Pro bono is often viewed as either penance to be paid by lawyers or our last chance at redemption, if we are to believe the endless lawyer banter and jokes. For many, pro bono is viewed less as a benefit and more as a burden to be fitted into and negotiated with billable hours and paying clients.
Most jurisdictions encourage lawyers to undertake pro bono yet it remains relatively underdeveloped in Africa and there is considerable confusion as to what constitutes pro bono. Pro bono is not to be confused with legal aid, which is legal services to indigent clients which are paid for by the State or another institution such as a Bar Association. In broad terms, pro bono is defined as the provision of legal services, at no cost to anyone, which may include advice or court representation to persons unable to afford a lawyer. The reasons for the underdeveloped nature of pro bono are varied but mainly attributable to economics. Generally, law firms are small and focus on survival. Lawyers tend to be located in urban areas and there is a shortage of lawyers in the rural areas. In most jurisdictions, there is a severe shortage of lawyers. For example, in Malawi, the Law Society has approximately 400 registered members while the national population is approximately 19 million people. This is further compounded by the fact that many practitioners work for the State or multinational companies.
Even where pro bono is developed, there is a mismatch between the capacity of lawyers and the types of legal problems they address. Current pro bono efforts are limited to assistance such as domestic violence, criminal matters and maintenance disputes. Addressing these issues is critical to society, but the matters are often once-off in nature and have limited impact in furthering the general public interest. These traditional areas of pro bono are often not within the competence of private sector lawyers and take up considerable time at court. As a result, we often find commercial attorneys reluctant to lend their expertise to matters and we hear the argument that this is “work for the NGOs”.
This calls for a re-imagining of pro bono on the continent. We find ourselves in unprecedented and challenging times and many of our solutions will lie in regional cooperation. For years, private sector lawyers have learnt valuable skills in successfully negotiating or avoiding costly litigation for their clients. This valuable skill has failed to be transferred to the public interest. The focus of human rights crises have largely been solved by strategic litigation and media campaigns, many of which have sadly taken place outside of the continent. Despite all the hype and celebrity, local lawyers will be best placed to determine how the law can positively impact on society. Pro bono presents an opportunity for lawyers to improve their skills and even their client base – a poor client today may just well be a paying client tomorrow.
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