- 24.1 Co-Counselling: At A Glance
- 24.2 Co-Counselling: Benefits
- 24.3 Co-Counselling: Challenges/Limitations
- 24.4 Features of Effective Co-Counselling
- 24.5 Case studies
In this model, firms and CLCs work together to undertake public interest litigation, either for an individual client or as a law reform initiative. Typically, the CLC does the initial work establishing the merits of the case or issue and maintains the client relationship. The firm may then give written advice, do background research and draft court documents as required. The firm or the CLC (or both) may be on the record.
In this way, the pro bono provider increases the capacity of a community legal organisation to address unmet legal need by undertaking public interest litigation, with a contribution of expertise, skills and other resources.
One large law firm pro bono coordinator questioned whether the concept is ‘something borrowed from American television’, which does not really work in the Australian legal context.
While there may be strategic/political reasons for wanting to have a law firm and a CLC on the record in a piece of litigation, ultimately decisions need to be made about who is being instructed by the client, and who takes responsibility for the work eg who signs off on pleadings. (Large law firm pro bono coordinator)
Most of the pro bono coordinators consulted said that firms and CLCs like to do co-counselling but that it does not happen very often. One large law firm pro bono coordinator said that it had been difficult for them to find co-counselling opportunities because when CLCs find a good case to run they tend to try to hold onto it, so the firm has ended up running test cases on its own.
The Director of Community Engagement at Allens, Nicky Friedman, said that Allens works closely with CLCs on many litigious matters. The firm has experience of a variety of collaborative arrangements with referring CLCs from a full co-counsel arrangement where both firms have been formally engaged by the client (for example with the Fitzroy Legal Service on the Occupy Melbourne matter), to instances where the firm has taken the full running of the matter but relies on the CLC to maintain client contact (for example with Refugee Legal in several High Court asylum seeker matters) and still other matters where the CLC has been on the record and taken the lead but Allens has assisted significantly with background research, mapping strategy and providing resources. Nicky noted that different models bring different advantages and challenges and in each case it is important to consider which approach will best service the client’s needs at the time.
More commonly, pro bono is provided to assist CLCs with their public interest litigation where the CLC uses a firm as a sounding board or lifeline, but remains the sole representative on the record, with responsibility for the matter. This kind of mentoring assistance can also be provided by CLCs to law firms. For example, in the early days of the victim’s compensation practice at Clayton Utz, lawyers were mentored by lawyers at Marrickville Legal Centre, who were available for advice and questions.
Mentoring of CLC lawyers is more likely e.g. in employment law. The CLC tells the firm the facts of the case and asks for an opinion or asks for the firm to review a statement of claim or calls about the matter from time to time to discuss strategy. (Mid-sized law firm pro bono coordinator)
See also Chapter 25 ‘Secondary consults’ or ‘phone a friend’ assistance.
24.1 CO-COUNSELLING: AT A GLANCE
Features of effective co-counselling
24.2 CO-COUNSELLING: BENEFITS
Many of those consulted said that clients generally view co-counselling arrangements positively as they feel supported by a big team with different skills.
It helps the client to feel more comfortable with the idea of instructing corporate lawyers, if they can continue to maintain an existing relationship of trust with the CLC lawyer. (Large law firm pro bono coordinator)
From the perspective of CLCs, co-counselling enables a CLC to be the public face of the litigation or campaign, supported by expertise or resources that the CLC may lack but which the pro bono provider can assist with.
The resources provided by a firm can also give a CLC a level of clout that it would not otherwise have. For example, solicitors at Caxton Legal Centre explained that lawyers from Minter Ellison contributed two months of work to a case (see case study at 24.5.2). The volume of correspondence from the other side would have been intimidating if Minter Ellison had not been there to assist with responding.
