Attorney General's Department
Federal Civil Justice System Strategy Paper
Joint Submissions by the pro bono programs of
Allen Arthur Robinson
Baker & McKenzie
Blake Dawson Waldron
Clayton Utz
Gilbert + Tobin
Henry Davis York
1.
Summary and Recommendations
1.1
Summary
These submissions are a joint response by 6 major pro bono law providers to the issues raised
in Chapter 4, Supporting Access to Justice for Cases with Merit, of the Federal Civil Justice
System Strategy Paper. This paper also briefly addresses the issues raised in Chapter 6 in
relation to Court fees.
The provision of pro bono legal services by private practitioners is an important component of
the complex system of access to justice in Australian civil law, which also includes Legal Aid
offices, legal aid provided by private practitioners, Community Legal Centres, "public interest"
referral schemes and State law societies.
However pro bono assistance by private lawyers is no substitute for properly funded legal aid
and a healthy community legal sector. There are many areas where pro bono lawyers will be
unable to assist and demand will always exceed supply. The private profession is unable to fill
many of the gaps left by the present legal aid arrangements.
Allen Arthur Robinson, Baker & McKenzie, Blake Dawson Waldron, Clayton Utz, Gilbert +
Tobin and Henry Davis York (the "firms") each conduct formal pro bono programs. In
FY2003 these firms provided more than 75,000 hours of in-house pro bono legal assistance in
more than 1,000 matters1, for clients who would otherwise not have had access to legal advice
and assistance, even where they had a meritorious matter.
While each firm's pro bono program involves different policies and projects, all have
experienced similar issues in delivering pro bono services to those in the community who have
1
These figures do not include the hours contributed or the clients assisted through a number of secondment
programs to community legal pro bono providers and roster programs.
not otherwise been able to access justice. Our experience is that current legal aid and access to
justice arrangements are inadequate to meet the community's need for legal assistance. There
is a lack of national equity and uniform access to justice across Australia. Many people are
unable to afford or otherwise obtain legal advice or representation and are unassisted in their
dealings with the justice system.
1.2
Recommendations
We support the following specific recommendations contained in Chapter 4 of the Federal
Justice System Strategy Paper:
Recommendation 9:
That consideration be given to providing further funding for additional Community Legal
Centres in the regional and outer metropolitan areas of Queensland, Victoria and Western
Australia, as identified in completed Community Legal Centre reviews.
Recommendation 12:
That consideration be given to increasing the minimum level for the core operating funding of
Community Legal Centres and bringing the least well resourced centres, mainly in regional
areas, to the minimum base.
Recommendation 15:
That the Attorney-General’s Department liaise with the Legal Ethics Committee of the Law
Council of Australia and other interested stakeholders regarding the development of model
conduct rules designed to provide guidance to lawyers engaging in discrete task representation.
Recommendation 16:
That the courts liaise with the Attorney-General’s Department, the Law Council of Australia,
and other interested stakeholders regarding possible amendments to court rules designed to
clarify the obligations of lawyers when they are not acting on an on-going basis in litigation.
We also support the following recommendations contained in Chapter 4, with amendment as
follows:
Recommendation 7:
That consideration be given to enhancing the availability of low cost interpreters, particularly
face-to-face interpreters for Community Legal Centres and similar services including pro
bono legal services that offer legal assistance to people from linguistically diverse
backgrounds.
Recommendation 13:
That the further development of funded duty lawyer schemes in the Federal courts be
supported.
Recommendation 14:
That the Legal Services Directions be amended to incorporate the Protocol for
Commonwealth Agencies prepared by the National Pro Bono Resource Centre in relation to
commercial conflict of interest and the provision of pro bono work.
We also make the following additional recommendations:
Recommendation A:
The Commonwealth extend the availability of the free Translating and Interpreting Service
(TIS) to law firms who provide pro bono legal assistance to people who do not speak English.
Recommendation B:
The Commonwealth recognise the importance of Community Legal Centres (including
Aboriginal Legal Services) as the "front-line" providers of community legal education, advice
and assistance, by increasing funding to enable existing Community Legal Centres to provide a
more comprehensive service to people living in outer-metropolitan, regional, rural and remote
areas and for those with special needs (including physical and intellectual disabilities and
mental illness).
Recommendation C:
The Commonwealth encourage, support and resource innovative and collaborative
partnerships between community legal organisations and private lawyers to improve access to
justice.
Recommendation D:
The Commonwealth authorise Legal Aid agencies to expend Commonwealth legal aid funding
on matters under State law.
Recommendation E:
A review be conducted to evaluate the effectiveness of existing referral schemes within
Federal Courts.
Recommendation F:
The Commonwealth acknowledge and support the commitment of the private legal profession
to ensure access to justice through the provision of pro bono legal services, by explicitly
recognising the conduct of pro bono work (under an agreed National Pro Bono Resource
Centre definition) as a selection criterion for obtaining instructions to act on behalf of the
Commonwealth.
Recommendation G:
The Commonwealth recognise the need for specialist legal services for homeless people and
acknowledge and support the commitment of the private legal profession to providing access
to justice to Australia's homeless, by funding the position of the coordinator of each Homeless
Persons' Legal Clinic on an ongoing basis.
Recommendation H:
The Commonwealth assist in the promotion and support of pro bono practice in the private
legal profession by providing adequate recurrent funding to fully support the operations of the
National Pro Bono Resource Centre.
Recommendation I:
The Commonwealth consider incorporating an automatic Court fee exemption for matters
where clients are receiving genuine pro bono legal assistance.
Recommendation J:
The Commonwealth acknowledge and support the commitment of the private legal profession
to ensuring access to justice by improving access to disbursement funds and implementing
measures to relieve the disbursement burden.
Recommendation K:
The Commonwealth acknowledge and support the commitment of the private legal profession
to ensure access to justice through the provision of pro bono legal services, by undertaking not
to seek costs against lawyers who act genuinely on a pro bono basis.
2.
Background - Provision of Pro Bono legal services
2.1
Introduction
Although each firm has a distinct pro bono program, there are clear similarities in their
provision of pro bono legal assistance. For example, each firm:
2.2

