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12 Apr 2012

Building a Pro Bono practice: The Australian experience

by David Hillard

Not only does a law firm fulfil its obligations of professional responsibility and client service when it creates a pro bono practice, but it can enjoy many benefits too.

It is a tremendous pleasure and an honour to be here in Sanya to speak with leaders of the Chinese legal profession. The opportunities for Australian lawyers to speak with Chinese lawyers about mysterious Latin terms are rare, and so I thank you for allowing me to be part of the Pro Bono Legal Service Conference.

I am the Pro Bono Partner at Clayton Utz, Australia's second-largest law firm. We have around 900 lawyers in our firm. I have been a lawyer for 21 years. In that time I have worked as a commercial lawyer, worked as a Government lawyer, and sat on the boards of a number of legal service non-Governmental organisations. I have worked in a full-time pro bono role at Clayton Utz since 1997, and in 2005 was appointed as the first pro bono partner at a major Australian law firm.

What is pro bono legal work?

For me, and for most lawyers in Australia, pro bono legal work is founded on two basic philosophies:

1. Lawyers have an inherent professional responsibility to ensure that people have access to the legal system. It is what good lawyers do; and

2. Pro bono is not a substitute for state-funded legal aid. Pro bono is not a complete answer to access to justice, and does not remove the substantial responsibility of Government to ensure that disadvantaged people have access to the legal system.

"Pro bono" can be a confusing term, even for lawyers whose first language is English. It is at times translated to simply mean any form of free legal work. However, in Australia and at Clayton Utz, pro bono is about responding to disadvantage[1].

We act for disadvantaged people who cannot obtain legal aid and for the non-Governmental organisations which support disadvantaged people. There are other types of legal work which we might perform for free, but we do not call this our pro bono work. For example, we might choose to act for free for an arts organisation which is supported by one of our major commercial clients. It is work which we might decide to do without a fee, as part of strengthening our business relationship with a commercial client. However it is not about responding to disadvantage and therefore does not count as pro bono work.

Pro bono in Australia

I want to give a brief background to the history of pro bono development in Australia in recent years. The Australian example may give encouragement to all of you who want to develop a pro bono culture in China. Australia demonstrates that a commitment to pro bono can be developed quickly, it can be based upon a strong partnership between private lawyers and public interest lawyers at non-Governmental organisations, and it can be done from within the legal profession itself, rather than imposed on lawyers by Government regulation. The Australian pro bono system, although it resembles in many ways the system which exists in the United States, developed independently of the American experience.

Australia's legal and political system is a combination of Britain and the United States. We have a common law legal system and a federal legal structure. There is a Federal Government and eight State and Territory Governments. Since the 1970s, both State and Federal Governments in Australia contributed to the funding of Legal Aid Commissions operated in each State.

Most Australian lawyers have always performed some work which we would now describe as "pro bono", even if that term had not been in widespread use. However a more structured approach to pro bono by larger firms and the creation of co-ordinated referral programs and pro bono clearing houses are less than two decades old.

In 1996 a new Federal Government announced that it would be making changes to the way that the Federal Government funded Legal Aid. The Federal Government would now only provide money to fund Federal legal issues. This meant that in practice the Federal Government was funding largely only family law matters. State Governments were forced to spend most of their Legal Aid funds to cover criminal law matters, so as to ensure that defendants had legal representation in criminal cases. In practice, Legal Aid funding for civil law cases dropped significantly.

These changes to Legal Aid funding and the significant reduction in civil law Legal Aid funding provided the impetus for a number of large Australian law firms to create a coordinated pro bono practice within their firms. Although many Australian lawyers had done some pro bono work during their careers, 1997 saw the creation of the first co-ordinated and professionally staffed pro bono practices within Australian firms. Within a few years, at least five Australian firms had employed full-time dedicated pro bono lawyers to lead their pro bono practice.

In 2007 pro bono leaders from within the Australian legal profession created a voluntary National Pro Bono Target, of 35 hours per lawyer per year, and encouraged law firms of all sizes and barristers to sign up to that Target. The idea of the Target was to set a benchmark for what was to be recognised as a reasonable level of pro bono commitment by Australian lawyers. There is no penalty or punishment if a signatory to the Target fails to meet the 35 hours per year, but the Target does provide a clear indication of what level of pro bono work is seen as a standard across the profession. It sends a message that doing only a few hours of pro bono work per year may not be enough.

The Australian Federal Government is a large purchaser of legal services from private law firms. In 2008 the National Pro Bono Target achieved greater prominence within the legal profession when we were able to persuade the Federal Government to include being a signatory to the Target as one of the requirements for receiving instructions in commercial legal work from the Federal Government[2]. In this way, the Government was able to use its significant purchasing power and influence as a commercial client, to encourage almost every major Australian law firm to become a Target signatory. Under this model, firms are not required to achieve 35 hours of pro bono work (or even to do any pro bono work), but simply to be a Target signatory, and report each year to the Government on how much pro bono work has been performed by the firm. However, almost every major firm which has signed the Target now achieves the 35 hour average figure.

