2.1 Casework procedures

This section discusses some issues relating to casework procedure.

Firm procedures could usefully cover the following topics:

• intake criteria;
• assessment and approval;
• allocation, monitoring and supervision;
• file opening and matter management;
• conflicts check;
• letter of engagement;
• file closure;
• client access and referrals.

Some firms also develop specific instructions for support staff, for example, file-opening instructions for secretaries. Smaller firms may have more simplified -procedures than the ones described below.

Intake criteria

Intake criteria assist the firm decide what work to take on. Some firms include criteria in their definition of pro bono (see 1.3 Defining pro bono for the firm), others specify them elsewhere in their policy or in their procedures. Criteria might include consideration of the source of referral, the client, the nature of the case, whether there is any conflict of interest, the amount of time the matter is likely to involve, and the level of expertise and the availability and willingness of a lawyer to undertake the case. Firms might wish to develop a checklist assessment form to be used by the person/committee approving pro bono matters which reflect the criteria (see, for example, 3.7 Application and approval forms). For an example of criteria adopted by one firm, see 3.2 Sample procedure.

Criteria relevant to intake, assessment and approval processes should be communicated to pro bono referral schemes and other referring agencies to minimise inappropriate referrals.

Assessment and approval

Appropriate written procedures will help ensure that the assessment and approval of proposed pro bono matters is carried out smoothly and in a timely manner. There are various models for approving pro bono work. Some firms allocate this function to their pro bono committee, some to pro bono partners and some to pro bono coordinators (see 1.8 Coordinating pro bono work in the firm). In other firms, general partners, team/division leaders or other particular committees might be responsible for approving pro bono work.

Regardless of the option employed, the firm’s pro bono policy or procedures document should clearly spell out whose approval is necessary, and how the approval process operates. Firms will also need to consider various procedural issues, for example, will a client interview be necessary before approval is given? If so, who will attend the interview, and where will the interview take place? This is an important consideration: some pro bono clients may not have the same degree of legal sophistication as the firm’s usual clients and/or may be intimidated by an interview in the firm’s offices. It may be more appropriate for interviews to take place at the offices of the referring agency.

As well as considering how the matter fits in with the firm’s intake criteria, the assessment process will involve consideration of the estimated costs and disbursements in the case. Some firms place fee or hours caps on each pro bono matter. Systems need to be implemented so that these can be entered into the firm’s file opening and matter management system.

Referrals from within the firm

A firm should also have internally publicised procedures in place to facilitate staff--initiated referrals. Such matters would be assessed for approval according to the same criteria as other matters. Some firms use an application form which is completed by a staff member and forwarded to the firm’s pro bono committee (or other overseeing committee, partner or designated person) for assessment and approval (see, for example, 3.7 Application for assistance form and related forms). In other firms, email or telephone contact or meeting with the firm’s pro bono partner, pro bono coordinator or other designated person may be sufficient, at least as a starting point. Such a procedure would ideally include a designated time-frame for reply to the application (for example, notification within 48 hours of application).

Declining a matter

In some cases, for example, where the firm has reviewed documents provided by a client, it might be appropriate to formally decline a matter. Any such letter advising that the firm is unable to assist should give general reasons for the refusal. For example, the letter could state that the matter does not fall within the firm’s guidelines, or creates a conflict with another of the firm’s clients, or there is no solicitor with the relevant skills and experience available to take on the matter. All documents forwarded by or on behalf of the applicant should be returned to ensure confidentiality.

The refusal and reason for refusal should be recorded. Such records will assist the firm to evaluate its pro bono program (see 1.13 Measurement, record keeping and evaluation).

Allocation, monitoring and supervision

Firms generally assign the task of allocating matters within the firm to an individual. In firms with pro bono coordinators, this will be the coordinator, although in at least one firm, the memorandum to the responsible solicitor is signed-off by the pro bono partner for that office. In some firms, pro bono partners or others (for example, team leaders) may allocate matters. A range of approaches is adopted in determining allocation of matters, including emails to all staff or to lawyers who have expressed interest in doing work (usually identifying the nature of the matter, although not the client, the kind of work required and any deadlines); personally approaching lawyers in relevant practice groups; or contacting a partner in the relevant area to see who in the group might be able to take on the matter. A lawyer’s expertise, availability and interest in the matter should be considered when allocating matters.

