Professional Ethics of Advocates; Bitter Reality Check

lawyers strikes

Professional Ethics of Advocates; Bitter Reality Check

I wear a black coat to uphold the rule of law, but the legal system of my country contains many flaws. I wear a black tie with a white shirt, but the black on my body is insufficient to hide the dirt on my white. The day I got enrolled as an Advocate, I dedicated my life to the administration of justice through legal practice. I knew that for the rest of my life, 24 hours in a day are not going to be entirely mine. I will owe a duty to my clients to fearlessly protect their best interests through all legal and proper means; I will owe a duty to the courts to assist them in the administration of justice in a courteous manner, without misleading them; I will also owe a duty to the general public for conducting my professional activities in a manner which neither brings the legal profession into disrepute nor adversely affect the people’s confidence in this noble profession. Being an advocate does not give you a licence for profiteering, a licence to lie, a licence to misbehave with the opposing counsel and the judges, a licence to delay cases, a licence to fill frivolous cases to harass the opponents, or a licence to coach witnesses, temper evidence and break the law.

Two years ago, I was on my way to the High Court and I witnessed an accident on Ferozepur Road between a white Corolla (which was being driven by an advocate in uniform) and a bus. I saw in the rear mirror that of out of anger, the advocate stepped out of the car and started beating the bus driver. Who gave him the authority to commit a criminal offence under our Pakistan Penal Code? When an unfortunate incident had taken place in Daska, where our lawyers were killed by an SHO, who gave the authority to lawyers to burn police mobiles on Mall Road during protest and to beat police officials? Our best revenge and protest was to try the culprit in the court of law because our Constitution gives every person the right to fair trial and due process of law. As lawyers, it was our constitutional right to assemble for peaceful protest, but we had no legal, moral and constitutional mandate to ridicule other policemen. We cannot blame the entire institution for the wrongs of one person. Police has shortcomings like any other profession, but they are our own departments. The security personnel deserve some credit and humanity for sacrificing their comfort to keep us safe. While we sleep, the members of forces stay up for our security. When we celebrate Eid and wear new dresses and go to mosques for Eid prayers, they wear the same old uniform and guard our cities.

When a dictator imposed martial law, lawyers chanted slogans against all the generals and the Army itself during the lawyers’ movement. There is no cavil that whoever commits high treason by violating article 6 of the Constitution of Pakistan -whether it is the principal or the accessories – they must face the legal consequences. However, it is unfair to weaken our own institutions instead of strengthening them. It is the prestige in serving the country that motivates a youngster to join the forces and to take an oath to serve the country. If we cannot boost their morale, we have no right to demoralize them.

I was in the first year of my law school when the lawyers’ movement was at its peak. The legal fraternity stood for a noble cause and gained recognition worldwide. All eyes were on us expecting us to break the chains and remove the obstacles in reforming our legal system at grassroots level. After being restored as the former Chief Justice of Pakistan, Mr. Iftikhar Muhammad Chaudhry spent more time exercising suo moto powers instead of fighting for the removal of defects in our legal system. Are we proud of our disposal rate? Are we in a position to say that adjournments are not misused? How often do you see imposition of costs for delaying the proceedings or filing vexatious claims? All we see is the frequent call for strikes by lawyers, which only increases the suffering and frustration of the litigating parties. Adjournments also form an integral part of our profession. We do not have a strong case management system which could enabled overburdened judges to deliver the judgments efficaciously thereby improve their disposal rate. As a society, we are fond of holidays. “I insist you to strive, work, work and only work for satisfaction with patience, humbleness and serve thy nation” – this vision of Jinnah, founder of our nation, is just part of history now. As a result, we see a misuse of the freedom of assembly and protest.