has a formal pro bono program in operation, managed by people with designated
pro bono co-ordination roles;

accepts referrals of clients through a number of direct referral mechanisms
developed with Community Legal Centres and government agencies;

is a member of the various co-ordinated pro bono referral programs, including the
Public Interest Law Clearing Houses (PILCHs) in NSW, Victoria and Queensland,
the Law Society of NSW Pro Bono Scheme, the Law Institute of Victoria Legal
Assistance Program and the Federal Magistrates' Court Unrepresented Litigants
Scheme;

provides lawyers to attend Homeless Persons' Legal Clinics in Melbourne, Brisbane
and/or Sydney;

funds and/or staffs through secondment legal clinics or Community Legal Centres;
and

provides in-kind assistance to Community Legal Centres and/or community
organisations in the form of mentoring programs, meeting rooms, training, library
resources, desktop and publishing or administrative assistance.
What is pro bono?
Each firm has a different pro bono policy to determine which matters will be accepted for pro
bono legal assistance. The consistent elements of all of our policies are that pro bono legal
assistance is generally provided by the firms:
(a)
to disadvantaged individuals who are not eligible for Legal Aid and to individuals
or community organisations that cannot otherwise afford to pay for legal
representation;
(b)
where the firm has the relevant expertise and capacity to take the matter on and has
no conflict of interest;
(c)
generally speaking, at no cost to the client; and
(d)
the work is not undertaken for business development purposes, or for families and
acquaintances of employees of the firm or commercial clients.
Some firms also require a matter to have a public interest element. Firms often provide clients
with advice on the merits of their claim and generally speaking do not go on to represent those
clients who have little or no prospect of success.
3.
Response to Chapter 4 – Supporting Access to Justice for
Cases with Merit
These submissions principally address the issues raised under the section Enhancing access to
legal advice and representation. The submissions also touch on the intersection of pro bono
programs with culturally and linguistically diverse people and rural, regional and remote
Australians2.
We support the broad concept behind Enhancing access to legal advice and representation, to
assist people incapable of representing themselves and to support self-represented litigants
capable of representing themselves, subject to our comments below.
3.1
Culturally & linguistically diverse people
The Federal Civil Justice Strategy Paper recognises that a limited number of Telephone
Interpreter Services are provided free of charge to eligible non-government, not-for-profit,
community-based organisations (such as Community Legal Centres)3. This service is not
available to firms providing pro bono legal assistance to persons from culturally and
linguistically diverse backgrounds.
As with all community legal initiatives, the firms provide pro bono legal assistance to many
culturally and linguistically diverse people, both through their in-house service and through
their external programs. Although some firms are prepared to meet some limited
disbursements on pro bono matters, the cost of an interpreter for a 2 hour meeting at which the
terms of engagement letter is explained and initial instructions are obtained, will usually
consume most of the amount firms are ordinarily prepared to contribute to disbursements on a
pro bono file.
The ability of culturally and linguistically diverse people to obtain access to justice through
firms' pro bono programs could be greatly enhanced by:
(a)
the extension of the free Translating and Interpreting Service (TIS) to firms who
provide pro bono legal assistance to people who do not speak English;
(b)
the availability of low cost interpreters, particularly face-to-face interpreters, for
firms who provide pro bono legal assistance to people from linguistically diverse
backgrounds; and
(c)
the provision of a disbursement fund to meet interpreting costs (discussed below at
5.1).
2
The absence of specific discussion of the needs of Aboriginal and Torres Strait Islanders and of people with
disabilities does not reflect the importance of providing pathways for accessing justice to these groups of people.
Many firms' pro bono programs specifically target the provision of their pro bono services to such groups.
