National Pro Bono News: Issue 51

Welcome to the May 2009 edition of the e-Newsletter of the National Pro Bono Resource Centre (the Centre). We welcome your feedback/contributions/ideas. In this edition, read about:

1. New National Pro Bono PI Insurance Policy to be Announced on National Pro Bono Day
2. Golden Guru Lawyers
3. Small Firm/Big Firm Good Karma
4. Mandating Pro Bono in South Africa
5. Our Interns
6. Voiceless: 2009 Animal Law Lecture Series
7. In the News - April 2009

On Friday 15 May 2009, the Centre will announce the new National Pro Bono PI Insurance Scheme ("the Scheme") to encourage lawyers that work in corporations and government across Australia to undertake pro bono legal work.

The Scheme removes one of the key constraints to pro bono, being the need for in-house lawyers to have professional indemnity ("PI") insurance to cover them for any civil claims arising from their pro bono legal work as in-house lawyers do not often hold such insurance.

The scheme was devised by law firm DLA Phillips Fox, insurance broker Jardine Lloyd Thomson and the Centre and is underwritten by LawCover Insurance. The policy insures lawyers and paralegals who do pro bono legal work on projects approved by the Centre. As a result of this, the Law Society of New South Wales has lifted restrictions on all classes of practicing certificate. Other law societies are being approached to do similarly.

The Policy is a "safety net" policy so cover will only extend to circumstances where no other PI insurance covers an approved project.

There is no application fee or charge to be paid by the applicant. The Centre has paid the policy premium and will cover the excess payable on any claim.

The responsibility for coordination of each project will rest with a supervising lawyer. This lawyer could be in a pro bono clearing house, a law firm or in-house but must be the person who completes the Application Form. Responsibility for providing legal advice and holding appropriate practising certificates will rest with the particular lawyers providing the advice.

Applications for insurance cover can be made on the Application Form from 15 May 2009 and for approved projects cover for all lawyers and paralegals who work on these projects will commence from 1 July 2009.

"We are looking at skills and opportunities. It's a matching process that takes detailed co-ordination with all our stakeholders," says Sophie Grieve, talking about harnessing the potential of retired and retiring lawyers to work in pro bono.

Grieve, Project Manager with the NPBRC, has been conducting a number of round table discussions on the topic and is finalising a report on the findings and recommendations of the process. The report, due out shortly, will be available on the Centre's website.

We've been looking at the expectations of these lawyers, most of whom have held fairly responsible positions, with 30 years experience, and in some cases have been partners," says Grieve.

"We want to create a positive perception of pro bono legal opportunities such as mentoring younger lawyers. We also want to create an environment to transition the retired lawyers smoothly into pro bono legal work, taking away the fear of the unknown, inspiring them to give back to the community. This is aided by training and induction programs.

Grieve sees the project picking up on one of the ideas of the 2020 Summit held in Canberra last year. The Summit gathered over 1000 Australians at Parliament House to 'help shape the long term strategy for the nation's future."

"One of the top five ideas that came out of the Summit was mentoring by retired people to provide support for business and communities. It is something that is now at the forefront of the government's agenda. Potential Senior Pro Bono lawyers fit in well with this 'Golden Gurus' idea."

While some of the lawyers are keen to undertake pro bono work within their existing legal specialisation, others want to try new areas, seeking the intellectual stimulation of the unfamiliar and contributing their experience and wisdom to areas of unmet legal need.

"It really varies," says Grieve. I've spoken to some who practised in family law and they don't want to work in that area again. They want a peaceful, happy life practicing pro bono in other areas of law."

Because many retired lawyers had administrative and clerical support in their past roles, the level of computing and keyboard skills has also been an issue. “We want them to be able to go into a community legal centre and be completely set up to just do legal work with a computer and phone support. We want them to be able to walk in and walk out."

But Grieve cautions: "We don't want them to be placed in an office with the door closed. These lawyers dont want to be isolated. They want to be involved in their legal community with a sense of collegiality."

The NPBRC sees its role as one of coordination and support to all the stakeholders as they develop the projects and placement of the lawyers. "We need to facilitate the process of bringing retired lawyers into the pro bono sphere and create the right environment so it is a success," says Grieve.  

Two years ago, when Melbourne-based advertising executive Ashley Rosshandler and his wife were invited to an engagement party, they wondered if it would be nice to give the happy couple a 'goat' in Africa.

But what if they weren't into goats? Maybe they were into saving forests, or rescuing animals, or finding cures or education or the arts or any number of worthwhile causes? That's when the idea dawned on them for charity gift vouchers. And Karma Currency was born.

Now only 18 months old, it is the largest charitable gift registry in the southern hemisphere and is on track to raise half a million dollars by the end of this year.

