Considering the complex nature of the procedural activity, the right to defence is part of the category of fundamental human rights, being recognized both by the Universal Declaration of Human Rights and by the Romanian Constitution. Even though the law should provide equal protection to citizens, regardless of their social or financial status, Romanian citizens have difficulties in accessing legal services for a fee, as approximately 40% of the population is at risk of poverty. The immediate impact is a lack of confidence in the justice system, with 43% of Romanians having a bad opinion of the way justice works and 24% having a very bad opinion. The image of lawyers is not positive either, with only 29% of Romanians having a lot of confidence in lawyers.
At the same time, the number of cases before the courts is increasing. According to the Report on the State of Justice in Romania, the total caseload of the courts in 2013, excluding military courts, was 3,337,426 cases (3,335,672 cases in 2012), which corresponds to an increase of 0.05% compared to 2012.
Non-governmental organisations, especially human rights organisations, are trying to provide assistance, but the financial resources to contract legal services are limited due to the limited number of donors funding such activities. In this context, regulating the possibility for lawyers to provide pro bono legal advice can increase access to justice for citizens, and in particular for vulnerable groups.
Under Romanian law, legal advice, assistance and representation in any field are activities that can only be exercised by lawyers. The only exception is legal advisers. There are no provisions expressly prohibiting pro bono legal assistance for these professions, but the regulations governing the exercise of the legal profession include certain provisions relating to the right to a fee. In this respect, there are detailed provisions on the obligation to conclude a legal assistance contract, including the lawyer's fee.
The possibility of providing pro bono legal assistance is currently only possible by way of exception. The law specifies that "in exceptional cases, if the rights of the person without material means would be prejudiced by delay, the dean of the bar association may approve the granting of free legal assistance". However, it is rare for the dean of the bar to approve such requests. On the other hand, public legal aid is also granted in situations provided for in the specific law, as a protective measure, in particular in criminal cases.
Given the need to respond to the needs of beneficiaries, non-governmental organisations in practice use the services of lawyers free of charge without a written contract, which affects the quality of the services provided. They also opt for the option of concluding a legal aid contract, but with the inclusion of fees which they do not receive, and are at risk of being reprimanded, warned or fined.
Pro bono legal services have been provided internationally for over 40 years. In the United States, the American Bar Association has advocated for the regulation of the professional responsibility of every lawyer to provide legal services for those unable to pay. Currently, a lawyer must provide at least 50 hours of pro bono legal services per year.
This practice also exists on the European continent. In Poland, citizens can get free legal aid in addition to legal aid. In recent years, there has been a trend for multinational companies to ask their affiliated law firms to align themselves with the social responsibility policy they promote. According to the Council of Bars and Law Societies of Europe (CCBE), the main elements of social responsibility of the legal profession include: pro bono and community service, philanthropy, the profession's code of ethics, environmental responsibility and governance.
The legislative regulation of the possibility to provide pro bono legal services for non-profit legal persons requires a complex process to be initiated by the Ministry of Justice, but civil society organisations (APADOR-CH, Legal Resource Centre, Foundation for the Development of Civil Society) have so far implemented projects in partnership with international pro bono networks, with the possibility to transfer know-how.