Co-counselling also helps a CLC to gain new skills in a way that case referrals may not:
If a CLC completely refers out a case that they don’t have the knowledge to run on their own, they end up dumbing down even more. If they work with people who have the expertise, they increase their skills. (CLC coordinator)
The transfer of skills and knowledge is not necessarily only from the firm to the CLC. Co-counselling often involves skilling-up of both CLC lawyers and pro bono lawyers in areas in which they are unfamiliar, increasing overall capacity to meet unmet legal need.
You can play to the different strengths of both the law firm and the CLC. (Large law firm pro bono coordinator)
24.3 CO-COUNSELLING: CHALLENGES/LIMITATIONS
A co-counselling partnership can enable a CLC to run a public interest litigation matter by providing the necessary expertise, experience or resources on a pro bono basis. There is a risk, however, that the CLC will be left in a difficult position if the pro bono support is not continued throughout the matter.
Some of those consulted expressed concern about how to structure the co-counselling arrangement in a way that skills up CLC staff without wasting the firm’s time and resources in an arrangement that does not work well for either partner. An example was given of a co-counselling project involving a large firm and two CLCs. One of the CLCs had no experience with co-counselling arrangements and its relatively junior lawyer was unsupervised and looking for support from the firm. ‘It was not the firm’s role to provide the CLC lawyer with supervision. The other CLC had to be more involved than usual. It all worked out fine, but took more work from all parties.’
It is very challenging for us when CLC lawyers are unfamiliar with complex litigation, and have limited experience of instructing barristers. (Large law firm pro bono coordinator)
If a CLC is unable to provide any instructions at all to a firm, then it raises the question why the CLC is involved at all. (CLC coordinator)
One large law firm pro bono coordinator also stressed the need to ensure the best interests of the client, whose interests would not be served by being represented by lawyers who lack the expertise or experience to run the matter.
Is it in the client’s best interest for them to be represented by a lawyer who does not have sufficient experience about the legal issues faced in the case? If your lawyer needs to be shadowed by another firm or CLC, is there a good reason why that other firm or CLC should not be representing you? (Large law firm pro bono coordinator)
Using the prestige of the firm to promote the work of a CLC or firm in a co-counselling arrangement is not necessarily in the best interests of the client. (Large law firm pro bono coordinator)
Another pro bono coordinator expressed the view that co-counselling could not really be an equal partnership if the CLC lawyers lacked litigation experience and could only contribute by managing the client communication, describing this as ‘social work’ rather than legal work. They suggested it would be better for the CLC lawyer to shadow the firm so as to learn litigation skills, rather than calling it co-counselling.
The Executive Director at Western Legal Service, Denis Nelthorpe, thought that criticism about the legal skills of CLC lawyers may be due to the archaic systems, facilities and surroundings at CLCs, which may not portray a professional image, but which are no reflection of skill levels. The principal solicitor at the Public Interest Advocacy Centre (PIAC), Alexis Goodstone, suggested that firms could commit to running several matters with a CLC so that they can build up skills in a meaningful way. ‘It takes more than one go at litigation to develop/refine skills.’ However, it is not only CLCs that might lack the expertise or skills to run a matter.
Challenges include that we receive few requests and that we don’t always have expertise in the areas in which co-counselling is sought. Employment law is the exception and we have had several good co-counselling relationships in that area. (Large law firm pro bono coordinator)
Having two sets of lawyers making decisions and interacting with the client can be difficult, especially when they have different views about what is the best outcome for the client. An example was given of a disability discrimination matter where the large firm advised the client what the likely outcome would be and assisted the client to negotiate an outcome that the firm considered to be positive for the client. However, the firm felt that the CLC had raised the client’s expectations about what the outcome should have been, leading the client to feel they had settled for less than they should have.
There can really only be one leader and only the client can instruct. There is a risk that decisions will be delayed and clients will be confused by having to consult with two sets of lawyers. (Large law firm pro bono coordinator)
The cultural differences between firms and CLCs can make communication between them difficult, and can lead to dissatisfaction from both the firm and partner CLC about each other’s level of contribution.
