PLANNING,
DEVELOPING &
A PROGRAM
& PRACTICE
A practice guide and resource kit for law firms
The Australian Pro Bono Manual
Pro Bono Manual
Contents & Information
Abbreviations & Glossary
Planning, Developing & Maintaining a Program
Chap 1.1: Planning pro bono for the firm
Chap 1.2: Defining pro bono legal work
Chap 1.3: Pro bono policy
Chap 1.4: Promoting a pro bono culture
Chap 1.5: Surveying interest
Chap 1.6: Identifying needs & sources of pro bono legal work
Chap 1.7: Current models of pro bono legal work
Chap 1.8: Setting targets & budgets for pro bono legal work & programs
Chap 1.9: Coordinating the program
Chap 1.10: Participation
Chap 1.11: Crediting & recognising pro bono legal work
Chap 1.12: Costs & Disbursements
Chap 1.13: Evaluation
Chap 1.14: Training & skills
Chap 1.15: A mid-sized firm perspective
Chap 1.16: A small law firm perspective
Chap 1.17: Reflections of a pro bono coordinator
Procedures & practice issues
Chap 2.1: Casework procedures
Chap 2.2: Risk management
Chap 2.3: Secondments
The Australian legal assistance sector
Chap 3.1: Legal Aid Commissions
Chap 3.2: Community Legal Centres, Indigenous Legal Organisations & other legal organisations
Chap 3.3: Pro Bono Referral Schemes & Organisations
Australian Pro Bono Best Practice Guide
Chapter 1.14: Training and Skills
This chapter provides guidance on:
addressing the mismatch between lawyers' expertise and pro bono clients' needs; and
training and skills for particular client needs, for example culturally and linguistically diverse clients, Indigenous clients, clients who require interpreter services and clients with disabilities.
1.14.1 Mismatch between lawyers' expertise & clients' needs
1.14.2 Dealing with particular client needs
1.14.3 Self-care & resilience
1.14.1 MISMATCH BETWEEN LAWYERS' EXPERTISE AND CLIENTS' NEEDS
One commonly identified barrier to the provision of pro bono legal services is the mismatch that can arise between the skills and knowledge of lawyers willing to undertake pro bono legal work and those required to effectively address the needs of pro bono clients. These skills and knowledge may be legal or non-legal.
This chapter notes several possible responses to this dilemma:
The mismatch may not be so serious that it prevents pro bono lawyers from providing effective assistance. Lawyers have a range of generic and specialist skills that can be adapted and built upon. Firms can also start from their existing skill base to identify ways in which those particular skills may be of use to disadvantaged communities.
There are some areas of law relevant to assisting people experiencing disadvantage where it is relatively easy to acquire the necessary skills and knowledge through research, training or supervised practice. Even where an area of law is very complex, for example family law, there may be discrete related areas, for example family violence orders and victims compensation, where it is possible for lawyers to acquire the necessary expertise.1
It is possible to explore models of pro bono practice that involve partnerships between pro bono lawyers and staff from community legal organisations working together using complementary skills.
MAKING THE BEST USE OF THE EXISTING SKILL BASE
The generic skills of a typical lawyer, namely legal research and writing, fact-gathering, the ability to marshal persuasive arguments, advocacy and negotiation skills, combined with their particular specialist skills, can be used to assist individual people experiencing disadvantage or the community organisations that exist to assist them.
Lawyers are asked on a regular basis to undertake commercial legal work involving areas that they are not familiar with. Lawyers are able to do this because they know the framework of a particular area, where to look for detail and where to obtain support, including conceptual and strategic advice. Depending on the circumstances of the client's case, the law may not be so complex that a competent lawyer with adequate time and access to appropriate support cannot readily provide useful assistance.
Lawyers who would not be comfortable doing pro bono legal work face-to-face with disadvantaged clients in a clinic environment, or dealing with issues outside their area of expertise, can still be exposed to the issues facing disadvantaged people by doing pro bono legal work that arises within their comfort zone.2 This is one of the advantages of working within a case referral model.3 It is also an advantage of working within a sessional secondment or supervised clinic model, where lawyers can do legal research or seek guidance from a CLC lawyer on the spot, and build expertise in otherwise unfamiliar areas of law.4
In developing a pro bono program, the firm could work from its existing skills base to identify ways in which it can use these skills to address important community needs. A clear match exists between the skills of lawyers working in corporate law firms and the needs of NFP organisations themselves, which may include advice, drafting, negotiation or representation needs in areas such as tax, contracts, incorporation and governance, employment, intellectual property and government tendering. An emerging potential area for increased pro bono legal work is the possibility of providing legal support to social enterprises5 and community building activities.6
There are some areas of law that are so complex that the provision of adequate pro bono advice or representation will require an in-depth technical knowledge of that area of law and/or considerable experience in the relevant jurisdiction. Family law is a good example of an area where most lawyers will not have developed expertise during the course of commercial practice and where it is not practicable to acquire the knowledge in a few hours' or days' training.7
However, there are some areas of law of particular relevance to the legal needs of disadvantaged clients where it is relatively easy for potential pro bono lawyers to build on their generalist skills with a modest amount of training. This training is often provided by community lawyers from CLCs or LACs. For example:
The Homeless Persons' Legal Clinics in Brisbane, Melbourne and Sydney provide training to participating lawyers on issues such as social security, mental-health legal issues, housing and tenancy, victims of crime assistance and fines and infringement notices.
