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NEWSLETTER(Page 7)
Main Index
Index:
* IBA Buenos Aires Conference - Section 4 of 4
* The news from IBA
* IBA Buenos Aires Conference - Section 4 of 4
| IBA Daily news Buenos Aires Conference 2008 Monday October 16 |  |
During an emotional ceremony on Wednesday afternoon, Femi Falana was presented with the Bernard Simons Memorial Award for the Advancement of Human Rights. Congratulating Falana, IBA president Fernando Pombo said the award was an acknowledgement of Falanas commitment to promoting human rights and democracy across Nigeria and West Africa.
Falana, who was imprisoned by Nigerias military dictatorship in the
nineties, has campaigned for the rights of oppressed people throughout
his career, and represented more cases in front of the Nigerian human
rights commission than anyone else.
I took a risk getting involved in human rights in my country,
said Falana. It was a suicidal mission as many people got killed or
detained. The military dictatorship tried to harrass and intimidate me into silence but that made me more determined to continue my human rights work.
Professional respect for Falana from delegates was clear. A packed auditorium interrupted Pombos and Falanas speeches with raptuous applause, while a media scrum descended to capture the moment on film.
Panellists at the following showcase session on Rendition, Disappearances and Indefinite Detention: Debates Around Torture were also keen to pay tribute to Falana. As Zachary Katznelson of Reprieve said: Im reminded by Falana how easy we have it in the US, I have never been dragged in for interrogation.
Rendition, as Katznelson described it is when masked men come and grab you off the street, strip your clothes off, force a suppository inside you, diaper you, and put you into a suit. They shackle, cuff and blindfold you, add industrial strength earmuffs and a hood so that its nearly impossible to
breathe. And they throw you onto a corporate jet, that may have been whisking around rock stars the previous week.
Rendition effectively removes people from the sight of the law. There is no screening mechanism to ensure a guilty person is detained as the courts are removed, and no oversight of what happens to the person that has been taken.
Necessity is often used by governments as a justification for rendition and certain interrogation methods. Yuval Ginbar of Amnesty International, however, argued that Article 27 of Geneva Convention IV provides for all to
be treated humanely, not only under convenient circumstances. When countries accept that torture is justifiable under certain circumstances, this encourages its use as the norm.
Torture, as discussed by the speakers, encompasses a wide range of treatment from sleep deprivation and sensory overload to stress positions, sexual humiliation, rape, electric shocks and water boarding.
The latter involves being tied to a board with your feet higher than you head, said Katznelson. A cloth is placed over your head and water is poured down over your face. Because of the cloth and your feet position, you cannot clear your mouth and nose of water so the water gradually fills up your lungs. They call this simulated drowning.
Its not simulated, it is drowning, and you think you are going to die.
But governments are not sidelining laws and disregarding them to justify such methods, they are instead reinterpreting them.
The universal norm against torture has been eroded, said Leonard Rubenstein of the Physicians for Human Rights. In a paradoxical way, this has not been a result of ignoring laws but of using them to facilitate torture.
The US government, for example, has said that an action is not torture unless it induces serious physical injury, such as organ failure or even death, or uses drugs to bring on dementia or push detainees to the brink of suicide. Even then, such a result has to be intentional to qualify as torture.
This reinterpretation of laws on human rights led other speakers to question the ability of the law to instigate reform: What we see today has subverted the idea of the power of law to produce change in society, said Clara Sandoval, a lecturer at the University of Essex.
We should question whether we can continue to believe that law can effect reform in our countries. Sandoval drew attention to attempts by the victims of rendition and their next of kin to gain reparation after their names had been cleared. In the US, the courts ruled that they could not judge the cases
as the judiciary had no access to evidence. Retention at Guantanemo Bay was an international security and political matter.
One of the most pertinent points was made by Katznelson, the sessions first
speaker. Using the example of Ibn al-Shaykh al-Libi, who provided information after water boarding, Katznelson argued that torture does not provide useful intelligence.
It is virtually guaranteed that if you subject someone to near death they are going to say whatever they think you want to hear. Al-Libi told interrogators that Al Qaeda and Iraq were together, and that Al Qaeda was seeking a weapon of mass destruction from Iraq. This intelligence was one of the primary reasons we went to war in Iraq and it was wrong.
