Pro Bono Policy Long Form

PRO BONO POLICY — LONG FORM

PRO BONO POLICY

1What is in this pro bono policy

(a)This policy sets out the principles that guide the operation of the firm’s pro bono practice. It has been prepared by the Pro Bono Team and approved by the [pro bono leader].

(b)The criteria for pro bono matters which [name of firm] (the Firm) will take on are set out in section 3 below.

(c)Guidelines to opening, managing and closing a pro bono file, including precedents, are set out in Appendix A.

(d)Adherence to this policy is vital to the effective and efficient operation of the firm’s pro bono practice and achievement of its pro bono objectives.

(e)This policy does not include community service or charitable work, which are addressed separately in the Firm’s CSR Policy.

2Objectives of the Firm’s pro bono practice

(a)Pro bono is the provision of legal services and assistance on a free or significantly reduced fee basis, directed at addressing areas of unmet legal need and assisting those who are marginalised, vulnerable or disadvantaged.

(b)The Firm is a signatory to the National Pro Bono Aspirational Target (Target) of 35 pro bono hours per lawyer per year and aspires to meet or exceed that Target.

(c)The Firm recognises that pro bono is an important component of a lawyer’s professional responsibility and professional development. Pro Bono legal services are the unique professional contribution that lawyers can make to further access to justice and the public interest. The firm is committed to providing opportunities for the firm’s lawyers to make a positive contribution to the community through the use of their legal skills.

(d)The Firm encourages its staff, including lawyers at all levels and non-legal support staff, to invest time in engaging in or supporting pro bono legal work that contributes meaningfully to our community.

(e)The Firm’s current strategic plan identifies the achievement of pro bono targets as an important part of what success looks like for the Firm and our pro bono commitment is fully supported by the Firm’s leadership.

(f)The Firm is committed to providing high quality pro bono services to assist in areas of high unmet legal need, with an emphasis on work that will have a long-term impact and address systemic legal problems affecting disadvantaged, marginalised or vulnerable people.

(g)The Firm continues to maintain and develop strategically-focused community partnerships and programs with the aim of maximising community impact and the achievement of the Firm’s pro bono objectives.

3Criteria for pro bono matters

(a)The Firm will prioritise the provision of pro bono services in cases where:

(i)the matter involves an individual or class of persons who are disadvantaged, vulnerable or marginalised; and

(ii)the client is not eligible or not able to access legal aid and cannot otherwise obtain appropriate legal representation or advice without incurring significant financial hardship.

(b)The Firm may also consider providing pro bono assistance where:

(i)the matter raises issues of broad public concern, addresses a perceived injustice, or seeks to further a particular public good and the matter would not otherwise be pursued without pro bono assistance; or

(ii)the work undertaken would assist a non-profit organisation working on behalf of marginalised, vulnerable or disadvantaged members of the community or for the public good.

(c)The above criteria are consistent with the definition of pro bono legal services that applies to the Target.

(d)The Firm will only consider providing pro bono assistance where:

(i)the firm has the expertise and capacity to undertake the matter with due skill and timeliness; and

(ii)there are no conflict of interest issues.

(e)The Firm may identify certain areas of unmet legal need, public interest matters, or sectors of the community experiencing hardship or disadvantage, on which to focus its pro bono resources. Priority will be given to these focus areas.

4The Firm’s models of pro bono service delivery

(a)In maximising the opportunities for its lawyers to undertake pro bono legal work, the Firm provides pro bono legal services using a variety of different service delivery models, including (but not limited to):

(i)legal advice and assistance;

(ii)representation and advocacy;

(iii)legal education and training;

(iv)legal research;

(v)law reform and policy work;

(vi)staffing of legal advice clinics;

(vii)mentoring of community legal centre lawyers; and

(viii)secondments to not-for-profit organisations.

5Conflicts

(a)Conflicts of interest are to be dealt with in accordance with the Firm’s Conflict Policy.

(b)Lawyers considering taking on a pro bono matter should consider both actual and perceived, legal and commercial conflicts.

(c)If a potential conflict issue arises, the relevant partner and/or the [Conflict Committee/as applicable] should be consulted prior to taking on the matter. The Pro Bono Team can assist with this.

