Pro bono lawyering: a view from Italy
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Giovanni Carotenuto
Carotenuto Studio Legale, Rome
gcarotenuto@carotenutolex.com
‘Pro bono’, short for ‘pro bono publico’, is a Latin phrase designating an activity performed ‘for the public good’. In the legal context, it generally refers to the free and voluntary provision of legal services, either judicially or extra-judicially, in favour of non-governmental organisations, non-profit associations and disadvantaged individuals. The issues at stake can be as diverse as supporting asylum claims, sorting out legal issues affecting the personal and professional lives of citizens, promoting women empowerment, or co-drafting national constitutions.
Pro bono is, essentially, a direct expression of the social function of the legal profession, proving instrumental to the upholding of human rights, the improvement of legal systems and the progress of society, at large. Yet, where does pro bono legal practice come from? Why would individual lawyers, or law firms, embark on such activities? More importantly, how does pro bono work in practice?
After briefly considering the history of pro bono lawyering and the reasons behind its growing popularity, we will explain its actual functioning through the example of Pro Bono Italia, the first ever association in Italy aimed at promoting a pro bono culture and practice.
The landscape
Some form of legal aid for disadvantaged people has always existed and can be traced back to ancient Greek and Roman societies. In Europe, a more structured system of legal assistance for the indigent was common during the Middle Age, but gradually lost popularity with the birth of the nation-state. In the United Kingdom and the United States, where state intervention is weaker and some services are traditionally supplemented by the private sector, pro bono practice gained firmer ground. At present, in order to be eligible to sit for the Bar exam, some US lawyers-to-be are under an obligation to perform at least 50 hours of pro bono work per year. More recently, both in consequence of cuts in legal spending and of the growth and international expansion of UK and US law firms, pro bono legal work has gradually come back to the forefront in Europe and is growing in popularity.
Aside from historical reasons, there are many other factors contributing to pro bono’s increasing appeal, which should be borne in mind when considering the subject. As per the individual lawyer, pro bono is an occasion to grow, both professionally – representing an invaluable training opportunity for young professionals who can get hands-on experience with a case from the beginning to the end, as well as engaging with legal matters sometimes very distant from one’s day-to-day business – and personally, by dealing with difficult life stories, or by tackling sensitive issues. You might be working in a global business law firm and yet find yourself representing refugees of all nationalities, as my own experience has proved. It is worthy of mention, moreover, that pro bono assistance may not take up very much time, as most issues are successfully resolved out-of-court.
From the firm’s perspective, then, pro bono work increases employees’ satisfaction and, by reinforcing its good reputation, attracts motivated young professionals. In the words of the UK Law Society: ‘There is no question that a robust pro bono programme is a sign of a law firm’s strength. It reflects the commitment of the firm to its employees, its community, the rule of law, and it justifiably burnishes the institution’s reputation for hard work and creativity’. From an even more general point of view, when engaging with topical legal issues, such as immigration laws or LGBTQ rights, close cooperation with civil society is compelling, as recent pro bono ventures in Italy have demonstrated.
Ultimately, what really pushes lawyers towards pro bono work, particularly those with a drive to help, is the personal gratification they get from it, which holds true beyond any commercial reason, or cultural difference.
Pro bono Italia
My first encounter with pro bono dates to a secondment I completed as an international associate at Simpson Thatcher LLP, in New York, in the years 2003–04. A few years after my return to Rome, while partner at Orrick, Herrington & Sutcliffe, I had the chance to serve on several cross-border pro bono cases.
From April 2014, with the promotion of the Global Network for Public Interest Law (‘PILnet’) and together with a few colleagues in charge of pro bono at some of the major UK/US firms with offices in Italy, I started to organise periodically the Italian Pro Bono Roundtables – informal get-togethers addressed at different actors within the organised civil society and aimed at fostering the debate on pro bono work.
As well as constituting the roots of Pro Bono Italia, these periodic Roundtables also form its very trunk, in that they represent a crucial opportunity for better understanding the variety of needs and perspectives surrounding pro bonowork, thereby creating room for improvement in its performance and spread across both Italy and Europe. This format very quickly proved successful and, at the end of 2015, led to the organisation of the first European Pro Bono Forum – organised by PILnet – ever held in Italy, with then President of the Italian Chamber of Deputies delivering the closing speech.