"Ashley approached my firm as a new client to set up Karma Currency and we decided to do the work pro bono," says Nick Weston, name principal of Collins Street Melbourne-based law firm Nicholas Weston, and now chair of the Karma Currency board. His firm, like Karma, is reasonably young, having been founded in 2005.

"Corrs Chambers Westgarth drafted the trustee's constitution, and the terms of use for the website was a joint pro bono effort between us and Corrs," Says Weston.

"We have a strange practice. It cuts across corporations law, commercial law, technology law and intellectual property. Everything we do has an element of intellectual property. We are a niche firm, so we don't charge like the big firms, we don't have their marketing budget and have to be a bit creative about how we get the word about our unusual skill set out there. We're small but mighty," says Weston, explaining why Rosshandler came knocking on their door.

"Ashley is the driver and Karma Currency has been very successful. We have in excess of 150 charities on board and our nose in front. It is very much a going concern."

The concept is a very simple and enticing one: The ability to donate a gift voucher which allows the recipient to go online to www.karmacurrency.com.au and pass on the donation to the charities and projects of their choice. Charity gift vouchers can be sent via email, a card in the mail or can be printed out.

As Weston points out: "The entire donation goes to the charity. A small administration fee is charged at the time of the voucher purchase and this helps to keep Karma Currency going. With office space donated by the National Australia Bank (NAB) in Melbourne, and the business being technology-based, it pretty much runs itself. It is a pretty lean and tight operation."

Karma is a charity which channels money to other charities, and the person giving the gift to Karma Currency is entitled to claim a tax deduction.

"It is a novel business model for a charity," quips Weston, who was responsible for drafting the trust deed.

Rhys Jewell, who handled the pro bono work at Corrs, says: "I tend to do a lot of work on the establishment of foundations. What Ashley is doing is very innovative from an Australian perspective and it gave rise to some interesting challenges. It was a steep learning curve. We had to ensure that the Karma Currency message was able to be clearly communicated to its donors and we ended up getting a great result."

When community response to the recent Victorian bushfires was running high, Karma offered another channel for donating. "We can highlight a cause on the site and say that now is a good time to be giving," says Weston.

Karma Currency gives more than a warm glow to those involved in individual transactions. The charity has plenty of potential to enhance corporate karma as well, according to the founder, Ashley Rosshandler.

"The way Karma's corporate charity gift vouchers work is that a company can say to staff: 'Times are tough, but we believe now more than ever we should step up and support the community. So we have chosen this year to give $20,000 to charity but with a twist. Later today, in your inbox, you will each receive $50 to give to your charity of choice.'

"This empowering development in giving has already been well received, even drawing the attention of the prestigious Harvard Business School. The School will release a study later this year on the effects of such giving on happiness and engagement in the workplace", says Rosshandler.

Another major boost to Karma came when Solterbeck, a company which runs loyalty schemes, signed on, making it possible for people to cash in their loyalty bonus points in exchange for a donation to charity. And Karma's gift registry continues to grow in popularity for birthdays, condolences, weddings and other special events.

In the meantime, the fledgling Karma Currency keeps garnering accolades. Last year, it received the Tattersall's Enterprise Achievement Award and the Australian ICT Innovator of the Year Award.

Speaking of the combined pro bono legal assistance from Corrs Chambers and Nicholas Weston that got them up and running, Rosshandler says: "It's inconceivable that our foundation could have launched and gone on to achieve what it has without this joint effort. Lucky for us both parties were happy to be paid in good karma!" 

Should there be a mandatory pro bono requirement made of lawyers?

In South Africa, that may be the way to go.

"In principle, pro bono work should be voluntary, but given the situation of access to justice in South Africa, I think it has to be mandatory," says Helen Kruuse, a legal academic at Rhodes University.

"Making pro bono mandatory affronts my sense of autonomy, but we have such a constitutional crisis here. I believe that the legal profession can't have a monopoly on the legal system without giving back to the community."

The Legal Services Sector Charter, drafted by the SA Department of Justice (in conjunction with various stakeholders) and adopted in late 2007, states:

'The legal profession undertakes to recognise the ethical obligation to carry out pro bono work and develop and enhance the pro bono system with a view to making it compulsory for all practitioners.'

However, the Charter does not spell out how much pro bono would be required. On top of this, it has yet to be enacted. Nearly a year after its adoption, the Charter carries no more weight than a suggestion to the profession. It has to be enshrined in a Legal Practices Bill.

Why hasn't the legislation happened yet? "A huge backlog of Bills in Parliament and in the making," says Kruuse.

The Charter takes its lead from the Cape Law Society, whose Rules include a mandatory 24 hour per year pro bono requirement, although this is not enforced and, according to Kruuse, many lawyers are not even aware of the rule.

