Pro bono work. We all do it in some form or other. It may be your own private commitment to help in cases where to charge fees would be unfair for any number of reasons. Or you may have registered as a pro bono lawyer in your legal area under the Law Society Pro Bono Scheme ('the Scheme').

Your authority and responsibility

Firstly, if you’re not in a position of sufficient authority to accept a pro bono matter, check with your supervising partner as to the firm’s pro bono policy. Pro bono work should always be done as a normal matter of the firm, so that professional indemnity insurance will apply. A legal practitioner working under a firm should be aware of the firm’s pro bono policy before taking on a matter. The legal practitioner is able to withdraw services should the client not accept the legal advice being given. The withdrawal can be on the grounds of lack of reasonable prospects of success or any other reason that the solicitor deems legitimate or appropriate.

Enquiry into means

In most cases, the scheme has checked the means of the client so you can be assured that the Law Society client is genuinely in financial hardship. When referring the matter, the pro bono solicitor will indicate whether the client is willing and/or able to make a contribution, including, for example, by installments.

However, this is not always possible. For example, a client may need urgent assistance, and the pro bono solicitor simply hasn’t had time to make the usual full enquiries. In such a case, you should enquire into the client’s income, the spouse’s income, the assets and liabilities. A fundamental pre-requisite is that the client has applied for, and been refused, legal aid.

Inability to afford legal assistance without undue hardship is the overriding criteria for the Scheme’s means test.

Direct referral

The Scheme welcomes referrals directly from solicitors and firms who may feel that they have come across a worthwhile case and wish to access the Pro Bono Disbursement Trust Fund. A signed Pro Bono Scheme application form and financial statement will be required from the client as well as a covering letter from the solicitor giving a short summary of the case and confirming willingness to act for the client under the Scheme. The matter will need to fall inside the guidelines of the Scheme. The Scheme will only consider a matter that is outside guidelines if there are very exceptional circumstances.

Cost agreements

To preserve entitlement to party/party costs, you should refer to your entitlement to the full amount of fees and disbursements in your costs agreement with the client, in the event of a successful outcome. Having set up your client’s liability, should enable you to apply for party/party costs in appropriate matters. The Law Society’s Legal Costs Unit has kindly prepared a model costs agreement and precedent disclosure document for matters referred under the Scheme which satisfy the requirements of the Legal Profession Act 2004.

Disbursements and the Pro Bono Disbursement Trust Fund

The Society administers a Pro Bono Disbursement Trust Fund (ABN 130 886 812 86), established for the specific purpose of reimbursing solicitors for properly incurred disbursements in pro bono cases referred under the Society’s Pro Bono Scheme.

Formal application is made to the Fund Trustees including details of relevant disbursements and relevant receipts. Please note carefully the conditions of the Fund as outlined on the reverse of the Pro Bono Disbursement Trust Fund Application Form. Reimbursements may be made up to a determined limit in any individual matter, in accordance with the court jurisdiction.

Any inquiry regarding the Pro Bono Disbursement Trust Fund should be made in writing and directed to the Pro Bono Scheme Solicitor.

GST and pro bono

Legal services provided to a client for free do not attract GST. However, where a contribution is made, GST is payable on the amount paid. Your cost agreement should set out whether the client is liable for GST and, if so, the bill should indicate the amount payable. As pro bono work is done in the course or furtherance of the enterprise, your firm will be able to claim input tax credits on acquisitions/imputations used to provide the pro bono service. Note paragraph 4 above if you wish to preserve entitlement to party/ party costs.

Filing fees waived

Solicitors should make application to the relevant court for a waiver or postponement of court filing fees for pro bono matters. This is available in most courts in NSW for matters run under the Society’s Scheme.

Pro Bono Medical Register – Pro Bono Mediators Register

Firms conducting matters under the Society’s Scheme are also able to access the Society’s Pro Bono Medical Register and Pro Bono Mediators Register. The Society maintains a register of medical practitioners, in a wide range of practices, and a register of qualified mediators who have indicated they are prepared to act on a pro bono basis. In appropriate matters, and where requested, the Law Society Pro Bono Solicitor will refer the matter to a mediator or physician.

Reporting

At the conclusion of the matter, we would appreciate a short report on the outcome of the matter. In particularly lengthy matters, an interim report would also be desirable. The Society suggests that you should also keep your own records of all pro bono work done in your office, not only work performed under the Society’s Scheme.