About Pro Bono
What is pro bono?
Pro bono comes from the latin phrase "pro bono publico" which means for the public good. In the legal context it generally means the provision of legal services on a free or significantly reduced fee basis.
Whilst there is no universally accepted definition of what is meant by "pro bono", several definitions have been influential in developing pro bono practice in Australia. Some of these are set out below with commentary.
Law Council of Australia
The Law Council of Australia in 1992 defined pro bono work as situations where:
1. A lawyer, without fee or without expectation of a fee or at a reduced fee, advises and/or represents a client in cases where:
(i) a client has no other access to the courts and the legal system; and/or
(ii) the client's case raises a wider issue of public interest; or
2. The lawyer is involved in free community legal education and/or law reform; or
3. The lawyer is involved in the giving of free legal advice and/or representation to charitable and community organisations.
This definition is used by many firms. It is broad — it covers not only legal advice and representation but also law reform and community education — but it is limited to work done by lawyers and does not cover some kinds of assistance that firms may wish to include in their pro bono programs, such as the work of non-legal staff and/or the provision of financial or in-kind assistance to community organisations (such as community legal centres and Public Interest Law Clearing Houses) which undertake activities that enhance access to justice.
The definition includes free and reduced-fee services and services performed "without expectation of a fee". Chris Arup has analysed1 the phrase "without expectation of a fee" — and lists as advantages that it excludes consideration of the difficult cases of conditional fee and contingency fee based services, it excludes speculative work where the underlying motivation is commercial gain, albeit at a risk, and it may possibly credit cases where the lawyer is taking a very real risk, essentially for the sake of the client. Disadvantages of incorporating "without expectation of a fee" in the definition of pro bono include that it may have the effect of benefiting the other side when they would normally be expected to pay costs.2
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Law Foundation of New South Wales (now Law & Justice Foundation) (LJF)
In 1998 the Law Foundation of New South Wales developed the following definition:
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. They are services that are provided for:
- people who can demonstrate a need for legal assistance but cannot afford the full cost of a lawyer’s services at the market rate without financial hardship;
- non-profit organisations which work on behalf of members of the community who are disadvantaged or marginalised, or which work for the public good; and
- public interest matters, being matters of broad community concern which would not otherwise be pursued.
This definition is also restricted to legal services and many of the comments made with respect to the Law Council definition also apply here. The LJF definition does not cover speculative or contingency fee work, although the LJF considered that "work performed on a conditional fee basis could be referred by a pro bono scheme if fee recovery only occurs to the extent that a costs order is made in favour of the client and costs are recovered from the losing party".
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Victorian Government Legal Services Contract Scheme
Under this scheme, firms in Victoria securing panel contracts for the provision of legal services to the Victorian Government are required to commit to providing legal services on a pro bono basis to "approved causes" (or to make payments in lieu) equivalent in value to a percentage nominated at the time of tender (between 5 and 15 per cent) of the fees it generates under the panel arrangements. For the purposes of these contracts, the Government has defined an "approved cause" as:
The provision of any services by lawyers or other staff based in Victoria which will enhance access to justice for disadvantaged persons or organisations and/or promote the public interest including 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) a client has no other access to the courts and the legal system and/or
- (b) the client’s case raises a wider issue of public interest;
- is involved in free community legal education and/or law reform;
- is involved in the giving of free legal advice and/or representation to charitable and community organisations;
- provides staff (legal or other) on secondment to a community organisation; or
- provides financial or in kind assistance (for example, equipment, sponsorship etc) to a community organisation.
This definition is clearly broader than the two discussed above yet contains some important limitations. It does not cover work performed for organisations or people who would otherwise be able to afford the services. Nor does it cover "no win — no fee" commercial business arrangements. The provision of financial and in-kind assistance to community organisations is covered only where it will "enhance access to justice for disadvantaged persons or organisations and/or promote the public interest".
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National Pro Bono Aspirational Target and National Survey
The definition of "pro bono legal services" expressed in the National Pro Bono Aspirational Target Statement of Principles and in its National Survey is as follows:
- Giving legal assistance for free or at a substantially reduced fee to:—
- (a) individuals who can demonstrate a need for legal assistance but cannot obtain Legal Aid or otherwise access the legal system without incurring significant financial hardship; or
- (b) individuals or organisations whose matter raises an issue of public interest which would not otherwise be pursued; or
- (c) charities or other non-profit organisations which work on behalf of low income or disadvantaged members of the community or for the public good;
- Conducting law reform and policy work on issues affecting low income or disadvantaged members of the community, or on issues of public interest;
- Participating in the provision of free community legal education on issues affecting low income or disadvantaged members of the community or on issues of public interest; or
- Providing a lawyer on secondment at a community organisation (including a community legal organisation) or at a referral service provider such as a Public Interest Law Clearing House.
The following is NOT regarded as pro bono work for the purposes of this statement:
- giving legal assistance to any person for free or at a reduced fee without reference to whether he/she can afford to pay for that legal assistance or whether his/her case raises an issue of public interest;
- free first consultations with clients who are otherwise billed at a firm’s normal rates;
- legal assistance provided under a grant of legal assistance from Legal Aid;
- contingency fee arrangements or other speculative work which is undertaken with a commercial expectation of a fee;
- the sponsorship of cultural and sporting events, work undertaken for business development and other marketing opportunities; or
- time spent by lawyers sitting on the board of a community organisation (including a community legal organisation) or a charity.
For further information on calculating pro bono hours for the purposes of the Target please refer to the Guidance Notes.
This definition is consistent with the Law Council of Australia definition but is specific about certain activities that have been considered "grey areas" in some definitional debates. It was considered necessary to be specific about these issues to enhance survey data and provide leadership on "definitional fringe" issues such as community service work by lawyers, sitting on boards, work for sporting organisations or work done without any reference to the capacity of a pro bono client to pay for pro bono services.
In other contexts different views may be appropriate as to what "pro bono" includes. The Centre takes the view that different definitions are useful for different purposes.
For a useful discussion of the pros and cons of broad and narrow definitions of "pro bono" see the paper presented by Esther Lardent, Chief Executive Officer of the US Pro Bono Institute, at Australia’s Second National Pro Bono Conference held in October 2003 titled, "Defining and Quantifying Pro Bono: Pros and Cons".
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 C Arup, "Defining pro bono: models and considerations", paper presented at the First National Pro Bono Conference, For the public good, Canberra, 4–5 August 2000, at http://www.nationalprobono.org.au/ssl/CMS/files_cms/DefiningProBono-ChristopherArup.pdf.
 For further information see the Australian Pro Bono Manual at http://www.nationalprobono.org.au/probonomanual/page.asp?sid=1&pid=19.
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