On 1 July, the doors will open to allow in-house and government lawyers to get involved in pro bono work, and it hasn't come a moment too soon, Zoe Lyon reports
The capacity of the legal sector to provide pro bono legal services is about to balloon, thanks to a long-awaited new scheme which will allow in-house and government lawyers to get involved in pro bono work.
Though in-house and government lawyers make up nearly a third of the legal profession in Australia, they have remained a largely untapped resource for the provision of pro bono services, because their hands have been bound by two key constraints.
For a start, unlike the private-sector counterparts, in-house and government lawyers - for the most part - haven't had the benefit of professional indemnity insurance to cover any claims against them. As a result, practising certificates for corporate and government lawyers in some states, including NSW and Victoria, have contained provisions preventing them providing advice for anyone except their employer - effectively cancelling out pro bono opportunities.
The National Pro Bono Professional Indemnity Scheme, which kicks off on 1 July, will provide professional indemnity insurance to in-house and government lawyers involved in pro bono projects.
Any in-house lawyer can apply for cover, which is issued by LawCover and the premium and any excess paid by NPBRC, under the condition that the particular project meetsthe definition of "pro bono" outlined by the Law Council of Australia.
DLA Phillips Fox's pro bono director, Nic Patrick, explains that when developing the structure for the scheme, the team explored several options already operating in the US which allow in-house lawyers to participate in pro bono work. However, they eventually decided to start anew, and create a one-stop-shop scheme more suited to the Australian legal market.
In the larger US market, Patrick explains, many in-house teams already had professional indemnity insurance cover which had been taken out by their employers, and this could simply be expanded to cover pro bono work. In Australia, however, most in-house legal teams don't have this, meaning a different solution was needed.
"We felt that over here ... we needed to make it a bit easier and cheaper for [in-house] teams, because we don't have the number of massive legal teams they have over there," he says. "So we decided we needed to start from scratch and we created what we call a 'safety-net policy' ... so lawyers and in-house legal teams are well protected - there's always a policy there that will respond. And it costs [the employer] nothing, even if there's a claim, so hopefully that gives general counsel the confidence to allow in-house lawyers in the team to go out and do pro bono work."
As a result of the scheme's introduction, the Law Society of NSW has agreed to amend the conditions of practising certificates to allow in-house and government lawyers to undertake pro bono work, and the NPBRC and DLA Phillips Fox are working with other state and territory law societies to get similar restrictions lifted.
With these two key constraints removed, in-house and government lawyers will be effectively freed up to dive into the pro bono space. However, Patrick advises that there are steps in-house legal teams can take to help make establishment of an internal pro bono program run more smoothly.
First and foremost, he advises canvassing what enthusiasm exists within the team for getting involved in pro bono work, "to make sure that it's something that people in the team really want to do", and then making sure it's something that the employer will support.
Once team interest and management support has been confirmed, NPBRC director John Corker advises developing a formal, written pro bono policy in conjunction with senior management, to ensure everyone in the organisation is on the same page.
"The best practice is a written policy - it's the same in a law firm," he says. "It helps to formalise the commitment of the corporation, and it's a useful vehicle ... to get buy-in from senior management as well as the in-house team. It's a document around which people can talk about what they want to do and how they want to do it ... you get the dialogue going within the corporation."
Patrick agrees: "I think it helps in terms of affirming the commitment, setting out the parameters and making it clear to the employees what they're allowed to do, because I think sometimes people aren't really sure whether their employer really supports them going off and doing this stuff. So it's a good way to demonstrate organisational commitment."
When it comes to selecting projects, Corker says an obvious place to start is existing relationships. "Look at the existing relationships that the corporation has with charitable organisations or community groups and see whether or not the addition of pro bono legal services would be a welcome thing," he advises.
He also suggests partnering with the corporations' external legal advisers, who may already have established pro bono programs. "Talk to the pro bono co-ordinator of the firm or firms you deal with most often, because there's a lot of experience there that could be useful. Not only that - they often have projects which they would be willing to involve the in-house counsel in," he says.
Now that the professional indemnity scheme is off the ground, Corker is confident that in-house lawyers will be keen to get involved in pro bono work.
"From my experience, in-house counsel share the same values that the rest of the profession does, and one of the values that seems to be evident at the moment is helping out those in the community, particularly through pro bono legal services," he says.
And with the economy stumbling - and the level of unmet legal needs in the community rising - the timing is certainly ripe.
Case Study: Accenture gets in on the action
Though the Australian legal team at global management consultancy Accenture has been restrained - until now - from undertaking pro bono legal work, it already has its first project in the pipeline for when the National Pro Bono Professional Indemnity Scheme is unveiled on 1 July.
Director of employment law, Asia Pacific, Josephine Maxwell, explains that the consultancy has partnered globally with Baker & McKenzie, one of its panel firms, to assist the Nepalese Government in the development of its constitution.
"The idea is to explore what other countries have done, and we'll provide the research around that and then think about what options they might want to take up," she explains. Lawyers at Bakers and Accenture will work together, based on their areas of legal expertise, to advise the Nepalese Government on the options available in key areas ranging from discrimination, education, tax, human rights, as well as assisting with the development of a structure for practical enforcement and remedies.
Though this is the first pro bono legal work the Australian legal team has been able to get involved in, it has also previously partnered with another panel firm, DLA Phillips Fox, to get involved in mentoring high school students from Chester Hill High School through the LEAPS mentoring program.
Maxwell believes that getting involved in assisting the community - particularly through a partnership with its external lawyers - has had many benefits for the in-house team. "It fosters collaboration both in and out of the office. It enhanced our relationships both in-house and well as with our external [legal] providers. We've also got a sense of contribution that we can talk about," she says.
It has also given the team exposure to a much broader spectrum of the community than they'd otherwise have had, Maxwell says. "The kids teach us a lot about the world they live in. They are from different and unexpected environments - you think you know things, but you don't," she says. "[The kids] say the same thing. They've made assumptions about lawyers and it's good for them to realise that we're not 'terrifying'."
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