Pro Bono Legal Services Should Not Be Mandatory for Lawyers - Research Paper Example

Pro Bono Legal Services Should Not Be Mandatory For Lawyers For: Word Count: 4991 October 24, Table of Contents Table of Contents 2 Introduction 3 Problem statement 4 Problem Justification 4 Defining Pro Bono 5 The Need for Legal Representation 7 Increasing Number of Claimants in need of pro bono services 7 Moral and Political Assertions 8 Mandatory Pro Bono 8 Government funding challenges 10 Unavailability of Legal Funding 10 Professional responsibility 11 Economic Push 11 Current inadequate pro bono services 12 Need to Improve Legal Services 12 Pro Bono as a Positive Duty Act 13 Obligations to the Poor 14 Specialized accountability annulled by qualified lawyer attrition 14 Unfair burdening of lawyers 15 Unfair Workloads 15 Non-existent Privileges 16 Violation of the lawyer’s personal autonomy 16 Servitude 16 Oppression 17 Government responsibility assumption 18 Conclusion 19 19 Introduction Access to legal services is a priority in governance. One of the characteristics of legal services is equality in service provision.1 The legal systems have been faulted for failing to ensure equality in legal service provision, in both developed and developing worlds. The problem identified under provision of the legal services is a general lack of access to legal service for those people who need these services the most.2 The victims of the current legal system are the powerless, and poor. Claimants who cannot afford legal fees and do not qualify for any legal aid are sometimes forced to appear in court without any counsel, or are assigned public defendants who have been associated with unenthusiastic performances. In addition, high legal costs have resulted in cases of public interest being solved out of court and consequentially neglected.3 Increasing legal services demand and a shortage in the government’s legal aid funds has continuously shifted the burden to the private firms. The workload remnant is composed mainly of claimants unable to meet the legal prerequisites and fees needed to process the cases. Professionally, lawyers have the obligation of ensuring justice is promoted equally, and this responsibility is partly met by engaging in pro bono work.4 The question to be answered then is “Should pro bono legal services be mandatory for lawyers?” Such proposals in legal practise demand lawyers to engage in a predetermined billable hours of practise in various cases on a pro bono basis5. This requirement is imposed on lawyers to get them involved in cases without financial benefits or charges directed towards the involved parties, and only upon the completion of the recommended pro bono work does a lawyer get the licence to practice.6 Problem statement The challenge to pro bono cases is the mandatory stipulation, since the ethical argument supports taking up pro bono cases, but hard lining that a specific number of hours should be practised imposes on professionalism. Lawyers are part of society, and it would be ignorant to state that they are not aware of the increasing number of people who cannot meet the legal fees of counsels. Lawyers use the ethical forum to argue the necessity of pro bono cases.7 There have been several proposals regarding resolving the problem of increasing numbers of claimants unable to apply for legal services.8 Providing legal services free of charge is a recommendation to resolve the cases of unable claimants, but it also means that lawyers do not get any compensation for their work.9 Advocating for legal reforms in the legal system and/or specific laws, state-funded welfare, legal services provision, and the establishment of an alternative legal system that is friendly to society are some of the proposals that have been proposed to cater for the problem of growing financially and legally challenged claimants.10 Problem Justification Feasibility of pro bono cases is challenged with the increase of the very people the technique is designed to serve. Challenges in the monitoring and management of quality services have been raised, as well as the imposition of the requirement on private firms. The question assessed in this study lies in the legality, applicability, as well as justification of imposing the pro bono obligation on practitioners, despite the ethical element. Defining Pro Bono The definition of pro bono is stems from the phrase pro bono publico, which when translated is ‘for the public good’. Following the origin of the phrase, it is impossible to derive the applicability of the idea. Practical purposes demand a redefinition of pro bono, and various attempts to quantify, qualify, and standardize the term have been made through different stages of legal growth. Clarification of pro bono is needed, and different Law Councils have been involved in establishment of a universal definition of pro bono cases.11 A case is considered pro bono in the following conditions:12 i. The counsel, lawyer or legal representation handles a case, or provides legal advice, where there is no fee charged to the client, or the charged fee is subsidised, considering: a. The client is unable to access the legal system or courts via any other means, and/or b. The case involving the client covers or is connected to an issue that is considered of public interest ii. The lawyer is engaged in matters of legal education and/or reform of the law free of any charges to the community iii. The client is a charitable or community organization and the lawyer provides legal advice of representation in court without any financial expectations.13 The concept of a pro bono case must consider the above conditions fully, as any deviation from the stipulations is considered as a failure in the definition encompassing pro bono publico. The result of ignoring the stipulations is having the case declassified as a pro bono case.14 The