Pro Bono Guidelines for ACT Legal Practitioners
The ACT Law Society recognises and acknowledges the efforts of the many legal practitioners in the ACT who selflessly devote a portion of their time to pro bono activities. Pro bono assistance provided by practitioners in the ACT covers a wide range of legal matters — from advising on charities legislation, family law, migration, personal injuries, mental health law, and employment matters to criminal and family law matters where legal aid is not otherwise available.
These Guidelines are designed to further assist local legal practitioners to undertake pro bono work and promote a pro bono culture within the ACT. It also suggests some best-practices in relation to recording information about the nature and extent of the work legal practitioners are undertaking. This will enable a better assessment of the true value of the pro bono work undertaken.
The ACT Law Society will periodically survey ACT firms on their pro bono work. The information gained will inform the Society’s long-term goal of increasing the quantity and quality of pro bono work undertaken by legal practitioners in the ACT, and of recognising the considerable pro bono contribution of the profession.
To provide ACT law firms with practical, best practice guidance on how to undertake, record, and report pro bono work.
Pro bono legal service is closely linked to the corporate social responsibility of the legal profession. As lawyers, we have a responsibility to facilitate access to justice. Some of the key reasons why lawyers should do pro bono work include:
- helping disadvantaged members of the community who cannot afford legal assistance;
- redressing some of the inequities which result from unequal access to justice;
- it is part of a firm’s social and corporate responsibility;
- providing opportunities for employees to broaden their skills by dealing with a diverse range of clients with a diverse range of legal issues; and
- increasing employee engagement and improving staff morale.
Pro bono comes from the Latin phrase ‘pro bono publico’ which means for the public good. In the legal context it generally means the provision of legal services on a free or significantly reduced fee basis.
The APBRC is an independent centre of expertise that aims to grow the capacity of the Australian legal profession to provide pro bono legal services that are focused on increasing access to justice for socially disadvantaged and/or marginalised persons, and furthering the public interest. The National Pro Bono Aspirational Target is a voluntary target that law firms, individual solicitors and barristers can sign up to and strive to achieve the target of at least 35 hours of pro bono legal services per lawyer per year.1
The definition of ‘pro bono legal services’ expressed in the Aspirational Target Statement of Principles and National Survey is as follows:
1. Giving legal assistance for free or at a substantially reduced fee to:
(a) individuals who can demonstrate a need for legal assistance but cannot obtain legal aid or otherwise access the legal system without incurring significant financial hardship; or
(b) individuals or organisations whose matter raises an issue of public interest which would not otherwise be pursued; or
(c) charities or other non-profit organisations which work on behalf of low income or disadvantaged members of the community or for the public good;
2. Conducting law reform and policy work on issues affecting low income or disadvantaged members of the community, or on issues of public interest;
3. Participating in the provision of free community legal education on issues affecting low income or disadvantaged members of the community or on issues of public interest; or
4. Providing a lawyer on secondment at a community organisation (including a community legal organisation) or at a referral service provider such as a Public Interest Law Clearing House.
1. The target amount of 35 hours was chosen in consultation with the legal profession and reflects what many lawyers are already doing and represents the minimum number of hours of pro bono legal services that all lawyers should aspire to undertake.
The following is not regarded as pro bono work for the purposes of this statement:
1. Giving legal assistance to any person for free or at a reduced fee without reference to whether they can afford to pay for that legal assistance or whether their case raises an issue of public interest;
2. Free first consultations with clients who are otherwise billed at a firm’s normal rates;
3. Legal assistance provided under a grant of legal assistance from Legal Aid;
4. Contingency fee arrangements or other speculative work which is undertaken with a commercial expectation of a fee;
5. The sponsorship of cultural and sporting events, work undertaken for business development and other marketing opportunities; or
6. Time spent by lawyers sitting on the board of a community organisation (including a community legal organisation) or a charity.
The APBRC has produced the following guidance notes on reporting pro bono legal services:
1. Only work that involves the delivery of pro bono legal services as defined for the purposes of the APBRC Aspirational Target should be reported.
2. Many firms have community service and corporate social responsibility programs under which their lawyers and non-lawyers provide a broad range of community service work. Examples of this include literacy and mentoring work, and volunteering to provide services at community organisations. These programs may also involve the firm donating to charities. These activities do not fall within the definition of pro bono legal services and should not be reported.
