Legal Aid and Pro bonoLawyer’s Leadership and Pleading Challenges-

Opportunities of Legal Aid Lawyer

PROFESSIONAL CAPACITY ENHANCEMENT TRAINING FOR CIVIL LEGAL AID LAWYERS

ILLAM- June 26-30, 2016

Saroj K GhimireLL.M. UK/India

Advocate, Supreme Court of NepalAsst. Prof. of Law, TU

PARTNER

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Who are lawyers?• LAWYERS ARE:• Licensed professionals;• Represents clients in the courts;• Works as counsel and adviser;• Works as mediator, negotiator and arbitrator;

and• They are well drafter and advocates legal issues.• They are interpreters and researchers; and • They are leaders and social engineers 2

Common Problems Lawyers facing• Technology, Internet • Availability of low cost lawyers• Globalization/Competition and entry

possibility of foreign law firms• Introduction of broader regulation,

compliances and code of conducts• Entry of newly qualified lawyers• Corporate practices and in house lawyers

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What are the common negligence lawyer commits/ you have committed in the

profession?• 1. ____________________• 2. ____________________• 3. ____________________• 4._____________________

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Common mode of case pleading • Fire breathing/vomiting.• Intention of satisfying client and not the judge • Unstructured presentation and misleading

facts.• Citation of unrecorded case or own case with

out copy or reference.• Confirmation that it never happened any

where in the world.• Moral pressures threat to the decision

makers/justices.

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Common negligence could be:• Disclosing clients name and legal matters;• Providing confidential matters/documents

to the opponent lawyers;• Recommending the opponent lawyers;• Representing opponents client;• Expressing dissatisfaction on own petition;

and• Making public statements or disclosure of

information without clients consent 6

• Failing to keep track of time schedule; • No review nor proof read of the petition,

application, rejoinders etc;• Missing deadlines or failing to follow deadlines;• Ignorance of judicial and pleading decorum;• No time management and language sensitivity• No idea of clients or ignorance of clients, and• Ignorance of own reputation of being

LAWYER-ADVOCATE

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What would be the consequences if…

• Lawyer who fails to file a case or make rejoinder with in the limitation?

• If such conduct causes clients case to be dismissed?• If the lawyer is unprepared and fails to satisfy judicial

inquiry?• If the lawyer fails to collate evidences and presents the

facts wrongly that misleads the bench?• If the lawyer claims wrong laws or sections and leads to

refusal of remedy?• If the client suffers financial loss arising from acts,

errors, and omissions in providing professional legal services ? 8

Best leadership and advocacy of lawyers

• After all, no other occupation accounts for such a large proportion of leaders.

• The legal profession has supplied a majority of Head of the state and executive head around the world. To name few:

• Lawyers occupy leadership roles as Legislators, judges, CEOs,

• Even in Bar who holds an executives play leadership roles• Reality, we are not product of leadership schooling and

we did not receive formal education in leadership skills.

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Why leadership in lawyers require

• First, our society is suffering from a leadership deficit in public, private, and non-profit spheres.

• Second, the legal profession, by many accounts, is suffering from a crisis of morale, from a disconnect between personal values and professional life.

• The need for greater leadership competence by lawyers is due to the important and visible roles they play in our communities, government institutions, and significant commercial, business and inter-personal transactions.

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Changing Dimension of Lawyer’s world

• World’s largest firms:• Baker & McKenzie- 3500 lawyers- 70 countries-

US$ 3 Billion turnover• DLA Piper- 3300 lawyers- more than 5o

countries

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Leadership in lawyers must contain:

• Identification of new legal markets and opportunities and quick address on clients issue

• Presentation, negotiation, drafting and review skill• Right understanding of clients issues and

appropriate remedies available as per your review of the case- could be verified from colleagues

• Understanding the new generation of lawyers and their expectations

• Proper survellienace and self awareness of the businesses and clients

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What is Pro Bono?

• Law is a profession of skills and talent• Law is a profession of trust.• Law is a service profession. • Pro Bono is short for "Pro Bono publico" which

translates in English to "for the public good". It includes both legal and non-legal services undertaken voluntarily or for a reduced fee.