Lawyers from Street Law in the ACT provide training on working with disadvantaged clients to lawyers in several firms. The training involves role plays and provides a very practical insight into issues to which lawyers working with largely commercial clients would not normally be exposed to.
Some firms organise training for their lawyers to participate in particular pro bono services, for example, to provide advice and assistance at a CLC or at some other community advice clinic,8or to provide assistance in a particular area of law, such as, migration law.9 Firms may make their pro bono training available to lawyers in other firms, as well as to their own lawyers.
For more case studies see What Works, Chapter 21 Outreach and Chapter 22 Secondments.
An advantage to the lawyers and their firm is that by participating in training to equip them for pro bono legal work, as well as by actually doing the work in an area in which they do not usually practise, they can develop important transferable legal skills (for example, in communication and representation) and take the knowledge and skills they have gained back to their firm.10 Other areas in which training can assist a pro bono program include:
client interaction, including interviewing and communication,11challenging behaviour and divergent expectations;
the legal aid system, including eligibility for legal aid, and the role of CLCs, key referral agencies and welfare and other client support services; and
matter debrief or 'lessons learnt' sessions which can help inform participant's in the firm's pro bono program about a variety of issues including the needs of particular client groups and helpful approaches to certain matter types.
More information about managing the cultural differences between CLCs and law firms to enable them to work well together is provided in What Works, Chapter 12 Community Legal Centres.
Another advantage of participating in training with community legal organisations is the collaborative relationships that can be developed. The training programs referred to above frequently use staff from CLCs, LACs and other organisations, such as welfare rights, consumer credit and other legal centres and tenancy advice services, to act as trainers. Given the limited resources of these community organisations, cooperative inter-firm training programs are highly desirable.
These relationships can also be forged when firms or practitioners provide legal skills training to lawyers in community legal organisations in areas such as statutory interpretation, consumer credit and contracts. This leverages a firm's expertise to assist community legal organisation lawyers with practical issues which confront them, while benefiting lawyers who may have limited resources to attend external training sessions but need to ensure they are kept up to date with new developments in case law and legislation.
In the Australian Capital Territory free training is being provided by firms to their pro bono organisational and CLC clients, and to other interested stakeholders. This initiative was the result of discussions between the firms and the CLCs. Initially topics of interest were identified with firms committing to providing training. The Australian Government Solicitor provided the first training in December 2014 on key principles of statutory interpretation which covered a number of key pieces of legislation in the ACT that impacted on the work carried out by CLC lawyers. Following a further discussion about the best way to facilitate inviting CLCs to CLE training, it was agreed that invitations to training conducted internally by firms for their staff would be sent to the coordinator at the ACT Legal Assistance Forum (ACTLAF) which is a central body that comprises representatives of all legal assistance providers in the ACT. An email to ACTLAF is then automatically distributed to all Canberra-based CLCs.
For more information about firms providing training to community organisations, see What Works, Chapter 29 Community Legal Education.
COMPLEMENTARY PARTNERSHIPS
Partnerships between pro bono lawyers and community sector or LAC lawyers can involve an exchange skills and knowledge, enabling pro bono matters to be taken on that would otherwise be difficult.12
Such arrangements could involve firms providing research support or case mentoring to lawyers based in a community organisation or a LAC with the conduct of a matter,13 or could involve some kind of co-counsel arrangement.14
A lawyer from a community legal organisation with good technical knowledge of an area of law (as well as the other skills of a LAC lawyer) could benefit from a partnership with an experienced litigator. Alternatively, the strengths of the firm and CLC could be applied to different stages of a matter. For example, in one case a CLC acted and obtained certain orders for a client in an area of law in which they had expertise. The firm then assisted the client with the enforcement of those orders.
If a CLC is looking to develop a new program in an unfamiliar area of law, a firm with expertise in that area could partner with the CLC to provide training to CLC lawyers and to the firm's lawyers who are seconded to the program.15
For a case study on firms providing full-time/long-term support to CLCs, see What Works, Chapter 22.5.2 Kingsford Legal Centre and Herbert Smith Freehills.
In the co-counselling model, firms and CLCs work together to undertake public interest litigation either for an individual client or as a law reform initiative. Typically, the CLC does the initial work establishing the merits of the case or issue and maintains the client relationship. The firm may then give written advice, do background research and draft court documents as required. The firm or the CLC (or both) may be on the record. In this way, the pro bono provider increases the capacity of a community legal organisation to address unmet legal need by undertaking public interest litigation, with a contribution of expertise, skills and other resources. While there are some clear benefits to this partnership model, there are also limitations.16
Lawyers undertaking pro bono legal work should consider whether they need to take into account any particular needs of their client: for example, clients with a culturally and linguistically diverse (CALD) or Indigenous background; mental health issues or disabilities; homelessness; or experiences as a victim of torture. Special considerations will need to be factored in when working with clients in any of these areas. Some examples of these considerations are set out in more detail below. Lawyers should also check whether there are any specific State or Territory based legislative requirements, for example, obtaining working with vulnerable client checks,17 before undertaking pro bono legal work for these clients.
