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