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TRACEY BOOTH[*]
In 2001 the National Pro Bono Task Force ('the Task Force') found that although the legal profession makes a significant contribution to the community through its pro bono work, a high level of unmet demand for legal assistance remains.[1] The objective of the Task Force was to increase the number of lawyers offering pro bono services in areas where there is the greatest need. The Task Force recommended that action be taken to actively promote 'a strong pro bono culture in Australia' [2] and, to this end, that law students be given opportunities to participate in internships/ outreach programs with a pro bono focus.[3]
A strong pro bono culture is more likely to prevail in Australia where an ethic of public service is inculcated in the legal profession at all levels and in all styles of practice. That a public service ethic is long-standing in the legal profession and legal culture is not disputed. However, late modem socio-economic changes such as globalisation, pro-competition policies and concomitant competitive pressures, shrinking areas of legal practice, increasing calls for public accountability, the poor reputation of lawyers and the influence of new information technologies have had a profound impact on the legal profession.[4]Nonetheless, law and justice remain crucial to our civil society and it is essential to recognise that, despite these changes, the legal profession continues to play a unique role in the maintenance of our justice system. By virtue of their skills and prominent role in the delivery of legal services and access to legal institutions, lawyers can be viewed as the guardians of the 'legitimacy and credibility' of the legal system. Access to justice for all must be a primary concern of the profession.[5]
Australian law schools are in a unique position to assist in fostering the cultural change necessary to support increased pro bono services. The transformative nature of legal education has been well documented and researchers have emphasised the importance of the communication of values by law schools to shaping legal culture.[6] Although student pro bono work is not a new phenomenon in many Australian law schools, such programs tend to operate in an ad hoc and informal manner.[7] Institutionalised student pro bono programs are needed in law schools if we are to convey the significance of public service as a professional responsibility to our law students and promote the necessary cultural change.
The parameters of contemporary legal education need to be broadened from the current focus on knowledge and skills constructed in bite-sized units, to incorporate programs that seek to foster a strong pro bono ethic and thus instill the value of public service. The most appropriate way to foster a strong pro bono culture at law school is to establish a highly visible and formal program that provides law students with opportunities to participate in suitable pro bono projects. Pro Bono Students Australia (PBSA) has been established to promote an active pro bono culture at the University of Western Sydney (UWS) and provide much needed voluntary legal services to the community. In conjunction with the National Pro Bono Resource Centre (NPBRC), PBSA has been established as a pilot in the UWS School of Law and under this program volunteer law students are matched with public organisations that need law related services. Student pro bono is a significant educational opportunity and, through PBSA, it is hoped that the student pro bono culture will become part of the fabric of the UWS law school.
The meaning of 'pro bono' is somewhat contested although the differences in approach seem to reflect different contexts and/or uses.[8] 'Student pro bono' can be distinguished from the clinical legal education programs that have flourished in many Australian law schools during recent years.[9]
Clinical legal education programs form part of the academic curriculum and are assessed as such. The primary focus of these programs is on teaching small groups of students practical 'lawyering' skills and awareness of ethical and professional issues in a closely supervised simulated or real legal environment.[10] In contrast, student pro bono programs are voluntary and primarily concerned with service to the community and fostering a public service ethos in participating law students. Of course, this does not mean that pro bono work will not enhance the academic curriculum (there is no doubt that student pro bono does provide such educational advantages) but the focus is public service.
