PRO BONO work in Australia is done on a needs basis, rather than a pay-to-play basis that is common in the United States. But according to one senior lawyer, New South Wales in some cases has an unusual system of distributing pro bono work to lawyers.
David Hillard, a pro bono partner at Clayton Utz, was one of a number of law firm pro bono representatives this week who bemoaned the US system of delivering pro bono work. As reported in the Lawyers Weekly News Review this week (see page 14), some US law firms are being asked to make donations of at least US$7,500 ($9,105) to pro bono organisations in order to vie for the most interesting pro bono cases.
In some East Coast firms in the US, a donation of at least US$7,500 will guarantee you access to the best cases, for example rule of law projects in Africa and the Palestinian territories.
Hillard rejected the procedure: “The idea behind pro bono is not to take on shiny, sexy test case work, but to pick up where people fall through the cracks. We’re not running as a recruitment tool or as a ‘let’s get our name in the paper’ kind of thing. It’s a different culture to in the United States.”
But, Hillard told Lawyers Weekly, a system in New South Wales that requires you to be a member of the state’s Public Interest Law Clearing House (PILCH) before you can work on any Public Interest Advocacy Centre (PIAC) cases is in some ways discriminatory.
He said that PIAC is not prepared to work with firms that are not members of PILCH in NSW. “I know that because we are not a member of PILCH in NSW anymore. There was a decision that unless you are a paid-up member of PILCH you can’t work on PIAC projects, which is a decision that they wanted to make,” he said.
While the system does not affect Clayton Utz’s ability to do pro bono work nor run a pro bono program, he suggested it was an inequitable system and compared it to the US system of pay-to-play.
“One instance in Australia that is pay-for-play is in NSW. There is a community legal centre called PIAC that is not prepared to work with firms that are not members of [PILCH in NSW],” he said.
“It doesn’t affect our capacity to run a pro bono program. It’s not coming from a community organisation but a specific community legal centre. But I can’t think of another example [of pay-to-play] in this country,”
In the various state-run PILCH centres nationally, firms and others are required to pay a membership fee in order to receive pro bono cases from them. PIAC, however, is a Sydney-based national body that runs pro bono work based on issues of interest.
According to the centre’s CEO Robin Banks, issues covered by the centre change depending on what is of interest at the time.
“Had you asked in 2000 what the current issues were, it wouldn’t have been terrorism law. I guess we try and always keep enough freedom and flexibility in our work plan to be able to put some things on the backburner to create new capacity to deal with emerging issues.”
Banks said firms and lawyers could get involved in their pro bono cases, as long as those cases were not being run as a joint project with PILCH.
Banks, who is the director of PILCH in NSW while they try to fill the position, said external lawyers and firm could work on their cases if they were looking for co-counsel.
Pressed as to how many cases they run without PILCH, Banks said it was more common for the centre to practise without co-counsel if not with PILCH. She noted that she had not known the centre to use external lawyers since she had been working there in the past three years.
PILCH in NSW and PIAC are co-located entities, which Banks said does cause some confusion about how the two are related. While PILCH is a referral agency, PIAC is not. The latter is a legal centre that has its own legal practice. Banks noted that a lot of the work PIAC does, it does using its own internal lawyers.
See 'Firms sour over cherry picking in pro bono'