A critical state
Necessity is often considered the greatest driver of innovation. As a result of covid-19, the traditional service model for legal advice across all practice areas has had to evolve, pro bono included. Lawyers who work in this field are having to adapt to continue to provide access to justice for vulnerable people in today’s digitalised and distressed world.
By Christina McKeon Frutuoso
A critical state
Necessity is often considered the greatest driver of innovation. As a result of covid-19, the traditional service model for legal advice across all practice areas has had to evolve, pro bono included. Lawyers who work in this field are having to adapt to continue to provide access to justice for vulnerable people in today’s digitalised and distressed world.
By Christina McKeon Frutuoso
When it rains in Latin America, it often pours. In 2020, the covid-19 pandemic sparked a global health crisis that is likely to result in economic damage to the region for years to come. Some economists have predicted that the region faces its biggest recession in history. They warn of a new década perdida – a lost decade – in which sovereign debt could return to the crisis levels of the 1980s. Accompanying this forecast, a humanitarian emergency as the pandemic and its effects accentuate profound social inequalities in the region.
Latin America is in a critical state right now. The pandemic has undone years of social progress in countries that already contained high numbers of disadvantaged people. A United Nations report predicts over 45 million people will fall below the poverty line by 2021, equating to just under 40% of the region’s population.
Latin American nations have some of the highest levels of extreme poverty in the world. Cartel activity, gender-based violence and human rights breaches have long been characteristics of many parts of the region. Lockdowns enforced in response to the public health crisis have had the unintended effect of further marginalising the already marginalised. Gender-based violence has surged since families have been forced to stay at home. The immigration crisis has intensified as more migrants flee violence and poverty for the hope of a more prosperous future. The region’s poorest – often part of the informal economy – have no access to employment benefits, are less likely to be able to work from home and rarely have decent healthcare. They find themselves in a dire state, often those most at risk from catching the virus while at the same time the least prepared to survive.
“The pandemic has reinforced the issues of equality that exist across the region. It has become the poster child for people who don’t have access to justice in their society.”
Jorge Escobedo Vance Center
“The pandemic has reinforced the issues of equality that exist across the region,” sums up Jorge Escobedo, the Vance Center’s director of pro bono partnerships and coordinator of the Pro Bono Network of the Americas. “[It] has become the poster child for people who don’t have access to justice in their society.”
It is also fuelling demand for pro bono counsel, in a region where demand already far outstrips supply. “There is no doubt the effects of the pandemic will be long-term and far reaching for Latin American countries, which will increase the need for legal and other help,” comments Maria-Leticia Ossa Daza, Willkie Farr & Gallagher’s Latin American practice head and partner.
But the enormity of the crisis presents a common cause, and different actors across Latin America are uniting to find a solution. “I strongly believe that our quickly evolving culture will allow more and more multisectoral partnerships between non-profit organisations, law firms and in-house counsels to provide access to justice,” says Nadia de Matos Barros, pro bono coordinator for Instituto Pro Bono in Brazil.
The need for pro bono counsel is greater than ever. As Todd Crider, Simpson Thacher & Bartlett LLP partner and member of the Vance Center’s executive committee, puts it: “This is the moment for lawyers who consider themselves and their firms as leaders to step up to the challenges of our time."
Jorge Escobedo
Nadia de Matos Barros
Maria-Leticia Ossa Daza
Todd Crider
Being part of the solution
The public health crisis has given rise to pro bono work that is both genuinely interesting and impactful on an immense scale. As a result, some firms have reported a huge uptake in lawyers wanting to get involved.
Partners and associates from nearly every practice group at Brazil’s BMA - Barbosa, Müssnich, Aragão have worked on the adaptation of the Instituto Bio-Manguinhos manufacturing plant into a production site for Oxford University’s covid-19 vaccine. AstraZeneca, the pharmaceutical company developing the vaccine in partnership with the university, is expected to roll out the immunisations in 2021.
The work done at the Instituto Bio-Manguinhos is supported by donations. BMA has advised the institute on the legal structure under which it receives these funds, as well as helping formalise the partnership between the owner of the plant – Fundação Oswaldo Cruz – and its donors. Lawyers have also drafted contracts for the purchase, installation and operation of necessary equipment within the plant.
