Case referral is the model most commonly associated with pro bono legal assistance. In this traditional model, an individual or organisation needs help and is referred to a lawyer for legal advice and/or representation, which is undertaken by the lawyer as part of their ordinary legal practice without charge or at a reduced fee to the client. There are many pathways for a matter to be referred to pro bono legal assistance, including:
- via a PBRO which refers individuals, community groups and not for profit organisations to lawyers in private practice, or in-house/corporate lawyers who are willing to undertake legal work on a pro bono basis;
- through a CLC;
- from one firm to another;
- from legal aid; or
- through a direct contact.
Pro bono legal service providers contribute their resources according to the knowledge, skills, interests and resources they have available.
- 19.1 Case referral: at a glance
- 19.2 Case referral: benefits
- 19.3 Case referral: challenges/limitations
- 19.4 Features of effective case referral
- 19.5 Case studies
- 19.6 Case referrals through Pro Bono Referral Schemes & Organisations
19.1 CASE REFERRAL: AT A GLANCE
Features of effective case referral
19.2 CASE REFERRAL: BENEFITS
The case referral model is by nature responsive to requests for assistance, and this means that it plays an important role in filling gaps in legal service delivery and providing access to justice for people who have otherwise been unable to obtain legal assistance.
Given the potentially broad range of issues and clients that arise through case referral, it can also provide more opportunities than other models for a wide range of lawyers, all types of practitioners and sizes of firms, to participate in pro bono work. From the point of view of pro bono coordinators who are trying to build a pro bono practice and encourage the development of a stronger pro bono culture within their firm, the variety of matters received through case referral helps them to spread pro bono work across their firm and involves lawyers who might otherwise not be inclined to do pro bono work.
Case referrals increase the variety of work that can be matched with the interests and desires of lawyers in the firm, and therefore allows more people in the firm to do pro bono work. Some feel more comfortable doing corporate legal work rather than dealing directly with disadvantaged clients in areas of law that they do not have expertise (which is what they would be doing in a clinic model). (Mid-sized law firm pro bono coordinator)
Lawyers who would not be comfortable doing pro bono work face-to-face with disadvantaged clients in a clinic environment, or dealing with issues outside their area of expertise, can still gain exposure to the issues facing disadvantaged people by doing pro bono work within their comfort zone as it arises. This can help a pro bono ethos to permeate the firm, especially where lawyers with little interest in social justice are exposed to, and develop a better understanding of the issues.
People who are less likely to put their hand up to do clinic work or join a roster can do other types of pro bono work which is more aligned with their interests or suits their way of working (not committed to doing pro bono at a particular time). Those with philosophical objections to pro bono might not have such a strong view after interacting with real people and seeing their circumstances. (Mid-sized law firm pro bono coordinator)
The case referral model allows people in the firm who might not otherwise be exposed to issues facing marginalised and disadvantaged people to understand and possibly then advocate around these issues from positions of relative influence and power. (Mid-sized law firm pro bono coordinator)
From a pro bono provider’s point of view, while case referral can broaden the range of matters and types of unmet legal need that it assists with, it also allows them to control what matters they will take on.
For a firm that is developing a pro bono practice, case referral is an essential way to find cases and discover unmet legal needs, especially if they don’t have dedicated pro bono partners. (Mid-sized law firm pro bono coordinator)
Having pro bono clearing house referrals further increases the range of matters, and brings in cases involving an area of law that needs to be tested. If pro bono work was only sourced from within the firm, it would largely consist of Deductible Gift Recipient status, review of governance and employment work. (Mid-sized law firm pro bono coordinator)
The case referral model allows the firm to control the cases they will take on – within their area of expertise. (Mid-sized law firm pro bono coordinator)
Case referral can have an impact on access to justice beyond the individual case that is referred. Pro bono providers can develop expertise and experience from having a number of similar cases referred to them which allows them to identify trends and the need for law reform. For example, the National Pro Bono Manager at the Australian Government Solicitor (AGS), Geetha Nair, provided the example of AGS lawyers who provide pro bono assistance at Welfare Rights (now Canberra Community Law) responding to the large numbers of requests for assistance with tenancy by assisting with the development of fact sheets.