3. Signatories should calculate the number of FTE lawyers for the year by using the average of the number of FTE lawyers at the first day and the last day of the reporting financial year.
(FTE lawyers at 1 July + FTE lawyers at 30 June) ÷ 2
(Where a new target firm is reporting for a period less than a full financial year, the number of FTE lawyers should be calculated by using the average number of FTE lawyers at the first day and the last day of the reporting period).
4. “Firm’s lawyers” includes law graduates not yet admitted to legal practice, and thus their pro bono hours should be reported. It does not include paralegals, and their pro bono hours should not be reported.
5. Time recorded for the purpose of delivering pro bono legal services should be treated in the same way that work performed for commercial clients is treated. In this respect, each signatory firm’s policies for the treatment of travel time should apply to their pro bono legal work.
6. Each signatory should have systems in place to ensure that accurate records are kept of the pro bono legal work performed.
7. Pro bono legal services may include international pro bono legal services, that is, pro bono legal work undertaken:
- outside Australia, by lawyers who are supervised by, or provided from, an office based in Australia;
- for clients based outside Australia, by lawyers based in Australia; or
- for organisations based in Australia where the work concerns an initiative outside Australia.
In this context references to “community” in the definition of “pro bono services” include communities outside of Australia.
While not all legal practitioners or firms may be signatories to the APBRC Aspirational Target, the ACT Law Society adopts the APRBC’s definition of ‘pro bono legal work’ and the Guidance Notes to ensure that any pro bono legal work undertaken by ACT legal practitioners is measured against a nationally consistent benchmark. Firms who are signatories will not have to report against different criteria when reporting on the pro bono work undertaken by them.
There are matters taken on by legal practitioners — especially in criminal and family law matters — on the basis that legal aid is not available for reasons including ineligibility or the applicant not satisfying the means test.
Work undertaken on this basis falls within the definition of pro bono legal work, provided that it is clear the individual in question would suffer significant financial hardship if they had to pay legal fees, i.e. there is a real issue of the person’s capacity to pay legal fees. Matters undertaken on referral from the ACT Pro Bono Clearing House will fall within the definition of pro bono legal work.
The work would not be considered pro bono if it is based on an initial first free consultation, but the matter is then charged at usual commercial rates. A matter undertaken under a grant of legal assistance will not count as ‘pro bono legal work’.2
Many firms keep records of the pro bono legal hours undertaken by the firm either by opening specific files or keeping records such as file notes in cases where free verbal advice is provided.
It is important for records to be kept to ensure that all the valuable pro bono legal work undertaken by the ACT legal community is captured and recognised.
As a guiding principle, a pro bono matter should be managed in the same professional manner that a billable client matter is managed, according to the same quality assurance procedures, with the same diligence and timeliness, and subject to the same supervision and review as any other legal work undertaken by the firm.
Pro bono work should always be done as a normal matter of the firm, so that professional indemnity insurance will apply. Lawyers should take on matters within their areas of skill and expertise. A legal practitioner is able to withdraw services should the client not accept the legal advice being given. The withdrawal can be on the grounds of lack of reasonable prospects of success or any other reason that the solicitor deems legitimate or appropriate or in accordance with their retainer.
Before a pro bono matter is opened, a conflict of interest search must be undertaken and reviewed in accordance with routine practice as the principles relating to personal conflicts of interest apply in pro bono matters in the same manner as they do in usual client matters.
It is recommended that a separate file be opened for each new pro bono matter to allow for better reporting and to assist firms to assess the level of their pro bono contribution. The files should be opened in accordance with the firm’s usual policy for file openings but it is recommended that there be a means by which a pro bono file is distinguished from fee paying files — for example, the file name should have the words ‘Pro Bono’ in its matter title. Time spent on undertaking the work on a pro bono basis can then be recorded as if it were a fee paying file.
Given that there is a range of work undertaken on a pro bono basis, it would be useful to capture the nature of the work (i.e. whether it is family law; criminal law; estate law matter etc.) but again using the firm’s usual file opening practices with regard to the categorisation of matters.