“The digital divide across Latin America continues to persist and in many cases is widening significantly.”
Veronica Rodriguez Paul Hastings
The case has kept BMA’s lawyers on their toes, says finance, capital markets and compliance partner Anna Carolina Malta Spilborghs, who is also the firm’s pro bono coordinator. “We’ve seen greater engagement from everyone, both in the number of people involved and [in] their willingness to help. The pandemic has inspired BMA to engage in more volunteer work than ever before.”
Elsewhere in the region, lawyers from Martinez de Hoz & Rueda, Bulló Abogados and Isaack-Ekdesman y Asociados have provided counsel to Red Resistencia Argentina. The network of over 600 volunteers – including programmers, civil engineers and marketing professionals – works across 20 provinces and is designing, producing and distributing visors and facial protection to key workers, including doctors, nurses and emergency response teams. Lawyers helped draft documents for the delivery of goods to government authorities, medical centres and charity organisations, as well as putting together official disclaimers to give volunteers legal protections.
The work – as many cases responding to covid-19 have done – has brought firms that would normally work across the table from each other side by side. “It was a great experience working shoulder to shoulder with other law firms on this project, dividing between us the legal matters that needed to be reviewed. It was conducted in the most professional and friendly of manners by all the firms involved,” says José Martinez de Hoz.
There are many other noteworthy examples of law firms applying themselves to help individuals or groups suffering because of the pandemic. Peru’s Rodrigo, Elías & Medrano Abogados gave counsel to a group of companies designing and manufacturing ventilators for covid-19 patients who cannot afford private healthcare. Bruchou, Fernández Madero & Lombardi advised “Argentina Needs Us”, a project implemented by the government to provide medical supplies and equipment to the country’s intensive care units. Brazil’s TozziniFreire Advogados helped global network Sistema B create its CoVida20 programme – the first of its kind in Brazil to support small and medium-sized enterprises struggling to stay afloat during the pandemic.
Veronica Rodriguez
José Martinez de Hoz
Ana Roque
Anna Carolina Malta Spilborghs
Geraldine Ifrán
Ivette Montero
The case has kept BMA’s lawyers on their toes, says finance, capital markets and compliance partner Anna Carolina Malta Spilborghs, who is also the firm’s pro bono coordinator. “We’ve seen greater engagement from everyone, both in the number of people involved and [in] their willingness to help. The pandemic has inspired BMA to engage in more volunteer work than ever before.”
Elsewhere in the region, lawyers from Martinez de Hoz & Rueda, Bulló Abogados and Isaack-Ekdesman y Asociados have provided counsel to Red Resistencia Argentina. The network of over 600 volunteers – including programmers, civil engineers and marketing professionals – works across 20 provinces and is designing, producing and distributing visors and facial protection to key workers, including doctors, nurses and emergency response teams. Lawyers helped draft documents for the delivery of goods to government authorities, medical centres and charity organisations, as well as putting together official disclaimers to give volunteers legal protections.
The work – as many cases responding to covid-19 have done – has brought firms that would normally work across the table from each other side by side. “It was a great experience working shoulder to shoulder with other law firms on this project, dividing between us the legal matters that needed to be reviewed. It was conducted in the most professional and friendly of manners by all the firms involved,” says José Martinez de Hoz.
There are many other noteworthy examples of law firms applying themselves to help individuals or groups suffering because of the pandemic. Peru’s Rodrigo, Elías & Medrano Abogados gave counsel to a group of companies designing and manufacturing ventilators for covid-19 patients who cannot afford private healthcare. Bruchou, Fernández Madero & Lombardi advised “Argentina Needs Us”, a project implemented by the government to provide medical supplies and equipment to the country’s intensive care units. Brazil’s TozziniFreire Advogados helped global network Sistema B create its CoVida20 programme – the first of its kind in Brazil to support small and medium-sized enterprises struggling to stay afloat during the pandemic.
A changed world
Greater digitalisation affected many industries long before the onset of the covid-19 pandemic, but the lockdown measures applied in response to the coronavirus have exponentially increased the pace of change in many countries. Ferrere partner and pro bono coordinator Geraldine Ifrán acknowledges that because of restrictions affecting in-person activities, providing pro bono counsel remotely will be the norm for the foreseeable future. “Given the uncertainty that still exists, we have the challenge of rethinking our plans so that we can generate the same impact [as in-person],” she says.