Case referral can be responsive to needs as they arise. Through collaboration with clearing houses and community legal centres the firm can see emerging trends and areas of need from patterns in the individual requests for assistance, and this can lead to law reform. (Mid-sized law firm pro bono coordinator)
From the point of view of CLCs, referring a matter for pro bono assistance may provide the benefit of resolving a conflict of interest in the matter, as well as enabling the matter to benefit from having the weight and resources of a firm. The Principal Solicitor at the North Australian Aboriginal Justice Agency (NAAJA), Jonathon Hunyor, explained that ‘having a large firm involved in a matter can carry significant clout. In complicated matters it may also allow a vulnerable person to receive a higher level of service than would be possible if represented by a legal aid organisation or a CLC. Also, a lot of NAAJA’s work involves police, health, welfare etc so local firms are often conflicted out given they do government work. Having assistance from large national firms overcomes this problem.
19.3 CASE REFERRAL: CHALLENGES/LIMITATIONS
Some of the consulted firms suggested that case referral can be less effective in strategically targeting unmet legal need than other models because it addresses unmet legal needs in cases as they arise rather than proactively targeting the needs of a particular client group or area of law. The model relies on those with unmet needs making requests for assistance and appropriate legal assistance resources being available at that time, and therefore it may be a challenge to effect a strategy for meeting greatest needs rather than engaging in convenient or opportunistic pro bono legal 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.’
The reactive nature of case referral may have less of an impact on better resourced large firms which have the flexibility to take on a good case as it comes along, even if they have already reached their quota or target for pro bono work. Smaller firms that do pro bono legal work on a more ad hoc basis, rather than within strict strategic parameters, may also be happy with the trickle of cases that come from case referral.
However, there were others consulted who disagreed with the proposition that case referral is not strategic in targeting unmet legal need, particularly given the role of PBROs in actively identifying target disadvantaged groups, needs and trends to assess where unmet legal needs exist, and in working with community partners to access clients who have relevant matters.
Not sure whether it is true that case referral is untargeted (although it does not target legal need in the same way as a specialist or outreach clinic does). Justice Connect (especially in Victoria) is good at identifying trends in requests for assistance, assessing where unmet legal need exists and seeking out ways to address those needs. While they are reliant to an extent on people coming to them with requests, they are also proactive about finding out where the need is, using contacts with CLCs etc. A good example is the Stolen Generations. (Mid-sized law firm pro bono coordinator)
Some of those consulted also questioned the extent to which firms can adapt their skills to meet unmet need, ‘given that firms already contribute many existing skills to meet existing demands’. It was suggested there is actually quite a narrow range of matters that a firm will take on, namely cases within the firm’s area of expertise, or cases that benefit the firm due to their high profile.
There is a limit to what gets done as the firm is reluctant to take on matters outside of its comfort zone. The firm sticks pretty much to work that partners are skilled in supervising from their paid work. Not many partners are willing to branch out into other areas. For example, property lawyers are not willing to skill up on the Residential Tenancy Act. (Mid-sized law firm pro bono coordinator)
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)
It is difficult to convince some pro bono coordinators to deviate from a very narrow idea of the kinds of cases that the firm will assist with – usually the big sexy cases. (CLC coordinator)
Some CLCs and PBROs expressed frustration that firms are reluctant to do more frontline service delivery work or matters which are more complex and may need a holistic approach to resolve, and wanted more ‘honest’ guidelines about what matters firms will or won’t take on. (See Chapter 5 Where pro bono resources should be directed.)
