Care must be taken to ensure that mandatory pro bono imposed on law students, who by definition are not admitted as lawyers, does not do more harm than good, write Michael Legg and John Corker.
OPINION: The New York State Bar, one of the world's most influential bars, has decreed that all new lawyers must demonstrate their willingness to work for free for clients who do not have the means to pay for legal services.
In fact, without at least 50 hours of voluntary legal work behind them, new law graduates will no longer be admitted to the legal profession in New York.
Could Australia benefit from adopting a similar requirement? Who might initiate this change?
Certainly, lawyers as a profession have an ethical responsibility to facilitate access to justice. As those who possess legal knowledge and skills -- and who enjoy a monopoly on exercising them -- the legal profession already does provide some services for free to assist in ensuring access to the justice system.
But would the mandatory provision of free legal services by students better serve the same goal?
When lawyers talk about pro bono clients, they are using a term derived from the Latin phrase pro bono publico, which means for the public good.
During the past 30 years in the US and 15 years in Australia, pro bono has become progressively much more structured and organised, with many parts of the profession, from large law firms to community legal centres to sole practitioners, doing their bit.
In 2007-08 the Australian Bureau of Statistics reported that the country's 50,000 lawyers worked 955,400 voluntary hours. Law students have become increasingly involved in this "pro bono movement", so far on a voluntary basis.
In New York the new Bar admission requirements designate that the 50 hours of qualifying pro bono service must be supervised and certified by a lawyer, judge or law school professor, and can be counted any time from the start of legal studies.
The pro bono work can be undertaken in any jurisdiction and through law school clinics, internships, law firms with pro bono programs or while working following graduation.
New York Court of Appeals Chief Judge Jonathan Lippman observed: "If pro bono is a core value of our profession, and it is, and if we aspire for all practising attorneys to devote a meaningful portion of their time to public service, and they should, these ideals ought to be instilled from the start, when one first aspires to be a member of the profession."
The New York Times reported that the move was intended to provide about a half-million hours of badly needed legal services to people who cannot afford those services, a need that has grown significantly since the global financial crisis.
The development is certain to be of interest in Australia. Attorney-General Mark Dreyfus stated in March that he felt very strongly that innovations such as compulsory pro bono requirements for students to be admitted as lawyers "would enhance the sense of social justice in aspiring lawyers in universities around Australia, and help foster a pro bono culture, while also providing very valuable and practical legal experience".
But while mandatory pro bono may seem at first blush to be an appealing development, we need to take a closer look.
The pro bono ethos in the Australian legal profession is understood to be an ethical value or moral obligation associated with public service.
To make it compulsory for an aspiring lawyer may dilute the honourable aspect of the pro bono ethos. Pro bono may become more about counting hours and minimum compliance than a genuine commitment to helping others in need.
Pro bono can be promoted in other ways. Governments in Australia have introduced incentive schemes, such as the requirement in Victoria that legal firms wishing to be on a government legal panel must commit at the same time to providing pro bono legal services for an "approved cause" defined by government worth the equivalent of 5-15 per cent of the fees they receive from the government.
The commonwealth has a similar scheme through its Legal Services Multi-Use List, where a legal firm must subscribe to the National Pro Bono Resource Centre's aspirational target of 35 hours of pro bono work per lawyer a year or nominate a target value of pro bono work across a financial year.
Legal firms then must report on the amount of pro bono work they engaged in and the commonwealth publishes the results and takes performance into account in awarding tenders. These schemes have been successful in strongly encouraging the profession but they are not compulsory.
Law students also can, and are, encouraged to undertake supervised pro bono work as part of getting hands-on experience and building their own capabilities.
We know from the clinical legal education programs in Australia that skilled staff and good co-ordination systems are essential to ensure that not only is the pro bono ethos positively reinforced through good experiences for students but that high-quality legal services are provided to clients.
An important principle is that pro bono services should be given the same care and attention as fully paid matters. Pro bono programs done badly or just to tick off the hours may do a disservice to clients and engender long-term scepticism among young lawyers.
More pro bono would be good for the legal profession, law students and society, but quality is as important as quantity.
Care must be taken to ensure that mandatory pro bono imposed on law students, who by definition are not admitted as lawyers, does not do more harm than good.
Mandatory pro bono for law students has many attractions but it must be very well managed and supported if a long-term pro bono ethos is to be engendered (and not damaged) in law students, and clients' interests advanced.
Unlike the US, the main preconditions for admission to legal practice are found in the various state or territory legal profession acts and so it is likely that legislative change in a state with a strong pro bono ethos, such as NSW or Victoria, would be necessary to lead the change. Such a change would affect university law schools, clinical legal educators, pro bono programs and the legal assistance sector as a whole, so this is where the discussion should start.
Michael Legg is an Associate Professor in the Faculty of Law at UNSW and a director of the National Pro Bono Resource Centre. John Corker is the Centre's Executive Director.
This opinion piece was first published in The Australian.