Should Lawyers Be Required to Undertake Pro Bono Work?

Hiring a criminal lawyer can be expensive, and many people are ineligible for Legal Aid.

So while the wealthy have no problem getting a good legal defence, and the most disadvantaged may qualify for Legal Aid, the current system leaves a considerable portion of people in the middle who are unable to obtain legal representation.

If you’ve seen American crime shows, you may have heard police tell arrested people that “if you can’t afford an attorney, one will be arranged for you”. But unlike the United States, those who are charged with criminal offences in Australia do not have a right to free legal representation – they must either pay for a lawyer or meet the strict criteria of Legal Aid and other community aid centres.

Filling in the justice gap

Since so many people struggle to pay legal bills, and may ultimately decide that they can’t afford a lawyer, the question arises: do lawyers have an obligation to help close the ‘justice gap’?

Lawyers have a duty to promote the administration of justice; and since the 12th century, criminal defence lawyers have been providing free legal services to disadvantaged people by their own initiative or under various ‘pro bono’ schemes.

It has been suggested that a lawyer’s duty includes actively supporting worthy causes and providing assistance to those who are otherwise unable to secure legal representation.

Supporting worthy causes

Unjust laws are all around us, and increasingly so. To challenge these laws, it is often necessary to appeal cases to the higher courts – for instance, constitutional issues such as the freedom of political communication can only be settled in the High Court of Australia.

But most people simply do not have the funds to run cases in the higher courts, meaning that lawyers will often need to step-in and undertake free work to proactively bring about positive changes to the law.

There are many examples of lawyers sacrificing their time to assist those in need – from volunteering in community legal centres, to providing advice and representation to non-government organisations, to providing legal assistance to disadvantaged people through the Law Society’s pro bono scheme.

What is the Pro Bono Scheme?

While lawyers are the butt of many jokes, the fact is that many put aside significant chunks of their time to work for free – which is something that few (if any) other professions and trades do on a regular basis. Indeed, some might baulk at the idea of consistently working for free.

The Pro Bono Scheme has been set up by the Law Society of NSW to connect law firms that are willing to assist people who fall into the ever-expanding ‘justice gap’.

The Scheme also facilitates law reform on issues of public interest and provides free legal education to the community.

The eligibility criteria are as follows:

1. You must have applied for and been refused Legal Aid;

2. You must satisfy the means test;

3. Your case must have merit or reasonable prospects of success; and

4. Your matter must be covered by the scheme.

The Scheme covers a variety of areas of law, including criminal. Law firms may choose to participate, and they represent clients either for free, or for a greatly reduced charge.

Are quotas the answer?

Despite the initiatives of individual lawyers and law firms, and vital programs like the Pro Bono Scheme, there are still vast numbers of people who are unable to obtain legal assistance.

To fill this gap, there are suggestions that all lawyers should be required to perform a certain amount of pro bono work each year as a precondition to renewing their practising certificates.

Another suggestion is a little more flexible – a voluntary pro bono target. Under this proposal, there are no penalties or sanctions for those to do not reach the target, but it would act as a goal and a benchmark against which the legal profession could measure itself.

The Australian Pro Bono Centre suggests that this be set at just 35 hours per year. As of 2014, the average number of hours volunteered by full-time lawyers was 34.2 hours per lawyer, per year.

Of course, these programs should not be used as a justification for the removal of government assistance to programs such as Legal Aid.

But if all lawyers chip-in, we will see inroads made into the justice gap and potentially achieve changes to the law that may benefit the community as a whole.