Firms are looking for referrals that happen in a vacuum. Individual referral often doesn’t work well for a legal centre trying to address problems in a holistic manner, and CLCs need to be careful to only refer matters that are suitable for individual referral. Individual case referral may not work if the problem is complex and does not address the problem in a holistic way. (CLC manager)
Firms don’t always clearly explain that there are specific areas of law/need that they target within the general areas that they promote as their areas of interest (eg the firm states they target indigenous clients in their pro bono practice but actually mean they will assist indigenous organisations). (PBRO manager)
It can be difficult from a pro bono provider’s point of view to define the scope of the assistance that will be provided to a client when a case is referred. Firms need to scope the assistance from the beginning, and be clear about what the firm will and will not do for the client.
Some clients think that when a firm takes on a matter on a pro bono basis that they become their general lawyer indefinitely. (Mid-sized law firm pro bono coordinator)
Another challenge for pro bono providers is managing the expectations of referring organisations, which often want to know the outcome of matters they have referred to a pro bono provider so they can learn from the experience, and also because they want to promote the service with examples of referrals with positive outcomes. However, it is up to the client to decide whether they want to share this information with the referral agency after they have been advised of privilege and confidentiality issues.
Lawyers need to be careful about respecting the privacy of clients when passing on information in a referral context. (Large law firm pro bono coordinator)
Coordination of case referral processes can be challenging for everyone involved, but this can be exacerbated where there is a lack of continuity with pro bono coordinators.
Some firms rotate pro bono coordinators. This takes up CLC resources in establishing relationships and training every time a new coordinator moves into the role. (CLC coordinator)
19.4 FEATURES OF EFFECTIVE CASE REFERRAL
Given that the case referral model relies on those with unmet legal needs to make requests for assistance, it is vital that the existence of pro bono assistance is promoted to those who might need it. The National Pro Bono Manager at the Australian Government Solicitor, Geetha Nair, provided the example of the Registrar of the Office of the Registrar of Indigenous Corporations (ORIC) who travels around Australia and engages with Indigenous Corporations, helping to raise awareness of the existence of pro bono legal services. This can be particularly difficult in regional, rural and remote areas.
A well-organised referral process should provide easy access for people seeking legal assistance, and a timely and professional response to requests received, and should follow detailed and efficient procedures for case intake and assessment (eg recording of contact details, case notes, copies of relevant documents, conflict/means/merit check etc). It is usually best for the referring solicitor to make initial contact with the pro bono provider on behalf of a client, as they can clearly articulate the legal issues or the work required.
Herbert Smith Freehills Pro Bono Counsel / Head of Pro Bono & Citizenship, Australia and Asia, Brooke Massender, notes that in deciding which matters to accept, the Pro Bono Senior Associate and Pro Bono solicitor at HSF would consider if the matter has public interest, if there are any conflicts, whether there is capacity and whether the relevant expertise is available to assist the particular client. She suggests that to make referrals more efficient, referral agencies should build relationships with pro bono departments so they have a good understanding of the types of matters the firm can accept. Strong relationships, coordination and understanding between the referring organisation and the pro bono provider often relies on having a dedicated contact point within both organisations (ie a contact person at a CLC or PBRO, and a pro bono coordinator at a firm). Most of the CLCs consulted found that having direct relationships with firms resulted in much faster case referral than via a PBRO. Some of those consulted suggested that where possible it is better to have more than one contact in each organisation to avoid having the relationship between the partners relying solely on individual people.
It is helpful to have a committed pro bono contact within the firm (but this does not necessarily have to be the pro bono coordinator eg … a very dedicated Special Counsel pro bono contact. (CLC coordinator)
Within law firms, the pro bono coordinator not only coordinates referrals and develops and manages relationships with referral organisations, but also provides essential support to lawyers doing the pro bono work.
