The role of pro bono work within the Swiss legal system in promoting and strengthening the rule of law in underserved communities
Andreas Wehowsky; Urs Hoffmann-Nowotny1
Schellenberg Wittmer Ltd, Zurich
Every lawyer is familiar with the concept of pro bono2 work. While there is no strict definition of the concept within the legal profession,3 pro bono work may be broadly described as activities undertaken without expectation of a fee and consisting of the delivery of legal services by an attorney.4 The provision of legal services for no fee naturally enables underserved communities to obtain access to justice in a manner that otherwise would not be available to them. Ultimately, this increased access to justice strengthens the rule of law,5 which has been considered as one of the key dimensions that determine the quality and good governance of a country.6
Pro bono work is firmly rooted in common law legal traditions, in particular in the US.7 The American Bar Association recommends 50 hours of legal pro bono work per year.8 The Law Society in the UK also promotes pro bono work, with one of the reasons being that demand is increasing in the UK due to changes in legislation which have led to funding cuts to legal aid, including access to legal advice.9 By contrast, in a civil law jurisdiction such as Switzerland, at first glance pro bono work seems to be less prevalent and important compared to common law jurisdictions. This seemingly reduced significance of pro bono services could lead to the question whether underserved communities perhaps cannot avail themselves of the rule of law in legal systems like the Swiss one to the same extent as in common law jurisdictions. The present article will answer this question by analyzing the means by which underserved communities in Switzerland may obtain access to justice. In doing so, the analysis will also explore whether it is correct to conclude that pro bono work is of limited significance in Switzerland and, if this is the case, explain the reasons for this limited significance.
Law firms’ approach to pro bono work
As a starting point, there are no express rules on the rendering of pro bono services in Switzerland.10 However, law firms of all sizes11 regularly offer pro bono services.12 Beneficiaries of the services include both individuals and legal entities, the latter often being charities or philanthropic ventures such as the Red Cross, or foundations supporting children and promoting human rights.13 Based on the authors' own experience, beneficiaries of a law firm's pro bono services even include individuals living outside Switzerland that need legal protection in Switzerland. Absent such pro bono services, these individuals would not be able to obtain legal protection in Switzerland due to financial constraints. As a result, the pro bono services of Swiss law firms can also play a crucial role in promoting and strengthening the rule of law and supporting underserved communities. As a side effect, law firms may also benefit from pro bono services by not only improving their reputation and CSR (corporate social responsibility) standing but also by developing additional skills and expertise in fields which otherwise would not form part of their core practice areas (eg a big law firm assisting in the case of an asylum seeker).14
The Geneva Bar Association has even established an online platform relating to pro bono work, the ‘Plateforme Pro Bono’. This platform aims to put legal entities such as NGOs, foundations and associations that are active in the field of human rights, in contact with lawyers of the Geneva Bar who are willing to provide free legal support in their areas of expertise.15 Finally, the recently founded Swiss branch (currently based in Geneva) of the US-American ‘Innocence Project’ aims to provide free assistance to wrongfully convicted persons in Switzerland.16
Legal framework governing access to justice
In addition to these examples for classical pro bono work, which may be less widespread than in common law jurisdictions, there are several further rules and institutes in the Swiss legal system that lead to a reduction of the costs of legal services or even relieve those in need completely from relevant costs.
First, the Swiss Constitution17 provides that any person18 that does not have sufficient means is entitled to legal aid unless the case appears to have no prospect of success. This right guarantees that the person concerned will not have to pay court costs in order to have access to justice.19 Furthermore, it includes a right to free legal representation in court if this is necessary to safeguard relevant rights.20 Where a party receives such free legal representation, the court assigns a lawyer to the party and pays the lawyer at a reduced rate.21 However, it is noteworthy that if the party acquires sufficient means later on, the court may recover the costs and demand payment of the court fees as well as the attorney fees that it paid on the party's behalf.22 Provisions in codes of procedure complement and specify these constitutional principles on legal aid.23
Second, according to art. 12 lit. g of the Federal Act of 23 June 2000 on the Free Movement of Lawyers, lawyers admitted to the Swiss bar are obliged to provide legal representation within the framework of legal aid described above. Similarly, the Code of Conduct of the Swiss Bar Association requires lawyers to ensure that legal assistance is provided free of charge to those in need.24 In addition, each cantonal bar association (whose members are also members of the Swiss Bar Association) offers regular free legal advice to the public in short sessions provided by their members.25 This may be seen as pure pro bono work according to the definition above. Nevertheless, lawyers have no obligation to work a certain minimum number on pro bono cases.26
Third, Swiss courts also offer free general legal advice (ie excluding specific, case-related questions) during certain consultation hours.27 This free legal advice from courts may be particularly important to build trust in the justice system and promote an understanding of the legal process. Based on experience, parties who are not represented by lawyers are often very receptive to answers from members of the court on how and where they have to submit their case.