The firm thought that the CLC was unnecessarily engaging with clients to appear more involved in the litigation than they actually were, and the CLC thought the firm wasn’t adequately looking after its clients when there was no evidence of this. In another case the CLC continued to be involved in the matter after the firm thought that their involvement should have ceased. This was a case where there wasnt meant to be co-counselling. (Mid-sized law firm pro bono coordinator)
Given that co-counselling opportunities are rare and firms may be reluctant to support such a resource intensive matter, it is important to carefully plan and assess whether a co-counselling arrangement is going to work, to encourage future partnerships of this nature.
The consequences of having a co-counselling arrangement that doesn’t work as well as planned and ends up requiring more resources is that it can lead to greater scrutiny of future proposals which can make it difficult to convince the firm to run test cases. A strong, established pro bono practice is able to take more risks and withstand more internal scrutiny than a developing practice. (Large law firm pro bono coordinator)
24.4 FEATURES OF EFFECTIVE CO-COUNSELLING
The best way to avoid problems associated with co-counselling is to conduct an initial risk and resource assessment so both the CLC and the firm agree on the extent of assistance to be provided, and to define the roles to be played by the CLC and the firm, so both have a clear sense of who is responsible for different tasks early on. Pre-planning might involve decisions about how the firm and the CLC will work together on the matter, including who is the lawyer on the record, who has the solicitor-client relationship with the client, each party’s areas of responsibility, and what the partners are hoping to achieve with the co-counselling arrangement.
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)
A co-counselling arrangement may be more likely to succeed where the subject matter is contained to an area of law in which the firm has expertise and the CLC has some knowledge. While it may not be critical for the CLC lawyer to have pre-existing knowledge, it is important for CLCs to be honest about their capability and resources.
Most CLCs do not have the expertise or resources to contribute as an equal partner. Refugee and Immigration Law Centre (RILC) [now Refugee Legal], Human Rights Law Centre (HRLC), Public Interest Advocacy Centre (PIAC) and Consumer Action Law Centre (CALC) stand out because they have staff who are extremely competent and had the expertise before they joined those centres as well as developing it further working there. CLCs need to specify the amount of time and level of expertise of the person that will work on the matter from the CLC end. Most will need a bucket, not a trickle of assistance from a firm, but this should be clear from the outset. (Melbourne-based CLC coordinator)
A pre-existing strong relationship between the firm and the CLC can be very helpful, especially since planning cannot take every possibility into account.
There needs to be a relationship that can adapt to changes in circumstances, eg in a case where the firm did not expect to go to trial, the CLC did not do the work that the firm expected them to do so extra resources were required from the firm. A good relationship was maintained between the firm and the CLC, but the project involved more work and stress than expected. (Large law firm pro bono coordinator)
Having a pro bono coordinator who understands the approach of both the firm and the CLC and can help to resolve differences. (Mid-sized law firm pro bono coordinator)
To ensure the best interests of the client are being taken into account, one large firm pro bono coordinator said it was important for the client to be given the choice about whether the firm or the CLC makes decisions where there is a disagreement about an aspect of the case.
If a client is to be moved from one solicitor to another, there needs to be a handover where both the old and the new solicitor meet with the client. (Large law firm pro bono coordinator)
24.5 CASE STUDIES
- 24.5.1 Children in detention (Public Interest Advocacy Centre and Maurice Blackburn)
- 24.5.2 Gleneagles (Caxton Legal Centre Inc and Minter Ellison)
24.5.1 Case study: Children in detention (Public Interest Advocacy Centre and Maurice Blackburn)
The Public Interest Advocacy Centre (PIAC) partnered with Maurice Blackburn (MB) after PIAC identified a systemic issue through its advocacy work for children in detention. Civil claims for unlawful search, wrongful arrest, assault and battery were being settled by the NSW State Government as they did not want cases that could be used as precedents. Juveniles were being arrested and held overnight because the police were using out-of-date information about their bail conditions.
