By assisting not-for-profit or community organisations, pro bono providers are supporting organisations so they can use their resources to assist those in need rather than paying for legal services.
Pro bono providers assist NFPs with advice on areas such as governance, deductible gift recipient (DGR) applications, commercial agreements and incorporations. They may also provide training to NFPs on legal issues affecting them.
See also Chapter 13 Non-legal not-for-profit organisations and charities.
- 28.1 Assistance to Organisations: At a Glance
- 28.2 Assistance to Organisations: Benefits
- 28.3 Assistance to Organisations: Challenges/Limitations
- 28.4 Features of Effective Assistance to Organisations
- 28.5 Case studies
28.1 ASSISTANCE TO ORGANISATIONS: AT A GLANCE
Benefits
Challenges/limitations
Features of effective assistance to not-for-profit organisations and charities
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28.2 ASSISTANCE TO ORGANISATIONS: BENEFITS
By assisting organisations, law firms use their core skills to support organisations whose core business is assisting those in need. The legal issues faced by NFPs are familiar to lawyers working with commercial organisations (eg tax, intellectual property, insurance),1 and match the skills and experience of many lawyers available to do pro bono work. Assistance to NFPs also provides good opportunities for in-house corporate lawyers to become involved in pro bono as the issues that arise are commonly in their area of expertise (for example, corporate governance). See also Chapter 15 In house/corporate lawyers.
For pro bono providers, the match of skills and experience means that they do not need to invest any additional resources in training lawyers to acquire the skills needed to assist NFPs. It also provides them with an opportunity to work with a client who is or who could potentially become a commercial client. For NFPs, this means that obtaining assistance can often be easier than for individuals. The results of the Centre’s Fourth National Law Firm Pro Bono Survey revealed that about 65% of the pro bono work undertaken by large law firms is for organisations rather than individuals.2
From the perspective of pro bono providers, it is also often easier to communicate with the professional staff of NFPs, who are accustomed to asking for help in order to survive and who can clearly articulate their needs, rather than with clients who are profoundly disadvantaged individuals with complex problems outside the normal experience of many corporate lawyers.
The kind of pro bono assistance that NFPs need is usually well within the range of skills and expertise that law firms possess as part of their day to day practice, and NFPs are easier clients to deal with than other disadvantaged client groups, so at least in theory NFPs should be attractive to firms as potential pro bono clients. (Not-for-profit organisation manager)
28.3 ASSISTANCE TO ORGANISATIONS: CHALLENGES/LIMITATIONS
Non-legal NFPs may be unfamiliar with the relevant areas of law and therefore may not recognise that a problem is a legal issue or may not seek legal assistance. Those that do seek legal assistance, especially NFPs that are smaller or recently established, may not have a dedicated or consistent contact point for a pro bono relationship, let alone a lawyer who can effectively communicate about the legal issues.
We have had some disastrous relationships with NFPs that are non-responsive. By the time they respond to correspondence or requests for instructions, the law might have changed. (Large law firm pro bono coordinator)
It is sometimes difficult to establish that the person calling us has the authority to speak on behalf of the NFP (rather than being a rogue employee or member asking for advice without the knowledge of the NFPs Board). (PBRO manager)
Many not-for-profit organisations may also be unfamiliar with how law firms work and may therefore have unrealistic expectations about the timeframe for completion of the work.
Just look at it or ASAP is not a helpful timeframe and 24 hours is not fair. We try to educate our clients about how firm processes work. If the matter is very urgent, the organisation may need to pay for the advice. (Large law firm pro bono coordinator)
It can be difficult for pro bono providers to assess the merits of assisting a NFP organisation, especially where it is a little-known or new organisation, so firms may be reluctant to allocate limited pro bono resources to assisting these organisations.
The status of an organisation as a NFP or charity (how it is structured and whether it has DGR status etc) can be obtained without any assessment of whether the organisation is good or bad. (Large law firm pro bono coordinator)
We generally steer away from new set ups and advice on DGR applications, preferring to work with existing NFPs and charities that are already established. Our teams are too small to take on DGR matters. (Large law firm pro bono coordinator)
The level of demand for assistance on particular issues can make it difficult to meet the need. For example, firms provide a substantial amount of assistance with deductible gift recipient (DGR) applications but also reject many requests for assistance with this issue. Nathan MacDonald at Not-for-profit Law (within Justice Connect) explained that firms will occasionally say ‘no more DGR’ because their tax teams are too busy. Not-for-profit Law has tried to address this by providing more training for NFPs on DGR, however given the complexity in this area, this has arguably encouraged more NFPs to seek DGR status and increased the need for legal assistance. Justice Connect has advocated for law reform to simplify the DGR application process.
