Pro bono work is increasingly finding a place in the schedules of busy Indian lawyers
Rebecca Abraham reports
In 2007, when Novartis filed two petitions in Madras High Court challenging the decision of the Chennai patent office to deny it a patent for its cancer drug Gleevec, it was able to marshal the services of three senior counsel: Soli Sorabjee, Shanti Bhushan and Habibullah Badsha. Opposing the Gleevec patent were nine respondents, who between them could muster only four senior counsel.
Respondent number six, the Cancer Patients Aid Association, had to make do without a senior counsel, which, as the judgment in this closely watched case was to show, was not much of a handicap. For not only did they have the formidable Anand Grover by their side, but he was appearing for them pro bono.
Arguing “with tremendous ease”, as noted in the judgment, Grover cut through the complex world of patents, intellectual property and international treaties to successfully help block the Gleevec patent. And all of this without a billing clock ticking ominously by his side.
Hard act to follow
At present however, apart from Grover and his organization, Lawyers Collective, few individual lawyers or law firms will take on a complex, lengthy litigation case without charging a fee. Although many of India’s larger law firms are increasingly conscious of the need to do their bit to broaden access to justice and so will advise not-for-profit organizations for free, they are some distance away from being able to match Grover’s efforts. In particular, there is a reluctance among lawyers to get involved in court cases on a pro bono basis.
Commenting on the commitment shown by law firms to pro bono work, Dr Kamala Sankaran of the faculty of law at the University of Delhi observes that “pro bono wings are poorly developed”. Yet, attitudes are changing and some of the pressure to do more pro bono is coming from outside the legal fraternity.
One such driver of change is Ashoka, an international organization that works with social entrepreneurs. Pro bono lawyers from Trilegal and Amarchand Mangaldas provide legal training and support to its entrepreneurs and fellows. In addition, Tanya Jairaj, the manager of Ashoka’s fellowship programme, says that Nishith Desai Associates and Bhasin & Co are staunch champions and have helped Ashoka grow tremendously. She adds that the work done by lawyers from all these firms has helped to both further “Ashoka’s vision of everyone being a change maker” and also “build a pro bono culture in the legal profession”.
Admitting that it is still hard to get larger law firms to work pro bono on litigation cases, Jairaj points out that there are other ways in which they can get involved. Citing an instance where an Ashoka fellow was involved in a litigation case at Patna High Court, Jairaj describes how senior lawyers from Amarchand Mangaldas stepped in “fantastically” with vital strategic advice and got so involved that they were soon going “out of their way” to regularly vet what was happening at each step. “When you show lawyers the connection between the work they do and the change that happens, they believe they own the change and that can be pretty powerful,” she says.
Another organization that sees itself as a driver of change is a UK-based underwear maker, Pants to Poverty, which has its origins in the global campaign to make poverty history. It sources all of its merchandise from India and in doing so has touched the lives of several thousand cotton farmers across Andhra Pradesh and Maharashtra.
Pants to Poverty has been able to count on legal expertise provided free of charge by the UK office of Hogan Lovells. A few of the firm’s lawyers also helped the cotton farmers – who had created a marketing company called Zameen Organic – with strategic planning.
Ben Ramsden, the organization’s founder, says he believes that exposing the lawyers to this work has “opened up a whole new world of legal practice to them”. What the lawyers did showed them how “their legal practice can create wonderful positive social and environmental change” and also helped to “energize” the pro bono work done by the firm.
More recently, working with Hogan Lovells in the UK, Pants to Poverty launched a “pants bond” – a unique financial instrument through which it aims to raise £250,000 (US$388,000) to fuel further growth. Ramsden says that “well targeted pro bono support has the potential to act as a catalyst for the marginalized to liberate themselves from poverty”.
Hogan Lovells is typical of many international law firms that are working hard to get their pro bono practice right. With the involvement of almost one-third of its lawyers, it currently provides a wide range of pro bono services, which in the UK and the US includes representation for dozens of military veterans who are trying to claim disability benefits.
Yasmin Waljee, international pro bono manager at Hogan Lovells in London, says 13 years ago when she joined the firm, it did only about 300 hours of pro bono work each year. Since then, the practice has gone from strength to strength and just before merging with US-based Hogan & Hartson on 1 May, the lawyers at UK-based Lovells were undertaking around 21,000 pro bono hours per year. Today, Waljee says, pro bono work is “one of the five values on which people get evaluated at the end of each year”. It therefore provides an incentive and most people who choose to give their time “find it extremely rewarding”.
