Salvos Legal head Luke Geary argues that there can be no rule of law if there is no access to justice, and that is where pro bono work comes to the fore.
Opinion articles are sometimes written by people about topics they have some gripe with, some negativity or cynicism. Not this one. I have agreed to write this article because I have a profound belief that there is hope, immense untapped potential and ultimately, honour throughout the legal profession. This article is about the future and what it has to offer.
But first we must look at the present.
The current dilemma
There is no single agreed way of measuring the current unmet need for legal services in Australia. The cost to fix the unmet need has not been quantified in any real way. It is unquestionably massive.
Areas where services are frequently unable to be provided on a pro bono basis are typically criminal law, family & children’s law, and immigration law.
There are large gaps in these areas of law (amongst others), essentially due to limited government funding, as follows:
• Legal Aid is not available in Family law matters where the only issue in dispute is the amount of time a child will spend with the parent, and in property matters (even where the assets in question are very low in value)
• Legal Aid is largely refused on merit in Children’s law Care and Protection appeals (which are appeals as hearings de novo and are available as a matter of right)
• Legal Aid is largely unavailable in Criminal law matters where a person is unlikely to serve a custodial sentence
• Immigration law is only very narrowly government assisted and is only available subject to a quota for a limited eligible class of persons, and is not available in many family reunion type cases; there is no funding in an overwhelming majority of judicial review cases and there is no funding for Ministerial Intervention applications. Funding for assistance in refugee claims has now been removed by the Commonwealth Government.
It is hard to imagine a time when government funding will increase sufficiently to cover these areas. We as the profession must step up because there can be no rule of law if there is no access to justice.
Basic needs do not mean basic issues
The areas of law in which there is a significant unmet need might be described as being the most basic – I use the term basic because they address the most basic of human needs: relationships, children, liberty and safe residence.
The cost to clients of failure in these areas is catastrophic. A failure to properly serve a client will mean:
• Relationships are destroyed and cannot be mended, in circumstances where a more familiar practitioner may have preserved civility in the relationship and obtained the outcomes the client wanted
• Children are removed from their parents until the age of 18 and placed in foster care, in circumstances where a more familiar practitioner could have presented the necessary evidence and arguments to assure the Court that the children’s interests were best served with them being restored to their parents
• A person is convicted of a crime they are not guilty of and receives a punishment they did not deserve. Alternatively, given the massive number of driving offences where there is no legal assistance, people often lose their licences, which in turn frequently means they cannot keep their job, their home or their family together
• A person is sent back to a country from which they had fled because of persecution and that as a consequence, they are discriminated against, harmed or even killed.
These areas of law are complex and highly specialised; simply being willing to help is not good enough.
Free does not mean cheap
A corollary of the notion that pro bono legal work for individuals is a specialisation of its own is that whilst the work is done for free, it should not be done cheaply or without the same level of focus, care and attention as for any full fee paying client.
There are two obvious reasons for this, namely to honour the dignity of the persons we are acting for but also, from an economic rationalist perspective, to ensure proper risk management and to prevent claims being made against the firm down the track.
There is a debate as to whether pro bono should be mandatory or optional. I think this question misses the point somewhat.
I believe that pro bono already is mandatory, i.e., I think it is part of the fulfilment of an ethical obligation we have as members of the profession.
I don’t know that a condition attached to our practicing certificates will impact that obligation – it is one which exists at the core of our beings, not something which can be created by regulation.
Surely as lawyers we see the obligation to help people for free for a fair portion of our time as a worthy trade-off for the gifts and opportunities we have been given.
What does the future hold?
Considering the need for specialisation to properly address the areas of law which are presently unmet, through the use of experts, and in doing so ensuring that corners are not cut and outcomes compromised, the profession must consider if there can be a better way to address its focus on the provision of pro bono legal work.
The key to addressing both of these issues, i.e., the need for specialisation and the need for firms to have substantial pro bono programs, is a collaborative partnership between a commercial firm and a humanitarian firm.
Under such a partnership the commercial firm provides support funding to the humanitarian firm to enable it to do the work and in return, the humanitarian firm provides highly skilled and supported expert staff to sit amongst and work with the commercial firm so that it can observe the work being done and in doing so, participate in it at a comfortable and controlled rate, whilst at the same time allowing the commercial firm to receive the recognition for the output of all of the humanitarian work generated as a result of its support.
It is important that any such partnership is mindful of the need to not simply be a means by which the commercial firm can pay its pro bono obligations away. Rather, the purpose of the partnership is so that the humanitarian firm can sow into the commercial firm by actively promoting the building of a culture of doing pro bono, through:
• The actual humanitarian practice being undertaken from within the same premises as the commercial firm, as if it was another practice group amongst all of the others in the firm, fully able to be observed by and to interact with all members of the firm and to have a full-time presence on-site
• The seeking of regular volunteers from the commercial firm to assist with out of hours pro bono advice services
• The use of secondments for graduate rotations and other seasonal placements at more senior levels, whenever there is capacity
• The provision of regular CLE by the humanitarian firm to the commercial firm in the pro bono practice areas to regularly and consistently build knowledge and familiarity in those areas to support the secondments / volunteering
• The sharing of success stories of the work done by the humanitarian firm as a result of the support provided by the commercial firm so that the commercial firm can take ownership of the good outcomes that were achieved as a result of its involvement in the partnership
• Co-branded publications so that staff will feel that their commercial firm has given them full permission to participate in the humanitarian work and that it is something for the firm’s culture to be proud of.
There are also very real economic attractions to this model of undertaking pro bono.
Where the humanitarian firm is a charitable institution, it will be able to secure full-time volunteer intern lawyers to participate in its practice.
This will mean that it can leverage the hours of those volunteer interns to generate pro bono work undertaken on behalf of the commercial firm, at a far greater rate than the commercial firm could ever generate on its own solely through the use of its paid staff.
At a time where we have specialists undertaking all forms of legal work relevant to all kinds of industries to reflect their clients’ and the market’s demands, it is unsurprising that pro bono legal work is also crying out for such attention.
By embracing a mechanism where firms can contract experts to come into their offices and assist them to deliver front line services to those in need, firms will be able to achieve direct outcomes for clients they had previously felt unable to impact due to a lack of practice experience. In turn, this will assist many more individuals who presently are not getting the service they need, to be able to address problems which will bring about generational change. In doing so, the awful cycle of pain, damage and despair that has gained momentum for so long will finally be able to come to a halt.
Luke Geary (pictured) is the managing partner of Salvos Legal and a former partner of Mills Oakley Lawyers. In 2012 Luke won the Lawyers Weekly Pro Bono Award at the annual Lawyers Weekly Law Awards, and in 2013, Luke won the Managing Partner Award at that year’s ceremony. This month Salvos Legal partnered with Mills Oakley to provide pro bono services.