Chapter 9 - Pro bono legal services
One area in which there have been major changes since
the Committee's last report is the provision of pro bono legal services. Over
the last five years the provision of such services in Australia
has been transformed from fractured and unstructured services, often delivered
by lawyers in their private time, to services that are coordinated between
community centres and law firms and performed by lawyers in structured in-house
pro bono programs.
This chapter discusses:
developments in pro bono legal service provision
since the Third Report;
the lack of data on pro bono legal services;
whether pro bono legal services are a substitute
for legal aid funding;
the mismatch of legal skills and community need;
lawyers' conflicts of interests;
limitations of lawyers' resources; and
reducing the costs of litigation.
The Third Report
The Committee did not discuss pro bono services in
great detail in the Third Report. However,
the Committee considered that the Government had 'seriously misunderstood' the
extensive involvement of the legal community in providing legal aid and pro
In failing to understand the complex structure in which such
services are provided, the Government may have thought that reducing funding to
one part of the structure would be overcome by additional contributions from
the other components. This view manifestly misunderstands that the amount of
legal aid provided in the past has only been possible, on the whole, because of
the substantial contribution of the legal profession.
In particular, the Committee believed that the
Governments restructure of legal aid administrative and funding arrangements
were based on the Governments belief that:
a greater percentage of the overall legal aid load can be
shifted to the legal profession.
The Committee's conclusion was based in part on
observations of members of the legal profession of the increasing legal aid
burden and the profession's limited capacity to take up this extra burden.
The Committee had recommended that the Commonwealth Government
sponsor a National Legal Aid Council to advise Government on legal aid matters
and provide a vehicle for communication between users and providers of legal
Committee recommended that this Council draft 'guidelines to cover the terms
and conditions under which elements of the legal aid community provide legal
aid and related services.'
Additionally, the Committee recommended that 'there be full recognition of the
contribution made by the legal aid community to the provision of legal services
for the community, especially within the past two years.'
In responding to the Committee's report, the
Commonwealth Government recognised the contribution made by the legal aid
but rejected the other recommendations. The Government expressed the view that
existing consultative mechanisms enabled it to receive advice on the legal aid
system and that the Australian Legal Aid Assistance Forum had been established
to promote communication within the legal aid community.
Developments in providing pro bono
There has always been some form of pro bono services in
legal system. Individual lawyers have regularly offered their time, free of
charge or for a reduced fee, to help individuals or organisations in need of
Renouf, the former Director of the National
Pro Bono Resource Centre, provided a brief overview of the history of
Australian pro bono legal services in the Centres first annual report. Until the
last decade, little attention had been given to the role of pro bono legal
services in increasing access to justice. Since then, a significant number of
pro bono referral bodies have been established, with organisations such as the
NSW Law Society, the NSW Law Foundation and the Victoria Law Foundation preparing
reports or establishing pro bono projects. The Australian Bureau of Statistics
first asked questions about pro bono work in its 1998/99 survey of the legal
profession. Around the same time, several of the larger law firms began to
establish structured in-house pro bono schemes or support for external
services, often in partnership with community based organisations.
Anecdotal information suggests that the law firms see
the structured and supervised provision of pro bono legal services as an
important corporate social responsibilitylawyers generally see the opportunity
to work on pro bono matters as an invaluable way to perform community service
and as a way of injecting variety into their working life.
In August 2000, the then Attorney-General, the Hon
AM QC MP, hosted a conference in Canberra
on pro bono legal services. Following
that conference he established the Pro Bono Task Force to develop a strategy
for implementing the conference outcomes. In 2001 the Task Force recommended
five broad actions:
an Australian pro bono resource centre to promote pro bono work throughout the
legal profession, assist and support pro bono service providers and make
available resources and information to pro bono providers;
best practice handbook for managing pro bono work within law firms;
national professional practice standards for pro bono legal services; and
strong pro bono culture in Australia.
