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Pro bono: Compelled to be free

Every Issue

The state government requires firms to do pro bono work in some circumstances. Now the federal government is also thinking about it.

Is there a role for government in mandating the social conscience of its contractors? That is the question the Australian legal profession is grappling with at the moment, as the Commonwealth considers adopting the Victorian government’s practice of requiring firms that enter into government legal services contracts to complete a minimum amount of pro bono work for approved causes. Firms on the state government’s Legal Services Panel must commit to pro bono services of at least 5 per cent of the value of the fees they derive under the panel arrangements.

A recent draft guidance note issued by the federal government contemplates a move towards the Victorian model, but also canvasses the endorsement of a voluntary minimum pro bono target such as the 35 hours of pro bono a year contained in the National Pro Bono Resource Centre’s (NPBRC) aspirational target.

The Victorian scheme has been criticised by some on various grounds. These include that the scheme undermines the “voluntarist ethic” of pro bono by encouraging pro bono for commercial reasons, privatises the government’s responsibility to provide access to justice and discriminates against smaller firms that lack the resources and financial capacity to provide free legal advice. However, the Victorian model has also received due praise.

In 2006-07, Victorian government panel firms delivered pro bono legal services to the value of $7.7 million as part of their obligations under the panel arrangements, while $18 million of free legal services have been delivered to disadvantaged and marginalised Victorians since the inception of the scheme in 2002.

In research by the NPBRC, 70 per cent of Victorian government panel firms said that the mandatory pro bono requirements were beneficial. Seventy per cent also reported an increase in their pro bono activity since becoming a panel member and for the majority the pro bono requirement was a factor in the increase. Meanwhile, the NPBRC’s 2007 national survey reported that Victorian lawyers were performing 10 to 20 hours a year more than their interstate counterparts on pro bono matters.

While figures like these may speak for themselves, some still question the role of government in promoting pro bono. However, many would reasonably expect governments to foster and encourage good corporate citizenry through the strength of their purchasing power. Indeed, for a federal government elected on a platform including social inclusion and the promotion of access to justice, a failure to do so could be problematic to its constituency.

For commercial firms, mandatory pro bono requirements are in line with the contractual requirements or social expectations of many private sector clients. Moreover, a recent review of the Victorian panel arrangements concluded that the pro bono requirement encouraged “cultural change” across the legal profession in Victoria; was an impetus for firms to develop and formalise their pro bono programs; and helped lawyers make pro bono a priority on their firm’s agendas.

The Public Interest Law Clearing House (PILCH), which is the major facilitator of pro bono services in Victoria, has also observed indirect benefits of the Victorian model for commercial firms. Pro bono opportunities through services such as the PILCH Homeless Persons’ Legal Clinic provide junior lawyers with experience, responsibility and client interaction that might otherwise require years of service. Meanwhile, firms are increasingly sought out by graduates on the strength of their pro bono programs. In addition, the philosophical objections of some pro bono purists to a non-voluntary pro bono contribution may not be borne out in practice.

In the experience of PILCH, the Victorian panel arrangements have not diminished the strong social justice sentiments of most panel firm lawyers. Rather, firms have been encouraged by the scheme to implement well-structured and coordinated programs that provide lawyers with pro bono opportunities. The choice to participate remains one for individual lawyers, encouraged by the due recognition that pro bono is afforded in professional development and performance reviews.

Pro bono legal services should not be seen as a substitute for a properly funded legal aid and community legal services sector. But in reality, until adequate government funding is made available, the private profession’s pro bono contribution is critical to the realisation of access to justice.

That contribution can be maximised by government through the sensible and well directed use of its purchasing power. It could also allow the profession’s pro bono culture and practices to serve as the benchmark for other sectors in their commercial dealings with government.
MAT TINKLER is the acting manager of the Public Interest Laws Scheme at PILCH. Further information is available from http://www.pilch.org.au.

LOOKING TO HELP?

To facilitate lawyers and firms becoming involved in pro bono work other than legal services, the LIJ will profile a community group and its needs each month.

Name of group: Swags for Homeless
Contact person: Tony Clark
Email: admin@swags.org.au
Website: http://www.swags.org.au
Brief description of work of group

Swags for Homeless is a not-for-profit group founded in 2007 with the aim of providing one free swag to every homeless man, woman and child in Australia. It is 100 per cent run by volunteers and is passionate about using its concept to change lives. The group believes that skilled professional volunteers will ensure more street-sleeping homeless are helped.

Current needs of group

Swags for Homeless is seeking volunteers for a number of wishes ranging from a legal review of its documents to assistance with its retail strategy.

For more information about volunteering, visit

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