Internationalized pro bono and a new global role for lawyers in the 21st century: lessons from nation-building in Southern Sudan.

• Author: Steinitz, Maya

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 &e 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, inter-governmental 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 self-regulated 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.

INTRODUCTION

Fixing the world's problems has become an increasingly elite affair--a matter between C.E.O.'s[sic] and celebrities. It's noblesse oblige on a large scale. (1)

The most interesting test for humanitarianism comes precisely when we realize we must remain uncertain about where virtue lies and what costs we impose--but when we nevertheless step forward to govern.... I propose that those who share my impulse to make the international world a more just and humane place join in building a humanitarian practice which embraces the freedom and responsibility that comes with an ongoing awareness of the dark sides of humanitarian governance. (2)

From 2004 through 2006, Latham & Watkins LLP represented, on a pro bono basis, the Sudan Peoples Liberation Movement (SPLM) in its post-peace agreement constitutional process. The aim of this Note, based on the author's experience leading the representation of SPLM, is threefold: (1) to contextualize the growing movement of pro bono representations by "mega law firms" in the field of international rule of law development and to theorize about this growing phenomenon; (2) to document the author's observations and insights into the unique characteristics of international aid in the form of pro bono legal representations, with an emphasis on the unique benefits of providing international aid through the establishment of an attorney-client relationship between the "aid donor" and the "aid recipient; and (3) to provide practical suggestions on how to maximize the benefits of this trend and how to minimize its downsides.

The Note begins with a brief overview of the Sudanese peace process as it relates to the provision and scope of pro bono legal representation to the SPLM, as an illustration of the potential scope and impact of the trends to be discussed. The Note goes on to discuss the benefits of introducing the attorney-client relationship into the "toolbox" of international aid mechanisms, (3) applying the emerging scholarship on Global Administrative Law (GAL) to the phenomenon described. Practical means are suggested through which thoughtful and self-conscious implementation of the GAL paradigm can help maximize the benefits and minimize the possible downsides of providing international legal aid by way of forging attorney-client relationships.

1. BACKGROUND

   Sudan has been embroiled in the longest-running civil war of the twentieth century, lasting from 1954 to 2005 with a break from 1972 to 1983. (4) On January 9, 2005, the Khartoum-based national Government of Sudan ("GoS"), dominated by the National Congress Party, and Southern Sudan, represented by the Sudan Peoples Liberation Movement (SPLM), signed a Comprehensive Peace Agreement (CPA). (5) The core arrangements of the CPA included a re-structuring of the Sudanese federal system into a form of "asymmetrical federalism," wherein northern Sudan would have two levels of government--the national level and the state level. (6) By contrast, Southern Sudan would be governed by three federal levels--the national level, the state level, and a new, sub-national, quasi-autonomous Government of Southern Sudan ("GoSS"). (7) Also at the heart of the CPA were the notions of decentralization and devolution of power from the political center (the national Government of Sudan in Khartoum) to the local levels (the GoSS, the states, and local communities), as well as the sharing of wealth among the Sudanese communities. (8) In order to achieve this new and complex political structure, the Sudanese were required to rewrite the constitutions of Sudan. Specifically, the CPA called for the rewriting of the national constitution, a brand new constitution for the new GoSS, and new state constitutions. (9)

   The resources available to the Southern Sudanese in order to meet these daunting tasks, after more than twenty years of civil war, were almost nil. When the CPA was signed, the entirety of Southern Sudan's legal community consisted of approximately 100 lawyers, including the de facto Minister of Justice, the future or de facto Supreme Court judges, civil society lawyers, and the "private sector" lawyers. (10) The Secretariat of Legal Affairs and Constitutional Development ("SoLA"), the proto-Ministry of Justice--the body charged with protecting the legal interests of Southern Sudan and managing the legal aspects of the transition to the GoSS--had six lawyers, none of whom were paid. SoLA had no material resources of any kind, neither office nor vehicle, and functioned without any support staff. (11) Despite the immense research and drafting demands placed on them, no SoLA staff had computers or access to either the Internet or print references. Southern Sudan had forty-two laws, most of which were never distributed to judges or lawyers. (12)

   Hearings were conducted in buildings that were structurally incomplete. Courts were not equipped with water, electricity, or the basic office supplies that make the recording and dissemination of judgments possible. In fact, a total of twenty-six trial courts and eight appeals courts, along with a handful of support staff, served the entire Southern Sudanese population of approximately eight million people. (13)

   In short, Southern Sudan had no modern rule of law structures (14) and no other infrastructure to speak of. Conversely, the territory of the North remained free of conflict, leaving the GoS free to collect taxes, develop infrastructure, and exploit some oil reserves. GoS maintained relations with the world at large and was able to retain the services of high-end private sector lawyers to advise it on the negotiations of the CPA. As a result, like the peace negotiations, the constitutional negotiations were marred by a severe inequality of arms between the Southern Sudanese and the GoS.

   Sudan has been at war for thirty-eight of the last fifty years. The most recent round of conflict--a civil war between the GoS and the SPLM that lasted twenty-two years, cost two million lives, and displaced four million people--devastated Southern Sudan. (15) Furthermore, the civil war itself was a continuation of a pattern of political and military oppression, unequal distribution of resources, and...