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Types of Pro Bono Work • Representing clients for reduced or no fees; • Taking on public interest cases to test or change the

application of the law; • Taking on novel cases to test legal theories; • Facilitate community legal education programs; • Representing unpopular or repugnant clients; • Commenting on and contributing to the content of

new/proposed laws; • Advocating for reform of existing laws; and • Engaging in community welfare projects.

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Why undertake Pro Bono activities?

• Legal professionals play an important (and visible) role in society.

• It is another way in which we can ensure that our role remains respected and to increase what we can give back to society.

• Pro bono is a crucial opportunity to influence the legal system (including to bring about reform).

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Moral reasons • We have a moral obligation to contribute to the

creation of new laws and to advocate for change to improve existing laws. We are experts on the law and therefore are able to impact on or to change the lives that the law effects; and therefore we have the responsibility to do so.

• As we understand the law and its operation we also have a privileged opportunity to engage with law makers and the courts. As such they are in a better position to contribute to and comment on the law than most people in the community. . 16

• Lawyers therefore have an ethical duty to that wider community, especially those sectors of the community that do not have the understanding or opportunity to comment or contribute to the law on their own behalf.

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Monopoly argument

• By virtue of the fact that lawyers have a monopoly over the market for legal advice and representation, they have a responsibility to offer that advice not only to those who can pay for it, but also those who cannot afford it.

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Development • Gain and practice skills that you might not be able to in

normal practice. • Working on pro bono legal matters is an excellent

opportunity for lawyers to develop their legal skills, as well as their interpersonal skills required for effective communication with their clients. While lawyers should be careful not to take on matter well outside their competency, pro bono representation is also a good opportunity to try different areas of law which lawyers may not necessarily be exposed to when completing fee earning work.

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Community benefit -For the public good!

• The most obvious and most important benefit is exactly what pro bono seeks to do - the public good. By engaging in pro bono programs lawyers are able to improve many aspects of individual and community welfare. Pro bono services improve the quality of life for the community as a whole and often improve the lives of vulnerable persons such as the homeless, poverty stricken, those without access to legal representation and those ignored or mistreated by unfair operations of laws.

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Duties of Pro Bono- Legal Aid lawyer

• "Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client's case. But, as an officer of the court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client's wishes or with what the client thinks are his personal interests. Counsel must not mislead the court, he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession, he must not withhold authorities or documents which may tell against his clients but which the law or the standards of his profession require

• - per Lord Reid in Rondel v Worsley [1969] AC 191 at 227 [is this quote too complex (language) for our advocates?] him to produce."

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DUTY TO COURT

• A legal practitioner: • Must not mislead the Court • Must not engage in conduct that is an abuse of process • Must act with competence, honesty and courtesy towards

other legal practitioners, parties and witnesses • Must be independent and without bias • Must be forthright in their disclosures to the Court and

diligent in their observance of orders and undertakings • Must be efficient • Must act with fairness

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DUTY NOT TO MISLEAD THE COURT

• Duty not to mislead the Court includes: • Duty not to misrepresent the law • Requirement to be aware of the applicable rules

and procedures governing the proceedings • Requirement to draw the Court's attention to

relevant authorities – whether they assist or detract from the client's case

• Duty not to advise or encourage a witness to give false evidence

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EXAMPLES OF MISLEADING THE COURT

• Knowingly misstating the contents of a document, the testimony of a witness, the substance of an argument or the provisions of an Act or authority

• Knowingly asserting something as a fact for which there is no reasonable basis in evidence, or the admissibility of which must first be established

• Dissuading or seeking to dissuade a material witness from giving evidence, or persuading such a witness to be absent

• Knowingly permitting a witness to be present in a false or misleading way, or to impersonate another

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Ensuring quality of services by Legal Aid Lawyer

• Access to justice does not mean access to a lawyer. It is about being able to enforce legitimately held legal rights.

• Justice frustrated because lawyers simply are not to the job, rather they assist to get justice.

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Hence, Legal Aid lawyers must ensure…………

• In improving current practices,• maintaining quality of services,• Securing clients confidence,• Giving professional best, and • Availing justice to the legal aid beneficiaries

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Challenges & Opportunities of Legal Aid

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Challenges Opportunities

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Thank you