It is generally better to have matters coordinated through a pro bono coordinator rather than having individual lawyers taking on cases directly. Junior staff members need supervision and support. If directly taking on referrals in some cases it would place junior staff under pressure without senior members of staff being responsible and assisting them. (It might work when a partner takes on a pro bono matter directly and delegates/supervises the work of to a junior). (Mid-sized law firm pro bono coordinator)
The Partner, Pro Bono Community Support at Lander & Rogers, Jo Renkin, provided the following example of a situation which illustrates the benefit of having a dedicated pro bono coordinator:
Some years ago, a junior lawyer took on the work and, although allocated a supervisor, did not feel supported, and, whether due to a lack of confidence or lack of real interest by supervisor, they did not seek assistance to manage the client or the situation. The client did not understand that by not finalising the understandings it had prior to instructing us to draft an agreement; we had to redraft whole agreements which was unsatisfactory. In addition, the client asked for further work to be done that was outside the scope of the lawyers expertise. The junior was stressed, over-worked and unsure what to say to the client. After follow-up by the coordinator the issues were identified and addressed. Subsequently, supervisors were briefed on their responsibilities and juniors were empowered (through support and information) to speak directly with clients about effective communication and maximising their use of our resource in a reasonable manner. Definitions of our work, protocols and proper engagement letters followed soon after this matter.
For a pro bono provider, one of the main benefits of partnering with a community organisation that will refer cases to it is that the referral agency will perform the triage and merits assessment process for it. However, to do this effectively, the referral agency needs to understand the capacity and interests of the firms it refers to, and avoid giving false hope to people seeking assistance. It is helpful if firms can provide a clear policy so that referral agencies understand what really guides their decision-making on what can be done.
Our firm has a good relationship with the referral organisation, so that they understand the capacity of the firm and the issues they are interested in. We have a great relationship with the PBRO and have told them the kind of cases we want (eg less litigation and more leases). (Mid-sized law firm pro bono coordinator)
The referral organisation needs to understand the profile of the firm. A difficulty with turnover and having secondees and students at clearing houses is that new people need to ask what the firm does and doesn’t do. This could be addressed with a greater focus on providing this information to new staff during induction training (however firms do not have the same expectations of smaller and non-legal organisations). (Large law firm pro bono coordinator)
A pro bono provider is better able to make an assessment about whether they will assist, and is more likely to assist, if a comprehensive brief is provided by the solicitor or organisation who is referring the case which may include, for example, draft submissions (if the matter involves a hearing) and copies of all correspondence with the client, other party and/or courts and tribunals.
Once a matter has been referred, it is important for the pro bono provider to scope the matter and define the limits of the assistance that will be provided to the client, and the likely turnaround time, with an agreed process in place for ending the assistance (that is, when the matter can be handed back to the CLC or PBRO).
Take the time to fully understand the matter at the beginning and obtain appropriate instructions. For example, a lot of unnecessary additional work can be created when a NFP doesn’t fully understand the legal process and changes its ideas/approach after some of the legal work has already been done by the firm. A senior lawyer is usually able to discern when a NFP has not finalised an idea or is at least better equipped to make enquiries and/or manage situations to facilitate a refining of instructions. (Mid-sized law firm pro bono coordinator)
A matter can only be successfully referred where there are lawyers with the necessary skills, experience and interest to undertake the pro bono work. One pro bono coordinator made the point that these skills go beyond the legal expertise of the lawyer, to an understanding of the issues facing marginalised and disadvantaged people and that lawyers who are not familiar with dealing with these clients, especially where it is outside their usual field of expertise, may need additional support to do it effectively.
Lawyers providing pro bono assistance who may be unfamiliar with the kind of clients and issues that arise in pro bono work may need additional support, for example, counselling support via an Employee Assistance Program. (Government pro bono manager)
Support can also be provided in the form of self-care / resilience training, which positions lawyers to deal with the psychological stress that can result from dealing with clients experiencing disadvantaged or marginalisation.
In some circumstances, it may be helpful for the referral agency to remain involved in the matter and deal with managing the client. The Principal Solicitor at North Australian Aboriginal Justice Agency, Jonathon Hunyor, explained that, where necessary, NAAJA remains the local agent who keeps contact with the client after the matter has been referred.