public and legal practitioners make a common mistake by considering any case that has no fee or charges appended to it as being pro bono. Not all cases where no fees are charged, or the fee is largely subsidized, are considered pro bono, on the argument of no fees. This argument can be applied in cases or legal advice that is offered to friends and family as favours. Such a claim is not supported by the ‘public interest’ requirement and therefore is not accounted for in pro bono hours, as the case does not provide the public with any relief or benefit or disadvantage in the event of losses. Personal issues, even when involving the public, but not invested in the public interests do not qualify as pro bono.15 Pro bono cases are undertaken with one’s interest directed towards society. Having society benefit from collective social justice and access to legal information encompasses the meaning of pro bono. Just as practice based on kinship and friendship is not considered as pro bono, so is the cork categorized as charity work. Charity work does not attract any legal skills, and is thus not considered as hours spent working for public, since there is no application of legal skills.16 There exists a degree of obscureness in the existing definition of pro bono work, and accepting a blanket definition is unjust to some. Ensuring that the case meets the criterion discussed above is a means by which cases can be considered pro bono in nature.17 The Need for Legal Representation Laws and the legal process that follows the enactment and adherence to the laws bind any legitimate civil society. There is a need for legal redress where the numbers of persons who cannot access the legal system continuously increase in number. Supremacy of the law follows the effectiveness of legal operations and accessibility, such that a case where the trial is dependent of the resources and wealth of an individual is unequal in justice. The equal representation of every member of society provides justification for members of society to submit to the legal system. A society that lacks equality is volatile and the members do not have any obligation to obey the law, as history has indicated with the Arab spring. Failure of the legal system is characterized by violence that seems to capture the social issues and the inequality experienced in such a context.18 Increasing Number of Claimants in need of pro bono services There is developing concern over the increasing number of people who cannot afford legal services, especially after economic depressions. Since the cost of legal representation remains high, a cavity between the wealthy and destitute continues to expand, and the government is faulted for the difference in society.19 Although the legal system is designed to ensure the equality in rights for all persons, the concept is hollow if not everyone has the rights to access and benefit from the legal system as well as the lack of a system to enforce the rights. The need for legal representation underpins the society, as the rule of law’s maintenance is compromised in the absence of widespread availability of legal services. Society will fail if most people fail to access legal services, from poverty or any other reason.20 Pro bono services are considered to interrelate as well as endorse public interest via two methods. The first way in which the pro bono services elicit public interest is the realization of making it to established legal facilities for the deprived and underprivileged. Low income is not considered a barrier to legal services with the introduction of pro bono services, as the beneficiaries of the approach are not asked to foot unmanageable bills. Secondly, pro bono services relate to the interest of the greater public, meaning that the beneficiaries to a case stretch beyond the claimant(s), and include the public at large.21 Moral and Political Assertions Moral and political assertions contribute to the popularity of pro bono cases. The popularity of the pro bono cases depends upon the moral and political temperatures. The capitalistic and socialist nature of society also contributes to the popularity and executions of pro bono cases in reference to the number of cases to handle as well as their attitude in handling such cases. Where the legal fees are relatively high, there is a likelihood of little contributions to free legal services offered based on personal will. Imposing a requirement in pro bono cases follows attempts to solve the problem of unprivileged persons accessing legal services, by using licencing constraints22. However, this approach may mean a lack of motivation for legal practitioners and resulting suffering to the community in the long run. Mandatory Pro Bono Mandatory pro bono is a proposal that is sought to cope with the increasing number of financially challenged people. Pro bono practise is imposed on all private practitioners, as a strategy in which the poor are provided the opportunity to present cases that have public interest at heart. This approach takes a similar approach to corporate social responsibility, but in the case of lawyers it incorporates legal skills.23 Pro bono expectations from lawyers is an annual quota in which the practitioners are expected to record and present the cases prior to renewal of a legal licence to practise for the following year. Under such proposals, there is a lack motivation as the government obligates the lawyers, corresponding to meeting the bare minimum number of cases recommended. The practitioners will only engage in the cases where they feel that the resource needed is far less than the firm’s capability such that the expenses will not have a significant impact on the annual revenue.24 Revision of the law has been encouraged following difficulties in the government meeting legal demands. The inability of government in providing funding for legal aid to