Justice Luiz Fux on Pro Bono Work in the Americas

Distinguished Authorities,

Eminent Judges, lawyers, members of the legal profession,

Ladies and gentlemen.

The fundamental declarations of the human being, whether those of the UN, of Europe, which was reinforced more recently in Vienna, or those of all people of all continents, state that all men are born equal in rights and dignity, and that all are entitled to fair process, decided by an impartial Judge within a reasonable period of time.

A consequence of these basic guarantees contained in several constitutions is the so-called “access to justice”. Hans Kelsen, the philosopher of the last century, stated that “justice is still humanity’s most beautiful dream”.

Human dignity, in turn, a value emphasized in the post-war years as a result of the fight against the horrors of Nazi-Fascism in the vision of Hanna Arendt, transformed the Human being into the center of gravity of the legal order. These factors are sufficient to demonstrate the importance of granting the poor citizen access to justice in the same way said access is granted to more affluent citizens, so that the procedures can be a method of debate between equal persons, fighting with equal weapons, known in Italian doctrine as equalianza delle armi, and the North-American clause of “due process of law”.

In fact, recent studies such as that of now deceased Professor Mauro Capelleti together with Professor Brian Garth, both of Stanford University, entitled “justice for all”, and known as the “Florence Project on access to justice”, have detected among the contemporary afflictions of the judicial process, the issue of costs and technical inequalities between litigants, in addition to other problems such as the excess of formalities and even the lack of quality of the judicial response.

The issue of costs leads the theme of this gathering that can be summarized by the following question: Is access to justice, being costly, afforded to the low-income population?

The answer to this core question leads us to speculate in search of a solution to a tormenting issue situated between the limits of equality and human dignity.

One point that must be broached in any event is that innumerable times, before recurrent problems of wide repercussion ad difficult solution, the important thing is not to obtain an immediate answer, but rather not to cease searching for it. Not always is a single solution adequate. Karl Engisch, the legal philosopher, in his introduction to legal thought, exemplifies this statement as to the non-existence of a single solution to legal problems with an interesting passage. He tells that on a certain day, the walls of the New York subway, which nowadays receives us so cordially, awoke covered with the following inscription: GOOD IS THE ANSWER. The next day, the walls displayed new questions: WHICH IS THE QUESTION?

The issue of legal aid requires diverse answers, it being up to us to elect the best as a question of justice, a value to which the most privileged minds in the universe have dedicated themselves, from Plato to Kant and for which Jesus, considered the lord of ideas and words, died on the Cross.

II)  Judiciary aid and Legal aid

First of all, one must establish that the term “judiciary aid” that formerly included only pro bono lawyer’s services in Court, currently also approaches full legal aid free of any charges, even if the party object of the assistance is defeated. This latter aspect implies stimulus for less favored persons to resort to the judiciary without fear of, at the end of the proceedings, if defeated, having to pay expenses. This measure is all the more important inasmuch as the poor person does not usually resort to legal measures, not being stimulated to do so due to the fact that the procedures are free of charge.

Furthermore, full free legal aid allows solutions in the administrative and judicial spheres at no expense, including the obtainment of certificates and documents necessary to the exercise of rights in Court. In addition, judiciary aid allows the less favored population to obtain greater information as to their rights. In this sense, I would mention the study by Professor John Mayhew on “law and society”, in that it is necessary to increase the degree of information of the population as to their rights. Under this focus, in Brazil the preparation of primers in simplified language has been routinely adopted to clarify the problems of day-to-day law to the citizenry, such as family law issues, involving divorce, paternity, inheritance rights and the rights of married men and women, and common-law husbands and wives, living together without the blessings of a priest or the benefit of law, who nevertheless have raised a family. In this same sense, contractual issues are clarified, as are those of possession and property of real estate, and all matters involved in the so-called “fundamental rights of the human being”.

This legal aid is also supported by the effective participation of the Welfare state through the creation of the small claims courts, to handle claims for small amounts and low complexity, destined to solve the legal problems of the less favored citizens.

In fact, based on the premise that only he who is aware of his rights can exercise them, it is imperative that greater information be disseminated to the citizenry, in addition to professional counseling. In this sense, we have had the opportunity of testing the creation of counseling and conciliation centers as advanced posts of justice, comprised of law school undergraduates working in citizenship centers in poor communities, instructing the population as to their rights, and thus exercising a remarkable role in counseling and conciliation with the residents of the region. As a matter of fact, one must emphasize the important and efficient work undertaken by law schools in attending the poor population, unique human material comprising young, idealist, qualified persons, who receive in exchange, points in their school records, in substitution to the otherwise obligatory trainee period prior to graduation.

The law schools have been untiring in supporting the State in the task of assisting the poor population, having been involved in the so-called “model law offices” for over twenty years. These offices are equivalent to professional law bureaus, split into specific areas that serve the poor free of charge until the conclusion of the legal proceedings.

A more audacious proposal has been adopted at the beginning of this century, called “justice on wheels”, comprising offices installed in buses that visit certain points of the city upon prior advice to the local community, to regularize the population’s documentation and solve several problems, either through conciliation, or through legal proceedings, undertaking the necessary hearings, which have shown magnificent results to date.

It should be pointed out that in Brazil there is an annual award named INNOVARE, sponsored by the Vale do Rio Doce mining company, which is bestowed on those who stand out in studies on access to justice.

III)  Judiciary aid

Judiciary aid in the strictest sense includes the assistance by a legal professional to a hyposufficient party (pro bono) and the release from procedural or extrajudicial expenses necessary to the effective judicial enforcement of the violated rights of the citizens. In all systems, the pro bono attorney performs in diverse segments of law, from civil jurisdiction to criminal jurisdiction, including the administrative sphere.

