Pro bono publico means “for the public good”. It is used to express the idea that lawyers and other professionals should contribute a certain amount of their services for free for the public good .

Attorney-General Philip Ruddock recently questioned the current mindset of pro bono services offered by lawyers. In particular, he criticised lawyers who act for refugees and “run hopeless proceedings in a bid to undermine laws with which they personally disagree.” He also criticised the Law Council of Australia for focusing on the question of David Hicks’s detention.

But, he said, there is no shortage of genuine cases – “a disadvantaged citizen victimised by a loan shark; a pensioner seeking a will. Yet these cases do not carry the same moral cachet.” And to make his argument, Ruddock quoted US writer PJ O’Rourke: “Everybody wants to save the world; nobody wants to help mum do the dishes.”   But how can you divorce your personal politics from your concept of the public good? Ruddock seems to be suggesting that lawyers should not question the actions of the Federal government or the executive. To me, it seems very important that lawyers do exactly that .   I agree with Ruddock that lawyers should not give refugees false hope by running useless proceedings. For that matter, lawyers should never give false hope to any client by running an utterly useless proceeding. But if there is some argument in favour of the refugee, isn’t it fair enough to try and challenge the decision? Just because Ruddock doesn’t agree with the cause on a personal level does not mean that it is without merit!   Nevertheless, I sometimes feel that lawyers can get carried away by the “s-xy” causes. I’m often telephoned by friends and acquaintances who have become embroiled in some legal matter. They call because they are terrified, and not sure what to do. They suspect that if they see a solicitor they might end up spending more money getting legal advice than they can afford – perhaps to no avail in the long run.   Most of these matters don’t involve fundamental human rights, they are everyday matters involving “small” amounts of money. I have seen a number of situations where unscrupulous operators have sought to bamboozle people with legal words and forms, making their claims appear “legal”. People who have been wronged think they have no leg to stand on, when in fact there are a whole raft of arguments in their favour. I would like to see greater publicity of the resources which are available to the public. There are many lawyers out there who are ready and willing to help, including those who work for, or volunteer for, the many community legal centres across Australia.

Lawyer Elizabeth Bennett writes:

The comments of Chief Justice Black, of the Federal Court appear to be apposite. In his view: “As a good barrister in the common law system you must work in frontier lands – those areas where incremental development of the law is possible but has not yet occurred. Good barristers are to be found where the boundaries of the known legal world are being ignored.”

It is the duty of a practitioner not to waste the Court’s time. True. But that is an exceptionally high bar – only the most absolutely clearly hopeless cases should be thought of in this way. It is not for a lawyer to be the Judge, jury and executioner for their client.

It is also the duty of a practitioner to put forward every reasonable argument. If a similar argument has failed in the past, that is no reason to abandon the entire area. Such an approach would leave the law mired in the 19th century. We owe a great many legal milestones to courageous barristers undertaking very difficult causes: Mabo and the Tasmanian Dams case come to mind. They happened only because lawyers (acting pro bono), challenged the accepted wisdom of the day.

To suggest that this is “moral vanity” is an insult to lawyers who donate thousands of hours every year to provide assistance to those who cannot afford it. Such a commitment goes beyond chardonnay socialism: it’s commitment to justice. The Attorney-General should not mock that commitment.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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