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Ethical Lawyering: An Overview

Justice V Parthiban
5 July 2020 7:27 AM GMT
Ethical Lawyering: An Overview
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'Ethics' is the activity of man directed to secure the inner perfection of his own personality' – Albert Schweitzer – 20th Century Theologian and a Polymath.

The above quote and the ethical caption may appear to be an aberration in today's context, as the whole world is desperately fighting for just survival, yet in these lugubrious times, it is worthwhile to ruminate over the duties and responsibilities of the lawyer community towards their clients, the institution, the society at large. The testing times is what exposes a true character of an individual and the resultant epidemic impact on the collective conscience of the society. Today, it is pertinent to recall the epoch making words of Martin Luther King Jr. 'the ultimate measure of man is not where he stands in the moments of comfort and convenience, but at the times of challenge and controversy'. These quintessence words are a great source of inspiration for the legal profession, as the lawyers are the most tested, denigrated and lampooned professional community of all other professional communities in the world. Jonathan Swift – 17th/18th Century Anglo Irish Satirist has portrayed lawyer community in his novel Gulliver's Travels as 'lawyers are a society of men bred up from their youth in the art of proving by words multiplied for the purpose, that white is black and black is white, according as they are paid'. In fact lawyers are also pejoratively described as 'merchants of misery'.

In this trying period of history, several actions relating to governance of nation state, the society may witness drastic policy changes to overcome the grave crisis of unprecedented kind, but in contrast certain immanent qualities of a man such as integrity, ethics and morals, as they are understood by the larger section of the society, have to remain unchanged, as the same are infinitely not negotiable with times.

Every profession, particularly, the noble ones like Medicine and Law is governed by a set of principles, a consolidated Code of Conduct of the practitioners, to observe and follow. As far as the legal profession is concerned, the Advocates Act, 1961 provides for framing of norms and etiquette to be followed by advocates under the provisions of the Act. In terms of the said provision, the Bar Council of India framed Rules adumbrating various duties and responsibilities of the advocates practicing in our country. In the Preamble to the Chapter outlining the standards of conduct, prefacing what befits an advocate from an ivory tower stand point and perspective as;

'an advocate shall, at all times, comfort himself in a manner befitting his status as an Officer of the Court, a privileged member of the community, and a gentleman, bearing in mind that what may be lawful and a moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may still be improper for an Advocate. Without prejudice to the generality of the forgoing obligation, an Advocate shall fearlessly uphold the interests of his client and in his conduct conform to the Rules hereinafter mentioned both in letter and in spirit. The Rules hereinafter mentioned contain canons of conduct and etiquette adopted as general guides; yet the specific mention thereof shall not be construed as a denial of the existence of other equally imperative though not specifically mentioned'.

In fact in every country where there is an established legal system, Code of Conduct for lawyers is prescribed. But, to what extent the Code is followed or enforced either by the practitioners in the system or by the governing authority, is the matter of continuous concern for all the stakeholders.

The contours of the Code of Conduct under the Bar Council Rules are exhaustive enough to include any conceivable species of ethics in ideal sense to be followed by the advocates while discharging their professional obligation. From a sketchy glance of the Code of Conduct, the legal profession, which is universally acknowledged as a noble profession, seem to conjecturally enjoy a place in the exalted altar of the justice dispensing system. What is conceived as a Code of Conduct on paper rather ideationally, is practiced by the learned advocates in their day-to-day functioning is too well known. Ethical lawyering, today at best can be a subject matter of discourse in academic confabulations primarily to satiate the moral longing of certain section connected to the profession. Otherwise, one finds that there is an explicit growing dichotomy between what exemplified as Code of Conduct and what is observed and followed in practice by the learned advocates. There is growing widening of chasm between the lofty expectations and the mundane reality. Over a period of time, the profession has been witnessing a steady decline in standards and in the perception of people, the profession no longer commands its rightful respect and esteem, not to speak of its nobility, but a degenerate profession practiced by a host of lawyers out to exploit their clientele, who seek legal redressal either in the justice delivery system or otherwise in non-litigation area. It is jocularly and popularly believed 'that the problem with law is the lawyers'.

