Moving Past Resistance: Pro Bono in Brazil and the U.S.
An Interview with PILnet's Ed Rekosh
13 June 2012
Edwin Rekosh, executive director of PILnet, was interviewed by Consultor Jurídico (ConJur), Brazil’s legal web magazine, about his perspectives on pro bono in Brazil and the U.S. The December 2011 interview took place at a conference commemorating the tenth anniversary of the Instituto Pro Bono, which promotes access to justice and pro bono legal practice in Brazil.
ConJur— What’s your opinion about the development of pro bono in Brazil?
Edwin Rekosh—I have seen a major, positive evolution of pro bono activity in Brazil. It is much better understood now than the first time I came. There are sectors of the Brazilian legal community that now support pro bono activity and this represents progress. But the fact that there are still pockets of resistance and concern is surprising. In continental Europe five years ago this type of legal practice did not exist as an organized activity the way it did in Brazil. But European actors are no longer in any doubt about the importance of pro bono while Brazil remains slow to move ahead.
ConJur—Can you explain how legal aid works in the U.S.?
Rekosh— Free legal assistance is available in the U.S. through a variety of different means for those who need it. Unlike a lot of countries, the U.S. system is not organized very comprehensively by the state. There are some programs that receive funding from the federal, state, and local levels, but they’re fairly limited in scope. In the area of criminal defense there is a constitutional right to free legal assistance regardless of your ability to pay for it, so there is a substantial amount of government funding available to agencies that provide criminal defense. But in the civil area there is no constitutional right so that system is a patchwork of different mechanisms—many of them funded through a mix of state and private sources. So NGOs are very prominent in the field of civil legal assistance.
Because government funding has gone down very substantially since the 1970s, pro bono activity has been growing to fill a widening gap in legal aid. Pro bono has become an important way to address this gap but there are always more legal needs than services available. The federal government is starting to talk about the justice gap in the U.S., although a specific solution has not yet been found.
ConJur—In Brazil, pro bono work is regulated by the Brazilian Bar Association. Are pro bono lawyers in the U.S. regulated by the American Bar Association?
Rekosh— First of all, it’s a good idea to define pro bono in the U.S. context. Pro bono generally comes from an ethic or a value that is inherent in the legal profession and universal going back in time. If you have a profession that grants you a monopoly on a service, that’s a privilege and that comes along with an obligation to give back. Lawyers from time immemorial have helped out their friends and their neighbors and other peoples in need in their community because they have a monopoly on a service that is needed. There’s always been that kind of charitable understanding among lawyers.
What is given the label ‘pro bono’ in the U.S. is a formalized, institutionalized version of that ethic. As law firms grow in size and become detached from communities, that mechanism of very informal help to the community doesn’t work because the lawyers are very far from where the needs are. So that’s what gave rise to the need to institutionalize pro bono, especially given the background of severe cuts in government funding to legal services.
Pro bono is not a regulated practice; it’s a voluntary activity. The American Bar Association, which is not a regulatory body but a membership organization of lawyers, came to understand that they had an important role to play in filling the gap when budget cuts started to hit legal aid. They started to actively promote pro bono practice, institutionalizing it by setting standards and aspirational targets and talking about pro bono in the context of professional responsibility.
ConJur—Are lawyers who take pro bono cases concerned about losing their clients?
Rekosh—No. There are several reasons for that. One is that pro bono is very widely considered to be part of professional responsibility. So it’s an extremely legitimate concept that would be hard to challenge on principle because there is an entrenched understanding that lawyers are supposed to do pro bono whether they actually do it or not. So even if a lawyer chooses not to—because it’s not mandatory, it’s a voluntary activity like any charitable activity—it would be very hard for them to criticize another lawyer for doing pro bono because it would be like criticizing someone for a charitable activity.
ConJur—What can the PILnet teach us about the subject?
