Australia: How Do I Establish a Pro Bono Program?

Last Updated: 5 June 2012
Article by Tony Holland

Before establishing a pro bono project it is important to consider the following:

Is there institutional support for pro bono within the legal team, and within the organisation generally?

If not, it will be important to address the lack of support before establishing a pro bono project.

At a minimum you will require the support of the lawyers who will be involved in the project. From a client service delivery perspective, it is important that the lawyers participating in the delivery of pro bono services are doing so voluntarily.

What skills exist in the legal team, and can those skills be matched to an identified legal need in the community?

Case Study: A multi-national IT/software company based in the Silicon Valley employs a large team of immigration lawyers to move employees between the company's various bases in the United States and India. The legal team has very deep expertise in immigration law and a passion for human rights and social justice. The legal team enters into a partnership with a peak refugee advocacy group which refers unrepresented asylum seekers to the legal team for advice and representation on a pro bono basis.

Case Study: A major chain of fast-food restaurants employs a legal team at its head office to deal mainly with property matters relating to its portfolio of commercial properties. A number of the legal team have previously worked in large commercial firms where they have participated in regular pro bono work through the firms' pro bono program. The lawyers draft a pro bono policy for the corporate legal team which proposes that each lawyer will be permitted to spend up to 3% of their time on pro bono matters. The policy is approved by the General Counsel. The corporate legal team join the Public Interest Law Clearing House and indicate a willingness to accept the referral of property law matters. Over the first 12 months the legal team are offered 10 referrals from the clearing house. Due to capacity constraints the legal team accepts six of the referrals. The matters referred include repossession matters where children were at risk of homelessness, and lease advices for charities and not-for-profit organisations.

Is there a legal need that could be met by up-skilling the legal team in an area relevant to pro bono practise?

Case Study: The General Counsel at an investment bank is a strong advocate of CSR and wants the legal team to be a role model for the rest of the bank in making a meaningful and positive, skills-based contribution to the community. He speaks to his legal staff and confirms their willingness to participate in pro bono work. He then contacts the Director of Pro Bono Services at a law firm that provides the bank with commercial advice and discusses pro bono partnering opportunities. After consulting with his legal team about the options suggested by the firm, the bank decides to partner with the law firm on a homeless persons' legal clinic, which operates at lunchtime on Fridays from a CBD homeless shelter. As part of the project, the law firm delivers training to the bank's lawyers on various aspects of poverty law, including housing, fines and small debt matters.

Case Study: A telecommunications company has a community program which focuses on supporting animal welfare. The legal team is asked by the company's CSR Director to consider ways that it could contribute to the company's community program. The lawyers believe that their contribution should be through pro bono, since there is a substantial unmet legal need in the community. The legal team meets with the Pro Bono Animal Law Service and indicates a willingness to accept referrals of pro bono matters. As a part of the project, the lawyers attend animal law conferences, join professional organisations, such as Lawyers for Animals, and are funded to participate in University animal law courses. The legal team develops substantial skills in this emerging area of the law and become recognised as experts in this field.

HOW WILL WE ACCESS PRO BONO CLIENTS?

As is apparent from the case studies above, many successful pro bono projects are partnerships between in-house lawyers and law firms or community based organisations working at the coal-face that have direct access to people in need of legal assistance.

Collaboration is a key ingredient to undertaking successful pro bono work.

WHAT WILL IT COST?

It is often the case that pro bono work requires a small financial investment in addition to an investment of time.

The types of expenses will include travel costs, disbursements on pro bono matters such as travel, copying costs, filing fees, etc. The costs will depend upon the nature of the project or the matters that you undertake.

Even though costs are likely to be minimal, it is important to understand the extent to which your organisation is able to provide funding to facilitate pro bono work. This may impact the types of matters that you are able to take on.

SAMPLE PRO BONO POLICIES

We have prepared a sample pro bono policy which may be used by in-house legal teams when establishing pro bono programs.

