Hannon, Michelle; Ball, Elise --- "Csr and Pro Bono Law" [2005] ALRCRefJl 24; (2005) 87 Australian Law Reform Commission Reform Journal 27

---

Reform Issue 87 Summer 2005/06

This article appeared on pages 27 – 30 of the original journal.

CSR and pro bono law

By Michelle Hannon and Elise Ball*

The body of work that we refer to as ‘pro bono’ derives its name from the Latin expression ‘pro bono publico’ meaning ‘for the public good’.

In legal practice it refers to the work that lawyers do for disadvantaged clients without charging the client for their work or without expectation of recovering fees. With the recent development of the concept of corporate social responsibility (CSR), there is debate about whether pro bono practice should be part of a firm’s CSR program, or whether it should remain distinct from CSR initiatives. Below we outline just some of the features of pro bono practice in New South Wales, including those which might distinguish it from CSR activities and make it appropriate for pro bono work to be regarded as separate from CSR initiatives.

Origins of pro bono work

It has long been a custom among the legal profession to provide services without charge to people who would otherwise not have access to legal advice or representation. Some members of the profession see it as part of their ethical obligations. Our justice system relies on accessibility to be effective. Many lawyers will acknowledge that legal fees are a huge barrier to the accessibility of legal advice and representation. Yet the system does not function if justice is something only available to those with means. Justice then simply becomes something to be purchased by the highest bidder.

These ethical origins of pro bono work provide direction as to what work should be taken on a pro bono basis. If pro bono work is motivated by the principle of equal access to justice, then the decision whether to accept such work should not be influenced by whether it will improve the public image of a firm or lawyer. Most legal work for marginalised and disadvantaged clients does not make for headline news articles or a compelling public relations story, but these considerations should be irrelevant to a consideration of whether to accept the work. Pro bono work should primarily seek to provide access to justice and raise awareness of issues of justice.

What is pro bono work?

There are differing views on how to define pro bono work. The Law Council of Australia definition¹ includes situations where a lawyer advises or represents a client without fee, without expectation of a fee or at a reduced fee, where the client has no other access to the legal system or the client’s case raises a wider issue of public interest. This definition also encompasses work involving a lawyer providing free legal education or assistance with law reform and free legal advice or representation to charitable and community organisations.

The definition of pro bono in the Butterworths Encyclopaedic Australian Legal Dictionary² differs from the Law Council definition in that it does not encompass work performed for a reduced fee. The debate on this issue stems from the fact that work performed on a contingency basis, particularly in areas of practice where this is a common fee arrangement such as in personal injury work, is not typically regarded as pro bono work. However, many practices legitimately include contingency fee work as part of their pro bono work. These matters are distinguishable from matters taken on a commercially speculative basis as the latter are assessed and accepted with a view to obtaining a commercial benefit. The former are not. Where there is the possibility of a costs order being made against the other party to the litigation, many pro bono practices enter into costs agreements which allow for recovery of fees through costs orders where the client is successful. The rationale for this arrangement is that a self-funded litigant should not be excused from funding another party’s costs where a court has ordered their payment, merely because the other party would otherwise be assisted on a pro bono basis. Exposure to adverse costs orders is a risk that all litigants, including those represented on a pro bono basis, must contend with and often acts as a deterrent to unmeritorious litigation. This would be a hollow deterrent if costs could not be recovered by the pro bono assisted litigant.

Pro bono practice in New South Wales

Most established pro bono practices in private law firms in Australia today base their practices on the Law Council definition of pro bono work.³

As stated above, undertaking pro bono work is not a recent phenomenon; it is a strong tradition in the legal profession in Australia. However, the development of dedicated and specialised pro bono practices is a relatively recent event. In Australia the first full-time in-house pro bono practice in a private commercial law firm was established in 1996 and there are now about 20 firms with dedicated pro bono practices in Australia.⁴

It is important to note that most pro bono practices tend not to assist in matters capable of being funded by alternative sources. Instead they focus on assisting clients who would otherwise fall ‘between the gaps’ in attempting to access the justice system because they are ineligible for legal aid or community legal centre assistance but are unable to afford the legal assistance themselves. It is a commonly held view amongst private sector pro bono service providers that pro bono services are not intended to alleviate the government’s responsibility to properly fund access to justice. Similarly, as alluded to above, firms are unlikely to provide pro bono assistance in areas of law where it is likely that the client will be able to obtain legal advice on a conditional or speculative basis.