It has meant lawyers have had to be creative with their approach to providing pro bono counsel. In many cases, this has elevated the role of instant messaging services as a platform for lawyers and their clients to communicate in lieu of meeting in person.
Smartphone usage is very common in Latin America; according to Statistica, among a population of around 650 million, over 500 million have smartphone subscriptions. Fundación ProBono Colombia allows its pro bono clients to request legal aid via WhatsApp. Lawyers are communicating one-to-one with their clients on the platform, enabling them to speak directly and quickly.
Other platforms have enabled pro bono work to continue this year. For example, Mexico’s three clearing houses – Centro Mexicano ProBono, Appleseed and Fundación Barra Mexicana – organised Facebook Live sessions to provide legal advice to around 30,000 volunteer doctors working on the front-line during the pandemic.
The size of the audience tuning into the clearing houses’ Facebook Live demonstrates how technology can maximise the impact of pro bono efforts more broadly. Digital platforms can tap into a bigger number of pro bono clients than an in-person event could. Ana Roque, an associate at PPU (Peru), sees it as an opportunity. “The covid-19 pandemic has exposed the needs of more vulnerable people, and as lawyers we have to take this as an opportunity to find new ways to reach a wider audience of pro bono clients. Producing a video on legal training for these vulnerable people and using social media are some examples of how we can do this,” she says.
Several clearing houses have reported a boom in interest for digital legal booklets. In turn, this has presented opportunities for different entities to collaborate on a common cause. Centro Mexicano ProBono worked with counterparts Appleseed and Fundación Barra Mexicana in collaboration with 26 law firms, three bar associations and several in-house counsel to create a 22-chapter online guide to help people deal with the effects of covid-19. Covering civil, criminal, labour and environmental legal issues impacting Mexico’s most vulnerable people, the guide is regularly updated as the situation changes from week to week. It can be downloaded from all three clearing houses’ websites, as well as that of the National Autonomous University of Mexico (UNAM).
The guide has been downloaded from Centro Mexicano’s page alone more than 14,000 times, while UNAM’s dedicated page has had more than 150,000 visits. “The culture of pro bono is relatively low in Mexico, though the need for it is high. We believe this grand-scale collaboration is helping to grow that culture,” says Ivette Montero, Centro Mexicano executive director. “The enthusiasm and willingness from all firms involved has been fantastic.”
Corruption on the rise
A report by the Vance Center’s Lawyers Council for Civil and Economic Rights has revealed a surge in investigations into and allegations of corruption in public procurement across Latin America. This is linked to government action to fight covid-19 in the Americas, with the problem most widespread in Latin America.
Corruption was a disease deep-rooted in Latin America long before covid-19, but the relaxing of controls around public procurement to accelerate government responses in curbing the virus’ infection rate has provided new windows of opportunity for corrupt practices. Donations from the private sector to help with healthcare, education and infrastructure needs and the use of national emergency funds are just some ways opportunists might take advantage of the health crisis for their own monetary gains. Given the race to produce and supply medical equipment and drugs, the healthcare and pharmaceutical industries are particularly at risk.
Of the 14 countries in the report, only Costa Rica and Uruguay have not experienced investigations or allegations of corruption related to public procurement during the pandemic (these two countries are the only ones not to have changed their procurement processes in 2020).
The Vance Center’s report aims to develop and inform best practices for higher levels of transparency and compliance in all sectors of business to stamp out corruption. Governments, private practice lawyers and in-house counsel have a role to play in upholding and encouraging a culture of anti-corruption across the region. Greater levels of accountability when it comes to funding allocation and external and government relationships is a vital step to engraining a culture of anti-corruption in all sectors. The full report can be read here.
The paradox at play
Modes of working that were once accepted without question are changing. With opportunities to meet in person severely limited, digital signature platforms like DocuSign have become a mainstay for contract signing, for example. Most lawyers are confident the pandemic has fuelled a permanent change in thinking about technology. Digital practices will likely continue to play a prominent role in pro bono too.
