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

From 2004 to 2006, the author led the pro bono representation of the Sudan People\u27s 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 \u27market\u27 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\u27 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

The Case for an International Court of Civil Justice

When multinational corporations cause mass harms to lives, livelihoods, and the environment in developing countries, it is nearly impossible for victims to find a court that can and will issue an enforceable judgment. In this work, Professor Maya Steinitz presents a detailed rationale for the creation of an International Court of Civil Justice (ICCJ) to hear such transnational mass tort cases. The world\u27s legal systems were not designed to solve these kinds of complex transnational disputes, and the absence of mechanisms to ensure coordination means that victims try, but fail, to find justice in country after country, court after court. The Case for an International Court of Civil Justice explains how an ICCJ would provide victims with access to justice and corporate defendants with a non-corrupt forum and an end to the cost and uncertainty of unending litigation - more efficiently resolving the most complicated types of civil litigation. Addresses a global audience of scholars, students, lawyers, and general educated readership Readers will learn about the history of the problem and this possible solution through easy-to-understand stories set in India, Ecuador and Nigeria Provides highly sophisticated legal analysis of global access to justice deficit in transnational mass tort cases as well as detailed, workable plans for the new international courthttps://scholarship.law.bu.edu/books/1355/thumbnail.jp

Whose Claim Is This Anyway? Third-Party Litigation Funding

Minnesota Law Review, Vol. 95, No. 4, 2011 U Iowa Legal Studies Research Paper No. 11-3

How Much Is That Lawsuit in the Window? Pricing Legal Claims

Assessing the value of legal claims is the sixty-four thousand dollar question (no pun intended) of civil litigation. Clients, as every litigator knows, often come into their attorneys\u27 offices with a belief that they know how much their claim is worth. The attorney is then asked to validate that number. Alternately, clients can come to their attorneys with a grievance-I have been injured, a counter-party breached its contract with me, I have been fired, our rainforest has been devastated by a mining company-and ask the attorney for an assessment of how much their grievance might be worth. Contingency lawyers, who function as both attorneys and financiers, must make successful predictions on value in order to remain solvent, let alone to rake in a handsome profit, especially when contingency work is the entirety or the lion\u27s share of their practice.\u27 Various developments in the legal profession and the market for legal services suggest that valuing legal claims may soon further affect additional circles of stakeholders. In the United Kingdom-the jurisdiction that pioneered the globalization of law firms and the liquidity in legal claims-the Legal Services Act recently legalized ownership of law firms by nonlawyers. As with the newfound liquidity of legal claims, here too the United Kingdom is bringing an Australian innovation closer to home. In a closely watched development in Australia, the plaintiffs\u27 firm Slater & Gordon Ltd. became the first-ever publically traded law firm, listing its shares on the Australian Stock Exchange

The Partnership Mystique: Law Firm Finance and Governance for the 21st Century American Law Firm

This Article identifies and analyzes the de facto and de jure end of lawyers’ exclusivity over the practice of law in the United States. This development will have profound implications for the legal profession, the careers of individual lawyers, and the justice system as a whole. First, the Article argues that various financial products that have recently flooded the legal market are functionally equivalent to investing in and owning law firms and create all the same governance challenges as allowing nonlawyers to directly own stock in law firms. Second, the Article analyzes Arizona’s groundbreaking legalization of nonlawyer participation in law firms, effective January 1, 2021, and the effects it will have nationally. Third, the Article explains that the drawbacks of liberalizing the practice of law are rooted in the conception of shareholder primacy, a bedrock principle of corporate law. This principle would encourage lawyers to prioritize profit maximization for the benefit of their investors over the interests of clients and the courts. Fourth, despite the apparent dangers, there are reasons to celebrate the end of the era of the legal practice as the exclusive purview of lawyers. Lawyers’ monopoly on the practice of law hinders inclusion and diversity and, counterintuitively, undermines practitioners’ dignity and well-being. Fifth, the apparent dangers of liberalization can be avoided if states follow Arizona in allowing nonlawyer participation in the practice of law but condition it on organization as an Alternative Business Structure with certain professional responsibilities. More specifically, the Article proposes a type of “benefit entity,” which I call “legal benefit entity” (LBE). LBEs will be required to privilege the interests of clients and the courts over those of investors. The final Part explains what an LBE should look like