The perception of the people may be right in some cases and may not be in many other. Yet, it is time the legal community took stock of the falling standards before the fall descends to the nadir point. There are myriad reasons for the decline, the foremost reason among many is the availability of broad avenues in the profession for advocates to make a fortune through exploitative means due to their over bearing position vis-à-vis their clientele. In this material world, when too much money and too much competition are involved, professional ethics is understandably the first casualty. 'History shows that where ethics and economic come in conflict, victory is always with economics', as profoundly observed by Dr.B.R.Ambedkar. One cannot expect that the ethical alignment of lawyer community can be different from the overall social alignment of the society towards traditional values and principles. The alignment of the Wheels of ethics depends on the alignment of the social car, as the wheels are indubitably the integral parts of the car.

The fall in standards is the result of larger erosion of traditional values because of paradigm shift of people's focus and attention to material related success more than the value based contentment. In the context of eroding value system of the present times, the legal profession bound by the traditional ethos cannot be allowed to detach from the fundamental normative ethics to be followed and observed. Every legal professional has a stupendous responsibility towards society in being a redressal bridge between the grievances of the people and the justice dispensing institution. Adherence to the fundamental ethical standards does not change with the times, as quoted by D.H.Lawrence, the great English Writer 'Ethics and equity and the principles of justice do not change with the calendar'.

Bar Council of India Rules, governing the conduct of advocates, enumerate duties perforce to be followed underlying the imperatives of ethical lawyering. Duties towards clients, Courts, opponents, colleagues are well delineated. Among the imperatives, relationship of advocates with their clients is the most crucial aspect to be examined first, since public perception of advocates is entirely constructed on the experience of the clients in their relationship with the advocates in the course of their professional engagement. When a lawyer accepts a brief, from his/her client, immediately a professional relationship would come into existence between them. The bedrock of their relationship is one of absolute trust and confidence. Till the relationship lasts, an advocate shall not betray the trust and faith reposed in him or her by his or her clients, as it is said that each betrayal begins with the trust. If the substratum of the relationship is willfully undermined for self aggrandizement, the advocate concerned is likely to lose his or her license to practice or would suffer debarment, in the event that ethical Code is stringently enforced. An advocate, in a fiduciary relationship with his or her client, if betrays the cause of his/her client by subterfuge and machination in discharge of his/her professional obligation, loses his/her moral authority to enter into any organic relationship. The tribe of such advocates is a cancerous influence on the community of lawyers. Their ominous presence is fundamentally detrimental to the vitals of the profession. In fact there is a saying that there is something wrong with your character if opportunity controls your loyalty.

Besides the ethical relationship of trust and confidence, material relationship is what exposed a lawyer community to invite uncharitable metaphors universally, which have become axiomatic in charactering the legal profession. Lawyers are called ambulance chasers, sharks or rhinocerous, the last one to denote always ready to charge. Infact, a popular joke of lawyers/advocates fleecing their clients comparing them to sharks which don't attack lawyers, because of professional courtesy. Lawyers are also compared to Wagon wheel, as both must be well greased. These are the lighter side reflections of the unconscionable conduct of a section of a lawyer community in overcharging their clients in exchange of their professional services. A law suit is satirized as 'a machine what you go into as a pig and come out as a sausage'. People are always wary of seeking legal advice due to the cost factor, as the cost for engaging the service of lawyer is invariably not within the predictable range of any standards, but hinges on the precipitous characteristics of the advocate concerned. Samuel Butler 19th Century English writer characterized the cost factor as 'in law, nothing is certain but the expense'. The common opinion of people of this factor is to be acknowledged in the first place as part of promoting ethical lawyering to the extent possible in the falling value standards. Unless corrosive effect of the unconscionable conduct of exploiting the relationship to their undue material advantage by advocates is recognized, no worthwhile revamp could be conceived for a systemic change in order to arrest further deterioration of this particular ethical facet of profession. Today, success is predominantly correlated to material well being and in this scenario it is not to suggest that advocates can exchange their valuable services for charity. As Albert Camus-a French writer said that 'it is a kind of a spiritual snobbery that makes some people think that they can be happy without money'. Earning through profession by legitimate means does not affect the nobility and respectability of the profession, but, if the profession is bartered for unethical exchange, it causes irreparable dent to the image of the lawyer community as a whole and the system as well.