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New anti-money laundering guidance issued
New international guidance, intended to help legal professionals identify and mitigate money laundering risks, are scheduled to be agreed on Friday in Rio de Janeiro, at an international summit of the Financial Action Task Force (FATF), the inter-governmental body charged with combating money-laundering and terrorist financing. The guidance was developed through an active dialogue with the International Bar Association (IBA)s Anti-Money Laundering Legislation Implementation Group, chaired by Stephen Revell
of Freshfields Bruckhaus Deringer, in consultation with other lawyers, including members of the American Bar Association and the Council of Bars and Law Societies of Europe.
The new FATF guidance takes a risk-based approach to assessing the likelihood of money laundering taking place in any case or with any client, and sets out recommended approaches to the implementation of effective monitoring processes and training programmes, which every law firm should now assess. The guidance will appear on the IBA website shortly.
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LAW FIRM MANAGEMENT
Its very modern to be traditional
Horacio Bernardes Neto
Yesterdays session comparing traditional and modern ways of practising the law featured an impressive array of speakers and geographies. Eight lawyers from Germany, India, Australia, Brazil, Nigeria,
Austria, the UK and the US were marshaled by Mexicos Alejandro Ogarrio of Ogarrio Daguerre. So you would have thought that it would be a struggle to fit all of their opinions into the 90 minutes allocated to this session.
Not a bit of it. The roundtable format that Ogarrio had set up and controlled meant that each question received concise answers from the full range of firms. And five minutes of talking is enough for anyone, as Horacio Bernardes Neto, council member of the Public and Professional Interest Division, explained: Yesterday in a session someone asked how on earth they could fit all their learning, experience and ideas on a particular topic into the five minutes allocated to him.
The response was, speak slowly. If youre to try and discuss the advantages of modern and traditional ways of practicing law, it helps to start by defining traditional and modern. This was Ogarrios starting question, and Neto said it is a matter of specialisation.
My father was a traditional lawyer. I never had a chance to practise with him, but we had different views on the profession and its practise. He was a traditional lawyer because he wanted to provide advice to his clients on the widest range of possible areas, from real estate disputes, to divorces, to corporate and commerial questions.
The modern lawyer wants to specialise, and realises its advantages. He wants to get together with other lawyers to combine their specialities.
Neto added that if you wanted to be full-service modern firm today, the number of specialities required means that you have to be big.
Michael Kutschera of Binger Grsswang in Austria had a different take: Size is a factor, but the most important aspect of a modern firm is that it has a clear perception of where it wants to go. It knows the clients it wants to target, and is working on how to serve them. Some of those clients will want generalist lawyers, some will want specialists.
Many on the panel agreed that size was not important, and the original question of what defines a modern firm spread into one about control. Oluseun Abimbola of Prime Solicitors in Nigeria said that it is possible to be big and traditional.
The difference between a large traditional and a large modern firm is the management. A modern firm will have more overarching executive control, marketing and other functions. And small can be beautiful, he said, as long as it doesnt get smaller.
John Corcoran of Russell Kennedy in Australia made the incisive point that many international firms spawn boutique spin-offs, when a particular lawyer leaves to set up his own specialised practice. They will still practise a very modern version of the law, as they did in their old firm, he said. It just happens that the big, commerial law firms are modern. Though many of those firms are emphasising the traditional values of the profession, through involvement with bar associations and pro bono work.
Neto agreed: Its very modern to be traditional these days. Clients look for personal service whether they are using a big firm or a small firm. The more personal it gets, the better he feels.
The personal touch is key. Ravi Nath of Rajinder Narain & Co in India said that as a firm gets larger, the client will remain happy only if he still has the same personal service he had before.
And Stephen Denyer of Allen & Overy, representing the biggest firm at the table, agreed. When I joined the firm I thought it was pretty big at 200 lawyers. Now we have almost 3000 and hire 250 new lawyers every year. So people assume we must have spent the past 10 years trying to grow and gain power. The opposite is true; we spent all that time trying to control our growth so that it never got out of hand and client service never suffered.
Panellists also agreed that there will always be a place for smaller firms. Sergio Galvis of Sullivan & Cromwell emphasised how closely his firm likes to work with local firms, while Kutschera pointed out that smaller businesses and clients need smaller firms, as fees tend to be higher once you turn on the machine of an international law firm. Abimbola included small business advice in a list of areas that will always suit smaller firms, including family law, divorce law and private client work.