Given that student pro bono projects and clinical legal programs both involve improving access to justice in a community service setting, a degree of overlap is likely to occur. However, the NPBRC argues that pro bono and clinical legal programs play distinct roles in legal education and should co-exist in Australian law schools in a complementary fashion.[11] In essence, student pro bono work is 'voluntary work done out of a sense of professional responsibility-where the primary motivation for work is a concern for justice as opposed to securing gain'.[12] On the other hand, clinical legal education programs involve 'an intensive small group.! learning experience in which each student takes responsibility for legal and related work for a client (whether real or simulated) in collaboration with a supervisor'.[13]
That legal education has proved to be exceptionally dynamic is well illustrated by the transformation of law over the past half-century from its trade origins into a classic; liberal university discipline. Legal education was once largely confined to the content of the 'legal rules' in specific areas of law with little, if any, attention given to ethical concerns, professional values, theoretical frameworks or generic and/or legal skills; pedagogy tended to be limited to a traditional lecture format with exams as the only assessment tool.[14] However, during the last two decades significant changes have occurred in the ,'thinking, focus ad substance of legal education'[15] brought about by the competing demands of a variety of stakeholders, including law students, universities, employers, professional societies and admission boards. Yet, the ALRC is critical of what it perceives as a preoccupation by law schools with the so-called 'Priestly 11' requirements for legal practice. Satisfaction of thee accreditation standards has caused law schools to dedicate the majority of their subjects to covering the pr scribed 11 areas of substantive knowledge.[16] Consequently, Australian law programs have tended to become bogged down accommodating the detailed content of certain areas of law at the expense of 'a deep appreciation of ethical standards and professional responsibility'. [17]
Certainly, contemporary legal education should be about more than the acquisition of particular areas of knowledge and developing and refining learning and practical skills; it must also instill certain fundamental professional values. Law students need to have their 'values challenged as well as their intellectual ability'.[18] As Bailie Cllnd Bernstein-Baker rightly point out, law school is as much a 'professional socialisation experience as it is a scholarly, skills building enterprise'.[19]Contemporary legal . education aims to provide law students with knowledge generic learning and professional legal skills, and skills of life-long learning. Significant changes to the curriculum have included the incorporation of ethics, theory and an international perspective. In addition, legal educators have devoted much energy to developing learner focused teaching methods and improving assessment and feedback As a result, the scholarship of legal education and the importance of teaching is gradually being recognised and given status in law schools and universities. However, it is clear that the parameters of legal education need to be expanded beyond academic content and learning skills to encompass the 'public nature of a lawyer's work ... dedication to public service [must be] built into [legal] education'.[20]
To generate the cultural change sought, a public service ethos needs to be as much a part of a law student as the ability to analyse a case or interpret a statute. Theoretically, it should not be difficult to instill such an ethos because surveys of law students have shown that many begin their university careers with an idealistic outlook and are eager to use their skills to work in the public interest 'social justice, promotion of the environment and the elimination of discrimination are still powerful motivators for the young'.[21] However, empirical research has shown that this idealism generally does not last and there is considerable evidence of waning public interest commitment during law school.[22]
According to Chaifetz 'numerous social and cultural norms assist in denigrating work performed on behalf of society's poor and needy. The low regard for pro bono work is partially a reflection of the lack of prestige with which this work is regarded at law school'.[23] A major problem is that there is a lack of emphasis in the curriculum on issues associated with the disadvantaged or social justice and overall, law school culture tends to emphasise· 'rigorous analysis, scholarship and economic success rather than fostering respect for public interest work'.[24]
Many American law schools have embraced this wider perspective of legal education and incorporated compulsory student pro bono requirements in their programs. For example, a mandatory Pro Bono Graduation Requirement Program is conducted at Columbia University. This program requires law students to perform a set number of hours of pro bono work in order to graduate and, as the work is pro bono, they do not receive academic credit.[25] Of course, compulsory pro bono graduation requirements are ambitious and would require intensive resources that are probably not within the reach of most Australian law schools. This simply means that we have to find other ways of achieving this change. Fringe pro bono programs are not sufficient. To incorporate student pro bono as part of the fabric of the law school, the following features of a student pro bono program are essential:
• the institutionalisation of a formal program
• opportunities for student participation
• active promotion and recruitment of students and community organisations
• visible support and encouragement from staff
• a formal pro bono policy at faculty level
• formal recognition of student participation and service.
With considerable assistance from the NPBRC, PBSA has been established as a trial student placement program in the School of Law at UWS. The program is largely modelled on a student volunteering program that is conducted in Canada-Pro Bono Students Canada (PBSC). PBSC began with some 50 students and a small number of participating organisations at the University of Toronto Faculty of Law in 1996. Now the program is operating in 17 universities across Canada with approximately 1000 participating law students. PBSC has shared experience and materials generously to assist in the development and implementation of the Australian program.
Under the PBSA scheme volunteer law students who are interested in doing pro bono work are matched with public interest and community organisations that need law-related services, or with lawyers who require support doing pro bono work. PBSA defines student pro bono as:
Where students, without fee, reward or academic credit, provide or assist in the provis1on of services that will provide or enhance access to justice for low income and disadvantaged people or for non-profit organisations that work on behalf of members of the community who are disadvantaged or marginalised, or that work for the public good.
The goals of PBSA are to:
• improve access to justice for the needy and disadvantaged in the community by providing organisations with access to highly skilled and committed volunteers
• foster the ethic of public service in UWS law students and produce law graduates who are mindful of their public service obligations and committed to fulfilling those duties
• provide UWS law students with opportunities to participate in internships/outreach programs with a pro bono focus.
PBSA is designed to be a formal outreach program that provides students with opportunities to participate in pro bono activities and community organisations with committed and skilled volunteers. In keeping with the spirit of pro bono, student participation is voluntary and students do not receive academic credit or monetary compensation for their work.
