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Understanding

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									Pro bono Fact Sheet
Government Legal Services – October 2007




Putting public goals in private contracts

Equality of access to the law is a fundamental cornerstone of a fair legal system.
Lawyers having a monopoly on the supply of legal services are professionally obligated
to ameliorate the conditions of that monopoly, through the provision of pro bono legal
services. This reflects the importance to our legal system of all people having access to
legal advice and assistance regardless of financial means.

The Victorian government in its contract with 35 law firms to provide legal services to
government has taken the extra step of requiring the law firms to meet social justice
objectives. This includes a contractual requirement that the firms deliver pro bono legal
services. The social justice outcomes have resulted since July 2002 in about $11 million
in free legal services provided by the Panel firms as well as encouraging equal
opportunity in the workplace and in the briefing of barristers for government work.

These social justice obligations are an innovative feature of the Panel arrangements
which are absent from many other contractual relationships and which demonstrate the
indirect ways in which the government can use its contractual weight to promote better
social outcomes for all citizens.


How the contract works

Under the Panel contract, each law firm when tendering to provide legal services
committed itself to pro bono services as a percentage of the legal fees (ex GST &
disbursements) derived from government work. The firms tendered a pro bono
commitment of between 5 and 15%, with an average pro bono commitment of 10%.

How is the requirement determined?

The pro bono commitment becomes an obligation to provide pro bono legal services to
“Approved Causes.” After consulting with Panel firms and stakeholders in the non-profit
sector, the Attorney-General, Rob Hulls, released the policy guidelines for the delivery of
pro bono services under the Government Legal Services contract (Appendix 1).

The guidelines emphasise the provision of pro bono services that provide access to justice
for disadvantaged people and/or are in the public interest. The government encourages a
diversity of pro bono services and recognises that the workplace culture, skills, capacity,
and interests of each law firm are different. The Government encourages Panel firms to
collaborate with non-profit organisations with access to justice objectives to meet their
contractual obligations.
How many pro-bono hours are firms required to do?

Whilst the contractual obligation devolves into hours, it is not based on hours. The pro
bono work done by panel firms is offset against an amount based on their fee revenue
from government. Pro bono work may be done by lawyers at all levels within the firm
and is acquitted at the Panel rates.

For each firm, the pro bono amount is the fixed percentage of revenue from government
work that it committed to in its tender. Panel firms with larger revenue from government
have larger pro bono programs and there may be greater variation within those programs,
but all activities must meet the guidelines.


Are there statistics to track what pro-bono Panel firms are doing?

Under the Panel contract, Panel firms must record the dates the pro bono services were
provided, for which individual or organisation (approved cause), the name and level of
the pro bono services and the number of hours of pro bono services performed.

All firms have advised Government Legal Services (GLS) of the non-profit organisations
that they have partnered with to meet their contractual obligations. GLS meets regularly
with all Panel firms to discuss the delivery of their pro bono commitments. All Panel
firms provide annual reports at audit level detail on the discharge of their contractual
obligation.

What are Panel firms doing?

Panel firms have supported the Public Interest Law Clearing House, the Homeless
Persons Legal Clinic, Specialist and Community Legal Centres such as Youthlaw, the
Mental Health Legal Centre and Springvale Legal Service and accepted referrals of pro
bono clients through the Law Institute of Victoria’s Legal Assistance Scheme.

Additionally the secondment of lawyers into community legal centres has been
encouraged, initially through the Attorney-General’s Secondment Scheme and now
through the more flexible arrangements promoted through the Attorney-General’s
Community Law Partnerships. The Federation of Community Legal Centres manages the
Attorney-General’s Community Law Partnerships. Law firms and community legal
centres are encouraged to develop ongoing partnerships with a range of support, such as
casework advice and referrals, knowledge sharing, administrative assistance etc.

This pro bono work has strengthened these community based services and increased
options for solving legal problems by providing lawyers and paralegals to identified areas
of need. Pro bono work has also been done outside of Melbourne by several major city
firms, mainly with indigenous clients

The extension of the Panel contract for two years to June 2009 will mean firms will
continue accruing their respective percentages of obligations to improve access to justice
for the disadvantaged.


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Many Panel firms have pro bono programs that go beyond their contractual obligations
and whilst commendable, not everything done by Panel firms to assist community groups
or individuals, may come within the narrower scope of the Guidelines.



