A couple of months ago, the judgment of the Supreme Court in B. Sunitha v. State of Telangana[1] created quite a flutter in the legal circles 
as well as among the public at large. This was triggered by the media reporting that the Supreme Court (in the judgment[2]) had expressed the need to “introduce legislative changes for an effective regulatory mechanism to check violations of professional ethics by lawyers and also ensure access to legal services by regulating the astronomical fees charged by them”.
Fascinatingly, a reading of the judgment suggests a very different story. In the concluding paragraph of the judgment[3], the Supreme Court expressed:
28. … hope that the authorities concerned in the Government will take cognizance of the issue of introducing requisite legislative changes for an effective regulatory mechanism to check violation of professional ethics and also to ensure access to legal services which is major component of access to justice mandated under Article 39-A of the Constitution.
The above-mentioned conclusion clearly points to the position that the Supreme Court did not make any specific reference to regulation of fees charged by lawyers. It has been left to the wisdom of the legislature to devise the measures to give effect to the broad mandate of Article 39-A viz. for ensuring access to justice. It is evident that the Supreme Court took this approach being conscious of the reality that regulation of fees of lawyers is neither practical nor healthy.
Lawyers are professionals who provide legal services to their clients. As a practice, the lawyer quotes a fee for his services which the client may choose to pay or not. In case the client agrees to pay the fee quoted by the lawyer, the lawyer proceeds to undertake the assignment on behalf of the client. Alternatively, the client is free to reject/refuse the fee quotation and not engage the lawyer. There are times when the client renegotiates the fee and the lawyer agrees to charge the lower agreed fee. It can be seen that the terms of engagement of a lawyer by a client is the subject-matter of a private contract/arrangement between the lawyer and the client. As such, lawyers should be entitled to charge fees as they feel appropriate and commensurate with the services they render.
However, the above-mentioned judgment can certainly be the talking point for the need to give impetus to the concept of access to justice and to reorient the role of lawyers in India in ensuring its success. One of the globally tried and test ways to do so is to encourage pro bono legal services in India. Pro bono publico is a Latin phrase which means “for the good of the people”. It is commonly used in its short form “pro bono”. In the legal sphere, the term “pro bono” refers to legal services performed free of charge or at reduced fees for the public good. Pro bono work is not to be confused with the traditional legal aid services, which relate to services provided by lawyers who are engaged by the legal services authority. Pro bono services seek to leverage the skills of highly trained, successful and top legal professionals to help those who are unable to afford lawyers.
In several countries such as the USA, the EU and Australia, pro bono work has blossomed into an extremely powerful system for community services. The essential feature of pro bono services in these countries is that it serves as means to provide legal assistance to socially and economically weaker sections of the society that are often denied access to justice due to lack of awareness and financial constraints.
Pro bono legal assistance is widespread phenomenon in the United States. There are several independent organisations that either provide pro bono services under their umbrella or refer clients to attorneys for pro bono services. The American Bar Association (ABA) has become torchbearer in the effort to enhance pro bono legal services to the marginalised sections of the society. The ABA Model Rules of Professional Conduct mandates that every lawyer ought to provide pro bono legal services of at least 50 hours. Pro bono legal work is also an integral part of the curriculum of law programmes offered by American universities.
In South Africa, pro bono work was being carried out by legal practitioners on an informal basis till 2003 when the Cape Law Society made pro bono work mandatory for its members. The Law Society of South Africa requires an attorney to provide a minimum of 24 hours per year of free legal advice. Besides these efforts, individual legal practitioners and law firms in South Africa also provide pro bono services on a voluntary and informal basis.
Australia prides itself as one of the leaders in the world in providing pro bono legal services. Though the efforts are not as widespread as in the US, the push for development of pro bono services is more strategic with the establishment of elaborate pro bono referral schemes. There are, however, no specific pro bono rules mandating minimum number of hours of pro bono work which the solicitors and barristers are required to satisfy to maintain their practising qualifications.
On the other hand, in the United Kingdom, there is no mandate that solicitors or barristers provide pro bono services such as in United States. However, many solicitors’ firms having their counterparts in the US are regularly providing pro bono services. There are several non-profit organisations which assist also clients with pro bono legal assistance. In contrast, the UK legal aid system is well established and robust.
Since the India legal system mirrors itself on the British one, pro bono work is not deeply ingrained as one of its norms. However, the concept of pro bono services is not alien to the India. Rule 48 of the “Standards of Professional Conduct and Etiquette” under the Bar Council of India Rules provides that every advocate shall bear in mind that anyone who is genuinely in need of a lawyer is entitled to legal assistance even though he cannot pay for it fully or adequately. Within the limits of an advocate’s economic condition, an advocate is obligated to provide free legal assistance to the indigent and oppressed.
Like the UK, the concept of legal aid is ingrained in the Indian legal system. The Legal Services Authorities Act, 1987 was enacted to constitute legal services authorities for providing free and competent legal services to the weaker sections of the society and to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. The Supreme Court and the High Courts including the lower judiciary have wholeheartedly championed the cause of legal aid.
Despite this, the legal aid system in India has proven to be ineffective. The major obstacle is the serious dearth of accomplished lawyers who are willing to work under the aegis of the Legal Services Authorities. At times, owing to low remuneration, lawyers are uninterested in providing competent legal assistance. Most importantly, owing to clients being referred to the lawyers through the Legal Services Authorities, a trust oriented and professional lawyer-client relationship seldom fructifies. The lawyers remain extremely cautious as the clients are perceived to be thrust upon them and clients tend to have unrealistic expectations. The fact that the lawyer is being paid for his services by the Legal Services Authorities makes a client feel that the advocate owes greater accessibility and higher service quality. The lawyer does not see the fee to be commensurate with the work done and efforts made.
Pro bono services are free from such prejudices. The lawyers take up pro bono assignments with the willingness and noble intention to serve. There is an opportunity for both the lawyer and the client to assess their compatibility. The client is also aware that the lawyer is working free of charge and with the best interests of the client in mind. This leads to growth of mutual respect, trust and cohesive working relationship. Another crucial factor that works to the benefit of the pro bono system is that both the client and the lawyer has a right to stop the engagement with no questions asked. In the legal aid system, these issues tend to raise eyebrows.
The progress of the Indian society has resulted in greater awareness amongst its people about their rights and growth of their legal needs. This requires meaningful contribution from the legal community in the form of pro bono legal service. Pro bono service has not gained much momentum in India as a concept and as a means to provide an enduring contribution to access to justice. Even though laudable pro bono services are already being rendered by some practitioners and law firms and even senior advocates, this system has not received its due recognition and continues to remain a mere ad hoc and individualised practice of a handful.
In order to promote pro bono legal services, the Department of Justice has taken steps to create a database of lawyers who provide and are willing to provide pro bono services so that such lawyers can be considered for appointment to appropriate positions. After the judgment of the Supreme Court in Indira Jaisingh v. Supreme Court of India[4], pro bono work has become one of the qualifying parameters for designation as Senior Advocate. Instead of providing a mandatory pro bono services framework which tends to have its pitfalls, there is an emergent need to further incentivise pro bono legal services. This will go a long way in integrating the culture of pro bono work into the legal community. A healthy combination of legal aid and pro bono services will go a long way in enabling our country to achieve the much hallowed objective of access to justice.
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* Practising Lawyer in the Supreme Court of India.
[2] Ibid.
[3] Id., 648.
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