Rekosh— PILnet is an organization that promotes public interest activities by lawyers around the world, including pro bono. And I know that in many countries it is different than in the U.S., because pro bono is not well understood as a formal concept and is not formally part of the ethics code of lawyers.
There is sometimes opposition from lawyers who maintain, unjustifiably, that pro bono work would threaten their commercial interests. Nowhere in the world where we have been active have I seen that to be a justified concern, but it’s common. It’s not justified because pro bono helps the neediest individuals and organizations that would never be able to scrape together the cash, no matter how small, that it would take to hire a lawyer. Even if they could, it’s not their priority—they have other bigger problems that they need that money for. That’s why pro bono is so important around the world. Pro bono lawyers are doing two things: they’re providing a charitable service to someone who can’t afford it and they’re helping to build public trust in legal institutions.
ConJur—Was the European Pro Bono Forum, which was held this year in Berlin in November, a step in this direction?
Rekosh— The Forum is a testament to this acceptance. The European Commissioner responsible for justice gave an opening presentation by video in which she said very clearly that pro bono is a very important activity that supports the European Union policy goals in the area of justice, including social inclusion and the protection of rights. Because of that, it’s quite strange for me to be sitting here today in a place where pro bono predated all this but where it’s still lagging behind.
ConJur—Professor Luciana Gross Cunha said that any changes made without the participation of civil society—changes made only from the top down—will not democratize justice. Indeed, when access to justice is not complete, inequalities are exacerbated. Do you agree with this?
Rekosh—Yes! Pro bono can certainly contribute to more of a bottom-up process of democratizing justice. In one way, legal representation for underserved communities is itself a bottom-up process, because individuals who can’t afford a lawyer or otherwise assume they won’t have legal services available simply avoid the law and find their own ways of resolving their disputes outside the legal system. So part of the process of democratizing the legal system is to be inclusive of the entire population.
Another way that pro bono can help is by supporting NGOs, which have a very important role to play in democratizing justice. NGOs can intermediate in many ways between the general public and state institutions and one of these ways is through the legal system. Litigating and deploying legal skills enables NGOs to have more meaningful participation in policy debates and legislative processes.
For an NGO to put forward a proactive proposal or to comment on another institution’s proposal for legislative or policy change requires some degree of legal skills. It’s not sufficient to just say, “We represent this particular group or perspective and these are our needs.” It requires an extra step of interpreting those needs in a way that interacts with the normative framework. And that’s a legal skill: it’s taking a real world problem and understanding how the legal norms and the social situation interrelate. That’s one of the most important skills that any lawyer can learn in law school. Law schools sometimes don’t do as good a job as they should on that particular skill set of lawyers. But legal education at its best graduates lawyers who understand both the normative frameworks and how they interact with the social reality. And that legal skill is indispensable for the process of NGO participation in governance. NGOs need to both understand the social reality and be capable of translating that into a normative framework.
ConJur—Here in Brazil we have the Public Defender’s Office, which is defined by the Constitution as an essential organ of justice. What do you think of this institution?
Rekosh—It’s a very important institution. From a global perspective it is also quite innovative. Arguably the Brazilian model of the public defender has the best of all worlds in that it has the authority of the state and can act very effectively in the public interest with a great deal of legitimacy.
ConJur—The Getúlio Vargas Foundation publishes the Trust in the Judiciary index in Brazil. The results are not good. In the U.S., do people trust this branch of government?
Rekosh—In the U.S. the judiciary is one of the institutions with the highest degrees of trust. (If you were talking about the American Congress, it would be a different story!) However, in many countries where I’ve worked the situation is similar to Brazil. In China it’s like this, and in Russia, too. This is why I emphasize how important legal representation and pro bono are. For the institutions of the judiciary to be strong they require public trust, even more so because this is one of the key places where the public and the state interact. So it’s not extremely unusual for trust in the legal system to be lower than it should be. But that’s exactly why it’s imperative to increase legal assistance.
The complete original interview in Portuguese is available here.
Translation from the Portuguese by Barney Whiteoak.