As was the case last year, Australian lawyers have set a new record for the volume of pro bono work undertaken, going from 700,910 hours completed in the 2022–23 financial year to 781,596 hours in the most recent financial year, for an 11.5 per cent increase.

The data comes from the Australian Pro Bono Centre’s (APBC) 17th Annual Performance Report, which analyses the pro bono work being undertaken by signatories to the National Pro Bono Target, a voluntary benchmark of 35 hours per lawyer, per year.

For in-house lawyers and teams, the Target is set at 20 hours.

Signatories to the Target, from sole practitioners to global law firms, report annually to APBC on their performance against that benchmark. The annual report anonymises signatories.

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On average, lawyers covered by the Target completed 39.6 hours of pro bono work in FY23–24, marking the highest hourly average since 2021 and an increase of 1.3 hours on last year.

Significantly, more signatories met or exceeded the Target than didn’t, with 51.44 per cent achieving 35 hours per lawyer for the year; however, this was slightly down from the 52.8 per cent of signatories achieving the Target in FY22–23.

The number of signatories to the Target also increased this year, going from 286 last financial year to 330 in FY23–24.

Further, the number of lawyers covered by the Target now covers almost one in four lawyers across the country: in FY22–23, the figure was 18,731, and it now sits at 19,724.

Speaking about the results, APBC chief executive Gabriela Christian-Hare (pictured) said that the FY23–24 results “underscore the evolution” of pro bono practice in Australia.

“An increasing number of lawyers practising in law firms, at the Bar and in-house are evidencing through the Target their willingness to do their bit to strengthen access to justice for society’s most vulnerable,” she said.

“Seeing whole barristers’ chambers sign up to the Target in the last couple of years is a particularly pleasing development, and the centre looks forward to working with bar associations across the country to support more barristers to integrate pro bono work into their legal practices.”

The findings follow the July release of the 2023 Annual Profile of Solicitors NSW, which found that practitioners in the Premier State are undertaking more pro bono hours than ever before and delivered an estimated $117 million worth of pro bono work last year.

Dedicated pro bono lawyers

Christian-Hare also spoke about the appointment of practitioners in firms that are dedicated to pro bono practice, noting they help manage the undertaking of such work “strategically and expertly”.

This, she surmised, is reflective of the formalisation of law firm pro bono practice Down Under.

“Those appointments both reflect and amplify a strengthening pro bono culture and help to meet growing expectations that firms will contribute to the public good in a very tangible and measurable way,” she said.

“Those expectations are coming from staff, including law graduates who are leaving universities with a strong social conscience, but also increasingly from corporate and government clients.”

Earlier this year, Lawyers Weekly explored the “increasingly formalised” pro bono practices that have emerged within firms in a competitive yet collaborative landscape, and against the backdrop of evolving client expectations and the imperative to attract socially minded talent.

No substitute for a well-funded legal assistance sector

This all said, Christian-Hare added, the undertaking of pro bono work by for-profit practitioners and businesses should “never be viewed” as a substitute for a properly funded and resourced legal assistance sector.

In July, legal member bodies and advocates issued an open letter, calling on all levels of government to address what they describe as Australia’s “greatest shame” – a desperately underfunded legal assistance sector.

“A lack of funding of frontline organisations in the sector can result in the closure of programs and cutting of staff, which itself challenges the provision of pro bono support to those organisations,” Christian-Hare said.

“Those organisations must be adequately resourced for pro bono to make a meaningful contribution to their work.”

Last week, the federal government responded with a commitment of almost $800 million, over the next five years, to enhance such legal services.

Sole practitioners, small firms pulling their weight

The APBC report also showed an increase in both small firms and individual practitioners (i.e. solicitors and barristers) reporting.

In FY23–24, 112 small firms (i.e. fewer than 50 lawyers) undertook an average of 44 pro bono hours per lawyer (down from 50.2 hours in FY22–23), and 45.8 per cent of such firms met or exceeded the Target.

In the same reporting period, 64 individual practitioners reported on the Target (up from 61), who collectively undertook an average of 103.5 hours of pro bono work, for a slight increase on the 102 hours completed on average in FY22–23. Seventy per cent of such practitioners met or exceeded the Target, for a notable increase from the 61.8 per cent who achieved this last year.