And there is a level of personal service that international firms just cant provide, he said. Big firms throw parties or receptions.
Small firms know when their clients birthdays or family marriages are, and they make sure they are there to wish them well.
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DISCRIMINATION LAW
The old do not think slower
Okwuchi Okoroji
All lawyers are at risk of discrimination, be they old, young, male, female, disabled, able-bodied, black or white. That was the message from panellists addressing a diverse audience at yesterdays session Discrimination, with Particular Reference to Gender and Age.
The days of the veteran ruling his law firm with an iron fist, firing staff on a whim before dying in office have gone, replaced with laws in many countries that enforce an age of retirement. But as recent anti-ageism legislation in countries such as the UK shows, the laws are changing to reflect a more balanced approach.
Michael Prior of Shawn Coulson explained: Having passed my 70th birthday, I dont ski or run as fast as I did. But our intellect does not wear out, nor do we reason more slowly than we used to.
In 2006, the UK enacted legislation that made it illegal to discriminate against a person on the grounds of age. The laws boundaries are still being tested, with the pending Heydey case expected to provide some clarity on default retirement ages.
Although the sessions panellists focused on the issues facing senior lawyers, Carmen Pombo, chair of the IBAs Young Lawyers Comittee, made it clear that ageism is not limited to those above a certain age.
However, while ageism is a relatively new concept (though an old phenomenon) Patricia Lpez Aufranc of Marval OFarrell & Mairal drew attention to the continuing problems that women face in the legal profession.
Jokingly, she said: I am thrilled that senior lawyers are going to be discriminated against because now you know what it means to be a woman! Lpez argued that gender discrimination would not disappear overnight, but that women could limit its impact by networking with other professionals and highlighting the unique perspective that they as individuals could provide to a firm or association.
Olabisi Kukoyi, a Nigerian lawyer currently employed by Aberdeen City Council, Scotland, echoed this point about networking and encouraged African women to be more ambitious in their legal careers.
This point was taken up by members of the audience in questions following the panel. The only female president of the Nigerian bar association became president by default when her superior was moved to another job. When she sought election herself, the security service stepped in to make sure she did not win. And on a personal note, I have been a magistrate for 22 years and when I wanted to become a judge, I was told, we dont want women here, said Okwuchi Okoroji, a magistrate in Imo State.
Cultural prejudice against women is clearly an issue in some countries, but other audience members were keen to playdown its importance.
As the president of the Norwegian Bar Association, Berit Reiss-Andersen, said:
Despite a culture of equality in Norway, women only make up 23% of the bar. There is something about our profession that is elitist and we have to take this seriously rather than say that it is the fault of society at large.
Law firm culture was also criticised by William Grignon of Kirkland & Ellis in his presentation on the discrimination faced by disabled lawyers. We are often ignored by law firms that pose a difficult culture for the disabled. We need to create a culture that helps not just with physical disability but with invisible disabilities, such as mental health problems, and we need to deal with invisible discrimination as well as obvious discrimination.
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CONSUMER LITIGATION
Are you in or out?
Deborah Price
With their opt-out systems of redress, Canada and the US have become
havens for worldwide class action cases. But with no guarantee that resulting judgements will be observed outside of these countries, courts are becoming more reluctant to take on actions that could incur follow-on litigation in other jurisdictions.
Speaking at yesterdays session on Collective Redress and Class Action Judgements, George Bermann, of Columbia Universitys School of Law, agreed that the hot issue for US class actions was no longer what they look like, but whether foreign nationals should belong in them. With the growing trend for class actions to be brought against non-US companies in US courts, the presence of non-US nationals in the class is making judgements complicated and selective, and preventing some classes from being recognised at all.
The key concern for a US court when taking a class action suit is to establish whether, as stated by Rule 23(b), the judgement will prove to be the overall superior means of action. The risk of non-recognition in other states means that this superiority is difficult to determine, as it is hard to tell whether any judgement will be preclusive.
Session chair John P Brown, of McCarthy Tetrault, said that there was an uncertainty and unfairness to the current process, where every case is assessed on an individual country-by-country basis. This can mean that, for example, French citizens could be excluded from a class where German citizens are recognised, if it was decided that there was a greater likelihood of subsequent action in the former jurisdiction than the latter.