In August 2002, the National Pro Bono Resource Centre
was established by the Public Interest Advocacy Centre in partnership with
several other organisations and with financial support from the Commonwealth
Government and the University of New
South Wales. It focused its efforts on building
networks and partnerships and producing resources of benefit to the legal
profession and community sector. The
Commonwealth Governments financial support consisted of a $1 million grant over
four years, that is, until 2006.
In October 2003, the National Pro Bono Resource Centre
hosted the Second National Pro Bono Conference in Sydney. The
conference brought together representatives from community organisations, legal
professional organisations, academics and law students, state and federal
government legal officers, partners and pro bono coordinators of law firms,
members of the Bar and judges to share experience and discuss emerging issues
in pro bono law.
The Attorney-General recognised the contribution of pro bono legal services in
his speech at the Conference.
Data on the extent of pro bono legal services
The Committee found it difficult to quantify the extent
of pro bono legal services in Australia.
This is partly because there is no universally accepted definition of what
constitutes a pro bono legal service, although the term generally refers to a
legal service that has been provided voluntarily and on a no fee or reduced fee
basis. As the Australian Law Reform Commission explained in its 2000 report, Managing Justice:
Some lawyers equate work done at legal aid rates as `pro bono'
because of the low level of remuneration. Others include matters in which they
have substantially reduced, but not waived, their fees. In some such cases,
lawyers continue to act where paying clients run out of funds. Others lawyers
apply a strict test that pro bono work is for the public good, such as `test
case litigation', not simply work without or for reduced charges.
Many firms and legal professional associations do not
keep statistics on the quantity or value of the pro bono work they or their
members undertake or coordinate. There is also
no nationally co-coordinated record-keeping of the services that are provided.
The Australian Bureau of Statistics (ABS) estimated that
in 2001-2002 solicitors and barristers in Australia
provided a total of 2.3 million hours of pro bono work. However,
other sources estimate that the total is much higher. According to the Castan
Centre for Human Rights Law, Australian solicitors and barristers perform 2.269
million hours of pro bono work each year. The
Attorney-General referred to a similar figure for 2001-02 (2.3 million hours)
in late 2003.
The Pro Bono Resource Centre told the Committee of its concerns about the
accuracy of the ABS statistics, pointing to sampling errors, disparity in
record keeping practices and different opinions by law firms as to what
constitutes pro bono work.
Nonetheless, whatever figures are used, it is clear that the legal professions
pro bono contribution is significant.
The Committee notes that comprehensive information on
the types of clients and matters is also lacking. Submissions indicated that
types of matters in which pro bono assistance is sought traversed a wide range
of law, including commercial law, family law and criminal law. The statistics
provided in submissions provided by community legal centres and law firms
appeared to largely focus on particular areas of community need, largely
reflected by the expertise of practitioners performing the work, rather than
objectively indicating the total community need. Also, statistics provided by
clearing houses indicate the community demand where no other help is available.
The Legal Aid Commission of South Australia suggested
that the demand for pro bono legal services was increasing. However,
this view could not be confirmed due to the lack of reliable statistics.
The Committee considers that accurate records of pro
bono legal service provision would assist government by informing policy
development in providing access to justice. These records should include the
type of matter in which assistance was sought, type of client, source of
referral and approximate cost in market rates of assistance provided.
The Committee considers that the National Pro Bono
Resource Centre is the most appropriate existing body to encourage a national
approach to the collection of data on pro bono legal services. It notes that
the Centre has noted this as a future challenge in its annual report. The Committee
acknowledges that the Commonwealth government is providing the Centre with one
million dollars over four years. However, the Committee considers that
additional funding for the purpose of obtaining data collection would enable
empirical data to inform the debate on this important aspect of the communitys
access to justice.
The Committee recommends that the Commonwealth
government provide additional funding to the National Pro Bono Resource Centre
to enable it to encourage and provide support to law firms, community legal
centres, pro bono referral schemes and legal aid commissions in recording and
reporting statistics on pro bono service provision.