The Australian experience has been that a strong pro bono culture has been built very quickly within commercial law firms. Today, 15 years after my appointment at Clayton Utz, six Australian law firms have full-time pro bono partners and a further 20 firms have a full-time pro bono director or manager leading their practice. Clayton Utz and a number of other firms perform at least 3% of their total legal practice each year as pro bono work. The amount of pro bono work done by the major firms has moved well beyond the 35 hour Target (which has become more of a floor than a ceiling), with the average amount of work performed by most lawyers at major firms around 45 or 50 hours per year.

Comparative pro bono

I was in Washington last week with Ed Rekosh at the Pro Bono Institute conference. I am in regular discussions with my colleagues in American law firms. It is my view that the Australian law firm experience of pro bono work has been more collaborative than that of our colleagues in America. Perhaps one of the reasons for this is that the creation of public rankings and tables of the best law firms (such as those published by the American Lawyer), has made it more difficult for law firms to be willing to share their pro bono practices with each other. By contrast, in Australia we have a strong culture of law firms working together, including private law firms funding pro bono clearing houses in at least four states.

We also have a slightly different approach to pro bono within firms than our American colleagues. Pro bono work is not described as "volunteerism" or "charity" in Australia. Rather, we have tried to tie the concept of pro bono back to the notion of it being an inherent professional responsibility on us as lawyers to ensure that the legal system is accessible to everyone. This has allowed us within Australian law firms to focus more on identifying unmet legal need and how we can use our skills to respond to that need. By comparison, the approach taken by some American firms is of needing to find pro bono opportunities which are attractive to their lawyers. A number of my American law firm colleagues in a pro bono leadership role talk about the need to "find something our lawyers want to do". My role, in contrast, involves allocating work to lawyers in our firm, regardless of whether they have a particular interest in that nature of the work or that type of client.

I do not see that there is anything inappropriate with our approach. If we are to say that we treat pro bono work in the same way as we treat commercial work, then why should pro bono work need to be sexy or interesting before a lawyer is asked to do it? Our lawyers do not have a choice about the type of commercial work that they do. They do not turn down the drafting of a contract for a commercial client because they find its contents boring or the nature of the work overly familiar. I do not believe that a different approach is justified for pro bono work.

Nevertheless, the common experience in Australia and the United States is the need for pro bono lawyers and non-Governmental organisations to work together as equal partners to build on each other's strengths in ensuring that access to justice is delivered. This means that my role is very much about relationship-building with the NGO sector. Much of the pro bono work which we perform is unfamiliar to the regular commercial experience of our lawyers. We rely heavily on NGOs to assist in training our lawyers and identifying areas of unmet legal need. We also rely on NGOs to refer pro bono clients to us. We do not expect that most disadvantaged people will find their way into our law firm and seek pro bono legal assistance. Rather, we have built strong relationships with the community organisations where disadvantaged people are most likely to go to seek legal assistance.

Law firms doing well by doing good

Obviously pro bono work is fundamentally about the benefits which are achieved by our clients, and about ensuring that the legal system works. However, from the point of view of a law firm, I want to ignore for the moment reasons of professional responsibility and client service, and look instead to the many benefits which a law firm enjoys when it conducts a pro bono practice. These include:

1. Morale. Most lawyers began their legal studies because they understand the need for a legal system to work properly. They became lawyers because they wanted to help others. Embracing pro bono work as part of a law firm's ordinary practice allows lawyers to return to the very heart of what made them become lawyers in the first place. Lawyers want to help society, and pro bono gives them the opportunity to do so as part of their regular work. I have no doubt that our firm is a more happy and content place as a result of conducting a large pro bono practice. The feedback which I get repeatedly from our lawyers is that they very much enjoy the opportunity to use their legal skills to assist disadvantaged people.

2. Recruitment and retention. As a result of improved morale, it is easier for law firms to attract good lawyers to their firm and to have those lawyers stay at their firm. Our pro bono practice features heavily in the feedback which we receive from applicants for employment at Clayton Utz. In our most recent survey of the attitude of our lawyers to working at the firm, 93% of our people said that they felt proud of our pro bono practice. Again, I have no doubt that people choose to work for us, and to stay with us longer at Clayton Utz, because of our pro bono commitment.

3. Training and experience. Pro bono work often requires lawyers to think outside of their regular comfort zone. It improves their professional skills and makes them better lawyers.

