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Tuesday, 14 May 2019

Pro Bono: for whose benefit?

The 2019 Blackburn Lecture, delivered by Karen Fryar AM, former Magistrate of the Australian Capital Territory.

Introduction

When I was first invited to speak to you today on any topic that my heart desired — I thought how generous, and then mulling over the potential topics, I began to think what a curse it was to have unlimited possibilities. To refine my research and thinking into half an hour of a talk that might be vaguely interesting for most of you seemed such an arduous task. And at the end of a career of 25 years on the bench I began to think that those of you who have appeared before me or know me at all might indeed have heard it all before.

I of course contemplated that the Domestic Violence Crisis Service was this year’s Law Week very worthy charity. And so I wondered whether I should speak on the topic of Family Violence, something about which I know a little. Of course, given my experience in that area with what has become a real passion of working towards the elimination of violence against women and children, it seemed there would be no end of suitable themes for today’s talk. The problem I had with that was, not only was it predictable (and you know I like to keep you guessing), but quite frankly to do justice to what must be said I would likely run overtime and you would all be late back to work.

So I have decided, unsurprisingly, to focus on the lawyers here today and talk about another area that is, in my view, most important, and that is the issue of legal assistance — a core aspect of legal practice is it not? We all know that the number of self-represented litigants in the courts have increased over the years, and unless you are a litigation lawyer or a judicial officer, that may be something you have not given much thought to. But it should be, because legal assistance is much more than legal representation in court, and it is certainly more than the assistance that the Legal Aid Commission is able to provide.

I am not going to cover Legal Aid, its history or even its role in this talk. I do however want to briefly honour the contribution that Legal Aid ACT makes in our community by going over some statistics that come from their most recent Annual Report:

• During 2017-2018, Legal Aid ACT has provided grants to 421 Aboriginal and Torres Strait Islander people. This includes legal advice, legal assistance or providing a duty lawyer.
• Legal Aid ACT made 982 grants of legal assistance to support victims of family and domestic violence between 2017-2018.
• Legal Aid ACT “delivered CLE to 7,184 people through 315 events” during 2017-2018.
• During 2017-2018, Legal Aid ACT referred 4,934 people to legal and non-legal services, and received 15,671 Helpline calls.
• Legal Aid ACT provided in total “7,463 advice, task, non-legal support and dispute resolution services” during 2017-2018.
• Legal Aid ACT provided 5,572 duty lawyer services during 2017-2018.
• Legal Aid ACT approved 2,496 grants of legal assistance.

Thank God for Legal Aid ACT.

Definition

Back to the topic for today … Pro bono — for whose benefit? I am sure you all know that Pro Bono is derived from the Latin phrase Pro Bono Publico, which means ‘for the public good’. And in reading in preparation for today I came across a presentation given by the former Chief Justice French very aptly entitled “Pro Bono Publico — Cui Bono?”^[1] … which I am advised (being no Latin scholar myself) can be translated as “For the public good — who benefits” or as His Honour said, the question probably should be “Who benefits from the provision of pro bono legal services”? Except that he delivered the paper 5 years ago I would have claimed I thought of the topic first, but we all know that the matter of Pro Bono legal assistance is something that has been considered by greater legal minds than mine for many many years.

So back to the topic of today’s conversation — and that is what I hope of this talk, that it will start a conversation, or forty two, about the provision of pro bono legal assistance. As lawyers, you are members of an honourable profession, with a proud history of pro bono legal services. But before I go further let me make it clear — I am not saying lawyers are the only ones with a history of pro bono work — it is something that most professions do or have. And if you share my view of the world you may even think that, as a professional having had the privilege of that amazing education and now the ability to earn a substantial income, to do a modicum of pro bono work is the least you can do to further the concept of social justice and indeed to promote access to justice. That gives you a less than subtle hint where I am headed today.

