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Brazilian bar enters “new era” after liberalising pro bono

​Brazil’s federal bar association has ushered in a “new era” for pro bono work in the country after its highest chamber agreed to liberalise the practice so lawyers across Brazil can provide free legal aid to individuals.​

The Ordem dos Advogados do Brasil (OAB) modified its code of ethics on Sunday. Lawyers can now help individuals who do not have the resources or funds to hire a lawyer, although they are forbidden from offering legal aid for political ends, or as a means to attract new clients. Previously, OAB’s codes of ethics meant only state-appointed legal practitioners were able to provide free legal aid. This rule was relaxed in 2013 after the bar issued an injunction lifting the restrictions, but the filing was only preliminary. The resolution passed on Sunday makes the provision of free legal services to individuals permanent.

Carlos José Santos da Silva, president of the São Paulo-based Centre of Law Firms Studies (CESA), an organisation that represents over a thousand firms whose members regularly sit on the OAB’s state and federal counsels, says he is delighted with the result. “I believe that with the liberalisation of pro bono, disadvantaged people may have access to justice,” says Silva, who is also a partner at Machado, Meyer, Sendacz e Opice Advogados.

Marcos Fuchs, executive director of national clearinghouse, Instituto Pro Bono (IPB), who campaigned for 14 years to change the rules, is just as pleased and describes the changes as heralding a “a new era in access to justice in Brazil. “It has been a state by state campaign [and] I tried to convince each member of the federal bar that they had a clear responsibility in tackling this issue,” he explains.

Fuchs predicted his supporters were gaining ground last year, but nonetheless, tensions were high before the OAB approved the change on Sunday. “It was a very heated debate, but thankfully sense prevailed,” he says.

The OAB’s decision to modify its ethics code comes after heavy pressure from the IPB and its supporters. “It has passed now, because we have put an incredible amount of pressure [on the OAB] at federal level,” says Fuchs, who frequently travelled to Brasília to lobby the bar’s board members for the change. “This included a law suit from the Federal Attorney against those state bar associations which continued to prevent lawyers from doing pro bono work.”

High on the list of the OAB’s reservations about the change was the effect a liberalised pro bono culture might have on the livelihood of state-appointed attorneys. Flavia Regina de Souza Oliveira, a partner at Mattos Filho, Veiga ​Filho, Marrey Jr e Quiroga Advogados whose pro bono practice is highly regarded, believes this argument was weak. “The demand [for pro bono] is far greater than the number of public attorneys we have in Brazil,” she declares.

Sections of the OAB also expressed concerns over private lawyers using their pro bono activities as an advertisement tool for their firms’ wider services, to increase their visual presence in the market and attract new clients. Olivera does not dismiss this argument, but believes the OAB can implement the appropriate checks and balances to prevent it from becoming a serious issue. “Maybe some lawyers will do this, but the federal bar association will approve another regulation in August establishing the criteria by which lawyers can provide pro bono to individuals and NGOs,” she says, adding that lawyers who fail to comply with these rules will be punished.

The Brazilian legal system must now adapt to pro bono’s liberalisation if access to justice is to improve. Mattos Filho’s Oliveira is optimistic this will mean more clearinghouses. “Brazil is completely different from the US where there are a lot of clearinghouses providing a link between law firms and individuals,” she notes. “In Brazil we just have Instituto Pro Bono, but I believe we are going to have more clearinghouses to help people enter the legal system, because it’s difficult to access these individuals otherwise.”

Meanwhile, Fuchs says he will now turn his attention to private attorneys. “We must work to convince lawyers to take cases from individuals, helping the poor and thereby strengthening access to justice,” he states. “In addition, lawyers must organise themselves and be prepared to provide this assistance.”

Latin Lawyer’s publisher, Clare Bolton, will be chairing a course on pro bono at Fundação Getúlio Vargas’ (FGV) Postgraduate Law School in São Paulo on 30 June. The course is part of a wider programme running from 29 May to 3 July, which looks at why and how lawyers should provide free legal advice. Leading pro bono lawyers from Advocacia Mariz de Oliveira, Campos Mello Advogados,Demarest Advogados, DLA Piper LLP, Mattos Filho, Pinheiro Neto Advogados and Trench, Rossi e Watanabe Advogados (in cooperation with Baker & McKenzie) will speak at the event alongside representatives from Ação Educativa, the IPB, FGV and OAB. More details about the event, including how to register, can found here.​

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