28.4 FEATURES OF EFFECTIVE ASSISTANCE TO ORGANISATIONS
From the perspective of pro bono providers, it is important to develop guidelines for assessing and prioritising which NFPs they will assist to ensure there is a match between the goals of the NFP and the pro bono strategy of the pro bono provider. Best practice guidelines may have regard to the mission, management and financial resources of the organisations.
Given many new NFPs have a short lifespan, it is particularly important to assess new or start-up organisations.
| Sample questions used by law firms to assess requests for assistance from not-for-profit organisations
Herbert Smith Freehills
Clayton Utz
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For existing NFPs and charities, law firms may apply other criteria.
NFPs are better able to articulate their legal needs and obtain legal assistance if they understand legal issues that are potentially relevant to them. Nathan MacDonald at Not-for-profit Law explained that NFPs with specific questions, clear instructions and examples of what they would like to achieve are easier to refer to a firm (see case study on Not-for-profit Law at 28.5.1).
Once a decision has been made by a pro bono provider to assist an organisation, having letters of engagement or a MOU that formalises the relationships and clearly sets out the roles, expectations and responsibilities of both parties can help to avoid misunderstandings and problems arising. This might include a discussion about realistic expectations for the quality and timeframe for the completion of pro bono work by a firm, and instructions from the NFP. For example, DLA Piper uses a specific referral form for pro bono matters, which includes key dates, a description of who the client is, and what legal assistance is required and why, to limit requests with vague instructions and timeframes.
Both the pro bono provider and the organisation need to have a general understanding that they are moving in the same direction. This agreement can even be verbal if they know each other well enough. (Large firm pro bono coordinator)
Developing and maintaining the relationship between the NFP organisation and pro bono provider is especially important given that the organisation may not have lawyers who can easily identify legal issues and provide clear instructions, and the work of the organisation may be quite different to what corporate lawyers are familiar with. To provide effective assistance, lawyers acting pro bono need to fully understand the context of the work/instructions (for example, understanding how MOUs need to be drafted in an international development context — see Fred Hollows Foundation case study at 28.5.2).
It is ideal to have a contact point within the NFP, preferably a lawyer, who is senior enough and available to respond as issues arise. There needs to be business continuity in both the NFP and the relationship. The firm now states that it will not continue to act for a NFP if they lose contact after reasonable efforts to maintain contact. (Large firm pro bono coordinator)
28.5 Case studies
- 28.5.1 Case studies: Not-for-profit Law (Justice Connect)
- 28.5.2 Case studies: Fred Hollows Foundation
- 28.5.3 Case studies: Amnesty International Australia and DLA Piper
28.5.1 Case studies: Not-for-profit Law (Justice Connect)
Not-for-profit Law (formerly PilchConnect) is a specialist legal service operating within Justice Connect which provides legal information and free or low-cost legal assistance to not-for-profit community organisations, and advocate on their behalf.
The Not-for-profit Law Information Hub provides information about the legal issues involved in setting up and running a NFP in each Australian jurisdiction. Not-for-profit Law also organises training sessions to build the capacity of the not-for-profit sector by improving the legal literacy of those working in NFP community organisations and those who advise them.3 It engages in advocacy and law reform work focused on improving the legal framework for the not-for-profit sector.
A telephone advice service was established in 2010 to respond to simple ‘one-off’ legal queries from NFPs, and this has been a successful addition to the services offered to NFPs. The telephone advice service is a call-back service primarily staffed by in-house lawyers, who also assist in a range of other functions within Not-for-profit Law (pro bono referrals, trainings, website content and law reform). Once a call is taken and assessed as appropriate for telephone advice, further instructions are sought (where necessary), and a lawyer undertakes research and drafts an advice which is checked and signed off by the supervising solicitor. The client is then called back with the legal advice or information. Telephone advice ensures that Not-for-profit Law’s pro bono referrals are reserved for eligible NFPs that have complex matters requiring specialist assistance from law firms.
The website, training and telephone advice aspects of Not-for-profit Law’s work complement their pro bono referrals, providing an integrated service delivery model for NFPs. For example, after browsing the Not-for-profit Law Information Hub or attending a training seminar, it is hoped that NFPs calling the legal enquiry line will have a basic appreciation for the legal issues and can better articulate the assistance they are seeking. This helps Not-for-profit Law lawyers to determine which form of assistance is most suitable for the NFP in its particular situation, and generally develop legal literacy and practical capacity to deal with legal issues within the NFP sector.
Firms currently assist Not-for-profit Law by:
- providing pro bono legal advice for NFP clients referred by Not-for-profit Law;
- delivering training on niche issues for NFPs, like intellectual property, governance, insurance and OHS. Firms will often provide a room, facilities and presenters to run the training. Justice Connect manages the registrations, and works with the firm to ensure content is relevant to the NFPs;
- drafting legal material for the website (Not-for-profit Law checks the content for readability. Sometimes Not-for-profit Law drafts material and a firm checks for content accuracy);
- assisting with policy/advocacy work such as submissions to parliamentary inquiries impacting the NFP sector;
- providing secondees and other in-kind support (shared between Not-for-profit Law programs).