19.5 CASE STUDIES
- 19.5.1 Case study: Case referral (Lander & Rogers)
- 19.5.2 Case study: Document Review Service and Telephone Legal Advice Service (Arts Law Centre of Australia)
- 19.5.2 Case study: Health justice partnership in a rural context (Bendigo Health Outreach)
19.5.1 Case study: Case referral (Lander & Rogers)
The Partner, Pro Bono Community Support at Lander & Rogers, Jo Renkin, provided the following case study:
We represented a remote indigenous community from Central Australia with a discrimination claim against the NT government following the prohibitions placed on bilingual teaching which impacted the bilingual program at the school. Through our representation, which included building relationships with community members and attending at a commission hearing in Alice Springs, we were able to advocate on the community’s behalf, resulting in their being given permission to continue the program. The community members were able to participate in hearings, have their voices heard in the highest places and feel empowered. This was gratifying. We worked closely with the Human Rights Law Centre to have the client identified and to build a meaningful relationship with the client. The lawyer who spent over 2 years working on the matter describes it as the best work she has done. Partners were actively involved supporting the lawyers who did the work also and this added to the firm’s sense of purpose and commitment to providing access to justice. Without the assistance of a referral body we would not have known of this matter. The firm’s pro bono policy made it easy to consider the merits of the matter at the outset and make a decision to pursue representation even though at the time our capacity was limited.
Features that made it effective
- Strong relationships between referral agency, pro bono broker and pro bono provider.
- Support from partners at the firm for the lawyers doing pro bono work.
- Firm’s clear pro bono policy made the merits assessment process easy.
19.5.2 Case study: Document Review Service and Telephone Legal Advice Service (Arts Law Centre of Australia)
Arts Law gives legal advice to artists and arts organisations across all art forms on a wide range of arts-related legal and business matters. Such matters include contracts, copyright, moral rights, trade marks, business names and structures, defamation, insurance and employment. Legal advice is free or low-cost depending on the nature of the enquiry. Arts Law accepts requests for legal advice through their online form, and assists by either providing telephone legal advice or a document review (depending on whether the provision of legal advice involves reviewing any documentation).
The Document Review Service (DRS)2 is available to Arts Law subscribers. Subscribers send any document that they want explained to Arts Law. An Arts Law lawyer (in-house or external volunteer lawyer or law firm acting on behalf of Arts Law) then reviews the document and holds a review consultation with the subscriber to explain the document and provide legal advice in relation to that document.
The DRS was originally provided in evening advice sessions staffed with individual volunteer lawyers. The DRS and Telephone Legal Advice Service (TLA) is now supported by a panel of around 200 lawyers around Australia who are prepared to review contracts and give advice. Among these lawyers are many sole practitioners and small boutique firms that specialise in the area, as well as several larger firms. Other firms like Minter Ellison, Herbert Smith Freehills and Allens have supported Arts Law for more than 20 years.
The TLA works by having Arts Law staff/volunteers take instructions from clients, and then send a summary of the issue and the party details to the firm to undertake conflict checking. The firm provides advice (under Arts Law’s insurance) and prepares a comprehensive file-note which is checked by Arts Law. Arts Law will provide feedback and mark up the advice if necessary. The firms currently assisting with the TLA Allens, Herbert Smith Freehills and Holding Redlich.
- Involvement of a broad range of legal practitioners. Small firms/sole practitioners can be particularly motivated to do a good job with their pro bono work because they have a vested interest in the success of the artist’s work. If the artist is successful then they will often go back to the lawyer on a fee-paying basis (Arts Law needs to be clear that there is to be no touting and that lawyers cannot refer Arts Law clients to themselves).
- The work is interesting for the volunteer lawyers who, for example, might be doing IP work all day but do not have the opportunity to consider a moral rights issue in their usual work.
- The service uses lawyers/parts of firms that may not normally do much pro bono work, and therefore involves more lawyers in pro bono work than would otherwise be the case. For example, Arts Law is working with a medium-sized firm to develop legal resources for game developers who would not be able to afford legal assistance, including resources to skill up the legal community and technology start-ups (standard documents, factsheets, and community legal education sessions). It was so far outside the firm’s traditional concept of pro bono that the partner at the firm asked Arts Law for confirmation that this was in fact pro bono work.
