No.36 Pro Bono legal work

1. Introduction

1.1. Who should read this Guidance Statement?

This Guidance Statement is for solicitors and law practices.

1.2. What is the issue?

The purpose of this Guidance Statement is to outline the ethical considerations, duties, and responsibilities associated with undertaking pro bono legal work, with reference to some scenarios in which legal practitioners have encountered problems.

1.3. Status of this Guidance Statement

This Guidance Statement is issued by the Queensland Law Society (‘QLS’) Ethics and Practice Centre for the use and benefit of solicitors.

This Guidance Statement does not have any legislative or statutory effect. By having regard to the content of this Guidance Statement it may be easier for you to account for your actions if a complaint is later made to the Legal Services Commission.

This Guidance Statement is not legal advice, nor will it necessarily provide a defence to complaints of unsatisfactory professional conduct or professional misconduct. 

This Guidance Statement represents a standard of good practice and is endorsed by the QLS Ethics Advisory Committee.

2. Ethical principles

ASCR   

Rules 3 and 4 are of relevance and provide:

These Rules impose a professional obligation on all solicitors.

3. Pro bono legal work

3.1. Overview

In the legal context, and for the purpose of this Guidance Statement, pro bono is from pro bono publico in Latin, meaning ‘for the public good’. While the definition can vary depending on the context, pro bono may generally be described as the ‘provision of legal services on a free or significantly reduced fee basis, with no expectation of a commercial return’.^[1] 

 The Australian Pro Bono Centre’s (APBC) definition, for example, contemplates that pro bono involves the provision of legal services to:

• individuals who can demonstrate a need for legal assistance, but cannot obtain Legal Aid or otherwise access the legal system without incurring significant financial hardship; or
• individuals or organisations whose matter raises an issue of public interest which would not otherwise be pursued; or
• charities, other non-profit organisations or social enterprises, in each case where their sole or primary purpose is to work in the interests of low income or disadvantaged members of the community, or for the public good.^[2]

The APBC’s definition of pro bono also includes conducting reform and policy work and participating in the provision of free community legal education on issues affecting low income / disadvantaged members of the community or on issues of public interest; and providing a lawyer on secondment at a community organisation or a referral service provider such as a Public Interest Law Clearing House.

 The APBC notes that the following is not regarded as pro bono work:

• giving legal assistance to any person for free or at a reduced fee without reference to whether: 
• that person can afford to pay or 
• the person’s case raises an issue of public interest;
• free first consultations with clients who are otherwise billed at a firm’s normal rates;
• legal assistance provided under a grant from Legal Aid;
• contingency fee arrangements or other speculative work which is undertaken with a commercial expectation of a fee;
• sponsorship of cultural or sporting events, business development or other marketing opportunities;
• time spent sitting on a board of a community organisation (including legal) or a charity.

When working within, or reporting as part of, a particular pro bono program or scheme, it is important to refer to the specific definition of pro bono used by that program or scheme.

3.2. Professional duties and responsibilities

Pro bono work should be performed and supervised to the same standard as billable legal work. The fundamental duties of solicitors apply equally, and any breach of those duties carries the same consequences as it would for any billable legal work. 

Solicitors should be particularly mindful of their duty to: 

• Deliver services competently and diligently,^[3] ensuring that they only undertake pro bono work in areas of law they are competent to practise in or have had adequate training in this area.^[4] Caution should be taken in relying too much on the expertise of counsel for areas that the solicitor may not be familiar with.^[5] 
• Ensure attention is given to the potential complexity in the matter including the capacity of the client to provide competent instructions, vulnerability and / or any experienced trauma of the client and / or cultural considerations. Solicitors who engage in this area with vulnerable clients should consider trauma informed, vicarious trauma and cultural awareness training.
• Consider training and support for their staff and junior colleagues if they have not previously engaged in such practice areas. 

4. Risk management

There may be a misconception amongst some practitioners that pro bono work is somehow risk-free, given the absence of billables and client invoices. To the contrary, there can be the same risks inherent in pro bono work as in chargeable work. 

Two ways in which solicitors can (and should) manage risks associated with pro bono work, are:

1. the implementation of a pro bono policy; and 
2. the provision of client retainers/letters of engagement.

4.1. Developing a pro bono policy

Law practices undertaking pro bono work should first develop a clear and written internal pro bono policy which, in addition to outlining the practice’s pro bono objectives:

• contains a clear definition of pro bono work, consistent with any relevant programs or schemes in which the firm participates;
• provides the criteria for accepting pro bono work;
• clearly defines the areas of law in which a solicitor can act pro bono; and
• documents procedures for matter opening including conflict checks and retainers/letters of engagement, time recording, file management and matter closure;
• where possible, law practices should consider appointing a pro bono manager or   coordinator (whether full-time or part-time) to oversee pro bono requests and ensure policy implementation.