3
Federal Civil Justice Strategy Paper, p77.
The firms therefore support Recommendation 7 in Chapter 4 of the Civil Justice Strategy
Paper with amendment as follows:
Recommendation 7:
That consideration be given to enhancing the availability of low cost interpreters, particularly
face-to-face interpreters for Community Legal Centres and similar services including pro
bono legal services that offer legal assistance to people from linguistically diverse
backgrounds.
The firms make a further recommendation in relation to culturally and linguistically diverse
people, namely:
Recommendation A:
The Commonwealth extend the availability of the free Translating and Interpreting Service
(TIS) to law firms who provide pro bono legal assistance to people who do not speak English.
3.2
Rural, regional and remote Australians
People living in outer metropolitan, regional, rural or remote areas face real difficulties in
accessing the justice system because the majority of legal resources are urban and central
business district based. More than three quarters of solicitor practices in Australia are located
in capital cities and suburbs4. It is therefore more difficult for people outside these areas to
access pro bono legal services.
Although a number of the firms have acted for regional, rural and remote clients under their
pro bono schemes, there are practical difficulties associated with this including:
(a)
difficulties obtaining both the confidence of a client and informed instructions
without the opportunity to meet face-to-face with the client, especially where the
client is from a culturally and linguistically diverse background, is Aboriginal or
Torres Strait Islander or has a disability. In many circumstances, telephone contact
is insufficient and some remote clients do not have easy access to telephone
communications. The utility of the advice that can be provided by telephone is also
limited by the inability to view documents held by the client;
(b)
the often high cost of disbursements, including the cost of travelling to meet with
the client or witnesses or other parties, or to communicate with any of them by
telephone. Firms' caps on disbursements per file are often used up simply through
the process of obtaining instructions; and
(c)
the lack of local knowledge which may enable the solicitor to find a more
straightforward, and possibly better outcome for the client.
Despite some successful relationships with regional and rural Community Legal Centres,
capital city law firms are not well placed to provide a comprehensive pro bono coverage to
rural and regional areas.
This places a tremendous burden on rural and regional private lawyers and rural and regional
Community Legal Centres as they try to meet the need for pro bono legal services. That
pressure is demonstrated by anecdotal evidence to the firms that it is close to impossible for
Community Legal Centres to obtain local casework assistance for clients. Even when there is a
4
Australian Bureau of Statistics, Legal Practices, Australia, 2001-2002, 8667.0, 25 June 2003 at Table 1.1
grant of legal aid and the matter has good prospects of success (such that the lawyer is likely to
recover costs from the other party), matters cannot be placed locally5.
The limited number of lawyers and the potential for conflicts of interest can exacerbate these
problems. For example, it is not uncommon for the only solicitor in a town to have an existing
commercial relationship with the other side in a dispute, meaning that it is impossible for a
person in that community to obtain any local legal advice (either paid or pro bono).
The pressure on local private lawyers is also reflected in figures provided by the Australian
Bureau of Statistics which show that a solicitor in practice outside of a capital city will conduct
on average 227% of the pro bono work conducted by their capital city colleague6.
This extra burden is compounded by the fact that most rural or regional lawyers belong to
smaller practices or are sole practitioners. The same ABS statistics reveal that a solicitor
working in a practice with only 1 principal averages 36.2 hours of pro bono work per year,
whereas the average of a solicitor in a firm with more than 10 partners is only 15.9 hours per
year7.
The firms endorse the following statements contained in the Civil Justice Strategy Paper, in
respect of rural, regional or remote Australians:

