Pro bono publico legal practice, or simply Pro Bono, constitutes an ethical and voluntary institute within the scope of Deontological and Civil Procedural Law. It consists of the free, occasional, and voluntary provision of legal services to non-profit social institutions or low-income individuals, aiming to achieve access to justice and promote the common good.
1. Definition, Concept, and Legal Nature
The term pro bono publico, originating from Latin, translates literally as "for the public good." In the Brazilian legal system, pro bono advocacy is defined as the free, occasional, and voluntary provision of legal services. Its legal nature is that of a voluntary public duty (múnus público), embodying an ethical and social obligation of the lawyer, devoid of any onerous contractual nature or employment relationship.
It differs from the free legal assistance provided by the State (Public Defender's Office), because while the latter is a constitutional duty of the public entity (Art. 5, LXXIV, CF/88), pro bono advocacy is a prerogative of the liberal professional or law firm. It is imperative to highlight that this institute should not be confused with court-appointed counsel (advocacia dativa), which, although acting in the absence of a Public Defender, presupposes state remuneration via fees set by the court.
2. Historical Origin and Evolution
Historically, the roots of the institute date back to Roman Law, where the patronus defended his clients (often plebeians or foreigners) as a moral obligation and a matter of social prestige. In modern Comparative Law, the US model influenced the practice globally through the American Bar Association (ABA), which established guidelines for lawyers to dedicate a minimum number of annual hours to social causes.
In Brazil, the evolution was marked by intense corporate debates. Until 2015, there were severe restrictions imposed by OAB sections (notably OAB/SP), which feared the use of pro bono as a mechanism for improper client solicitation or unfair competition. The resolution of the issue occurred with the reform of the Code of Ethics and Discipline and the issuance of specific regulations that standardized the practice throughout the national territory.
3. Legal and Regulatory Framework
The primary legal foundation for pro bono advocacy is found in the Code of Ethics and Discipline of the Brazilian Bar Association (CED-OAB) and in specific provisions:
- Article 30 of the CED-OAB: Establishes that a lawyer may provide pro bono legal services to non-profit social institutions and their beneficiaries, as well as to individuals who lack the resources to hire a professional without prejudice to their own sustenance.
- Provision No. 166/2015 of the Federal Council of the OAB: Exhaustively regulates the matter, defining the limits and scope of the practice. Art. 1 of this provision prohibits the use of the institute for political-partisan or electoral purposes, as well as for improper advertising.
- Federal Constitution (Art. 5, item XXXV): The principle of the non-exclusion of judicial review serves as a foundational principle, where private advocacy, when acting pro bono, assists the State in guaranteeing universal access to justice.
4. Practical Application and Jurisprudential Understanding
The practical application of pro bono requires the lawyer to maintain the same technical rigor and professional zeal dedicated to paid cases. The jurisprudence of the Superior Courts and the OAB ethics tribunals have consolidated crucial understandings:
The Superior Court of Justice (STJ), in rulings regarding the setting of fees, reinforces that the free nature of pro bono service prevents the subsequent collection of contractual fees from the beneficiary, but does not, as a rule, exclude the right to success fees (honorários de sucumbência) owed by the losing party, unless otherwise provided in the engagement letter (Understanding in accordance with Art. 22 of the Statute of Advocacy).
The Supreme Federal Court (STF), when analyzing ADI 4296, although the central object was the Mandamus Act, touched upon the essentiality of advocacy (Art. 133, CF) and the importance of mechanisms that expand the defense of the needy. The court recognizes that pro bono advocacy is an instrument for the effectiveness of fundamental rights.
Within the scope of the Superior Labor Court (TST), the practice is encouraged especially in public civil actions conducted by unions or NGOs aimed at protecting meta-individual rights of low-income categories.
5. Related Principles and Doctrinal Divergences
The institute is governed by the principles of Social Solidarity, Dignity of the Human Person, and the Social Function of Advocacy. However, there are relevant doctrinal divergences:
- Restrictive Current: Argues that pro bono should be strictly limited to avoid emptying the labor market and precariousness of the profession. It defends that free assistance is a primary duty of the State.
- Expansive Current: Maintains that the lawyer's social responsibility is inherent to their public function. For this current, pro bono should be encouraged even for strategic causes of social impact (strategic litigation), regardless of the beneficiary's strict economic hardship, provided that the social interest is manifest.
6. Contemporary Relevance and Impacts on the Legal System
In contemporary times, pro bono advocacy has assumed a vital role in protecting minorities and vulnerable groups. With the advent of CNJ Resolution 433/2021, which provides for the judicial policy of attention to people experiencing homelessness, the collaboration of volunteer lawyers has become a pillar for document regularization and access to social security benefits.
Furthermore, the impact on the legal system is observed in the reduction of predatory litigation and the promotion of appropriate conflict resolution methods, since pro bono advocacy often acts in the consultative and preventive sphere, avoiding the filing of unnecessary lawsuits and contributing to systemic procedural speed.
Legal and Jurisprudential References
- BRAZIL. Constitution of the Federative Republic of Brazil of 1988. Articles 5 and 133.
- BRAZIL. Law No. 8.906, of July 4, 1994 (Statute of Advocacy and the Brazilian Bar Association).
- FEDERAL COUNCIL OF THE OAB. Code of Ethics and Discipline, 2015. Article 30.
- FEDERAL COUNCIL OF THE OAB. Provision No. 166/2015. Provides for pro bono advocacy.
- STF. ADI 4296. Rapporteur Justice Marco Aurélio. Judged on 06/09/2021.
- STJ. REsp 1.656.322/SC. Rapporteur Justice Herman Benjamin. (Deals with the nature of fees and legal aid).