In some cases lawyers self-select for pro bono work by ‘referring in’ a matter (which is then subject to the firm’s approval process) and indicating a desire to work on it. In these cases, provided the solicitor is appropriately skilled to undertake the matter, allocation might simply involve approaching and designating a partner to supervise them. If the solicitor is not working in the practice group with expertise relevant to that matter, the firm could approach a partner in the relevant group and, in this way, facilitate opportunities for lawyers to work on cases they are particularly interested in.

There are various procedures adopted for formally allocating matters once particular lawyers have agreed to work on or supervise them. Good practice would involve some written communication of the allocation, both to the solicitor and supervising partner. See, for example, 3.8 New matter memorandum and 3.6 Sample referral and assessment form to which the memorandum refers. Firms with structured pro bono programs tend to maintain some kind of register or database of all pro bono matters in the firm which is then used for a number of purposes, including supervision of work (see 2.2 Supervision), internal and external reporting and evaluation (see 1.13 Measurement, record keeping and evaluation).

File opening and matter management

Clearly there is no single way to open a pro bono file: firms use different file-management or computer programs to record and manage their matters. File opening procedures may vary according to whether the firm is going to count pro bono hours as billable or as something else (see 1.10 Counting and crediting time) and whether a fees or hours cap is to be placed on the matter. One firm requires the dated signature of the pro bono coordinator or partner on the first page of the matter opening to indicate that it is approved under the firm’s pro bono scheme and the fee cap (if any) is authorised.

Firms need to create and implement appropriate systems to facilitate pro bono matter management and may need to consider some variations to the normal file-management procedure. For example, in determining in advance how it intends to account for a lawyer’s time on a pro bono matter, a firm may consider whether the lawyer will enter their time as chargeable as per any other matter, or whether it will be entered under a different code, or as a different kind of work (see 1.10 Counting and crediting time). Any file-management system or software will need to reflect the relevant arrangements for charging in the matter, for example, no fees, reduced fees or other arrangements. Procedures should also deal with disbursements in accordance with the firm’s policy. For example, this may require the firm’s payment of disbursements to be approved on a case-by-case basis or beyond a certain limit.

Ideally, the procedures document should give clear instructions for each step involved. For example, are there specific pro bono codes or prefixes for pro bono matters? How is the client to be described? Is a partner’s signature necessary? What information needs to be entered about chargeable basis and disbursements? How is a fees or hours cap (if any) recorded? How should other parties be recorded?

Efficient file-management procedures also have particular collateral benefits in terms of evaluating and promoting a firm’s pro bono program. This is discussed in further detail in 1.13 Measurement, record keeping and evaluation.

Conflicts check

A conflicts check will be an essential procedure in determining whether to approve a pro bono matter for intake, just as with any other matter. A firm’s pro bono procedures document should refer to the need to carry out such a check, and could also specify procedures for dealing with matters where there is any question as to conflict. For example, some matters may need to be referred to a person or committee for consideration and decision (see see 2.4 Risk management for a discussion of some of the issues in relation to conflicts of interest).

Letter of engagement

Once a matter has been approved for intake, a conflicts check has been undertaken and a file opened, the client should be sent a letter of engagement. Pro bono clients need to be made aware of the same issues as any fee-paying client, including the terms, scope and limitations of the pro bono assistance being provided and the costs implications to them (if any) of their matter.

The letter of engagement will often serve as a costs agreement. In the event that the matter is litigious and costs are to be recovered if the matter has a successful outcome, costs and disbursements will need to be addressed in any costs disclosure or agreement in the letter of engagement. In general, the letter of engagement should include:

• the scope of the assistance to be provided with reasonable particularity;
• disclosure of the basis of any costs (including fees and disbursements) to the client;
• if a contingency arrangement is entered into, the rate at which costs will be payable.

Letters of engagement and costs are discussed in detail below (see 2.3 Letters of engagement and examples can be found at 3.3 Sample letters of engagement).

File closure

Pro bono matters should be closed upon completion, as other matters are, ensuring bills have been paid, relevant documents returned to the client, and the client notified in writing of the outcome of the matter and that their file has been closed.

