By Chinemerem Nnawuihe
1.0. Introduction
Pro bono in legal practice means, lawyers voluntarily contributing part of their time without charge or at a substantially reduced rate, to establish or preserve the rights of disadvantaged individuals and to provide legal services to assist Non-Governmental Organisations (NGOs) who represent the interest of or who work on behalf of the less privileged members of the society or other public interest organisations.
It involves the use of specific professional skills by lawyers to provide services to those who are unable to afford them and this distinguishes it from ordinary volunteer work.
Lawyers consider pro bono to be a valuable way to give back to the society and to help further the cause of justice.
Pro bono work may come in different forms:
• Preparation of Legal Information
• Summaries of Legislation
• Legal Research
• Advising
• Negotiation
• Drafting
• Representations or
• Advocacy.
One of the fundamental differences between a profession and other vocations is that professions are encumbered with ethical obligations.
For the legal profession, it has the obligation of facilitating the operation of the Rule of Law of which access to justice is a key component. Every lawyer has a professional responsibility and duty to provide legal services to those unable to pay.
A lawyer is expected to provide free legal services to:
- Indigent persons – persons of limited means
- charitable, religious, civic, educational organisations – organisations that are involved in social causes.
There is also an obligation on lawyers to make financial contributions to support organisations that provide free legal services to indigent persons.
2.0. Pro bono: International context
The International Bar Association IBA has constantly stressed the need for lawyers to become more involved in pro bono as part of their obligations to humanity.
It has done this through different fora, seminars and conferences around the world.
The IBA drafted the IBA Pro Bono Declaration approved by the IBA Council in October 2008.
The Declaration “reaffirms the legal profession’s commitment to pro bono legal service as an integral part of the profession and calls on lawyers, law firms and bar associations to provide pro bono legal service, which is work by a lawyer of a quality equal to that afforded to paying clients, without remuneration or expectation of remuneration and principally to benefit poor, under privileged or marginalised persons or communities or the organisations that assist them”.
The Declaration calls on governments to: “promote and support the pro bono efforts of the legal profession in their countries and to desist from in any way deterring the provision of such service. Further, governments should assist and encourage pro bono legal service through measures such as treating it as not being subject to tax and where such service is presently taxed, such taxes should be rescinded”.
The IBA Annual Conference of 2015 held in Vienna Austria had a session on Monday, 5th October 2015 titled: “International pro bono – charity doesn’t have to begin at home”.
An award is set aside every year for lawyers who are championing the cause of pro bono across the globe.
This shows the importance of pro bono in the legal profession globally.
3.0. Pro bono in Nigeria
The concept of pro bono is not new to Nigerian legal practice but it still remains at its infancy because of a number of factors ranging from lawyers’ unwillingness to do pro bono work to lack of a statutory framework making it mandatory for all lawyers to set aside a number of hours each year for pro bono work.
According to the Nigerian Legal Aid Council, only 15% of Nigerian lawyers do pro bono work.
Apart from law clinics offered by various NBA Branches during their Annual Law Week programmes, only a few Law firms have designated desks that handle pro bono cases.
From the above background, it becomes even more imperative that as lawyers, we must meet up with our professional responsibility of giving free legal services to the indigent.
We must give something back to the society which forms part of our Corporate Social Responsibility (CSR) – especially for a Law firm but it goes beyond CSR, which only comes with a moral obligation. There is an ethical and professional burden on Lawyers, which can only be discharged by doing pro bono work.
As we are taking something from the public we must also give back to it. They are mutually exclusive and compliment each other.
The mindset of a trader is only to make gains but as professionals while making gains, we must also deliver part of our services free to deserving members of the public. This creates access to justice which is one of the components of the Rule of Law. There cannot be Rule of Law without the championing of pro bono.
4.0. Advantages of ENGAGING IN pro bonO
For any Law firm that is engaged in pro bono services, it comes with immense benefits –
- A positive image and a very good reputation in the general public and within the legal and pro bono communities.
- It will be an inexpensive and efficient way of professionally developing its lawyers thus becoming a win-win for it. As the firm is providing free legal services to the indigent, lawyers in the firm will also get a hands-on experience on a variety of significant legal matters.
5.0. Factors TO BE CONSIDERED before ENGAGING IN pro bono
In an increasingly competitive legal market, lawyers and Law firms are under great time demands to provide their paying clients with the best, fastest and most reliable legal services possible.
