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Firms’ pro bono hours loom large as government tender process opens

Early last week, the request for tender to re-establish the Whole of Australian Government Legal Services Panel went live, and the Attorney-General’s warning of the imperative for panel firms to meet pro bono targets will likely be weighing on those seeking government work.

user iconJerome Doraisamy 01 December 2023 Politics
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The A-G’s letter

A few months ago, Attorney-General Mark Dreyfus (pictured) wrote to the federal government’s Legal Services Panel members to flag that steps were being taken to “further incentivise” the meeting of the National Pro Bono Target of 35 hours of pro bono work, annually, per lawyer.

The Australian Pro Bono Centre reported earlier this year that a record 700,000 hours of pro bono work was undertaken by Target signatories in the financial year 2023.


However, for those who provide legal services to the government, or aspire to, even though being a Target signatory is required, “more can be done”, the A-G wrote.

As warned in that letter, the-then pending Legal Services Expenditure Report for 2021–22 – now released – would identify panel firms that had not met the Target and would detail the volume of pro bono hours per lawyer at those firms.

The government also intends, A-G Dreyfus continued, to work with other Commonwealth departments and agencies to consider the pro bono work done by legal services providers (including the Australian Government Solicitor) “when selecting which provider to engage”.

“While law firms engaging in pro bono work is not an alternative to an adequately resourced legal assistance sector, the government strongly supports the legal profession’s commitment to pro bono legal work, which supports the most vulnerable and disadvantaged members of the Australian community to access the justice system,” he wrote.

“I strongly encourage all firms to meet the Target ahead of any further changes.”

A long time coming?

This move by the Commonwealth, Australian Pro Bono Centre chief executive Gabriela Christian-Hare told Lawyers Weekly, is reflective of the increasing priority the government is giving to pro bono work and its desire to incentivise law firms “to take their position Target signatories seriously”.

“The development of a pro bono practice takes time, but there are some panel law firms whose numbers have been lagging for some time,” she reflected.

“The centre would like to see those firms fulfilling the pledge they made when becoming Target signatories, namely, to use their best efforts to achieve 35 hours of pro bono work per lawyer per year.”

Market Expertise chief marketing officer Jacqueline Burns has been tracking the pro bono efforts of panel firms for years. In 2019, she wrote that the Target should be mandatory for those providing legal services to the federal government, and last year, opined that the Commonwealth was continuing to reward under-performance on the Target.

In Australia, Ms Burns espoused in conversation with Lawyers Weekly, “pro bono has until now been thought of as more of a moral duty”.

“Duty has not motivated so many of Australia’s leading government law firms to commit to pro bono work,” she argued.

“The only thing that will be achieved is by making the achievement of the pro bono target an enforced contractual obligation.”

Ms Christian-Hare reminded the profession that pro bono remains an integral cog in the machine of lawyers’ professional responsibilities.

“It stems from a lawyer’s duty to the court and from the principle that access to justice should not be reserved solely for those with financial capacity,” she posited.

“The Australian pro bono sector is now very well established and a wide variety of stakeholders – including government and corporate clients as well as law firm staff – simply expect that pro bono will be prioritised and ‘normalised’ by law firms.”

“It follows that law firms wanting to provide services to the government should also expect that they will be subject to pro bono requirements,” Ms Christian-Hare suggested.

Panel member’s pro bono efforts in 2021–22

As unveiled in the Legal Services Expenditure Report for 2021-22, 27 panel firms met or exceeded the Target of 35 hours of pro bono work annually per lawyer.

Among the best-performing of those 27 firms were Terri Janke and Company (75 pro bono hours per lawyer in 2021–22), Gilbert + Tobin (73.4 hours), Norton Rose Fulbright (68 hours), Clayton Utz (60.5 hours), King & Wood Mallesons (55.98 hours), and MinterEllison (51.6 hours).

However, 34 firms failed to meet the Target, accounting for more than half of those on the WoAG panel.