Where possible, it will be useful when opening new pro bono matters to capture details of:
- the source of the request — for example, was it a referral from Legal Aid, a community legal centre, an existing client, or the Pro Bono Clearing House;
- whether the work was undertaken as an extension of an existing matter (for which the client has paid, or will pay, a fee) or with new/independent clients;
- the reasons why the practitioner undertook pro bono work in relation to each particular case (e.g. the client couldn’t afford to access assistance, the client had run out of funds part-way through a matter, or it was a matter of public or personal interest); and
- the reasons why the practitioner could not undertake particular pro bono work (e.g. lack of expertise, conflict of interest, etc.).
Where the practice is to provide verbal ad hoc advice, it is recommended that one general pro bono file for verbal advice be opened with separate file notes for each matter on which advice is given in accordance with good risk assessment criteria.
Although a firm may be acting on a pro bono basis, it is still important that an acknowledgment letter or preferably a retainer or agreement outlining the scope of the work and terms of the arrangements be sent to the applicant on the commencement of each matter. It is a matter for the firm and the applicant to negotiate the terms of the retainer, including matters such as payment of disbursements. It is important to ensure that the arrangement is drafted in plain English and is clearly explained to the client. Some pro bono clients will have limited English language skills and/or have a disability and face to face meetings to explain the content of written communication may be important.
2. There have been cases where firms have still continued to act for the client for free once the grant of assistance has been exhausted in which case the free work, once the grant has been exhausted, can be considered pro bono legal work.
Uncertainty exists in relation to the circumstances in which a court may make a costs order in favour of a successful party represented on a pro bono basis given the indemnity principle. The indemnity principle can only operate where a successful litigant is under an obligation to pay their lawyer. Notwithstanding the uncertainty, the retainer should set out circumstances where the lawyers can use conditional fee agreements, whereby the client agrees to pay the lawyer an amount equal to the costs awarded if successful, otherwise no payment is due.
The Productivity Commission’s Report on Access to Justice recommended (at Recommendation 13.4) that parties represented on a pro bono basis should be entitled to seek an award of costs subject to the costs rules of the relevant court.
The Productivity Commission also recommended (at Recommendation 13.6) that courts should also grant Protective Costs Orders (PCOs) to parties involved in matters deemed to be of public interest that in the absence of such an order, would not proceed to trial.
In tandem the APBRC also suggested, in its response to the Productivity Commission’s request for information as to the most appropriate means of distributing any costs order made, that:
A self-regulatory protocol (to which pro bono providers would subscribe) might indicate that recovered monies should be:
- used to pay counsel’s fees and other disbursements; and/or
- reinvested into a firm’s pro bono program; and/or
- donated to a charity or community organisation of choice (which might be the applicant organisation in the litigation, a co-counsel organisation like a CLC or the pro bono referral agency).
Given there is no settled position on the issue of costs recovery in a matter which has been undertaken on a pro bono basis, firms acting pro bono in litigation matters need to decide as a matter of policy whether they will seek to recover costs and disbursements in the event of a favourable settlement or court or tribunal order. 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.
A firm should however clearly communicate with a client what its policy is in relation to recovery of costs and disbursements. This should include the possibility of adverse costs orders, which are rarely anticipated by pro bono clients.
A pro bono matter may involve a financial outlay, e.g. copying costs, court fees, travel costs. It is therefore important for firms to consider the level of financial outlay they are prepared to make before taking on a pro bono matter.
Relevant to this issue are:
- exemption and waiver of court and tribunal fees; and
- disbursement assistance schemes.
Exemptions and/or waiver of fees
Firms undertaking litigious pro bono matters should consider whether exemptions or waivers are available in respect of court or tribunal fees, such as filing fees, setting down and daily hearing fees.
Section 15(2)(b) of the Court Procedures Act 2004 authorises the Registrars of the Supreme Court and Magistrates Court to waive payment of a court fee by a person, in full or in part, where the Registrar considers that payment of the fee, or part of the fee, would impose hardship on the person having regard to the applicant’s income, day-to-day living expenses and liabilities and assets. The relevant application form can be downloaded from the courts’ website.