In many instances, Community Legal Centres will be the primary source of free
legal services available in a rural, regional or remote area. These services provide
very valuable assistance for people who are socially or economically disadvantaged
to access the legal system (p88);

Community Legal Centres have become an integral component of the legal system,
particularly in rural, regional and remote parts of Australia. However, it appears
that some Centres may be finding it difficult to continue to operate with their
present levels of resources. Where a Centre is situated in a rural or regional area,
they have higher service delivery costs, limited access to a volunteer base, more
difficulty attracting suitably experienced professional staff and carry travel and
additional staffing costs to provide outreach service (p90);

all organisations that provide legal information websites review the design of those
sites to ensure maximum accessibility to people in rural and remote Australia in
particular by making them easy to find, have limited graphics and minimum
download times and are easy to navigate (p90);

an increase in the number of Community Legal Centres in regional and outer
metropolitan areas would have a substantial positive impact on accessibility of legal
services for the people in the areas serviced by those Community Legal Centres, as
well as enhancing access to legal services for people in more remote areas through
an improved network of outreach services (p 91).
The firms therefore strongly support Recommendation 9 in Chapter 4 of the Civil Justice
Strategy that consideration be given to providing further funding for additional Community
Legal Centres in the regional and outer metropolitan areas of Queensland, Victoria and
Western Australia, as identified in completed Community Legal Centre reviews.
5
One of the firms was approached on 14 occasions in a period of eight months in 2003 in Sydney to assist in matters
from regional, rural and remote regions where a grant of legal aid had been made but the matter could not be placed
with a local solicitor.
6
7
Australian Bureau of Statistics, Legal Practices, Australia, 2001-2002, 8667.0, 25 June 2003
Australian Bureau of Statistics, Legal Practices, Australia, 2001-2002, 8667.0, 25 June 2003 at Table 2.10
3.3
Community Legal Centres
The firms also make a complementary recommendation in relation to increased funding to
Community Legal Centres:
Recommendation B:
The Commonwealth recognise the importance of Community Legal Centres (including
Aboriginal Legal Services) as the "front-line" providers of community legal education, advice
and assistance, by increasing funding to enable existing Community Legal Centres to provide a
more comprehensive service to people living in outer-metropolitan, regional, rural and remote
areas and for those with special needs (including culturally and linguistically diverse people
and physical and intellectual disabilities and mental illness).
We agree8 that Community Legal Centres make an important contribution as innovators in
addressing legal needs, and make a genuine difference to those in the community who are
disadvantaged and who would otherwise go unrepresented or without legal advice.
We recognise that Community Legal Centres and Legal Aid should be (and in fact are) the
front line of community legal assistance and the appropriate point of first contact for many
people seeking help. Without a well-funded and comprehensive network of Community Legal
Centres and Legal Aid offices, our pro bono schemes would be less effective.
Community legal services are the primary source of our pro bono clients and we rely upon
them to identify matters of real need and to make informed referral decisions as to which
clients are most appropriately in need of pro bono assistance. We have developed referral
protocols with individual centres and assist clients where the centre lacks the resources,
capacity or expertise to provide advice or representation.
Our pro bono schemes rely on existing community legal structures and in particular, a network
of legal referral centres within the established community legal sector. Our schemes work in
partnership, not competition, with existing arrangements at Community Legal Centres and
Legal Aid offices.
The firms therefore support Recommendation 12 in Chapter 4 of the Civil Justice Strategy
that consideration be given to increasing the minimum level for the core operating funding of
Community Legal Centres and bringing the least well resourced centres, mainly in regional
areas, to the minimum base.
The most immediate and fundamental action which can be taken to ensure that a more
comprehensive system of access to justice is available to meet the needs of the entire
community is to create a better funded and more wide-reaching network of Community Legal
Centres and regional Legal Aid offices. The Commonwealth should also actively support and
resource partnerships between Community Legal Centres and private lawyers which increases
clients' access to pro bono legal services.
Recommendation C:
The Commonwealth encourage, support and resource innovative and collaborative
partnerships between community legal organisations and private lawyers to improve access to
justice.
8
Federal Civil Justice Strategy Paper at p103.
3.4
Legal Aid
The Firms are each referred hundreds of individual clients with civil law matters each year
who have not been able to access Legal Aid assistance, despite an obvious inability to afford to
