Commentators such as David Fagelson* derive the obligation to provide legal service pro bono from attorneys' central role in the justice system. Justice is a fundamental social value, and equality before the law is its key element.
For a person to participate in a complex, adversarial justice system, a lawyer's expertise is indispensable. The state acknowledges and enables this expertise with various entitlements: most significantly, a monopoly, which lawyers themselves regulate, on the practice of law and on access to courts. Monopoly pricing is deemed to result, and pro bono service is deemed an appropriate acknowledgment of the power to price services beyond the reach of many. Some observe, perhaps more philosophically, that the self-regulation which secures the monopoly - the ability to determine who can join the club - itself secures important social values.
Thus, an independent, self-regulating legal profession, free to admit members of its own choosing who can exercise their profession without government direction, best preserves the rule of law. As society's self-regulating guardians of justice, lawyers are best positioned to secure its fundamental value of equality of all before the law and to work toward universal access.
While this may seem rather lofty, consider recent developments in Fiji where, as of June 30, all lawyers must apply for a Practicing Certificate from the newly-installed, military-backed regime, which moved the licensing of lawyers from the law society to an army-appointed major.** A lawyer was prevented from delivering a speech to the Fiji Institute of Accountants Congress, scheduled for June 12, 2009, due to its discussion of Fiji’s political and financial crisis and the impact of the recent coup on human rights. Download the text of his speech here [PDF file].
Against this backdrop, a correlation between lawyers' autonomy and an ethical obligation to further access to justice does not seem extreme.
Posted by Robin Westbrook
IBA Pro bono and Access to Justice Committee
* 'Rights and Duties: The Ethical Obligation to Serve the Poor', 17 Law and Inequality: A Journal of Theory & Practice 171, Winter 1999.
** Rowan Callick, 'Fiji's military-led judiciary no paradise for business', The Australian, 5 June 2009, http://www.theaustralian.news.com.au/business/story/0,28124,25588281-36418,00.html, accessed 17 July 2009.