- Many firms/volunteers go well beyond expectation in the amount of assistance they provide. Allens’ for example, initially provided constitutional review for a client, but ended up doing significant work that resulted in the client’s premises being transferred into its own name. DLA Piper initially reviewed a music agreement, but ended up representing the client, who was suffering from a mental illness, in litigation concerning transfer of the client’s property without their consent or knowledge.
- Making sure that all the lawyers in the network are utilised so they remain engaged with Arts Law (around half of the Panel members are active).
- Occasionally, poor quality of advice (usually because they haven’t thought of something rather than providing wrong advice) or where the matter has fallen to the bottom of the priority pile. For example, Arts Law has had a negative experience with a medium-sized firm which was unresponsive and feared that a potential negligence claim would arise from the delays. This had happened twice with the same firm.
- Managing ongoing casework (involving a more complex matter that is referred and where the artist becomes the client of the pro bono provider) is more difficult than telephone advice or document review. Telephone advice and document reviews involve more discrete/contained tasks, with a merits review and summary of issues prepared by Arts Law so all that the pro bono lawyer needs to do is provide the advice and write a file-note to close the case. Even though casework is referred, Arts Law stays in contact with both the client and the firm to ensure that the matter progresses smoothly, to provide a liaison role with Indigenous clients who are unaccustomed to dealing with lawyers, and to assist where needed. Arts Law maintains a copy of the file which is included in its cross-check as a backup measure. Pro bono lawyers are sometimes reluctant to say that a matter has not actually progressed.
- It is more difficult to find expertise nationally than in the major cities. About half the panel is based in Sydney; however, given that most of the work is Federal, it is not as much of an issue as it could be in other areas of law. Wills and debt recovery work is jurisdiction-specific, but it is also easier to find lawyers to do this work.
Features that make it effective
- Match of needs of clients with the existing skills of firms/lawyers. Even though the clients are not commercial, the nature of the legal assistance they need is commercial.
The type of client/matter that arises during the Arts Law service is a good fit for the firms expertise and within the comfort zone of the lawyers volunteering. (Large law firm pro bono coordinator)
- The pro bono work is a match with the interests of lawyers.
- Arts Law undertakes training with the firms and volunteer lawyers.
- Arts Law provides an easy ‘package’ for the pro bono lawyers (with a summary of the matter, clear instructions and the relevant documents).
The number of cases (a couple per month) is manageable for the firm. (Large law firm pro bono coordinator)
- Arts Law has an established process for monitoring the quality of pro bono work and for discontinuing the use of volunteers who are not delivering services at the required standard. Arts Law has an automated message system that sends reminders to the lawyers to provide file notes. If lawyers do not provide file notes, Arts Law applies a ‘three strikes and you’re suspended’ policy.
- Arts Law constantly nurtures its pro bono relationships and seeks to extend its network. For example, for a film law session in Brisbane it asked the screen resource agency to recommend people.
- The Director of Legal Services at Arts Law has experience running a litigation practice and can credibly discuss strategy with firms and address any under-performance.
19.5.3 Case study: Health justice partnership in a rural context (Bendigo Health Outreach)
In 2006 the Loddon Campaspe Community Legal Centre (LCCLC) established the Palliative Care Legal Program at Bendigo Health (Bendigo campuses) in partnership with social workers and local solicitors. The program provides legal advice and assistance to disadvantaged and marginalised patients who would not be able to access a private solicitor, and patients receiving palliative care at the hospice or in their homes.
The Older Persons Legal Program aims to provide services that are face-to-face, are based in the local community, adopt a multi-disciplinary approach, are in the best interests of the palliative care or older person and take a least restrictive approach. Legal information and advice services are generally provided free of charge, although eligibility criteria is applied where people require assistance in the form of ongoing casework activities. Numerous solicitors in the local area have participated in the Program.
