The requirement would be waived if the legal practitioner had already completed an equivalent number of hours in the public interest, as determined by the Law Society of Namibia, or if the legal practitioner makes a financial contribution to the government’s Legal Aid fund equivalent to what they normally charge for 120 hours of work.
It is also proposed to exempt certain groups of lawyers such as those in small firms with small profit margins, those just starting out in practice, or those experiencing other forms of hardship.
Some lawyers immediately cried foul, asserting that such a requirement would be unconstitutional. The Legal Assistance Centre is of the view that this proposal would be both constitutional and also good policy.
Namibian courts have repeatedly held that the constitutional right of all persons under Article 21(1)(j) “to practise any profession, or carry on any occupation, trade or business” does not mean there is a right to do these things free from regulation.
In 2017, a legal practitioner in Canada challenged law society rules in one province which required all practising lawyers to complete 12 hours of continuing professional development activities each year, with sanctions for failure to comply.
The Canadian Supreme Court found that these rules were a reasonable exercise of the law society’s statutory duty “to uphold and protect the public interest in the delivery of legal services”.
Perhaps somewhat more on point, in the United States (US) state of Florida, several courts considered the acceptability of a rule saying that practising lawyers “should” provide 20 hours of pro bono legal services to the poor each year or make an annual contribution of US$350 to a legal aid organisation, with exceptions for government lawyers as well as judges and their staff members.
The contribution was voluntary, but the rule imposed a mandatory annual reporting requirement, which some asserted would lead to public pressure that would make the requirement binding in practice.
The State Supreme Court supported the rule, noting that lawyers are granted a monopoly on participating in the public justice system and so are in return “ethically bound to help the state’s poor gain access to that system”.
One lawyer then took the same issue to a federal court, arguing that the rule violated a number of his constitutional rights. The court disagreed, saying that “the free provision of legal services to the poor has long been recognised as an essential component of the practice of law”.
Would mandatory pro bono work constitute “forced labour”, which is prohibited by Article 9(2) of the Constitution?
Article 9(3) provides a number of exceptions to this prohibition, including “any labour reasonably required as part of reasonable and normal communal or other civic obligations”.
Requiring mandatory pro bono hours from legal practitioners is probably not equivalent to forced labour in the first place, particularly if there are alternative options, such as the payment of a financial contribution.
Even if this requirement were considered to be a form of forced labour, it would probably fall into the category of exceptions for reasonable and normal civic obligations.
The Canadian Bar Association encourages lawyers to contribute 50 hours per year, or alternatively 3% of their annual billings to pro bono service, without making this a mandatory rule. The American Bar Association says every lawyer has a professional responsibility to provide legal services to people who are unable to pay, and suggests at least 50 hours of pro bono legal services per year to people of limited means or organisations serving such people.
In South Africa, the Legal Practice Act includes a community service requirement, authorising the relevant minister to prescribe requirements for community service by candidate legal practitioners or as a condition of the continued enrolment of practising legal practitioners.
Regulations currently under discussion would require legal practitioners to provide 40 hours of community service each year, with some exemptions.
At the same time, a draft Legal Sector Code of Good Practice under the Broad-Based Black Economic Empowerment (BEE) Act is also under discussion in South Africa.
This Code would not be mandatory, but it would affect BEE ratings that would impact eligibility for government contracts.
Pro bono service is one aspect of the calculation.
The targets for certain categories of legal practitioners are 148 hours of pro bono services for the benefit of poor, marginalised, and black clients, while legal practitioners at larger entities would be expected to contribute 224 hours.
Advocates with an annual revenue greater than R3 million would also be expected to contribute 224 hours of service each year. Optional payments in lieu of pro bono hours would range from R40 000 to R60 000 per year.
Quite the contrary. Courts in many jurisdictions, including Namibia, already ask legal practitioners to step in without pay where they are concerned that justice may be compromised in a case involving an unrepresented litigant.
The constitutionality of this practice in the US was upheld in 1965 by a federal court that identified this as “an ancient and established tradition” and “a condition under which lawyers are licensed to practise law”.
Lawyers in the US, as in Namibia and most other countries, are considered to be ‘officers of the court’.