I am assuming that you all understand pro-bono in the legal context to mean the provision of legal services to a client at no cost or significantly reduced cost to the client, and indeed no real commercial return to the lawyer. In fact however, there are a number of ways to define what Pro Bono legal services are, or rather there are a number of legal services or types of legal assistance, that fit within a reasonable definition of pro bono work. For example, a rather comprehensive definition has been published by the Australian Pro Bono Centre^[2] (and I commend their web-site to you). It is an independent centre of expertise that says its mission is to aim “to grow the capacity of the Australian legal profession to provide pro bono legal services that are focused on increasing access to justice for socially disadvantaged and/or marginalised persons, and furthering the public interest.” The Centre promotes an aspirational target of at least 35 hours pro bono legal work per lawyer per year, and for the purpose of monitoring that target it has published the following definition:

“The Centre’s definition of “pro bono legal services” (for the purposes of its National Pro Bono Target Statement of Principles and its National Law Firm Pro Bono Survey) 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 Legal Aid or 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 not otherwise be pursued; or
c) charities, other not-for-profit organisations or social enterprises, in each case where their sole or primary purpose is to work in the interests 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 members of 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 legal organisation) 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.”

An example of another definition is that which was adopted by The Law Council in 1992 —

“Pro bono work is defined to include situations where:

1. A lawyer, without fee or without expectation of a fee or at a reduced fee, advises and/or represents a client in cases where:

a) a client has no other access to the courts and the legal system; and/or
b) the client’s case raises a wider issue of public interest; or

2. The lawyer is involved in free community legal education and/or law reform; or

3. The lawyer is involved in the giving of free legal advice and/or representation to charitable and community organisations.”

History

Perhaps it may interest you to know that although the concept of a lawyer appearing pro bono has been around really since the legal system began, a more formalised concept of pro bono legal assistance, or at least a concept that a pro bono programme has wider benefits than simply helping out some poor indigent person who is in trouble, only came to fruition in Australia towards the end of last century. As I mentioned before, I am deliberately not talking about Legal Aid, as that is a topic for another day. By the way, if you are interested, on the Legal Aid ACT web-site there is a publication that sets out the 40 year history of Legal Aid in the Australian Capital Territory.^[3]

However, in relation to the history of pro bono legal assistance in Australia, let me (hopefully) enlighten you a tad by mentioning a few relevant milestones …

• In 1967 there were apartheid protests in NSW — Dawson Waldron (now Ashurst Australia) operated a roster of solicitors to attend the Central Local Court to assist the protesters;
• The first Community Legal Centre was the Fitzroy Legal Service, established in 1972. Within five years, there were 151 Community Legal Centres providing free legal advice in Australia. Mind you that flowed from the heady days of the Whitlam Government.
• In the early 1980s Blake Dawson Waldron placed a lawyer on secondment at Port Hedland to assist Cambodian refugees;
• In 1989, a pro-bono law clinic was set up by Freehills in Perth. Australian law firms began secondments to pro bono law clinics in 1992.^[4]
• The Law Society of NSW issued its first pro bono policy in 1991;
• In 1992, the Law Council of Australia defined pro bono work for the first time, and I have already referred to that definition.
• The Public Interest Law Clearing House was established in 1992 in NSW, and 1994 in Victoria (now known as ‘Justice Connect’). Justice Connect continues to provide legal assistance and information to the Australian community, with its mission being to provide ‘access to timely, high quality pro bono legal services’.^[5]
• The NSW Bar commenced its Legal Assistance Referral Scheme in 1994. The Scheme continues to provide pro bono legal assistance in NSW.
• Also in 1994, Gilbert & Tobin appointed the first law firm pro bono coordinator in Australia.
• In 2000 the Australian Law Reform Commission (ALRC) conducted its Managing Justice inquiry, which noted concern that the ethic and culture of professional service was being eroded or lost. It recommended that professional associations should urge members to undertake pro bono work each year in terms similar to that stated in American Bar Association Model Rules of professional conduct. I do note the amount of Pro bono work those Rules recommend is 50 hours per lawyer per year, somewhat greater than the current aspirational target of 35 hours here in Australia..
• In 2001, the National Pro Bono Task Force recommended the establishment of a national independent body that would encourage and facilitate pro bono work. In 2002, the National Pro Bono Resource Centre was established (now known as the ‘Australian Pro Bono Centre’).
• In 2004, the ACT Pro Bono Clearing House was established.^[6] In 2017-2018, the ACT Pro Bono Clearing House had on average four applications per week for pro bono assistance. Mind you, the ACT Law Society has also operated its very helpful Legal Advice Bureau at lunchtimes since 1972.
• In 2006, Clayton Utz became the first Australian law firm to appoint a pro bono partner, and by 2015 they were the first firm to have completed 500,000 hours of pro bono work.
• In 2007, the Australian Pro Bono Centre released the national pro bono target of 35 hours of pro bono work per lawyer per year, ie: the minimum number of hours of pro bono legal services that all lawyers should aspire to undertake. In 2017, 12,000 lawyers had signed up to this target.