pay for a lawyer, and in circumstances where failure to enforce their rights or defend
themselves will have serious implications for their well-being.
Current Legal Aid arrangements do not address the needs of a significant number of fixed and
lower income Australians who require assistance with civil law matters. For example, in
NSW, the following are some of the areas where Legal Aid is unavailable, even when a person
is entirely without the means to afford legal advice or assistance9:
(a)
Most Local, District and Supreme Court proceedings;
(b)
unfair dismissal matters and other employment disputes before the Industrial
Relations Commission and the Industrial Magistrate;
(c)
victims compensation tribunal proceedings;
(d)
family disputes;
(e)
neighbour disputes; and
(f)
initiating and conciliating proceedings before the Anti-Discrimination Board.
The Commonwealth guidelines for Legal Aid funding are equally restrictive. For example,
Legal Aid may be granted in a Federal discrimination case only if there are strong prospects of
a substantial benefit being gained by the public or a section of the public. In reality, the
majority of matters involve an individual's experience of discrimination, without any broader
impact on the public at large. The "substantial benefit" requirement denies access to
representation to most applicants who have been the victim of unlawful discrimination or
harassment, but who do not have a public interest case.
The current Legal Aid arrangements effectively exclude most people of limited means from
having any access to our legal system as a mechanism for enforcing their basic rights. In a
very real sense, access to the courts in most fundamental areas of civil law has been
comprehensively removed from the reach of those without the capacity to pay for a lawyer.
In addition, access is further restricted by the division in funding between State and
Commonwealth matters. This artificial division does not reflect the experience of people
seeking access to justice. An application for Legal Aid should not be considered in separate
streams of State and Commonwealth matters before a funding decision is reached. A fairer
and more equitable system would assess whether a person has the capacity to afford legal
representation and apply guidelines uniformly regardless of State or Commonwealth
jurisdictions.
There is a concern that under the present system, which requires that the expenditure of
Commonwealth Legal Aid funds be quarantined for Commonwealth matters, Legal Aid in
New South Wales, Victoria and Queensland may have retained surpluses of Commonwealth
monies while funds have been unavailable for State civil matters.
The gaps in the present Legal Aid civil system cannot be filled by an increase in the provision
of pro bono services. The firms are presently unable to accept a large proportion of the clients
9
Legal Aid NSW Civil Law Guidelines, available at http://www.lawlink.nsw.gov.au/lac/lac.nsf/pages/scvliber . It is
noted that aid may be available in these areas to a limited group who are deemed to be at "special disadvantage, that
is, children or persons having substantial difficulty in dealing with the legal system by reason of a substantial
psychiatric condition, developmental disability, intellectual impairment or physical disability.
who are referred to us for assistance, for reasons including capacity or conflict. In
circumstances where the firms cannot provide pro bono assistance, there is often nowhere else
that we can refer an unrepresented person for assistance. Given that these individuals have
been unable to obtain Legal Aid before they were referred to us, we strongly believe that most
of those people whom we cannot assist are unable to secure any alternative legal assistance.
The result is that their rights are not protected and many will continue on in the court system as
unrepresented litigants, with all the attendant problems this produces.
Recommendation D:
The Commonwealth authorise Legal Aid agencies to expend Commonwealth legal aid funding
on matters under State law.
3.5
Duty lawyer schemes
It is the experience of the firms that duty lawyer schemes provide a valuable service to selfrepresented litigants.
The firms therefore support Recommendation 13 of Chapter 4 of the Civil Justice Strategy
Paper that the further development of duty lawyer schemes in the Federal courts be supported.
However it is crucial to the success of these schemes that they are publicly-funded.
Recommendation 13 has been amended accordingly to make this clear.
3.6
Court referral schemes
With the exception of the Federal Magistrates Court, the rules and practices of court-based pro
bono referral schemes make it unattractive for firms to participate in such schemes.

Many court-based schemes do not have a strong knowledge of the type of work
conducted by each firm's pro bono scheme, and subsequently result in inappropriate
referrals (such as failed commercial ventures or situations where the litigant has
simply run out of funds to continue their litigation).

Registries are often limited in the time which they can spend in placing referrals.

Direct court referrals often put firms in a difficult situation. Typically a matter will
involve an unrepresented party who has commenced action without any legal
advice. When contacted by the Court, the firm must often make decisions within a
short timeframe about whether they take over the litigation, to work with pleadings
they did not draft and run the risk of exposing a client to a costs order, or letting the
client continue unrepresented.