Indian law firms are also working to afford higher priority to their pro bono activities. Trilegal, which has about 140 lawyers in four offices across India, does not have a dedicated pro bono team like Hogan Lovells. But, for the last four to five years Trilegal’s lawyers have been able to count the hours they have spent on pro bono as part of their billable hour targets.
Ajay Raghavan, a partner who looks after Trilegal’s employment practice at the firm’s Bangalore office, doubles as its pro bono person. He says that partners have always carried out pro bono work and although their peers respected them for it, they received little recognition from the firm. Allowing people to count the pro bono work they do towards their billable hours target signals that the firm recognizes the importance of such initiatives.
Counting pro bono work towards billable hours is also the norm at Alcacit Global, a firm that focuses on intellectual property and has offices in Chennai, Bangalore and Coimbatore. Jairaj at Ashoka believes that this is “a huge step forward” as “you cannot try to institutionalize something without incentives”.
Fostering a pro bono culture
In spite of this, pro bono work at Trilegal is often done only on “an ad-hoc basis depending on what comes their way and what people are interested in,” says Raghavan. The firm is therefore looking to introduce a pro bono policy whereby a certain amount of pro bono work will be a criterion for career advancement.
While grappling with the challenges of getting “the balance right between pro bono and billable work”, Raghavan says that Trilegal continues to advise organizations such as Ashoka India, the Red Cross and a few companies in the microfinance sector. In addition, the firm offers legal services to clients who are financially weaker and “want to manage the basic cost of the transaction”. In such cases, partners will do the work at a reduced fee.
Suhaan Mukerji, a partner at the Delhi office of Amarchand Mangaldas, refers to such arrangements as “low bono”. While Amarchand has always undertaken some low bono work, it also does a considerable amount of advisory and transactional pro bono work.
Most of this is done through organizations such as the Lex Mundi Pro Bono Foundation, which recently commended Amarchand for its work. However, as Mukerji – who coordinates the pro bono practice at this firm – says, while people volunteer readily for the work it is “not a core evaluation principle”.
At Phoenix Legal, a relatively young firm, which has 27 lawyers, the real motivation to get involved in pro bono projects is often the sense of fulfilment that comes with working for a not-for-profit organization. Sawant Singh a partner at the firm says it gives lawyers “who are generally wired to think commercially given the transactional nature of their work, a different client perspective”.
From April 2009 to the end of October 2010 Phoenix has spent 120 hours advising the Grameen Foundation on issues such as service agreements that use open source microfinance software, partnerships with the solar energy sector, and third-party collateral arrangements.
The Grameen Foundation also receives free advice from AZB & Partners. The firm recently sent an associate on secondment to the Grameen Foundation’s office in the Philippines. The associate is spending two months in the Philippines analysing mobile money and microfinance regulations and studying ways of fostering financial inclusion.
A lot of the pro bono work undertaken by AZB is in the microfinance sector. As Vineetha MG, a partner at the firm explains, its involvement in the sector began long before the emergence of large for-profit microfinance companies. The firm has done both pro bono and deeply discounted work for several companies including Cashpor Microfinance and Friends of Women’s World Banking. This work helps us “think creatively and devise out of the box solutions,” she says.
Choosing the right beneficiaries
Some observers are critical of the choices law firms make about which groups to assist on a pro bono basis. Jairaj, for example, believes that “it makes little sense to do pro bono work for an organization that is fairly well endowed”. She is especially critical of firms that categorize work for religious and educational institutions as pro bono and believes that the work needs to be “qualified further”.
This is a point of view that may well find favour with the courts. In Kishore Chand v State of Himachal Pradesh, an appeal against a messy murder conviction, the Supreme Court said it was high time that experienced lawyers volunteer as a part of their professional duties. If they do not, the court added, despite the fundamental right to equal justice that is enshrined in the Indian constitution, an “indigent accused” would have to make do “with unequal defence if, as it is common knowledge, the youngster from the Bar who has either a little experience or no experience is assigned to defend him”.
While there are already laws in place requiring lawyers to provide free legal services to the needy, the recent draft Legal Practitioners Bill imposes a duty on every legal practitioner to do so. But most of the lawyers who already undertake pro bono work believe that there is little that a law can do and the desire to do it must come from the individual.
Lalit Bhasin, president of the Society of Indian Law Firms, agrees. “We do not believe in any regulation to cover provision of free legal services,” he says. He argues that imposing a duty through legislation will be counterproductive and that this is best left to the law firms to decide.
Whether it is achieved through legislation or changing attitudes among lawyers is yet to be seen. But with there being “immense potential for the corporate might of India to link up on a pro bono basis with the marginalized poor”, as Ramsden of Pants to Poverty observes, there will be no shortage of pro bono opportunities for India’s corporate lawyers.