Having said about the flipside, the profession can also boast of multitude of public spirited successful lawyers, who are the true professionals, maintaining ethical standards to whatever measure, conscientiously. Despite their tangible presence in the system, what is heard and experienced by and large is only in relation to a section of the lawyer community, which unfortunately forms the face of the profession and it is in common parlance that anything is judged on the face of it. On the other side of the spectrum, the world has witnessed great statesman lawyers like Abraham Lincoln, Nelson Mandela, Barak Obama, to name a few and in India, the freedom movement was spearheaded by legendary personalities like Mahatma Gandhi, Jawaharlal Nehru, B.R.Ambedkar, Vallabai Patel, Sri Rajagopalachari among others, who have shaped the nascent Indian state into a world's largest democracy. These towering men were great visionaries and all of them were part of this great legal profession. The contribution of Dr.B.R.Ambedkar to the making of the Indian Constitution is extraordinarily clairvoyant born out of his exemplary legal acumen. The Constituent Assembly which elaborately debated the making of the Constitution had comprised more than 50% stalwarts from the legal profession. Thus, we have one of the greatest written Constitutions in the world. Even in the post independent period there are legion of lawyers, who have contributed immensely to the intellectual growth of the country. The likes of Nani Palkhivala, who was an Indian legal product rose to great height in the legal profession and also his contribution to the country as a thinker and nationalist has a few parallels in other professions. Lawyers by virtue of the study, learning and training have become the natural leaders in championing various social causes and are always in the vanguard of fighting for human rights and civil liberties, besides their contribution to the political development of the country.

Ethical lawyering is not constricted to mere professional behaviour and conduct, but it includes professional competence as well. When an advocate accepts responsibility of representing his/her client's interest, there is an implicit assumption on the part of the client that his/her interests are not trifled with but handled with, professionally. The word 'professional' denotes competence and how well lawyers are equipped to handle variegated responsibilities bestowed upon them is a matter of growing concern of all the stakeholders concerned. Over the years, considerable decline in competent levels is a matter of fact and the reasons for the fall are far too obvious, for instance mushrooming of law schools with dubious academic credentials. The ill-equipped lawyers from these schools have found devious means as an alternative route to immediate success. Larger the presence of such vicious ill-equipped professionals (an oxymoron of sorts), greater the peril to the institutional credibility at large.

'The only man in whom ignorance of the law is not punished'

'Ignorance of law excuses no man, but lawyers'.

Apart from the devious section of lawyers infiltrating into the system, whose presence is to be dealt with by the regulating body, there are quite a chunk of lawyers, who are genuine practitioners in the system, but unable to acquire necessary dexterity professional skill and deftness required for their growth towards attaining recognizable stature. In a country like ours, where societies are historically stratified, one cannot expect a homogeneous development of cognitive skills and development. Thus, discernment levels are understandably different. People from rural and rustic villages, from lower strata of society need to have their rightful place in the system. In a diverse country like ours any system should provide an inclusive level playing field for the disadvantaged to remain in contention and survive modestly. Of course, persons of this segment have to constantly engage themselves in self development by hard work and perseverance. No one can deny that the best dividend of hard work is the guarantee of success. Law in a classroom study helps one to have a bird's eye view on the textual content of array of subjects. But, practice only makes the professional difference in one's career, after graduation. The seeds of competence are sown when one enters the professional arena and to reap the fruits, continuous learning, unlearning, relearning is the evolving experience one has to go through. There have been very many great lawyers with rural background this profession had seen and been enriched in the past and they rose to prominence, overcoming all the odds. Even today many of the truly successful practitioners have originally hailed from rural areas and they have made it as role models in the profession with their unwavering commitment, passion and pride in being part of the noble profession. The concept of Schools of Excellence, National Law Schools and its kind is a recent development of two decades with elite pedagogical settings. The older generation of lawyers, who are still in the thick of their practice, are by and large have their origin in small towns and villages. If the learning and practice is passionately pursued, professional competence will be the natural result of such pursuit. Urban or rural, high or low, ultimately, self-development is what matters as the adage goes competence brings confidence.

Self-development has many facets. For litigation lawyers, in particular, articulation is the most important tool, by which a lawyer can smartly and subtly shape the dithering and oscillating judicial mind. The ultimate art of advocacy is the art of persuasion. Communication skill is the foremost of all qualities, a lawyer must possess. Many cases are won or lost because of effective communication or lack of it. After all, judicial decision is primarily dependent on the competing submissions of parties through their lawyers. In fact, to excel in the profession, knowledge in subjects of humanities like history, philosophy and literature is a great value addition to lawyers. Walter Scott, a famous Scottish, novelist, play writer, an advocate himself has said 'a lawyer without history or the literature is a mechanic, a mere mason. If he possesses some knowledge of these, he may venture to call himself an architect'. Adding to this, Leonardo da Vinci – a famous Italian Polymath of the 15th Century has said 'Learning never exhausts the mind'.