the unprivileged is the source of the imposition on the private firms. Additionally, firms have been known to scout the most qualified lawyers and enrol them in private practise, leaving the pool with less qualified lawyers. Mandatory pro bono provides the community the opportunity to gain benefits from qualified barristers since their deal covers the public interests free or at a low charge.25 Although mandatory pro bono cases are seen as an imposition, they have an advantage to the business as the company cases profile expands to include public interest founded cases, as opposed to individual-benefit cases. The happiness of lawyers upon recommendations of engaging in free legal services is subject to discussion, just as the results of such cases. Government funding challenges The government is expected to provide funding for legal representation (such as it is the case with public defendants).26 However, economic challenges mean that the funding set aside for legal matters is often consumed in other pursuits or is hardly enough to meet the demand by underprivileged persons. The demand that is placed on the government increases greatly each year with an increase in population, and challenges in economic growth. The demand is not only in quantity, but also in diversity. Expansion of law, into different branches of specialization, demands employment of similarly diverse lawyers to cover these fields. Government funds are spread ever thinner with such advances, and the funding for legal aid, which is an alternative for claimants is hardly enough27. The challenge is further complicated by a rising cost of legal representation: wage and salary increase, expenses, and other fixed and variable costs. Unavailability of Legal Funding Legal aid funding as an option offered to the public to facilitate acquisition of a legal practitioner to aid in legal concerns. There are explicit prerequisites that must be met for the government to provide the legal aid, and priority applies to these cases. Not everyone who applies for the legal aid will be successful, since the demand surpasses the supply. This funding is categorized under social services, and the government has to make decisions based on the priority to other social services. The availability of legal aid is a challenge that has seen the provision run out, such that lack of aid has become a permanent fixation. Diminishing funds of legal aid has resulted in turning to mandatory pro bono cases as a solution to the problem. Moreover, the requirements for the legal aid are revised to be more stringent to minimize the number of claimants who qualify for the funding.28 Professional responsibility Professional responsibility is a concept that would affect the decisions that are made by lawyers as they practise. The lawyers’ code of conduct gives guidance to lawyers, on a moral, social, and professional level. By definition, lawyers are instruments of justice, who are expected to provide the ‘push’ desired in impartiality.29 The professional code of conduct, and career responsibilities of law encompass a provision that emphasizes on the prevention of an injustice.30 There are scenarios where an injustice may occur, especially in the absence of funds to cater for the legal charges. Financial challenges become a hindrance to the legal system, with the affected lacking access to the law, from failing to get professionals to advise or represent them in a court case.31 Following the professional responsibility aspect, lawyers are expected to help the poorest members of society towards attaining justice, and thus pro bono cases should be the norm. Economic Push Principally, a lawyer is expected to serve the public’s interest before the self-interest, but this is often over ridden by an economic desire. Serving the public interest in legal practice is seen as professionalization of a firm. The concept is derived from the Latin ‘professionem’ which encompasses the assumption of a public declaration in an occupation. Firms seeking to be professionalized have to show attributes of serving basic social interests, monopolistically controlled, and self-regulation.32 The conception of this approach is that the government facilitates lawyers to occupy a position of privileged from assuming a position of defending the community33. By guarding the uprightness of the legal system and the principles applied in legal impartiality, the law firms are responsible for ensuring that everyone has the ability to access systems for the society equally, meaning that they have to take up cases where the claimants are challenged, and cannot access the system. Current inadequate pro bono services The current level of pro bono work is unfounded, inaccurate and unstandardized. There are several challenges to the pro bono cases and analysis since there is a lot of confusion regarding what pro bono work encompasses. The very nature of pro bono cases also hinders the ability of government and organizations to collect data on the cases being undertaken by private firms. This is additionally made difficult by the lack of a standardized system by which such cases can be reported. Combining the absence of a system and the shaky definition of pro bono cases causes hesitation and challenges in subscription to pro bono matters.34 Formal pro bono scheme have been developed, but there are firms that do not subscribe to such practises opting to engage in a scheme from where originality can be derived, by the legal representative taking on a case, thereby allowing the private firms the opportunity to grow in confidence. Need to Improve Legal Services Involvement of firms in pro bono work is encouraging, but there is evidence of an overwhelming demand for improvements in the legal representation, as the number of people without counsel appearing in courts and cases has been on the rise. The unavailable legal aid presents