Pro bono practices in New South Wales vary in their size, structure and in the type of work undertaken. The practices are usually headed by a dedicated pro bono director or coordinator who is responsible for managing the pro bono practice, often in conjunction with a pro bono committee, which is typically made up of partners and lawyers. In the vast majority of cases the pro bono director is a lawyer but it is sometimes an administrative position. There are approximately seven full-time pro bono directors in Sydney firms, and some of these firms have more than one lawyer in their pro bono practice. The remaining firms have part-time pro bono directors who spend part of their time running the pro bono practice and part undertaking commercial work. Many of the national firms with pro bono practices have a coordinator in each of the states or territories in which they have an office. It is not only those within the pro bono practice who undertake pro bono work, the participation of all lawyers in the firm is encouraged thus raising awareness of the needs of pro bono clients throughout the firm.

Effective pro bono practices work closely with the community legal sector, relying on it for referrals and guidance about areas of community need. Referrals come from various sources including community legal centres, specialist legal services, and various referral schemes including the Law Society pro bono scheme, the Bar Association Legal Assistance scheme and the Public Interest Law Clearing House.

The pro bono practices in NSW each have their own criteria for taking on pro bono work but generally all firms undertake some level of case work either for disadvantaged individuals and/or for charity or community organisations. Some firms focus on providing their pro bono services by undertaking work in-house while others combine this approach with providing external assistance, such as secondees to community legal centres, lawyers to staff rosters at community legal centres or domestic violence court assistance schemes. Many of these external services are concentrated in the capital cities, however there are some outreach programs to rural and remote areas supported by pro bono practices. The rural and remote project developed by the National Pro Bono Resource Centre has been a fairly recent initiative to seek to improve support that private practice can provide to rural and remote community legal centres. The program partners a community legal centre in a rural or remote area with a Sydney law firm and the law firm seeks to assist the community legal centre with issues ranging from corporate governance issues concerning the centre itself to accepting referrals from clients of the Centre. The Legal Aid Commission of New South Wales is trialling a similar project involving a range of organisations including pro bono practices, legal centres and other welfare agencies.

The areas of law covered as part of a firm’s pro bono practice will generally mirror the firm’s existing practice to some extent. For example, general litigation, employment law, real property, intellectual property, corporate and taxation matters will be undertaken on a pro bono basis by firms that have such practice areas.

There is increasingly a high demand for corporate governance advice for community and charitable organisations. Prior to the development of pro bono practices this was an area of need that was not met in any systemic way, except perhaps in the case of a few very high profile charities. Community legal centres and legal aid provide assistance in litigious areas and generally only for individuals. Very few free legal services for corporate governance issues were available to community organisations. Pro bono practices have been able to offer services ranging from advising on the negotiation of funding and contractual arrangements to structural, governance and constitutional issues for community and charitable organisations. In this way firms can support charitable and community organisations, thus allowing the redirection of the organisations’ funds and time from legal issues to the organisations’ core activities.

Most pro bono practices do not offer pro bono assistance in family law matters and offer only very limited assistance in criminal law matters, if at all. These are areas for which legal aid is more readily available and in which most of the firms with established pro bono practices do not have expertise.

In response to the huge demand for pro bono assistance, many pro bono practices focus on areas of particular community need. Some firms give priority assistance to particular groups such as Indigenous clients and organisations, children and young people, or people with mental illness or intellectual disabilities. An increasing number of firms participate in the Homeless Persons Legal projects run by Public Interest Law Clearing Houses in the eastern states of Australia. For projects such as these, the areas of law may be outside the firm’s general practice, but training is provided for participants. Other firms have formed specialist internal interest groups, which are trained to undertake particular matters such as victims compensation and refugee law review applications.

Expectations of pro bono practice

In contemplating pro bono practice it begs the question: ‘How much need can the private sector hope to meet?’

Accurate statistics on the amount of pro bono work conducted in the profession are difficult to obtain. The Australian Bureau of Statistics survey of legal services conducted in 2001–2002 reported that firms of 10 or more partners provided an average of 20 hours of pro bono work per lawyer per year. The Pro Bono Institute housed at Georgetown University Law Centre in Washington DC has issued a challenge to US law firms to use their best efforts to ensure minimum pro bono commitments. As at October 2005 well over 100 law firms had committed to spending a minimum amount of time equal to either 3% or 5% of the firm’s total billable hours or either 60 or 100 pro bono hours per lawyer per year on pro bono work. In Australia, the National Pro Bono Resource Centre is currently consulting with the profession on an appropriate aspirational target for Australian firms. Indications are that an aspirational target in Australia is likely to be significantly lower than that set by The Pro Bono Institute in the USA.