There is a paradox at play: the greater digitalisation that the pandemic has inspired has theoretically increased access to justice by broadening pro bono lawyers’ reach. But those in need are often still excluded. For many of the region’s most vulnerable, greater digitalisation is in vain because they do not have easy access to smartphones or the internet. “The pace of change has not been the same across Latin America,” says Veronica Rodriguez, of counsel at Paul Hastings and the Vance Center’s Latin America sub-committee co-chair. “The digital divide continues to persist and in many cases is widening significantly.”
This irony is perhaps most cruelly felt in Venezuela where extreme poverty and a deep-rooted humanitarian crisis means pro bono advice is desperately needed, but digital communications are out of reach for those most in need.
This disadvantage is not limited to access to justice. Those without digital access will likely miss out on virtual education and telemedicine services, which are likely to grow in importance going forward.
Connecting with portions of society who do not have access to smartphones or the internet can be challenging. “I remember one pro bono case I worked on this year in which we communicated with a refugee by sending handwritten notes to his home,” says Bianca dos Santos Waks, an associate at Brazil’s Mattos Filho, Veiga Filho, Marrey Jr e Quiroga Advogados. “Several times on other cases we’ve had to correspond with clients who are sharing a smartphone with many other people.”
To help make their legal support accessible, law firms are teaming up with civil society organisations, government agencies and independent non-profit organisations that work closely with those most in need. Clearing houses often act as a bridge between law firms and these groups.
Dividendo Voluntario para la Comunidad is a non-profit project aimed at bringing nutrition, education and health services to Venezuela’s poorest communities. For the last three years it has focused heavily on improving childhood nutrition, with lawyers from Dentons’ Venezuelan office working pro bono to help the organisation ally with public schools in the poorest areas across the country. Pre-pandemic, it was providing free school meals in over 70 schools.
But when schools closed because of the pandemic, the organisation faced a bleak situation made much more helpless. It was eventually approached by UNICEF and – after Dentons’ lawyers drafted the necessary contracts for volunteers and transport provisions – the organisation now has the structures in place to deliver essentials to children at home. The collaboration also led to a programme to provide clean water to 12 public hospitals, one of which is Venezuela’s main covid-19 patient hub. “In the context of the pandemic, my everyday work mainly involved closing businesses down or restructuring corporations and generally seeing the negative impact of covid-19,” says Esther Cecilia Blondet, partner at Despacho de Abogados miembros de Dentons. “Pro bono work, on the other hand, has been a positive amongst such doom and gloom. It’s a chance for me – and other lawyers – to do something to help reconstruct the country.”
Clients for the cause
Pro bono has become steadily more established in law firms across most jurisdictions in Latin America, but for most companies and their legal teams, it remains uncharted territory. Allianz Colombia’s chief legal and compliance officer, Gustavo Sáchica – who is also a member of the board of directors at Fundación ProBono Colombia, where he is the representative of in-house counsel in the clearing house – says more corporate counsel are stepping up to this responsibility.
“Doing pro bono work as in-house lawyers is in progress and developing,” he says. “It still requires those corporate counsel who are disruptive to break the mould.” At his former employer, Metlife, Sáchica was a reckoning force that pushed his company to become the first insurance group to join the Colombian clearing house.
Sáchica acknowledges that many companies are spending conservatively right now and some think they do not have time to do anything outside of their department due to intense workloads brought about by pandemic-related issues – but he is confident 2021 is going to look very different. In the second half of 2020, membership of Fundación ProBono Colombia by companies, not just law firms, grew substantially, with insurance giant Suramericana being the latest to join.
“As a result of the times we are living in right now, heads of legal across sectors are seeing and realising that we need to contribute more to society,” he explains. “We have less spare time than ever now, but we’re also realising that social responsibility matters and it’s effort worth making.”
Legal teams at any company can spearhead efforts to reach out to their local clearing house, or even their external counsel, to see how they can collaborate on pro bono. Within their own company, there might be unlikely people who are keen to get involved too. "Pro bono isn’t exclusive to the immediate legal department – our CEO David Colmenares is a lawyer, by profession, and he’s worked with us too on this,” says Sáchica.
Elsewhere in the region, Centro Mexicano is hard at work pushing more companies and their legal teams to partake in pro bono. Many corporate counsel want to do pro bono but don’t know how, as they think it’s a private practice endeavour, says Centro Mexicano executive director Ivette Montero. Her team provide a step by step process to help in-house counsel that come to them for help in establishing pro bono programmes at their company. Corporate counsel can explain what kind of work they want to do, their availability and where else they want to help. “We’ve done it for global companies, and it’s worked very well,” says Montero. “It’s an area that has great opportunity now in Mexico, and beyond.”