a challenge to practitioners in the inconsistency in the practitioners taking up pro bono cases, from uncertainty in the nature of the case.35 Performing adequate levels of pro bono work is a challenge to the private firms, since the burden sharing in the forms is another challenge that is expected with the private firms. Involvement of monitoring bodies that would ensure equal burden sharing in firms would facilitate the attitude and commitment to pro bono work, as opposed to straining specific individuals in the firm teams. Reducing the stress suffered by a specific subset of lawyers is another challenge that should be overcome in the reformation processes.36 Pro Bono as a Positive Duty Act Morally, pro bono work is a respectable and encouraged act, but having the government mandate that the private forms must meet a certain quota of pro bono service to obtain a licence attracts the question of freedom. Questions of whether the government should have the ability to force the private practitioners into taking up pro bono cases, as opposed to individual choices, have been tabled and debated for several years. Individuals, regardless of profession have been provided with a right to act under one’s willingness, provided one does not violate the sanctity or harm another37. The government mandating pro bono cases to organizations is in direct contrast to the right of freedom, even if the argument proposed focuses on the firm and not the individual. Under morality and ethics, engaging in pro bono acts can be justified, although there should be a provision for practitioners to engage in pro bono work, when they are able.38 Obligations to the Poor In the definition of law and legal process, accommodating the poor falls under ethical and moral behaviour, and is expected of the legal practitioners. This traditional definition of law and legal processes introduces the concept of a positive active duty. By using this argument, the proper professional conduct expected of the lawyers is integrated ion the nature of the cases that have been chosen by individuals or firms, with respect to the community. Pro bono cases, under the traditional definition cease being recommendations, and are now expected conduct, meaning that failure to partake in offering free and/or subsidized legal advice is considered misconduct. The pro bono argument has a business perspective, of which it is seen as a direct interference with the practise. The objection of mandatory pro bono responsibilities follows that there is an in appropriation that is directed towards the legal vocation.39 Specialized accountability annulled by qualified lawyer attrition Law as a career appears to have had its original meaning and purpose eroded by the diversification of responsibilities. The institute of law has changed as a result, from being a profession to a business. Most firms are established with the sole responsibility of raking in cash, and thus the preference of ‘big corporation’ cases.40 Pro bono cases are viewed as an expense and waste of resources, since the benefits that are realized are towards the society and not the firm. Since pro bono cases are highly subsidized or free of charge, they do not contribute to the revenue of the firm, but are rather considered an expense. Dilution of the legal profession has further driven up the competition for the high paying cases, which are hard to come by, and neglect of the social oriented cases.41 The reduction in lawyers’ obligation in society has further driven business away from the firms, due to upcoming professions such as conveyance, which strips the lawyer a legal responsibility. The government and society are subjected to the argument that opening up the legal professions to competition from other professions and trades will continuously diminish service to the community, thereby diminishing protection to the weak. The relationship between state and profession has been strained with the dilution of professions, which cannot be helped with the increasing need to create jobs. The government is left to perform and act of balance between providing work via diversification or losing service to the community via opening up professions for competitive purposes. The government is expected to provide the legal profession with a monopolistic environment, to secure continued service to the community under the pro bono approach. By eroding the legal career, the state loses its interests and should not compel the professionals to engage in pro bono activities, as there are no distinguished benefits for the legal profession.42 Unfair burdening of lawyers Unfair Workloads The mandatory pro bono approach has an unfair aspect to it, in the context of society and profession. Lawyers shall be burdened, with a responsibility that no other profession is tasked with in the attempts to solve social problems43. The pro bono scheme would impose work, which is not compensated, by the government on the lawyers. There is no other profession on which the pro bono effect is felt as significantly as with the lawyers. This tasking is an unfair burden upon the lawyers who deserve compensation for any input they have towards a service responsibility, personal, public or communal. In the instance that these types of duties are delegated, fairness would only be possible by providing lawyers with a privilege that is not accorded to other members of society, else it seems unjust to the profession as well as the practitioners44. The basic rights of lawyers should be upheld and compensation should be provided for their efforts. Non-existent Privileges Identification of the privileges that the lawyers should enjoy over other industries is an effort that has been rarely made, and the result is a case of bitter workers. Lawyers must be viewed as any other profession, who need compensation for survival, and forcing their hand in pro bono work