European courts provide particular hurdles to US class actions as they object to the optout systems, which consider all potential claimants to be part of the class unless they express otherwise. Deborah Price, of UK consumer group Which?, expressed a desire for this to change, and said that the system
was messy, time-consuming, and doesnt work. As a lobbyist for consumer rights, she was frustrated that UK collective redress actions are infrequent.
This, she said, was due to the fact that even if a pool of millions of potential
claimants existed, the opt-in system in Europe would make it very difficult to assemble a large enough number to form the class.
She also said that there was no doubt in my mind that UK citizens had benefited from US class action laws, but when questioned by Bermann on whether she thought US judgements would ever be observed in the UK she replied: No, I dont think they ever will.
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FAMILY LAW
Just avoid London
Daniel Thulare
Life is good for George. Hes a partner at a US law firm, lives in a townhouse on the upper-east side of Manhattan, owns a vineyard in South Africa and is the sole beneficiary of a trust that holds substantial funds and an art collection. He has also just met the woman of his dreams, South African LOral model Caroline, and they are to be married.
This was the case study used to hold together a session yesterday afternoon on big money divorces. The thrust of the discussion analysed what would happen if the couple moved to different jurisdictions and how George could protect his assets.
Unsurprisingly enough, the major conclusion was that George should try to avoid London. One wouldnt know whether to start with the bad news or the really bad news if George had to separate from Caroline in the divorce capital of the world, said Russell Bywater of Dawson Cornwell in London.
In recent years weve moved into Hello!-styled jurisprudence and the focus has shifted from need to entitlement.
And even the best pre-nuptial agreement could struggle in the courts of England and Wales. For pre-nups to even get to first base, there has to be full financial disclosure, a document signed by both parties with record of legal advice and it is advisable to sign it at least 21 days before the wedding. More importantly, it has to be fair in the eyes of the court, and fair at the time of the divorce too, Bywater continued.
That said, Bywater admitted that although pre-nups do not have to be recognised in court, they can be useful guidelines and there is growing case law to prove this. Therefore, if he had to battle in London, George would have to hope that his pre-nup was to full UK standards.
Alternatively, the court may be swayed by a clause that indicates that even if the couple is living in the UK, it would like any future divorce to be conducted in a friendlier, pre-determined jurisdiction.
Another clause stating that both parties are aware that the pre-nup is not necessarily valid in the UK but that they hope it would be taken into account would be advisable too.
After all, as fellow panel member Daniel Thulare of Family Law Courts in Johannesburg said: Love is blind, but divorce opens your eyes.
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PROFILE: FERNANDO POMBO
We must educate
The first Spanish head of the IBA talks about his expectations about this years conference and the importance of the humanitarian leanings of the organisation.
Fernando Pombo, President, IBA, Partner, Gomez-Acebo & Pombo
By Jaspreet Sira
Why the location of Buenos Aires?
The IBA has an extremely elaborate system of deciding sites. It involves rotating continents, rotating more and less unusual sites, and the capacity of a city to hold an event of this size and more importantly, a location within that city.
We decide that the IBA annual conference is going to be in a particular city seven or eight years in advance. When we decide on a particular city, it is getting the equivalent of the lottery for them; it is great to receive the excellence of the legal profession. In Singapore last year, with more than
4000 delegates, we were told that they were extremely pleased with this group of leading lawyers and that it did a decent amount to benefit the local economy as well. Buenos Aires was chosen because we care about the geographical distribution of sites. It is a balance of locations, from Spanish to mainly English-speaking, to those jurisdictions where other languages are spoken.
What do you think makes the city of Buenos Aires special?
Buenos Aires is considered to be one of the most important cultural centres in the Americas today. There is such a variety of culture on offer: the music, the literature, the theatre.
Buenos Aires has around 200 theatres; I cant think of any other city in the world with that number of theatres in full operation.
What are you most looking forward to at the conference?
We will cover all recent developments in the law, across the practice areas covered by all our different groups and committees. Plus delegates have the unique opportunity to network at the highest level with colleagues from across the globe.
We have an outstanding Rule of Law symposium on the last Friday as well, the 17th. This will enable us to discuss issues such as access to justice, anti-corruption, reinforcement of institutions, independence of the profession and human rights, all of which are very relevant matters in Latin America. As in Singapore last year, it should be a very open and frank discussion.
Additionally, it will be important to recognise the quality of the education and practice of the lawyers in the region because the Spanish and Portuguese-speaking contingent of the IBA now makes up several thousand members. Moreover, this is something I am personally keen to focus on as I am proud to be of that origin and to be President of IBA.