4. Pro bono can help bind people more closely to the firm. Our pro bono practice is probably the only experience at Clayton Utz which is shared by all of our lawyers across six different offices in Australia and four diverse legal departments. In this way, it can operate as "firm glue", to make people feel more closely as part of a single team, even though their day-to-day legal practice experiences might be quite different.

5. Pro bono work can help to build a firm's reputation.

6. Pro bono practice for American and Australian firms is increasingly providing a different way for us to relate to our commercial clients. There are a number of examples now of pro bono partnerships between law firms and the in-house legal teams at some of their major commercial clients. I think that it is a very useful way for us to entrench our relationship with major commercial clients by having our lawyers work with their lawyers on shared pro bono projects which benefit the wider community.

7. Pro bono is not an expensive or onerous burden for a law firm. Even where lawyers average 50 hours of pro bono work each per year, this translates to less than an hour a week worth of pro bono work. It is most likely that lawyers will spend more time drinking coffee at work each year than they will performing pro bono work. Pro bono work has a tremendous amount of benefits to a firm and is not a large financial or resource drain on that firm.

In my 15 years of conducting pro bono practice within a large law firm, I have learned a number of key things. First of all, pro bono work must be treated as real work within the firm. This means that it should not be conducted to a lesser standard than other commercial work at the firm. Pro bono matters need to be supervised by partners. The work which is performed by lawyers under the pro bono practice must count towards their professional assessment. The lawyers should record their time in the same way that they record their commercial time. At Clayton Utz, for example, we have an employee bonus program. One of the criteria for obtaining a financial bonus at the end of each year is that lawyers have performed a minimum of 40 hours of pro bono work. This reinforces the strong commitment that pro bono is expected of everybody, including our most highly performing commercial lawyers.

It is also essential in my experience for a firm to have a clear policy in relation to its pro bono practice, which defines what is and what is not to be counted as pro bono work.

Finally, pro bono work is not just about litigation. Much of the work we perform under our pro bono practice does not involve our lawyers going to court to argue on behalf of clients. Our lawyers make applications for clients to Government compensation schemes and to tribunals, mediate matters and negotiate disputes, attend outreach legal clinics where disadvantaged people can speak with lawyers face-to-face, advise NGOs about contracts and governance, and are even seconded to work for periods of time at an NGO.

Building the Chinese legal profession

You have an amazing opportunity as leaders of the Chinese legal profession, a relatively new profession, to define and decide what being a lawyer means. You have the opportunity to make some clear statements about what sorts of professional values are most important to Chinese lawyers. I encourage you to include the conduct of pro bono work and ensuring access to the legal system for everybody as an essential part of what it means to be a lawyer in China now and into the future.

Thank you once again for this great honour to join your Conference. I look forward to talking with each of you over the next two days.

This is a speech given by David Hillard to the Pro Bono Legal Service Conference, Sanya, 12 April 2012

 



[1] The definition of "pro bono legal services" used by our National Pro Bono Resource Centre is as follows:

1. Giving legal assistance for free or at a substantially reduced fee to:—

(a) individuals who can demonstrate a need for legal assistance but cannot obtain LegalAidor otherwise access the legal system without incurring significant financial hardship; or

(b) individuals or organisations whose matter raises an issue of public interest which would nototherwise be pursued; or

(c) charities or other non-profit organisations which work on behalf of low income or disadvantaged members of the community or for the public good;

2. Conducting law reform and policy work on issues affecting low income or disadvantaged membersof the community, or on issues of public interest;

3. Participating in the provision of free community legal education on issues affecting low income or disadvantaged members of the community or on issues of public interest; or

4. Providing a lawyer on secondment at a community organisation (including a community legalorganisation) or at a referral service provider such as a Public Interest Law Clearing House.

 

The following is NOT regarded as pro bono work for the purposes of this statement:

1. giving legal assistance to any person for free or at a reduced fee without reference to whether he/she can afford to pay for that legal assistance or whether his/her case raises an issue of public interest.

2. free first consultations with clients who are otherwise billed at a firm’s normal rates;

3. legal assistance provided under a grant of legal assistance from Legal Aid;

4. contingency fee arrangements or other speculative work which is undertaken with a commercial expectation of a fee;

5. the sponsorship of cultural and sporting events, work undertaken for business development and other marketing opportunities; or

6. time spent by lawyers sitting on the board of a community organisation (including a community legal organisation) or a charity.

7.  This definition is consistent with the Law Council of Australia pro bono definition, but is more specific about certain activities that have been considered "grey areas" in some definitional debates, such as community service work by lawyers, sitting on boards, work for sporting organisations or work done without any reference to the capacity of a pro bono client to pay for pro bono services.

[2] Paragraph 4 of Appendix F to the Legal Services Directions 2005 provides that a Federal Government department or agency must take into account "whether the legal services provider has signed up to the National Pro Bono Target", before contracting that legal services provider to act for the department or agency.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.