Some, such as Bartier Perry (30.38 hours per lawyer) and Gadens (28.09 hours), were not far off the 35-hour threshold; however, others fell shorter. Maddocks and HWL Ebsworth – both of which are among the government’s top recipients for WoAG work – recorded 23.65 and 23.55 hours per lawyer, respectively.

The report also detailed that the Commonwealth’s total legal services expenditure in 2021–22 was $1.19 billion, an increase of nearly 13 per cent from the previous year.

Professional fees to solicitors and related providers rose sharply in this time, up almost 21 per cent, totalling just under $521 million for that financial year.

In 2021–22, the report noted, 80 per cent of professional fees for WoAG work were received by the top 10 legal services providers, with the balance being paid out to over 140 additional providers.

Over one-quarter of those fees went to AGS, but the following firms rounded out that top 10: Clayton Utz (10 per cent of fees), Sparke Helmore (8 per cent), MinterEllison and King & Wood Mallesons (7 per cent each), Ashurst (6 per cent), Norton Rose Fulbright, Maddocks, and HWL Ebsworth (4 per cent each), and lawyerbank (3 per cent).

Reflections from panel firms that met the Target

Following the release of the report, Lawyers Weekly reached out to several panel firms that met or exceeded the Target in 2021–22 for commentary on the A-G’s approach moving forward and the importance of pro bono work in securing and retaining government work.

Norton Rose Fulbright partner and national pro bono team leader Chris Owen explained that pro bono is an “essential part of a law firm’s social license to operate”.

The social justice driver, he argued, “is the primary reason for law firms to undertake pro bono”.

“However, it is also important for staff recruitment, retention, and wellbeing. Lawyers can also develop new and additional legal skills, which further their own development as well as the community they support,” he noted.

“We believe that governments value that development and contribution as much as we do.”

Moreover, Mr Owen added, “the Commonwealth government has made clear to law firms that they should be meeting the Australian Pro Bono Centre’s National Pro Bono Target if they want to be part of its legal panel”.

Holding Redlich recorded 38.46 hours per lawyer in 2021–22. Its national pro bono manager, Guy Donovan, proclaimed that a commitment to human rights and social justice is “part of the firm’s DNA” and an important part of its responsibility to contribute positively to the community.

“We support government initiatives that promote the performance of pro bono work amongst law firms,” he said.

Whether firms should remain on the WoAG if they do not meet the Target “is a matter for government”, DLA Piper Australian managing partner Amber Matthews noted.

“What we have observed is that clients benefit when there is an alignment in values between the client and its advisers. It can be difficult for clients to differentiate between law firms, but looking at a firm’s pro bono practice can tell you a lot about the culture of the firm, and the priorities of the firm’s leadership,” she submitted.

DLA Piper, which completed 47.10 hours per lawyer, “take[s] seriously our professional obligation as lawyers to ensure the justice system is accessible to everyone in the community”, Ms Matthews said, and pointed to the firm’s formalised commitment to pro bono – implemented in 2001, “about seven years before the introduction of the government’s pro bono requirements.”

“The past few years have been a particularly challenging period for vulnerable people, which makes pro bono even more important,” she said.

KWM director of responsible business Dan Creasey agreed with this, pointing to the “significant unmet legal need in Australia, and rising inequality”.

“The Target, together with requirements under various Commonwealth and state legal service panel arrangements, have been and continue to be an important lever in law firms stepping up their pro bono practices. KWM fully supports the Target,” he said.

He also pointed out that “different firms are at different stages of their pro bono journey, and more can be done to assist, and incentivise, some firms to increase their pro bono output and impact”.

Baker McKenzie partner Kate Gillingham (whose firm recorded 46.35 hours) said that the “main driver for undertaking pro bono work is not to win work, rather it’s what we see as a fundamental professional responsibility”.

“As lawyers, we have a particular skill set, and the best way to assist those in need is to utilise those skills. Baker McKenzie has always sought to give back,” she said.

“Having said that, it is gratifying to have our commitment to pro bono work recognised.”

MinterEllison, Clayton Utz, and Terri Janke and Company – all of whom met the Target – were also approached for comment but either declined or did not respond in time for the filing of this story.