Referrals are frequently made by Court Registries where a person has been advised
on a number of occasions that their matter lacks merit but the person has elected to
proceed regardless.

By the time firms receive direct court referrals, it is often too late to consider any
alternative settlement options.
By contrast, under the referral scheme of the Federal Magistrates Court it is possible to accept
a referral to assess the matter and determine what, if any, assistance will be provided to the
client. The only obligation on the firm in first accepting the matter is that the client will be
provided with legal advice. The Court has taken time to consult extensively with firms and as
a result the referrals are almost always appropriate both in terms of the clients referred (who
fall within each firm's particular pro bono guidelines) and the type of matters (which fall
within the scope of the work conducted by each firm).
The firms recommend that a comprehensive evaluation of all current court referral schemes be
conducted to assess their effectiveness in placing a matter and in obtaining a positive outcome
for a client. The firms also recommend that any courts considering the implementation of a
court referral scheme, whether by the creation of a panel of pro bono solicitors, to first liaise
with their local Community Legal Centres to establish the range of pro bono assistance already
available and to consult with the firms about a more suitable system of referral.
Recommendation E:
A review be conducted to evaluate the effectiveness of existing referral schemes within
Federal Courts.
3.7
Commercial conflict of interest
Conflict of interest can sometimes prevent the conduct of pro bono work in particular types of
matters and against existing commercial clients. For example, membership of a legal panel,
where a pool of law firms provide legal representation to a government department or private
client can effectively exclude all members of that panel from providing pro bono legal
representation in matters which involve that client. This can be because of the terms of the
general retainer itself, or because of a perceived or commercial conflict.
In many cases, the firms who are so limited are also the larger firms with organised pro bono
programs. The effect is that firms with the capacity to take on larger numbers of pro bono
matters and provide civil and administrative legal services on a pro bono basis are often unable
to do so.
There would be a clear concern if firms were to attract repercussions in securing future
commercial work as a result of undertaking pro bono matters which involved the
Commonwealth in circumstances where that pro bono work did not involve any actual legal
conflict of interest.
The firms support the Commonwealth's leadership in this regard in recommending that the
Legal Services Directions be amended to positively state the government's position on this
issue.
The firms, are concerned that Recommendation 14 in the Civil Justice Strategy Paper should
consider implementation of the Protocol suggested by the National Pro Bono Resource Centre,
which comprehensively provides that firms will not be detrimentally affected by whether they
have acted, or may act, pro bono for clients in litigation against the Commonwealth. The
firms would support Recommendation 14 in Chapter 4 of the Civil Justice Strategy Paper if
amended as follows:
Recommendation 14:
That the Legal Services Directions be amended to incorporate the Protocol for
Commonwealth Agencies prepared by the National Pro Bono Resource Centre in relation to
commercial conflict of interest and the provision of pro bono work.
The Protocol would also leave open the possibility of the Commonwealth adopting in the
future a requirement similar to that implemented in 2001 in Victoria that firms tendering for
government legal work demonstrate a commitment to and involvement in pro bono work.
While it is outside the scope of this paper to deal with the effectiveness of the implementation
of this strategy, there is no doubt that it has had a galvanising effect on the profession in
Victoria, causing some firms to consider pro bono work where none was done before and
others to be more generous in their support of pro bono programs. It should also be recognised
that there are a number of concerns about the operation of the Victorian tender protocol.
Recommendation F:
The Commonwealth acknowledge and support the commitment of the private legal profession
to ensure access to justice through the provision of pro bono legal services, by explicitly
