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Future directions for pro bono legal services in New South Wales
This research project assessed the need for greater co-ordination of pro bono services in New South Wales, and a proposal to improve the structure, organisation and delivery of pro bono services.
Download full report Future directions for pro bono legal services in NSW
There is growing interest in pro bono work within the legal profession and among policy makers. Three institutional schemes have been established in New South Wales since 1992. In addition, several large law firms have developed mechanisms for formally dealing with pro bono work. At the same time, there have been significant changes in the legal services environment. Reductions in legal aid funding are expected to lead to greater demands for the provision of legal services on a pro bono basis. Increased competition within the legal profession may also force many lawyers to reduce their profit margins and to increase the amount of full fee paying work. This in turn will reduce the capacity of many lawyers to perform work for no, or a substantially reduced, fee.
Within this environment of change, the Law Foundation of New South Wales agreed to support a proposal from the Public Interest Law Clearing House (PILCH) for a study into future directions for pro bono legal services in New South Wales. This support was provided on an in-kind basis by having the Centre for Legal Process, one of the Law Foundation’s research centres, conduct the project. At the time the study commenced, no formal research into pro bono legal services had been undertaken in Australia.1
The Terms of Reference for the project are included at the front of the Report.
2. Research methodology
The study covers pro bono legal services in New South Wales, although information and comments were sought from interstate and national bodies. Qualitative research methods were employed to conduct the study. These are set out in detail in chapter 2 of the Report.
3. The study’s key themes
Two key themes emerged from the study: modernising traditional pro bono practice and resourcing pro bono legal services.
3.1 Modernising traditional pro bono practice
The study found that, while the provision of pro bono legal services has a long tradition, there is no universal view on what the term ‘pro bono legal services’ means in practice, particularly in the face of significant changes to the structure of the legal services industry. In order to establish a definition of ‘pro bono legal services’, the Centre explored three specific questions:
• what types of services constitute pro bono work?
3.2 A definition of ‘pro bono legal services’
The Centre established the following definition:
• which clients should be eligible for pro bono legal services?
• on what basis should legal services be provided?
For a detailed discussion of the definition, see sections 4.3, 4.4, 4.6 and 6.2 of the Report.
The study also considered the relationship between pro bono legal services and publicly funded legal aid services. This is discussed in section 4.5 of the Report.
Within the key theme of modernising traditional pro bono practice is the issue of quality of pro bono services. The Centre considered a range of mechanisms that could be adopted by referral schemes to ensure that pro bono clients receive a high level of service from participating lawyers. The study also explores steps that can be taken by lawyers and law firms to ensure that a pro bono client receives the same level of service as a paying client. These are set out in section 4.7 of the Report.
3.3 Resourcing pro bono legal services
This second key theme covers four issues:
Pro bono legal services are services that involve the exercise of professional legal skills, and are services provided on a free or substantially reduced fee basis. They are services that are provided for:
• people who can demonstrate a need for legal assistance but cannot afford the full cost of a lawyer’s services at the market rate without financial hardship;
• non-profit organisations which work on behalf of members of the community who are disadvantaged or marginalised, or which work for the public good; and
• public interest matters, being matters of broad community concern which would not otherwise be pursued.
• human resources
These are discussed in chapter 5 of the Report.
4. Principles for the delivery of pro bono legal services
As a result of the Centre’s research, the Report proposes 21 principles to guide the further development of pro bono legal services. These are listed at the end of this Executive Summary. See also the discussion in section 6.3 of the Report.
5. Coordination of pro bono legal services
The Report proposes four different models for the future delivery of pro bono services.
• financial resources
• availability of pro bono services
5.1 The Centre’s preferred model
Based on its findings, the Centre supports the adoption of Model A, a central contact point. This would provide centralised policy development and improved access to pro bono services white maintaining a diverse range of local and institutional schemes in operation. The structure, funding and operation of such a model requires further research. See generally section 6.4 of the Report.
Through its research, the Centre has provided essential information about pro bono services in New South Wales. The study:
• provides a clear and comprehensive definition of pro bono legal services
• finds that there are multiple ways in which the delivery of pro bono legal services could be improved, to make them more effective and efficient
• sets out a series of principles that should be adopted to achieve this.
Some areas remain for further inquiry:
• Further research needs to be carried out into lawyer attitudes to pro bono work and the factors influencing their participation in pro bono schemes.
• On-going research and evaluation must be built into any future structure for the coordination and delivery of pro bono legal services.
• Research is necessary to identify ways of building on the ‘pro bono culture’ that has already been established within the legal profession in New South Wales.
1. In September 1997, while this study was on foot, the Law Society of New South Wales published the results of its Practising Certificate Survey 1997-98, which, for the first time, included questions about pro bono work.
Model A - a central contact point
Model B - a central clearing house
Model C - a support agency
Model D -an advisory committee