Fact sheet 2 - Professional indemnity insurance requirements for international pro bono work
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This fact sheet provides information on professional indemnity insurance issues for Australian legal practitioners intending to undertake international pro bono legal work.
What is pro bono legal work?
Pro bono legal work can include the provision of legal services on a free or significantly reduced-fee basis. For example, pro bono services that are provided for:
- people who cannot afford the cost of legal services 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.
The provision of legal services generally constitutes legal practice, for example where the service involves legal representation before courts. Pro bono legal work may also include work which does not constitute legal practice, for example, providing community legal education.
What is international pro bono legal work?
International pro bono legal work is legal work provided on a pro bono basis that is focussed outside of Australia, and is in response to both need and disadvantage within a recipient country. It may include the provision of direct legal advice and representation, assistance with law reform or other systemic legal issues, legal training and education, and judicial assistance. While focussed outside of Australia, international pro bonolegal work can be performed within or outside of Australia or both.
What are the requirements for legal practice and professional indemnity insurance for international pro bono legal work overseas?
Practising Australian law overseas
In many countries, as in Australia, foreign legal practitioners may practice foreign law (the law of their own country) on a limited basis. However, if a foreign legal practitioner intends to practise the local law of a jurisdiction other than his or her own, the practitioner must seek to be admitted to the legal profession of the jurisdiction that he or she is visiting as well as complying with any other local requirements.
Some Australian professional indemnity insurance (PII) providers are prepared, on request, to extend an Australian legal practitioner’s existing PII to cover the practitioner’s work undertaken overseas. However, this cover is normally restricted to the practice of Australian law unless the practitioner is also entitled to practise the local law of the foreign jurisdiction. Even in these circumstances, work conducted in certain jurisdictions, such as the USA, is often excluded.
Practitioners who wish to practise Australian law overseas should contact their PII providers to enquire whether the standard and level of their existing PII cover will extend to work performed in foreign jurisdictions. Practitioners will also need to establish that their PII complies with foreign jurisdiction requirements. In the circumstances where PII coverage is restricted, practitioners should enquire about whether they should disclose those restrictions to clients.
Practising local law overseas
The approach taken by authorities to foreign lawyers practising local law varies from one jurisdiction to another. Generally, only legal practitioners qualified and licensed to practise local law are entitled to engage in legal practice (including providing direct legal advice or representing clients before courts) in that jurisdiction.
In specific circumstances, some countries allow foreign lawyers to provide direct legal advice or represent clients before their courts. However, these rights are normally restricted in scope, are granted on a case by case basis only, and may invoke political and other sensitive matters for consideration within the jurisdiction. The provision of such services may be confined to certain areas of law such as commercial law. For example, Singapore allows foreign lawyers to undertake mediation and arbitration work without being qualified and licensed in Singapore.
General professional indemnity insurance requirements overseas
In all circumstances, in relation to legal work that may amount to engaging in legal practice overseas, Australian legal practitioners should ensure that they:
- ascertain the need to have insurance and the terms and conditions of its scope prior to undertaking work that might expose them to risk of a civil liability claim, and
- consider working in association with a local legal practitioner. The local practitioner can provide final sign-off for any legal advice provided by Australian legal practitioners (particularly in matters involving consumer legal services such as wills and probate, family law and criminal law or human rights).
By way of summary, before undertaking international pro bono legal work that may constitute engaging in legal practice, legal practitioners should be aware that:
- PII requirements (including the level and standards of cover) vary from one jurisdiction to another. In some jurisdictions, the requirement to be insured is closely linked to a legal practitioner’s entitlement to engage in legal practice and be granted a practising certificate or licence in that jurisdiction.
- The regulation of the legal profession is, in some jurisdictions, a government responsibility. In other jurisdictions, professional bodies (such as bar associations and law societies) undertake some or all regulatory functions over the legal profession.
- A legal practitioner should contact the relevant regulatory authority of a jurisdiction to establish what the applicable PII requirements of practising in that jurisdiction are before undertaking legal work that may amount to engaging in legal practice.
What are the requirements for consultancy and other legal work overseas?
International pro bono legal work can also include legal research, continuing legal education, policy development work and legal reform advice undertaken in partnership with foreign legal practitioners or under the auspices of government agencies, officials or departments.
In many instances, there is scope for Australian legal practitioners to offer their services on a consultancy basis. This work may, for example, involve working with foreign officials to develop draft legislation, or teaching in a local university. Such work is unlikely to constitute engaging in legal practice. However, legal practitioners should always be mindful of the capacity in which they are working. If legal practitioners are uncertain about whether their work amounts to engaging in legal practice, they should contact professional associations, regulatory authorities and PII insurers in both Australia and the overseas jurisdiction.
Legal work that does not amount to engaging in legal practice is unlikely to require a legal practitioner undertaking international pro bono legal work to be covered by PII.
Where can further information be obtained?
Information and assistance may be obtained from:
- professional associations overseas such as the South Pacific Lawyers’ Association (SPLA)
- Australian professional bodies (see the Australian Law Council’s listing)
- Australian regulatory authorities (see lawlink’s listing)
- Australian PII providers such as LawCover, and
- overseas regulatory authorities and PII providers (contact individual jurisdictions).
Note
This fact sheet is intended to provide general information only and may be updated from time to time. You should confirm the currency of any information you wish to rely on by contacting the relevant bodies listed above.