Transnational Litigation as a Prisoner\u27s Dilemma

In this Article we use game theory to argue that perceptions of widespread corruption in the judicial processes in developing countries create ex ante incentives to act corruptly. It is rational (though not moral) to preemptively act corruptly when litigating in the courts of many developing nations. The upshot of this analysis is to highlight that, contrary to judicial narratives in individual cases — such as the (in)famous Chevron–Ecuador dispute used herein as an illustration — the problem of corruption in transnational litigation is structural and as such calls for structural solutions. The article offers one such solution: the establishment of an international court of civil justice

Letter to the Hon. Sen. Orrt (NYS Senate) Regarding Litigation Finance (Lawsuit Lending) (2018)

Following testimony to the New York State Senate\u27s Standing Committee on Consumer Protection (available on SSRN and YouTube), Professor Steinitz was asked to elaborate on her recommendation for a statutory minimum recovery requirement to protect consumers of litigation financing. Enclosed is her response to this inquiry

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

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 multinational corporate clients of the firms leading the internationalization of pro bono services. Private law firms are hardly unique as third-party participants in the highest levels of inter- and intra-sovereign processes. Certainly, it is well known that foreign government assistance, inter-governmental organizations such as the UN or World Bank, and non-governmental organizations play a large role in the social and economic development of poorer countries. Less light has been shed, however, on the role those same entities play in the fundamental sovereign processes of formation, dissolution, war, and peace, and no discussion at all exists regarding the new role of law firms in such weighty international affairs. A close look at the way law firms operate in that rarefied space provides an illuminating contrast to the behavior of other actors. 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 is their 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 client 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 (bounded, of course, by ethical regulations), and do not have real or imagined “constituencies” to which they are accountable, 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 a 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 (e.g., environmental concerns, 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 dividing countries and demarcating the “domestic” from the “international.” The article will draw on this and other concepts and principles identified by GAL scholars proposing ways to bring a measure of accountability to transnational pro bono activities (indeed to transnational lawyering, generally) 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

Follow the Money? A Proposed Approach for Disclosure of Litigation Finance Agreements

Litigation finance is the new and fast-growing practice by which a non-party funds a plaintiff’s litigation either for-profit or for some other motivation. Some estimates placed the size of the litigation finance market at 50–100 billion dollars. Both proponents and opponents of this newly -emergent phenomenon are in agreement that the it is the most important development in civil justice of this era. Litigation finance is already transforming civil litigation at the level of the single case as well as, incrementally, at the level of the civil justice system as a whole. It is also beginning to transform the way law firms are doing business and it will increasingly shape the careers of civil litigators at firms small and large. Consequently, Congress, state legislatures, state and federal courts, bar associations, international arbitration institutions, as well as legislatures and courts in other nations are all proceeding along dozens of parallel tracks grappling with how to regulate litigation finance and especially with the question of what, if any, disclosure requirements to impost on such financing. This Essay aims to turn the debate inside out by proposing to abandon the quest for a bright line rule and to instead adopt a flexible, discretionary standard; a balancing test. The Essay then culminates in a specific proposal for the contours – the interests and factors – which judges and arbitrators should be empowered and required to weigh when deciding whether and what form of disclosure to require. More specifically, the Essay details and rationalizes the specific interests – public and private – and factors to consider including the profile of the plaintiffs and their motive for seeking funding; the funder’s profile and motivation; the case type and the forum; the subject matter of the litigation; the potential effect on the development of the law; the structure of the financing; the purpose of the contemplated disclosure; and the procedural posture of the case