Additional avenues outside the legal system
Outside the specific system of the legal profession and courts, certain specialised bodies like civil society organisations offer free legal advice as well. Examples include law students advising other university students28 and foundations offering services to the benefit of the elderly.29 Adding to that, during the Covid-19 pandemic further civil society organisations have emerged. While these organisations first offered free legal advice related to the pandemic, they now offer legal advice beyond Covid-19 related questions. Such organisations also recommend lawyers where they cannot provide sufficient advice themselves.30 Collaborations between the legal community and civil society organisations of this kind advance the rule of law in new and innovative ways.
Finally, legal expense insurance for private individuals is becoming increasingly common in Switzerland. For a premium, such insurance will cover court fees and also provide legal advice. Where necessary, it also (at least to a certain extent) covers the fees of external lawyers.31 The premium payable for this type of insurance for private individuals is on average a few hundred Swiss Francs per year, and may potentially cover legal expenses totalling well over 100,000 Swiss Francs. Not least due to this favourable ratio between premiums and potential benefits, scholars consider legal expense insurance to significantly improve the access to justice.32
Advantages and limitations of the current system
As the above reveals, the Swiss legal system provides various options for members of underserved communities to obtain free legal advice and to pursue their rights in court without having to pay court fees. This variety of options may explain why classical pro bono work, understood as the rendering of legal services by an attorney without expectation of a fee, may be of more limited importance in Switzerland, without however (significantly) affecting the access to justice.33 Furthermore, one noteworthy benefit of the legal aid guaranteed by the Swiss Constitution is that a party lacking the financial means does not have to pay court fees (as long as it does not acquire sufficient funds later on). However, it is worth mentioning that ‘lacking the financial means’ means that legal aid is not granted to all private individuals who cannot afford court costs and attorneys' fees, but is rather limited to those who only have minimal means to pay for the costs of living for themselves and their family. The basis to determine such a lack of means is the minimum subsistence level under Swiss debt collection law,34 which is well below the median salary in Switzerland.35 This will often result in the exclusion of members of the (lower) middle class who earn the median salary or more from receiving legal aid.36 Against this backdrop, scholars have cautioned that the Swiss system of legal aid may be insufficient to effectively guarantee access to justice where a person has sufficient financial means to prevent them from qualifying for legal aid but still not enough to finance a (lengthy) litigation.37 Furthermore, the prospect of having to reimburse the courts for the funding received as part of legal aid once a party's financial situation has improved may also be deterring.
Conclusion
In conclusion, although the significance of classical pro bono work in the Swiss legal system seems more limited than in common law jurisdictions, the system nonetheless offers a variety of options for underserved communities to obtain access to justice at no or at least reduced cost. While these options do not qualify as actual pro bono services in the strict sense, they all help to promote and strengthen the rule of law. Yet, there still seems to be room for improvement in order to better support the access to justice of the (lower) middle class that does not qualify for legal aid.38
1 The authors would like to sincerely thank Ms Louise Adair, Associate at Schellenberg Wittmer, for her valuable input and critical review of the manuscript.
2 The term "pro bono" originates from the Latin term "pro bono publico" which means "for the public good or welfare"; see https://www.collinsdictionary.com/dictionary/english/pro-bono-publico (last visited 23 March 2023).
3 Laissue Laure-Hélène/Rordorf Héloïse, Le Pro Bono et les Avocats Genevois, Revue de l'avocat 2015 p. 151.
4 Peter Henry, Les Avocats et la Philanthropie, Revue de l'avocat 2018, p. 83, with further references.
5 See e.g. on the relationship between pro bono work and access to justice Sethumadhavan Samyuktha, Should We Rely on Pro Bono to Keep the Rule of Law Afloat?, Rule of Law Journal 2020, pp. 25 et seqq.
6 See e.g. OECD, Good Practice Principles for People-centred Justice, 2021, passim, available at: https://www.oecd.org/governance/global-roundtables-access-to-justice/good-practice-principles-for-people-centred-justice.pdf (last visited 23 March 2023).
7 See e.g. the American Bar Association (which places strong emphasis on the rendering of legal services without expectation of a fee), Pro Bono, available at: https://www.americanbar.org/topics/probono/ (last visited 23 March 2023); see further Laissue/Rordorf (above, fn. 3), p. 152.
8 American Bar Association, Pro Bono, available at: https://www.americanbar.org/groups/professional_-responsibility/publications/model_rules_of_professional_conduct/rule_6_1_voluntary_pro_bono_publico_¬service/ (last visited 23 March 2023).
9 The Law Society, Introduction to Pro Bono, available at: https://www.lawsociety.org.uk/topics/pro-bono/introduction-to-pro-bono (last visited 23 March 2023).
10 Latham & Watkins/Pro Bono Institute, Pro Bono Practices and Opportunities in Switzerland, p. 2, available at: https://www.lw.com/admin/Upload/Documents/Global%20Pro%20Bono%20Survey/pro-bono-in-switzer¬land-3.pdf (last visited 23 March 2023).
11 See also Peter (above, fn. 4), p. 84.
12 See e.g. Schellenberg Wittmer, Pro Bono, available at: https://www.swlegal.com/en/csr/csr-overview/pro-bono/ (last visited 23 March 2023).