WORKING WITH CLIENTS FROM CULTURALLY AND LINGUISTICALLY DIVERSE OR INDIGENOUS BACKGROUNDS
When working with pro bono clients from CALD or Indigenous backgrounds, lawyers should be sensitive to issues around communication, including matters such as body language and what may be culturally acceptable to the client.
The following are some suggestions for working effectively with clients from CALD or Indigenous backgrounds:18
If possible, do some prior research to understand the client's community profile, such as their country's history, population, ethnic groups, religion, traditions, beliefs and attitudes. Data on community profiles and cultural and religious information can be sourced from State or local government agencies.
Be welcoming. Try and build rapport with the client through engaging in a culturally relevant manner, such as learning to use basic, common greetings in the client's own language, and pronouncing the client's name correctly. Give consideration to the appropriate way of addressing the client. Always use titles on the first meeting and ask the client how they prefer to be addressed.
Create a comfortable environment for the client. For example, organise the seating so that you as the lawyer sit beside the client and not at the end of a long table away from the client.
Use plain English and short sentences and avoid unnecessary legalistic language or use of acronyms. Speak clearly and if necessary pause between segments or sentences to allow time for understanding. If necessary, repeat key concepts. Do not raise your voice or speak loudly.
Check the client has understood what has been said, for example by asking an open question, such as 'What is your understanding of the discussion so far?'
Be aware that cultural differences exist, for example maintaining eye contact may not be appropriate in all cultures or physical contact, such as shaking hands, may be an unfamiliar custom.
Be prepared to spend longer in an interview than you anticipated.
Whenever possible, provide written information in the language preferred or best understood by the client.
Specific training can assist lawyers to more effectively communicate with CALD clients. For example, Justice Connect, as part of its Migrant Outreach Service, Advice, Information and Community education (MOSAIC) program, regularly provides the lawyers who attend its clinics with such training.19
CLIENTS REQUIRING INTERPRETER SERVICES
When working with clients from CALD or Indigenous backgrounds prior consideration may also need to be given as to whether an interpreter is necessary. If possible, try and ascertain before your initial meeting the level of a potential client's ability to communicate in English and what language is spoken by the client. In relation to Aboriginal people, the Productivity Commission noted that:
The use of interpreters may not overcome communication barriers since not all communication is verbal. The use of body language, such as hand gestures and movement of the head and eyes, is an integral part of communication for many Aboriginal people. The presence of elders can also influence the effectiveness of communication with Indigenous people and the justice system.20
If language issues are identified, it is not acceptable to use a friend or relative of the client to interpret (other than, for example, making an appointment), which can compromise the process of taking instructions, especially in matters involving family dispute or where there is a power imbalance in the family. A professional interpreter should be used, and the pro bono budget may need to accommodate the cost of providing one.
This section discusses the availability of interpreters and provides some tips for working with interpreters effectively.
Accreditation of translators and interpreters
The National Accreditation Authority for Translators and Interpreters (NAATI) is an Australian association which attempts to establish professional standards for interpreters and translators. NAATI accreditation can be obtained by passing a NAATI test or by completing studies at an approved Australian institution.
There are four levels of accreditation with NAATI. The lowest level, Para-professional Interpreter, is for general conversations and not sufficient for legal work. The level for legal interviews is Professional Interpreter and Translator (formerly known as Level 3). Conference Interpreters and Advanced Translators are at an advanced professional level for more complex or technical material. The highest level is Conference Interpreter (Senior) and Advanced Translator (Senior).21
National and State-based services
There is a national interpreter and translating service available throughout Australia called TIS National, the Telephone Interpreter Service National. It provides limited free interpreters to community agencies. Individuals and private businesses can access TIS National but they must pay to use it. As at April 2016 the current standard charge for using TIS National is $27.17 per 15 minutes. After-hours and on-site interpreting is more expensive.22 The phone number is 131 450. TIS National has panels of interpreters in every language available 24 hours a day, every day of the year. These interpreters are linked by telephone to the client. TIS National can also provide on-site interpreters for a fee.
There are State-government-based agencies that provide interpreting services. They usually charge private businesses for their services. In most States and Territories CLCs have arrangements for interpreters to be provided for free for certain legal issues.
In addition to the National and State based services there are a number of private interpreter and translation services available, which are often competitively priced. Costs may be recoverable through disbursement assistance schemes.23
Courts' and tribunals' provision of interpreters
The law has generally recognised that criminal defendants have the right to an interpreter, and courts will organise and pay for interpreters, where needed, in criminal matters. The provision of interpreters by courts and tribunals in civil matters is less certain. In the Federal Circuit Court, the Court will pay for interpreters assessed to be essential, when their engagement is authorised and booked by court staff. The Court will not pay for an interpreter booked by a barrister or lawyer, nor for a preferred interpreter selected by a lawyer in addition to an interpreter provided by the Court. Where a lawyer considers that the services of an interpreter may be required, the lawyer should request the Court authorise and book the services of the interpreter.24
Some tribunals, for example the Administrative Appeals Tribunal, and the Federal Court may organise for interpreters where one is needed but the individual cannot afford to engage one.
If an interpreter is necessary in a particular case, pro bono lawyers should raise this in advance with the particular court or tribunal to see whether the service will be provided. In some courts clients will have to organise and pay for interpreters themselves.