Structured service provision
The National Pro Bono Resource Centres submission outlined
the current structures of pro bono legal service provision. Generally,
in-firm pro bono (providing legal services in
the same way as a paying client except that the service is offered for free or
at a discounted rate);
outreach services (lawyers providing legal
advice at outreach locations, such as at the premises of community
secondments to community legal organisations
(generally the same as an outreach service except that the lawyer is supervised
by a solicitor at the premises);
specialist services (firms contributing
resources to a specific community-based servicefor example, the Shopfront
Youth Legal Service in Sydney);
volunteering (lawyers volunteering their time at
community legal centres);
multi-tiered relationships (providing resources,
not necessarily legal resources, in partnership with other organisations to
facilitate access to justice); and
other pro bono opportunities.
In larger metropolitan areas, law firms generally work
in co-operation with community legal services or welfare organisations. One
case in point is the PILCH Homeless Persons Legal Clinic (HPLC), a
co-operative effort of PILCH and the Council to Homeless Persons. PILCH employs
a co-coordinator for the HPLC to organise lawyers from member firms who are
willing to offer their services to crisis centres and welfare agencies which
assist homeless persons.
There are numerous examples of similar co-operative
efforts and not all are restricted to providing legal services for the end
user. Often, larger firms will offer legal assistance to organisations
(contract or employment advice, for example) and /or offer other resources
including office facilities, library and research resources, administrative
assistance, transport, manpower and fundraising.
These new arrangements are referred to as 'multi-tiered' and
'demonstrat[ing] a new strategy' in providing
pro bono services, by taking a co-operative and pro-active approach to working
directly with and serving the community. The emphasis is on providing a service
which meets a need in a practical and real way as opposed to providing what
lawyers are prepared to offer. It follows
that if what lawyers are prepared to offer does not meet the stated need then
steps need to be taken to ensure that lawyers are trained to provide skills
which meet demand.
In the case of the ACTs First Stop Legal and Referral
Service for Young People, the firm of Clayton Utz is one of four partner
organisations whose focus is to assist people aged 12-25 by either helping to
resolve legal matters or referring the young person to appropriate sources of
wanted to do more than provide basic funding assistance to the service. David
Hillard, the National Pro Bono Director at Clayton
Utz explains, We had a lot of enthusiasm
from our lawyers for being involved in First Stop, but to be honest, we did not
have a great depth of experience in many of the legal issues that we knew would
affect First Stop clients. So we took steps to get that experience and train
our lawyers. Prior to the service opening, Clayton
Utz lawyers attended tailored training
conducted by Legal Aid lawyers on topics such as criminal and family law.
Training was also provided about specialist referral points in Canberra
and referrals protocols were developed. 
The benefits of structured provision of pro bono legal
services include delivering more effective pro bono services and increasing
effective legal services to disadvantaged clients and communities. However,
pro bono referral schemes do not appear to exist in all jurisdictions.
The Committee was interested to note a recent
initiative in Victoria.
The Victorian Attorney-General in June 2000 announced an initiative designed to
increase the level of pro bono work undertaken by the private profession. The Pro
Bono Secondment Scheme Pilot which ran from March 2002 to December 2003
involved ten lawyers from six Melbourne
law firms working for six months in nine centres (CLCs, specialist legal
centres and one section of Victorian Legal Aid). A recent report has
recommended the continuation and expansion of the scheme.
The Committee commends the legal profession for its
increasing support of pro bono legal services and the National Pro Bono
Resource Centre for supporting the legal profession in matching community need
with appropriately skilled lawyers.
While noting the Commonwealth Government's contribution
to funding over four years, the Committee is concerned that the Commonwealth
Government has not assured on-going funding for the Centre.
The Committee also considers the role of community
legal centres and clearing houses as essential to the efficient and effective
provision of pro bono legal services.
The Committee recommends that the Commonwealth Government
commit ongoing funding to the National Pro Bono Resource Centre past 2006 to
enable it to continue its work to improve the provision of pro bono legal
Pro bono work as a substitute for legal aid funding
In its Third
Report, the Committee referred to evidence that other parts of the legal
system were subject to pressure and were 'increasingly unable, or in some
cases, unwilling to fill the gaps caused by the Commonwealth's unilateral
action' in changing the basis of legal aid funding. The
Committee called for 'full recognition of the contribution' of the legal aid
community to providing 'legal services for the community, especially within the
past two years.' 