Like its Canadian counterpart, the program operates by way of a referral system, which is overseen by a student steering committee, in conjunction with the a program director and with in-house support from the law school. An important feature of the Canadian model is the opportunity for students to become involved in the operation and management of the program.[26] There, day-to-day administration, including student recruitment, arranging and coordinating the placements, and building enthusiasm and interest among students,
is the responsibility of a student steering committee. At UWS, the director of PBSA is a member of academic staff in the law school who is responsible for overseeing the development of the program generally. As the establishment of PBSA is in its early stages, the program director is currently heavily involved in the development and implementation of the program. However, once the program becomes more established, the student steering committee will assume primary responsibility for the running of PBSA (although the director will remain actively involved). Enthusiastic and committed staff involvement is particularly important to provide the 'institutional memory' and ensure continuity of the program.
Students register their interest to participate in the program by submitting an application form together with a copy of their curriculum vitae to PBSA. All information and relevant forms are available from PBSA or may be downloaded from their web site.[27] On the form, students indicate the type of organisation they would prefer to work with (for example corporate, legal services, non-profit) and the type of area in which they would like to work (for example children/ youth, civil liberties, immigration law, bankruptcy/debt, environmental, product liability). Students are also asked to set out any special skills they might have such as computing or other languages.
Potential placement organisations submit details of the type of project opportunities being offered to PBSA for inclusion in the program. In Canada, a diverse range of organisations have provided pro bono opportunities for students through PBSC including the Autism Society of British Columbia, Battered Women's Support Services, the British Columbia Coalition for Safer Communities, the Inland Refugee Society, Greenpeace Canada, 411 Seniors Centre, Vancouver Co-op Radio and the Multiple Sclerosis Society of Canada. The types of project opportunities have ranged from developing information packs and booklets on various aspects of the law and assisting with researching and writing policy, to working at a community services office where information and referral services are provided to recently released prisoners. Students participating in PBSC at the University of British Columbia have assisted a private lawyer in her pro bono work by performing research in support of a human rights complaint against the Vancouver School Board for failure to teach about different lifestyles and family dynamics. A project for the BC Persons with AIDS Society required a student to chart recent court developments regarding the Marihuana Medical Access Regulations focusing on issues of access and lawful possession.
The PBSA director will discuss potential projects with organisations to determine suitability and, if necessary, try to arrange legal supervision. All potential placement organisations are advised that students cannot provide legal a vice to any organisation or individual except under he close supervision of a legal practitioner. Interested law students are matched with suitable placement organisations and projects according to student experience and preferences. PBSA will contact the placement organisation and facilitate a meeting between the student and the placement organisation. If the student and the placement organisation decide that they are well matched, PBSA will arrange for the student, the placement organisation and legal supervisor to sign!·· a simple agreement setting out relevant terms and conditions. Before the student commences work on a pro bono project, he or she will complete professional responsibility training arranged by PBSA.
Student placements will generally occur during the academic year (with breaks during exam periods) over one or two semesters, depending on the needs of the placement organisation. Ideally, the work opportunities for students should be projects that can be managed and completed by a law student working three to eight hours per week However, this aspect is negotiable by the student and the placement organisation. It may be that projects are ongoing. For example, the Family Law Project (FLP) is a joint project of PBSC, Osgoode Hall Law School and the University of Toronto Faculty of Law. FLP volunteers work in Family Courts in Ontario (and more recently Halifax) assisting people who are unrepresented by helping them .fill out the necessary forms and answering questions about the court system and legal process.
The placement organisation is required to provide an on-site supervisor who will be available while the student is working at the placement organisation. The placement supervisor will settle the work plan with the student -how many hours will be worked each week, the length of the project and the nature of the work If the placement supervisor is not a practising lawyer, the organisation will have to arrange for a legal supervisor to provide the student with legal supervision during the course of the placement In the event that the organisation does not have to access to a practising lawyer, the PBSA will endeavour to find a lawyer who may be able to assist. The possibilities are that an academic on staff with an unrestricted practising certificate may be able to assist or solicitors in the community may be available.
At the conclusion of the project, the student, the placement organisation and the supervising lawyer complete an evaluation form regarding the placement and return it to PBSA. Evaluation will obviously be an ongoing process and will be carefully monitored to ensure the continual improvement of the program.
We anticipate that many factors will contribute to the success of PBSA. Most importantly, if pro bono work and the ethic of public service are to become part of the law school culture, there must be visible support and encouragement from the university, the school and the staff. Student enthusiasm is vital and student recruitment will be an ongoing process; its success will depend for a large part upon the seriousness with which the program is regarded by the law school. Such regard (or the appropriate level of seriousness) can be conveyed in a number of ways. First, the PBSA should be provided with separate physical space within the law school. An identifiable and easily accessible office renders the program visible and legitimate. The PBSA office is currently located in the law school building on the Parramatta campus. Second, staff enthusiasm and support will be crucial and the role of PBSA director will need to be held by one committed to the program. Here, it is important for the university to recognise and encourage the contribution of staff to the development of such projects and the maintenance of professional values. Third, student involvement should be recognised and acknowledged through prizes and/ or commendation at graduation and more informal occasions during the academic year.