PIAC saw that a systemic problem was not being addressed and in 2011 brought a class action in the Supreme Court of NSW. They had one lead applicant and seven others in the same position. Clients had the opportunity to opt out and run their own action if they chose to, and would not then be bound by the class action decision. PIAC already had a relationship with MB, as one of MB’s principals is on the PIAC Board, and had informal discussions with that Board Member. Both PIAC and MB felt it was a natural fit and that a co-counselling arrangement could work.
The matter settled in August 2015 for at least $1.85M.
- Uncertainty about how much work might be involved. Once the action commenced there was no turning back, but PIAC had limited resources and little experience with class actions. The number of clients quickly grew to over 30. Even after the settlement, potential clients had until October 2015 to register to receive compensation.
- Firms often want to be the only ones on the record as they are worried about risk and want full control, although there are also situations where firms do not want to be publicly connected with a matter that has political implications or where there is the potential for conflicts (although MB did not take this view).
Features that made it effective
- Using each partner’s strengths. PIAC had developed expertise in client management, dealing with vulnerable young clients (for example, the practicalities of finding clients who change their mobile phone number often), so PIAC was the client contact point. While PIAC understood the law (eg the elements required to prove a tort/false imprisonment claim), MB had expertise in running class actions and how to define a class. MB chose the lead applicant and drafted the pleadings. PIAC was clear from the outset about their resource constraints; for example, their lawyers had much less administrative support than those at MB.
- Planning allocation of tasks. The planning was carefully thought through before commencing work on the matter, trying to think of everything that could happen. Planning started one year before commencing action. PIAC had to think about what kind of case this might become, who to partner with and what they would bring to the table. While the partners consulted each other on everything, they made decisions early on about who would do what, for example, drafting the pleadings and correspondence (MB) and collecting transcripts and juvenile justice files (PIAC). PIAC managed the files directly so there was no doubling up of administrative work. Both partners attended court and both had separate costs agreements with the clients (jointly and severally liable). Robust discussions took place to work out a process for communication and resolving differences in approach, including fortnightly meetings and task lists. Initially there were more emails than meetings, but it depended on what was happening at the time. The partnership worked as long as both parties were consulted and happy.
- Flexibility to adapt to unforeseen circumstances. For example, when PIAC lost a few staff members, MB agreed to do more of the client work than originally agreed.
- Respect on both sides of the partnership. It was a genuine collaborative relationship. Both PIAC and MB were on the record, as they wanted to feel like equal partners all the way through the case. As both were on the record, both partners also took equal responsibility and relied on each other’s expertise. Both were mentioned in media releases and interviews as the exposure helped everyone involved. Note, however, that the judge raised concerns about potential confusion for the respondent and client in relation to having both PIAC and MB on the record, even though the respondent did not originally raise it as a concern.
- Compatibility of ethos and skills. PIAC wanted to partner with a firm that had the same ethos and assessed MB, given their history of class actions and slogan ‘fight for fair’, as being a natural fit. Most firms are more experienced in defending class actions rather than running them as the plaintiff.
Think about the type of case, the type of firm and type of arrangements. (Alexis Goodstone, Principal Solicitor, PIAC)
24.5.2 Case study: Gleneagles (Caxton Legal Centre Inc and Minter Ellison)
Minter Ellison partnered with Caxton Legal Centre Inc (Caxton) in a case involving the eviction of a group of 30 people from the Gleneagles on the River retirement village. It was an urgent matter as the residents had been given a notice to vacate.
In early April 2009, Caxton began work on the matter by assisting the residents to lodge an application with the Commercial and Consumer Tribunal (CCT)1 disputing the notices to vacate. A solicitor at Caxton pitched the matter in a meeting with Minter Ellison which agreed to help run the matter.
