Lawyers who volunteer at a community legal service can gain a great sense of purpose and satisfaction by using their time and expertise to advance social justice and give back to the community.
“I think lawyers who engage in pro bono service to protect those who cannot help themselves are truly the heros and the heroines of the legal profession”: Janet Reno, the first woman and 78th US Attorney General
This quote may strike a chord with civic-minded solicitors wanting to use their legal skills to help those experiencing financial difficulty or social disadvantage access the legal system or otherwise protect their legal rights. The Law Society’s Professional Support Unit (PSU) often receives inquiries from solicitors wanting to set up a community legal service (CLS) for this purpose.
CLSs provide legal advice and assistance to people who cannot afford legal practitioners in private practice. Without proper legal advice and representation, a legal problem can escalate and cause unfortunate outcomes – families can break down, unnecessary eviction of residents can take place and imprisonment can occur, to name a few.
An important reminder is that although a CLS and its legal practitioner associates may be providing legal services on a pro bono basis, the CLS and its associates are nevertheless bound by the regulatory requirements under the Legal Profession Uniform Law (NSW) (LPUL) and its rules and regulations.
This article aims to provide regulatory guidance to lawyers who are considering setting up a CLS.
What is a CLS?
To be registered and provide legal services as a CLS, a proposed service needs to meet the definition of a CLS under the LPUL.
A CLS is defined under section 6 of the LPUL as follows:
community legal service means an organization (whether incorporated or not) that—
- holds itself out as—
- a community legal service; or
- a community legal centre; or
- an Aboriginal and Torres Strait Islander Legal Service;
whether or not it is a member of a State or Territory association of community legal centres, and whether or not it is accredited or certified by the National Association of Community Legal Centres; and
- is established and operated on a not-for-profit basis; and
- provides legal or legal-related services that—
- are directed generally to people who are disadvantaged (including but not limited to being financially disadvantaged) in accessing the legal system or in protecting their legal rights; or
- are conducted in the public interest.
STEP ONE
Deciding on an appropriate entity, targeted clients and funding
Here are some questions you need to ask yourself before setting up a CLS. Consider:
- the appropriate entity for your CLS. Should it be an incorporated association under the Associations Incorporation Act 2009 (NSW), or a company limited by guarantee under the Corporations Act 2001 (the most common structures for not-for-profit entities), or should it be a non-distributing co-operative or an Indigenous corporation?[1] Further information about common not-for-profit legal structures is available on the Australian Charities and Not-for-profits Commission website.
We recommend obtaining financial and legal advice on the use of different entities for the provision of community legal services as they can have different tax, reporting and liability obligations.
- who your target clients are. Do you want to set up a generalist CLS that provides general legal assistance to residents in a specific geographic area? Or a specialist CLS that focuses on a particular area of law or a particular demographic?
- the funding to sustain your CLS. The National Legal Assistance Partnership 2020-25 (NLAP) administers the Commonwealth funding to community legal centres. The Community Legal Services Program also grants funding for community legal centre national service delivery and program support activities that complement the delivery of community legal services by the states and territories.[2]
STEP TWO
Service model[3]
There are certain conditions that must be met in order for an organisation to be considered a CLS.
- Not-for-Profit
You need to prove that your CLS is established and operated on a not-for-profit basis.[4] The constitutional documents of your CLS entity will be relevant to evidence this.
- Provides legal services to disadvantaged people or conducted in the public interest
You need to prove that your CLS provides legal services that satisfy paragraph (c) in the definition of CLS in section 6 of the LPUL. Again, the constitutional documents of your CLS entity will be relevant.
STEP THREE
Registering a CLS with the Law Society
Submit a written application in the form of a letter to the attention of the Director, Licensing and Registry of the Law Society of NSW, to register your proposed service as a CLS. Applications should be sent by email to [email protected].
The application should explain how the proposed service satisfies the definition of a CLS under section 6 of the LPUL, including:
- how the CLS is holding itself out as a CLS or community legal centre or an Aboriginal and Torres Strait Islander Legal Service;
- evidence that your CLS is established and operated on a not-for-profit basis;
- how the CLS will provide legal services for the disadvantaged or conducted in the public interest;
- who the supervising legal practitioner[5] at the CLS will be. The supervising legal practitioner must hold a principal practising certificate, which authorises the practitioner to supervise others.
If registered, the CLS will be contacted by Lawcover to arrange for professional indemnity insurance for services provided by the CLS.
