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Barclay Crawford

Naomi Rovnick

In 2002, top-flight British law firm Freshfields Bruckhaus Deringer  helped get Trinidad and Tobago-born businessman Krishna Maharaj,  who had been convicted of double murder, off death row in Florida. The firm represented Maharaj for free until 2008 when it applied, unsuccessfully, to get him out of jail. 
This firm is typical of the trend. 
At the world's biggest commercial law firms, who can charge US$800 an hour for their services, such noble efforts, known as pro bono publico in the Latin tongue that lawyers favour, are commonplace. 
The American Bar Association calls the work of providing free legal advice a 'moral duty'. 
But in Hong Kong, it seems, commercial lawyers are doing far from enough. 
The South China Morning Post surveyed the world's 25 largest solicitors' firms, as ranked by The Lawyer magazine in 2006, about their pro bono efforts in Hong Kong. 
Those who responded said uniformly they were helping charities with commercial law. Several firms are also assisting Filipino domestic helpers with employment disputes and helping refugees seek asylum   through a voluntary organisation,  the Hong Kong Refugee Advice Centre.  
What was missing  from the responses was something law firms do  in the US and Europe - helping those who cannot afford lawyers gain access to justice and representing them in court. 
Michael Smyth, the global head of pro bono at Clifford Chance,  the world's third biggest law firm by revenue according to the American Lawyer magazine, said the  Hong Kong office could  do more. 'The task now in territories like Hong Kong is to establish a sustainable global platform whereby all lawyers exhibit the same commitment to public interest activity,' Smyth said. But he said Hong Kong did not have a well developed free-law infrastructure. 
In London, for example, scores of legal firms contribute staff to the charity LawWorks,  which runs free legal advice clinics for people who cannot afford a lawyer.  
Meanwhile, commercial solicitors also flock to London's Royal Courts of Justice  to help litigants  who choose to represent themselves in court prepare their cases. 
Hong Kong has no such schemes. The closest to them is the Hong Kong Legal Community Roundtable, a forum set up two years ago to share knowledge and experience of pro bono activities  and promote the need for more.  
Wong Kwai-huen,  president of the Law Society,  said when he received a plea  from a person  who could not afford legal representation, he sent out a request for a lawyer prepared to help. 
So far, he said, every such request  had been answered.  'But the problem is, we don't have a pro bono centre and that's probably what we need to do,' he said. 'We do encourage firms to do pro bono work, but we don't force them to.'  
Wong said part of the problem in Hong Kong was that more than 80 per cent of the firms had a maximum of five partners, making it hard to institute a rule requiring them to dedicate time to pro bono. 
Responses to the Post poll exhibited a timidity among the Hong Kong and mainland offices of global  firms to fight contentious battles. 
Barristers - the section of the legal profession that stands up in court wearing wigs and gowns - are more active in the city. Earlier this month, 10  Hong Kong barristers agreed to waive their fees representing  pro- democracy activists who were arrested for storming the central  government's  liaison office in the city to protest against the 11-year imprisonment of  dissident Liu Xiaobo ,  a former professor jailed  on subversion charges on the mainland after he co-authored the 'Charter 08' manifesto calling for political reform.
But not one of the world's 25 biggest law firms stepped in to help the protesters, two of whom were admitted to hospital after clashing with  police in the  December protest. 
Martin Lee Chu-ming,  founding chairman of the Democratic Party, who is co-ordinating the protesters' legal defence, said: 'The big commercial lawyers are not helping [in this case]'. 
He said  political protesters seeking legal advice in Hong Kong tended to go directly to Democrats  chairman Albert Ho Chun-yan,  who is a solicitor, for aid. 'I am not complaining about the international firms. They do take pro bono cases from time to time. But it's up to the client, and often they know Albert is ready to help them and so they go straight to him,' Lee said. 
A litigation partner at an  American law firm in Hong Kong said his employer would not allow him to act against the Hong Kong government. 'If something is anti-government, we would think twice about getting involved,' he said. 
