitor)
It is important to build a positive relationship between the partners from the beginning. Positive steps can be taken to increase the level of mutual understanding about each partner’s philosophy, goals and working methods, to ensure the partners are a good fit and will work well together. One manager from a not-for-profit organisation explained how important it was for a law firm to take the time to understand the context of the work of the organisation before undertaking pro bono work for them.
If the chemistry is not there, recognise the signs early and move on. Where there is compatibility, bottle it and nurture it. (CLC principal solicitor)
Many CLCs and pro bono referral organisations provide a formal induction process3 that explains the philosophy and the practical approach that results from it. For example, before commencing the Sexual Assault Communications Privilege Project (SACP) (see case study at 27.5.1), Women’s Legal Service NSW explained to the partner firms that it had a feminist approach to the project and would emphasise the needs of victims. It strongly advocated for the need to involve the Rape Crisis Centre in training law firm volunteers, especially since the firms’ lawyers would have direct contact with clients.
Law firms also need to be clear about their interests and constraints early in the planning process.
There can sometimes be an assumption that the firm is well-resourced and therefore has unlimited capacity to provide administrative support when in reality firms have their own procedures and approval processes for requesting additional resources like paralegals. (Large law firm pro bono coordinator)
One significant constraint may be a conflict of interest. A firm may be unable to take on pro bono legal work that conflicts, or potentially conflicts, with its duty to act in the best interests of an existing client. While the risk of a conflict of interest exists for all pro bono work and needs to be assessed on a case by case basis, setting up structures and having clear policies in place will make potential conflicts easier to identify and manage.
We told PILCH [now Justice Connect] not to send any matters involving major banks since they are likely to be clients. (Mid-sized law firm pro bono coordinator)
One CLC Principal Solicitor explained the agreed process for managing conflicts: when an appointment was taken by one of the pro bono volunteers they would phone the firm from the outreach site to check for conflict, and if there was a conflict they would give the person a brochure on the issue and refer them to three other solicitors.
Conflict issues can sometimes be addressed by obtaining the consent of other parties. For example, one firm asked the Department of Justice to approve their involvement in a pro bono matter against them, which was granted as they recognised the public interest value in having the matter resolved.
Banks and utility companies are often happy for representation to be provided to clients who would otherwise find it difficult to articulate the issues and provide their consent for our firm to act. (Large law firm pro bono coordinator)
Discussion and agreement about the roles and responsibilities of the partners is important for both ensuring the quality of the service being delivered to clients (to ensure that all tasks are being covered) and the health of the relationship (to avoid disagreements about who is meant to be doing what). This might involve issues such as who is the lawyer on the record, who has the solicitor-client relationship with the client, what area each partner is responsible for, and what the partners hope to achieve from the arrangement.
In planning for the work it is important to be realistic about the time it takes to coordinate a collaborative project.
In the future we will have a more realistic idea about the time/funding that should be allocated to coordination of a collaborative project of this nature which may involve phone calls, urgent placing of matters, organising meetings, arranging training, all on top of our usual casework load. (CLC solicitor)
Some project partners have clarified and formalised their discussions about their roles and responsibilities in the form of a memorandum of understanding (MOU), which can prevent disagreements and/or provide a basis for resolving any problems.
There were some disagreements about substantive legal and legal policy issues that were discussed but not always resolved. In future it would be helpful to have a MOU that sets out what is expected of each partner and clearly delineates different roles eg casework and policy, and agreement on standard precedents, consent forms and evaluation process. (CLC Solicitor)
One CLC solicitor suggested that these agreements should ideally cover both the abstract and practical issues, for example:
• Where does the risk fall and who is responsible for ensuring the work is done? (The answers to this question should be the same.)
• Where does the electronic footprint fall? Whose computer is the document generated from?
• Who is responsible for doing the administrative work? Whose style guide should be followed for letters and advices? Whose email address should be used?
Other practical issues might include:
• preparation of standard documents and processes;
• setting up a file management system that can be easily handed over so that files can be transferred from lawyer to lawyer if necessary;
• providing any necessary training: for example, Women’s Legal Service NSW suggested that it might be helpful to provide training and tips from the Attorney General’s Department in the law reform process for those unfamiliar with how it works (see case study on SACP at 27.5.1); and
• organising counselling support to be available (for example, via an Employee Assistance Program) to lawyers providing pro bono assistance who may be unfamiliar with the kind of clients and issues that arise in pro bono work.
Where community organisations partner with pro bono providers to deliver free legal services, it is also important to ensure that clients understand the arrangement between the partner organisations, including who is their point of contact and who their solicitor-client agreement is with.
When the client in receipt of pro bono legal assistance is the CLC or not-for-profit organisation itself, the roles and responsibilities may be formalised in a client or costs agreement.
In order to evaluate the success of a pro bono project, at the beginning of the project the parties should document the baseline from which to compare outcomes, and the shared mission and objectives of the project partners. While models to evaluate pro bono programs/projects are still being developed, increasingly legal assistance providers are required to demonstrate the impact of their projects to justify a continuation of support from the pro bono provider or from sources of funding (public and private).4 Evaluation also allows providers to reflect on their work and identify what can be improved in the future to better address unmet legal need.
Think about how the projects success will be evaluated. Statistical outcomes are not the only criteria upon which CLCs should be judged. Providing legal services to vulnerable and disadvantaged people has value in itself. (CLC solicitor)
While careful planning may be an important factor in a pro bono project’s success, the health of the working relationship is paramount, and is even likely to carry a project through any deficiencies in planning.
Ultimately, planning cannot take every possibility into account, so there needs to be a relationship that can adapt to changes in circumstances. (Large law firm pro bono coordinator)
8.2 MAINTAINING THE RELATIONSHIP
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. (CLC principal solicitor)
|Maintaining relationships: tips
The investment of time and resources in building an outreach clinic needs to be followed by an ongoing investment in maintenance of the relationships and health of the host organisation. (University pro bono coordinator)
While CLCs are loathe to ruin a relationship with a firm that is providing staff resources, neither the firm nor the CLC is happy if problems are not effectively communicated. (CLC manager)
Partnerships that are dependent on individual personalities are vulnerable to floundering if a key person at either the CLC or the firm leaves. (CLC principal solicitor)
If a key personality leaves an organisation, others may follow, and a less effective organisation is unlikely to attract clients. The strength of a host agency can make or break an outreach clinic, and can change in a relatively short space of time. (University pro bono coordinator)
Australian Pro Bono Centre, Australian Pro Bono Manual (3rd edition), LexisNexis, Sydney, 2016, Chapter 1.6 Identifying needs and sources or pro bono legal work, Chapter 1.13 Evaluation, Chapter 2.1 Casework procedures and Appendix 1 Precedents (Memorandum of Understanding and Evaluation templates).
3 The 106 CLCs that responded to the survey that the National Association of Community Legal Centres (NACLC) conducted in June 2012 invested 8,674 hours per year providing general induction and training to pro bono workers and volunteers. See National Association of Community Legal Centres, Working Collaboratively: Community Legal Centres and Pro Bono Partnerships (2012) at p 4, http://www.naclc.org.au/resources/NACLC_PROBONO_web2012.pdf.
4 See for example the National Partnership Agreement on Legal Assistance Services, Part 2, https://www.ag.gov.au/LegalSystem/Legalaidprogrammes/Pages/National-Partnership-Agreement-on-Legal-Assistance-Services.aspx.