" had a student in an ethics class who interviewed seven lawyers in the area: None of the lawyers interviewed were fully cognisant with the pro bono provisions and some didn’t even know about the requirement. There is no monitoring by the Society and no penalty.

"The Eastern Cape Society of Advocates (a provincial equivalent to the Australian Bar Association) has also been experimenting with the performance of a minimum of two days' pro bono service per annum - however, this is also not enforced," says Kruuse.

"It's difficult to say how much pro bono is being undertaken in South Africa. No research is done. A lot of attorneys complain that this is a libertarian model or that such work is the government's responsibility. But we have a lot of issues with Justice Centres and Legal Aid Boards in keeping up with need and the variety of the work they are allowed to undertake. There is just not sufficient pro bono work."

Kruuse points to the huge gender inequity in legal aid provision, citing from a speech given by Lex Mpati, President of the SA Supreme Court of Appeal at the opening of the Rhodes University Law Faculty earlier this year:

"Section 35 (3)(g) of the Constitution guarantees the provision of legal representation at state expense in criminal matters where substantial injustice would otherwise result. Contrast this with s 34 which does not impose a duty on the state to provide legal aid in a civil suit to those who cannot afford legal representation. This prioritisation should be questioned for a number of reasons, including the fact that the main beneficiaries of criminal legal aid are men, whereas those who seek civil legal aid are mainly women, particularly in divorce matters and in cases of abuse."

Kruuse adds to this the issue of deceased estates. Practices of primogeniture see the eldest male inheriting estates despite a Constitutional Court judgment which found such practice unconstitutional. However, it is very hard for women to contest this practice.

She sees South Africa's recent history as the distinguishing feature of its great need for legal assistance, believing that there was possibly more pro bono undertaken during apartheid than after.

"Public interest law is kept in the domain of public interest lawyers. It's what specialist institutes and resource centres do and it becomes a vicious circle. These wonderful people do all this work, and no one else does it because these people do it." For Kruuse, it's time that access to justice moved into the mainstream and became the responsibility of all those in the profession.

 "In 1995, just after the move to democracy, one of the Judges of Appeal, Judge Navsa, stated: 'There is a growing perception that, in spite of South Africa having one of the best Constitutions in the world, its legal practitioners are losing their consciences. Whereas the Constitution has created many opportunities for the use of law to promote social justice and democracy, there are probably fewer lawyers practising in this area than was the case under apartheid... There was a sense of mission and moral duty." 

"Last year as part of the Law Lawyers and Society ethics course, I went along to the Kingsford Legal Centre for one night, and I saw lawyers put in all this effort. I didn't know much about pro bono and I wanted to understand more," says Amy Kong, one of two interns currently at the National Pro Bono Resource Centre.

What she has learnt in her time at the Centre is this: "I didn't realise it was so difficult to help. Organising pro bono work requires time, matching skills and needs, and resources. Lawyers want to do pro bono work but there are obstacles in the way."

In her fourth year of a combined Commerce/Law degree at UNSW, Kong says that she was more interested in the commerce side of things before she started the degree, even looking into actuarial studies.

"I'd never thought about doing law but I've found law more engaging. Now, when I finish the course, I plan to start working as a lawyer."

Her interests lie in intellectual property. "I do marketing and it's relevant to trademarks and protecting your brand."

Our other intern, Golnaz Zahedi, was attracted to working with us because, she says: "I feel strongly about professionals giving back to the community, especially lawyers as they have such a stigma attached to them.

"I'm pretty social justice oriented and I'm especially interested in human rights in the Middle East," says Zahedi.

The final year UNSW Arts/Law student says she has wanted to train in the law since late high school. "Legal Studies was my favourite and best subject. I had a really good teacher and I couldnt imagine doing anything else. It is so challenging and interesting."

The broad range of activities she's undertaken during the internship included proof-reading the Pro Bono Practices guide which the Centre is preparing for law students and outlines the pro bono activities of the large firms. She also mentions the survey of Aboriginal Legal Services.

"Amy and I split the 22 ALS centres and got on the phone to them, asking the solicitors and centre administrators about the usefulness for them of the ALS Guide."

Asked about the areas she hopes to practice in, Zahedi says: "I'm open to whatever I fall into, probably contract and property law. Lately, I find I'm interested in family law." 

Leading US animal protection litigator, Bruce Wagman will travel across Australia from 5 May to deliver the Voiceless 2009 Animal Law Lecture Series.

Wagman has litigated some of America's most significant animal law cases affecting animals in farming, entertainment and biomedical research, and serves as the Chief Outside Litigation Counsel for the Animal Legal Defense Fund in the US.

Mr Wagman has taught animal law at UC Berkeley and Stanford Law School, and is also co-author of America's first casebook on animal law.

