The introduction of ‘pro bono conditions’ in relation to the Victorian Government Legal Services Panel has been a significant factor contributing to the growth in law firm pro bono in that State and more generally.
The Victorian government introduced a tender arrangement, the Victorian Government Legal Services Panel (Victorian Panel), for the provision of legal services to government on 1 July 2002. The Victorian Panel aimed to combine a more transparent system of allocating legal work to law firms, lower costs for the Victorian government and an increased commitment to social policy objectives. The Victorian Panel was refreshed in July 2009 for a period of 6 years. The arrangement led to the formation of a general and specialist panel of law firms. There are 20 law firms on the Victorian Panel.
On 1 July 2015 Attorney-General Martin Pakula announced the details of the new Victorian Government Legal Services Panel. For further details on changes to the pro bono conditions, please see below. The new Panel arrangements will commence on 1 March 2016.
Under the new Panel arrangements all Victorian government departments and statutory bodies that choose to participate must select their legal counsel and services from one of the 13 Areas of Law or the Victorian Government Solicitors Office. Statutory bodies can opt-in to the Victorian Panel but some large ones have chosen not to (for example, the Transport and Accident Commission).
The Victorian Panel also calls for firms to dedicate themselves to pro bono work, follow model litigant principles and the Victorian Bar Council’s Model Briefing Policy. As part of the new Panel arrangements the State intends to develop other guidelines relating to diversity and work/life balance.
The pro bono provisions
In 2002, as part of the tender process firms were required to commit to a Pro Bono Percentage of at least five percent of the value of legal fees (excluding GST, expenses and disbursements) under the Contract to pro bono work (defined as “Approved Causes”) and could nominate a percentage of up to 15 percent. Most firms nominated 15 percent.
The new provisions, introduced as part of the 2015 Panel refresh, require a minimum pro bono commitment of 10 per cent, an increase from five per cent. This is a mandatory conformance criteria. In addition, there is no maximum commitment incorporated into the new Panel arrangements.
The Pro Bono Percentage that each firm must provide is incorporated into Schedule 1 of the Government Legal Services Panel Deed of Standing Offer for the Provision of Legal Services (Contract). A firm must provide the Pro Bono Amount (being the Pro Bono Percentage as applied to the legal fees), either by way of Pro Bono Services or an approved Pro Bono Payment (a payment in lieu), no later than six months from the end of the relevant financial year.
Firms are required to satisfy all mandatory criteria as well as the mandatory minimum for pro bono services in order for their tender to be considered. In the event that a firm does not derive any fees under the Victorian Panel, the firm is not required to provide the nominated Pro Bono Amount. However, if a firm fails to meet its commitment, it is enforceable.
Firms must discharge their pro bono commitment (Pro Bono Amount) by undertaking legitimate Pro Bono Services or making an approved Pro Bono Payment. A Pro Bono Service is defined with reference to an “Approved Cause” as outlined in the Policy Guidelines for the delivery of Pro Bono Services for an Approved Cause under the Government Legal Services Contract (Guidelines) and clause 11 of the Contract.
the provision of any services by lawyers or other staff based in Victoria or other financial or in kind assistance which will enhance access to justice for disadvantaged persons or organisations and/or promote the public interest including but not limited to circumstances where a Panel firm:
without fee or without expectation of a fee or at a reduced fee, advises and/or represents a client in cases where:
a client has no other access to the courts and the legal system; and/or
the client’s case raises a wider issue of public interest; or
undertakes the following, provided the provision of these services or financial or in kind assistance will enhance access to justice for disadvantaged persons or organisations and/or promote public interest:
is involved in free community legal education and/or law reform;
is involved in the giving or free legal advice and/or representation to charitable and community organisations;
provides staff (legal or other) on secondment to a CLC or other community organisation; or
provides financial or in kind assistance (e.g. equipment, sponsorship etc.) to a CLC or other community organisation.
The Guidelines also provide that pro bono services can include:
legal or paralegal advice, representation or assistance;
legal research, education or law reform work; and
provision of staff, financial assistance, equipment, sponsorship or other in kind assistance.
It is also possible for the Attorney General to approve other services or assistance as Pro Bono Services (see clause 11 of Contract).
* This is the definition that will apply as part of the new Panel arrangements. The only differences between this definition and the definition originally included in the Victorian Panel arrangements is that community legal centres are now specifically mentioned.
The Centre also produced a more detailed report on these arrangements (please note that this report referred to the pre 2015-2016 Panel arrangements). You can also find more discussion of pro bono provisions in government tender arrangements, including a comparison of the arrangements put in place by the Victorian and Commonwealth Government, here.