Maya Steinitz


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.