Specialist family law practitioners play a vital role in providing free and low cost services
A new research report by the National Pro Bono Resource Centre has found that specialist family law practitioners in private practice are doing a considerable amount of free and discounted work, and further that this work is ‘embedded’ into their regular casework, meaning they have little capacity to take on more pro bono legal work.
The research sought to find out why obtaining pro bono legal assistance is family law matters is so difficult. In looking to the large and mid-sized law firms with structured pro bono practices it found that they face significant constraints. They do not have the expertise to take on family law work, there is a lack of discrete tasks, and many view family law as government’s responsibility and therefore outside the scope of their pro bono policy.
The research found that underlying the difficulty of obtaining pro bono assistance is the unique nature of family law practice and its clients. Family law is a highly specialised practice area that requires knowledge of a considerable body of law. Matters are often complex and inter-related, and parties’ circumstances regularly change. Family law clients can be demanding and highly emotional requiring specific skills to manage client relationships.
As one family law practitioner said:
“Being a family law practitioner is almost a lifestyle choice. It’s as much about how you provide services as it is about the specialised area of law. Pro bono is woven into family law. The clients need a really high level of support and even if the client runs out of funds to pay me or reaches their [legal aid] funding cap you still have to help. Because what’s the alternative – ditching a client and leaving them with no outcome or a poor one? That’s not the kind of lawyer I want to be.”
The research found that in the family law system, which is geared towards early intervention and alternative dispute resolution, there remained an unmet need for legal representation.
As one judicial officer said,
“Only the most difficult cases end up in front of a judge… individuals experiencing sometimes severe social disadvantage who have been unable to settle their matter, or for whom mediation has not been appropriate or has been unsuccessful… if you end up in front of a judge, you really do need a lawyer to represent you.”
The research also found that pro bono legal services were easier to obtain in matters relating to family violence. This was partly due to the availability of discrete tasks in legal matters relating to family violence. Also, structured pro bono practices often direct their limited pro bono resources to assisting particularly vulnerable or disadvantaged client groups. Assisting with legal issues relating to family violence may be a part of that focus.
However, the research indicated that interconnectedness of family law and family violence issues can also cause difficulties for pro bono service providers in family violence matters.
Centre Director, John Corker said, “What this report does is make clear why pro bono in family law is so difficult to obtain, particularly from the large and mid-size firms. In doing so, it shines a light on the considerable free and discounted work being done by family law practitioners that they rightly regard as pro bono legal work but is seldom recorded or recognised as such”.
“The research suggests that a greater understanding and recognition of this work is important. Further research into how family law practitioners work may lead to identifying ways that the legal profession and government could better support their efforts, and make the best use of their capacity to address the unmet legal demand”, he said.
The issues of government funding, legal aid criteria for means and merits tests in family law matters, and the role of duty lawyers and community legal centres provide the context for this research but were matters beyond its scope.
The research included structured interviews with over 60 stakeholders with a direct involvement in pro bono and/or the family law system, including specialist family law practitioners, community legal centres, legal aid commissions, large and mid-size law firms, the federal family courts, pro bono clearing houses and referral schemes, the police, government bodies and legal academics.
The full report, Pro bono legal services in family law and family violence: Understanding the limitations and opportunities, and an executive summary are available from the Centre’s website.