Alternative Law Journal
FIONA McLEAY[*] argues all pro bono legal work can be seen as in the public interest.
Legal work performed in the public interest is often associated with high profile test case litigation and class actions. However, it is possible to see all pro bono work (that is work done for free for those unable to afford a lawyer) that provides access to the justice system as being in the public interest. Access to the justice system for all is a vital part of a democracy governed by the rule of law. The role of lawyers in assisting this process is therefore in the public interest.
Lawyers are well known for their (occasionally pedantic) insistence on precise definition. However, there are some legal terms where meaning is often assumed or where a range of possible meanings is used interchangeably. Pro bono is one of these phrases. ‘Public interest’ is another.
The Victorian Public Interest Law Clearing House and the Public Interest Advocacy Centre in Sydney include the following as core elements of the definition of public interest applied when screening applications for pro bono legal assistance:
• the matter is of broad public importance or affects a significant number of people; and/or
• the matter adversely affects the interests of marginalised or disadvantaged people.
Individual firms have chosen additional elements in determining whether a matter should be described as being public interest. For example, the public interest unit at Melbourne law firm Slater & Gordon requires that the matter also:
• raise a legal problem which has reasonable prospects of success; and
• arise from harsh or unjust treatment by a powerful individual, corporation, government or law enforcement agency.
Organisations and lawyers involved in this type of public interest litigation have long played an important part in ensuring the provision of legal services to the marginalised and disadvantaged. The advocacy conducted has often had wide-ranging and lasting impacts on these groups. Such advocacy should be applauded and encouraged.
At the same time, many lawyers are also engaged in pro bono legal work for individuals whose legal problems do not affect a significant number of people or do not have an immediate or obvious impact on public policy. These clients are caught in a legal mess not of their own making, or people who sought to exercise what they perceived to be their legal rights, only to find the system is focused not on justice but on process. Their matters may not fall within the definitions of public interest set out above.
The Melbourne Homeless Persons’ Legal Clinic has acted for a number of indigent homeless clients who have accumulated fines for public order and transport offences. Bill is a good example. He has been homeless for a number of years, spending time sleeping rough in crisis accommodation or in boarding houses. He has recently obtained public housing and is receiving regular NewStart payments as he tries to re-enter the job market after many years of unemployment due to alcoholism and depression. During periods of homelessness he has accumulated around $1500 in unpaid fines for offences including drinking in public, indecent language and travelling without a valid ticket. Some of these fines have progressed to warrant stage, such that he is in danger of arrest and imprisonment if he fails to pay them.
Bill’s situation does not meet any of the public interest criteria set out above — there is no impact on anyone other than Bill, he has not been treated harshly or unjustly and there is little prospect of defending the offences in court. However, by receiving pro bono representation, Bill was able to have some of the fines dismissed and the costs associated with others dismissed. An order was made which attempted to address the underlying cause of the offending behaviour and he was permitted to work off the remaining money via community service.
This type of pro bono work should be seen as work conducted in the broader ‘public interest’. Lawyers have traditionally undertaken pro bono work primarily out of a belief that they have a particular professional obligation to ensure access to the justice system for all people, regardless of means. This in turn comes from a recognition that for the justice system to work at all, there must be access for all. In a democracy governed by the rule of law, there is a clear public interest in ensuring that the justice system operates properly, including equal access to courts and tribunals. Lawyers who are engaged in pro bono work for individuals can therefore be said to be engaged in public interest lawyering, regardless of the potential for the matter to have a broader impact.
Indeed, such work may fit into the traditional definition of public interest. It is of broad public importance that marginalised and disadvantaged people are able to be represented, both from the perspective of the individual, and to ensure the efficiency and efficacy of the court process. In many instances, a requirement that the matter arise from harsh or unjust treatment by a more powerful individual or organisation will also be met. The only element missing is what may be termed the ‘test case’ component — most pro bono matters, while of vital importance to the life of the individual concerned, are life changing only for them, and not for a broader group.
Does any of this matter? Is it important that general pro bono representation be placed within a broader ‘public interest’ framework? It only matters if the approach to definition adversely impacts on the involvement of lawyers in pro bono work, whether strictly public interest or not. While many lawyers undertake pro bono work simply on the merits of the case, with no thought for any broader impact, others have a firm eye on a larger canvas. This may be systemic law reform, and it may also be the public recognition and profile raising that often comes with this.
While recognition for the conduct of pro bono work is not in itself bad, the vital integrity of pro bono legal work requires that it is undertaken not for the benefit of the lawyer doing the work, but for the client. An excessive focus on strict public interest work, to the exclusion of other types of pro bono work may upset this balance. A recognition that pro bono work and public interest pro bono work are partners in the same endeavour — access to justice for all, regardless of means — will provide a valuable counterbalance to avoid this risk.
[*] Fiona McLeay is Senior Associate and Pro bono co-ordinator, Clayton Utz Melbourne.
The assistance of David Hillard, Philip Lynch and Sally Weston in the writing of this article is gratefully acknowledged.
©2003 Fiona McLeay
 See <www.naclc.org.au/centres_detail.html>.
 Although one can query the social utility in fining someone for behaviour which becomes criminal only by virtue of their personal circumstances.