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Push for pro bono costs

Briefs

Cite as: (2008) 82(12) LIJ, p.15

Lawyers who act successfully for a pro bono client in litigation should be entitled to seek a costs order from the unsuccessful party, according to a new LIV policy.

LIV Council confirmed the policy at its 16 October meeting [see LIV Update for more on the meeting on page 94 of this edition of the LIJ].

Council also resolved the current practice of practitioners being unable to seek costs from their own clients would remain and that a commitment be sought from the Victorian government to legislate to abolish the costs indemnity principle that currently prevents costs orders from being made.

Given pro bono work is undertaken in both state and federal courts, the LIV will ask the Law Council of Australia to adopt the principles as a nationwide policy. This would then move constituent bodies to lobby state and territory governments to make similar laws.

The LIV will also call on Victorian Attorney-General Rob Hulls to advocate for mirror federal legislation at a meeting of the Standing Committee of Attorneys-General.

LIV Access to Justice Committee chair Mark Woods said: “In an era in which the profession’s pro bono work is strongly encouraged, and in some cases mandated, by government, it would seem reasonable that such legislative intervention is sought.

“If you sue someone privately and lose, the overwhelming likelihood is that you will pay the winner’s costs. If a lawyer is appearing for nothing and his client wins, there is a view that the lawyer should be paid by the losing side as he has not agreed to work for free for the other side,” he said.

Mr Woods said many successful clients of pro bono lawyers had been ordered costs against corporations or governments which should be able to afford to pay legal fees and “not rely on the lawyer’s generosity if they lose”.

An LIV policy statement defines pro bono work as the notion that a lawyer will “undertake the retainer without any expectation of fee or reward for the effort”.

To underline the complexities of the matter, Mr Woods said: “The LIV Access to Justice Committee recognises the existence of a clear policy dilemma between members who believe that once a lawyer agrees to act pro bono, then that is the end of the matter.

“And [there are] those who believe that unsuccessful litigants should not be enriched by avoiding a normal costs order and that the prospect of costs recovery may be an incentive for lawyers to act for impoverished clients.”

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