BigLaw must improve

At the big end of town, 58 large law firms (i.e. businesses with 50 or more FTE lawyers) reported on the pro bono hours of 18.26 lawyers. This cohort reported an average of 39.7 hours of pro bono work per lawyer, a 2.7-hour increase from FY22–23.

Just over one in two large firms (51.7 per cent) met or exceeded the Target, for an increase of 30 firms from 27 last year.

While the average increase in hours per lawyer and rise in firms achieving the Target are commendable, the figures for large firms should be read in the context of having greater resources and capacity to undertake pro bono work relative to smaller firms and individual practitioners – demographics which reported significantly higher hourly averages per lawyer in the last year.

Further, it appears that the average hours being undertaken by the entire demographic of large firms is being skewed by wildly varying performances by signatories.

One firm with 50-200 FTE lawyers completed an outstanding 96.6 hours, on average, of pro bono work per lawyer in FY23–24. On the flip side, just eight of 28 firms with 50-200 lawyers met or exceeded the Target – with one firm only completing 0.4 hours, on average, per lawyer.

Moreover, while one firm with 201-449 FTE lawyers undertook an average of 57.6 hours of pro bono this past year, another of a similar size completed just 7.2 hours per lawyer. And, among firms with 450 or more FTE lawyers, one firm undertook 61.9 hours per lawyer, while another completed an average of just 17.6 hours per lawyer.

APBC chair Phillip Cornwell was impressed by the growth in hours of pro bono work being undertaken across the profession, but he added there is room for improvement, particularly regarding what he noted as inconsistent results by larger firms.

“It is striking that half of the large firms are not meeting the Target, with some missing it by a large margin,” he said.

Cornwell then mused that such underperformance could have consequences for such firms: “I exhort governments and corporations to look closely at the pro bono performance of their panel firms and consider how seriously they are taking the Target.”

In-house teams slow to perform

Cornwell further noted there has been a “slow take-up” of adherence to the Target’s obligations by law departments, to whom the Target has been open since 1 July 2020 and at a lower benchmark of 20 hours.

In FY23–24, just nine in-house teams reported on their pro bono undertakings, with a total of 667 hours being completed (down from 851 hours in FY22–23).

In-house signatories completed an average of only 8.2 hours of pro bono legal work per lawyer in FY23–24, down from the average of 10.4 hours last year.

Of the in-house teams reporting, just 37.5 per cent met or exceeded the 20-hour benchmark.

APBC is keen, Cornwell stressed, to “boost participation” in the Target by in-house teams of all stripes, “and the centre will continue to support in-house lawyers through tools, resources, and connections to encourage greater engagement in pro bono”.

Reflections

Looking ahead – and in line with Cornwell’s suggestion to governments and corporations to consider the pro bono performance of external providers – it will be interesting to see whether the FY23–24 performance of Target signatories will weigh on the decision-making process for legal services panels.

As reported late last year, such performance weighed heavily on Attorney-General Mark Dreyfus ahead of this year’s re-established Whole of Australian Government Legal Services Panel.

At the time, Christian-Hare told Lawyers Weekly that the consideration of pro bono undertakings was reflective of the federal government’s increasing priority being given to such work and its desire to incentivise law firms “to take their position [as] Target signatories seriously”.

“The development of a pro bono practice takes time, but there are some [Whole of Australian Government] panel law firms whose numbers have been lagging for some time,” she said.

“The centre would like to see those firms fulfilling the pledge they made when becoming Target signatories, namely, to use their best efforts to achieve 35 hours of pro bono work per lawyer per year.”

This all said, there remains much to celebrate from this year’s results.

According to Australian Community of Pro Bono Lawyers secretariat Robert Reed – who is a special counsel at MinterEllison – the pro bono sector in Australia is “well-established, and over the last two decades, in particular, we’ve seen exponential growth”.

“Right from the start, one of the things that has most impressed me about the sector is the collegiality between firms – that we share insights and discuss issues relevant to the sector – with the ultimate goal of us all playing our part in improving access to justice in an effective way,” he said.