Ethical dilemma of lawyers
Leading to image crisis
Shah Md. Mushfiqur Rahman
What is public perception of lawyers? Do they think lawyers really are indispensable in the establishment of justice? Or are they there only to compound things so as to push truth far away from being revealed? If you are a layperson you may straightaway find these questions pretty interesting. But if you happen to be a lawyer these questions may make you think for a while and soon you will realise that lawyers are largely, if not the most, 'misunderstood' professionals.
In terms of number of jokes dedicated to a particular profession, lawyers enjoy an unrivaled status. You will find jokes on lawyers coming from every likely and even unlikely direction. And these are not necessarily on lawyers' acumen or intelligence. Again, there are far too many terms to suggest the greedy nature of lawyers. Few of them are like -- bloodsuckers, ambulance-chasers, hired guns, chameleons, etc.
And can you remember how many times you have heard, 'lawyers are liars'? Indeed, popular image of lawyers is always hanging on a fine line. Only section of people to acclaim lawyers' actions got to be persons benefitted by them in the shape of winning a suit or coming out clean-handed from some criminal allegation.
Image crisis of lawyers is not local, national or regional in nature rather it has a universal character. And this crisis is not even a newer phenomenon. Beginning from the very inception of the profession, lawyers' role has always been under rigorous scrutiny and they are invariably seen with suspicion. Vladimir Lenin once said, “One must rule the advokat (advocate) with an iron hand and keep him in a state of siege, for this intellectual scum often plays dirty.”
There is a popular belief that lawyers manipulate their legal knowledge to the advantage of their clients so that they are handsomely paid. Here money matters the most not the cause you are fighting for. As a result your position on law swings with the change of the party you are representing, e.g. from plaintiff to defendant or the vice versa. This allegation of manoeuvrability of position is true inasmuch as serving the client's best interest is not merely approved by standard professional codes of conduct for lawyers but it is a mandatory duty.
Now let's discuss some regular ethical issues. A frequently asked question is -- why lawyers opt to defend someone who is guilty? Defence lawyers will pose a counter question -- is s/he guilty just because the lawyer concerned got the impression from him/her to be so or the accused confessed his/her guilt? There indeed is a clear line between what you believe to be true and what you know to be true. It is a question of belief versus knowledge.
A lawyer should not, pursuant to his/her ethical norms, allow his/her personal beliefs come in his/her way to dispense professional duty to clients.
Para 9, Chapter II of the Bangladesh Bar Council Canons of Professional Conduct and Etiquette runs like, “It is the right of an Advocate to undertake the defence of a person accused of crime, regardless of his personal opinion as distinguished from knowledge as to the guilt of the accused…”. You might have firm belief that the person asking for your legal help is responsible for the most heinous crimes but that does not mean that you should not take the case. Legally you are free to represent to the court even a person like militant Abdur Rahman or Bangla Bhai. And if you choose to do so, you must (not should) take full advantage of the technicalities laws have to offer. Para 12, Chapter II of the same Canons of Professional Conduct reads thus, “No fear of judicial disfavour or public unpopularity should restrain him (lawyer) from the full discharge of his duty. In the judicial forum the client is entitled to the benefit of any and every remedy and defence that is authorized by the law of the land, and he may expect his advocate to assert every such remedy or defence”.
In brief, lawyers' ethics require them to differentiate their personal identity from professional identity. Obviously professional identity receives overwhelming upper hand here. Is it not similar to ask a lawyer to behave like a mechanical identity having legal knowledge? Or, is it humanly possible to devote yourself to a cause in which you have no faith? Quite a paradox!
Now let us consider the second proposition. What will happen if somebody comes to you, confesses his/her guilt and wants you to rescue him/her from being put behind bars? Here again two sub-propositions may emerge. Does s/he want to plead guilty or s/he prefers to play innocent? If somebody wants to confess guilt before the court and wants you only to try to mitigate the punishment, that's good. But it's not good if s/he confesses guilt to you but wants to plead 'not guilty' and seeks your expertise to that end. As far as the Canons of Professional Conduct goes it is absolutely OK with pleading not guilty in such type of situation and leave the prosecution with all the responsibilities to prove the case. But is it OK with our natural sense of justice? Even more paradoxical, isn't it?
As a lawyer Mahatma Gandhi had a unique way of dealing with this issue. He used to insist his clients to disclose the truth to him and asked them to do the same before the court. If they were guilty, he assured them to try his best to keep the punishment as low as possible. Such 'proactive' practice seemed to defy standard professional conducts as he was not ready to make any distinction between personal belief and knowledge. And to our utter surprise that method reportedly used to work!
But if you like to do the same to your clients, it would be rather a violation of the code of conduct meant for lawyers. Your duty is to fight in every legally recognised way to save your client, not to bring out the truth! After all, if all were so faithful to the truth, we would have done with the lawyering profession altogether.
Take another proposition. A single law can be interpreted in various ways. But which interpretation you are going to advance to the court? That one you think reasonable? Or, the one that would favour your client? Of course the latter one. Here lies another paradox. Client's interest overshadows all others' including your own conscience as a human being. But who is that much ingenuous to equate human conscience with lawyers' conscience? You don't agree? Definitely you are not a lawyer. Or, do you have any aspiration to become a lawyer with those old-fashioned ideas in head? You better give it up.
But how can be this dilemma-ridden position of lawyers possibly rationalised? Eminent practitioner Barrister Quincy Whitaker offers a solution, “You are not the jury. You are the mouthpiece for your client. You are saying what he would say had he completed a law degree and been trained at the Bar. I don't think you can rationalise it in any other way. It's not about justice and doing the right thing because sometimes you feel your client is probably guilty and ought to get a long sentence for it. But it's wrong, if not impossible to do your job on any other basis than 'I am a representative of what my client says'.” Stated simply, it would be wrong to depict lawyers as defenders of justice.
The source of the problem partly lies in our adversarial system which rather prompts the lawyers to intensify disputes. That's how lawyers' personal interest can be secured most. Adversarial legal system is not really concerned about establishment of justice. It tries to give the parties a fair chance to confront each other before the court and s/he comes out on top who wins the legal battle. This peculiarity of the system allows the lawyers to play a crucial role in the final outcome of the case. Such overwhelming dependence on the lawyers' skill makes them desperate to win the case even at the expense of their concern for right and wrong.
This eventually makes the system largely pro-rich because only the well off people can afford the lawyers known to be most skilful in exploiting legal technicalities. In a system where justice is not the first thirst, lawyers are bound to be more eager in protecting their clients' interest than anything else.
In recognition of this facet of the problem a number of countries are trying to incorporate different alternative dispute resolution mechanisms. But so far it did not prove all that easy to make 'hard-core legal wranglers' adapt to far too 'soft' things like conciliation or mediation. In a survey of lawyers' attitudes in response to Ontario's Mandatory Mediation Programme, one Ottawa lawyer remarked: “We're trained as pit bulls and pit bulls don't just naturally sit down and have a chat with a fellow pit bull, the instinct is to fight …”.
However, is there any possible way of lawyers' image reconstruction? I'm afraid not. It would be easier for us to face the undeniable reality if we recognise the fact that it is not lawyers but the nature of their job that makes them controversial. And with the existing legal system intact there is no escape for lawyers from criticism even though they might comply with their professional conduct norms to perfection. So, learn to endure what you cannot cure.
The writer in an advocate and member of Dhaka Bar Association.