recognising the conduct of pro bono work (under an agreed National Pro Bono Resource
Centre definition) as a selection criterion for obtaining instructions to act on behalf of the
Commonwealth.
3.8
Discrete task representation
The firms support the Commonwealth's leadership in seeking clarification on lawyers
engaging in discrete task representation ("DTR").
DTR is one way that city-based law firms can add capacity to the provision of pro bono legal
assistance to clients in the rural or regional firm's district. It is the experience of some of the
firms that Community Legal Centres in rural, regional or remote Australia have obtained Legal
Aid for a client but cannot find any local firm to take on the case work (as discussed above).
In some cases, the community legal centre was able to get a local firm to agree to do the
appearance or representation work in the town but not the preparing of documentation for the
hearing.
It is the firms' general understanding that DTR does not currently present any ethical problems.
However, if there is any uncertainty about the availability of DTR, then the matter should be
clarified.
The firms therefore support Recommendation 15 of Chapter 4 of the Civil Justice Strategy
Paper that the Attorney-General’s Department liaise with the Legal Ethics Committee of the
Law Council of Australia and other interested stakeholders regarding the development of
model conduct rules designed to provide guidance to lawyers engaging in discrete task
representation.
The firms therefore also support Recommendation 16 of Chapter 4 of the Civil Justice
Strategy Paper that the courts liaise with the Attorney-General’s Department, the Law Council
of Australia, and other interested stakeholders regarding possible amendments to court rules
designed to clarify the obligations of lawyers when they are not acting on an on-going basis in
litigation.
3.9
Importance of effective coordination and referral mechanisms
By the time clients are referred to the firms' pro bono schemes, many have already been
referred between other legal service providers on a number of occasions. If the client has also
been inappropriately referred to the firm and the firm has to on-refer the client, the client can
understandably feel quite frustrated at the perpetual referral.
The firms support initiatives to ensure that effective referral mechanisms are in place. To this
end, the firms support and resource the Public Interest Law Clearing Houses (PILCH) in
Queensland, New South Wales and Victoria which play roles in coordinating referrals. It
should be noted that the PILCHs refer public interest matters only, and that firms have
developed a number of individual referral mechanisms with other community legal providers.
Two of the firms who have authored this paper are participating in the pilot of the New South
Wales Legal Aid Commission cooperative service delivery model in Central Far West and
Northern Rivers region which will hopefully see greater coordination of referrals in outer
metropolitan areas of New South Wales.
The firms support Recommendation 17 of Chapter 4 of the Civil Justice Strategy Paper that,
following the evaluation of the NSW cooperative service delivery model pilot, the Australian
Government consider supporting the development of similar cooperative service delivery
models across Australia.
3.10
The National Pro Bono Resource Centre
The National Pro Bono Resource Centre (NPBRC) plays an important and effective role in the
development of pro bono policy and the encouragement of pro bono legal services in
Australia11.
The NPBRC is vital in ensuring that the experience and information gained in pro bono
practice is shared between firms and across States. It is important in encouraging the
development of pro bono practices in firms that are yet to develop it and also in researching
and identifying the needs of the community which helps inform the pro bono practices of each
firm.
It is essential for the effective and coordinated provision of pro bono legal services in Australia
that the NPBRC continues to exist well into the future. The firms note with concern the
position expressed in the Civil Justice Strategy Paper that the National Pro Bono Resource
Centre must seek actively ongoing funding from non-Government sources beyond the seed
funding provided by the Australian Government12.
The firms are not in a position to offer funding to the NPBRC. We already provide substantial
contributions to the NPBRC's operations, for example:

Providing funding for the First and Second National Pro Bono Law Conferences in
2000 and 2003;

Providing speakers and papers for both Conferences;

Contributing to the writing of NPBRC material, including the development of the
Australian Pro Bono Manual;

providing Board, Membership and Advisory Committee representation to the
NPBRC;

Meeting regularly with the NPBRC to inform and develop pro bono policy.
More significantly in terms of resourcing, the firms each contribute substantial funds to the
provision of pro bono services each year:
11

Annual membership fees for PILCHs in up to three States, which may exceed
$25,000 per firm;

the provision of disbursements on pro bono matters (which may exceed $100,000
each year in some firms);

the provision of a number of secondee solicitors per firm to Community Legal
Centres or other community organisations;
The objectives of the NPBRC are to promote pro bono work throughout the legal profession, undertake research
and projects to inform the provision of pro bono legal services, provide practical assistance to pro bono providers
(including information and other resources), develop strategies to address legal need, and promote pro bono law to
community organisations and the general public.
12
at p116

substantial funding towards other community legal projects. For example, Freehills
funds and staffs the Shopfront legal centre in Sydney, Clayton Utz funds and staffs
First Stop in Canberra and Blake Dawson Waldron funds and staffs YouthLaw in
Melbourne;

The provision of many lawyers per firm to attend the Homeless Persons' Legal
Clinics and other outreach advisory services.
Each firm has a limited pro bono budget which it must keep within every year. Any funding of
the NPBRC by the firms will reduce the budget of each firm by a significant amount and will
consequently substantially reduce the number of pro bono clients each firm can assist. The
firms are best placed in using their limited resources to provide legal services.
The firms agree that the Government can greatly assist the promotion and support of pro bono
practice in the private profession and this can most particularly be done by providing ongoing
funding to the NPBRC.
Recommendation H:
The Commonwealth assist in the promotion and support of pro bono practice in the private
legal profession by providing adequate recurrent funding to fully support the operations of the
National Pro Bono Resource Centre.
.
4.
Response to Chapter 6 – Maximising performance of the
system
These submissions address the concerns faced by the firms' pro bono clients in obtaining a fee
waiver.
In order to be referred appropriately to the firms' pro bono schemes, clients must demonstrate
that that they have been unable to secure Legal Aid and do not have a capacity to pay for legal
assistance. The firms believe that if a person has been accepted under their pro bono scheme,
they have already demonstrated their financial hardship and should also secure eligibility for a
fee waiver.
The procedure for obtaining a fee waiver is often time-consuming and involves the client
providing affidavit or statutory declaration as to their financial situation. Lawyers acting pro
bono can spend substantial time compiling this information which uses up precious pro bono
budgets in this administrative task before even assisting clients with their substantive legal
issue. Firms may be more willing to conduct litigation on behalf of pro bono clients if the
system was easier for those clients to obtain a fee waiver. As the table on page 283 of the
Civil Justice Strategy Paper demonstrates, the stronger predictor of success at a special leave
application to the High Court was whether the applicant was legally represented.
Recommendation I:
The Commonwealth consider incorporating an automatic Court fee exemption for matters
where clients are receiving genuine pro bono legal assistance.
5.
Additional strategies for supporting access to justice for cases
with merit – from a pro bono perspective
5.1
Disbursements fund
A client who cannot afford legal representation will usually also be unable to afford the cost of
disbursements. However, unless disbursement costs are met, the provision of pro bono legal
services will be ineffective or impossible. Whereas most lawyers are willing to provide their
professional skills at no cost in pro bono matters, lawyers and law firms are unable to cover all
possible disbursements when acting pro bono.
The two most common areas where an inability to fund disbursements can impact on a client's
ability to access the justice system are:
(i)
The cost of interpreters. Interpreters are an essential disbursement cost when acting
for a client from a non-English speaking background. The cost of an interpreter for
a 2 hour meeting at which the terms of engagement letter is explained and initial
instructions are obtained will usually consume most of what firms are ordinarily
prepared to contribute to disbursements on a pro bono file (as discussed above in
3.1);
(ii)
Court fees and other external disbursements associated with litigation (especially
medical, accountant's and other expert reports, travel where clients are in rural,
regional or remote areas etc).
The provision of genuine pro bono assistance would be greatly improved with access (or
improved access) to disbursement funds and other methods of easing the disbursement burden.
While some disbursement funds do exist (for example Law Aid in Victoria) and some
jurisdictions grant fee waivers on the presentation of a health care card or proof of a grant of
legal aid, these schemes are limited.
Recommendation J:
The Commonwealth acknowledge and support the commitment of the private legal profession
to ensuring access to justice by improving access to disbursement funds and implementing
measures to relieve the disbursement burden.
5.2
Costs orders
Some lawyers have been be deterred from acting pro bono in litigious matters because of a
concern that he or she may be at risk of a personal cost order should their client be
unsuccessful. This was exacerbated in the wake of the Tampa litigation in 2001, when the
Commonwealth sought cost orders against the lawyers who had brought the action on behalf of
the asylum seekers.
It is obvious that lawyers will be severely discouraged from undertaking pro bono work if
there is the possibility that cost orders may be awarded against them personally.
The Commonwealth should undertake not to seek costs against lawyers acting genuinely on a
pro bono basis.
Recommendation K:
The Commonwealth acknowledge and support the commitment of the private legal profession
to ensure access to justice through the provision of pro bono legal services, by undertaking not
to seek costs against lawyers who act genuinely on a pro bono basis.
Yvette Holt, Lawyer, Allens Arthur Robinson
(02) 9230 4528
[email protected]
Jennifer McVicar, National Co-ordinator, Pro Bono & Community
Services, Baker & McKenzie
(02) 9210 2696
[email protected]
Anne Cregan, National Pro Bono Co-ordinator, Blake Dawson
Waldron
(02) 9258 6179
[email protected]
David Hillard, National Pro Bono Director, Clayton Utz
(02) 9353 4800
[email protected]
Michelle Hannon, Gilbert + Tobin Pro Bono Lawyer, Gilbert + Tobin
(02) 9263 4110
[email protected]
Kathy Merrick, Partner, Henry Davis York
(02) 9947 6341
[email protected]