Which sessions do you think will be particularly good?
Many of the committees will have specialised subject law sessions and all of them promise to be interesting. However, a topic that is really strong in Latin America, particularly in Argentina with so many universities and such an intense legal profession, is the impact of young lawyers and their future role in the legal community.
Each day, delegates will be met with such a broad offer of sessions that a careful look at the schedule every morning will be the best way to decide on which to attend. In addition to the educational impact of a five-day crash course on all that matters for the modern lawyer, there is the unlimited
attraction of Buenos Aires, which will also be experienced through the many social events.
You have been involved with the IBA in a number of roles over the years, vice-president, secretary-general, treasurer. Do you feel strongly about the IBA?
I feel very strongly about the IBA because, with more than 33,000 individual members, we are by far the largest international organisation of lawyers in the world. But why is it that we are the biggest, why is it that we keep growing and growing? We are big because people benefit; they get a lot from being a member and being at our conferences. We had record attendance in Singapore last year; this year in Buenos Aires looks like being a record conference again.
We have all the worlds leading lawyers at the IBA, but more importantly we have more than 200 human rights programmes worldwide. We help those in need, through unlimited humanitarian actions.
In what way would you say that the IBA is the global voice of the legal profession?
The IBA is the global voice of the legal profession because we care for issues that matter; subjects such as the rule of law, freedom of expression, human rights, separation of powers and different models for developing economies.
We have the structure as well, and the best possible colleagues one could have in an international organisation. Hence I am very dedicated to this unique organisation. We have a good structure and offices in key international locations: London, Sao Paulo, The Hague, Dubai for the Arab world, Johannesburg and we will have an office in Asia soon.
What would you like to achieve in your tenure as president of the IBA?
My number one priority is continuing with the educational engine that is the IBA. Second is to improve the image of the profession through humanitarian
and educational activities.
Hopefully these will allow countries to improve their understanding of the role that lawyers play in the establishment of democracies and aiding fundamental rights, so they respect the legal profession more.
Also, integrating the bar associations is important, with the individual lawyers and law firms working alongside inhouse counsel and company counsel all over the world. Getting closer benefits all three types of institution through their different practices and responsibilities.
What have you enjoyed most about your role with the IBA?
Being amongst this phenomenal congregation of elite lawyers is a huge pleasure. Also, being involved with the humanitarian side of the IBA has been an unforgettable experience.
Last August working with Afghan lawyers to help build the organisation of lawyers there, helping the judicial system and ultimately the lives of people in Afghanistan was wonderful. Also, working in Columbia to consolidate the strong democracy, legal profession and judiciary; and being in Africa, aiding individuals, including lawyers and judges, who are facing situations of extreme risk. Participating in all this pro bono work has been a big satisfaction for me.
You mentioned Afghanistan, making a difference there. Can you tell us more about the work involved?
Yes, Afghanistan is a very difficult case because we, as lawyers and global citizens, must help institutions to be built in a society after war. We have had experiences of that kind with Iraq and other parts of the world. After war it is vital that the country goes back to institutions and systems, to justice and independence of the different powers. We are able to achieve this mainly through having an unlimited number of volunteers, often very prestigious, skilled lawyers. They are ready to put their practices aside for weeks, sometimes months, and go to the most remote and difficult locations, to work for the benefit of their colleagues there.
How do you balance all this with your role at Gomez-Acebo & Pombo?
Well it is a miracle at times, not only in terms of time, but also the physical capacity to deal with so much. I decided early on to be very committed to the IBA but also never abandon working with my firm.
Fortunately there are younger partners at the firm who can deal with many dayto-day issues, but this decision has been at the cost of my private and family life. About 60% of my weekends are dedicated to the IBA. The holidays that I used to have, about 18 or 19 working days each year, have been non-existent since beginning my role. When you combine no holidays, almost no weekends and a lot of support from my family and from my partners at Gomez-Acebo and Pombo, then the numbers work. I work fast and I work intensively.
I have been extremely busy, but the alternative would mean not being involved in or committed to so many IBA initiatives. And I simply didnt want that to be the case.
Any final thoughts on the conference?