28.5.2 Case studies: Fred Hollows Foundation
The Fred Hollows Foundation is an international development organisation, focusing on avoidable blindness prevention in the developing world, and indigenous health improvements in Australia. The Foundation is independent, not-for-profit, politically unaligned and secular.
The Foundation is relatively well resourced and has recognised the need for more robust procedures and processes to protect it from risk as it expands its operations. It has become increasingly reliant on pro bono legal assistance (either free or at a reduced rate) from firms including Ashurst, Australian Government Solicitor, Clayton Utz, Gilbert + Tobin, and K&L Gates.
In addition to assistance with contracts and information management related agreements, pro bono assistance has been provided in matters involving bequests, where money has been left to the Foundation in a person’s will. The Foundation would like to request pro bono assistance with ten small- to medium-sized tasks a year.
Benefits
- Boosting the capacity of the NFP. Pro bono assistance allows the Foundation to use its funds for its core business activities, that is, eye health project work rather than legal bills. Each document prepared using pro bono resources saves the Foundation around $10,000–$20,000.
- Legal firms are keen to be associated with the Foundation. The Foundation’s pro bono partners have indicated they are keen to be associated with a well-known and uniquely Australian organisation that has a track record in addressing social justice issues. Firms are keen to maintain this relationship.
Challenges
- Non-legal NFPs do not necessarily identify legal issues. NFPs are not well resourced to identify and act upon legal risks, and may not protect themselves as much as they could, for example, with tight contracts. It is helpful to provide case scenarios to explain what can go wrong.
- NFPs move quickly. They are inherently ambitious in their overall goals and strategies, and may be trying to do things quickly which exposes them to risk.
- Pro bono work often takes longer than expected. Pro bono work can sometimes take a long time to turn around, even though the firm has the best of intentions of providing it in the stated time frame. If the NFP had known how long it was actually going to take, they might have found an alternative.
- The quality of pro bono work is sometimes low. This is particularly evident when the work carried out is done by junior lawyers. Adequate supervision by senior lawyers is necessary. Issues can arise where work is carried out by interstate offices of firms (eg the inclusion of jurisdictional clauses by the NT office of a firm that only apply to the NT and are not applicable to the matter). NFPs may not feel like they are in a position to complain, since they are not paying for the work.
- The Foundation works in developing countries which have complex legal and jurisdictional environments. Local legal representation is critical in interpreting legislation and applying it effectively against a fluid judicial system. Some pro bono providers may underestimate the complexity of seemingly straightforward tasks in this context.
Features that make it effective
- The Foundation has an experienced lawyer who can act as a point of contact. The Foundation’s lawyer can identify legal issues and provide clear instructions in a way that other NFPs may not be able to if they do not have a lawyer on staff.
- Providing more realistic turnaround times for pro bono work. It is helpful when firms provide a realistic timeframe for the completion of pro bono work.
- Understand the context. It is important for firms to take the time to fully understand the context of the work, especially when drafting MOUs between overseas partners. This may take a phone call or even a face-to-face meeting between the firm and the NFP. Some agreements have been drafted with very simple terms that do not fully protect the organisation, while others have gone out of their way to ensure that the agreement is appropriate for the circumstances and includes all necessary clauses.
28.5.3 Case studies: Amnesty International Australia and DLA Piper
For several years, DLA Piper has helped to ensure that Amnesty International Australia’s (AIA) governance, strategy, policy and operations are conducted based on robust legal advice. This has allowed AIA to focus on its mission of ending systemic injustice around the world. AIA and DLA Piper were nominated for a Law and Justice Foundation of NSW Justice Award in 2012 for their pro bono partnership.
Most of the pro bono work has been done in partnership with the Sydney office of AIA and includes providing advice on corporate matters, tax, wills and bequests, employment matters and contracts. It also involves work on particular court appeals and projects, merits advice, freedom of speech and strategic litigation, and reviewing legislation which has a human rights impact. Presentation and training to AIA Directors and staff have also been provided.
Over the past few years DLA Piper has seconded lawyers to AIA on a full time basis for a few months at a time. The secondments have worked extremely well for AIA. They provide AIA with ‘legal expertise on hand’ where matters do not require formal legal advice, as well as additional capacity, for example in the form of a lawyer to lead a research project with volunteers on indigenous rights. The secondees also assist in referring appropriate matters back to the firm which streamlines the referrals and takes the onus off AIA making those referrals.
Benefits
- Obtaining top quality free legal advice from top tier firms.