Using interpreters
Using interpreters effectively is a skill. Lawyers, paralegals and administrative workers should be trained in using interpreters. The National TIS website contains tips for how to effectively use interpreters.25 Some key points to remember are:26
Use professional, trained interpreters, not family members or friends as this may cause conflict and confuse matters.
If the case is of a sensitive nature such as an interview relating to sexual assault or incest, ensure that an interpreter of appropriate gender, cultural or religious background is provided.
Brief the interpreter before the interview about the nature of the case and the purpose of the interview. Decide in advance whether consecutive or simultaneous interpreting will be used.
Arrange the seating to enable direct communication between you and the client. Frequently a triangular arrangement will be effective.
At the beginning of the interview you should introduce yourself and the interpreter and explain the role of each and how the interview will be run.
Speak in the first person to the client and use 'you' when referring to the client. For example, 'Please tell me what you did next …'.
Maintain eye contact with the client if this is culturally appropriate.
Use short sentences and allow time for the interpreter to interpret.
Avoid any legalese, jargon or slang.
Do not speak louder when using interpreters; speak slowly and naturally.
Ask the client to repeat back to you (through the interpreter) their understanding of what has been said to ensure that they understand.
Stop the interview if the interview is not working and go over how to use interpreters with the client or interpreter.
CLIENTS INTERVIEWED AWAY FROM THE OFFICE27
In some circumstances a lawyer will have no choice but to interview a client away from the office, in an environment where the adjustments suggested above cannot be made. This might be in a community centre, police station or the client's home. In many of these cases it will be difficult for the lawyer to create a private environment in which to take instructions. However, every effort should be made to put the client at ease and ensure that others nearby, unless the client has consented otherwise, cannot hear the contents of the discussion.
If the other parties in the room interfere with the interview, such as police officers or officials, the lawyer should address this and potentially make a formal complaint.
CLIENTS WITH DISABILITIES
Some clients have disabilities that may affect their cognitive capacity and which impact on their ability to work with a lawyer.
There are many different ways of defining disabilities. Generally definitions relate to diagnostic criteria that identify the specific disability and, in many cases, the resulting functional limitation or impairment. However, many other definitions exist and these are usually linked to the provision of services and supports to individuals. For example, a typical recipient of a disability support pension will need to demonstrate a physical, intellectual or psychiatric impairment and be unable to work, or be retained for work, for 15 hours or more per week at or above the relevant minimum wage within the next 2 years because of impairment.28 The Disability Discrimination Act 1992 (Cth) contains an extremely broad definition of disability, encompassing any loss or malfunction of any part of the body or mind.29 The Australian Bureau of Statistics reports that approximately 18.5 percent of the Australian population has a disability of some kind.30
In general, however, a disability can be described as a condition, disease or illness resulting in some kind of limitation or impairment of a person's functional ability when compared to a person without a disability.
There is a great diversity of disabilities from those which result in a person being completely dependent on others for most or all of their daily needs to those which are less evident and which have very little or no impact upon a person's capacity to live independently.
While it is not necessary for legal practitioners to have an exhaustive knowledge of disabilities in order to provide legal assistance to a person with a disability, it may prove helpful to develop a basic understanding of some of the more common disabilities. It will also be helpful to know which disabilities may give rise to particular needs for clients when seeking legal assistance.
While it is not always possible to neatly compartmentalise disabilities, most disabilities will fall within one or more of the following broad categories. It should be remembered though, that some people have multiple disabilities across these categories, and some new sub-categories are emerging, such as behavioural disabilities.
This broad category includes disabilities affecting the body, or a part or function of the body and that result in limited physical capacity and/or mobility from the loss of a limb, to those caused by disease or illness such as HIV/AIDS. Although difficult to estimate and survey, physical disabilities affect approximately 15 percent of the Australian population.31 Many of the issues affecting people with physical disabilities relate to: access to the built environment, or medical treatment and care, or illnesses and chronic disease, or compensation, physical rehabilitation, injury and trauma. Generally speaking, this category of disability would not affect legal competence or cognitive capacity; however, notable exceptions include acquired brain injury and the late stages of muscular dystrophy.
PSYCHIATRIC DISABILITY
Commonly termed 'mental illness', this category includes conditions such as schizophrenia or depression that affect a person's thoughts, emotions, perceptions and/or behaviour. Such disabilities affect approximately 20 percent of the Australian population.32 Psychiatric disabilities can be episodic, with patients displaying few, if any, positive symptoms at other times. Many of the issues affecting people with psychiatric disabilities will be related to voluntary/involuntary treatment, family and criminal law, financial management and discrimination. Many psychiatric disabilities don't affect legal competence and cognitive capacity; some do or only do so sporadically.
This category includes disabilities that affect a person's competence, cognitive capacity and social and adaptive skills. Intellectual disability may affect a person's ability to learn, understand information, read and write, understand consequences, plan ahead, and adapt to new situations. A person's intellectual disability may not be obvious to a lawyer on first meeting but an awareness of the likelihood of the disability will generally arise from interaction with the client.
The definition of intellectual disability includes impaired intellectual function (generally regarded as an IQ below 70) and deficits in functional ability. Conditions resulting in intellectual disability include Down syndrome and some kinds of autism and learning disabilities. The impact of intellectual disability is best assessed by a psychologist. Intellectual disability affects approximately 2.9 percent of the Australian population. 33
Many of the issues affecting people with an intellectual disability are related to access to information and education, discrimination, residential support services, community participation and integration, guardianship and administration, Centrelink, capacity and consent. In most cases an intellectual disability will not affect legal competence but a lawyer may need to adjust communication to ensure a client with an intellectual disability has the maximum opportunity to exercise legal competence. However, for some people with an intellectual disability, legal competence may be an issue. By definition cognitive capacity is limited in people with an intellectual disability.
