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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.
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 bulletin.
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