13 See e.g. the list of partner organizations for which the law firm Schellenberg Wittmer offers pro bono services.
14 See the example of the late Prof. Lalive at https://www.lalive.law/corporate-social-responsibility/ (last visited 23 March 2023).
15 See Ordre des Avocats Genève, Plateforme Pro Bono, available at: https://odage.ch/plateforme-pro-bono/ (last visited 23 March 2023).
16 See in detail https://projet-innocence.ch/ (last visited 23 March 2023).
17 Article 29 para. 3 Swiss Constitution.
18 Legal aid granted by the constitution is generally only available to private individuals although there are very limited exceptions; see Decision Swiss Federal Supreme Court of 22 May 2017, BGE 143 I 328, consideration 3.
19 Waldmann Bernhard, in: Waldmann Bernhard/Belser Eva Maria/Epiney Astrid (eds.) Basler Kommentar, Bundesverfassung, Basel 2015, Art. 29 para. 70.
20 Article 29 para. 3 Swiss Constitution.
21 See e.g. art. 118 para. 1 lit. c of the Swiss Civil Procedure Code.
22 See e.g. art. 123 of the Swiss Civil Procedure Code.
23 See e.g. arts. 117 et seqq. of the Swiss Civil Procedure Code.
24 Article 17 para. 1 Code of Conduct of the Swiss Bar Association.
25 See e.g. https://www.zav.ch/fuer-rechtssuchende/rechtsauskunftsstellen.html (last visited 23 March 2023).
26 Latham & Watkins/Pro Bono Institute (above, fn. 10), p. 4.
27 See e.g. Gerichte Zürich, Sprechstunde, available at: https://www.gerichte-zh.ch/organisation/bezirks¬gerichte/bezirksgericht-meilen/informationen/sprechstunde.html (last visited 23 March 2023).
28 See e.g. VSUZH, Rechtsberatung, available at: https://www.vsuzh.ch/rechtsberatung (last visited 23 March 2023).
29 See e.g. Pro Senectute, Beratung, available at: https://zg.prosenectute.ch/de/beratung.html (last visited 23 March 2023).
30 See e.g. https://www.verein-legal-help.ch/ (last visited 23 March 2023).
31 Luterbacher Thierry, Rechtsschutzversicherung im Rechtsberatungsmarkt, in: Fellmann Walter (ed.), Rechtsschutzversicherung und Anwalt Tagung vom 4. April 2017 in Luzern, Berne 2017, p. 185.
32 Luterbacher (above, fn. 31), pp. 188 et seq.
33 See also Peter (above, fn. 4), p. 84; see further on the significance of the Swiss concept of legal aid for the rule of law and access to justice Wuffli Daniel/Fuhrer David, Handbuch unentgeltliche Rechtspflege im Zivilprozess, Zurich 2019, paras. 6 et seqq.
34 See e.g. Gerichte Zürich, Merkblatt unentgeltliche Prozessführung in Zivilsachen sowie amtliche Verteidigung und unentgeltliche Rechtsvertretung für Privatkläger in Strafverfahren, available at: https://www.gerichte-zh.ch/fileadmin/user_upload/Dokumente/Themen/Allgemeine_Dokumente/-Prozesskosten/M_unentgeltliche_Rechtspflege.pdf (last visited 23 March 2023).
35 See on the calculation of the minimum subsistence level under debt collection law e.g. Konferenz der Betreibungs- und Konkursbeamten der Schweiz, Richtlinien für die Berechnung des betreibungsrechtlichen Existenzminimums (Notbedarf) nach Art. 93 SchKG vom 24. November 2000, available at: https://www.bj.admin.ch/dam/bj/de/data/wirtschaft/schkg/sz/01-sz-ks-d.pdf.download.pdf/01-sz-ks-d.pdf (last visited 23 March 2023). Based on practical experience, the resulting amount of the minimum subsistence level is usually between CHF 4'000 and CHF 5'000. The median salary in Switzerland in 2020 was CHF 6'665, see Bundesamt für Statistik, available at: https://www.bfs.admin.ch/asset/de/21224887 (last visited 23 March 2023).
36 See e.g. Hablützel Martin, Schweizerische ZPO, eine Anleitung, wie man Rechtssuchende vom Gang zum Gericht abhält!, HAVE 2019, pp. 135 et seq.
37 Hochstrasser Daniel/Sunaric Predrag, Zur Revision des Kostenrechts im Zivilprozess Das Gegenteil von gut ist nicht schlecht, sondern gut gemeint, AJP 2021, pp. 348 et seqq.; Meier Isaak/Schindler Riccarda, Unerschwinglichkeiten der Rechtsdurchsetzung – eine Verweigerung des Zugangs zum Gericht?, in: Fellmann Walter/Weber Stephan (eds.), Haftpflichtprozess 2015, Zurich 2015, p. 32.
38 See with a critical view on current attempts to improve the access to justice for the middle class Hochstrasser/Sunaric (above, fn. 37), pp. 353 et seq.