Although not as resource-intensive as the more traditional clinical legal education programs, funding is necessary for administrative support. Ideally: the program would like to be able to fund a position for a part-time student administrator as is the case in Canada. Currently the law school provides in-house support and administrative assistance is supplied on a voluntary basis by the student steering committee. The squeeze on resources that is endemic in tertiary education means that PBSA must rely on external funding.
Pro bono legal services are required in our community to increase access to justice for the needy and disadvantaged. Although many lawyers are involved in the provision of such services, greater participation by the profession is required. The question is how we can induce more practitioners to provide much needed pro bono services. In response, the Task Force recommended that an active pro bono culture is required. Given the unique role of legal education in the creation of professional legal norms, the logical point to begin to develop a pro bono culture is at law school As legal educators, we need to take steps to broaden the framework of contemporary legal education to allow the ethos of public service to permeate the entire program. Despite unsettling socio-economic changes, law and justice remain integral to our civil society and law students need to be aware of the importance and ramifications of the obligations that are placed upon them by virtue of their profession.
While clinical legal education programs can and do provide students with opportunities to assist the needy and disadvantaged in our community, the focus is the application of legal knowledge to legal problems and the development of professional 'lawyering' skills. This is not to say that such programs do not also inform students of ethical and social justice issues -clearly many clinical programs require students to reflect upon such issues. However, a voluntary student pro bono program such as PBSA is expressly concerned with instilling a public service ethic in students through voluntary service to the community. If student pro bono is well integrated with the existing law program, afforded visibility and accorded a serious position in the school, it will go a considerable distance to generating the necessary cultural change.
REFERENCES
[*] TRACEY BOOTH teaches law at the University of Western Sydney.
The author thanks the referee for substantial comments on an earlier draft of this article.
© 2004 Tracey Booth email: t.booth@uws.edu.au
[1] National Pro Bono Task Force, Report of the National Pro Bono Task Force, (Australian Law Reform Commission 2001) 8-9
[2] Ibid 29-30.
[3] Ibid 30-31.
[4] Australian Law Reform Commission, Managing Justice (ALRC 89) para 213
[5] David Hall, 'The Law School's Role in Cultivating a Commitment to Pro Bono' (1998) 42(3) Boston Bar Journal 4, 4
[6] Adrienne Stone, 'The Public Interest and the Power of the Feminist Critique of Law School: Women's Empowerment of Legal Education and its Implications for the Fate of Public Interest Commitment' (1997) 5 American University Journal of Gender and the Law 525.
[7] Task Force above n 1, 31.
[8] Ibid 4-7
[9] For a description of the available clinical legal programs in Australian law schools see the National Pro Bono Resource Centre, Pro Bono and Clinical Legal Education Programs in Australian Law School Information paper, August 2004 available from the NPBRC web site <www.nationalprobono.org.au> at 20 November 2004.
[10] Ibid 9.
[11] Ibid.
[12] Ibid 10.
[13] Griffith Law School, Clinical Legal Education Programs Strategic Plan 2003-2007 quoted in NPBRC information paper in n 9,10
[14] R Johnstone and S Vignaendra, Learning Outcomes and Curriculum Development in Law (Australian University Teaching Committee 2003) 4S3
[15] Ibid 454
[16] ALRC above n 4, para 2.82
[17] lbid
[18] Hall above n 5, 20.
[19] James Baille and Judith Bernstein-Baker. 'In the Spirit of Public Service: Model Rule 6.1, the Profession and Legal Education' (1994) 13 Law and Inequality 51, 67
[20] Stephen Parker 'Why Lawyers should do Pro Bono Work' in Christopher Arup and Kathy Laster (eds), For the Public Good· Pro Bono and the Legal Profession m Australia (2001) 11
[21] Ibid 7.
[22] Stone above n 6, 533-5
[23] Jill Chaifetz, 'The Value of Public Service: A Model for Instilling a Pro Bono Ethic in Law School' (1992-1993) 45 Stanford Law Review 169S, 1697
[24] Bailie and Bemstein-Baker above n 19, 66.
[25] Cynthia Adcock and Alison Keegan, A Handbook on Law School Pro Bono Programs, Association of American Law Schools (2001) 9
[26] National Pro Bono Resource Centre, above n 9, 14.
[27] PBSA web site <www uws.edu. au/about/acadorg/clb/sl/probono> at 20 November 2004
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