Ethical ‘lawyering’

Published December 23, 2018
The writer is a lawyer.
The writer is a lawyer.

PAKISTAN’S legal fraternity is often criticised for the deterioration of the profession on the ground that some lawyers are involved in misconduct. This perception is reinforced when bar councils show reluctance in enforcing the professional code of conduct for lawyers, which has in turn weakened the justice system. Pakistan ranks 105th out of 113 in the World Justice Project’s Rule of Law Index 2017-2018. Thus, fostering the conformity of professional ethics is a must for the delivery of justice.

What are lawyers’ professional ethics? In other words, how do they understand and perform their obligations, and respond to clients’ requests for legal assistance? This question could be answered in two ways: first, a lawyer should do everything within the limits of the law for their client, notwithstanding their personal opinion about the client’s ends. As per this view, a lawyer should suspend personal judgement for the interest of their client. For example, a lawyer engaged by a corporate client should pursue the latter’s interest despite the loss of lives caused by a product manufactured it. According to this view, lawyers only have a duty towards their client; they are not obligated to consider the interests of the public or innocent third parties.

Noncompliance with the code of conduct has weakened the justice system.

The second view is that lawyers are officers of the court. They are not immoral technicians. ‘Lawyering’ involves not the suspension of moral judgement but rather the exercise of it. Lawyers cannot justify their actions on the logic of ‘the best interest of the client’. Rather, they are obliged to take personal moral responsibility for the result of their actions. They are accountable to society for their actions taken on behalf of a client. As per this view, lawyers should even refuse to provide legal services in a case, which, in their opinion, goes against the public interest. Proponents of this approach argue that lawyers have a professional duty of engaging in reflective judgement and discretion to decide what is moral or immoral in a particular case. They are responsible for their conduct towards fellow lawyers, the court and the public.

Ethical lawyers will follow an ethical/professional code of conduct. They will observe the code of conduct even at the cost of money or relations. At the same time, the contention is that the provision of this code, through an enabling institutional environment and operational mechanisms, will produce ethical conduct to an extent. The framework of legal practice (ie, the role of bar councils, conduct of judges and behaviour of other lawyers) largely shapes the conduct of individual lawyers. Moral renewal and/or upgradation of the legal profession is not possible without overall reform of legal institutions — that reform must begin with the bar itself.

The bar council laws provide a code of conduct for lawyers, and the bar has a mandate to enforce the same. Section 13(d) of the Legal Practitioners and Bar Councils Act, 1973, provides that the Pakistan Bar Council shall “lay down standards of professional conduct and etiquette for advocates”. The PBC, thus, has approved and adopted the Canons of Professional Conduct and Etiquette and urges all advocates to conform to these canons in their conduct with regard to members of the profession, their clients, the court and the public in general. Rule 134 of the Pakistan Legal Practitioners and Bar Councils Rules, 1976, states, “It is the duty of every advocate to uphold at all times the dignity and high standing of his profession, as well as his own dignity and high standing as a member thereof.”

Notwithstanding the above, there is a conception that a segment of lawyers considers themselves above the law, and the bar councils have failed to rebut this perception. Legal action against members facing complaints of professional misconduct seems slow or ineffective. The actual number of these complaints and their outcome is not made public. Naturally, ineffectual proceedings against lawyers weaken the bar and our justice system.

To promote the compliance of the professional code of conduct, Sections 11(b), disqualifications for membership of the PBC); 11(c), cessation of membership of the PBC; 28(a), person disqualified to be enrolled as advocate; 41, punishment of advocates for misconduct; 46, disciplinary powers of the PBC; 54, power of the Supreme Court and high court to suspend advocates from practice; 58, penalty for illegal practice; 59, power to frame and publish lists of touts of the 1973 act, and related sections pertaining to provincial bar councils, should be implemented to regulate the legal profession more effectively.

Finally, the bar councils should regularly review bar licences on the basis of the ‘adopted’ Canons of Professional Conduct and Etiquette to boost ethical lawyering and contribute to the reformation of our justice system.

The writer is a lawyer.

Published in Dawn, December 23rd, 2018



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