The IBA is the leading organisation of lawyers and bar associations in the world, and it is meeting for the second time in its history, after 20 years, in south America. We thought in 1988 that with more than 1000 delegates it would really be impossible to repeat, but now our numbers in Buenos Aires are more than three times that figure. I am sure this will prove an unforgettable week.
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LEGAL PRACTICE DIVISION
IBA kidnap plot
Three IBA members, jealous of one of their colleagues contacts and reputation, decide to kidnap him and steal his Blackberry with the aim of distributing information slandering his good name. The conspirators and their target are of four different nationalities, reside in three separate
countries, and the plot is carried out in a fifth jurisdiction: at the IBA conference in Buenos Aires.
This was just one of the fictitious case studies put to yesterdays audience at the presentation of the report by the IBA Legal Practice Division (LPD) Task Force on Extraterritorial Jurisdiction. LPD Chair David W Rivkin introduced the session and called the over 300-page report interesting, scholarly and forward-looking, telling assembled lawyers that their challenge was now to make good use of it.
Members of the task force sub-committees presented their findings and recommendations under six areas of practice: anti-trust, tort, criminal law, bribery and corruption, securities and insolvency. Each committee admitted it had encountered similar challenges when addressing extraterritorial jurisdiction in these areas. The main problem was trying to keep all parties involved happy with the results, from NGOs to state government.
Lucy Martinez, of Freshfields Bruckhaus Deringer in the US, said she hoped that the various committees had managed to publish a set of broad recommendations that still have real meaning. Martinez was rapporteur for the criminal law committee, and led the analysis of the case described above. She said that in many cases, opinion on how states should exercise their jurisdictional rights is based on ones views on state sovereignty; a perspective that can vary widely depending on a countrys international profile.
Martinez was joined by Roy Schondorf of Debevoise & Plimpton, and Lucinda Low of Steptoe and Jones, both in the US, to discuss tort actions and bribery and corruption respectively. A key consideration throughout their presentation was the different jurisidictory regulations in civil and common law countries, with particular regard to whether legal jurisdiction was founded on residency or nationality. The speakers identified five states where the Blackberrry case could be contested, with a sixth option available to any other state that chose to invoke the universal principle: particularly relevant in a case where torture is involved.
Despite the multiple angles of discussion, Low claimed that the fictional case was actually relatively simple in todays playing field, and said that extraterritorial jurisdiction was a big consideration for lawyers dealing with cases involving multinational activity and businesses.
The second half of the session focused on business law. Securities committee member Eric Pan, from the Benjamin N Cardozo School of Law in New York, urged delegates to become skilled and conversant in
finding these means of harmonisation and convergance, because in the end the burden will fall upon us to work out the nuts and bolts of deals.
In the capital markets industry, he said, the IPA report had the opportunity to make a real, world impact, coming as it does at a time when the global fincancial crisis is forcing regulatory authorities around the world to engage with these same issues. This view was echoed by Alexander Klauser, of Brauneis Klauser Prandl in Austria, who addressed insolvency considerations, and congratulated the LPD on its prophetic foresight in including this practice area in the task forces remit. He reiterated the problem of operating through entities which are multinational, but must function in a world of sovereign states.
Session chair Claus von Wobeser, of von Wobeser y Sierra in Mexico (and the hypothetical victim of the kidnap plot), said he hoped that each committee would continue to work on its respective projects, and called
the task forces work so far only the start of an enterprise.
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PRO BONO AND ACCESS TO JUSTICE
Let us work for free
In Brazil, access to justice is a constitutional right, but unfortunately, there are too many cases for legal services to be provided free of charge. So surely the system should be happy that many law firms want to help by conducting pro bono work?
They hate us, said Marcos Roberto Fuchs of the Pro Bono Institute in So Paulo, at a lively session about the Pro Bono Declaration for the Americas yesterday morning. We are a clearing house for free legal services, but the bar association and the defence department hate us because they think we are trying to privatize access to justice and take work away from poor lawyers.
Antonio Corra Meyer of Machado Meyer Sendacz e Opice Advogados, also from So Paulo, agreed: There are 650,000 lawyers in Brazil and many of them are single practitioners that rely on work granted to the poor by the state. They worry that pro bono activities will take work away from them, so there is a conflict.
In Sao Paulo alone, it is estimated that there are 47,000 poor lawyers. Many of them exclusively do state-appointed work, for which they receive $300 per case. If probono work was taking employment away from such lawyers, then Fuchs would not mind. But as it is not, he remains exasperated.
