Articles

Introduction

Volunteerism is a key aspect of humanitarian culture and principles, embodying the spirit of giving freely without any expectation of financial gain or ulterior motives. For lawyers, pro bono work exemplifies this ethos, as it involves providing legal services for little or no compensation.

During my time at Bharati Vidyapeeth Deemed University in Pune, India, I had the privilege of learning under the guidance of our college principal, the late Prof. Mukund Sarda, of blessed memory. Prof. Sarda had a unique way of making lectures engaging and enjoyable, often using humor to keep us alert and attentive. I remember one particular story he shared with us that vividly illustrated the values lawyers place on adequate consideration for services rendered to potential clients. This article will be extensive; therefore, I will not dive into the story here. The essence of referencing my college principal’s story is to highlight the sacrifices lawyers make in offering this humanitarian service, which has now taken on the distinguished title of pro bono.

The term pro bono is primarily associated with the legal profession. It is a short form of a Latin phrase “pro bono publico,” which means “for the public good.” Pro bono connotes a professional service rendered for free or for an insignificant consideration amount. While some legal practitioners may offer this service as a means to an end, others do so as a form of Corporate Social Responsibility (CSR).

Pro bono service is not novel to the legal profession; it dates back to 1770 when John Adams defended British soldiers on a pro bono basis. Observing that no one was willing to prosecute the case, Adams stepped in to defend the innocence of Captain Thomas Preston, who was accused and facing trial for ordering the killing of American colonists in Boston. The concept of pro bono is rooted in the principles of equity, fairness, and justice, especially for indigent litigants who cannot afford the services of lawyers to defend their cause in court.

This article seeks to explore the concept of pro bono in the legal profession in Nigeria and across various jurisdictions, using the practices in the United States of America (U.S.) and India as case studies.

What Is Pro Bono and Who is Eligible for Pro Bono Services?

Black’s Law Dictionary defines pro bono as “uncompensated, especially regarding free legal service performed for indigent or for a public cause.” Pro bono services are offered either at no cost or at a reduced cost. The primary objective is to make justice accessible to everyone, thus, bridging the gap between wealthy litigants who can afford legal services with ease and indigent litigants who struggle to meet basic human needs, let alone pay for legal representation. Pro bono services are not solely for indigent litigants; they encompass a wide range of activities, including law reform activities, participation in civic organizations, individual and group representation, and community service.

Generally, there are no specific qualifications required to be eligible for pro bono services. Individuals who receive such service include indigent persons, non-profit organizations (NGOs), friends, relatives, or employees of a lawyer. However, in some countries, pro bono services for indigent litigants are expressly provided by law as an obligation of the state to its citizens upon the fulfillment of certain conditions and requirements by the litigant.

In Nigeria, the concept of pro bono as a state duty is clearly outlined in the Legal Aid Act of 2011. Section 1 (1), (2) & (3) of the Act deals with the establishment of the Legal Aid Council and the Council’s responsibility to ensure that indigent citizens have access to legal aid, advice, and access to justice. The preamble of the Act reads:

“An Act to repeal the Legal Aid Act Cap. L9, Laws of the Federation of Nigeria, 2004, in line with International Standards and to Provide for the establishment of Legal Aid and Access to Justice Fund into which financial assistance would be made available to the council on behalf of the indigent citizens to prosecute their claims in accordance with the Constitution and further to empower the existing legal aid council to be responsible for the operation of a scheme for the grant of legal aid and access to Justice in certain matters or proceedings to persons with inadequate resources in accordance with the provision of this Act; and for related matters.”

In the case of Hussainara Khatoon v. The State of Bihar A.I.R 1979; SC 13690, it was held that: “For any person who is unable to afford a lawyer due to poverty, it is the duty of the state to provide the person a lawyer.”

In the U.S., the Sixth Amendment guarantees the accused the right to the assistance of counsel in all criminal prosecutions and requires courts to provide counsel for defendants unable to hire counsel unless the right was competently and intelligently waived.

Who is an Indigent?

