Pro Bono Provisions in Government Tender Arrangements for Legal Services
Both Victoria and the Commonwealth governments have provisions in their processes for assessing tenders for legal services that seek to encourage their law firm legal service providers to undertake pro bono legal work. The Schemes differ from each other in various ways but both have been successful in causing many law firms to undertake more pro bono legal work.
Last updated September 2013
The Victorian Government introduced a tender scheme for the provision of legal services to government on 1 July 2002. This scheme 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 scheme led to the formation of a general and specialist panel of law firms (known as 'Panel Members'). All Victorian government departments and statutory bodies that choose to participate must select their legal counsel and services from these two panels or the Victorian Government Solicitors Office.
The Scheme calls for firms to dedicate themselves to pro bono work and follow model litigant principles and the Victorian Bar Council’s Model Briefing Policy. The Victorian Government has reported that the value of pro bono legal work undertaken by panel firms was $22.07M (2011), $18.56M (2010), $17.85M (2009), $7.7M (2007), $5.2M (2006).
Law firms must commit at least five percent of value of total hours billed under the Contract to pro bono work, and can nominate up to 15 percent. Most firms nominate 15 percent and many exceed it each year.
Pro bono services account for 10% of all weighted requirements under the Tender and are rated in accordance with the pro bono scorecard set out in Pro Bono in the Provision of Legal Services to Government. Under the scorecard, law firms who tender to provide a 15% pro bono commitment get a score of 10/10, which decreases on a sliding scale until firms receive no score for committing 5% but are still eligible for consideration.
Law firms must satisfy all mandatory criteria as well as the mandatory minimum for pro bono services in order for their tender to be considered.
Panel Members must discharge their pro bono commitments by undertaking legitimate pro bono services in areas consistent with the Policy Guidelines for the delivery of Pro Bono services for an approved cause under the Government Legal Services Contract. In the event that a Panel Member does not derive any fees under the panel arrangements, the Panel Member is not required to provide the nominated amount of pro bono services. However, if a firm fails to meet its commitment, it is enforceable. The Scheme provides that firms must make a payment to Government in lieu of their obligation. In practice, firms have been permitted to make up the commitment in a subsequent year.
For more information, please refer to the Centre's report on these arrangements.
The Commonwealth Government implemented reforms to the Commonwealth's procurement of legal services on 1 July 2008. The reforms sought to further the efficient resolution of disputes as well as to provide greater transparency and competition in the Commonwealth legal services market. The reforms were implemented by amendments to the Legal Services Directions 2005 made by the Attorney-General under section 55ZF of the Judiciary Act (Cth) 1903. This Scheme introduced ‘pro bono conditions’ which required Commonwealth agencies, departments and statutory authorities to take into account a firm’s pro bono commitment in making their decision as to whether to engage that firm. The Commonwealth reports the results of its scheme in pro bono hours per lawyer on a firm by firm basis rather than a total financial value.
The operation of the pro bono conditions was broadened with the introduction of the Commonwealth Legal Services Multi Use List (LSMUL) arrangements that commenced operation on 1 June 2012. As of 1 June 2013 most Commonwealth departments and agencies are required to purchase legal services under these arrangements.
All law firms seeking to be on one of the Commonwealth Government panels (pre-qualified service providers) must comply with the LSMUL conditions regardless of whether they are engaged by government to undertake legal work. One condition requires firms to commit to pro bono legal work by either being a signatory to the National Pro Bono Aspirational Target, or to nominate a target value of Pro Bono Legal Services (as defined in the Target) over a financial year.
Under the LSMUL, the firm agrees to use their best endeavours to meet the Target or the value nominated in their application and to report to the Commonwealth within 30 days of the end of each financial year on their pro bono performance. The Commonwealth government has published the results of each firm’s pro bono performance in its Government Legal Services Expenditure Report every year since 2009/2010 and does this on a pro-bono-hours-per-lawyer-firm-by-firm basis rather than as a total financial value.
In July 2013, the Commonwealth A-G Mark Dreyfuss wrote to all firms on the LSMUL indicating that the Target should be the primary means by which providers satisfy their pro bono obligations and that firms with more than 50 lawyers providing legal services to the Commonwealth will be required to be signatories to the Target by 1 July 2014.
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