Internationalized Pro Bono and a New Global Role for Lawyers in the 21st Century: Lessons from Nation-Building in Southern Sudan

Abstract

From 2004 to 2006, the author led the pro bono representation of the Sudan People's Liberation Movement ("SPLM"), assisting the SPLM in drafting and negotiating the National Interim Constitution of Sudan, the Interim Constitution of Southern Sudan, and the Constitutions of two "transitional" states. The representation was part of an emerging trend in pro bono representations. In small but increasing numbers, private law firms have begun to take on pro bono projects with global significance - assisting governments and civil society in post-conflict countries to deal on an even footing with foreign investors, for instance, or working with international criminal courts to prepare indictments of war criminals. This development within the legal community is connected to changes in the scope and ambition of the "corporate responsibility" initiatives of many of the multinational corporate clients of firms leading the internationalization of pro bono services. The entry of law firms and multinational corporations into the 'market' of global affairs - long the exclusive domain of governments and inter-governmental organizations - offers many advantages to clients in developing and post-conflict countries, but also poses dangers which can and should be mitigated. One of the foremost benefits private law firms offer a unique ability to ensure - even to guarantee - local ownership of the process and its content, due to the strict requirements of the attorney-client relationship. These include attorneys' obligations to follow the directives of their clients, to keep the confidences of the clients, and to act independently of any third party. Unlike other players in the field of international aid (such as foreign donor governments, intergovernmental organizations (IGOs), non-governmental organizations (NGOs), and private foundations), private lawyers providing pro bono services do not receive donations, do not have "mandates" other than those dictated by the client within the bounds of ethical regulations, and are not accountable to real or imagined "constituencies" other than the client. Yet the enforceability of the ethical code that gives rise to those advantages is questionable in a transnational representation. A lack of regulation raises questions about legitimacy and accountability, and may suggest the specter of legal imperialism. A practical approach to mitigating those disadvantages can be gleaned from the novel work of an increasing number of scholars writing within the Global Administrative Law (GAL) paradigm. GAL scholars have analyzed the myriad ways in which disparate national administrative standards have been synchronized, though not necessarily harmonized, in various contexts (such as environmental concerns and accounting standards). A key concept in GAL scholarship is that of transnational networks - patterns of regular and purposive relations (and institutions) among like regulatory bodies working across borders and demarcating the "domestic" from the "international." This Article will draw on this and other concepts and principles of GAL scholarship in proposing ways to bring accountability to transnational pro bono activities (indeed to transnational lawyering in general) that respect the domestically selfregulated legal profession and which cannot (and should not) be harmonized across jurisdictions. Rather, the article suggests that regulation of global pro bono service should graduate from "accidental distributed administration" to "deliberate transnational network administration." Without some attention paid to the way law firms operate in this arena, there is a risk that the ethical obligations of attorneys will become little more than a cover for advancing Western corporate interests.