Thursday, 18 June 2009

The expat pro bono lawyer: some policy considerations

A variety of programs deploy volunteer attorneys to advance democracy and the rule of law, protect human rights, promote equitable economic development worldwide and advance the social and economic well-being of people in developing countries. For some examples, see here. Today, I'd like to explore the role of the lawyer in legal reform and examine some policy considerations that should concern every lawyer considering an expat pro bono assignment and every sponsoring organization. In brief, they are:

• Staffed vs. volunteer programs
• "Pay to play"
• Independence of the volunteer
• Setting and implementing the funder's/volunteer's agenda
• Institution building vs. general political/economic development

First, let's look at the difference between staffed legal assistance programs and volunteers. Staff, of course, are paid employees. Volunteers, though they may have their expenses covered, are donating their time. Staff are typically in career positions. Their country assignments last 2-3 years. They frequently work on contract and often move from employer to employer, sometimes working for a national government or an international body and sometimes working for an NGO. Their career arc depends on performance evaluations and references. Conversely, the volunteer is usually in country for a year or less, though many stay longer and often use the volunteer assignment as a springboard to a new career.

Volunteers come in all shapes, sizes and backgrounds. Most often, the recruitment and engagement of volunteers is on a level playing field – what experience and skill sets are needed at the time determines who in the applicant pool gets the nod. But, some NGOs favor volunteers who've supported the organization financially and otherwise. Some call this "pay to play", and it is an issue not limited to organizations that recruit pro bono lawyers for international assignments. Prospective volunteers need to know and understand the policy of the sponsoring organization concerning expectations of financial support.

Let’s look at some people issues. How are people recruited for expat pro bono legal jobs? How are they trained? Who do they work for? What are their jobs? What are the risks and rewards?

Some observers have characterized various donor countries' foreign policies as "uncomfortable dualism", that is, ostensibly pro democracy when and where it suits the donor's national interest, but, in reality using democratization as an instrument of foreign policy. So, what's wrong with that? Must there be an internal consistency? What are the benchmarks? What are the implications vis a vis the rule of law? What do we mean by "the instrumentalization of pro-democracy policies"? Is wrapping security goals in the language of democracy promotion and then confusing democracy promotion with the search for particular political outcomes that enhance those security goals of concern to the prospective volunteer. Any examples come to mind? How about providing legal and other technical and financial support to anti-regime opposition parties and politicians in the name of election reform? It certainly happened in Georgia, Ukraine and Kyrgyzstan.

Lawyers have an interesting and complicated role to play in the democratization process. We (at least those of us who at some point in our careers practice law) are trained to approach problems not from our own perspectives but on behalf of a client. In the litigation and dispute resolution context, we are accustomed to assessing the facts of a situation (i.e., a case), spotting relevant legal issues, and advocating our client's best case against an adversary's best case. In the transactional context, we negotiate the best deal we can for our client.

So, as we assess the need for a legal reform program, design a program, determine its feasibility, implement it and evaluate it, who is our client? Or, do we have a client? This is a profoundly important and perplexing question. Can we escape our training and proclivity to need a client and be a neutral? Is our client the donor? Does the donor set the agenda? Are we, in short, advocates for the donor? Most donors view NGOs that receive funding from them as obligated to advance the donor's agenda, no matter how closely it is micro-managed. Not all of the people in the field feel that way.

Is our client the transitional host state? Do we have a conflict of interest if we are engaged in reform, such as anti-corruption strategies or judicial transparency, that are contrary to the perceived interests of the ruling elite?

Is our client the institution(s) and professionals with whom we engage, such as, government ministries, bar associations, judges, advocates or prosecutors?

Is our client the "people", i.e., the rank and file, of the host country?

For lawyers involved in development work this is an ongoing debate. For example, if our "client" is the donor country, and the donor country is in a strategic partnership with the regime, legal reform programs that are anti-regime potentially compromise the credibility of the lawyer. As an implementer of the donor’s foreign policy, the lawyer may have to pull her punches in criticizing the existing system. If the client is the institution, professions or "people", the lawyer advocating or providing technical support for reform may well be challenging the ruling elite with whom the donor country has a partnership, thus conflicting with the donor.

Are there any limits on the roles expat lawyers can play? Are we advocates, counselors, mentors, technicians, or all of the above, and what are the implications of each role?

Typically and appropriately the expat volunteer lawyer teams with local professionals, who provide local legal, political, language and cultural expertise. Those synergies and relationships are usually very positive by-products of the expat lawyer’s experience. The locals also tend to provide more continuity to programs than expats, who come for a limited time, often not coextensive with the funding cycle of the program.

There are, however, some risks. What are the risks and rewards for the expats? The locals? Obviously, the local may be a spy for the ruling elite. It happens, and it's very difficult to prevent. So, there must be some boundaries. The local lawyer, and his or her family, can also be at risk, professionally and personally. The relationship with the expat lawyer brings the local lawyer some significant benefits: income, networking, training, opportunity. But, if the reform fails, the local lawyer may well have sacrificed his future. So, he must also set boundaries, to assure that the voices of the expat and the local are distinct. The expat has the protective umbrella of his home country and a return ticket out of the host country.

What happens when the survival of the program, such as transferring cash to pay salaries and operating expenses, requires the expat and/or the locals to violate the local law? It happens. How specifically does a "Rule of Law" program address the issue? Is it appropriate for a donor supported NGO implementing a donor country’s program to violate local law? When? What are the risks?