As a result, to help meet the needs of the poor, lawyers and Law firms must sacrifice a portion of time they would have spent on billable matters or attend to the normal demands of life such as family, friends and self.
Thus, before engaging in pro bono services, a lawyer/Law firm should reconcile the competing time demands of running a law practice and engaging in a successful pro bono project because pro bono work requires sacrifice, dedication, time and money.
5.1. Conflict of interest(S)
While taking on pro bono matters, a lawyer/Law firm must ensure that a pro bono case would not present a conflict with work being done for paying clients.
It is good to identify if a case is pro bono before work begins on a matter rather than taking up a case and a client says he cannot pay. It doesn’t look tidy and it’s not good for business.
Cases should be properly classified. The same level of dedication, professionalism and diligence must be applied to both paying and non-paying clients. Both should be given equal status to ensure that no conflict of interest(s) arises. It is the best practice to track and handle a pro bono case in the same way you would any other case.
5.2. Cost and Time
The truth about cost is that, for a lawyer or a Law firm that wants to do pro bono, there is no tailored guide to follow. It is totally at the discretion of the individual lawyer and the Law firm to set out what it will cost them to do pro bono based on the resources available. There must be appropriate budgeting and the realistic setting of funding expectations is essential because pro bono is expensive. This is where the great sacrifice expected from the legal profession comes in. For a firm or lawyer that wants to do pro bono you must first of all see pro bono as a charitable work of which there is a high expectation of performance and delivery. If it is looked at in terms of “Naira” and “Kobo” then no lawyer will do pro bono since they have the option of not doing it free. The focus should be on the need to serve humanity with our special skill. A certain percentage of a lawyer’s earnings is expected to be given back to society in the form of free donation of legal services.
This aspect of pro bono is what has made it unattractive to most lawyers in Nigeria. Most Law firms in Nigeria are small and they struggle to stay in business. So it becomes almost impossible for them to take on pro bono cases. The argument among most lawyers is that it will be difficult for them to sacrifice the time they would have used to work for their needs to do pro bono. The general consensus is that, most lawyers cannot sustain pro bono work with their lean resources.
Therefore, before taking on pro bono cases, a lawyer/Law firm should plan it in such a way that they will “bite the much they can chew” especially when it comes to in-house pro bono clients that is, clients other than those assigned or “allocated” to a firm or a lawyer by the Legal Aid Council of Nigeria. That way, a balance can be maintained between cost and free legal services.
The time expended on pro bono matters should not be more than what would have been spent ordinarily in doing a matter for a paying client. For lawyers or Law firms using the Hourly Billing System, there may be a challenge of knowing the number of the Annual Billable Hours to allocate to pro bono. This is because the Hourly Billing System is alien to Nigeria. The usual practice is the Lump Sum Billing which was inherited from Britain.
The beauty of time with regard to pro bono in Nigeria is that unlike in certain jurisdictions there is no mandatory number of hours given to a lawyer to do pro bono. The Nigerian Bar Association NBA in its Pro Bono Declaration of 1st January, 2009 tried to provide a guide by stating that lawyers should devote at least 20 hours per annum to do pro bono but this is not mandatory. Lawyers in Nigeria have a wide latitude of discretion to choose how much of their time they will sacrifice for pro bono work. This makes it easy for them to plan and strategise on how to match pro bono work with the resources and time available to them.
In the United States of America for instance, under the American Bar Association (ABA) Ethical Rules, lawyers are recommended to contribute at least 50 hours of pro bono service every year.
Rule 6.1 of the American Bar Association Model Rules of Professional Conduct, lays out the obligation of attorneys to engage in pro bono.
In the state of New York, for example it is now a requirement for those applying to be attorneys to complete 50 hours of pro bono services in order to qualify.
In Nigeria, the reverse is the case as lawyers have the discretion to choose the number of hours they are willing to offer for pro bono.
5.3. Risks
The risk involved in doing pro bono cannot be more than the risk taken in doing cases for paying clients. The difference between pro bono clients and the regular clients is that for the former we offer our services free but for both we exert the same amount of time, knowledge, resources and efficiency expected of us professionally.
The possible risks that may exist are:
- Lack of appreciation
Some of the clients may not understand the level of sacrifice a lawyer has made to provide them with his services free of charge.