Persons liable to pay fees in Commonwealth courts (the High Court, the Federal Court of Australia, the Federal Circuit Court and the Family Court) and the Administrative Appeals Tribunal may be eligible for an exemption from those fees if, for example, they:
- have been granted legal aid;
- are holders of particular benefit or concession cards;
- are an inmate of a prison or are lawfully detained; or
- are under 18 years of age or are in receipt of a youth or study allowance.
The relevant forms can be downloaded from the court’s or tribunal’s website. Once a general exemption is established it generally continues until the proceeding is finalised, provided that there is no change in circumstances that alters the continued entitlement to the exemption. A body or person granted a general exemption must notify the court if there is any change in circumstances that could alter the entitlement.
Disbursement assistance scheme
A disbursement assistance scheme supports certain pro bono legal work and reimburses solicitors for properly incurred disbursements in pro bono cases. The nature of the assistance available varies from jurisdiction to jurisdiction.
There is no scheme in the Australian Capital Territory offering disbursement assistance.
The Commonwealth disbursement support scheme, which was introduced on 1 July 2012, is available to people involved in Commonwealth non-criminal law matters.
The scheme is not available in State or Territory criminal or overseas legal matters. Assistance will not generally be granted to persons who can meet their overall legal costs without incurring serious financial difficulty or where legal aid or other legal financial assistance from the Attorney-General’s Department is available.
The Scheme provides greater support for pro bono work by removing the disincentive created by disbursement costs. While funding is not available for counsel fees or court filing fees under this scheme, the scheme may reimburse such costs as fees for expert reports in litigation, expert witness fees, travel costs of witnesses and photocopying, provided an application for approval is made before the costs are incurred.
To apply for assistance under the disbursement support scheme, total disbursement costs must be $500 or more (GST inclusive). There are maximum allowable amounts for certain disbursement items, such as expert medical reports, interpreter costs, document searches, etc.
Application forms and further details on this scheme are available on the Attorney-General’s website.
At the outset of taking on a pro bono matter, firms should, where disbursements both internal and external are likely to be incurred, determine how disbursements will be handled. This might include:
- not charging for either internal (e.g. photocopying, telephone calls) or external (e.g. court fees) disbursements;
- charging only for external disbursements;
- only charging after a certain threshold is reached; or
- charging for both internal and external disbursements.
It is recommended that the firm should have a policy position on how it will charge for disbursements and this should be outlined in the firm’s pro bono policy, which is discussed in more detail below.
Firms will need to consider what would be most appropriate in terms of their support of pro bono work, and in creating conditions and incentives so that pro bono work undertaken by their lawyers is recognised, valued and rewarded. This will be relevant in terms of matters such as:
- whether fee relief or reduced financial targets will be given to lawyers who undertake pro bono work;
- whether pro bono work is taken into account in a lawyer’s appraisal; and
- whether a lawyer will be given leave or time off to undertake pro bono legal activities, e.g. volunteering at the Legal Advice Bureau or Night Time Legal Service.
Firms may also wish to consider increasing their pro bono contribution. Avenues for doing this include:
- being part of a panel of firms with the ACT Pro Bono Clearing House (administered by the Law Society) or with Community Legal Centres (such as Canberra Community Law and the Women’s Legal Centre); or
- assisting not-for-profits through the provision of specific advice on issues such as governance or commercial arrangements (these projects are likely to be more self-contained and unlikely to be as time consuming as representation of individuals in individual matters).
It will be a matter for each firm to consider whether it wishes to set an annual internal target based on an average number of hours per lawyer.
Firms may also wish to consider attending relevant pro bono CPD activities to increase their knowledge of the provision of pro bono in the ACT.
There is a variance across firms as to the source of pro bono work — how and who determines whether to accept a pro bono matter, as well as matters such as capturing the time spent on pro bono work.
Firms may consider it beneficial to have a policy which deals with these issues and which sets out how pro bono work is to be managed. A policy not only encapsulates the firm’s commitment to undertaking pro bono work but will clarify issues such as:
- how requests for assistance are dealt with;
- how matters are managed and supervised;
- how pro bono time is recorded;
- how disbursements and costs are dealt with; and
- how pro bono work is factored into any performance appraisals of lawyers and budgets.
To this end, a template is attached to guide firms in formulating their policy. Legal practitioners should be aware of their firm’s pro bono policy before taking on a matter.