Wagman, who was named one of Northern California's 'Super Lawyers' in 2006, 2007 and 2008, will be joined at various events by distinguished legal practitioners and academics, including The Hon. Michael Kirby AC CMG, former Justice of the High Court of Australia and Professor David Weisbrot AM, President of the Australian Law Reform Commission, who will speak at the Series' main event in Sydney.

The Melbourne event, to be held at Mallesons, will mark the launch of the specialist animal law service PALS@PILCH in Victoria.

For more information about the talks, click here. 

Admission to all events is free but registration is required via the Voiceless website.  

Click through to read any news article in full.

Payday loans cost borrowers their beds (Always Hot News, 30 April)
Borrowers are taking out short-term, high-interest "payday loans" they cannot afford to repay according to principal solicitor of the NSW Consumer Credit Legal Centre Katherine Lane.

Promoting Art, Promoting the Artist (NAVA, 29 April)
Workshop participants will learn how to access the free legal services of the Arts Law Centre Artists in the Black service.

Thousands living on borrowed time (SMH, 29 April)
Karen Cox, the co-ordinator at the Consumer Credit Legal Centre, said she had not seen a lull in the number of households seeking help.

Who'll stop the boats (New Matilda, 27 April)
All refugee boat arrivals are now processed on Christmas Island and many lawyers take on refugee cases pro bono but the costs of flights to Christmas Island can be prohibitively expensive.

Russell McVeagh ups pro-bono work to keep lawyers busy (The National Business Review, 24 April)
It might not be great for the bottom line but at least two community law clinics are benefiting from a slow down in legal work coming through the doors at Russell McVeagh.

Public Interest Law Clearing House NSW Seminars for Not-For-Profit Organisations (communityNet, 21 April)
PILCH seminars on governance, risk management, fraud prevention, lobbying and fundraising, and whether to incorporate.

Info night aims to help jobless (The West, 21 April)
The Goldfields Community Legal Centre, with the Multi-Cultural Association and the Goldfields New Zealand Kiwi Club, hosts a seminar for those who have lost their jobs or fear they might.

Fatal fire flaws to be exposed by bushfires inquiry (Herald Sun, 21 April)
Mat Tinkler, of the Public Interest Law Clearing House, said applications from the 30 individuals and communities he represented in the bushfire royal commission were rejected without their barristers even getting the chance to put their case.

Valuing Volunteers Kit for Community Legal Centres (CommunityNet, 20 April)
The Valuing Volunteers Project aims to develop volunteer training and resource materials with broad application to community legal centres.

Free legal help for sex assault victims (The Northern Daily Leader, 17 April)
Victims of sexual assault will be given free legal representation to fight attempts by their attackers to gain access to intimate counselling and medical records.

Call for action (The Bendigo Advertiser, 16 April)
Loddon Campaspe Community Legal Centre solicitor Paula Glassborow said the human rights consultation was one of the most important regarding human rights for this generation.

Frankston vandals clean getaway (Frankston Standard Leader, 14 April)
Tiffany Overall, from the community legal centre Youthlaw, comments on the problem of getting vandals to remove graffiti.

Ban call for door-to-door salespeople (Star, 14 April)
Footscray Community Legal Centre will call on Maribyrnong City Council to ban door-to- door salespeople after it was found that African migrants were signing contracts they didn't understand.

Australia's human rights report card (wotnews, 14 April)
The UN Human Rights Committee has issued its first report card on Australia since 2000. The Committee commended Australia on the current national human rights consultation and the historic apology to the Stolen Generations, but it has given the government just one year to report back on human rights progress in the areas of immigration detention, counter-terrorism laws, and violence against women. It has also called for immediate re-design of the Northern Territory Intervention in conformity with international human rights standards and our own Racial Discrimination Act.

Kenny's case: pension age unfair for those who die younger (Western Advocate, 10 April)
Nic Patrick, pro bono director at DLA Phillips Fox, has prepared a complaint on behalf of Kenny Moylan to the United Nations Committee on the Elimination of Racial Discrimination. It argues that eligibility requirements for the age pension discriminate against indigenous people because of their lower life expectancy.

Same same but different (The Northern Rivers Echo, 9 April)
Angela Pollard, manager of the Northern Rivers Community Legal Centre, is concerned about changes to the way Centrelink will treat same sex couples from July 1. She said it will have a negative impact on many people in same sex relationships, particularly older couples who have been discriminated against all their lives.

Top law firms cited by 'Fortune' (Law Fuel, 3 April)
Fortune Magazine's Top 100 Places To Work includes five US law firms. One of these, Nixon Peabody, targets 3% of billable hours annually for pro bono work.

ASIC steps in to BrisCon imbroglio (Sydney Morning Herald, 2 April)
Article on DrisCon mentions pro bono representation of small shareholders

Off the charter (The Australian, 1 April)
Article on a bill of rights comments that pro bono legal services are not a guarantee of legal representation for individuals.