In the interests of recording time and costs expended on pro bono matters and to assist with evaluation of their pro bono programs, some firms include matter closure reports or evaluation forms as part of their pro bono matter management procedure (see 3.9 Sample evaluation form and 3.10 Pro bono matter closure report). The report may include information such as referral source, number of hours spent on a matter, reason for closing the matter, outcome of matter, feedback received from client and/or within the firm, media attention received (if any), public relations (for example, media releases) and benefits to the client, lawyer, the firm and others from the matter. Evaluation of a firm’s pro bono program is discussed in more detail in Part 1 (see 1.13 Measurement, record keeping and evaluation).

Client access and referrals

Sources of referrals are discussed in detail above (see 1.6 Identifying needs and sources of work). Firms wishing to have active pro bono practices should consider assigning particular people the task of liaising with and developing and maintaining relationships with external referral agencies, such as pro bono referral schemes, community legal centres (CLCs), Aboriginal and Torres Strait Island legal services (ATSILS) and legal aid to source appropriate pro bono matters. Establishing productive relationships with referring agencies is a key factor in facilitating effective pro bono referrals.

Firms need to make known to referring agencies the nature and criteria of their pro bono program, as well as the preferred procedure for receiving applications for pro bono assistance. To facilitate effective and timely referrals firms could, for example, prepare written information about their program and/or referral guidelines. The aim of this kind of information would be to make clear to referring agencies and clients what they can expect of the firm, and to preclude inappropriate applications and double-handling. Any information or guidelines would ideally include information about the following issues:

• What kinds of matters the firm is prepared to consider for pro bono referrals. This will include what kinds of casework as well as other pro bono assistance a firm will consider. Firms should endeavour to be precise. For example, specify ‘refugee and immigration work, social security’ rather than ‘administrative law’.
• What kinds of matters are specifically excluded from the firm’s pro bono -program. Firms might also wish to specify if they will not take on pro bono matters involving litigation against a particular (named) client. Being precise means neither the firm nor referring agency wastes time and resources with applications clearly outside the firm’s program.
• Who within the firm is the appropriate person to communicate with in relation to proposed pro bono referrals.
• Whether the firm prefers to liaise with the referring agency at first instance, rather than a prospective pro bono client. Firms should also make it clear if they would prefer to deal only with the principal solicitor of a CLC or the staff member with carriage of the matter to avoid confusion.
• The information the firm expects from the referring agency. Is a brief outline of the matter communicated by telephone or email sufficient? Will the firm need detailed documents or financial information about the client? (Firms should not make these requirements too onerous on the referring agency, especially if the matter is urgent.)
• Whether the firm expects that the client’s eligibility for legal assistance from other sources has been checked (for example, legal aid, a professional association or trade union in the case of some industrial law matters).
• Time frames within which the firm will assess and approve (or decline) applications for pro bono assistance (ideally, within 48 hours).

Firms should be as clear (and sensitive) as possible in describing their processes to clients and referring agencies. Even if a client is successfully referred, the firm may undertake a merits assessment and decline to take the matter further. It is important that the client or referring agency is not given false hope.

If firms accept direct client referrals, then they will need to ensure they communicate their procedures clearly with those clients, bearing in mind any particular barriers the client may experience in accessing justice, for example, through disability or being from a non-English-speaking background.

Referrals to other organisations

Clients rarely have only a legal problem. They are frequently dealing with multiple issues at the same time such as domestic violence and housing needs. The kinds of services a client may need include those provided by health and medical services, mental health services, Centrelink, short-term and long-term housing providers (including homelessness support services), migrant resource centres, disability advocacy and support services, financial counsellors, emergency assistance providers, neighbourhood centres or citizens advice bureaux, social work and counselling services and local council transport services. Firms and clients may also need the assistance of interpreter services (see 4.6 Interpreter services).

Anyone working with pro bono clients will need good referral skills: clients will often need referrals to an appropriate service or agency and firms should be conscious of not consigning clients to the ‘referral roundabout’. (An important issue arises for clients with disabilities. Firms should be conscious that clients with disabilities are not referred to disability agencies because they have a disability: the client’s legal problem may have little or nothing to do with their disability.) CLCs often maintain referral manuals of services available in local areas. People working in pro bono should familiarise themselves with the kinds of services available, and liaise with CLCs to maintain up-to-date lists of these services and/or to obtain assistance in making appropriate referrals.83

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