Learning is a continuous process of one's evolution, particularly, for lawyers, who are constantly under pressure to perform in furtherance of their varying professional obligations on a day-to-day basis. Court craft is an indispensible psychological advantage, lawyers need to have. In the legal parlance, it is always believed that 'Good lawyers know the law, but great the lawyers know the Judge'. To survive the vagaries of the system, Kaleidoscopic posturing is the essential attributes of Court craft. Successful lawyers are always great readers of different judicial minds and play upon their cases accordingly. A famous Hollywood actress Monika Bellucci has aptly observed the legal profession and said as 'I think lawyers are such incredible actors can you imagine the performance they have to do everyday'. Without Court craft, a lawyer's performance is reduced to a mere drudgery and perfunctory, which changes the destiny of the litigation many a time.

Earlier, drafting was confined to traditional legal instruments that were by and large uncomplicated and straight forward, as there were only few instances of fraud, deceit, nefarious designs. But today, drafting assumes onerous importance due to the growing challenges and complexities in the last three decades or so, as a consequence of globalization. There has been exponential increase in the presence of Multinational Corporations, birth of indigenous corporate houses, I.T. Industries and allied services, impacting global markets. As a result of the booming economic activities, new avenues have been thrown open for engaging the professional services of lawyers/solicitors, for instance, drawing up of MOUs, Bonds, formation of companies and amalgamation, to cite a few. Drafting skills of the legal professional today is marked by the vast areas of expertise in subjects like Companies Act, Copy Rights Act, Trade Mark Laws, Intellectual Property Rights, Industry and Labour Laws. Rendering professional services in non-litigation areas, in respect of corporate and commercial laws, the lawyers have to measure up in honing their drafting skills to the expectation of the demanding corporate clientele. Lawyers/Solicitors have to therefore foresee possible legal complication that may arise from the contents of the documents drafted by them. Clarity of thought and command over the language are the greatest assets of the lawyers/solicitors.

The individual responsibility of a lawyer in upholding the ethical professionalism is incapable of being assessed on the premise of uniform standardization. Each individual as human is made up of different predilections and prejudices and bred up in different economic and social settings, commonality of behaviour, conduct and competency, even in a professional sphere, may not be in tune with the laws of nature. Aldous Huxley – 20th Century English Writer and Philosopher rightly observed that 'Good is a product of the ethical and spiritual artistry of individuals, it cannot be mass produced'. It is ofcourse not to suggest that the concept of ethical lawyering should vary from individual to individual. When the Code of Conduct is to be enforced across the Board in respect of the fundamental professional obligations of advocates towards their clients, Courts etc. are not to be judged with the variable standards, as Albert Einstein remarked that 'relativity applies to Physics not ethics'.

Another important facet of the Code of Conduct is, it enjoins upon the lawyer community as a whole to be truthful and faithful to the institution i.e. Courts. Lawyers are otherwise called as Officers of Court under the Bar Council Rules. They are under professional obligation to serve the interest of the institution in upholding the law and justice. Their fidelity to the institution at all times is what makes the institution stronger in its display of unfailing, sagacious disposition. How far an advocate can be truthful to the Courts when he or she is otherwise professionally obligated to his/her client to remain loyal is a seminal and profound question and by its very nature of its profundity, it eludes any compendious and sublime answer. In the face-off of two loyalties, choosing one over the other is a complex interplay of one's conscience.

As Officers of Court, the system places professional trust in the lawyers that their duty towards the institution is not to be compromised in order to succeed in advancing the interest of their clients. A common refrain is 'a lawyer will do anything to win a case, sometimes he will even tell the truth'. The meaning of the saying is too obvious and needs no elucidation. In an era where acquisitive culture has become the mainstay of success in one's life, the corollary effect of such culture invariably leads to rapacious hunt for money and more money. Material acquisition has come to symbolize prestige and power. It is therefore too much to expect that the lawyers to be absolutely truthful to the institution. As the saying goes 'what is abused invites its own annulment'. Any Code of ethics if unduly unrealistic, will only invite abuses and breach in practice. Laws/Regulations in extreme, neither serve its purpose nor prevent its abuse. Either way it does not help the system to make its contribution to the social order. But at the same time, on a professional ground, where relationships are established, essentially on the basis of trust and confidence, the dominant lawyers cannot be allowed to play around without the rules of the game. Being loyal to clients, advancing and canvassing their grievances for the legal redress, are all part of ethical requirement. Lawyers may be justified in aggressively and vigorously pursuing the interests of their clients. But the ethical conundrum is when to draw the line between two overlapping loyalties in the performance of lawyers as part of their professional duty. Truly a dilemma of a dialectical inquiry, with no simple answer.