NEUROLOGICAL DISABILITY
This complex category refers to an impairment or limitation due to injury or illness affecting the central nervous system, including the brain, and includes multiple sclerosis, Parkinson's disease and dementia. There is very little information about the numbers of people affected by neurological disabilities. Many of the issues affecting people with neurological disabilities will relate to advances in medical treatment, ethics and treatments, degenerative disability and genetic predisposition. In some cases there will be no impact upon legal competence and cognitive capacity while in others there may be reduced or lost capacity over time.
SENSORY DISABILITY
This category includes many of the more familiar disabilities such as deafness and blindness. These disabilities affect a large proportion of the population particularly as people begin to age. Many of the issues affecting people with sensory disabilities will relate to access to information, access to education, communication, and technical and other aids/adjustments. There is no impact upon legal competence or cognitive capacity, however, some people who are deaf and blind may have received less education or social interaction and may experience barriers communicating with others.
LEGAL COMPETENCE AND COGNITIVE CAPACITY
There are some disabilities that may have an impact on how a lawyer deals with a client, obtains instructions and provides advice. Where a client's disability has a significant impact on their comprehension and thought processes — or cognitive capacity — this may impact upon their ability to provide sound instructions.34 Information about specific disabilities can be accessed through various sources, for example, the Mental Health Council of Australia, Alzheimer's Australia and the National Council on Intellectual Disability.
WORKING WITH CLIENTS WITH A DISABILITY AFFECTING COGNITIVE CAPACITY
A diverse range of disabilities may affect cognitive capacity and it should not be assumed that clients with a disability will all have the same needs. For example, a person with schizophrenia who is not actively symptomatic may experience no difficulties with cognitive capacity whilst a person with intellectual disability may appear extremely compliant but not be able to understand what is happening. The following points regarding the ways cognitive capacity may affect your client are worth considering:
The client may take longer to learn things, especially new information.
They may have difficulty understanding abstract concepts.
They may have difficulty reading and writing.
They may have a short attention span and might be easily distracted.
They may find it difficult to understand complex questions and instructions.
The disability may affect how the person talks.
The client may find it difficult to maintain eye contact.
The client might find it difficult to adapt to new situations.
A person with limited cognitive capacity will be able to provide instructions, give evidence and make decisions about the progress of their matter to varying degrees depending on the level of their capacity, whether they are affected by their disability at the time and on how well the lawyer communicates with them.
CLIENT INTERVIEWS AND SPEAKING ON THE PHONE
A person with a disability that affects cognitive capacity may have a short attention span and may have difficulty staying on the same subject. The person may appear to understand and provide the appropriate responses when in fact they have not understood. They may not have absorbed information discussed at a previous meeting. When speaking to or taking instructions from a client with limited cognitive capacity, the following strategies might assist:
Allow additional time for interviewing your client.
Select a quiet, private area free of distractions and interruptions.
Allow the person to tell their story, saving questions until the end.
Don't interrupt or finish the person's sentences for them.
Use open rather than leading questions.
Use simple words and sentences — one idea at a time.
Avoid abstract concepts and don't use jargon.
Check whether they understand by asking them to repeat the information in their own words or by asking follow-up questions.
Be aware that the client may need more breaks than other clients.
Be aware that the client may not wish to identify as having an intellectual disability or may wish to hide the effect of their disability. He or she might give a false appearance that they understand what is being explained to them.
Be observant of the client's non-verbal behaviour.
WRITING LETTERS TO THE CLIENT
Find out about the client's skill level in reading and writing. Where the client has difficulty reading, information contained in any letter can be communicated in person or on the phone (see Communication below).
Client agreements can be presented in a format that assists understanding, for example, by:
using at least 14 or 16 point type;
using line spacing of at least 1.5;
using a clear and easy-to-read font;
using short sentences and short paragraphs;
using headings;
writing in point form;
using plain English and everyday words; and
including only necessary information in the letter.
SUPPORT PERSONS
A person with limited cognitive capacity may bring a support person with them to an interview or to court. One of the roles of the support person is to assist the client in communicating with other people but it is important for lawyers to speak directly to the client and not the support person. A support person can reinforce the issues discussed with a lawyer through the stages of the court process and can be invaluable in assisting the lawyer to communicate effectively with their client. They should be able to indicate when they believe the client does not understand what is being said or when the client needs a break. It may be appropriate in some circumstances to ask the support person to sign a confidentiality agreement.
It is important to explain the court process to the client and, if possible, to arrange for the client to visit the court room in advance of the hearing. If a person has a support worker or caseworker it may help to have them present at the hearing.
CLIENTS WHO MAY LACK CAPACITY
Most people with limited cognitive capacity have the capacity to instruct a lawyer, particularly if care is taken with communication. There will, however, be some people who, because of the level of their disability, lack the capacity to instruct effectively.35 Some people will have had a guardian or financial administrator appointed who may need to be informed of decisions or matters affecting the client, for example, if legal proceedings are being contemplated. Lawyers may also need to be cognizant that in some cases, a client with a disability may be subject to a trusted person's exploitation or undue influence, such as family members or 'friends'.
