• Robert Spicer

Pro Bono

Use of Latin The dictionary definition of “pro bono”, an abbreviation of pro bono publico, is “free, used to denote the giving of free legal advice and services”. “Free” is a simple word of Old English origin, easily understood by anyone of normal intelligence, which can easily replace three Latin words. Why do lawyers who provide their services without charge continue to use the term “pro bono”? References to Latin maxims and phrases in Law Reports are now so rare that they attract considerable attention. The use of Latin is discredited and is often criticised by the judiciary. ”Pro bono” continues to be used by those who assume that it’s a “good thing” without any rigorous theoretical analysis. But there are a number of question marks and a need for self-examination and criticism on the part of those who unquestioningly accept the benefits of legal charity and who fail to reject Latin terminology. How do non-charging lawyers who label themselves “pro bono” react, for example, to the statement of Lord Justice May in Fryer v Pearson and Another (2000), that people should stop using maxims or doctrines dressed up in Latin which are not readily comprehensible to those for whose benefit they are supposed to exist? Or, a judicial statement of 1940 which made the following points: Counsel has strenuously contended that the master’s action was novus actus interveniens, which broke the nexus or chain of causation, and reduced the unseaworthiness from causa causans to causa sine qua non. I cannot help deprecating the use of Latin or so-called Latin phrases in this way. They only distract the mind from the true problem, which is to apply the principles of English law to the realities of the case.

There is a suspicion that the continued, unquestioning use of the phrase “pro bono” reflects the increasing Americanisation of the English legal system. For many American lawyers, pro bono work is an essential element of their career progression and a crucial factor in the corporate identity of large law firms. A leading American lawyer is reported to have made the following comments: We are fortunate to live in a country with a mature and effective legal system. People in many other countries are less fortunate. A lack of functioning and effective courts, corruption and shortages of competent lawyers are affronts to justice and to basic human rights. They also hold back a country’s development. They lead to people taking the law into their own hands. And refugees will stream from countries where legal systems offer no protection. This can be seen as an argument that unless we give charitable legal help to the unfortunates of this world who are not blessed with the English legal system, we will face a flood of lawless refugees.

Objections to Charity Just as the worst slave-owners were those who were kind to their slaves, and so prevented the horror of the system being realised by those who suffered from it, and understood by those who contemplated it, so in the present state of things in England, the people who do most harm are the people who try to do the most good; and at last we have the spectacle of men who have really studied the problem and know the life, coming forward and imploring the community to restrain its altruistic impulses of charity, benevolence and the like. They do so on the ground that such charity degrades and demoralises. They are perfectly right. Charity creates a multitude of sins. It is immoral to use private property in order to alleviate the horrible evils that result from the institution of private property. It is both immoral and unfair … we are often told that the poor are grateful for charity. Some of them are, no doubt, but the best amongst the poor are never grateful. They are ungrateful, discontented, disobedient and rebellious. They are quite right to be so. Charity they feel to be a ridiculously inadequate mode of partial restitution, or a sentimental dole, usually accompanied by some impertinent attempt on the part of the sentimentalist to tyrannise over their private lives. Why should they be grateful for the crumbs that fall from the rich man’s table? They should be seated at the board. Oscar Wilde, The Soul of Man under Socialism.

Camus, The Fall This is the story of a successful barrister who appears to be the epitome of good citizenship and decent behaviour. Circumstances explode his sleek self-esteem. He sees through the deep-seated hypocrisy of his existence to the condescension which motivates his every action. The feeling of the law, the satisfaction of being right, the joy of self-esteem… I loved to help blind people cross streets. From as far away as I could see a cane hesitating on the edge of a pavement, I would rush forward, sometimes only a second ahead of another charitable hand outstretched, snatch the blind person from any solicitude but mine, and lead him gently but firmly over the pedestrian crossing amidst the hazards of the traffic towards the quiet haven of the other pavement, where we would separate with a mutual emotion… I always enjoyed telling people the way in the street, giving a light, lending a hand with heavy barrows, pushing a stranded car, buying a paper from the Salvation Army girl. Being stopped in the corridor of the law courts by the wife of a defendant you represented for the sake of justice or pity alone – without charging a fee – hearing that woman whisper that nothing could ever repay what you had done for them, replying that it was quite natural, that anyone would have done as much, even offering some financial help to tide over the bad days ahead, then – in order to cut the effusions short and preserve their proper resonance – kissing the hand of a poor woman and breaking away…

In 1957, Camus was awarded the Nobel Prize for literature, with a prize of $42,000. He deposited the cheque in a bank in Stockholm and forgot about it until some months later, when he was asked by the bank what he wanted them to do with the funds. Camus’ attitude to prizes and honours forms an interesting contrast with the ethos of lawyers’ charitable work. For example, in November 2009 it was reported that more than 50 “pro bono heroes” attended a Parliamentary reception hosted by the Attorney-General. She is reported to have commented that it was not in the nature of lawyers who acted pro bono to seek recognition or praise for their efforts. The reception was a way of celebrating the work of pro bono heroes. The glaring contradictions of this statement were not recognised.

Richard Abel, in English Lawyers between Market and State, makes the following comments on pro bono services: • They allow elite lawyers conspicuously to enact independence on behalf of vulnerable clients confronting powerful adversaries (frequently the state) thereby mystifying those lawyers’ profound dependence on a few large clients (many of which oppress and exploit the very same clients). • Pro bono services contain their own contradictions. • The recession was not in general a climate in which an extension of pro bono work was sought. • There is a fundamental contradiction between the Law Society’s exhortation that solicitors must run their practices on strict business lines and its message that they have surplus time, resources and cash to work for nothing to prop up under-funded organisations. Claire Dyer wrote in the Guardian, June 3, 2003, that the reasons for pro bono work were “a complex interaction between professional idealism, political pressure and commercialism”.

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