Gustavo Sáchica
Esther Cecilia Blondet
Werner Ahlers
The future of funding
Clearing houses are a very important conduit by which pro bono demand is transferred to the lawyers who can meet it. Without them law firms would not be able to connect with the most vulnerable sections of society. To operate and provide this service clearing houses rely on funding from their members.
The covid-19 pandemic has been a catalyst for greater cost-conscientiousness for many businesses, including law firms. Tellingly, 70% of firms who responded to Latin Lawyer’s 2020 fees survey (which drew on a slightly different group of respondents than those who took part in our pro bono survey) said the number of hours they had billed had reduced since the start of the pandemic. There is a general expectation that many clients will continue to face financial constraints for well into 2021. Almost 7 out of 10 firms admitted they expect requests for alternative fees, deferrals and even fee reductions from clients to continue this year.
It is too early to say with certainty how contributions to clearing houses might look in 2021, but it is possible that with clients and law firms continuing to face financial pressure, firms might feel the need to scale back their contributions or the budgets they allocate for pro bono work. Against this backdrop, it is promising that two thirds of firms polled in our latest pro bono survey say they will make a financial contribution to their clearing house in 2021. Some 60% said they had contributed in 2020 – and this percentage has the potential to increase given that firms answered our survey in the third quarter of the year.
One viewpoint is that the sheer scale of the pandemic and those affected has centred pro bono in the minds of firms. This awareness could actually have a positive impact on funding. “One silver lining of covid-19 is that pro bono is now front and centre of many law firms and businesses’ purpose and mission,” said Jaime Trujillo Caicedo, chair of the Latin America region and partner in Baker McKenzie’s Bogotá office. “This should generate an uptick in membership to clearing houses, funding of pro bono initiatives and partnerships with [pro bono] clients.”
The Vance Center’s Escobedo encourages firms to view clearing house donations from a long-term perspective. In doing so, they will recognise that these contributions are actually investments, he says. Providing funding to local clearing houses strengthens the pro bono network to which a firm belongs. It helps clearing houses organise more meaningful support projects capable of serving higher numbers of people in need, ultimately enriching the experience of the lawyers who get involved. These projects provide a platform for lawyers’ career development, which inevitably helps firms with talent retention. “While it is tricky because this investment is external, firms are seeing the importance of it and realising it doesn’t detract from the bottom line, but contributes to it,” Escobedo adds. “There has been a remarkable shift in how Latin American law firms view pro bono. They’ve moved away from treating it as a charitable contribution and toward an investment in a practice area.”
There is other long-term value attached to pro bono and clearing house contributions. “It’s rarely just a contribution, it is often seen as an important investment in diversifying a firm’s assets and indirect revenue streams,” says Werner Ahlers, Sullivan & Cromwell LLP partner and Vance Center executive sub-committee member. Multinational clients in particular, says Ahlers, are placing more weight on their external counsel’s social responsibility initiatives and increasingly look at law firms’ commitment to pro bono practice. “Firms that want to expand their client bases should consider ways to demonstrate that they have this commitment to pro bono more and more,” he adds.
Amid the challenges 2020 has brought, it is heartening to see evidence of so many firms embedding pro bono practice into their institutional frameworks. Such investments imply they are in this for the long run. More and more firms have dedicated pro bono committees and coordinators and more are linking pro bono hours to associate compensation schemes and career evaluations. The fact that in 2020 more firms took the time to participate in this survey than ever before illustrates the importance participating firms attach to their pro bono work, even during one of the most challenging years for the region to date.
The widescale disruption of covid-19 has been a wake-up call for many to the painful challenges faced by society’s most vulnerable. Everyone has been impacted by the pandemic in some form or another, but the most marginalised are bearing the brunt.
For those lawyers and firms who have not worked pro bono before or who are hesitant to make a donation to their clearing house, the time is now. “The solidarity humankind is witnessing right now as we all fight one common ‘enemy’ is a powerful force. Pro bono can make you part of that force,” says Centro Mexicano’s Montero.
Bianca dos Santos Waks