Some people with disabilities use communication aids such as a voice synthesiser or a communication board. They will need to show the legal representative how to work with the aid and some may take longer to communicate than others. Time should be allowed for this in consultations.
Some people who are Deaf will require an AUSLAN (Australian sign language) interpreter who will need to be arranged prior to consulting. The cost of the interpreter will most likely need to be covered by the legal practitioner or firm. They may also need to communicate using a TTY (telephone typewriter) rather than a telephone or use text messages on a mobile phone. An alternative is the National Relay Service, a free Australia-wide telephone access service available to facilitate communication with people who are Deaf or have a hearing or speech impairment.36
Some people with speech impediments or who are 'non-verbal' may require a specialist interpreter either in person or on the telephone. These services will need to be arranged before the consultation and are generally cost free.
It is important not to assume that people who are non-verbal also have limited cognitive capacity.
Some people will require information in alternative formats such as large print, audio recording, Braille or a specific electronic format. It may be the responsibility of the legal practitioner to provide these alternatives.
Some people with disabilities need to take treatments and/or medications that may affect their behaviour or comprehension. This can sometimes be confused with the effects of the person's disability upon their capacity. If a person appears affected by medication or treatment, legal practitioners should ensure their communication with the client is effective to the extent that they are confident that they are acting according to the client's instructions, and in the client's best interests.
ACCESS TO COURTS AND OTHER VENUES
Physical access to a court or venue and access to information provided within these environments should be considered. The client should be asked if they have any particular access needs such as always having an accessible toilet facility nearby.
FOR FURTHER ASSISTANCE
There are specialist CLCs in some States that work specifically with clients with disabilities. Lawyers from these centres may be able to provide further information about working with clients with a disability. Contact the National Association of Community Legal Centres to find out the contact details of any such service in your State.37
CHALLENGING CLIENT BEHAVIOUR
Sometimes lawyers in the firm find it challenging dealing with pro bono clients. This can be a source of stress and frustration to the lawyer, and can affect their level of engagement with the program, despite a genuine desire to address the unmet legal needs of those experiencing disadvantage.
For example, the client may be reluctant to provide important information about their matter. They may be difficult to contact. Some clients find it difficult to understand what type of information is relevant, and as a result, obtaining instructions can be a slow process. At times clients may be impatient, frustrated or irritable.
These behaviours may be due to:
linguistic factors, cultural factors or a disability;
the client's difficult personal circumstances arising from disadvantage, marginalisation or other personal hardship;
the client being unused to dealing with lawyers, legal processes and the legal system;
the stress of being involved in a protracted legal dispute, or
previous tramuna the client might have experienced.
The risk of these problems arising can be minimised if, before the client meets the pro bono lawyer, the client or the matter is assessed and triaged by the referral organisation (CLC or PBRO) or by the pro bono coordinator.
After the matter is assessed, it's important to ensure the client understands the terms of engagement, and how the matter will be conducted, including particular timeframes or deadlines.38 Explain why particular requests are being made, what the process is, the prospects of success, and what are the legal consequences of the client failing to cooperate.
If problems persist, the lawyer should discuss them with the pro bono coordinator. The coordinator may need to mentor the lawyer on how to work with the client, or, if appropriate, to meet with the lawyer and the client. Alternatively the coordinator may arrange for the matter to be managed by another lawyer. Discussing the problems with the referring agent will often be useful.
If necessary, the client may need to be reminded of the grounds on which the engagement will be terminated, as set out in the letter of engagement.
1.14.3 SELF-CARE AND RESILIENCE
It is important that pro bono coordinators acknowledge potential challenges or risks that lawyers may face when undertaking pro bono legal work, particularly for individuals experiencing disadvantage. As well as addressing particular client needs and managing challenging behaviours, training should ensure lawyers' own safety and wellbeing. It is important that training includes a component on self-care and resilience.
Pro bono clients may have faced a variety of traumatic or difficult circumstances which led them to seek legal assistance and a pro bono lawyer needs to be equipped to deal with this. By way of example:
Pro bono lawyers receiving referrals from the Cancer Council need to be able to assist clients with legal issues that may arise as a result of the illness. At times the lawyer may need to attend a hospital to visit a client who is very unwell to take instructions about the drafting of a Will or other end of life matters. In rare instances it is possible a client might pass away before the lawyer is able to fully attend to their legal needs.
Pro bono lawyers undertaking work for the Mental Health Legal Centre need to be able to assist clients who have been involuntarily detained for treatment because of their mental ill-health. A client with schizophrenia or psychosis, for example, may have some beliefs or ideas that seem unusual or foreign to the pro bono lawyer. Alternatively the client may seem detached from reality and it may be difficult without adequate training to assess their cognitive capacity to give instructions or to ascertain their legal issue or issues.
Pro bono lawyers assisting refugees with the immigration process may face difficult conversations with their clients about the trauma they suffered that led them to flee their country as well as trauma suffered on the journey.
