Flawed legal system

Published October 30, 2014
The writer is an international commercial lawyer.
The writer is an international commercial lawyer.

IT is encouraging that some politicians in Pakistan are making access to justice for the common man their battle cry in a bid to restore public faith in the ‘system’. However, when they talk about improving access to justice, the focus of both politicians and critics is on improving the judiciary and the system of administration of justice. But no legal system can be improved without first improving the primary point of contact between the common man and the legal system, ie the legal profession.

Our existing regulatory system framed under the Legal Practitioners and Bar Councils Act, 1973 is based on a system of self-regulation. All around the world, jurisdictions are reconsidering and abandoning self-regulation as a model of regulating the legal profession. This is because a self-regulatory system like the one in Pakistan is self-serving and reactionary — it reacts to complaints about misconduct post facto.

We need a system of continuous before-the-event regulation to improve standards. Critics of self-regulation point to the conflict of interest inherent in a representative body such as a bar council also performing the functions of regulation. Proponents of self-regulation say this leads to greater independence of the bar without realising there is a difference between independence and self-governance. Independence is not necessarily entwined with the illusion of self-regulation.

Paradoxically, our system of regulation only regulates advocates and not law firms. This antiquated method of regulation means that as law firms grow with more partners and the days of the sole practitioner decline, there is a whole new entity in existence with its own culture and governance structure that is not being regulated at all because it is the conduct of the individual lawyers that is under scrutiny.


Accountability of lawyers is a must to ensure access to justice.


Similarly, the Institute for Chartered Accountants of Pakistan has a quality assurance programme for monitoring compliance by audit firms to ensure high professional standards are met by such firms in performance of their audit function. Furthermore, law firms are not immune from the jurisdiction of the Competition Commission of Pakistan to ensure and promote competition in the legal services industry.

Our system of regulation of the legal profession needs to be overhauled with an overarching independent regulatory body which should be accountable to parliament and responsible for oversight of the bar councils. Such an independent body should be governed by a board that largely consists of distinguished laypersons appointed in a transparent manner in consultation with Pakistan’s chief justice.

The aims of such a body ought to be: protecting and promoting the public interest; supporting the rule of law; improving access to justice; protecting the interests of consumers of legal services by making lawyers more accountable to their clients and empowering clients with improved consumer experience; promoting greater competition and innovation in the provision of legal services; promoting and ensuring an independent legal profession free from political influence; and promoting and ensuring adherence to legal ethics to improve public confidence in the legal profession.

Access to justice cannot be improved without making lawyers more accountable to their clients. We must have a culture where lawyers feel they are not immune from prosecution for malpractice, be it sole practitioners or commercial law firms. In order to ensure that clients do get a reasonable payout in case negligence is proved, advocates and law firms must be obligated to maintain adequate professional indemnity insurance.

A sea change is required in the culture of providing legal services both in civil and criminal litigation and in corporate and commercial work in such a manner that the client is placed at the heart of any legal practice.

Regulatory reform is also required in the way conflicts are handled. One of the reasons why the common man is losing faith in the legal system is because he is not sure how his lawyer is handling any conflict of interest.

While Pakistan has produced many great jurists and lawyers who have fought hard for the rights of the common man, the time has come to improve the regulatory oversight of the legal profession and abandon self-regulation to regain the faith that people once had in our legal system. Improvements in the judicial system are only a second step once the stakeholders on the front line of the battleground of justice, ie lawyers, are properly regulated.

After all, lawyers form the nerve centre of any judicial system since the judiciary is chosen from amongst them. Lawyers ought to welcome effective regulation as this will give their clients more faith in them.

The writer is an international commercial lawyer.

rakhund@hotmail.com

Published in Dawn, October 30th, 2014

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