The Ethical Burden Of Being An Expert And An Advocate
Nikhil Parikshith
22 Feb 2022 5:05 AM GMT
'Expert' – "A person who, through education or experience, had developed skill or knowledge in a particular subject, so that he or she may form an opinion that will assist the fact-finder" (Black's Law Dictionary)" The Expert's Dilemma An expert's opinion is a product of education, labour and experience. So an expert is likely to attribute immense value to his or her opinion and...
'Expert' – "A person who, through education or experience, had developed skill or knowledge in a particular subject, so that he or she may form an opinion that will assist the fact-finder" (Black's Law Dictionary)"
The Expert's Dilemma
An expert's opinion is a product of education, labour and experience. So an expert is likely to attribute immense value to his or her opinion and feel hidebound to zealously defend it to the hilt. Law (much like any other social science) comprises of experts, both in academia and practice. Lawyers who become prolific in any particular branch of law, inevitably, become experts and therefore consciously or subconsciously form opinions in their field of practice. They may also feel a strong urge to express their opinions in writing or voice them in the media; which may have its own pitfalls when the expert is required to assume the role of an 'advocate' for a client.
A "crisis of faith" can arise when a "legal expert" is called upon to canvass or defend a legal position which goes against his or her personal expert opinion (which is available in the public domain for all to see). What should the expert do in such a scenario – jettison his or her opinion (which is integral to his or her persona) at the altar of the fundamental duty owed to the client or simply refuse the brief and leave the client in a lurch?
This is a conflict which is very difficult to resolve.
Refusing the brief may seem expedient - after all, the client can always go elsewhere (as there is no shortage of lawyers). But expediency would open the expert to the charge of being in breach his or her duty to accept "any brief"[1]¸ as mandated by the Bar Council of India ('BCI') standards of professional conduct or etiquette ('standards').
Take the converse situation, the expert decides to overlook his or her personal predilections on the subject matter at hand and takes up the cause of a client which is in apparent conflict with his stated expert opinion; after all, the law of estoppel does not apply to lawyers. But in taking up such an assignment, is the expert likely to feel discomfiture which may impair his or her ability to fearlessly uphold the interests of his client? [2]
To make matters worse, consider a scenario where the opposite side lawyer begins quoting from a recently published article in the Harvard Law Review wherein the very same legal expert has in very strong terms opined that "landlord-tenant" disputes can indeed be referred to arbitration; note that in this hypothetical scenario, the expert's client is the landlord who has filed a suit for eviction against the tenant before a civil court and expects his advocate to 'fearlessly' defend the legal position that landlord-tenant disputes cannot be referred to arbitration. In this mortifying scenario, the expert has no place to hide. The expert may make a feeble attempt to take an adjournment and acquit himself from further embarrassment by withdrawing from the brief or being uninhibited by the event, the expert may proceed with the case. Either way, reputational damage is caused, if only for a fleeting moment.
In courts such awkward situations are not an aberration but are in fact quite common. They don't attract much attention because judicial time is limited and cases have to be decided expeditiously. However, such instances gradually diminish the credibility of the legal expert. The unravelling of an expert opinion at the behest of a private client adds credence to the allegation that the expert's ethics are elastic and pliable. And inevitably an impression is formed that legal experts are often not true to their opinions or beliefs (which are expressed outside court) when they are required to appear in court.
The Ethical Path
The current set of standards offers no clear guidance to the legal expert's dilemma. What should be the ethical path to take when there is a seemingly obvious conflict between the case of the client and the opinion meticulously developed, articulated and published by the expert?
Rule 11 of the standards (which is shrouded in ambiguity) enables an advocate to refuse a brief if "special circumstances" justify such refusal. In similar vein, the "Model Rules of Professional Conduct" of the American Bar Association ('ABA') permits a lawyer to withdraw from the representation of a client if "good cause for withdrawal exists". But how does one straitjacket what would be a "special circumstance" or a "good cause" for refusing a brief? The surrounding circumstances may be relevant such as the nature of the client's case vis-a-vis the nature of the opinion held and expressed by the expert. But that does not clearly address the ethical dilemma.
Unlike the BCI, the ABA has a chapter on "ethics of positional conflicts"[3]. While it does not specially address the expert's dilemma (as formulated above), it does deal with analogous cases where a lawyer who has taken a particular legal stand for a client in a particular case, later adopts a diametrically opposite stance for another client in a different case. The chapter concludes that in such cases a "conflict of interest" exists, if there is "significant risk" that a lawyer's action on behalf of one client will 'materially' limit the lawyer's effectiveness in representing another client in a different case. So, if the risk is 'significant', the ABA expects the lawyer to withdraw from one or even both matters.