In 2017, I co-founded Pro Bono Italia[1] the first non-profit association of lawyers, law firms and forensic associations with the goal of promoting a pro bono culture throughout Italy – despite the country’s Latin heritage as pro bono is not traditionally part of the Italian legal culture. Italian attorneys are not often involved in pro bono legal services and the practice is not regulated in any official way. Rather, the state provides legal aid (Patrocinio a spese dello Stato) to citizens in need, defence being a constitutional right.
Yet, the threshold for accessing such patronage is high (around EUR 11,750 as yearly family income) and many needy people fall between the cracks. Moreover, no financial contribution is envisaged for out-of-court activity. In addition, the rules regulating the legal profession forbid Italian lawyers from carrying out conduct directed at the acquisition of client relationships in breach of the principles of ‘propriety and decorum’. This includes offering legal services free of charge, as it clashes with the idea of fair competition among attorneys. Yet, scholars and case law have often interpreted these professional rules as to allow for the provision of free legal services when these are ethically or socially motivated.
In this respect, Pro Bono Italia’s mission includes establishing a virtuous circle for the approval of laws, regulations and ethical standards relating to pro bono, as well as fostering an open dialogue between lawyers, non-profit associations, clearing houses, legal clinics and institutions, for the advancement of the common good, the protection of human rights and the improvement of the legal system. To meet these goals, Pro Bono Italia discusses the above-mentioned subjects not only during its periodic Roundtables, but also during seminars and workshops it regularly organises on relevant legal, social and cultural issues.
Pro Bono Italia also actively engages with a network of international partners, including, among others, PILnet, the European Pro Bono Alliance (EPBA), the European Pro Bono Initiative and the Association of Pro Bono Counsel. Last, but not least, Pro Bono Italia promotes an active dialogue with the Milan and Rome Bar Associations, whose Chairmen have institutionally saluted each of the three editions held so far of the Italy Pro Bono Day. These represent promising signs in respect of a possible future institutionalisation of pro bono in the Italian legal framework.
At present, Pro Bono Italia counts 35 members (Italian offices of global law firms, independent Italian firms with international vocation, smaller local firms, single practitioners), who have dealt with over 300 requests from non-profit associations or needy individuals, which would otherwise have been neglected. Thanks to the partnership with two clearing houses, established within the Italian Coalition for Civil Liberties and Rights (CILD) and the Italian National Association of Service Centres for Volunteering (‘CSVnet’), requests are evaluated and filtered before being transferred to the network of pro bono lawyers, who offer their legal assistance on a first-come-first-served basis. In the near future, this process will be made speedier and more efficient by means of virtual platform currently being developed.
Requests most frequently concern matters of civil law, corporate law, contract law, data protection, banking and finance, family law, immigration, labour law and Third Sector related issues. Whereas historically in Europe pro bono legal services have been primarily directed at non-governmental organisations clients (as individuals were supported by state-sponsored legal aid), since February 2020, Pro Bono Italia has begun to accept pleas from natural persons too. In the hope of starting a dramatic shift in the future development of pro bono lawyering itself, the Pro Bono Italia team has long been working on the drafting of preparatory guidelines, which would allow handling of individual requests. Efforts paid off and timing also proved perfect, if you consider the consequences of the on-going health emergency on the most vulnerable groups in society.
In the aftermath of the pandemic outbreak, in the spring of 2020, Pro Bono Italia created – together with the Milan office of the law firm Herbert Smith Freehills – a free online database with memoranda, briefs and other legal tools serving as a constantly updated guide on the consequences of laws and regulations issued in response to the health emergency. Concurrently, it joined several advocacy campaigns targeted at some of the categories most severely hit by Covid-19: children, prisoners and migrant workers. Therefore, pro bono lawyers belonging to Pro Bono Italia’s network have been called upon to assist non-profit clients and disadvantaged individuals on a large variety of legal issues, including employment cases, limitation of citizens’ rights, attachments and enforcement procedures, bankruptcy filings, bank loans and family law matters.
In recent years, we have witnessed the inescapable contribution of law in effectively tackling some of the most urgent questions of our time (think of discrimination on the grounds of sexual orientation, of growing inequalities, of climate change). By supporting non-profit associations address their legal issues, pro bono lawyering allows them to focus instead exclusively on their core social activities, which are now all the more important in respect to groups most badly hit by the pandemic.
As it clearly emerges from this article, pro bono work is the way lawyers have to ‘give something back’ to society and in the light of the issues highlighted, it is of great value.
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