* Any views expressed in this opinion piece are those of the author and not of Thomson Reuters Foundation.
Pro bono practice should focus on the poor in South Africa
In South Africa, new legislation has been introduced to regulate community service. Under section 29 of the Legal Practice Act of 2014, community service is set out as a requirement for all legal practitioners, including “a minimum period of recurring community service upon which enrolment as a legal practitioner is dependent”.
The term “recurring community service” could be taken to mean pro bono service, although it is not clear if that is the intention. Current Law Society rules require practicing attorneys to undertake 24 pro bono hours per year while Bar Council rules require advocates to undertake 20 hours per year.
There has been some discussion among stakeholders about how pro bono legal services should look under the new rules. Some believe these services should comprise direct legal representation, advice and mediation for people who cannot afford legal fees - and for the organisations that represent them.
Others want to widen the definition of pro bono legal services to include training, mentorship, policy and advocacy work, as well as legal work undertaken for the state and its Chapter 9 institutions, board membership of NPOs and - more indirectly - service as commissioners of small claims courts.
ProBono.Org believes that access to justice should be the primary driver of pro bono legal services. If we create too many pro bono options in addition to direct legal service, we run the risk that the poorest, most marginalised and vulnerable members of our society might still lack access to legal assistance.
Those are the people to whom we should be directing pro bono legal services. By broadening the scope of services too much, we run the risk of failing to meet the huge unmet need for legal representation in South Africa.
Section 34 of the South African Constitution states: “Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court …” This right is meaningless if people cannot find representation that enables them to take their affairs to court.
It is interesting to note that Rule 6.1 of the American Bar Association’s Model Rules of Professional Conduct says that, of the 50 hours of pro bono public legal services lawyers are expected to do each year, “a substantial majority” of these hours should be provided to people of limited means or to organisations that support such persons. [1] The majority of pro bono work should focus on activities that provide direct legal assistance to people who cannot afford legal fees, and to the organisations that represent them.
Our hope has always been that law firms commit to undertaking some pro bono work for those who cannot afford legal fees because this is something that legal professionals ought to do – and ought to want to do. Providing pro bono services is a cherished ideal and hallmark of the legal profession.
Over time, the need for rules should fall away as more lawyers choose to do pro bono hours to alleviate hardship. Fortunately, we find that more lawyers are starting to share this view, particularly those who have seen how their work can make such a significant difference to the lives of the poorest.
[1] Pro Bono/Community Service, “Exploring history context and best practice models for the provision of pro bono/community services by the legal profession to promote access to justice to vulnerable members of society”, Daniel Sive, March 2016, page 15. This is a research paper commissioned by the National Association of Democratic Lawyers.
