Friday, 14 August 2009

Mandatory pro bono considered in Israel and adopted in the Phillipines

The Israel Bar Association was established in 1961 as an autonomous statutory entity, under the Bar Association Law - 1961, in order to incorporate the lawyers in Israel and to assure the standard and integrity of the legal profession. The Bar Association is a body corporate, and is subject to inspection by the State Comptroller. Membership is mandatory and is a pre-requisite to practicing law in Israel.

The above-mentioned law distinguishes between the statutory obligatory functions of the Bar Association (section 2) and its other non-obligatory functions and competences (section 3). One of the non-obligatory functions which appears in section 3 is "to provide legal assistance to persons without means".

A new bill, proposed by one of the members of the Knesset (Israel’s parliament), suggests converting this non-obligatory function into an obligatory one. The Knesset Research & Information Center reports that this proposal is being discussed now in the Constitution, Law and Justice Committee of the Knesset.

More information about the Pro Bono program of the Israel Bar Association is on the bar's website here.

The Philippines has recently adopted mandatory pro bono effective 1 January 2010. See here and here for more information.

Posted by
Anthony H. Barash
Director Emeritus, ABA Center for Pro Bono

The above news could form the launch pad for a more wide-ranging debate on whether mandatory pro bono is necessarily a good thing:

- If it becomes mandatory, does it lose an important element of pro bono? Or is the end result all that matters?
- Does it make it more difficult to ensure quality of service is of a uniform standard with client work?
- If charity donation is made compulsory, doesn't it become a tax?

We welcome your comments by clicking the comment link below.

Posted by
Tim Soutar
IBA Pro bono and Access to Justice Committee

The prospect of mandatory pro bono can provoke concern in some instances. See Marcos Fuchs's remarks, delivered at the IBA Annual Conference in Buenos Aires in October 2008, in which he describes the resistance of the 47,000 lawyers in Sao Paulo State who rely on government subsidy for representing the underserved to any form of pro bono mandate. Their concern derives from the possibility that lawyers offering services pro bono might engage in unfair competition. Likewise, lawyers in the U.S. who cultivate practices based on fee-shifting regimes voice concern that judges will minimize fee awards if they believe that the work is more appropriately done on a pro bono basis. See Samuel R. Bagenstos, "Mandatory Pro Bono and Private Attorneys General," 101 Nw. U. L. Rev. Colloquy 182 (2007).

More fundamentally, in a jurisdiction which considers pro bono work as an ethical obligation, one might say that providing the work is mandatory in any case. See David Fagelson, "Rights and Duties: The Ethical Obligations to Serve the Poor," 17 Law & Ineq.: A J. of Theory & Prac. 171, 182-189 (Winter 1999); see generally Robin Westbrook, "Lawyering and the Low-Income Taxpayer," 124 Tax Notes 704 and 705-706 (August 17, 2009).

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

1 comment:

  1. I think this set pro bono obligation shall serve as a model for the bar associations in other countries, espeically the Least Developed Countries.

    As said in my article, I do encourage pro bono legal work as I think legal professionals are morally obliged to polished the defects in the society they are living in, not just money.

    Vicheka Lay,
    Cambodian Legal Consultant