Pro bono lawyers may be advised during the referral process or prior to their first meeting with a client about factors that could impact on the client's behaviour, but as this doesn't always occur, lawyers need to be prepared for all foreseeable circumstances. Often a clinic or CLC will provide training to pro bono lawyers before they take part in the service, and this training may include a discussion about the clinic/CLC's safety protocols, or the clinic/CLC's recommended strategies for dealing with the more difficult issues that may arise when assisting their clients. Pro bono coordinators should understand the level of training provided by the clinics/CLC and address any gaps through in-house training programs or otherwise. The need for in-house training may extend to matters assisting individuals that are referred to the firm.
The type of training provided to lawyers will depend on the nature of the pro bono legal services provided, but generally speaking the training should:
provide lawyers with an understanding of the key signs or symptoms of mental illnesses such as anxiety, depression, post-traumatic stress disorder and psychosis;
include some simple strategies that pro bono lawyers can use to empathise with, and manage, the needs of clients suffering mental ill-health;
equip pro bono lawyers to respond to clients that have suffered trauma; and
provide pro bono lawyers with strategies to respond to, or manage, difficult client behaviours such as aggression, threats of harm to themselves or others, and people under the influence of alcohol or drugs.
Pro bono lawyers should also be made aware of the risk of compassion fatigue or vicarious trauma, and the risk that certain pro bono matters may trigger an unanticipated emotional or physical reaction. As part of pro bono lawyers' training or the broader mental health program run by the firm, lawyers should be given strategies for looking after themselves, reducing their stress, recognising when further help is needed, and seeking that help.
In addition to formal training, firms should ensure the continual supervision and mentoring of pro bono lawyers, including providing lawyers with an avenue to debrief following any difficult experiences with clients.
Resources that clients can use to support their self-care and resilience include:
The Resilient Lawyer Manual, http://www.lawcover.com.au/wp-content/uploads/2015/09/3324-The-Resilient-Lawyer_V7.pdf;
Law Society of NSW website, Mental Health and well-being, http://www.lawsociety.com.au/ForSolictors/professionalsupport/supportingyou/mentalhealthwellbeing/index.htm;
National Centre for Suicide Prevention Training, http://suicidefirstaid.org.au/; and
Mental Health First Aid Australia, https://mhfa.com.au/.
1 National Pro Bono Resource Centre, Pro bono legal services in family law and family violence: Understanding the limitations and opportunities – Final Report, October 2013, p 76, http://probonocentre.org.au/wp-content/uploads/2015/09/Family-Law-Report-FINAL.pdf.
2 Australian Pro Bono Centre, Pro Bono Partnerships and Models – A Practical Guide to What Works, 2nd edition, LexisNexis, Sydney, 2016, http://probonocentre.org.au/information-on-pro-bono/our-publications/what-works/.
3 For more information about different models of pro bono legal assistance see Chapter 1.7 Current models of pro bono legal work and Australian Pro Bono Centre, above n 2, Part 4 Models of pro bono legal assistance. http://probonocentre.org.au/information-on-pro-bono/our-publications/what-works/
4 For example see the case study at Australian Pro Bono Centre, above n 2, 22.5.5 The Aged-Care Rights Service (now Seniors Rights Service) and Sparke Helmore. http://probonocentre.org.au/information-on-pro-bono/our-publications/what-works/
5 For example, see The Social Innovation Entrepreneurship and Enterprise Alliance, Social Enterprise: Doing business differently for a more inclusive society, www.employeeownership.com.au/wp-content/uploads/2015/08/Social_Manifesto_13.pdf.
6 For more information about how firms provide assistance to NFP organisations, see Australian Pro Bono Centre, above n 2, Chapter 28 Assistance to not-for-profit organisations and charities. http://probonocentre.org.au/information-on-pro-bono/our-publications/what-works/
7 National Pro Bono Resource Centre, above n 1, p 12. http://probonocentre.org.au/wp-content/uploads/2015/09/Family-Law-Report-FINAL.pdf.
8 See, for example the case study at Australian Pro Bono Centre, above n 2, 20.5.2 Refugee advice and casework service and Henry Davis York. http://probonocentre.org.au/information-on-pro-bono/our-publications/what-works/
9 For example Gilbert + Tobin trains its lawyers to become migration agents so they can assist the Refugee Advice and Casework Service.
10 See Australian Pro Bono Centre, above n 2, 20.2 Clinics: Benefits. http://probonocentre.org.au/information-on-pro-bono/our-publications/what-works/
11 For example, the Homeless Persons' Legal Clinic in Victoria organised a one-day training session for approximately 70 lawyers. This involved a number of the Clinic's clients discussing their experiences of homelessness, participating in practice interviews and providing feedback to lawyers on their interviewing skills.
