A project providing voluntary legal aid for the needy now taking shape under the auspices of the Israel Bar Association is a sign of the new winds blowing in this organization.
Two years ago, three lawyers from Ashkelon wrote a strongly-worded letter to the Israel Bar Association, demanding that a colleague who offered free legal assistance to residents of the city be brought before a disciplinary court.
According to the code of ethics of the Israel Bar Association, a lawyer must be paid for legal representation. There is even a minimum fee for legal services. In taking on clients without pay, the lawyers from Ashkelon argued, this attorney was hurting his peers, debasing the profession and violating the ban on soliciting clients.
The Ethics Committee took no more action against this lawyer than it did against other lawyers accused of the same offense. On the contrary, it turned around and canceled the mandatory charge for legal services, along with the minimum fee. Nevertheless, complaints about free legal assistance have continued to reach the Ethics Committee.
Recently, the Israel Bar Association called upon its 25,000 members to commit themselves to 50 hours a year of pro bono work. Although volunteering is not new - some lawyers have provided free counseling for years, and the number is steadily growing - the decision to institutionalize this activity is a revolutionary one for an organization that has operated for years as a kind of private, self-centered guild.
The transformation process began two years ago, when attorney Shlomo Cohen was elected chairman of the Israel Bar Association, replacing Dror Hoter-Yishai. Since then, the association has adopted a more liberal stance in its defense of the courts, the attorney general and basic rights such as the right to legal aid.
"We believe that law is not just a profession, but also a social mission," says Cohen. "As attorneys, it is our collective responsibility to defend the `institutions of law,' but there can be no proper administration without true recourse to the law."
Cohen maintains that the state must provide its citizens with legal recourse, in the same way that it provides minimal recourse to education, medical care and employment. In fact, this service does exist: The Ministry of Justice has a legal assistance department that represents financially-strapped clients almost free of charge (applicants pay a nominal fee of up to NIS 150). However, the service extends only to representation in court, and not counseling, which could do away with the need for going to court.
In Cohen's opinion, it is the Israel Bar Association's job to fill that void. In many countries, lawyers contribute hours of work as a matter of routine. In the United States, it is even a mark of prestige. In Israel, no one will openly oppose volunteering - it is not bon ton - but there is resistance, some of it pragmatic and some of it sparked by political disagreements within the Bar Association.
"We have taken into account that there is a lot of competition, which has lowered prices and increased access to lawyers," says Cohen. "We don't want to create a situation in which voluntary legal assistance competes with the lawyers of low-income clients, some of whom can afford the reduced rates now being charged."
While the intentions are good, this pro bono decision is being implemented during a very slack period as far as law firms are concerned, and there are some who fear that lawyers will be deprived of their livelihood. "Supreme Court president Barak announces that lawyers have to do pro bono, and everyone snaps to attention," protests Yaron Festinger, one of the heads of the Hoter-Yishai camp. "The primary objective of the Israel Bar Association is to safeguard the interests of its members. Lawyers do pro bono work every day. Who needs a white elephant that will only harm the earning prospects of salaried and younger lawyers? Let them set up a modest volunteer society, not some fancy money-grubbing administration. If people want to volunteer, they should go ahead and do it. Why turn it into a party for overfed yuppies?"
Questions of livelihood
Festinger is a member of the committee which is drawing up criteria for eligibility. He is particularly concerned about the possible inclusion of a segment of the market that can afford to pay for the services of a young lawyer. He accuses the public defender's office, which provides free legal representation to indigents, of usurping the livelihood of criminal lawyers. The office does not do enough to weed out applicants who can pay for a lawyer, claims Festinger.
To be eligible for the pro bono services of the Israel Bar Association according to Festinger, the family must have an income that does not exceed NIS 7,000 a month after taxes, which is the average salary currently earned by 70 percent of labor force. Cohen cites a lower figure. A family with three children that earns a total of NIS 6,000 a month, he says, cannot afford to hire a lawyer - even the least expensive. The eligibility ceiling for legal assistance from the state is NIS 4,666.
According to the criteria now being established, the pro bono lawyers will handle lawsuits involving debt, marital affairs and bureaucratic entanglements. They will not take tort cases because lawyers earn a percentage of the compensation awarded by the judge, which means that even the poor can afford a decent lawyer if they have a good case. Festinger, an expert in tort law, says that such suits are pro bono by definition: If the client loses the case, his lawyer gets nothing.
Attorney Yigal Arnon, who heads the voluntary aid program, feels that its most important contribution will be in getting the needy to the authorities that will help that solve their problems. Cohen asked Arnon to head the project, and Arnon is very excited to be involved. "It's in my bones," says Arnon, who has been doing pro bono work himself since he opened a law office in 1958. It began with a woman who approached him for help in getting her son, the family's chief breadwinner, released from the army. Arnon wrote a letter to David Ben-Gurion and the son was discharged. He did not take money from the woman.
If commercial companies take part nowadays in community and social projects, says Arnon, so should lawyers. This is all the more important considering that the legal code is becoming more complicated every day, and Israel has become a "society of litigators," relying on the courts to resolve its conflicts. "The Israel Bar Association is a huge establishment," observes Arnon. "Through volunteering, the hardship of hundreds of thousands of people can be alleviated. The success of this project depends on the good will of the lawyers. By contributing to the society they live in, and especially the weaker sectors, they will also be helping themselves."
Younger faction
Yuval Elbashan, the attorney against whom the lawyers from Ashkelon lodged their complaint, believes that this project will help to bring lawyers who work for the community into the legal mainstream. As a member of the committee formulating eligibility criteria, he thinks volunteer lawyers should undergo special training for work in the community, which will maximize their potential to help.
Elbashan, head of the human rights division of the Academic College of Law in Ramat Gan, defines himself as a member of the younger faction that kept its distance from the Israel Bar Association for years - until Cohen took over two years ago. In the contest between Cohen and Hoter-Yishai, this younger faction tipped the scales and was a driving force behind Cohen's decision to inaugurate a pro bono program. It also succeeded in pushing through the decision regarding the minimum legal fee.
"I salute Cohen because he's taking a risk," says Elbashan. "In the next elections, he'll be up against a wall of self-employed lawyers, and if this project hurts them, they'll do the same to him. Cohen, however, sees a great future for the project. "I'm sure we'll get the cream of the crop," he says. "There are major firms out there saying: `Just say the word and we'll take a full-time lawyer just for pro bono.' My prediction is that hundreds of lawyers will want to be involved, and the implications are tremendous. Now when some poor guy stands up to the bank, he'll have the whole Bar Association behind him."
The Israel Bar Association is planning a data base of volunteers arranged by place of residence, specialization, language, etc., to facilitate matching them up with clients. The first stage will be the establishment of four offices in low-income neighborhoods around the country and a hot-line for preliminary counseling.
That was the most Festinger was prepared to support. The budget proposal for 2002 called for a total of NIS 680,000, but the national council approved only NIS 400,000. Festinger believes the cutback reflects opposition to what he sees as Arnon and Cohen's grandiose plans.
In the Cohen camp, they say that it is not so much opposition as caution, because the full plan, including eligibility criteria and a timetable, have not been presented yet. Cohen is convinced that as the project moves forward, obtaining more funding will not be a problem.