The policy may be used in its current form or amended to suit your individual needs. See Appendix 1 for the sample policy document.

Regulatory and Compliance Issues

When performing pro bono work in Australia, lawyers are required to comply with all regulations applicable to legal practice in their jurisdiction. The information on this page details some of the key compliance issues which must be considered prior to commencing work on a pro bono matter. The information contained below is not exhaustive, and practitioners engaging in pro bono should contact the author for further information.

Costs agreements

Although you will be acting on a pro bono basis, it is still important to enter into a retainer with the client which sets out the terms on which you will act. The retainer should make clear that no costs will be charged, except (where applicable) any third party disbursements. It is important to ensure the retainer complies with local requirements in your jurisdiction. It is also important to ensure the retainer is drafted in plain English and is explained to the client, so that they understand the terms on which you are acting.

A sample pro bono costs agreement is at Appendix 2. This document should be tailored to suit individual circumstances. In litigious matters, it may be appropriate to consider entering into a costs agreement that enables costs to be recovered from the unsuccessful party in the event of a costs order in favour of your client. The legal position with respect to pro bono costs in Australia is unsettled. As such, it is common for pro bono lawyers to enter into a conditional costs agreement with pro bono clients at the commencement of a litigious matter.

DLA Piper Australia is able to provide a precedent conditional costs agreement, on request. Please contact the author for further information. In the normal course, any costs recovered by DLA Piper Australia in pro bono matters are donated by DLA Piper Australia to charity. Some law firms and corporate legal teams use the costs recovered on pro bono matters to fund costs associated with the management of their pro bono programs. Your pro bono policy should deal with the question of how your organisation will deal with recovered costs, if you intend to provide pro bono services in litigious matters.

Amongst other things, the retainer should include details of the process by which a pro bono client may make a complaint against a lawyer. It is also advisable to set out the circumstances in which the lawyer may make a decision to cease to act.

Corresponding with pro bono clients

Communications with pro bono clients should be tailored to suit the client. Some pro bono clients will have limited English language skills, and plain English drafting, and face to face meetings to explain the content of written communications may be important.

It is also important to consider the most appropriate letterhead to use when sending communications on a pro bono matter. When considering this question it is often useful to begin by determining which entity is providing the legal services, and where the professional indemnity risk lies. If your in-house legal team is providing pro bono services under the National Pro Bono Insurance Scheme, then you should utilise the letterhead provided by the National Pro Bono Resource Centre, which is available on their website. In accordance with the National Pro Bono Policy, all work on pro bono matters should be supervised by a nominated senior legal practitioner. If the professional indemnity risk is carried by a community legal centre with whom you are partnering to provide pro bono legal services, then correspondence should be on the letterhead of the Legal Centre and approved by the Principal Solicitor of the Community Legal Centre. If you are partnering with a law firm, and the law firm is carrying the risk, then communications should be sent on the letterhead of the law firm, and approved by a partner of the firm. Some in-house legal teams have professional indemnity insurance in place which covers pro bono work performed by their legal team. In these circumstances it may be appropriate for correspondence to be delivered on the company letterhead.

Trust monies

Solicitors' trust accounts are subject to regulation, and any legal practitioner accepting monies must comply with relevant regulations in their jurisdiction. In most cases, it will be possible to deliver pro bono services without the need to deal with trust monies. In relation to projects where it may be necessary to accept monies on trust, it is advisable to consider a partnership with a law firm or Community Legal Centre.

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© DLA Piper

This publication is intended as a general overview and discussion of the subjects dealt with. It is not intended to be, and should not used as, a substitute for taking legal advice in any specific situation. DLA Piper Australia will accept no responsibility for any actions taken or not taken on the basis of this publication.


DLA Piper Australia is part of DLA Piper, a global law firm, operating through various separate and distinct legal entities. For further information, please refer to www.dlapiper.com

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