Reflections from panel firms that did not meet the Target

Elsewhere, Lawyers Weekly reached out to certain panel firms that the report listed as not having met the Target in 2021–22. None of those that responded reported having met the Target in the most recent financial year.

HWL Ebsworth chief strategy officer Russell Mailler told Lawyers Weekly that the firm has been “investing heavily” in its pro bono program and has seen a material increase in hours undertaken since 2021–22, having attained 31 hours per lawyer in FY23.

This is, he said, “a positive step forward but is still not where we aspire to be”.

He also noted that while total pro bono undertakings have “grown significantly in recent years, our continued rapid headcount growth has meant that this expansion in our pro bono offering hasn’t translated to the increase in pro bono hours per fee earner that we are targeting”.

This said, HWL is “confident” it will achieve the Target in the coming year, Mr Mailler advised.

A Maddocks spokesperson said the firm is continuing to invest in meeting its pro bono commitments, including through the launching of a new pro bono strategy and the appointment of a “dedicated senior resource” to proactively drive that strategy.

The firm expects, the spokesperson added, to meet the Target this financial year.

Piper Alderman managing partner Tony Britten-Jones, whose firm recorded 5.23 hours per lawyer in 2021–22 according to the report, told Lawyers Weekly that the firm plans to build on its existing contributions “to the social fabric of the cities and states in which we work through active participation in charity, community, industry and other not-for-profit bodies”, by way of the development of a more structured pro bono program, “which is intended to see a significant increase in the firm’s pro bono hours over the next six to 12 months”, he said.

McCullough Robertson recorded 19.02 hours per lawyer in 2021–22, and its failure to meet the Target in FY23 “has given rise to a comprehensive review of our pro bono framework”, according to firm chief operating officer Kim Trajer.

The contributing factors uncovered by that review that have been addressed, Ms Trajer posited, include the agreement of new arrangements with longstanding community partners, re-engagement with CLCs (support for whom was wound back during the pandemic), and – as a result of an underreporting of pro bono hours following a change in the firm’s finance system – the firm has implemented new processes, training, and reporting to better capture pro bono efforts.

And following the recording of 11.69 hours per lawyer for Dentons, the firm’s head of pro bono and partner Jodie Wauchope said that the firm has, this year, “made 35 hours [of] pro bono work mandatory for our graduates”.

“We have also appointed our social impact, inclusion and diversity manager to assist in managing the pro bono program, with the aim of increasing pro bono hours across the firm,” she explained.

FAL Lawyers (25.2 hours per lawyer), Thomson Geer (15.3 hours), and Squire Patton Boggs (13.49 hours) – all of whom did not meet the Target in 2021–22 – were also approached for comment but either declined or did not respond in time for the filing of this story.

Looking ahead

Earlier this year, Ms Burns wrote that the WoAG legal services tender – which opened last week on 21 November – would “land during a perfect storm”.

Three storm clouds to watch out for, she proposed, were a looming recession, the federal government’s slashing of external spend, and the fallout of the PwC tax scandal, which has placed scrutiny on governance and the awarding of government contracts.

“While the legal services tender evaluation criteria will certainly give good weight to pricing, it would be foolish to think discounts alone will secure a place on the panel,” she hypothesised at the time.

In this light, A-G Dreyfus’ letter of a few months ago looms large.

With the new WoAG panel to be reconstituted from July 2024, there will no doubt be some eagerly anticipating the extent to which pro bono performance factors into panel selection.

It would be unfair, Ms Burns noted, to critique a firm based on its performance in a single year, such as 2021–22, as “extenuating circumstances might be present”.

“A better indicator of commitment is a firm’s long-term data,” she pointed out.

Ultimately, no matter what the final constitution of the WoAG panel is, the A-G’s stance offers a stark reminder of just how critical a safety net pro bono work is to protect individuals who “fall through the cracks”, Ms Christian-Hare noted.

“While pro bono should never be a substitute for a properly funded legal system, the reality is that pro bono has an important role to play,” she concluded.

“Firms, big and small, increasingly recognise this and are also conscious of the many professional and personal benefits that flow to their staff from pro bono involvement.”

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