The problem is one of culture, he said. There is so much work to do how can we be taking work away from lawyers when there arent enough of them to do it all?
Every little helps, surely. This statement was well received by the room, which was genuinely surprised by the situation in Brazil. By this stage, panel members were sitting among the audience and the session became a free discussion where chair Patricia Blair of Mediation Consultants, Connecticut allowed participation from anyone with an opinion.
Guillermo Morales Errzuriz of Morales & Besa Adogados referred to a similar problem in Chile, which was successfully resolved. He suggested that the tension in Brazil could be alleviated if there was a
system of allocating work so that no one felt employment was being taken from them. For example, larger firms could conduct the more complex cases in which their capacity and expertise would be of best benefit rather than taking on small cases for individuals.
While this may be a workable solution for one issue, it would not resolve the wider problem in Brazil. So Paulo is the only state that allows pro bono work at all, so for the Pro Bono Declaration for the Americas to be a success across Brazil, a significant amount of lobbying is required.
In Argentina, and many other Latin American jurisdictions, the issue is one of education. In general, the declaration has been very welcome, said Gustavo Javier Torassa of Bull Tassi Estebenet Lipera & Torassa. But the challenge is to get more firms to sign up. We also need to disseminate
the declaration throughout the country, not just in Buenos Aires.
He went on to describe the benefit of having an access to justice committee within the City of Buenos Aires Bar Association: We can meet and discuss pro-bono work and try to discover a best practice. We need to discuss some guidelines on working in pro-bono activities that should help spread the word.
New York has an altogether different problem with regard to getting people to sign the declaration. Antonia E Stolper of Shearman & Sterling stood up to explain that the city bar has been cautious to push the declaration onto its members. This is because the 20 hours of work that the declaration asks for is substantially lower, for example, than the 50 hours that the American Bar Association requests. The city bar therefore does not want to confuse issues, although firms active in Latin America have signed the declaration out of solidarity.
The reason pro-bono targets are substantially higher in the US must be better education of the benefits of working for free. Robin Wright Westbrook from the American University Washington College of Law gave some examples of the work her college does to encourage its students to partake in pro-bono activity.
For example, the college actively urges its students to undertake 75 hours of probono work before graduating. While this is not mandatory, the impression given was that not completing 75 hours is severely frowned upon. The college also encourages the use of Student Practice Rules. This is
when a student represents a real client in a court of law with judicial approval and faculty supervision. Such projects help generate interest in pro-bono work early in US lawyers careers and the audience agreed that similar schemes would be a great longterm plan for changing the culture in Latin
America.
Despite the conflict issues in Brazil and the need for a change of culture in many parts of the Americas, the declaration is attracting an impressive number of members.
As of October 10, 179 Latin American law firms, 24 US law firms, 15 law schools, 12 bar associations, 12 non-governmental organisations (NGOs), two corporate legal departments and two members of the judiciary had signed.
This achievement is evidently appreciated by the IBA, as president Fernando
Pombo made an appearance at the start of the session to express his gratitude and the opinion that: Pro-bono work is not a question of generosity, it is one of justice. The declaration has made a good start, but the hard work is yet to come.
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HUMAN RIGHTS INSTITUTE
Dont miss this
Anyone with an interest in international politics should make sure they dont miss this afternoons session on international criminal justice, chaired by Justice Richard Goldstone.
The exciting panel of speakers will include Luis Moreno-Ocampo, chief prosecutor of the International Criminal Court in The Hague, whose role has seen him investigate abuses in Sudan, Uganda and the Democratic Republic of Congo. Also speaking will be Carla Del Ponte, who was chief prosecutor at the ICC during the pioneering International Criminal Tribunals for the former Yugoslavia, and for Rwanda.
Its a very exciting panel; one of international experts said Goldstone, speaking ahead of the session, and its relevant to anyone interested in international politics, not just law. Through the testimonies of the experienced speakers, the session will include both an assessment of the ICC today and, Goldstone hopes, outline what lawyers can do to move the endeavour forward.
People dont realise the incredible pace at which international justice has moved in the past 15 years, since the Yugoslavia tribunal in 1993. Its been a movement of historic proportions, with the ICC now ratified by 106 nations worldwide. Goldstone also welcomed the possibility of contentious questions from a roomful of lawyers discussing international war crimes.