STEP FOUR
Practising Certificate Conditions
Any Australian legal practitioner who provides legal services through a CLS in NSW needs to hold a practising certificate issued by the Law Society of NSW or a practising certificate issued by the designated regulatory authority in another Australian jurisdiction.
This requirement applies even if the Australian legal practitioner is providing legal services on a pro bono[6] basis or working as a volunteer at a CLS.
All categories of practising certificates issued by the Law Society of NSW permit an Australian legal practitioner to work as a volunteer at a CLS, provided that:
- there are no conditions on their practising certificate prohibiting them from doing pro bono work or from working for a CLS, and
- they are covered by an approved professional indemnity insurance policy for that work (see section 82(2)(b) of the Legal Profession Uniform General Rules 2015).
An Australian-registered foreign lawyer can practice foreign law as a volunteer at a CLS under section 70(1)(c) of LPUL.
A government lawyer who is qualified as an Australian lawyer[7] and authorised to practice under the Commonwealth and state law without an Australian practising certificate should apply for a volunteer practising certificate with the Law Society of NSW to work as a volunteer or do pro bono work in a CLS.
A volunteer practising certificate holder is still required to comply with CPD obligations under the Legal Profession Uniform Continuing Professional Development (Solicitors) Rules 2015, despite only providing legal services as a volunteer or on a pro bono basis.
STEP FIVE
Professional Indemnity Insurance
Under section 213 of LPUL, a corporate CLS or each Australian legal practitioner that engages in legal practice for an unincorporated CLS must hold or be covered by an approved professional indemnity insurance policy.
Professional indemnity insurance is required even if legal services are being provided on a pro bono or voluntary basis.
A CLS must either:
- if it is incorporated, take out its own professional indemnity insurance policy with Lawcover; or
- if it is not incorporated, ensure that each Australian legal practitioner who engages in legal practice for and on its behalf is covered by an approved policy[8]; or
- apply to the Council of the Law Society of NSW for an exemption under Rule 82 of the Legal Profession Uniform General Rules 2015. An application must show that the CLS is accredited with Community Legal Centres Australia and evidence of insurance held through the National Insurance Scheme of Community Legal Centres Australia.
Community Legal Centres Australia and its accreditation scheme
Community Legal Centres Australia is an independent and non-profit organisation that supports the Australian community legal sector. Their website at https://clcs.org.au/ has useful information and resources regarding setting up a CLS. They also have a national accreditation scheme, which has an industry-based certification process.[9]
Further support and guidance
If further support or guidance is needed, practitioners can contact PSU for assistance.
PSU provides free and confidential guidance, support and legal information to legal practitioners seeking assistance with their obligations under the legal profession legislation in the areas of costs, ethics and regulatory compliance.
| Costs | (02) 9926 0116 | [email protected] |
| Ethics | (02) 9926 0114 | [email protected] |
| Regulatory Compliance | (02) 9926 0115 | [email protected] |
[1] See “Which incorporated legal structure should you choose? (NSW)” published by Justice Connect on structure for not-for-profit organisation- https://content.nfplaw.org.au/wp-content/uploads/2023/04/Which-incorporated-legal-structure-should-you-choose-NSW.pdf?_ga=2.44354340.1646756111.1693978322-818324328.1691989912
[2] Further information can be found in this link- https://www.ag.gov.au/legal-system/legal-assistance-services/community-legal-services-program
[3] See paragraphs (b) and (c) of the definition of community legal service in Sec 6 of the LPUL
[4] Australian Taxation Office has a section in their website on “Not-for-profit”- https://www.ato.gov.au/Non-profit/ and that section contains examples of not-for-profit and dissolution clauses that can be used or adapted in constitution or rules for not-for-profit organisation
[5] Under sec 117 of LPUL, a CLS or its governing body is required to have one Australian legal practitioner who is employed by the service or is a member of its governing body and is designated by the governing body as the supervising legal practitioner for the service and responsible for the provision of legal services by the [something is missing here]?
[6] Sec 8 of the Legal Profession Uniform Law(NSW) defines the meaning of pro bono basis.
[7] See the definition of Australian lawyer in Sec 6 of the Legal Profession Uniform Law (NSW).
[8] Lawcover offers an approved professional indemnity insurance policy for community legal services operating in NSW and registered with the Law Society. For information and assistance, please contact Lawcover directly on 1800 650 748 or [email protected]
