Putting Public Goals in Private Contracts

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.

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

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.

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

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.

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.

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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