Legal services panel – Pro Bono policy guidelines

Pro Bono policy guidelines for the delivery of pro bono services for an approved cause under the Legal Services Contract.

1. General

1.1 Interpretation

In these Guidelines:

Panel Firm means a Service Provider which is party to a Panel Contract.

Panel Contract means an agreement between the State and a Service Provider with respect to the provision of legal services under the Panel arrangements.

1.2 Guiding Principles

1. The Government is committed to recognising and to encouraging the provision of pro bono services. It is meeting this commitment through Panel Firms under Panel Contracts 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.
2. The Government is also committed to strengthening the viability of community legal centres through the provision of pro bono services by Panel Firms under Panel Contracts.
3. Pro bono reflects the inherent value of all people having access to legal advice, representation and assistance, regardless of financial means.
4. Pro bono also reflects the inherent value of the community having access to legal education, research and law reform.
5. 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.
6. Pro bono services can include, but are not limited to:
   1. legal or paralegal advice, representation or assistance;
   2. legal research, education or law reform work; and
   3. provision of staff, financial assistance, equipment, sponsorship or other in kind assistance.
7. 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.
8. 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.
9. 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.
10. 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.

1.3 Approved Cause

1. 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 a Panel Contract.
2. For the purposes of a Panel Contract an “Approved Cause" is the provision of any services by lawyers or other staff based in Victoria or other financial or in kind assistance which will enhance access to justice for disadvantaged persons or organisations and/or promote the public interest including but not limited to 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:
      1. a client has no other access to the courts and the legal system; and/or
      2. the client's case raises a wider issue of public interest; or
   2. undertakes the following, provided the provision of these services or financial or in kind assistance will enhance access to justice for disadvantaged persons or organisations and/or promote the public interest:
      1. is involved in free community legal education and/or law reform;
      2. is involved in the giving of free legal advice and/or representation to charitable and community organisations;
      3. provides staff (legal or other) on secondment to a community legal centres or other community organisation; or
      4. provides financial or in kind assistance (for example, equipment, sponsorship etc) to a community legal centres or other community organisation.

2. Administrative Arrangements for the Pro Bono Commitment

2.1 Background

1. Pro bono work forms part of a generally accepted obligation of the legal profession to undertake legal work for the public good. It is regularly cited as an example of what sets the legal profession apart from other professions. The decision to undertake pro bono work, whether on its own initiative or through broader pro bono arrangements (such as a commitment to a secondment scheme or to a community legal centre, etc), is a matter for each lawyer and legal firm. Pro bono programs and services do, and will continue to, vary between firms.
2. Under the Panel Contract, Panel Firms have committed themselves to provide legal services on a pro bono basis to "Approved Causes" (or to make payments in lieu) equivalent in value to a nominated percentage of the fees they generate under the Panel arrangements. This commitment is an additional element to be woven into the pro bono programs of those firms. It does not define, nor should it be considered to determine, the extent of their pro bono programs that may well have a broader scope and include purposes and involve obligations independent of this commitment.
3. The Government proposes a simplified approach to pro bono activity undertaken by Panel Firms. It recognises pro bono activity as the product of evolving relationships between Panel Firms and the non-profit sector in response to the access to justice needs of Victorians. However, there is the need for reasonable oversight by Government which will arise through appropriate recording of pro bono services and audit arrangements under clauses 11 and 18 of the Panel Contract.
4. Each Panel Firm decides the size of its overall pro bono program and the types of services it will provide from year to year. Its Panel Contract obligation is one of many factors each Panel Firm will take into account when deciding its pro bono program from year to year. Other factors may include, for example, ongoing support to pro bono organisations, charities etc.

2.2 Panel Firms Approach to the Clause 11 Commitment

1. In light of clause 11 of the Panel Contract each Panel Firm needs to examine its overall pro bono program to determine what proportion of the legal services provided is attributable to each of:
   1. its Panel Contract obligations; and
   2. its purposes or obligations independent of the Panel Contract obligations.
2. Relevant considerations for a Panel Firm may include:
   1. the size of the firm's overall pro bono program;
   2. services provided under its pro bono program that extend beyond the definition of Approved Cause;
   3. any connection between the firm’s income and the size of its pro bono program; and
   4. levels of income derived from the State prior to the commencement of the Panel arrangements.
3. After such an examination, each Panel Firm must advise the Contract Manager of the approach it intends to take to discharge its pro bono commitment under clause 11 of the Panel Contract

2.3 Providing Pro Bono Services

1. The "Pro Bono Amount" (being the "Pro Bono Percentage" of the aggregate of all legal fees paid by government to the Panel Firm) may be accrued for a maximum of six months before the commitment is discharged. The "Pro Bono Amount" will translate into "Pro Bono Services" or in lieu the "Pro Bono Payment."
2. When requested to provide particular pro bono services or when entering into an ongoing arrangement involving the provision of such services a Panel Firm will need to:
   1. decide if the requested services or proposed arrangement (the request) comes within its overall pro bono program;
   2. if yes, decide whether the request comes within the definition of Approved Cause;
   3. if yes, decide whether it proposes that the value of the services will be used to discharge, in whole or part, its contractual obligations having regard to its overall pro bono program;
   4. if yes, undertake the work and keep records of its provision as required under clause 11 of the Panel Contract.
3. If the Panel Firm is uncertain whether the work falls within the definition of an Approved Cause they may discuss the proposal with the Contract Manager.
4. If the work does not fall within the definition of Approved Cause, the pro bono services may be provided under the Panel Firm’s broader pro bono programs.
5. Panel Firms should record:
   1. the dates on which and the Approved Causes for which, the Pro Bono Services were performed;
   2. the name and level of each of the lawyers performing the Pro Bono Services; and
   3. the number of hours of the Pro Bono Services performed.

In addition to the specific requirements of the Panel Contract, including clause 11 of the Panel Contract and the Service Level Agreement, the Contract Manager may also, from time to time, advise Panel Firms of further recording requirements.