The success of legal reform programs depends on the people who design and implement them. In addition to all the usual criteria (smart, ethical, self-starters, motivated, etc.), they must be trained and oriented to the new, different and unique circumstances they will encounter. They must think about their role, whom they represent, and their relationships with their colleagues. And, it is incumbent on the donors and NGOs to insist on and facilitate this training and orientation.

Posted by
Anthony H. Barash
Director Emeritus, ABA Center for Pro Bono
IBA Pro bono and Access to Justice Committee

Monday, 15 June 2009

Day Laborer Wage Clinic redresses abuse of immigrant employment rights

A legal services organization in the United States encountered a serious access to justice issue involving its immigrant population. The legal aid attorneys discovered that there was a street in a major city where immigrants gathered daily to be "picked up" in trucks by employers to do landscaping, construction work and housekeeping chores.

In spite of the fact that United States laws require employers to pay at least a minimum wage regardless of whether a worker is in the country legally, employers often refused to pay these day laborers the wages they had earned. Due to a combination of factors, including ignorance of their legal rights and fear of threatened deportation if they complained, many of these immigrants simply did nothing and allowed their employers to benefit from their work, without having to pay for it.

In response to this gross inequity, the legal service organization opened a Day Laborer Wage Clinic and called upon the local bar association for assistance in staffing it. With the help of volunteers, pro bono lawyers and paralegals, the Clinic is open one night a week where immigrants, primarily non-English speaking, can come without any appointment for assistance in enforcing their employment rights and in obtaining the wages illegally withheld by their employers.

Employers are quickly learning of the existence of the Day Laborer Wage Clinic and that its legal aid and pro bono attorneys, paralegals, and interpreters will not tolerate the abuse of immigrant employment rights.

Posted by Patricia Blair
IBA Pro bono and Access to Justice Committee

Monday, 1 June 2009

A contribution of thoughts in regard to some shortcomings in relation to translation and interpretation

Assurances that the principle of equality of arms is upheld in criminal proceedings in other jurisdictions than our own is fundamental for common trust. Based on the Swedish experience, an important source of problem in mutual recognition-based cooperation is the lack of sufficient guarantees of procedural rights in domestic systems. Deficiencies of this kind in many national systems and the lack of common minimum procedural standards regarding the protection of individual rights in criminal proceedings give rise to hesitation and lack of a sufficient basis for mutual trust and recognition.

Already in 2004 the European Commission, within its draft Framework decision on certain procedural rights applying in criminal matters throughout the European Union, therefore put focus inter alia on the access to interpretation and translation. The reason was quite simple; a suspect must know and be able to understand the suspicions and charges raised against him or her. Notwithstanding that this must be considered as a “basic right” common for every country based on the rule of law, the work of a common understanding within the European Union on the importance and need of translation and interpretation was buried for many years of political reasons.

Recently, however, the The Council of Bars and Law Societies of Europe (CCBE) has published a manifesto calling for ‘The right kind of justice for Europe’ in the light of the current drafting of the next five-year Strategic Agenda for Freedom, Security and Justice in the European Union, the so-called ‘Stockholm programme’.

One of the central parts of this Manifesto is the need for introduction of minimum common procedural safeguards for the right of suspects and defendants in criminal proceedings. One of the fundaments of these minimum procedural safeguards is access to free interpretation and translation, ensuring that persons, including relatives of the suspect, who are not capable of understanding or following the proceedings receive appropriate means for this.

Today there is not only lack of a minimum procedural right in respect of translation and interpretation in Europe and elsewhere. It is also, when such interpretation and translation can be disposed, often a questionable quality of the translation or interpretation services rendered. Furthermore, the defence counsels often have to bear the costs of interpretation and translation. In many countries this is a cost paid by the state only in case of acquittal. Hence, lawyers often bear the economic risk of having their clients’ justified legal interest and rights provided for. Pro bono work becomes a prerequisite of the fulfilment of minimum procedural rights.

Obviously, this must change. The CCBE Manifesto is a good start and my sincere hope and belief is that the Swedish Presidency of the European Union for the second half of 2009 succeeds in its declared efforts to pull a legislation on the right of interpretation and translation through the European legislative mills.

Let us at least have common minimum rights on the suspect’s understanding of the suspicion, and let it be at the expense of the states and not the lawyers.

Posted by Anne Ramberg
Secretary General of the Swedish Bar Association
IBA Pro bono and Access to Justice Committee

Opening the courthouse doors

Courts can facilitate access by litigants who do not have counsel, paid or pro bono. They might provide simplified procedures, translation services, and, as in the case of the U.S. Tax Court, videos on how a pro se litigant can proceed. The Court expects to start mailing DVDs of the video shortly to unrepresented taxpayers.

What other steps can courts take to accommodate unrepresented litigants? In what situations are these measures most appropriate? What are opposing counsel’s duties and concerns in such a case? Does it matter if opposing counsel represents the government?

Posted by Robin Westbrook
IBA Pro bono and Access to Justice Committee

VAT on pro bono services

Should pro bono legal services be subject to a value-added tax? Some jurisdictions do impose VAT on the value of pro bono legal services, while some limit VAT to the amount of fees actually charged.

As the U.S. contemplates imposing a value-added tax -- see 'Once Considered Unthinkable, U.S. Sales Tax Gets Fresh Look' for background -- the issue should be explicitly considered as related to pro bono, and lawyers presently subject to value-added taxation doubtless have a great deal to share.

What are your views and experiences in this area?

Posted by Robin Westbrook
IBA Pro bono and Access to Justice Committee