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Work undertaken by a legal practitioner for little or no payment is provided 'pro bono' - that is, it is performed on a voluntary basis to help the court and the community. Many legal practitioners perform pro bono work from time to time. Some barristers provide voluntary assistance with criminal law issues outside normal business hours through the Duty Barrister Scheme. The Law Society publishes a list of law firms and practices who may be able to provide after-hours assistance in criminal matters.
In addition to these services, the Bar Association and the Law Society also operate their own pro bono schemes.
Litigants should consult a scheme directly to determine their eligibility for pro bono assistance.
The Uniform Civil Procedure Rules enable the court to refer litigants to a lawyer. The terms of the referral might ask the lawyer to provide you with legal advice, or to represent you at a hearing, or both.
Pro bono legal assistance (under Div 9, Pt 7 of the UCPR) is an option available to the court to help in the administration of justice. It is not a legal right. You should not view the Supreme Court's decision to grant you a referral for legal assistance as an indication that you have won your legal proceedings.
Anyone can apply for legal assistance under Div 9, Pt 7 of the UCPR, but if you have obtained this type of assistance within the last three years, a judge must be satisfied that there are exceptional circumstances that justify another referral. This restriction on the provision of assistance is set out in Rule 7.36(2)(2A) of the UCPR.
You must file a notice of motion seeking a referral for legal assistance under Div 9, Pt 7 of the UCPR. A filing fee is payable on the notice of motion. If you are unable to pay this fee, you may apply to have it waived, postponed or remitted. You may also file a supporting affidavit (UCPR form 40) outlining how you have been unable to obtain legal advice or representation through any other means (for example, you're ineligible for Legal Aid, or the Bar Association's or Law Society's pro bono schemes).
Your application will then be given a hearing date and a judge will determine your application and the extent of the assistance you should receive (that is, whether the referral will be for legal advice, representation, or both).
If a judge decides you should receive legal assistance, his or her Honour will notify the Registrar of this determination. The Registrar will refer the matter to the NSW Bar Association for management under its Legal Assistance Referral Scheme Guidelines.
A representative from the Bar Association will contact you and ask you to complete this application form, which asks you to provide your contact details, general details about your dispute and upcoming listings, and basic financial information about your income and expenses. This form will help the Bar Association locate a lawyer with both the time and expertise required to help you so it is important that you complete as quickly and accurately as possible.
The Bar Association will contact you, and update the Court, once they have located a lawyer able to assist.
If a legal assistance cannot be found within 28 days of the date of the judge's referrral for legal assistance, the Registrar can order that your referral is terminated under rule 7.36(4A) of the UCPR. If this happens, and you still need pro bono assistance, you would have to file a notice of motion (UCPR form 20) seeking a new order for a referral for legal assistance. A judge can only make another order for legal assistance if he or she feels exceptional circumstances justify this second referral. You would need to prepare an affidavit (UCPR form 40) explaining why you feel another referral is justified.
If your lawyer stops providing legal assistance to you, unless the court says otherwise, your referral for legal assistance is terminated on the date your lawyer withdrew from your case. If this happens, and you still need pro bono assistance, you would have to file a notice of motion (UCPR form 20) seeking a new order for a referral for legal assistance. A judge can only make another order for legal assistance if he or she feels exceptional circumstances justify this second referral. You would need to prepare an affidavit (UCPR form 40) explaining why you feel another referral is justified.
10 Sep 2023
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