6Service Standards

(a)The Firm is committed to carrying out pro bono work with the same diligence, professionalism, timelines, reviews and supervision as all billable work. All reasonable efforts should be made to respond to an initial request for pro bono assistance within 48 hours.

(b)While the Pro Bono Team will monitor the progress of the matter, the supervisory responsibility remains with the relevant supervisory partner. Pro bono work should always be signed off by the partner overseeing the matter.

7Recognition of pro bono legal work

(a)Participation in pro bono work is encouraged for all lawyers but is not mandatory.

(b)All pro bono work will be credited against an individual lawyer’s utilisation targets, considered a positive factor in performance evaluations, and will be subject to the same performance review as billable work.

8Coordination of pro bono legal work

(a)The Firm has a dedicated Pro Bono Team, comprising the [pro bono coordinator] and [insert]. The Pro Bono Team is responsible for implementing and administering the Pro Bono Policy and the firm’s broader Pro Bono Strategy.

(b)The [pro bono coordinator] oversees the operation of the pro bono practice.

(c)The Pro Bono Team is responsible for:

(i)developing and implementing the pro bono practice’s strategies and policies in consultation with the [pro bono champions] and [pro bono leader];

(ii)considering and approving all requests for pro bono assistance and consulting with relevant practice group leader(s) and supervising partner(s) about which matters the firm will take on having regard to the criteria for pro bono matters, and capacity in the group;

(iii)distributing, allocating and monitoring the pro bono legal work undertaken by the firm, taking into account expertise, interest and capacity;

(iv)developing, reviewing, coordinating and monitoring new and existing pro bono partnerships, projects and individual matters which provide appropriate pro bono opportunities for lawyers firm-wide;

(v)initiating and fostering external pro bono relationships, in both the commercial and community legal environments, to help facilitate the operation and growth of the firm’s pro bono practice;

(vi)acting as the primary point of contact for external pro bono enquiries and relationships;

(vii)providing support to lawyers engaging in pro bono legal work within the firm, particularly about how the pro bono practice operates;

(viii)providing training to enable lawyers to participate in specialist pro bono programmes and clinics requiring them to acquire new skills and/or knowledge;

(ix)communicating and raising awareness of the firm’s pro bono legal projects and strategic focus areas both internally and externally; and

(x)tracking, measuring, evaluating and reporting on the performance of the firm’s pro bono practice against its objectives and budget.

(d)The Pro Bono Team reports to the [pro bono leader], and in turn the Board.

(e)[Pro bono champions], who are partners or senior lawyers, have been identified within each practice group to encourage and advocate for pro bono within their group and more broadly within the firm. Individually and as a group they may also be called upon to provide guidance and support to the Pro Bono Team.

9For further information

All staff interested in participating in the firm’s pro bono legal work are encouraged [to visit the pro bono page on the intranet/insert as applicable] and to speak with the Pro Bono Team or the relevant [pro bono champion] for their group.

APPENDIX A: PRO BONO GUIDELINES

This document contains guidelines for the opening and day to day file management of pro bono matters and supplements the Pro Bono Policy.

Please contact the Pro Bono Team if you have any concerns or questions that are not outlined in this document.

1Accepting a matter

(a)The following steps need to be undertaken before a pro bono matter can be accepted:

(i)conflict check clearance;

(ii)approval of the client, matter, and basis of engagement, given by the Pro Bono Team;

(iii)notification from the lawyer undertaking the pro bono work to their direct supervising partner or group leader; and

(iv)agreement to supervise the pro bono matter from a partner with appropriate expertise.

(b)If a matter comes to you directly that you consider appropriate for pro bono consideration you should contact the Pro Bono Team with brief details of:

(i)the applicant’s name and contact details;

(ii)the names of any other party involved;

(iii)the history of the matter and assistance sought;

(iv)any court dates or circumstances that impact timeframes;

(v)how the matter fits within the pro bono criteria (see section 3 of the Pro Bono Policy); and

(vi)any other information you consider relevant to the pro bono policy.

(c)The Pro Bono Team will consider the nature of the application and whether the matter fits with the Firm’s Pro Bono Policy and Pro Bono Strategy.

(d)Where an existing pro bono client requests pro bono assistance that extends beyond their current retainer, a further request must be made to the Pro Bono Team and considered afresh against this policy.

2File opening

(a)Once a pro bono matter has been approved, accepted, and allocated to the lawyer who will undertake the work, a matter can be opened.

