• Robert Spicer

Some Questions For Pro Bono

Theoretical approaches to charitable work by lawyers are ambivalent, to say the least. For example, in October 2006 the President of the International Bar Association, writing in The Lawyer, made the following points: • Many countries do not have the benefit of the rule of law. • The effects of this can be measured in a lack of certainty for investment. • This commercial reality conspires to prevent the economic fillip which these countries so badly need. • Internationally focused pro bono work can advance the rule of law. • There is a need to emphasise more strongly the nexus between respect for the rule of law and the benign investment climate which it necessarily presents to the international community. • Social and economic stability is a prerequisite for the attraction of investment. • The legal profession can do much to help countries construct the framework of the rule of law and help to bring about an environment in which international investors can bring a much-needed injection of capital. These statements can be seen as an overtly expressed link between pro bono, profit-making and successful capitalism.

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.

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