According to Black’s Law Dictionary, an indigent is someone who is found to be financially unable to pay filing fees and court costs and so is allowed to proceed in forma pauperis. An indigent defendant is someone who is too poor to hire a lawyer and who, upon indictment, becomes eligible to receive aid from a court-appointed attorney and a waiver of court costs.

In Nigeria, there is no explicit definition of who qualifies as indigent. However, Section 9(1) of the Legal Aid Act 2011 states that: “legal aid shall only be granted to individuals whose income does not exceed the national minimum wage.” Currently, the minimum wage in Nigeria is Thirty-Thousand Naira. Based on this provision, an indigent person under Nigerian law is someone whose income does not exceed Thirty-Thousand Naira.

In India, Order XXXIII of the Civil Procedure Code (CPC) deals with suits filed by indigent persons. Order 33 Rule 1 of CPC defines an indigent as:

“A person is an indigent person: (a) If he is not possessed of sufficient means (other than property exempt from attachment in execution of a decree and the subject-matter of the suit) to enable him to pay the fee prescribed by law for the plaint in such suit, or (b) Where no such fee is prescribed, if he is not entitled to property worth one thousand rupees other than the property exempt from attachment in execution of a decree, and the subject-matter of the suit.”

Like Nigeria, the U.S. does not explicitly define who is considered indigent under its laws, nor has the U.S. Supreme Court provided a specific definition through judicial interpretation. However, the U.S. Supreme Court opinions speak largely of the rights of an indigent to legal representation. In the words of Justice Black:

“Reason and reflection require us to recognize that in our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” He further wrote that the “noble ideal” of “fair trials before impartial tribunals in which every defendant stands equal before the law . . . cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.”

Although there is no specification as to the description of who is poor under the U.S. laws, the following are factors to consider in evaluating an individual’s financial capacity:

1. Income from employment and such government programs as social security and unemployment compensation.
2. Real and personal property.
3. Number of dependents.
4. Outstanding debts.
5. Seriousness of the charge which suggests the likely fee of a retained attorney.
6. Other legal expenses (such as bail bond).

Cases that can Necessitate Pro Bono Services

Beyond the lack of finance/indigency, some laws also specify cases that qualify for state-provided pro bono. In Nigeria, the grant of legal aid, advice, and access to justice shall be provided by the Council in three broad areas: criminal defense service, advice and assistance in civil matters including legal representation in court, and community legal services subject to merits and indigence tests for the parties.

The current mandate of the Legal Aid Council as amended by the Legal Aid Act, 2011 in providing legal aid to indigent citizens in criminal defense matters is as follows:

Under the Criminal Code (for Southern States in Nigeria)

1. Murder of any degree.
2. Manslaughter.
3. Maliciously or willfully grievous hurt.
4. Assault occasioning actual bodily harm.
5. Common assault.
6. Affray.
7. Stealing.
8. Rape.
9. Armed robbery.

Under the Penal Code (for Northern States in Nigeria)

1. Armed robbery.
2. Culpable homicide punishable with death.
3. Culpable homicide not punishable with death.
4. Wounding or inflicting grievous bodily harm.
5. Criminal force occasioning actual bodily harm.
6. Common assault.
7. Affray.
8. Stealing.
9. Rape.

It is worthy of note that the Legal Aid Act, 2011 did not make classification as to civil matters that are eligible for state pro bono service.

In India and the U.S., state pro bono services to indigent citizens in criminal defense matters are not classified as in Nigeria. In all criminal defense matters, the state is obligated to provide pro bono services to citizens who do not have the financial prowess to prosecute or defend their matters in court.

Conclusion

Understanding and implementing the concept of pro bono in the legal profession is crucial for ensuring access to justice for all, regardless of financial status. The Legal Aid Act in Nigeria, along with similar provisions in other jurisdictions like the U.S. and India, underscores the importance of this service. As legal practitioners, recognizing and embracing our role in providing pro bono services can significantly impact society by promoting fairness, equity, and justice.