A much more comprehensive history can be found on the Australian Pro Bono Centre web-site.^[7]

In February this year the APBC published the report on the 6^th National Law Firm Pro Bono Survey, ie: only in relation to firms with 50 or more lawyers.^[8] There were 37 respondents to the survey and 31 of them were signatories to the national target. The average across all of the respondents was 30.5 pro bono hours per lawyer in 2018, which was a decrease of 12.4% from 2016. Mind you in the report there are a number of statistics and caution is urged when taking only one in isolation. For example, some of the smaller firms (50 — 100 lawyers) who responded to the survey, and who were not signatories to the target, reported as few as 2.2 or 6 hours per lawyer — numbers that obviously lowered the average of the whole. However, only 41% of signatories to the target met or exceeded the target.

Interestingly, as in previous years, firms were asked to calculate the percentage of their total billable hours that pro bono legal work represented. The average proportion was 3.46%, although one firm was in fact making a contribution of 10%.

As at 30 June 2018, the Target had 126 signatories in total: 93 firms and legal practices, and 33 individual solicitors and barristers.

Pro Bono — why?

As we all know, today’s talk is called the Blackburn Lecture … but I thought I should rename it, well, not rename, as I would never be so bold or wish to tarnish to memory of Sir Richard Blackburn, so perhaps I should say that I have decided to recharacterize this particular talk as the “Blackburn Exhortation”. Exhortation of course we all know means “an address or communication emphatically urging someone to do something.” It is a word that has many synonyms such as urging · encouragement · persuasion · pressure · pressurization · pushing · insistence · incitement · goading · egging on · beseeching · admonishment · warning · paraenesis · enjoinder · call · charge · injunction · entreaty · appeal · admonition · warning · sermon · lecture · harangue · obtestation · protreptic. [ahhh this is when I really am sad that my friend Magistrate Campbell is unable to be here — she does love a good word!] Now that last synonym is perhaps where I should start — a word I was not overly familiar with but which I am sure you all know means, and I remind you the word is protreptic, “a piece of writing or speech intended to persuade or instruct”. Something that perhaps all lawyers should use in their daily work lives — submissions that have a protreptic function.

Let me pose two questions for all the lawyers out there to contemplate, and I will come back to them in a while. How much pro bono work does your firm do? How much do you personally do?

Well perhaps before answering that question you might have one of your own — why should I do any? If you do not see that there is a need for pro bono legal assistance in our legal system then all I can say is that you need to spend longer sitting in the Magistrates Court or the Supreme Court and you will see every day self-represented defendants or litigants in a pickle, who not only say they cannot afford legal representation and that they were not eligible for legal assistance by the Legal Aid Office, but they have not even had any legal advice. The duty lawyers are so stretched talking to those who are in custody these days that they simply cannot offer help to every person who may need it. And if only I knew how many times over the years I had to say to such people that I cannot give them legal advice but only some information regarding legal processes (in reality it is a real balancing act for the judicial officer between information and advice). If you do spend some time there you will observe the flowing consequences of that dilemma to everybody in the courtroom — delays in the proceedings at least, and potentially through no fault of the judicial officer, a potential injustice.

This also brings us back to one of the central questions of this talk — who actually benefits from pro bono legal assistance? I am not only talking about pro bono representation in court, so these ponderings are relevant not only to Litigation, Family and Criminal lawyers. Outside purely the interest of the client, here are some other aspects for you to consider …

The Rule of Law and Access to Justice

Professor Lorne Sossin, a Canadian academic, writing in 2008 asserts that lawyers who engage in pro bono work uphold the rule of law. This is because everyone should be subject to similar legal rules and have similar legal rights. It is unfair and unjust that some are unable to enforce legal rules and unable to assert legal rights simply because they lack the financial means to retain a qualified lawyer. He believes that ‘there is a clear public interest benefit for lawyers to ensure access to the rule of law, especially on the part of the vulnerable.’^[9]

Lawyers who complete pro bono work assist in promoting access to justice. Former Justice Michael Kirby asserts pro bono work ‘helps assure access to the courts for many who would otherwise not be able to afford a lawyer.’^[10] Former Chief Justice French also considers that, “The profession's contribution to responding to these and other systemic problems of the cost and accessibility of legal services is, perhaps, the most important pro bono service that it can offer”.^[11]

It goes without saying that pro bono work can and should assist those who would otherwise be self-represented litigants. Sossin believes that ‘pro bono may facilitate social justice by redressing the imbalance of power in the courtroom where one party is self-represented.’^[12] All judicial officers have undoubtedly come across such situations where assistance to an unrepresented party would have been of great benefit to that party, and indeed to the court.