               2005 -2006 Contractual Pro Bono Reported by Panel Firms
                                                       PRO BONO

                                                              Attorney-General’s
                            LIV referrals (Law Institute of    Community Law
                              Victoria Legal Assistance          Partnerships
                                  Scheme referrals)                $0.200m                    Human Rights and
                                       $0.152m                                                 Refugee matters
                                                                                                  $0.247m

                Homeless Persons
                  Legal Clinic
                    $1.75m                                                                       Direct pro bono case work/
                                                                                                         legal service
                                                                                                           $0.301m




                                                                                                   Charities and non profit
                                                                                                 organisations with access to
                                                                                                      justice objectives
                                                                                                           $0.622m




                                                                                   Community and Specialist
                          PILCH (Public Interest Law                                   Legal centres
                              Clearing House)                                            $0.794m
                                  $1.13m




Are payments in lieu of pro bono possible?

Theoretically, payments in lieu of pro bono work are possible under the panel contract,
occurring when a Panel firm has not been able to meet its contractual obligations. This
scenario is rare. The guidelines also permit Panel firms to give financial assistance to
“approved causes.” This is atypical and Panel firms are advised to seek advice
beforehand as to whether the assistance will meet the guidelines. The contractual
obligations have created a framework that encourages the doing of pro bono or legal
work for the public good.


Is the pro bono a substitute for government-funded legal aid?

The pro bono casework done by Panel firms tends to be in areas, which are not typically
funded by legal aid. Much of the pro bono relates to small civil actions (such as debt,
consumer law or contractual problems). Other substantial categories of work relate to
public interest type litigation and assistance to people seeking refugee status.



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Have other states shown interest in the initiative?

The National Pro Bono Resource Centre based in Sydney has written in support of the
contractual obligation to provide pro bono legal services as part of government
procurement of legal services but to date neither the Commonwealth nor other States
have applied the model.



                      Government Legal Services
                      Legal & Equity Division
                      Department of Justice
                      Level 24, 121 Exhibition Street
                      MELBOURNE VIC 3001
                      AUSTRALIA
                      Telephone + 61 (0)3 8684 0887
                      Fax        + 61 (0)3 8684 7500

                      gls@justice.vic.gov.au
                      www.justice.vic.gov.au



Refer to the Government Legal Services webpages under business areas of the
Department of Justice website for further information on the Panel arrangements.




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                                                                                    Appendix 1
Policy Guidelines for the delivery of Pro Bono services for an Approved
Cause under the Government Legal Services Contract


Guiding Principles
The Government is committed to recognising and to encouraging the provision of pro
bono services. It is meeting this commitment through a groundbreaking contractual
initiative with thirty-three legal firms under a panel contract for the provision of legal
services to government. This initiative seeks to encompass pro bono work currently
being performed, as well as increase future service provision.

Pro bono reflects the inherent value of all people having access to legal advice,
representation and assistance, regardless of financial means.

Pro bono also reflects the inherent value of the community having access to legal
education, research and law reform.

The Government understands "pro bono" to mean the provision of legal services that are
socially responsible and without expectation of fee, at a reduced fee or where payment is
considered inappropriate. The primary objective of those services is the assistance of
disadvantaged persons or organisations or the promotion of the public interest.

Pro bono services can include, but are not limited to:
    legal or paralegal advice, representation or assistance;
    legal research, education or law reform work; and
    provision of staff, financial assistance, equipment, sponsorship or other in kind
       assistance.

The Government encourages a diversity of pro bono service provision and does not
differentiate between categories of work performed, contingent on it meeting the above
criteria.

Accordingly, the Government does not recognise as pro bono, work performed without
expectation of fee or at a reduced fee, for persons or organisations who would otherwise
be able to afford those services. Nor does the Government recognise as pro bono, work
performed for persons or organisations who are involved in a 'no win no fee' commercial
business arrangement.

Furthermore pro bono is not a replacement for legal aid and does not diminish the
government's responsibility for providing free and accessible legal services.

While pro bono is primarily focused on the delivery of services within the State, it may
include services provided outside of the State by lawyers or other staff based in Victoria.




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Approved Cause Definition
Within the context of the above guiding principles the following definition is provided for
guidance when deciding whether a requested service constitutes an "approved cause"
under the panel contract arrangements.

For the purposes of the Government Legal Services contract "an approved cause" is the
provision of any services by lawyers or other staff based in Victoria which will enhance
access to justice for disadvantaged persons or organisations and/or promote the public
interest including circumstances where a Panel Firm:
    1. 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;

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

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

   4. provides staff (legal or other) on secondment to a community organisation; or

   5. provides financial or in kind assistance (e.g. equipment, sponsorship etc) to a
      community organisation.




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