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The development of pro bono in Asia: opportunities and challenges

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A session report from the IBA Annual Conference (Seoul, 2019) on the development of pro bono in Asia: opportunities and challenges

 

Victoria Garabato
PP&V, Montevideo
vgarabato@ppv.com.uy

 

Helena Whalen-Bridge[1]
National University of Singapore Faculty of Law, Singapore
lawhwb@nus.edu.sg

 

At the 2019 IBA Annual Conference in Seoul, Mangyo Kinoshita from the IBA Pro Bono Committee organised a session focused on the development of pro bono in Asia. The session was moderated by Helena Whalen-Bridge. The session’s speakers were:

Kyongwha Chung  Bae Kim & Lee, Seoul

Anna Cristina Collantes  Romulo Law Office, Makati City

Saroj K Ghimire  Himalayan Lawyers, Kathmandu; Bar Executive Officer, Nepal Bar Association

Haidi Teng  King & Wood Mallesons, Shenzhen

Pro bono opportunities and challenges

Cristina Collantes opened the discussion by explaining that Philippines lawyers who provide free legal services can receive a refund of up to ten per cent of their gross income.[2]

Kyongwha Chung then provided an overview of the current status of South Korean state-subsidised legal aid and pro bono activity, highlighting the work of the Law Firm Public Interest Network. Although pro bono activities have developed rapidly in South Korea, both the Korea Legal Aid Corporation and law firms which undertake pro bono are facing many challenges including:

  • conflicts of interest between pro bono clients and other clients;

  • a lack of firm culture supporting pro bono activity;

  • difficulties encountered by lawyers in finding the time for pro bono work; and

  • the lack of a support system for small and medium-sized law firms.

To overcome the last of these challenges, the Seoul Bar Association has recently set up a pro bono clearing house, called the Pro Bono Support Centre.

The session continued with Nepal, where Saroj Ghimire explained that pro bono services are not mandatory. However, there is pro bono activity in a variety of contexts. Pro bono can be undertaken for reasons of professional reputation, and because it is perceived as a noble cause. In fact, in 2018 the Nepal Bar Association (the NBA) created a Pro Bono Guideline, which has been adopted by Nepal’s Supreme Court. The NBA implements these Guidelines, in that the NBA:

  • is designated to keep the record of pro bono lawyers and maintain a roster;

  • has plans to honour and award pro bono lawyers; and

  • is lobbying for certain tax exemptions for lawyers who do pro bono work.

Nevertheless, challenges to pro bono activity in Nepal include a lack of records, financial constraints for lawyers and the lack of tax incentives for pro bono services.

In China, Haidi Teng explained how China is at the heart of developing an extremely robust legal aid system where legal services are paid for by the government to address challenges in access to justice. However, the Chinese legal aid system has its shortcomings, which is why the development of pro bono activity, or legal services underwritten by lawyers or law firms, is seen as important. Challenges to pro bono as well as legal aid include lack of funding, shortages of lawyers, and geographic distribution. These issues have been recognised and addressed by the Chinese government and a recent administrative rule promoting lawyers’ participation in public welfare and legal services has been issued by the Chinese Ministry of Justice, which proposes that each lawyer provides at least 50 hours a year for public welfare.[3] It might also be helpful if the Chinese government created incentives for lawyers to engage in pro bono work.

Mandatory pro bono

Panellists were asked if their jurisdiction imposes any mandatory duties regarding pro bono/public interest? If yes, what are the opportunities and challenges? If no, should pro bono be mandatory?

Kyongwha Chung explained that since 2000, South Korea has imposed a mandatory pro bono legal requirement on lawyers of a minimum 30 hours per year, or 20 hours under special circumstances.[4] There is a penalty provision for not fulfilling the pro bono minimum requirement, of KRW20,000–30,000 (approx. US$16–24) per hour of non-compliance. If the fines go unpaid, lawyers are subject to disciplinary sanctions by the Korean Bar Association.[5] However, there are no cases of successfully imposed disciplinary sanctions. Whether or not there are benefits from the mandatory pro bono measures, there is still much opposition to mandatory pro bono from South Korea’s lawyers and it remains controversial. These factors suggest that pro bono activity needs to be on a voluntary basis, and it may be better to require pro bono requirements in law school education so as to cultivate the good habit of pro bono.

With regards to China, Haidi Teng explained that there is currently no mandatory requirement for pro bono work. However, there is a requirement to do paid legal aid work when call on to do so by the Chinese Legal Aid Office.[6] If this obligation is not fulfilled, the law firm is subject to a penalty. However, Chinese lawyers who do fulfil their obligation receive a subsidy, so this scheme differs from common understandings of mandatory pro bono. Beyond this requirement, the recent legal aid draft administrative rule proposing 50 hours of public service work per year from every lawyer could be most helpful in creating awareness of pro bono work.

Cristina Collantes explained that the Philippines passed the Free Legal Assistance Act,[7] but it has not been implemented. The Act would require every practicing lawyer to provide at least 60 hours of mandatory free legal services at court. In practice, the requirement might amount to at least five cases per lawyer, which strikes lawyers as too many. The Act also contained exceptions, such as lawyers working for the government and lawyers who do not appear before court. More recently, the Philippines passed a Community Legal Aid Service Rule,[8] requiring that any new lawyer beginning in 2018 provides 120 hours of court services to the marginalised. However, this rule was suspended in 2019.

Finally, Saroj Ghimire observed that in Nepal, pro bono is voluntary, and making pro bono mandatory may not be tolerable, although in view of the practices of some countries, the issue is worthy of further reflection and discussion.

 


 

[1] Also with Kyongwha Chung, Cristina Collantes, Saroj Ghimire and Haidi Teng.

[2] Free Legal Assistance Act, Republic Act No 9999, enacted 27 July 2009. Section 5, provides that lawyers are entitled to an allowable deduction from their gross income of the amount that could have been collected for the actual free legal services rendered, or up to ten per cent of the gross income derived from the actual performance of the legal profession, whichever is lower.

[3] Opinion regarding promotion of lawyers’ participation of social welfare legal service, promulgated by the Department of Justice in 2019.

[4] Attorney-at-law Act (Law No 15974), article 27; Korean Bar Association Pro Bono Regulation (Regulation No 54), article 3(1).

[5] Korean Bar Association Pro Bono Regulation (Regulation No 54), Article 9.

[6] The Lawyers Law of China, Srticles 42 and 47.

[7]Free Legal Assistance Act, Republic Act No 9999, enacted 27 July 2009.

[8]Administrative Matter No 17-03-09-SC, issued by the Philippines Supreme Court, known as the Community Legal Aid Service Rule.

 

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