Even if aspirational targets of this kind were met in Australia, it is doubtful that pro bono work in the private sector will ever come close to meeting community needs. Private sector pro bono services do not provide a national, or even a state-wide, strategy to address the issue of access to justice. To do this would require the ability to assess community need, identify systemic problems and then take steps to address these at a policy level. As much as pro bono practices genuinely aim to be responsive to community need, they do not purport to be able to fulfil this monitoring and policy role. It is, therefore, important that government or recipients of pro bono services have realistic views of the amount of pro bono legal assistance the private sector can provide. Many of the established practices in New South Wales are already at saturation point with large demand still remaining.

Anecdotally, three large established Sydney pro bono practices, which last financial year undertook 32,000 hours of pro bono work between them in New South Wales, report that they turn away approximately twice as many referrals as they are able to accept. This is partly due to legal and commercial conflicts with existing client matters but substantially because of their lack of capacity to accept all the work which is referred.

It is, therefore, important that pro bono services continue to support and complement the growth of the community sector. Community legal centres are a particularly cost effective means of providing access to justice for thousands of people. Along with legal aid commissions they provide vital access to justice for far more people than the private sector can ever hope to.

A strategy to increase pro bono work which is currently sparking interest is the proposal that governments assess commitment to pro bono work in considering responses to tenders for government legal work, as has occurred in Victoria. While this is one way to encourage firms to establish formal pro bono practices and increase pro bono commitment, it could also result in government pressure for pro bono practices to focus on a particular area of law or need identified by government. For the reasons expressed above, law firms typically focus their practices on areas of need which receive less or no government support. It would be disappointing for practices to be redirected into areas preferred by the government in a way which may ultimately reduce the government’s responsibility to provide support in those areas and disrupt or threaten successful pro bono projects developed by firms focusing on other areas of need.

Pro bono & CSR

While pro bono work has been undertaken by solicitors and law firms for many years prior to the rise of the concept of corporate social responsibility, CSR is likely to have played some role in the more recent development of some pro bono practices in Australia. Many law firms will have considered their CSR obligations as the concept has increased in profile and will also have been encouraged to develop those obligations as law firm clients increasingly seek out information on the firms’ CSR programs. However, the development of CSR is not always beneficial to the promotion of pro bono. One of the basic differences between CSR and pro bono work undertaken by law firms is that the latter involves some legal element, be it representation, advice, legal education or law reform, whereas CSR initiatives involve a variety of skills—none of which is necessarily legal. Another significant difference is that publicity is an inherent element of most CSR programs, that is, they include a marketing strategy to ensure that the public is aware of the work that an organisation is doing to raise or retain its public image as a responsible corporate entity. Pro bono arises from an ethical professional obligation and its motivation is, therefore, not to promote the provider of pro bono services. It aims to assist the disadvantaged without a marketing imperative and the matters or areas in which assistance is most needed are generally least likely to have marketable features.

Further, the resources that a law firm can dedicate to pro bono practices can be threatened by CSR programs, which absorb law firm resources, but do not involve legal work. Generally speaking, the value of legal services that a law firm can provide to a community is much greater than the value of other services it can provide such as participating in reading assistance programs with schools, or repairing or maintaining community organisations’ properties. Yet the cost to the firm in providing those services, that is, the value of staff time, is likely to be the same. It would be disappointing if the development of CSR programs in the legal profession were to detract from the provision of pro bono legal services by firms.

It is also important that pro bono legal work maintains a distinct identity so that it can ride out the crest of the CSR wave of popularity. While currently popular in attracting support, CSR, unlike pro bono obligations, does not have a long and entrenched history. There is a risk that if pro bono work does not retain an identity separate from general CSR activities, their motivations may become indistinguishable and the ethical origins of pro bono may fall by the wayside. The danger then is that if the trend of participating in CSR were to subside, pro bono work may have become so absorbed into the concept of CSR that support for pro bono may subside along with support for CSR.

* Michelle Hannon is the Director of Pro Bono Services at Gilbert + Tobin. She also sits on the Boards of the National Pro Bono Resource Centre and the NSW Public Interest Law Clearing House. Prior to working at Gilbert + Tobin, Michelle worked in both the private and community legal centre sectors.

* Elise Ball is a junior pro bono lawyer at Gilbert + Tobin. She has previously worked in the firm’s Intellectual Property and Corporate Communications and Technology groups.

Endnotes

1. Available at < www.lawcouncil.asn.au/policy/2106700371.html>, at 16 November 2005.

2. Available through <www.lexisnexis.com/au/> or through www.butterworthsonline.com/, at 16 November 2005.

3. References in this paper to pro bono practices are to practices administered by dedicated pro bono lawyers or administrators. The paper does not canvass the huge amount of pro bono work undertaken in a less formal way by smaller firms and sole practitioners.

4. Based on the number of firms who have notified their pro bono practices to the National Pro Bono Resource Centre. Further details can be found at <www.nationalprobono.org.au/> at 16 November 2005.