Pro Bono Work and the Legal Profession
Wednesday 2 July 2014 @ 10.49 a.m. | Legal Research
Many people requiring legal assistance are missing out because the legal profession often charges extraordinary prices for what should be an essential and ordinary service, a report delivered by the Centre for Innovative Justice at RMIT University has found.
Background to the Report and Recommendations
The report on affordable justice in the private legal services market identifies five key problems with the current system:
- the billable hour, where lawyers charge according to time, and fees are open-ended;
- a lack of available information about how much individual lawyers charge and whether their charges are reasonable;
- lawyers ‘hunting in packs’ – with clients having to pay for whole teams of solicitors, barristers and paralegals;
- a lack of innovation and little incentive for the legal profession to change; and
- lawyers expecting to make a disproportionate profit margin
Director of the CIJ, Adjunct Professor Rob Hulls, said there were a range of innovative practices across the legal system that had the capacity to make the delivery of legal assistance more affordable. But he said there was a need to do more to bridge the gap between government- funded assistance and the prohibitive fees often charged by the private profession.
The report offers a number of suggestions for reform, including:
- an increased focus on legal consumers through the establishment of a Legal Consumer Advocate;
- greater transparency and predictability about what lawyers actually charge;
- the establishment of websites for consumers to rate and review lawyer affordability;
- investment in support for innovative business practices; and
- more widespread use of fixed fees and access to legal assistance for discrete tasks rather than unlimited engagements.
The Current Problem
In an article for Lawyer's Weekly, Salvos Legal Head Luke Geary, describes the problem as a threefold issue:
- The current unmet legal need has been unable and unwilling to be quantified, meaning the cost to fix the unmet need has also not been quantified;
- 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, largely due to limited government funding; and
- Even though they are "basic" areas of law, that does not mean they are "basic" issues.
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 - this is mainly to ensure the dignity of the persons lawyers 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.
Mandatory or Optional?
The current debate in the legal profession revolves around whether pro bono legal work should be mandatory for the profession or optional, as is the current case.
While Luke Geary believes it is essentially mandatory anyway as it is part of a lawyer's ethical duty to provide pro bono assistance, Two of the profession’s leading pro bono advocates have agreed with the majority of voters in a Lawyers Weekly poll that pro bono work should be a personal choice for each lawyer.
The National Law Firm Pro Bono Survey, which was released in October 2012, showed that large firms did, on average, almost 18 hours more pro bono work per lawyer per year (38 hours) than mid-tier firms (20.4 hours).
The arrival of global firms in Australia and a tightening legal market are two developments that have the potential to impact the amount of time lawyers have to dedicate to pro bono work.
“Lawyers will feel that it’s more difficult to do pro bono work if ... they’re getting disadvantaged for it...I think it’s those firms that have got really strong pro bono cultures ... that are going to continue doing pro bono work in the good times and the bad times.”
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