Given that older people who are admitted as patients often present with a convergence of health and legal issues that require a collaborative approach, this multidisciplinary approach provides opportunities for lawyers and social workers to work together to build on knowledge and expertise. This approach also potentially has the dual benefits of resolving a patient’s legal issues, while contributing to important health outcomes. Free legal assistance is provided in a range of legal matters, including: enduring powers of attorney, wills, age discrimination, family care arrangements and accommodation. The LCCLC is particularly interested following up any issues of elder abuse.
One issue for debate is the extent to which this project is really targeting areas of greatest need. ‘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.’3
In his former role as Coordinator at Loddon Campaspe Community Legal Centre, Peter Noble explained that many of the clients might have assets but have no cash flow. ‘A simple will or POA [Power of Attorney] can be done quickly. The lawyers involved in the service are comfortable with the idea of providing the service to people who are not necessarily without the means to pay for it. Means is only one of three considerations for providing the service: 1) Capacity to pay, 2) Urgency and 3) Vulnerability. If the matter is more complex, and the person has capacity to pay, then the service will end the retainer and refer the person.’4
The process from referral to resolution follows a simple, seven-step approach that enables clear communication and accountability between the parties as follows:
- The hospital/palliative care social worker identifies the patient requiring legal assistance.
- The social worker records the patient’s details on a referral form with the patient’s signature, then faxes the referral form to LCCLC.
- LCCLC assesses whether the referral falls within the casework guidelines and is urgent. LCCLC will also obtain further information if necessary.
- LCCLC emails general information about the patient and the request for assistance to the list of pro bono lawyers engaged with the program.
- When a pro bono lawyer indicates they are able to assist the patient, LCCLC emails the referral form (with patient details) to the pro bono lawyer who confirms receipt. At this stage the client formally becomes a client of the pro bono lawyer.
- The pro bono lawyer makes contact with the social worker to arrange a suitable day and time to see the patient.
- The pro bono lawyer undertakes the legal work and provides advice on additional matters if these fall within their expertise. The LCCLC has no further involvement in the matter unless the pro bono lawyers refers the matter back to the LCCLC.
- The Program creates targeted, structured and supported 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). The Bendigo Health Outreach service currently has 13 lawyers volunteering.
- Means testing of potential clients.
- Convincing local lawyers that they have, or can quickly develop, the required expertise.
- Overcoming perceived conflicts.
Features that make it effective
- Ongoing training for lawyers on how to deal with highly vulnerable and ill clients.
- Ongoing training with partner agencies regarding what health workers can and can’t do, what they can and can’t witness. Health workers are critical to the success of the service as they make patients aware of it. The service is providing training to all social workers in the aged care division of the Department of Health.
- The client’s legal file and all relevant documents are maintained by the pro bono lawyer. The advice and casework is covered by the pro bono lawyer’s professional indemnity insurance and not the professional indemnity insurance of LCCLC.
19.6 CASE REFERRAL THROUGH PRO BONO REFERRAL SCHEMES AND ORGANISATIONS
Pro bono referral schemes and organisations (collectively PBROs) provide an accessible and organised referral pathway for many matters which might not otherwise reach pro bono assistance providers. They vary considerably in scope and scale in different jurisdictions.
Pro bono referral schemes, which include those run by professional associations (law societies and bar associations) and Law Access in WA,5 facilitate the provision of a significant amount of pro bono legal assistance, particularly by small and mid-sized firms. Individual practitioners or law firms can register with these schemes which provide pro bono referrals in a variety of areas of law for people who cannot afford to pay for legal assistance and do not qualify for legal aid. The schemes provide an accessible contact point for those seeking pro bono assistance. They assist practitioners by undertaking a means and merits assessment before referring matters to them, but giving them discretion to accept or decline referrals on a case-by-case basis after considering whether they have capacity and expertise to take on the matter. For practitioners and firms which already make a significant pro bono contribution, registering with a referral scheme offers a way for their contribution to be recognised and counted. PBROs provide over a quarter of all referrals to law firms with 50 or more lawyers.6
Pro bono referral organisations (also known as clearing houses, particularly in jurisdictions outside Australia)7 are member organisations which will generally refer appropriate matters to their members who have indicated an interest in undertaking pro bono matters. Members include law firms, the legal sections of corporations, and individual barristers and solicitors. Although each referral organisation has its own merit-based selection criteria, in some States the matters need to also satisfy public interest criteria before a pro bono provider is approached to find out if they can assist.