Many submissions to this inquiry argued that pro bono
legal services should not be seen as a substitute for legal aid funding. They
included representatives from the Commonwealth government, community
pro bono support groups,
professional associations, academic organisations and legal
The Castan Centre for Human Rights Law best articulated the basis for this
Access to justice can never be dispensed in terms of right by
pro bono assistance in the way that legal assistance can be guaranteed through
[a legal aid commission] mandated with that obligation through legalisation,
and adequately resourced by public funding.
National Legal Aid also expressed concern over the
Commonwealth Governments 'increasing tendency to promote pro bono services
as the answer to gaps in service provision'. This
tendency seems supported by the Attorney-Generals recent statements:
pro bono is just one part of the delivery of justice in Australia.
As well as pro bono work, legal aid, community legal services and fee for
service all contribute to our justice system.
The South West Sydney Legal Centre argued that the
level of pro bono work offered had reached saturation point and that such
services would be most unlikely to make up the shortfall in legal aid funding. One of the
larger law firms, Blake Dawson Waldron, stated that pro bono services could not
fill the gaps:
even at full capacity and in conjunction with the pro bono
programs of other firms, we are unable to have any great impact on the unmet
demand for legal assistance from people who cannot pay for such assistance.
The ALRC in its report, Managing Justice, recommended that:
In order to enhance appreciation of ethical standards and
professional responsibility, law students should be encouraged and provided
opportunity to undertake pro bono work as part of their academic or practical
legal training requirements.
The ALRC noted that the legal profession generally
supports properly supervised pro bono work as a compulsory part of undergraduate
although making the provision of pro bono legal services a requirement for
practising law was opposed. The ALRC
noted that the universities of Sydney
and Wollongong have already
introduced pro bono work as part of their course requirement for law students. The
Government responded that requiring law students to undertake pro bono work as
part of their academic or practical legal training requirements was a matter
for the legal profession.
Submissions to this inquiry noted that law students are
currently used in some community legal organisations, with some
regarding this experience as valuable to the students future professional
development and work prospects.
The Committee considers pro bono legal services to be
an important and growing part of the response to the need for legal assistance.
However, it is neither a substitute for an adequately funded legal aid system
nor a panacea for overcoming gaps in other publicly funded legal services. Pro
bono by its nature is a voluntary provision of services that is motivated by a
persons social responsibility.
The Committee also considers that exposing law students
to pro bono work is an invaluable way of establishing a strong foundation of
social responsibility and engendering their commitment to future pro bono work.
Mismatch of pro bono services and community need
Some submissions indicated that there is a mismatch of
available legal skills and unmet community need in pro bono service provisions. Often large
law firms specialise in areas of commercial and corporate law, whereas
community legal centres argue that the greatest need for pro bono services is
in family, tenancy, credit, criminal and social security law.
Submissions argued that law firms are increasingly taking
on high profile casesfor example, native title and migration mattersbut other
areas of need are not adequately addressed. As the Legal Aid Commission of New
South Wales stated:
[pro bono schemes] tend to be hit and miss, not targeted at the
socially and economically disadvantaged but reflecting individual solicitors
priorities and interests.
The Federation of Community Legal Centres added:
private lawyers are generally not experts in community law,
they are often selective about the cases that they take on (eg often reluctant
to do cases that take on government), they may prefer high profile cases rather
than complex low profile family law matters, and they can withdraw assistance
if paid work becomes more demanding.
In response, Blake Dawson Waldron, one of the larger
law firms, commented that:
Due to conflict of interest or lack of expertise, the firm is
frequently unable to act in areas of law where there is a strong demand for
legal aid and pro bono services; namely immigration, family law, matters
against lawyers or doctors, and matters against banks and insurance companies.
