When we posted information about the first Russian Pro Bono Forum in a professional lawyers’ community on Facebook , one of its members posted an angry message, in which he, among other things, called the event a “hypocritical farce.” He was joined by several other lawyers, whose position can be summarized as follows: pro bono is a good, God-pleasing deed, something like almsgiving, and good deeds should be done, not talked about. I will try to explain why, as it seems to me, pro bono can and should be discussed in Russia – especially now.

Several years ago, after much discussion and rewriting, the law "On Free Legal Aid in the Russian Federation" was adopted, which for the first time created something like a system of free legal aid to those in need on non-criminal matters (defense by appointment, although it has been the subject of much justified criticism, has existed and been funded for quite a long time). The adoption of the law was preceded by a five-year experiment by the Ministry of Justice, within the framework of which state legal bureaus operated in 10 regions; bureau employees provided assistance on any non-criminal matters to people whose income was less than the subsistence minimum, as well as to some other categories of citizens in need. The law provides for minimum guarantees for such assistance, allowing the regions to determine the methods for implementing these guarantees themselves (but also entrusting them with the financing of the relevant programs). Unfortunately, the law narrowed the criteria for providing free legal aid - it is now provided only on some (in the opinion of the authors of the law, the most socially significant) non-criminal matters. There are regions where the criteria were subsequently expanded - both by categories of cases and by categories of citizens - but on the whole they remained similar. In some places, free assistance is provided by state legal agencies, in others by lawyers, and in others by both.

It is obvious that a huge number of people whose income is slightly or even slightly above the subsistence minimum are unable to pay for legal assistance at market rates, if it is something more serious than a simple consultation. And if in large cities where there are NGOs, charitable projects, legal clinics at universities, etc., this problem is not so acute, then outside of them, legal assistance is simply inaccessible to many.

In recent years, the legal business and part of the bar, which is still small, have become increasingly aware of their social responsibility in the form of providing legal assistance free of charge (i.e. without payment, including from the state), on a volunteer basis. Pro bono assistance is provided not only by the offices of large international companies, for most of which the allocation of part of their time for such projects is a policy in effect in all offices, wherever they are located, but also by small Russian firms, and not only in the capitals, but also, for example, in Yekaterinburg, Novosibirsk, Rostov, Samara, Chelyabinsk. However, due to the fact that the main task of these firms is legal support for businesses, they are located, as we see, in large cities, and it is more convenient for them to provide assistance not to citizens, but to charitable and other non-profit organizations - which, of course, is very valuable in itself, but does not solve the problem of access to legal assistance for low-income and other socially vulnerable citizens.

The first to help here are lawyers. Probably, some or even many of them do this – there is practically nowhere to get information about this, including because of the above-described reluctance to spread about their good deeds, and also because almost no one tries to collect such information. There are few exceptions, but they exist: in some regions, bar associations have begun to create coordination centers that distribute requests for pro bono assistance when free assistance cannot be provided by law (with payment for the lawyer's work from the budget of the subject). They also try to encourage pro bono by lawyers – for example, in Ulyanovsk, an annual award is given out, "Lawyer Pro Bono".

For several years now, a reform of the legal profession, better known as the "lawyer monopoly", has been discussed, although the representatives of the bar participating in the discussion do not like this phrase. Just before the New Year, a draft of the corresponding concept was sent to the government; the draft postpones the development of the actual legislation for the implementation of the reform for another year. In short, the essence of the reform proposed by the bar and the Ministry of Justice comes down to the fact that only lawyers will be able to represent in court, as well as provide some other types of legal assistance (there is no clarity on the latter yet). Since literally anyone can do this in non-criminal cases now, those wishing to continue providing legal assistance on a permanent basis will have to acquire lawyer status, while a simplified procedure for acquiring it will be provided for those who already have a certain amount of legal experience.

The concept of reform from the very beginning caused a storm of discontent among the “unregulated” part of the legal profession – the so-called consulting or legal business. Some representatives of this sector publicly accused the Federal Chamber of Advocates (FPA) of trying to eliminate competitors and subordinate financial flows, and the government – of trying to “build a vertical of lawyers”. The FPA responded to this by saying that legal services are monopolized to one degree or another in most countries of the world: due to the high social significance of this sphere, they can only be provided by professionals who have passed the exam for admission to practice and who are subject to the same standards of professional ethics for all. At the end of last year, an initiative group of representatives of the Russian legal business held a series of meetings with the Federal Chamber of Lawyers to prepare joint proposals for the reform concept. These proposals mainly concerned the modernization of the legislation on advocacy, so that the established practices of legal consulting could integrate into the new system and existing companies on the market could continue to work relatively calmly (the main problems here are the structure of advocacy entities that is not “tailored” to modern business, the ban on hired labor of lawyers, an almost absolute ban on advertising, etc.). Some of these proposals, which were the result of difficult compromises, were not included in the concept, to the great disappointment of the participants, but the process is far from complete, and a platform for dialogue already exists, so there is hope that the reform will nevertheless take into account the interests of the legal business.

Unfortunately, it is difficult to say the same about the interests of other interested parties – society as such has not yet participated in the dialogue in any way, for example, human rights and other non-profit organizations providing free legal assistance to those in need or, at least, understanding their needs. The draft concept on the problem of access to legal assistance speaks, but only in the most general terms: “For the further development of the free legal assistance system, it will be necessary <...> to provide in the legislation incentives for lawyers to provide free, high-quality and accessible legal assistance to socially vulnerable groups of the population.”

Meanwhile, the existing regulation not only does not help, but rather hinders lawyers from providing assistance on a pro bono basis. For example, a lawyer is required to sign an agreement with a client, and an essential condition of such an agreement is the amount of the lawyer's remuneration - or an indication that the assistance "is provided free of charge in accordance with the federal law "On Free Legal Aid in the Russian Federation". This law, in turn, allows a lawyer to provide free assistance within the framework of either the state system described above (and then he receives remuneration from the state for it), or the so-called non-state system of legal assistance, but in this case, as a lawyer, he cannot, for example, represent the client in court.

Today, anyone can provide legal assistance (including in the form of legal representation) in non-criminal cases, so the problem described does not have much practical significance and a lawyer can do all the same things as a simple representative (although there are cases when judges check a representative against the register of lawyers and, if they find him in this register, demand, for example, to provide a warrant). But when the right to provide legal representation is granted exclusively to lawyers, provided that the said conflict is not eliminated, it may turn out that it will simply be impossible to obtain assistance in the form of representation in court on a pro bono basis.

This situation is a particular case, which, however, illustrates a general problem: when carrying out a truly important reform of the legal profession in the country, we must not forget that access to legal assistance should at least not be narrowed as a result, and ideally – constantly expanded. The flip side of exclusive privileges is responsibility to society. And only the (future unified) legal profession itself can take on this responsibility, publicly declare it and take concrete steps to ensure that people in need of legal assistance are not forgotten (which, of course, does not cancel the state's obligation to provide minimum guarantees for the provision of such assistance to those most in need).

We will discuss these specific steps at the first Russian pro bono forum, which will be held in Moscow on April 13.

The author is the director of the Russian branch of the Institute of Public Interest Law

Professional talk for the poor