Before the existence of JusticeNet, case referral was very informal and difficult to keep track of. The pathways to legal assistance were: Legal Aid Commission, CLCs, informal pro bono referral, Hardship and Public Interest and Test Case Schemes (Commonwealth funding for matters where there was an issue of Commonwealth law) and Litigation Assistance Fund (interest from lawyers trust accounts). However even with JusticeNet, the demand for legal services far exceeds the available pro bono resources and JusticeNet sometimes contacts CLCs to try to refer matters where appropriate. (CLC solicitor)
We have been able to refer more clients to pro bono assistance with the help of JusticeNet. Prior to its existence, most CLC staff built up their own personal list of barristers/law firm people who were willing to assist in different areas. It was hard to keep track of people on the list as they moved jobs etc. JusticeNet has been able to capture much of the pro bono assistance that is available in SA (including hidden pro bono that lawyers were doing on an ad hoc basis and whatever amount of assistance that national firms have to offer in Adelaide) and made it accessible. Having a visible coordination point like JusticeNet also encourages lawyers to do more pro bono, especially with promotional events like the Walk for Justice. (CLC solicitor)
PBROs are in a unique position to develop relationships with firms, barristers and CLCs that can facilitate communication between all of them.
Many pro bono relationships rely on personal contacts between particular CLC staff and particular barristers or law firm staff. Given that there can be a relatively high turnover in CLC staff, we seem to have become a reliable channel of communication between different parts of the profession. A request for assistance will reliably reach the Bar in a timely manner if it is made via us and is not reliant on having someone in a CLC who knows a particular barrister. (PBRO manager)
Having a PBRO referral organisation involved in the referral of a matter also provides a client with an alternative option for voicing concerns about the timeliness or quality of pro bono assistance.
We also provide an additional quality control mechanism. For example, if a CLC has concerns about pro bono work being done for them via a referral we have made, they can raise those concerns with us rather than the lawyer or firm directly. (PBRO manager)
However, a potential disadvantage of the PBRO model is the loss of personal contact and relationship building that facilitates the provision of so much pro bono assistance.
The potential disadvantage of having a [PBRO] 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. (CLC principal solicitor)
Australian Pro Bono Centre, Australian Pro Bono Manual (3rd edition), LexisNexis, Sydney, 2016, Chapters 1.16 Training and skills, 2.1 Casework procedures, and 2.2 Risk management.
1 See for example the Centre’s online Law Firm Directory at http://probonocentre.org.au/legal-help/directory/.
3 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.
4 Note that Albury-Wodonga CLC has used a different model. The CLC triages clients, assessing them for a $50 will voucher that will be accepted by a number of firms which have signed up for the service.
5 For a full list of pro bono referral schemes and organisations see Australian Pro Bono Centre, Pro bono referral schemes & organisations, http://probonocentre.org.au/legal-help/pro-bono-referral-schemes-and-organisations/.
6 National Pro Bono Resource Centre, Fourth National Law Firm Pro Bono Survey (Australian Firms with fifty or more lawyers) — Final Report (2014) p 42-6, http://probonocentre.org.au/wp-content/uploads/2015/09/4th_National_Law_Firm_Pro_Bono_Survey_2014_Final_Report.pdf.
7 For more information about the pro bono clearing house model see PILnet and A4ID, Pro Bono Clearinghouse Manual (2011), http://www.pilnet.org/public-interest-law-resources/52-pro-bono-clearinghouse-manual-resources-for-developing-pro.html.