12 See further Australian Pro Bono Centre, above n 2, Chapter 3 Importance of Relationships and Communication. http://probonocentre.org.au/information-on-pro-bono/our-publications/what-works/
13 See further Australian Pro Bono Centre, above n 2, Chapter 25 'Secondary consults' or 'phone a friend' assistance. http://probonocentre.org.au/information-on-pro-bono/our-publications/what-works/
14 See further Australian Pro Bono Centre, above n 2, Chapter 24 Co-counselling. http://probonocentre.org.au/information-on-pro-bono/our-publications/what-works/
15 See the case study in Australian Pro Bon Centre, above n 2, 22.5.3 Unfair Dismissal Project/Employment Law Advocacy Scheme (Redfern Legal Centre, Marrickville Legal Centre, Caxton Legal Centre, Darwin Legal Centre and Clayton Utz). http://probonocentre.org.au/information-on-pro-bono/our-publications/what-works/
16 For more information about co-counselling arrangements see Australian Pro Bono Centre, above n 2, Chapter 24 Co-counselling. http://probonocentre.org.au/information-on-pro-bono/our-publications/what-works/
17 For the relevant State legislation on working with vulnerable clients see: Working with Vulnerable People (Background Checking) Act 2011 (ACT);
Child Protection (Working with Children) Act 2012 (NSW);
Care and Protection of Children Act 2007 (NT);
Working with Children (Risk Management and Screening) Act 2000 (Qld);
Children's Protection Act 1993 (SA);
Registration to Work with Vulnerable People Act 2013 (Tas);
Working with Children Act 2005 (Vic); and
Working with Children (Criminal Record Checking) Act 2004 (WA).
While most State legislation governs statutory requirements for working with children, only the recent Tasmanian and Australian Capital Territory Acts have extended the protective requirements of the legislation to a 'vulnerable person,' which includes a child, or an adult who satisfies the relevant legislative requirement. These changes have facilitated increased statutory protection for vulnerable adults in society.
18 Central Coast Disability Network, 'What if a CALD Client should walk in our door?' – A Guide for Service Providers, www.ccdn.com.au/resources/57-qwhat-if-a-cald-client-should-walk-in-our-doorq-a-guide-for-service-providers.
19 See also Community Legal Centres NSW, Aboriginal Cultural Safety Workbook of Community Legal Centres, Sydney, 2016. For an example of challenges faced when providing advice to clients from CALD or Indigenous backgrounds see Australian Pro Bono Centre, above n 2, 22.5.1 North Australian Aboriginal Justice Agency and Ashurst. http://probonocentre.org.au/information-on-pro-bono/our-publications/what-works/
20 Productivity Commission, Access to Justice Arrangements Inquiry Report, Commonwealth of Australia, Canberra, 2014, p 763,
www.pc.gov.au/inquiries/completed/access-justice/report.
21 National Accreditation Authority for Translators and Interpreters Ltd, Outlines of NAATI Credentials (October 2010), http://www.naati.com.au/PDF/Misc/Outliness%20of%20NAATI%20Credentials.pdf.
22 For information on TIS including charges, see TIS National, Interpreting Service Charges, Australian Government: Department of Immigration and Border Protection, www.tisnational.gov.au/Agencies/Charges-and-free-services/Interpreting-service-charges.
23 See 1.12.4 Disbursement assistance.
24 See Federal Circuit Court of Australia, Federal Circuit Court Interpreter and Translator Policy, www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/about/policies-and-procedures/interpreters.
25 See TIS National, Working with TIS National Interpreters, Australian Government: Department of Immigration and Border Protection, www.tisnational.gov.au/en/Agencies/Help-using-TIS-National-services/Working-with-TIS-National-interpreters.
26 TIS National, above n 25. www.tisnational.gov.au/en/Agencies/Help-using-TIS-National-services/Working-with-TIS-National-interpreters
27 The Centre acknowledges the work of John Boersig in preparing the version of this section as it appeared in the second edition of The Australia Pro Bono Manual: A practice guide and resource kit for lawyers.
28 Department of Human Services, Australian Government, Eligibility for Disability Support Pension, Australian Government: Department of Human Services, www.humanservices.gov.au/customer/enablers/centrelink/disability-support-pension/eligibility (accessed 11 November 2015).
29 Disability Discrimination Act 1992 (Cth) s 4.
30 Australian Bureau of Statistics, Disability, ageing and carers: summary of findings 2012, 2012, http://www.abs.gov.au/ausstats/abs@.nsf/mf/4430.0.
31 Australian Bureau of Statistics, Percentage of Australians disabled due to physical health conditions decreased, Media Release, 4430.0, 16 December 2010, http://www.abs.gov.au/ausstats/abs@.nsf/mediareleasesbytitle/52CEC491F5BD0D54CA257C21000D88A2?OpenDocument.
32 The ABS reports that almost one person in five (20 percent) had a mental disorder at some time during the 12 months prior to the survey. See Australian Bureau of Statistics, National Survey of Mental Health and Wellbeing: Summary of Results, 2007, 2007, www.abs.gov.au/ausstats/abs@.nsf/Latestproducts/4326.0Main%20Features32007?opendocument&tabname=Summary&prodno=4326.0&issue=2007&num=&view.
33 Australian Bureau of Statistics, Intellectual Disability, Australia, 2012, 2012, www.abs.gov.au/ausstats/abs@.nsf/Lookup/4433.0.55.003 main+features102012.
34 See for example Ranclaud v Cabban (1988) NSW ConvR 55-385.
35 The Law Society of New South Wales has produced guidelines for solicitors about what to do if they believe that their client may not be competent to give proper instructions. The Law Society of New South Wales, Client capacity guidelines: civil and family law matters, http://www.lawsociety.com.au/ForSolictors/professionalstandards/Ethics/Protocolsguidelines/Clientcapacityguidelines/index.htm. As at November 2015 the guidelines are being reviewed.
36 See National Relay Services, Features of the service, http://relayservice.gov.au/about/features-of-the-service/.
37 See www.naclc.org.au or telephone (02) 9264 9595.
38 See 2.1.5 Letters of engagement.
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