10 May 2012

For the good of the public: Victorian in-house lawyers get the right to do pro bono work

by David Hillard

Victoria has passed legislation enabling in-house lawyers to provide pro bono work alongside their colleagues in private practice.

Although lawyers understand instinctively that Pro Bono work is an inherent professional responsibility of admission to practice, regulation has prevented many in-house and government lawyers from taking up that responsibility. Last month, Victoria passed legislation which saw that State become the third in three years to enable in-house lawyers to provide pro bono work alongside their colleagues in private practice.

Over the last 15 years, Australia's largest law firms have transformed their capacity to provide pro bono assistance both to people who can neither obtain Legal Aid nor afford a lawyer, and to the not-for-profit organisations which support these people. Thirty-nine law firms have now signed on to the National Aspirational Pro Bono Target of at least 35 hours of pro bono work per lawyer each year. In the last financial year, the six largest Pro Bono practices conducted more than 200,000 pro bono hours, at an average of over 45 hours per lawyer. That is the equivalent of a 125 person law firm providing full-time pro bono assistance.

Might a similar transformation take place for in-house counsel and government lawyers? If so, it would open up pro bono resources in sectors which represent around 25% of our profession. Regulatory barriers and a lack of opportunity, rather than a lack of desire, have so far kept in-house pro bono efforts relatively modest. As Nathan Butler, General Counsel Corporate at NAB, wrote in the Victorian Public Interest Law Clearing House (PILCH)'s August 2010 submission to COAG: "Allowing qualified government and corporate lawyers to undertake pro bono services within their organisations would remove an unnecessary constraint to pro bono and tap a willing and significant pro bono resource".

Now any in-house lawyer who holds a practising certificate in New South Wales, Queensland and Victoria is entitled to provide pro bono legal advice. The Australian Corporate Lawyers' Association indicates that South Australia may be next. In-house and government lawyers also have access to no-cost professional indemnity insurance for their pro bono work, through the National Pro Bono Professional Indemnity Insurance policy held by the National Pro Bono Resource Centre.

The US experience with in-house lawyers has shown pro bono work gathering pace. In 2006, the Pro Bono Institute and the Association of Corporate Counsel created Corporate Pro Bono to empower corporate legal departments to identify and benchmark a commitment to pro bono service. Over 100 corporations have now joined the Corporate Pro Bono Challenge, pledging to encourage at least half their legal staff to perform pro bono work and to ask their external law firm providers to be pro bono leaders. The list of signatories includes some of the most recognisable corporations in the world, from across all sectors.

Some Australian in-house and government teams have started the pro bono journey. PILCHs in Victoria, Queensland and NSW variously have legal departments from NAB, the Transport Accident Commission, the PACT Group, the ACCC, Xstrata Copper and Westpac as members. More than one-quarter of the lawyers at the Australian Government Solicitor have been involved in pro bono work since 2008. Eleven corporate in-house projects are now covered under the National Pro Bono Professional Indemnity Insurance policy. Lawyers from AMP, Fairfax Media and Ramsay Health Care have all partnered with external law firm providers on pro bono projects.

Each of these legal teams is contributing to making our legal system more accessible, and no doubt enjoying the significant professional benefits which come from giving lawyers the opportunity to be involved in pro bono work. Many are building a pro bono culture which extends their organisation's established CSR program.

Partnering with one or more law firms makes pro bono work easier to undertake. Pro bono practices at firms can share their expertise to help train and supervise in-house lawyers, develop a pro bono policy, identify pro bono opportunities and partner in the delivery of pro bono work.

Legal Aid funding levels – which remain $20 million a year below 1997 levels – continue to be insufficient to ensure access to justice for all Australians. Across the country, many people are both unable to afford a lawyer and are ineligible for Legal Aid.

While pro bono is not the solution to Australia's access to justice crisis, widening the pool of lawyers who are able to deliver such services is a positive and welcome step.

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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.