Where a gap in legal services is identified to the firm (usually
by lawyers in the community legal sector) and the firm lacks the skills to
assist, from time to time the firm will provide training to enable its lawyers
to act in those areas.
Another large firm, Freehills, noted that it would only
accept pro bono referrals where it had relevant experience.
The National Pro Bono Resource Centre stated:
The mis-match between the expertise of private pro bono lawyers,
particularly in the larger firms where the potential for expansion of pro bono
programs exists, and the most common areas of legal need (and to some extent the reluctance to accept
instructions in matters involving significant levels of litigation) are key
reasons why pro bono services are unlikely to make any significant dent in the
demand for publicly funded legal services in key areas of need including
criminal and family law.
Nor are pro bono legal services likely to be able to provide
routine assistance in many areas of civil law, especially those that require
high levels of specialisation in the law and practice of the relevant area such
as social security law, consumer credit law and migration law. It cannot be
assumed that pro bono service providers will have the requisite level of
expertise, capacity or resources, to take on any kind of matter, on a pro bono
basis, at any given time.
Firms can, and do, provide or organise training (often in
partnership legal aid bodies or CLCs) to enable lawyers to take on matters in
which they do not have expertise, and for which there is a clear demand for, and short supply of, assistance 
Acting Director of the National Pro Bono Resource Centre, told the Committee:
There area number of barriers that obstruct the provision of
pro bono services, including conflicts of interest, disbursements and
expertise, and the more general problem of the very limited resources of many
legal practices, the rising costs of legal practices and the impact of tort
reforms which have restricted important traditional practice areas.
The mismatch between lawyers' expertise and legal needs
is accentuated in rural, regional and remote areas. In its December 2003
newsletter, the National Pro Bono Resource Centre stated that it had received:
funding approval from the Law and Justice Foundation of NSW to
undertake a project aimed at improving opportunities for and access to legal
services for disadvantaged and marginalised people in regional, rural and
remote (RRR) communities. The project will assist community legal centres and
their clients in RRR areas of NSW and support the development of three pilot
projects to deliver improved pro bono services in RRR areas.
As pointed out elsewhere in this report, the Committee
notes that there is no comprehensive data on the community's need for legal
Ascertaining the extent of the mismatch between
community need and available legal skills may be resolved by clearly identifying
the areas of community need on the basis of reliable data and training lawyers
willing to provide pro bono services in those areas of need.
In conjunction with Recommendation 11, the Committee
recommends that the Commonwealth Government provide additional funding to allow
community legal centres, clearing houses and other pro bono services to collect
detailed information on the community need for legal services.
Conflicts of interest
The National Pro Bono Resource Centre highlighted two
types of conflict which may impede the provision of pro bono legal services by
The first is a conflict of interest where the firm of the lawyer providing pro
bono work may have a prior relationship with the other partyfor example, a
commercial lawyer who has acted for a telecommunications company assists people
with credit problems with that company.
Larger firms are more likely to represent more clients
and therefore the probability of conflicts increasefor example Blake Dawson Waldron
stated that they are unlikely to be able to provide pro bono legal services in
actions against doctors, lawyers, banks and insurance companies. A law firm
in areas with few legal service providersfor example, regional, rural and
remote areasalso increases the probability of conflicts.
The second type of potential conflict occurs where the
law firm has a commercial relationship with the opposing party and may perceive
a disadvantage, for example, if a firm acts in a public interest matter against
a government department with which they hope to provide other services.
The Public Interest Law Clearing House told the
Committee that it had received a 'wide range of anecdotal evidence' from the
legal profession that lawyers perceived a potential disadvantage to its
commercial interests if it acts against its client or potential client and that:
PILCH has also been informed about a government department
directing lawyers on its panel who perform specialist work not to accept any
work against the department in any other area of law.