In the context of the expert's dilemma, formally withdrawing from a stated expert opinion would be disastrous. By conceding outrightly, the expert ceases to be an expert and the value of his expert opinion is diluted significantly since it becomes self evident that the expert himself attributes little value to it. So the only alternative for the expert is to assess how much significance he or she attributes to a stated expert opinion and whether the strength of that opinion is significant enough to impact his or her 'effectiveness' as an advocate for a client.
While this subjective test is based purely on the value judgement of the expert, it does give some leeway to the expert to avoid a brief and at the same time appear ethical in the process. This test also acts as a self correcting mechanism against experts who have no scruples in canvassing an opposite point of view purely for monetary considerations, inasmuch as it imposes on such category of experts a requirement for being circumspect before accepting a brief.
The Bar Standards Board (BSB) and Solicitors Regulation Authority ('SRA') in the UK also offer some guidelines for practitioners in cases of apparent conflict of interest. The BSB handbook for Barristers in UK, expects a barrister, "not to accept instructions" to act in a particular matter if, "there is a conflict of interest, or real risk of conflict of interest, between your own personal interests and the interests of the prospective client in respect of the particular matter"(Rule C21.2); Similarly, the SRA code of conduct for firms prescribe that, "You do not act if there is an own interest conflict or a significant risk of such a conflict" (paragraph 6.1)."
Similarly, the "Turin Principles of Professionals Conduct for Legal Profession in the 21st Century", recommends that lawyers have a duty to refuse to represent any client whom they believe they cannot represent in a "competent, independent and diligent manner". It further adds that lawyers have the right freely to agree or refuse to represent any client according to the lawyer's own conscience.
To summarize, if a client's case poses a serious or real risk to the practitioner's personal interest, he or she is duty bound not to accept the case. Since the stated expert opinion of an expert is an integral part of his or her identity, the expert's personal interest is indeed conflicted if called upon to canvass a diametrically opposite point of view for a client. In such circumstances, it could be argued that the expert has an obligation to refuse the brief or withdraw from a pending case.
Overriding Duty To The Court & The Client's Resistance
The 'effectiveness' of an expert to appear for a client is even more seriously impaired if the expert's view reflects the correct position in law. In such a scenario, the overriding duty[4] to assist the court in arriving at the correct conclusion is attracted full circle. So in such cases, the conflict of interest staring in the face of the expert is even more difficult to resolve. The least controversial course of action for the expert is to refuse the brief or withdraw from the case given the consequences that will befall the client. If the expert proceeds with the case and concedes that his opinion is the correct one, the client will feel short-changed and may perhaps never use the legal system again. In the Indian context, this is a grim reality. Clients who engage the services of an advocate do not see any value to higher moral principles adopted by their advocate when it comes to their own case. In fact they frown upon on it. And this perception is unlikely to change.
Need For Formulation of Guidelines
The expert's predicament has no easy solution. The ABA's discussion on resolving conflicts highlights the tightrope walk a lawyer has to make when faced with conflicting situations. In the Indian milleu making the right choice is often a luxury. Notwithstanding all of this, there ought to be a serious debate on the issue of resolving conflicts. The Judiciary can also play a crucial role in the formulation of guidelines by collaborating with the BCI, State Bar Associations and eminent jurists. Such guidelines can provide SOPs for lawyers (and particularly experts) so that when confronted with a conflicting scenario they have the necessary knowhow to take an ethical decision.
The author is an Advocate-On-Record at the Supreme Court of India. Views are personal
[1] "11. An advocate is bound to accept any brief in the Courts or Tribunals or before any other authorities in or before which he proposes to practise at a fee consistent with his standing at the Bar and the nature of the case. Special circumstances may justify his refusal to accept a particular brief." (BCI Rules)
[2] "An advocate shall, at all times, comport 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 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 foregoing 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 others equally imperative though not specifically mentioned. (BCI Rules)"
[4] In P.D. Gupta v Ram Murti and Ors (1997 7 SCC 147), the Supreme Court had observed that the primary duty of the lawyer is to inform the court as to the law and facts of the case and to aid the court to do justice by arriving at the correct conclusions. It was further observed that good and strong advocacy by the counsel is necessary for the good administration of justice; Similarly in Rondel v. W. [(1966) 3 All ER 657], Lord Denning had observed: "he (counsel) has time and again to choose between his duty to his client and his duty to the court. This is a conflict often difficult to resolve; and he should not be under pressure to decide it wrongly. When a Barrister or an advocate puts his first duty to court, he has nothing to fear it is a mistake to suppose that he is the mouthpiece of his client to say what he wants' he must disregard the most specific instructions of his client, if they conflict with his duty to the court. The code which requires a Barrister to do all this is not a code of law. It is a code of honour. If he breaks it, he is offending against the rules of the profession and is subject to indiscipline."
