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Pro Bono : Government legal services tenders

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Cite as: (2002) 76(11) LIJ, p.80

A definition for mandatory pro bono contained within government legal services tenders is wanted.

Law Institute CEO John Cain, in his column in the October 2002 LIJ (page 8), calls on the state Attorney-General and his department to “ . . . immediately adopt and announce [a] definition of pro bono”. The article raises the need for urgent clarification of the term “approved pro bono causes” in relation to the provision of mandatory pro bono contained within the tender for the delivery of government legal services.

Voluntas Pro Bono Secretariat has met with the Department of Justice and the Attorney-General’s office since February 2002 in an attempt to ensure that specific aspects of the tender for government legal services achieves the intended outcome – that is, to increase the level of pro bono activity in Victoria and increase access to justice.

There is no doubt of the Attorney-General’s commitment to this outcome: “Let me say that while the government has a very strong commitment to the delivery of services on a pro bono basis, this is not about re-inventing the wheel.

“It is all about improving access to justice and attempting to meet unmet demand for legal assistance.”[1]

There are however three specific areas within the existing contract that have been a source of concern for firms with pro bono programs, community legal centres and community sector organisations which require urgent attention and clarification. These are approved causes, new pro bono work and commercial conflict of interest.

APPROVED CAUSES

The term “approved causes” “ . . . means a purpose or organisation, approved from time to time by the Attorney-General”.[2]

Voluntas understands this statement to mean that the Attorney-General is developing a list of “approved” organisations or programs to which firms should direct pro bono activities.

Voluntas supports Mr Cain in his call for clarification of the term and for the use of a definition as opposed to a list of approved causes. It would ensure certainty within the legal sector about what is pro bono and provide a solid basis for the development of pro bono initiatives, allowing firms within the agreed definition parameters the flexibility to develop both partnerships and innovative approaches to providing pro bono services.

NEW PRO BONO WORK

As the contract stands only new pro bono work or pro bono activities commenced within the period of the contract will be counted for the purpose of a firm receiving credit for its pro bono program.

The concern is the impact on existing pro bono programs and relationships. There is a danger that if existing pro bono activities are not counted, there is no incentive for firms to remain involved in current pro bono activities because they would not be considered to be “new” pro bono. The overall effect may be that the amount of pro bono work is not increased at all, as firms intending to submit a tender for future government work may decide to wait until their tender submission has been successful before entering into pro bono partnerships.

Counting existing pro bono activities, as long as they fall within an agreed definition, ensures a greater commitment by firms in providing pro bono services for the “right” reasons, not simply because they are being directed to do so.

COMMERCIAL CONFLICT OF INTEREST

Commercial conflict of interest, or more specifically commercial concerns, has been an ongoing issue during the past few years.

Anecdotally, groups such as community legal centres (including Public Interest Law Clearing House) have reported an increase in the incidence of firms being unwilling to act on a pro bono basis in public interest matters, in particular where these matters are against government departments. Firms cite “commercial concerns” and fear of losing potential government contracts as the reason.

Although contracts for government legal work are not in themselves the catalyst for this reaction from firms, there is an opportunity for government to take a leading role in preventing similar situations from re-occurring by issuing a clear statement indicating that firms who have acted against the government in the past will not be disadvantaged with respect to future decisions regarding government contracts for legal work.

Ultimately, the priority for Voluntas is to ensure that pro bono activity (both within and outside the parameters of the contract) continues to develop in a way that encourages pro bono partnerships between community and legal sectors that fall within an agreed definition.

Victoria has to date led the way in terms of the level of pro bono activity in Australia.

This is due to the level of energy, commitment and goodwill demonstrated by the legal profession, which manifests itself in a diverse range of activities, from individual advice to large pro bono programs. Every effort should be made to ensure that this situation continues.

NOTES

Contributed by MARGARET CAMILLERI of Voluntas.

viclawreform@liv.asn.au


[1] Speech notes, Government Legal Services Launch.

[2] “Conditions of Contract”, page 12.

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