- January 20, 2023
- |Law Everyday
IS IT ALL ABOUT THE MONEY? – THE CASE OF PRO BONO WORK IN NAMIBIA
My decision to study law was based on the perception that lawyers make a lot of money as I observed the lifestyles of the few lawyers from the Zambezi region at the time (around 2004-2006). However, that perception was corrected by an introduction given to us as first-year law students back in 2007 by one of the lecturers as to why the law is needed in society. The lecturer gave a criminal case scenario that had to do with allegations of murder and the question of whether X committed murder. On that day, I learned that ‘murder’
and ‘killing’ are two different things, suffice it to say that the explanation simply changed my view from focusing on the ‘lawyer’ i.e., to make money, to why society needs law. Turns out that society needs the law to ensure that rights are protected through due process! I have carried that basic explanation with me ever since, which is why I do what I do as a Legal Pundit.
My perception might have been corrected, but the perception of many people still lingers on today. The public thinks that all lawyers want is money and that they do not care about their clients. Legal services are considered expensive, and this is made worse by the lifestyles associated with lawyers. The situation is further worsened
by the fact that most people do not understand what it is that lawyers do – because they are all liars – they would say. Therefore, the question of whether it is all about money is relevant and needs to be answered.
The answer to this question, in my view, is that it is about money but not all about money. It is rather about your rights and due process, both given to you by the law. However, to ensure that those rights are protected through due process, a service or function must be provided or performed, for which the service provider (lawyer) or functionary (prosecutor/judicial officer) is entitled to payment of fees or remuneration. The services of a private lawyer are usually procured by clients, for a fee, and the services of a non-practicing lawyer (prosecutor/judicial officer, corporate lawyer) are usually rendered as part of an employment contract, for remuneration. However, when we talk about whether it is all about the money, it is most certainly in respect of private practicing lawyers and advocates.
The Ministry of Justice sought to introduce amendments to the Legal Practitioners Act, 15 of 1995 which would require legal practitioners to provide a minimum of 120 hours of pro bono (free) work each year for clients who cannot afford legal services, unless they had already completed an equivalent number of hours in the public interest, as determined by the Law Society of Namibia, or if they make a financial contribution to the government’s Legal Aid fund equivalent to what they normally charge for 120 hours of work, or they are exempted for a number of reason.
I understand that some legal practitioners immediately objected to these proposed amendments on the basis that such would be unconstitutional; that it would constitute forced labour; violate the right to practice any profession or carry on any occupation, trade, or business (Legal Assistance Center, Pro Bono Publication of 06
October 2022). The question which arises from that is why not do pro bono work if it is not all about the money?
At a workshop on the proposed amendments in 2022, the Minister of Justice implored legal practitioners to go back to the basics of ‘service before gain’ by taking on cases for free in order to give the public access to legal services. The ministry’s former executive director Gladice Pickering said that legal practitioners ‘are more
concerned with what they can gain from the client rather than what they can do for them.’ The Legal Assistance Center was of the view that this proposal would be both constitutional and good policy. I agree with the position adopted by the LAC and the reasons advanced in their Pro Bono publication.
Allow me to take it further. Article 12 of the Constitution provides for the right to a fair trial which includes the right to be defended by a legal practitioner of one’s choice, and the being afforded adequate time and facilities for the preparation and presentation of one’s defence, before the commencement of and during the trial. Now,
this is a fundamental right that must be respected and upheld by the Executive, Legislature and Judiciary and all organs of the Government and its agencies and, where applicable to them, by all natural and legal persons in Namibia, and shall be enforceable by the Courts in the manner hereinafter prescribed (Article 5 of the
Constitution). Therefore, the government would be respecting and upholding this fundamental right when it introduces a law requiring pro bono work, and the legal practitioners would be respecting and upholding that right when they perform pro bono work, or alternatively contribute to Legal Aid or be exempted.
Furthermore, the constitutional right under Article 21(1)(j) “to practice any profession or carry on any occupation, trade or business” does not mean that there is a right to do these things free from regulation – as long as the regulations are rational and not unduly invasive (Trustco Ltd t/a Legal Shield Namibia and Another v
Deeds Registries Regulation Board and Others 2011 (2) NR 726 (SC); Ex parte in re: Kamwi v Law Society of Namibia 2009 (2) NR 569 (SC)). I submit that such regulation is found in Article 12, the Legal Practitioners Act, Law Society Rules, and Regulations, and in the ethical and professional standards of the profession itself, some of which are unwritten.
Therefore, when the Minister of Justice said legal practitioners need to go back to the basics of service before gain, she was probably referring to these long-established standards of ethics and professionalism for which the legal profession is considered ‘noble’. What would be noble about not assisting the neediest of the
Community, if it’s not all about money? I like and agree with what the Florida Supreme Court of Appeals said in Schwartz v Florida Bar Foundation, United States Court of Appeals, Eleventh Circuit, Case No.96-3276 that “the free provision of legal services to the poor has long been recognized as an essential component of the practice
of law”.
If the law indeed exists to protect the rights of people, those who are in the business of practicing law should have no qualms to do it for free at times, because doing so would be protecting a constitutional right, in my view. If one looks at the Oath/Affirmation taken by legal practitioners on admission, it becomes very clear what is expected of an admitted lawyer. It reads:
“I do hereby swear / solemnly affirm that I will truly and honestly demean myself in the practice of a legal practitioner according to the best of my knowledge and ability and will defend and uphold the
Constitution of the Republic of Namibia as the Supreme Law.”
To demean oneself should include demeaning oneself financially as well. The motivation for doing pro bono work has more to do with the person who becomes a legal practitioner, but once you become a lawyer, having taken the oath or affirmation, you become bound to certain rules. It is for that reason that the court can appoint a lawyer to represent an unrepresented litigant free of charge where justice may be compromised. law.”
Lawyers in the United States, as in Namibia and most other countries, are considered to be “officers of the court.” The constitutionality of this practice in the United States was upheld back in 1965 by a federal court that identified it as “an ancient and established tradition” and “a condition under which lawyers are licensed to practice’’ (LAC Pro Bono Publication) and I see no reason why it should not apply in Namibia.
Having said that, I must recognize that there are valid reasons for and against a statutory requirement to do pro bono work. I just highlighted some above, but I am definitely for pro bono work, and I applaud some law firms that have been providing free legal and other community services. Last year, I witnessed such work being
recognized at the Law Society of Namibia Annual General Meeting by the JP Karuaihe Foundation. It was also highlighted at that AGM that lawyers are not doing enough in the area of human rights. I concur, because, if one looks at cases of human rights, labour unrest, activism, social injustice, police brutality, and GBV which involves the most vulnerable members of society, a few lawyers take up these matters in the form of representation, solidarity or simply writing about it. In this sense, I conclude that pro bono work goes beyond
not charging a client, it is a core principle of the legal profession itself which can be demonstrated in many other ways by all members of the legal profession, practicing or non-practicing, admitted or not admitted.
Fedden Mainga Mukwata – Legal Pundit