In effect, judiciary aid can also be granted solely for enforcement of a decision rendered in a class action, in what favors an individualized interest (judged in utilibus).

Brazil adopts full judiciary aid as a fundamental guarantee of the citizen, and a fortiori an immutable condition that cannot be suppressed by the ordinary legislator (Art. 5, item LXXXIV of the Brazilian Federal Constitution).

Assistance by a legal professional takes on two distinct forms. The first, through a State entity known as the “public defense attorney’s office” that performs in all instances of action; the second, through the choice of the party in need of an attorney who accepts the task. Priority is granted to the first system, and the second functions as an alternative where there is no established public defense attorney. In the latter case, the attorney may be appointed either by the party in need, or by the local Bar Association.

It should be pointed out that both the public defense attorney and the appointed lawyer are entitled to fees, should they win the case. Said fees should revert to the State in the case of the public defense attorney, or to the lawyer when acting pro bono.  The only case in which defeat fees are not imposed is when both parties are assisted by the State, as there would be legal confusion as to debtor and creditor.

The granting of gratuity and the appointment of an attorney pro bono presuppose poverty that is relatively assumed (juris tantum supposition) in face of a statement signed by the needy party, and does not impede the opponent party from challenging it, the matter being subject to the Judge’s decision. The granting of free legal aid is upon the Judge in charge of the case.

Experience has shown that the fastest way to decide this matter is to request and analyze it at the time of filing suit, except if the party requires the benefit to collect elements necessary to his request prior to filing. In this case, a prior specific procedure exists in which only the question of whether or not the party is entitled to the benefit of judiciary aid is discussed.

It should be emphasized that the benefit may be granted only partially, should the citizen be able to bear part of the expenses without sacrificing his subsistence. As a rule, the benefit is granted to those with a monthly income of up to four times the minimum wage, approximately equivalent to US$200 (two hundred dollars). However, the judge of the actual case may consider a person as judicially needy for all legal purposes as in the case of a company that cannot pay legal costs due to being under pre-bankruptcy proceedings.

The Superior Court of Justice (the ultimate appellate court in Brazil), has had the opportunity to consider a chief of police as judicially needy, said police officer having been contaminated by blood while saving the life of a prisoner who had cut his wrists in a suicide attempt. This police officer, due to the costs of medication, had his monthly income reduced by half, with the consequent reduction of his prior quality of life. The Court condemned the State to pay for the police officer’s medication and to reestablish the original economic conditions of the public servant, who was considered judicially needy  through the application of the constitutional principle of human dignity, it not being considered fair that he who saved the life of another be relegated to his own fortunes.

IV)  A General View of Pro Bono Legal aid in Various Legal Systems

The Florence Project referred to above demonstrates that there are several judiciary aid systems containing perfectly reconcilable variables. Thus, in the judicare system prevalent in Europe due to Anglo-Saxon influence, the pro bono attorney is chosen from among private lawyers paid by the State according to a schedule of fees that vary according to the nature of the case.

The system of Judiciary aid rendered by a public entity such as that adopted in Brazil, makes action by the State a priority, characterizing the State as “socially interventionist”.

The mixed system adopted by other countries such as Sweden, as mentioned in the study entitled “An Introduction to the Swedish Legal Aid Reform”, in Toward Equal Justice: A Comparative Study of legal Aid in Modern Societies (text and material – Mauro Capelleti, James Gordley and Ead Johnson Jr. Edited by Giuffrè and Dobbs Ferry-Oceana Publications, Inc. – NY – 1975, pp/. 561-574), adopts the “binary” method, in which the rendering of judiciary aid é carried out both by a public institution and by private professionals that are reimbursed by the Sate (Jamtland system).

Observed current homogeneity is that judiciary aid in all systems includes that which under French Law s called l’aide jurisdictionelle and l’aide a l’acess au droit, including judicial and extrajudicial expenses.

V)  Propositions

• Judiciary Aid should be granted in a broad form, to include judicial and extrajudicial costs and the appointment of an attorney free of charge (pro bono);
• The beneficiary of Judiciary Aid will be afforded the respective benefits once said aid has been granted by the Judiciary, prior to, at the beginning of or during the course of the proceedings.
• All those who state their state of poverty will be presumed beneficiaries, the opposing party being entitled to challenge it.
• Gratuity may be granted to individuals or legal entities (personnes formales) at the discretion of the Judge, in each actual case.
• Judiciary aid presupposes information as to the existence of rights in favor of the beneficiary, it being recommendable that public policies be implemented to increase the degree of information available to the needy population in relation to legally enforceable rights suing simplified primers and other teaching materials.
• Access to justice in favor of the needy population implies the adoption of new strategies, such as the creation of advanced posts of justice, similar to the district conciliation centers, the expansion of the small claims courts for small value and low complexity claims, as well as to the so-called “justice on wheels”.
• Law schools, through their students, can perform a notable role in pro bono legal aid, with the creation of “model law offices”, supervised by professors, functioning in the law school premises or in advanced posts in needy communities.
• The beneficiaries of pro bono legal aid should have a choice of a public or private attorney who accepts the task free of charge, correspondent compensation being due in the event of victory to be borne by the defeated party.

This is my modest contribution to the treatment of a charitable legal theme. A Brazilian legal scholar, Carlos Maximiliano, in approaching the matter of “sentimental case law” of the renowned Judge Magnaud who decided cases randomly or according to his religious convictions, was wont to say that he only pleased theoreticians of anarchy, and passed through Europe like a meteor, without leaving traces, stated that if justice was to be charitable, charity should be just.

In concluding, pro bono aid allows professionals to keep the promise contained in scripture, “to satisfy those who thirst and hunger for justice”.