(b)The lawyer to whom the pro bono matter has been allocated must:

(i)open a file using the existing client number [insert] (which will automatically give the matter a ‘non-billable’ status), ensuring that:

(A)the fee estimate and the actual anticipated value of costs and disbursements to be incurred are $0; and

(B)the matter is sent to the [pro bono leader] for sign off;

(ii)prepare a retainer letter which specifies the scope of the engagement including whether the client is to pay any disbursements, and if applicable, the position of costs (see section 4 below on general terms of retainer);

(iii)send out regular updates of fee estimates and charge-out rates in litigation pro bono matters in order to protect our client’s ability to recover costs in the event that a costs order is made in our client’s favour;

(iv)report the matter status every quarter to the Pro Bono Team; and

(v)report the matter’s outcome at the end of the matter to the Pro Bono Team.

(c)The lawyer responsible must notify the Pro Bono Team if for any reason they are no longer able to maintain carriage of the matter.

3Time recording

(a)Work undertaken on a pro bono matter should be recorded against the matter code in the same manner as any other commercial matter.

(b)Time spent on pro bono matters will be recorded in both the lawyer’s pro bono and combined utilisation figures in individual production reports.

(c)Time recording is essential to ensure that:

(i)you are given credit and recognition for pro bono work in your individual utilisation reports,

(ii)the Pro Bono Team can accurately measure pro bono hours against the Target and capture firm-wide pro bono statistics, and

(iii)to maximise the client’s ability to recover their costs in litigated matters.

(d)Time recording for partial or reduced-fee rate pro bono arrangements for not for profit organisations will need careful attention. It is important that the pro bono element of time recorded in these arrangements is captured. The Pro Bono Team can assist you in setting up the most appropriate system for recording time.

4General terms of retainer

(a)A letter of engagement must be prepared and sent to all pro bono clients, setting out the terms of the retainer. The client should be requested to sign and return the letter confirming their understanding of the terms of the retainer.

(b)There are different precedents for pro bono letters of engagement, depending on whether the matter is contentious or non-contentious. In the case of contentious matters which may end up in court, the client must be warned that they face the risk of a costs order against them if their claim is unsuccessful, for which they will be personally liable (ie the Firm will not meet these costs).

Please note:

(i)the standard pro bono engagement letter (for non-litigation matters where we do not charge for fees but charge for external disbursements) is [precedent name or number];

(ii)the pro bono engagement letter for litigation matters (which includes a conditional costs agreement) is [precedent name or number];

(iii)the pro bono engagement letter for non-litigation matters where no charge will be passed onto the client (as agreed by the Pro Bono Coordinator and supervising partner) is [precedent name or number].

(c)Where pro bono work is being undertaken by the Firm in partnership with a community legal centre or other not for profit organisation, a memorandum of understanding should be signed by all parties involved to clarify on agreed actions and responsibilities.

(d)The Firm will not act, or continue to act, against its own advice.

(e)The Firm will not charge clients for time spent on pro bono matters unless we have established a reduced fee or capped costs arrangement, or a costs award has been made in favour of the client in a contentious matter.

(f)The Firm will not charge clients for internal disbursements except where costs are recoverable from the other party.

(g)The Firm will consider payment of external disbursements on a case by case basis, and will make clear in the letter of engagement where external disbursements are to be charged to the client.

(h)The Firm will enter into a conditional fee arrangement in contentious (potential litigation) pro bono matters. Under this arrangement, the Firm will not seek to be paid its fees and disbursements except in the event that an order for costs is made in favour of the client. In the event of a successful outcome, recovery of costs will be capped at the level of costs awarded in favour of the client (and recovered). The opportunity for the Firm to recover costs may not be taken into account when advising the client as to the resolution of the matter. However an order for costs in favour of the client should be sought where possible, the rationale being that the opposing party should not be benefited by the matter being conducted on a pro bono basis. In most cases, any costs recovered from an opposing party in pro bono matters will be directed first to the payment of pro bono counsel’s fees and disbursements and second will be reinvested in the Firm’s pro bono [and CSR programs]. The Pro Bono Team and [pro bono leader] must be consulted as to the procedure for recovering costs in the case of a successful outcome, including the application of fees recovered in a pro bono matter.