The National Pro Bono Resource Centre, in consultation
with the legal profession, has asked the Commonwealth Government to consider a
draft protocol which seeks to minimise conflicts of the second type. This
protocol seeks to prohibit government agencies from prejudicing or penalising
legal service providers in any purchasing or procuring decisions relating to
legal services where the service provider acted against the government in a pro
bono matter. The Centre has suggested that the protocol be included in the form
of Legal Services Directions issued by the Attorney-General under section 55ZF
of the Judiciary Act 1903. The
Attorney-General has stated that:
It is important that governments address the perception amongst
lawyers that providing pro bono legal assistance in matters against the
Government makes it less likely they will be asked to undertake Government
It is my belief that, subject to the usual conflict of interest
rules, it is irrelevant whether or not legal providers have acted pro bono for
clients against the Commonwealth.
The Committee notes that the National Pro Bono Resource
Centre has also recently written to state and territory Attorneys-General
advocating the adoption of its draft protocol.
The Committee agrees with the Attorney-General that,
subject to the usual conflict of interest rules, provision of pro bono legal
services in actions against the government is irrelevant to the provision of
legal services to the government. However, the Committee is concerned that this
view may not be shared by departmental officers and notes anecdotal evidence
that suggests there is a very real problem of perceived commercial conflict of
The Committee considers that this risk could be easily
minimised by providing clear directions to government officers. These
directions would also go some way to allaying the professions concerns over
potential commercial disadvantages in performing pro bono work. The National Pro
Bono Resources' Centre's suggestion that such directions could be included in
Legal Services Directions issued by the Attorney-General under section 55ZF of
the Judiciary Act 1903 would seem to
have merit. State and territory governments should also consider adoption of
such directions, preferably in the form of a binding instrument that governs
the way in which government agencies conduct their legal affairs.
The Committee recommends that the Attorney-General
issue binding directions to federal government agencies that the fact that a
legal service provider has acted or is likely to act against the Commonwealth
Government or its agencies in a pro bono matter is not to be taken into account
to the detriment of the provider when decisions relating to the procurement or
purchasing of legal services are made. The Committee urges state and territory
governments to issue similar directions.
Limited resources of law firms
National Legal Aid summarised the fundamental pressure
on law firms:
Private practitioners are unlikely to pick up cases pro bono
where there is little or no prospect of fee recovery or which are not
sufficiently significant to attract publicity or attention to the firm which
is after all a business and must bring in enough to survive.
Blake Dawson Waldron explained that its budget for pro
bono work represents a percentage of its annual gross turnover. The
Northern Rivers Community Legal Centre, Blue Mountains Community Legal Centre
Inc and Freehills all indicated that a rural or regional law firms decreased
capacity to deliver pro bono legal services because of the smaller profits of
those firms in comparison to the larger city firms. This
reduced capacity exacerbates the problem of reduced pro bono legal service
provision in rural, regional and remote areas.
The Committee notes that pro bono service providers may
be unable or unwilling to meet the demands of a case that requires extended
litigation. In family law matters in particular, there is a real risk that
matters may be prolonged or unexpectedly raise complex issues. At the Second
National Pro Bono Conference, members of the legal profession suggested that
few firms will accept this risk by offering pro bono services in family law
Because a recipient of pro bono services may require
legal assistance throughout the entire process, it is of concern that he or she
may be denied adequate legal representation when most in need. It also raises
the question of the quality of the service the person receives.
Specific costs may also erode a lawyer's capacity to
deliver pro bono legal servicesfor example, the ongoing annual cost of
registering with the Migration Agents Registration Authority in order to
provide pro bono services in migration matters (discussed in Chapter 7).
Proposed changes to Federal Court
In March 2003, the Federal Court sought comments from
the legal community on proposed Order 45 Rule 10 of the Federal Court Rules.
This proposed rule is designed to ensure that the court knows the identity of
any legal practitioner who may have prepared a document that is used by an
otherwise unrepresented litigant.