Solicitors are also referred to chapter 1.3 of the Australian Pro Bono Manual on pro bono policies.

4.2. Pro bono retainers / letters of engagement

It is recommended that the basis on which a law practice is undertaking a pro bono matter should be explained to the client and clearly outlined in a letter of engagement / retainer.^[6] This will minimise the risks of a matter exceeding the intended scope. It will also allow for better client management and, if necessary, more adequately protect both the client and solicitor in the event of termination of the retainer.

 Pro bono clients need to be aware of the same issues as a paying client – including the terms of engagement, scope of work, and any costs implications. As such, a pro bono retainer should be consistent with a law practice’s precedent retainer, and in many ways, it will be similar to a costs agreement,^[7] albeit with some adjustments.

 At a minimum, solicitors should consider including the following matters in their pro bono retainers:

• an accurate and detailed description of the scope of work to be done on a pro bono basis, and (where possible) including an outline of any work that will not be covered;
• any essential obligations imposed upon the client such as providing timely and full instructions, keeping the solicitor informed of changes in email, telephone or address etc.
• a clear explanation about any fees to be charged – for instance, is it 50% pro bono or 100% pro bono? Are the pro bono hours capped? Will the client be liable for the cost of any disbursements?^[8] etc. If any fees are to be charged, then costs disclosure may of course be required in accordance with the Legal Profession Act 2007 (Qld);
• if the matter might result in a costs order against the client, information about the liability of the client and the arrangements that will need to be made to secure those costs; 
• the circumstances in which the retainer can be terminated; 
• clarity on third party costs such as counsel fees^[9] etc.; and 
• file retention and destruction.

For solicitors who receive referrals from pro bono schemes (such as the Court of Appeal Pro Bono Scheme), it is also worth considering a clause about whether the work and retainer will be reviewed at predefined stages. This protects solicitors from, for example, pursuing baseless grounds of appeal which may have been originally contemplated by their client.

For more guidance, the APBC provides template letters of engagement and retainers for solicitors to use which may assist.

5. Costs recovery

Questions often arise regarding whether costs can be awarded to successful litigants, even where they have not incurred any legal fees. This question has been considered by Australian courts, predominantly in the context of formal pro bono referral schemes. Practitioners should familiarise themselves with the specific details of such schemes if they accept such referrals as there are differing views.^[10] As stated in The Australian Pro Bono Manual:

Costs agreements between pro bono clients and their lawyers often include a ‘condition subsequent’, under which the client only has to pay the lawyer if they are able to recover costs from the other party. However, the indemnity principle operates to award costs only if, at the time of judgment, the client already has an obligation to pay costs that will be incurred, as a ‘condition precedent’ to the solicitor acting. Following the judgment of Basten JA in the NSW Court of Appeal case of Wentworth v Rogers,^[11] the Queensland Court of Appeal held in King v King (‘King’)^[12] that a clause in a pro bono costs agreement which provided for costs to be waived by the firm unless the client was successful (in which case the firm was authorised to seek recovery from the other side) was invalid as it was a condition subsequent.^[13]

On the other hand, in Mainieri,^[14] the Victorian Court of Appeal upheld a pro bono costs agreement that provided for the recovery of costs under an order made if the client was successful stating that the distinction between a condition precedent and a condition subsequent was irrelevant. The APBC notes that ‘the law on this point still remains uncertain given the fact-specific nature of each case, particularly as the decisions turn on the wording of engagement letters.’^[15]

At the date of publication of this guidance statement, solicitors in Queensland should avoid condition subsequent costs agreements because of King and ensure that any such agreements state that if costs are payable by the client, those costs cannot be more than is actually recovered from their opponent.

6. More Information

The APBC has extensive resources available to solicitors and law practices.

Solicitors are also referred to The Australian Solicitors Conduct Rules 2012 in Practice: A Commentary for Australian Legal Practitioners.^[16]

For further assistance, including difficulties you may be experiencing as either a supervisor or as a practitioner who is being supervised, please contact an Ethics Solicitor in the QLS Ethics and Practice Centre on 07 3842 5843 or ethics@qls.com.au or a QLS Senior Counsellor.^[17]

[1] ‘Information on Pro Bono: Definition of Pro Bono’, Australian Pro Bono Centre (Web Page) <https://www.probonocentre.org.au/information-on-pro-bono/definition/>. 

[2] Ibid.

[3] Queensland Law Society, Australian Solicitors Conduct Rules 2012 (at 1 June 2012) r 4.

[4] Eg. Appropriate training offered by CLCs in ‘virtual secondment’ clinics.

[5] Boland v Yates Property Corp Pty Limited [1999] HCA 64, [142].

[6] Once a conflict check has been undertaken.