Surely, under the cloak of serving their clients' interest advocates cannot mendaciously adopt deceitful practice to hoodwink and undermine the system. In the guise of practicing Court craft, an advocate cannot become crafty and wily, divesting themselves completely of their responsibility towards Courts. Slant and wanton distortion of facts masquerading as interpretations out of professional necessity exposes the ugly, defiled and debased face of the justice delivery system. The lawyer community as a whole has an onerous and equal stakes in protecting the system from being denuded of its majesty due to the undesirable presence of slick and unscrupulous practitioners within its fold. Public veneration and esteem for the judicial system stem from the fact how the system is run and governed. If the prestige of the system is to be maintained, its integrity should be protected under all circumstances. Weakening of judiciary either by the insiders or outsiders is the beginning of the collapse of the rule of law and the civil society. The lawyers, who are respectfully addressed as Officers of Court, have to protect the system from being sullied, as their prestige and image go along with that of the institution.

The foundational ethical standards which are kernel of the Code of Conduct envisaged in the Bar Council Rules do not change with times as it is said 'the power of the lawyer is in the uncertainty of the law, so is the strength of the character lies in the uncertainty of times'. There are so many attributes of conduct and behaviour of advocates figure in the Rules like duties to opponents, colleagues etc. These are acts of civility between individuals, very ideal reminiscent of the 19th Century English Theologian and Poet, Cardinal Newman's description of 'gentleman'. Those acts at best are desirable, certainly not enforceable in practical sense. Whether a lawyer is suave, gentle or rash, cocky or reticent is a manifestation of characteristics of individuals. Niceties of behaviour, even within the professional framework, is a wishful requirement, but such requirements, though appear to be utopian and antiquated out of tune with the corrosive cultural mores of the present times, yet such requirements can at least be motivational reminders to the coming generations, of the qualities of behaviour expected of the lawyer community, which qualities certainly would make the profession noble in every sense.

As a summation one cannot but acknowledge that being an active advocate is a pride in itself, no matter the general perception of the people, of the profession. There cannot be two opinions that the advocates are the saviours of people's rights and liberties and no civil society can exist without the participation of the advocates in it. A civil society without lawyers is like a patient care without doctors. In a country where written Constitution reigns Supreme and the Constitutional Courts are assigned the role of guardians, to protect the Constitution from needless dilution, as Officers of Courts, advocates have a sacrosanct part in upholding the Constitutional values. The country, indubitably being a functional democratic state within the sacred framework of the Constitution and the Rule of Law, the community of lawyers becomes the pivot in sustaining the Constitutional democracy. The advocates' contributions to the nation building and their fervent presence as bulwark to the society against any abuse by errant and deviant rulers and the administrators are too valuable to be ignored, notwithstanding the falling image of the profession. The pride associated with fulfillment, of the profession does not diminish by the shadows of passing clouds of the times.

Tail Piece: Sanctimony is not the bottom line. It is the benign concern for the profession which is at the cross roads, of older generation with the traditional beliefs are gradually disappearing into retirement and the digital generation with the modern value system replacing them.

The tentacles of the looming crisis of today have not left its devastating effect on every worldly activity, including all professions. In the legal profession, the younger lot have to bear the brunt of the curtailed functioning of the Court and of the shutdown of Corporate and commercial activities. Most of the Junior practitioners hail from humble background and have been surviving in the profession on the edge, eking out their living on the fringe earnings of day-to-day practice and its continuity. The glitzy side of the profession is only a small percentage at the top of the pyramid. The real side is at the crowded bottom, whose survival is a continuous struggle to remain afloat. A legal professional even after two decades of active practice does not feel his or her feet firmly on the ground because of the vicissitudes and the quirky nature of the profession. The truth is the profession is paradoxically volatile. Adding to the occupational woes, the present spell of misfortune, coupled with bleak and unsure future (the side effects of COVID-19) may in all probability shake the confidence and faith of the younger lawyers in the profession. But the crisis would only make them stronger and stable in the long run. As Winston Churchill said 'sometimes it takes a crisis to shake us from our routine and push us to a better path'.

Let us all hope for the return of the normal days sooner and the junior members of the Bar are out of the woods.

Views are personal only.

(Author is a Judge at Madras High Court)

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