A man phones a lawyer and asks, "What's your fee for answering three simple questions?" The reply is: A thousand dollars. "Whoa! That's very expensive, isn't it?" exclaims the man. "It certainly is, now what's your third question?" asks the lawyer.
Expensive legal fees have been the butt of many jokes but not all lawyers are the sharks they're made out to be. There are a number of socially aware and generous souls who are increasingly lending their expertise for pro bono work. Short for the Latin term pro bono publico, 'for the public good', pro bono means a case is taken up for free or the rates are deeply discounted. I n India, traditionally, pro bono legal work was carried out by lawyers who had dedicated themselves to helping society. Take senior advocate Colin Gonsalves who, in the early 1980s, co-founded the Human Rights Law Network (HRLN) to provide free legal access to the needy. Since then HRLN has expanded the scope of its legal offerings to include filing PILs, legal clinics and advocacy. Pune-based advocate Asim Sarode set up Human Rights and Law Defenders in 2002, which won accolades for providing free legal service to prisoners.
Yet, given the need for proper legal help for a diverse section of society — ranging from NGOs to social entrepreneurs; from sex workers to child labourers; and from battered women to helpless prisoners — even the PM, in his address at the Bar Council's centenary celebrations earlier this year, urged lawyers to take on more pro bono cases.
Cyber-platforms such as the international Lex Mundi Pro Bono Foundation and i-Probono are already helping connect law firms with social projects. Then there are organisations such as Ashoka which, through its 'Law for all' initiative, ensures that Ashoka Fellows (social entrepreneurs) have access to the most appropriate law firms. "In addition to meeting regulatory hurdles, this initiative also aims at providing emergency support to Ashoka Fellows, who given the nature of their work sometimes face threats and intimidation from vested interests," says an Ashoka spokesperson.
Currently, the Lex Mundi Foundation works exclusively with law firm Amarchand Mangaldas in India. Ashoka relies on lawyers such as Gonsalves and Sarode who are also Ashoka fellows. In addition, it connects with a handful of topnotch law firms.
At online forum i-Probono, pro bono initiatives are supported by a clutch of top law firms as well as individual lawyers and law students.
The Society of Women Lawyers (SOWL), India has also set up a pro bono committee. "Its objective is to act as a forum to link deserving women focused probono projects with domestic and international lawyers or law firms. While several law firms do have their internal systems and engage in pro-bono projects, SOWL-India seeks to 'institutionalise' this culture," explains Priti Suri, President, SOWL India and founder partner of PSA, a law firm.
Slowly but steadily, the pro bono culture is gaining ground. It now extends beyond serving needy individuals to providing legal services to the social sector (viz: non-profits and social entrepreneurs) thereby accelerating the pace of social good.
However, some challenges do remain in scaling up. As Swathi Sukumar, India country director, i-Probono says: "Building commitment to probono work in a systematic way in the legal profession has been a challenge. Likewise, working with the social sector organisations of all sizes is also challenging because they vary widely in terms of their professionalism, communication styles and internal organisation." Yet progress has been steady. i-Probono's India operations began in 2010 and last year it matched 53 projects with a value to the Indian social sector of over Rs 1.2 crore.
Chole B Holderness, MD, Lex Mundi Foundation points out that in developing countries, pro bono lawyers play a critical role in helping to build the organizational capacity of social entrepreneurs and innovators. "Some key areas of the law aimed at impactful social change include: Intellectual property advice for protection and licensing of innovative ideas; advice on structuring and registrations of social sector entities; advice on how to navigate and surmount government regulations that threaten to restrict the achievement of social goals."
In India, where doing business isn't easy (it ranked a poor 132 out of 185 countries on ease of doing business during the last annual survey of the International Finance Corporation) such pro bono legal assistance is much needed, especially as the same complex commercial laws extend to the social sector.
"Advising the social sector can involve navigating a maze of laws such as foreign exchange regulations, tax laws, state legislations for public charitable trusts, the Foreign Contribution Regulation Act etal and in sectors as diverse as education, microfinance and social venture funds (a class of funds now recognised by SEBI)," says Bahram N Vakil, one of the founder partners at law firm AZB & Partners.
Sometimes regulatory complexities result in a social project not taking off. Anand Prasad, partner, Trilegal, has a case in point. "A foreign NGO wanted to set up medical support facilities to provide quality healthcare to the poor. Since the project involved an element of investment in real estate by a foreign player, RBI's approval was required. Despite our best efforts to persuade the regulator, the approval wasn't forthcoming and the project had to be abandoned," says Prasad.
Given their commercial expertise, these law firms also engage actively with regulatory bodies, various ministries and policy makers to present the challenges faced by social entrepreneurs and usher in regulatory changes.
Internationally, there is a debate on whether pro bono should be mandatory or left to the individual and his conscience. Recently, the New York bar mandated that from January 2015, all applicants must have carried out at least 50 hours of legal pro bono work before they are approved to practice law. The potentially revolutionary change is aimed at providing assistance to low-income residents. Yet most jurisdictions, including India, do not make it compulsory.
Nishith Desai Associates (NDA), an international legal firm, has carved out a separate social sector practice. "We have created a dedicated team, led by a surgeon turned lawyer, which focuses on the social sector and related areas. In addition around 60-70 hours are devoted annually to such work by our employees, giving us ample human capital and capability to fulfil our passion of contributing to change," says Nishith Desai, founder of NDA.
Suri is not averse to introduction of mandatory pro bono hours, given that the legal environment as it stands today is driven towards attaining revenue targets. "At PSA, even before we gave a formal structure to the firm's pro bono policy, 60 hours annually towards pro bono work was contained in the firm's HR policy. Time spent on such projects is counted towards an individual's performance."
In India, most law firms prefer to keep things flexible, rather than dedicating a certain percentage of revenue or a certain number of hours. Sukumar agrees with this approach: "Mandatorily imposed conditions tend to often degenerate into some form of tokenism, which we would not want to encourage."
There is however an increasing realisation of the benefits of engaging in such work. "Such assignments often involve thinking out of the box and devising creating solutions. Lawyers engaged in pro bono assignments are given full credit for time spent on it," says Vakil. "Pro bono work exposes lawyers to areas of law that they would otherwise not encounter, and this helps them become more rounded professionals. Interaction with the social sector also fosters empathy," adds Prasad. Pallavi Shroff, partner, Amarchand Mangaldas, says: "With profit generating firms increasingly looking at best practices in corporate citizenship, and we are seeing resurgence in the level of community engagement of law firms."
This resurgence will help accelerate the pace of social entrepreneurship in India where a maze of complex laws can daunt even the bravest.
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