Justice Kirby recognises that, “Without legal representation, our system of law is a minefield for the untrained, whatever may be the objective merits of their cases. Lawyers cannot wash their hands of the defects of the system that they help to create and operate.”^[13]

Professional Development

Professor Lorne Sossin suggests that not only can pro bono work benefit others, but it can assist the lawyer to also develop their own legal skills. He considers that:

“Lawyers gain a better understanding of the role of law in a democratic society through pro bono; they learn how to represent vulnerable individuals and gain a sense of fulfillment by making a positive contribution to justice. Further, these lawyers learn about the effects and implications of poverty.”^[14]

Professor Stephen Parker also believes that ‘assisting those with fewer advantages in life is unquestionably an important part of personal development’.^[15] Parker considers completing pro bono work is particularly beneficial to young lawyers as it can ‘broaden their knowledge’ and ‘increase job satisfaction’.

Professor Sossin reasons that there are many reasons why lawyers engage in pro bono work and wrote:

“Pro bono may be viewed from two perspectives — that of the lawyer and that of the client. From the perspective of the lawyer, the important question is whether there is ethical motivation to engage in pro bono. Some lawyers may seek out pro bono opportunities because they see this work as a public duty. Other lawyers, however, may work for partial or no compensation for self-interested reasons: to enhance their reputation, to market their services, as a loss leader for an important client, to impress someone more senior, or for other idiosyncratic motives. If the point of pro bono is to reflect the best public service traditions of the legal profession, some of these motivations seem antithetical to that goal. If, however, the perspective of the client is paramount, then meeting the client's needs is the point of pro bono, irrespective of the lawyer's motivation.”^[16]

Professional Responsibility

As I quoted just now, Sossin said that some lawyers are motivated to do pro bono work due to ‘a public duty’. While Professor Stephen Parker suggests that lawyers and the legal profession generally have a ‘moral obligation’ to undertake pro bono work.^[17]

Justice Kirby notes that ‘pro bono is no substitute for proper facilities of legal aid’.^[18] And indeed Sossin reflects that ‘unmet needs are more likely to be seen as deficits of legal aid than as opportunities for pro bono’.^[19] In my view this is no reflection on our Legal Aid system and those who work within and support it. But any realist will know that government funding for Legal Aid is finite and the system unfortunately is unable to meet every need. So the chasm of unmet need continues to be vast and that is where pro bono must have a role.

In case there were any doubt of the practitioner’s professional responsibility, former Chief Justice French importantly noted that lawyers doing pro bono work have ‘an obligation to provide them to the same standard as the services provided to a paying customer. The standard is not qualified by the purity or otherwise of the lawyer’s motivation.’^[20] The former Chief Justice adds in relation to compelling reasons for lawyers to undertake such work — that it is not easy to find a logical basis for importing into the concept of 'profession' an ethical dimension which rises above the requirements of honesty, competence, reasonable care and diligence — standards we are entitled to expect of anyone providing a service for reward. However, he further notes:

“It may seem difficult to reconcile with the business models of contemporary legal practices and their focus on commercial objectives. Yet, somehow, those business models and those commercial objectives seem able to coexist in Australia and other countries with a substantial amount of pro bono activity."^[21]

Former Justice Michael Kirby asserts, “Pro bono lawyering is a very important part of the activity of all significant law firms now. They do it, partly, because it’s the right thing to do. But, partly, they do it because they have found that this is the way they keep really good staff.”^[22]

Professor Parker considers that pro bono work ‘promotes a better image’ of the legal profession, and it also can improve (or I would suggest promote) the reputation of specific firms or barristers.^[23] He reasons:

“The duties they owe to the system of justice always prevail in law and in professional ethics, over the duties they owe to their clients or themselves or their partners. They hold a position or office. They do not merely do a job. We have lost sight of the public nature of a lawyer's position.”

And he concludes that:

“Why, then, should lawyers do pro bono work? Because they are under a moral obligation arising from the work they have chosen to do. Conveniently, it may also be in their interests.”

