A free and fair defence of pro bono lawyers

Australian lawyers providing pro bono services to make expensive justice more accessible deserve better than being sledged in another lawyer’s recent InDaily opinion piece, writes Alice Rolls.

There are many aspects of Morry Bailes’ article Scaling back the ever-higher cost of justice with which I agree.

First, it is undoubtedly true that the increasing cost of litigation means that litigation remedies and access to the justice system are becoming the preserve of the wealthy and those who have either insured against the risk, or who are members of collectives who will stump up for their legal representation.

It is difficult to find reliable data regarding average fees charged by lawyers. A 2015 Pricing Report from Doyles suggests that the overwhelming majority of litigation practitioners in the Adelaide market priced themselves in the $400-$500 per hour market. Anecdotally, this sounds about right and the range is likely to be much higher in Sydney and Melbourne.

Second, there is not enough publicly funded legal aid available, particularly for the ‘missing middle’. In 2018, the Justice Project Report of the Law Council of Australia (authored at the time Mr Bailes was President of the LCA) found that 14% of Australia’s population live below the poverty line, but legal aid is only available to 8% of Australians. It also found there is almost no legal aid available for representation in civil matters, which accounted for just 2.3% of all legal aid grants in 2016-2017.

Over 640,000 hours of pro bono support were provided by Australian lawyers in the last year

Third, I agree with Mr Bailes that it is up to the legal profession itself to recognise that for many we have become unaffordable, yet we have nonetheless sworn to uphold the administration of justice and defend the rule of law, which means we need to be creative. In addition to better funding by governments for legal services, innovation by the legal profession has to be a big part of any solution.

However, where Mr Bailes and I respectfully diverge is in relation to his attitude towards pro bono. While I agree that pro bono is not a silver bullet for unmet legal need, it is grossly unfair to describe pro bono as being ‘a figment of fevered commercial imagination that exists only amongst lawyers who need to assuage their conscience for earning too much, or to win the next government contract which demands that a firm offer some element of legal service for free’.

Pro bono work in this country is an immensely generous offering from the legal profession, and its impact is both real and substantial.

The Australian Pro Bono Centre has just this week released its Annual Impact Report for FY2021. Over 640,000 hours of pro bono support were provided by Australian lawyers in the last year. This is the highest number of pro bono hours ever reported and is an increase of 16.4% from the previous financial year.

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These total hours equate to 357 lawyers working full-time for one year. That’s a lot of legal advice and support.

I saw first-hand the power of pro bono to assist vulnerable members of our community in my previous role as Managing Lawyer at The Accessible Justice Project. The AJP is an innovative collaboration between commercial firm LK Law and The University of Adelaide. During our first year, we assisted more than 135 South Australians who would otherwise have been without legal support. We helped to resolve many disputes, keeping them from getting worse and keeping them out of the courts, thereby saving the public purse.

Undoubtedly, there are benefits to law firms and individual lawyers from engaging in pro bono work. Those benefits include, as Mr Bailes points out, opportunities for firms to gain a seat on government legal panels with a view to obtaining government work. There are also reputation and client relationship benefits for firms which can demonstrate their commitment to corporate social responsibility.

Finally, there are the significant training and human resources benefits, which include providing staff the opportunity to work on different areas of law and to engage in work that directly assists others less fortunate than themselves. I know from my own experience that our newest members of the profession are crying out for this work.

However, during my 20 years working in private practice, the underlying factor that drove the firms I worked with to engage in pro bono work was their sense of ethical and professional responsibility to provide legal assistance to those who would not otherwise be able to access justice. That is a very honourable pursuit and ought not be denigrated. If there are benefits to be had on the side, what is wrong with that? In my view, we should celebrate win-win opportunities.

So, here’s to all of the generous law firms and individual lawyers around the country who continue to donate their time and expertise to assisting the most vulnerable in our communities.

Their work should be applauded, not derided. Long may it continue.

Alice Rolls is head of policy and strategy at the Australian Pro Bono Centre. She was previously a principal at LK Law in Adelaide and a Managing Lawyer of The Accessible Justice Project.

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