That sentiment is  magnified  in mainland human rights cases that  law firms could be advising on for free.  A partner at a top-five British law firm based in Hong Kong said his firm had 'no priority' to try such cases.  He said it would be commercial suicide for a global law firm to take on any case that may rattle government officials in Beijing. This is because the mainland  is seen as a major source of revenue growth for these  firms and their multinational clients. 
Robert Precht, the Beijing-based China director of the Public Interest Law Institute,   an organisation that supports lawyers working on ethical cases, adds: 'In New York, for example, many law firms take pride in the fact they represent very controversial people, people who would be considered political prisoners, Guantanamo [Bay] detainees, death row inmates. I worked at a New York law firm that prided itself on having represented Martin Luther King.'  
But on the mainland,  Precht says, it is different. This is because large international law firms are afraid of upsetting government officials, he says. 'The political environment [in China] is unpredictable and the law firms are only able to stay at the pleasure of the Chinese government.' 
Wong did stress it was clear under mainland rules that even doing preparatory work for cases was not allowed unless you had proper qualifications. 
Of course, pro bono  work is not just about  high-profile human rights cases. It is also a social responsibility to help people who cannot afford it to go to court.  
Even Hong Kong's Chief Justice Andrew Li Kwok-nang  complains not  enough is being done to help the poor and disenfranchised gain access to justice. 
At the ceremonial opening of the legal year, Li called on lawyers to do more.  'All lawyers should contribute their fair share to service of the profession and public service. They should also do their part to develop pro bono services, which are much needed.'
He  said justice for all was the  challenge for society, with the rich and big corporations able to afford to litigate, but the bulk of the population finding the costs too expensive.
Access to pro bono services, he said, was one of the initiatives which could help alleviate some of the hardship caused by legal fees.
So what are the large global law firms doing to help society in Hong Kong? 
The answer is rather a lot of charity work. 
Take Freshfields. Its work on the Krishna Maharaj death row case won international plaudits. The further towards Beijing it goes, the less contentious its pro bono work gets. It helps refugees in Hong Kong apply for asylum status through the Hong Kong Refugee Advice Centre. 
In Shanghai, its lawyers assist a charity called the Plant a Tree Today Foundation,   its  corporate social responsibility report of last year said.
Linklaters,  whose partners pocketed an average of US$2.25 million each in 2008 according to American Lawyer magazine, funds primary schools in Vietnam, donates to the green group WWF,  works alongside Freshfields at the  refugee advice centre, and helps mistreated domestic helpers in Hong Kong settle employment disputes. 
This was a typical response to our survey. 
But as St Augustine said 'charity is no substitute for justice'. 
Intriguingly, when asked why they do not advise on human rights cases on the mainland  for free, Hong Kong staff at  global law firms uniformly say it is because they are not allowed to practise local law across the border.  
'That is an utterly specious argument,' fumes a London law firm partner who undertakes a great deal of international pro bono work. 
On its website, American law firm Kirkland & Ellis  says its lawyers assisted Zimbabwean solicitors representing a member of the troubled African nation's parliament who was thrown out of office after he got into a fight in the government chamber. 
International law firms are not allowed to practise local law in Zimbabwe either. In this  case, Kirkland assisted the International Bar Association  by detailing the disciplinary procedures relating to the parliaments in a number of  Western democracies. 
That  pro bono work is possible on the mainland, says Peter Barnes,  the principal of Hong Kong law firm Barnes Daly,  which does a laudable amount of pro bono  on constitutional and human rights cases. 
Barnes suspects that global law firms could be limiting their pro bono efforts far too much on the mainland, fearing what Beijing's response might be. 'Self-censorship relies on your perceptions of what might happen. But without testing the edges of the issue, how do you know? 
'If all [the big firms] began practising [contentious pro bono law on the mainland], they couldn't all be dis-instructed by their [mainland] clients at once. Chinese corporations need them too.'




HK law firms fall short on pro bono work