only heightens the tension between the profession and state. To ensure the continued efficiency of the legal system, a provision for lawyers as they partake in pro bono cases should be incorporated in the law, to protect the integrity of the work relations. Pro bono responsibilities, when mandatory, should attract privileges that are accorded to the legal practitioners, as a form of payment, which would be a show of respect to the profession as well as basic rights to the practitioners, who are human.45 Violation of the lawyer’s personal autonomy Servitude Mandatory pro bono service can be equated to involuntary servitude. The professional autonomy of the legal practise is compromised with the inclusion of mandatory pro bono service, as it is tantamount to stealing the property of another. Logic dictates that the performance of the victims, in this case lawyers, drops or translocate the suffered losses to others, thus increasing legal fees and charges. Arguments that would support the mandatory engagement in responsibilities for any profession would be only founded in the fact that such an imposition causes the participant happiness. A study on whether lawyers are happy when forced to take up pro bono cases would support the actions of a government seeking to mandate private firms into the practise. Individuals are autonomous and have been accorded rights to be as such, unless in the event that they pose harm to others, and placing self-interest before public interest is no crime.46 Oppression In considering just the theory above, mandatory pro bono is impractical as well as oppressive. The impracticality and oppressive nature of the mandate can be undermined by the application of the schemes of service. It may be argued that having a system to facilitate the management of pro bono practices would lower the inconveniences accrued by practitioners. Following the fact that private firms are free to run the venture as they see fit, the government has to assume the role of managing the scheme service and bear the cost of such an endeavour. Minimal inconveniences to the lawyers may help eradicate the claim of oppression, as with the eradication of incurred losses, unhappiness can rarely be proven. In addition, there are social benefits that are likely to alleviate the adversity associated with pro bono cases that do not contribute to the revenue of a firm, even with investments in time and resource. Government responsibility assumption Mandatory pro bono services imposed on private law firms attracts discussions on the probable case of the government assumption of its responsibilities. Fears of the government shifting its responsibilities to the private sector are a mutual reluctance towards the proposition of mandatory pro bono cases. The government, in its portfolio, is expected to cater for the needs rising from other social pressures as well as other economic demands, has chances that are high that no contribution towards the pro bono cases will be recorded. The case of the legal aid funding serves as a previous endeavour where the government appears to have neglected its responsibilities with the introduction of the mandatory pro bono cases47. The private sector will be burdened with numerous legal cases, and without a proper standardization system towards defining pro bono cases. Mandatory pro bono will reduce the pressure on the government, lowering the commitment towards the cases, and at the same time increasing resentment towards the government by the private sector. Lawyers have a responsibility in facilitating justice, but this is achievable can only if the government providing the means. Abrogation from duty is expected with the government, considering the multiple roles that are played by the state, and the private sector will be forced to meet the social obligations. Following the track record of most governments and government backed projects, there is a universal opposition towards the move of mandatory pro bono on private firms48. Court battles against the government may ensue from attempts of introducing mandatory quotas on the pro bono cases, based on interference in business and abusing of rights, as it is expected that workers get compensated for their input in any work environment. Despite a yearning to help the underprivileged, there is hesitation from the private sector, since the government tends of offloading to the private sector the government’s responsibilities is eminent. Conclusion Pro bono services to the underprivileged are essential to the growth of the legal vocation, and it should not be viewed as a supplement to any government-based legal aid, such as the use of a government-employed representative. The role of pro bono to the legal profession is encompassed in self-fulfilment of the law, and community service ensuring the relevancy of the process remains even with changes to the legal system and structures. Introducing mandatory pro bono services to private firms is setting up for failure, considering the low levels of confidence showed by the legal community in respect to the government providing aid. Although pro bono services are expected of the legal community, emphasis should be placed on the nature of the service as opposed to the delivery. Understanding the nature of pro bono services will help involved persons understand the role played by government and private firms with respect to representation. Law as a profession is essential to society, and access to legal services should be equal and available to all, but emphasis must also be placed on the practitioners as being professionals as well as human. Prior to proposals of mandatory pro bono services, a system where the impact of such a requirement would be evaluated and quantified must be established. Considering current systems, mandatory pro bono services should not be incorporated in legal practise. Read More