Theres certainly room for a lot of debate, particularly in relation to the unfortunate fact that some large countries are still not involved; namely the US, China, Russia and India.
The session is planned for Rio de la Plata on the second floor of the Sheraton, a space which holds up to 90 delegates. But Goldstone is expecting a better turn-out than that. I hope its so busy that we have
to be moved to a bigger room, he said. Dont let him down.
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* The news from IBA
| The Bar Issues Commission The BIC December 2008 e-news The LL.M Masters Programme from the IBA and the College of Law - 2009 | |
The New Zealand Law Society advised the IBA earlier this year that it established a special Rule of Law Committee at the end of last year. The creation of this committee comes at a time when a new regime for the local profession is about to be implemented by the Lawyers and Conveyancers Act 2006. This Act, which will govern the legal profession in New Zealand, faces an express, primary obligation upon practitioners to uphold the Rule of Law. The establishment of this committee is a response by the Society to this important statutory responsibility.
The Bar Issues Commission would like to know if in your jurisdiction there is a similar obligation under discussion or in place; or alternatively if a similar obligation is included in your constitution or your Code of Conduct or Ethics. Where there is anything written on this, we would appreciate it you could send the exact text to Elaine Owen (Elaine.owen@int-bar.org).
I would appreciate your response by Friday January 30th 2009.
Very many thanks.
Elaine Owen
BIC Project Manager
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Dear Bar Issues Commission Member,
We are currently working on the publication of the BIC December 2008 e-news. As always, we welcome any articles or other items you would like to include which would be of interest for your fellow IBA member bar associations/ law societies.
Some suggestions include:
1) Reports on national/ regional legal developments
2) Announcements, e.g. award recipients or individuals being acknowledged for a special achievement or merit
3) A profile of your bar association
4) Reports on any special projects, bar-related conferences, surveys or publications you may be involved with
5) Relevant press releases
These are just some ideas; the key is that it should of course be something of interest and relevance to organisations across the world so is an ideal way for you to share messages and news with the rest of the BIC membership.
The deadline for receipt of copy for the December issue is 1 December. Please submit any copy directly to me as I will be collating the e-newsletter and working with our production team.
I look forward to receiving your news!
Many thanks and kind regards,
Sibylle
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The LL.M Masters Programme from the IBA and the College of Law
The Practical Route to Enhance Your Career
Dear Colleague,
The next intake for the highly successful LL.M in International Legal Practice is this coming January 2009.
International in perspective with contributions from some of the worlds leading law firms, the LL.M in International Legal Practice is aimed at law graduates, newly qualified or more experienced lawyers wishing to enhance their skills. The supervised, e-learning format of the course is designed to overcome jurisdictional boundaries and allows you to study at your own pace and in any location.
For full details of the programme, thoughts from key players and existing students and much more please CLICK HERE to view the latest IBA/College of Law LL.M Newsletter.
http://www.college-of-law.co.uk/llm-international-autumn-2008.html
To enroll for January 2009, simply follow these steps:
BOOK ONLINE NOW
http://www.college-of-law.co.uk/booking/qualification.aspx?type=I
To book off-line:
1. Print off a copy of the booking form
2. Complete the booking form in BLOCK CAPITALS
3. Return the form along with your credit card details to: The College of Law, Customer Contact
Centre (LL.M), Braboeuf Manor, Portsmouth Road, Guildford, Surrey, GU3 1HA, United Kingdom
BOOKING DEADLINES:
Cheque/bank transfer payments - 5 January 2009
Credit/debit card payments - 12 January 2009
To find out more please call the College of Law on +44 (0)1483 216126, visit the College of Law Website or send an email to: iballm@lawcol.co.uk
International Practice Diploma Awards
The International Practice Diploma Programme is a continuing legal education programme designed specifically to meet the needs of international practitioners throughout the world. It is a joint programme, devised by the International Bar Association and The College of Law of England and Wales with input from international law firms.
The programme is aimed at newly qualified lawyers wishing to enhance their knowledge of particular areas of legal practice, and lawyers wishing to diversify their legal knowledge. The distance learning format is designed to overcome jurisdictional boundaries, allowing participants to study at their own pace and in any location. Participants who successfully complete five Diplomas are awarded the IBA Fellowship in International Legal Practice.
CLICK HERE TO FIND OUT MORE
http://www.ibanet.org/education/ipdp_home.cfm
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