Each of the clients entered into a Deed of Authority to Act. In this Deed the clients appointed Caxton Legal Centre as their agent in relation to the application to the CCT, giving Caxton the authority to:
- engage Minter Ellison to act on their behalf in relation to the Application;
- provide instructions or directions to Minter Ellison in relation to the Application;
- authorise the deduction of any moneys held on the clients’ behalf in any trust account;
- authorise the payment (or incurring) of any invoices, disbursements or related fees and charges
- engage counsel; and
- provide instructions to settle or compromise the Application.
Caxton Legal Centre Inc as duly authorised representative of the clients then entered into a Client Agreement with Minter Ellison.
Caxton managed the day-to-day client contact and sought all instructions from clients, obtained statements and prepared affidavit evidence. They also provided all instructions to Minter Ellison and received drafts of all correspondence sent by Minter Ellison in relation to the matter. The Caxton solicitor running the matter worked full-time on the matter for approximately three months. Other solicitors from Caxton also provided assistance in taking instructions and drafting material as required.
Minter Ellison agreed to assume the conduct of the Application in the CCT. They were the solicitors on the record and the contact point for the other party’s solicitors. They prepared all correspondence to the Tribunal, the clients and the other party. They prepared all Tribunal documents, settled all affidavit evidence, including that of expert witnesses. They also engaged and instructed counsel. Minter Ellison had a senior associate and two solicitors in their litigation team working on the matter, dedicating approximately 675 pro bono hours to the matter.
Senior and junior counsel were also engaged on a pro bono or reduced-fee basis.
Even though the Caxton solicitor running the matter was a law graduate who had only recently been admitted to practice, the lawyers from Minter Ellison quickly assessed her competence, established a relationship of mutual respect and trust with her, and the relationship worked very well.
The Tribunal ordered that the parties attempt to mediate the matter. While the mediation was largely unsuccessful, representatives for the other party made a range of settlement offers to the residents and the matter settled out of court the day before the hearing.
- The clients felt supported by a big team.
- Lawyers from Minter Ellison contributed two months of work (675 pro bono hours) to the case.
- With the benefit of Minter Ellison’s considerable resources to assist them, Caxton’s lawyers were not intimidated by the volume of correspondence received from the other party’s firm, and were able to respond.
- Caxton was able to harness the expertise and resources of a top tier firm while maintaining control of client management.
- Each partner was able to work to their strengths. Minter Ellison was better equipped to manage litigation of this nature and Caxton was better placed to manage a client group of this nature.
Features that made it effective
- Planning and defining the roles of the partners at the beginning. It was agreed at the beginning of the matter that work would be distributed between the lawyers involved according to the areas of the matter that particular lawyer had responsibility for. For example, Minter Ellison, as solicitors on the record, drafted all documents for the CCT, including the application, subpoenas and documents relating to disclosure. Caxton had responsibility for client management, including collecting and completing the initial drafts of all affidavit evidence. Junior counsel was also heavily involved in settling all documents.
- Regular communication. All the solicitors, from both Caxton and Minter Ellison, spoke at the beginning of each day to work out what needed to be done and divide up the work. They communicated via email when necessary during the day to exchange material and information they had obtained, and spoke again at the end of the day to discuss the outcome of the day’s work and plan for the following day. The constant contact was necessary given the large group of clients and the speed at which the matter progressed.
- Relationship of trust and mutual respect. The lawyers from Minter Ellison, as well as senior and junior counsel, all had experience working on pro bono matters so they understood the clients and trusted the Caxton solicitor, supporting and respecting her opinions/expertise even though she had only recently been admitted to practice.
The Minter Ellison Pro Bono Coordinator in the Brisbane Office really values pro bono and recognises that CLC lawyers have chosen to work in CLCs because they are passionate about the work. (Klaire Coles, solicitor at Caxton Legal Centre Inc)
Australian Pro Bono Centre, Australian Pro Bono Manual, 3rd edition, LexisNexis, Sydney, 2016, 1.7.8 Co-counselling.
1 Since 1 December 2009 domestic and commercial building disputes have been decided by the Queensland Civil and Administrative Tribunal.