De Brennan, S --- "Rethinking Pro Bono: Students Lending a Legal Hand" [2006] LegEdDig 36; (2006) 14(Spec Ed) Legal Education Digest 6

Rethinking Pro Bono: Students Lending a Legal Hand

S De Brennan

(2006) 14(Spec Ed) Legal Education Digest 6

15 Legal Educ Rev 1&2, 2005, pp 25–59

This paper proposes a solution for law schools seeking to enhance access to justice in their communities, but with inadequate resources to divert towards fully-fledged clinical legal education (CLE) programs. The solution, it is suggested, is a student-led initiative based on a Canadian model entitled Pro Bono Students Canada (PBSC). The author learnt of this initiative during a seven-month term at Osgoode Hall Law School in Toronto, Canada, a visit which triggered a realisation that Australia may not be meeting its potential when it comes to inculcating a vibrant pro bono culture in law school curricula.

Australia boasts a number of excellent programs which incorporate a pro bono ethic such as the Community Legal Centres (CLCs) which operate in conjunction with selected Universities. However, these are extremely resource intensive and often beyond the reach of law schools grappling with reduced government funding and other budgetary constraints. These issues are of concern when one considers the decline in legal aid funding and the well-documented strain being placed on community legal centres. Confronted with similar resource constraints, Canada has not only recognised the benefits of involving students in access to justice initiatives, but has also taken steps to strategically align university students to its overall pro bono objectives. It is argued that the creation of a Pro Bono Students Australia — a highly visible and formulated pro bono program — would allow both lawyers and law students alike to put the ideals of justice, equity and accessibility into practice.

In 1998, the Law Foundation of New South Wales supported a comprehensive study that, amongst other things, provided a clear definition of pro bono services. That definition, which has remained fairly robust, is as follows: Pro bono legal services are services that involve the exercise of professional legal skills, and are services provided on a free or substantially reduced fee basis. This paper takes a pragmatic and utilitarian view that the more people who are legally assisted — the better.

The provision of free legal assistance to those who cannot afford it has a long history in Australia and elsewhere. Pro bono legal work received renewed attention when the Federal Attorney General hosted “For the Public Good: First National Pro Bono Law Conference” on 4th–5th August 2000 at the National Convention Centre, Canberra (“The Conference”) which brought together key stakeholders involved in the delivery of pro bono services throughout Australia. A National Taskforce was convened to examine issues arising out of the Conference as well as research, promotion of pro bono best practice and quality assurance guidelines and mechanisms. Importantly, their Report recommended the establishment of a National Pro Bono Resource Centre (NPBRC).

At the state level, similar pressures prompted the NSW Legal Profession to conduct a comprehensive review into its provision of pro bono legal services. This culminated in the publication of a discussion paper, which would serve as a foundation for current developments. In 2002, the Victorian government indicated that it would only accept tenders (for its approximately $35 million worth of legal services) from those law firms performing a prescribed amount of pro bono work. Research to date demonstrates that the demand for pro bono services is a demand that falls unequally on the legal profession. Most schemes operate independently, and must at times present a confusing array for members of the public who need to access essential pro bono services. Against this history of adhocracy, calls for greater centralisation have been widespread.

It is interesting to note that despite the obvious talents and abilities of law students, there have been few concerted efforts to align the law student to the overall provision of justice in Australia. CLE type courses are offered in just over half of Australia’s universities, and even when offered, are only available to a relatively small proportion of students. Further, the innovative CLE developments that have taken place seem to involve pairing with CLCs, Legal Aid, PIAC or what one might refer to as mainstream legal providers. It is submitted, that a model premised on PBSC is one that has enormous appeal for universities seeking to enhance access to justice in their communities, but without the resources to establish or maintain large-scale public service orientated CLE programs.

PBSC is a national network of law schools and community organisations that matches law students who want to perform pro bono work with public interest and non-governmental organisations, government agencies, tribunals and legal clinics during the academic year and university break. As part of the program, a lawyer is required to supervise participating students. The first PBSC program commenced in 1996 and involved some 50 students and a handful of organisations at one law school. Today the program is in every Ontario law school and in 17 law faculties across Canada. The “Placement Program” is PBSC’s foundation program. Through this, PBSC matches law students with community groups, public interest organisations, and lawyers performing pro bono work. More recently, PBSC has piloted a number of additional programs, including a very successful “Court Program” to assist litigants in person in family law cases under the supervision of duty and advice counsel.

PBSC is led by a National Director and an Assistant Director. At each law school there is a faculty or staff member who is designated as an on-site contact person for the program, and who provides support when and where necessary.

In the absence of a compelling reason(s) to depart from the above model of governance, it is submitted that a similar model should be adopted for PBSA. To qualify for participation, an organisation must be an incorporated, non-profit organisation that offers public interest programs to the community or deals with issues of public interest in some other capacity. An organisation wishing to be matched with a law student volunteer is required to provide the student with substantive work (with a sufficiently descriptive outline of the work required) and supervision for the duration of the placement. Organisations are required to meet with their student volunteers periodically over the course of the placement to ensure that the students’ work is conforming to the needs of the organisations as outlined in the project description.

Once a match is made students are required to attend a training session at the beginning of the academic year and sign agreements that they will act professionally in respect of the project. Obviously there are a number of benefits for host organisations as well.

The impressive level of participation in these programs by lawyers, law students, community groups, and law schools signifies a noteworthy shift in the culture of the profession with respect to the importance of public service. PBSC has become a fundamental and widely applauded initiative in great demand across the province and country. The program has significantly increased the amount of public service provided by the profession to the community, and in particular to marginalised communities. It is hoped that many of these benefits would also materialise in the Australian context.

Although this paper argues for the adoption of a Canadian based model, it is duly acknowledged that no foreign model is readily transferable. Before any foreign model is mooted it is important to assess the similarities and differences between community based legal providers in Canada and Australia respectively. On a purely general level, it is worth noting that Australian volunteers are less inclined to get involved in community organisations and other kinds of “associations” than their Canadian counterparts.

This paper juxtaposes the province of Ontario, Canada (the birthplace of PBSC and undoubtedly the most active PBSC arm) with New South Wales, Australia (the proposed site for an Australian equivalent of the Canadian program).

First, of relevance is the difference in the theoretical or philosophical underpinnings of the two systems. Second, in Ontario the private Bar tends to do most of the “certificate” work in criminal and family law. Therefore, the two jurisdictions, while idiosyncratic, are by no means incommensurable.

Of no less importance to the discussion of commonality are the profound cultural similarities between Canada and Australia. Taken collectively, it is opined that the legal and cultural similarities between Canada and Australia make the prospect of transplanting PBSC even more attractive.

Invariably, however, concerns arose in respect of liability issues surrounding the scheme. Certain individuals expressed anxiety about having to sign a Release from Liability Form, the practical effect of which would make the supervising solicitor (and his/her organisation) responsible for any liability incurred.

All respondents indicated that they had not experienced any major problems. Further, the author’s investigations reveal that the Canadian experience with respect to complaints and liability is nonexistent.

Also affected by reductions in government funding, this paper has sought to present PBSC as a worthwhile project for those law schools unable to fund fully fledged (and public service orientated) clinical legal education programs but at the same time wishing to enhance access to justice in their communities. Finally, it will be interesting to see how the impending increases to university fees will impact on the willingness of law students and law graduates to devote their time to pro bono causes.