The PILCH commented that the proposed rule would have
an adverse impact on access to justice through discouraging the provision of
some forms of legal services to people who are unable to afford legal
The PILCH commented that the proposed rule may reduce pro bono legal
assistance, as lawyers who provide assistance falling short of full
representation may no longer be willing to provide any legal assistance or may
significantly reduce the scope of their assistance. This may occur through:
voluntary legal advisors to disclose their involvement in a matter, where that
involvement falls short of preparing court documents, for example where written
advice is given to a client on points to be made in a submission
voluntary legal advisors, including lawyers in community legal centres, to
record their name on a court document where that lawyer does not have any
control over the final version of the documents
- increasing the
time and cost required in providing assistance
- raising the
expectation of the client, court and opposing parties of the lawyers
involvement in the matter
- not providing clarity
as to the context in which the voluntary lawyer provided assistance.
The Federal Court advised the Committee that, following
consultations with the legal profession, it was decided not to proceed with
this rule change.
The Committee recognises the obstacles lawyers face in
providing pro bono legal services. It considers that some of these impediments arise
from the inability to separate the cost of offering free or discounted services
from the costs of pursuing a commercial profit. However, some of these costs
are able to be separately attributed and therefore may be addressedfor
example, migration agent fees for non-profit organisations providing pro bono
legal advice on migration law (discussed in Chapter 7).
Costs of litigation
Apart from lawyers fees, other costs associated with
legal actions, such as medical or other expert opinions, interpreter services
and paying court filing fees, may be prohibitive. In some cases medical and
other experts provide their services for free or their expenses are covered by
access to a "disbursement fund".
The National Pro Bono Task Force told the Committee that
interpreter and transcript costs are a 'significant deterrent' to providing pro
bono legal services and that the Australian Institute of Interpreters and
Translators was unwilling to waive fees in pro bono cases because of the
relatively low incomes of interpreters and translators.
The Access to Justice Advisory Committee recognised
that court fees and transcript costs were another obstacle. While the
courts can waive fees in cases of hardship, there is no 'regularized process
for dealing with court fees in pro bono matters (as distinct from only hardship
The ineffectiveness of costs orders in pro bono matters
may also indirectly increase the cost of litigation. A cost order generally
requires the costs of a litigants solicitor to be paid by an opponent who has
unduly wasted time or raised irrelevant issues. Costs orders are a means of
sanctioning certain conduct. However, because in pro bono matters a lawyer is
not paid, a cost order is ineffective as a sanction.
Anecdotal information suggests that some lawyers use
delaying tactics against clients who are represented on a pro bono basis. Order
80 Rule 9 of the Federal Court Rules, however, allows a solicitor providing pro
bono services to recover amounts where a costs order is made. This rule does
not apply to other jurisdictions and there does not appear to be any similar
order in other jurisdictions.
The possibility of a costs order may also deter a
litigant from enforcing his or her rights. The PILCH recommended that although
the court will take public interest factors into account when considering costs
orders, the Commonwealth and State governments should develop and publish a
policy on seeking costs against litigants and legal advisers in public interest
and other pro bono matters against the Commonwealth and state departments and
The Committee considers that more needs to be done to
encourage other professions to provide pro bono services where necessary to
pursue the rights of disadvantaged people.
The Committee acknowledges that the courts may waive
fees in cases of hardship. However, this requirement may be too strict for
improving the community's access to justice. The Committee considers that this
issue should be subject to further study.
The Committee is also concerned at the suggestion that
some members of the legal profession may use delaying tactics to affect
adversely those litigants who use pro bono legal services. The Committee
considers that these tactics may be deterred by providing for costs orders as
order 80 rule 9 of the Federal Court Rules allows, and considers that this
option should be available in all courts.
The Committee recommends that all courts consider
amending their rules to allow lawyers who provide pro bono legal services to
recover their costs in similar circumstances to those litigants who pay for
their legal representation.
The Committee's conclusion
The increased provision of pro bono legal services
through more efficient screening and referral structures and increased support
from the larger firms is to be commended. In particular, the work of non-profit
organisations in mobilizing the legal profession to better organize and
coordinate its pro bono services is to be commended.
However, the Government cannot rely on pro bono
services as either an answer to the current level of legal aid or as a panacea
to overcome the current gaps in legal aids provision of access to justice.