Commonwealth government entities purportedly consider pro bono activities when determining which legal services provider to engage. On paper, panel firms are required to “use their best endeavours to meet or exceed the pro bono Target”. And yet in 2021, 34 out of 62 Whole of Australian Government (WoAG) panel firms missed the pro bono mark, including, once again, two of the government's top billers: HWL Ebsworth and Maddocks.

In September 2022, the Office of Legal Services Coordination in the Attorney-General's Department published its annual Legal Services Expenditure Report.

The report reveals that in the 2021 financial year, the Australian government spent $301.63 million on external lawyers, excluding the Australian Government Solicitor.

Back in 2019, 62 legal services providers were appointed to the WoAG Legal Services Panel. However, in FY2021, approximately 72 per cent of the Commonwealth's $301.63 million spend was paid to just 10 firms.

In 2021, just 28 of the Commonwealth's 62 providers met or exceeded the pro bono Target (see Table below). 

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It is estimated in FY2021 that both HWL Ebsworth and Maddocks earned around $17 million from the Commonwealth, representing 6 per cent of its external legal spend (excluding the AGS).

The 2021 Australian Legal Sector Alliance (AusLSA) Member Report reveals Maddocks recorded 26.9 pro bono hours in the 2021 financial year, down from 33.15 hours the year prior. To be fair, Maddocks has recorded an average 30.15 pro bono hours since 2014.

HWL Ebsworth has not publicly disclosed its 2021 data and declined to share it. HWL Ebsworth did record 18.01 hours in 2020 and 13 hours in 2019.

WoAG providers recorded an average 30.58 pro bono hours per lawyer in 2021.

Commonwealth entities purportedly “consider providers' current and future pro bono activities and whether they are a signatory to the Target when determining which legal services provider to engage”.

Indeed, the Legal Services Expenditure Report states that legal services providers appointed to the WoAG panel were required to “use their best endeavours to meet or exceed the (35 hours of pro bono work per lawyer per annum) Target”.

But do they really?

Whether they perceive it to be an obligation or a moral duty, it's obvious which firms are committed to pro bono. Clayton Utz, Ashurst and Minter Ellison, all Top 10 Commonwealth government law firms, have exceeded the Target every financial year since at least 2014.

King & Wood Mallesons marginally missed the Target in 2018 but is now reporting double the WoAG panel's average.

Herbert Smith Freehills and DLA Piper, neither of which is being shown federal (Top 10) favour, have both smashed the Target since 2014.

Holding Redlich has made steady, positive progress for the past decade and achieved the Target in 2021.

And, as reported by Lawyers Weekly, Johnson Winter & Slattery grew its pro bono practice by 300 per cent in just one year.

If our government law firms aren't achieving the Target, it is for want of trying.

The Commonwealth should make pro bono an obligation or reward the firms that use their best endeavours to meet or exceed the Target.

Jacqueline (Jaci) Burns is the chief marketing officer at Market Expertise.