Aussie pro bono culture reflects absence of civil assistance, says partner

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Pro bono work within the Australian legal profession is a culture that developed in response to huge cutbacks in government-funded legal aid assistance.

This is according to David Hillard, pro bono partner at Clayton Utz. He spoke to Australasian Lawyer in light of our recent article that discussed why pro bono is a “legal thing”.

Hillard says the culture of pro bono work within the Australian legal profession is one of the strongest in the world, and Australia’s National Pro Bono Aspirational Target, which is a voluntary program that law firms, incorporated legal practices, individual solicitors and barristers can become a signatory to by signing a Statement of Principles; is unique globally.

“I think what’s happened over the past 18 years is we’ve really developed a good collegial approach to pro bono, and it’s markedly different to anywhere in the world,” he says.

But the culture was spawned from harsh cuts to legal aid funding in the 90s that have never been recovered. Furthermore, there is now increasing pressure being put on tighter legal aid budgets.

And Hillard says it’s not going to get easier any time soon – the recently released Federal Budget cut civil legal assistance even further.

“The reality is it’s extremely difficult for people to get access to a lawyer in terms of civil legal disputes or just advice about their rights - It’s phenomenally difficult,” he says. “People I see or act for on social security have lost their jobs and have never been on large incomes, and are still not eligible for legal aid.”

He says the Target is an example of how the legal sector has tried to develop a nationwide professional responsibility.

By signing it, participants agree to aspire to provide at least 35 hours of pro bono legal services, per lawyer per year.

More recently pro bono conditions have been included in the application process for the Commonwealth Services Multi-Use List (LSMUL), and from 1 July 2014 all firms on this list with more than 50 lawyers are required to become signatories to the Target.

Hillard says the Target is unique for a number of reasons. Firstly, the concept developed from within the legal profession and was not imposed from outside parties.

It’s also aspirational, meaning that by becoming a signatory, firms are agreeing to try their best to reach the 35 hours per lawyer per year, but there is no penalty if they are unable to do so.

People would have kicked, screamed and run away if the Target had been rigidly imposed, says Hillard.

“But I think we’ve used a different model to inspire people to do more…Firms among themselves are always going to be a bit competitive, and the Target has helped to drive up the amount of that’s being done. It’s provided a benchmark,” he says.

And it seems to work well: When the 35 hour target was set in 2007, not a single firm had reached that number. Last year, nine firms had reached the target, and nine had exceeded it. Every year the amount of work being done is increasing, says Hillard.

But while many people may look at the hours being put into pro bono as hugely significant (the pro bono practice at Clayton Utz is the equivalent of their largest client), sadly it’s only a tiny puzzle piece of the solution.

“The large firms might provide 3% of the total amount of the broader government funded assistance. It’s by no means a substitute,” Hillard says. “None of us are under any illusion that we could come even close to filling where the need is.”

Aside from the US (where there is virtually a complete absence of governmental legal aid, says Hillard), Australia is streets ahead of the world in terms of the development of a genuine pro bono culture.

Here, he says pro bono is so ingrained in the lifeblood of law firms that it’s hardly noticeable – it’s simply a part of the day-to-day work.

This integration includes giving lawyers budget relief, allowing them to complete pro bono jobs within working hours, and including pro bono work considerations as part of performance reviews.

Many larger firms like Clayton Utz have an entire pro bono department. Next year they will have seen half a million clients since the practice began in 1997.

“The sort of cuts that Australia experienced in 1997 are the sorts of cuts that are now happening in the UK for example, so we’ve had a longer period of time in that environment,” he says. “It’s really interesting to reflect back on what the world looked like in the mid-90s compared to today. In a relatively small space of time, we’ve created a strong pro bono culture.”

But he says you can’t forget that this culture also spurs from the fundamental institutions of law, which is access to justice. Providing legal help to those in need is part of the nature of law, and is a major driver for many of the young people who choose to become lawyers.

And interestingly - at least at Clayton Utz - Hillard has seen clear evidence that the pro bono aspect of the work is one of the main incentives for lawyers to stay with the firm.

In any case, he says that Australia really is a shining example of the value of integrating a pro bono culture within a profession.

“It’s happened without it being mandatory, and without it being regulated. At some point, we’ll look back on how remarkable a thing it is that we’ve achieved. But in the meantime, we’re getting on with doing it.”

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