- Suspicion and lack of confidence
This arises where a lawyer is appointed to represent an indigent person by the court or by the Legal Aid Council and because he didn’t get the lawyer himself, the lawyer will spend some time building some level of trust between him and his indigent client.
The simple reason for this is, since the client is not paying he may feel that his case will not be handled diligently.
The risk lies more with the non-paying client because he is not sure that his case will be treated with the same level of dispatch as it would be done if he is paying. To put it mildly, he is at the mercy of the lawyer.
The general lack of awareness among the indigent persons of the existence of pro bono and how it works is the cause of this. This is because of the preconceived notion that a lawyer must be paid which gives them a measure of assurance that their work will be done properly.
These risks can be mitigated by having a close interaction with pro bono clients, educating them of their right to free legal services under our legislative instruments such as the Legal Aid Act 2011.
6.0. Conclusion
Pro bono is a duty the legal profession owes the world and it is a limited resource. Its aim should be to address the greatest unmet need, an objective that can only be met through efficient information sharing and brokering between pro bono seekers and providers. Pro bono work is not a substitute for adequate government funding of legal aid, both must co-exist for the legal assistance of under privileged members of the society.
In the absence of legal aid that is, government funded project to help indigent persons with legal assistance, there is a professional obligation on lawyers to provide free legal services to those who cannot afford it.
There is no short cut or escape route for lawyers on the issue of pro bono either as individual lawyers or as a firm of lawyers. It is either you are donating part of your time for pro bono work or you are donating your money to non-profit organisations who are doing pro bono as it is done in South Korea – it is mandatory in South Korea for lawyers who cannot donate their time to donate a stipulated amount of money for pro bono work.
This article was inspired by:
- Section 18(1) of the Legal Aid Act 2011 which states as follows : “A legal practitioner who institutes or conducts pro bono cases on behalf of persons entitled to legal aid under this Act shall register such cases with the council which shall keep record and monitor the progress of such matters”. Section 18(2) makes it mandatory for any legal practitioner applying to be appointed to the rank of a Senior Advocate of Nigeria “to show evidence of diligent conduct of not less than three pro bono cases in the legal year immediately preceding his application”. Section 18(3) provides that: “it shall be a professional misconduct for any legal practitioner to abandon or otherwise neglect such cases”.
- Section 38 of the Rules of Professional Conduct For Legal Practitioners, 2007 which states that: “A lawyer assigned to defend an indigent prisoner shall not ask to be excused except for substantial reasons, but shall exert his best effort in the defence of the accused”.
- The Nigerian Bar Association (NBA) Pro bono Declaration of 1st January 2009 which states that: “Members of the NBA have a responsibility to provide pro bono legal services. This responsibility stems from the profession’s role and purpose in society, and from its implicit commitment to a fair and equitable legal system……..Provide, on a pro bono basis, more than 20 hours or three days of legal services per individual lawyer per annum, or in the case of law firms, institutions or other groups of lawyers, an average of more than 20 hours per lawyer per annum. This commitment should be met within three months of endorsing this Declaration”.
References
- Legal Aid Act 2011.
- Rules of Professional Conduct For Legal Practitioners, 2007.
- Nigerian Bar Association NBA Pro bono Declaration, 1st January, 2009.
- International Bar Association IBA Pro bono Declaration, 2008.
- Office of the Head of Records and Pensions, Legal Aid Council of Nigeria.
- Blue Print for Constructing a Pro bono Project in a mid-size law firm (Online).
- A project of the Standing Committee on pro bono and public service, American Bar Association Centre for Pro bono (Online) 1997.
- Pro bono Guide (An Introduction to Pro bono opportunities in the law firm setting) Second Edition by Kevin Lapp and Alexa Shabecoff (Online).
- How to create an effective Law firm pro bono program by Melanie Kushir (Online).
- Flash: The Fordham Law Archive of Scholarship and History. Lawyer and Public Service, The Historical Perspective on pro bono lawyering (Online).
- Meeting of Senior Officials of CommonWealth Law Ministries, Marlborough House, London 18th to 20th October, 2010 (Online).
- The ABC Manual – Starting and Operating a Business Law Pro bono Project 2001 ( Prepared by A Business Commitment. A partnership between the American Bar).
- Association Section of Business Law pro bono Committee and the National Legal Aid and Defender Association (Online).
- The ABCs of creating a pro bono policy for your Law firm (ORG).
- Pro bono project of Legal Aid of East Tennessee (Online).