The Law Council of Australia has described pro bono work as a ‘celebratory aspect of Australia’s legal culture.’^[24] Former Chief Justice French described pro bono work as benefitting the whole community in that:

“The provision of pro bono legal services be they advisory, transactional or involving representation in dispute resolution mechanisms, may serve the public interest in different ways. A person properly advised may be able to resolve a legal problem in accordance with the law and avoid costly and time-wasting mistakes. A competently drawn transactional document may ensure that rights and liabilities are properly defined and unnecessary disputes avoided. A dispute fairly resolved by negotiation or some other form of non-litigious mechanism, may serve the public interest in the avoidance of unnecessary litigation. A dispute resolved after competent representation before a court or tribunal stands as an affirmation, for the purposes of that case, of the rule of law even if the party represented by the pro bono lawyer does not succeed. In some cases the service provided to a particular client will help to resolve a disputed question of public or private law affecting a larger class of persons. The provision of pro bono legal services in such a case may enliven the power of precedent and in that way serve the public interest.”^[25]

I could not leave this next out. In the words of United States Supreme Court Justice Ruth Bader Ginsburg: “If you are a true professional, you will use your degree to help make things a little better for people. You get a satisfaction you will never get turning a buck.” Such a wise woman.

So, borrowing from a pro bono toolkit published by the Californian Courts, let me give you some more precise examples of how your pro bono work can actually help. Without wishing to appear overly dramatic —

• Every time a pro bono lawyer is able to help a domestic violence victim, it can prevent serious injury, save lives, prevent costly medical and other expenses borne by our local community, and alleviate already clogged courts and overworked law enforcement agencies.
• When a pro bono lawyer helps keep a family in their home, it prevents them from potentially becoming homeless and from creating an additional demand on shelters and other charitable and government services, and alleviates the stresses of that family, helping them to stay together.
• When a pro bono lawyer helps prevent workers from wrongfully losing their jobs or from being denied earned wages, it allows for individuals to put food on their tables and pay their rent or mortgage.
• When a pro bono lawyer helps keep a child in school, truancy and juvenile crime are reduced, saving court time and potentially reducing the costs of incarceration. Literacy levels may be improved.
• When a pro bono lawyer helps a senior remain in his or her home with supportive care, the much higher cost associated with full nursing home care may be avoided, and the mental well-being of our aged population may be enhanced.

If you are still sitting there saying pro bono is not for me because, for example, I work in the public service as a government lawyer, the Australian Pro Bono Centre has published a resource guide just for you. You can find it on their web-site. ^[26] It talks about why you should be involved, how you can be involved, and how you can be active in ensuring your agency has its own pro bono policy. Check it out!

So yes, my exhortation or entreaty to you today is to please consider how you can further contribute to the well-being of your community by actively being involved in the provision of some kind of pro bono legal assistance. Work on a pro bono policy for your firm, sign up to the National Target, contact the Law Society and make sure you are on the Pro Bono Clearing House list, spend the occasional lunch hour at the Legal Advice Bureau, arrange legal education seminars or offer your services to participate in information sessions at many of the not-for-profit organisations that would appreciate your help.

Speaking for myself I thank you sincerely for the help you give already. I know that you have incredible demands on your time, and your commitment to the profession and to the courts is always truly appreciated. But to now recap on those two questions I posed earlier — how much pro bono work will your firm or agency, or you now contemplate doing? Who knows, you may in fact also personally gain some real benefits.

I have a few short words of gratitude I want to express — I am very grateful for the assistance of Justice Burns’s associates, Karina Curry-Hide and Georgina Flaherty, in the preparation of this lecture, to the Law Society and President Donohue for this humbling opportunity to share some of my views, and to all of you for your attendance today. Thank you.

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Karen Fryar AM

When Karen Fryar was appointed as a magistrate of the ACT Magistrates Court on 6 September 1993, she became the first woman to be appointed to the judiciary in the ACT. In 2000, she took over as coordinating magistrate of the Family Violence List. In 2008 she received an ACT International Women’s Day Award for her service to the community, in particular for her role in implementing the Family Violence Intervention Program. In March 2010 she took up the position of Magistrate in the ACT Children’s Court, where she continued to champion the cause of justice for the victims of domestic violence. In 2010 she was appointed as a Member of the Order of Australia for her service to the community through her work on the bench and her contributions to the prevention of family violence. 

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Footnotes