- Developing individual relationships with lawyers across different practice groups in a firm. These lawyers develop a deep understanding of the operations of the NFP and can be relied upon for ongoing, longer term advice.
- A relationship with a NFP that extends beyond commercial work into high impact human rights work, thereby creating new pro bono opportunities for the firm.
Challenges
- It can be a challenge to provide NFP non-legal staff with enough knowledge of legal issues to help them do their work, without causing concern about issues that are unlikely to be problematic. For example, if a firm explains all the possible risks in relation to defamation, a NFP may be reluctant to publish anything controversial, even though it is not realistically going to be a problem (although this was not an issue for AIA).
- Ensuring there is no conflict of interest, especially if the legal matter is connected to campaigning work which includes government advocacy.
Features that make it effective
- There is a match between the interests of pro bono practices and AIA’s work, which centres on promoting, upholding and protecting the international legal framework for human rights. The Legal and Governance Manager at AIA, Katie Wood, explained that AIA’s work attracts a lot of interest and support from the legal profession because it is based in human rights law and the rule of law. ‘When AIA was seeking to appear as amicus curiae in a high profile legal case, AIA was told by its pro bono lawyers that there had been 20 applicants for three junior lawyer positions working on the case.’
- AIA attracts volunteers and supporters who often have legal qualifications and skills so it is generally in a better position than some other NFPs to identify and address legal issues that arise. Katie Wood, who coordinates the pro bono relationship, is a lawyer with a background in commercial litigation so she is able to provide clear instructions.
I understand the way that firms operate, and the constraints that may impact on pro bono work. I expect that pro bono work, like any other work that a firm does, will be allocated according to the level of seniority required for the tasks involved, and understand that it will often be junior lawyers who are allocated to pro bono work. However my experience is that junior lawyers are highly passionate about social justice issues and the standard of work AIA has received from DLA Piper has been excellent. I have never needed to pay for work to be re-done.
- AIA has built strong relationships with several pro bono providers over a long period of time. Most of these relationships have developed organically, often through personal relationships. For example, a former member of the AIA Board was from a law firm and was therefore able to initiate a pro bono relationship with that firm. Also, a former AIA intern facilitated a relationship with a firm where she subsequently worked.
I maintain strong relationships with the individuals within firms who can advocate for pro bono more generally. This may not always be the pro bono coordinator and one of my strongest connections is with a corporate commercial partner.
- Positive working relationships have been developed between the AIA and the lawyers doing the pro bono work which facilitate ‘good communication, useful instructions and ultimately, great legal advice’.
I encourage firms to be honest about providing a realistic timeframe for the completion of pro bono work. I explain when the work needs to be done and that I need to be able to re-allocate it elsewhere if they can’t do it in time.
- DLA Piper’s pro bono program is genuine about wanting to make real impact on human rights and social justice.
It is not about drumming up more business or creating an image for stakeholders. DLA Piper has a different attitude from some other firms, and this is very apparent in the pro bono work they do.
- The provision of short-term secondees.
The secondee can gain a full picture of the work of the organisation and this helps both the secondee and the firm to provide quality advice with an understanding of the context. Tasks that might normally need to be ‘farmed out’ can be done by the secondee.
FURTHER READING
Association of Pro Bono Counsel, Statement on the Eligibility of Non-Profit Entities, For-Profit Entities, Social Enterprise Entities and Impact Finance Transactions for Pro Bono Legal Services (aka: MMM2.0 – Mission | Matter | Means), https://www.apbco.org/resource/mission-matter-means-v-2-0/.
Australian Pro Bono Centre, Australian Pro Bono Manual, 3rd edition, LexisNexis, Sydney, 2016, 2.1.1 Intake Criteria.
1 Of the firms that responded to the Fourth National Law Firm Pro Bono Survey (Australian firms with fifty or more lawyers), the areas where they provide the most pro bono services were employment law, governance, commercial agreements, deductible gift recipient status (DGR) applications, and intellectual property, respectively. See National Pro Bono Resource Centre, Fourth National Law Firm Pro Bono Survey (Australian firms with fifty or more lawyers) — Final Report, 2014, p 33, http://probonocentre.org.au/wp-content/uploads/2015/09/4th_National_Law_Firm_Pro_Bono_Survey_2014_Final_Report.pdf.
2 National Pro Bono Resource Centre, Fourth National Law Firm Pro Bono Survey (Australian firms with fifty or more lawyers) — Final Report, 2014, above n 1, p 38. http://probonocentre.org.au/wp-content/uploads/2015/09/4th_National_Law_Firm_Pro_Bono_Survey_2014_Final_Report.pdf
3 For current examples of legal training run by Justice Connect, see https://www.justiceconnect.org.au/our-programs/not-for-profit-law/training.