How did the candidates contesting bar elections get my mobile number? I never gave my number to them yet I receive several messages and phone calls during the election campaigns. I never authorised my bar council to circulate my mobile number to bar candidates. If my bar council did not give my number to them, how else did they get hold of it? I should not have written my mobile number on the enrollment form to make my life easier. I have a right to privacy and the bar council should seek my prior written authorization before circulating it. Why are the banks so tentative in granting finance facilities to lawyers? Why are the landlords so reluctant to rent out their premises to lawyers? Something is not right with our course of conduct. A small section of lawyers defame our profession due to non-enforcement of professional ethics.

Recently, a small section of lawyers locked a female judge in her room. The story can be viewed at http://courtingthelaw.com/2016/04/06/news/lawyers-lock-woman-judge-in-her-courtroom/. Under rule 134 of the Pakistan Legal Practitioners & Bar Councils Rules, 1976, “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”. Under rule 159 of the Pakistan Legal Practitioners & Bar Councils Rules, 1976, “It is the duty of an advocate to maintain towards the court a respectful attitude, not for the sake of the temporary incumbent of the judicial office, but for the maintenance of its supreme importance. Judges, not being wholly free to defend themselves, are peculiarly entitled to receive the support of the Bar against unjust criticism and clamour. At the same time whenever there is proper ground for complaint against a judicial officer, it is the right and duty of an advocate to ventilate such grievances and seek redress thereof legally and to protect the complainant and person affected”. Why are we so keen on becoming the judges in our own causes when there is a proper channel to raise grievances against individuals or judgments? When law prescribes something to be done in a particular manner, it ought to be followed.

We have all heard of the legendary lawyer Ch. Aitzaz Ahsan who was one of the most prominent leaders of the lawyers’ movement. He was admired by a large section of the general public for his struggle for the rule of law. However, when he accepted to take up the brief of the former Prime Minister of Pakistan in a contempt case for non-implementation of a Supreme Court judgment to write the letter to Swiss authorities to open the cases against the then sitting President of Pakistan, I noticed a shift in the general opinion and a decline in his popularity. There were ridiculous allegations made by seasoned politicians against him, alleging that he was trying to hide the black money of the then President of Pakistan. He was criticized for simply being an ethical lawyer. In the Code of Conduct of the Bar of England and Wales, it is a well-known canon of professional ethics namely the ‘cab rank rule’. It states that “a barrister who supplies advocacy services must not withhold those services: (a) on the ground that the nature of the case is objectionable to him or to any section of the public; (b) on the ground that the conduct opinions or beliefs of the prospective client are unacceptable to him or to any section of the public….”. As advocates, we cannot refuse to offer legal services just because the nature of the case or views of the client are objectionable to us or any section of general public. We can refuse cases to avoid professional embarrassment, for instance, for the lack of adequate opportunity to prepare the case, lack of sufficient competence in the particular area, relationship with the opposing party, conflict of interest, etc. Generally speaking, everyone has a right to be heard. We only need to be cautious of our overriding duty to the courts for not misleading them on the urge of pleasing our clients’ satisfaction. It was stated by Lord Denning MR in the case of Rondel v. Worsley, [1966] 3 WLR 950, 962:

“[Counsel] must accept the brief and do all he honourably can on behalf of his client. I say “all he honourably can’ because his duty is not only to his client. He has a duty to the court which is paramount. It is a mistake to suppose that he is the mouthpiece of his client to say what he wants: or his tool to do what he directs. He is none of these things. He owes allegiance to a higher cause. It is the cause of truth and justice. He must not consciously misstate the facts. He must not knowingly conceal the truth. He must not unjustly make a charge of fraud, that is, without evidence to support it….. He must disregard the most specific instructions of his client, if they conflict with his duty to the court.”

Our legal profession needs rejuvenation of our code of ethics so that we grow stronger as an entity and receive recognition for our high standards of excellence.

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.

Asfandyar Khan Tareen

The writer is a Barrister from Lincoln's Inn and heads Tareen Barristers Chambers in Lahore. He can be contacted at ayk@tareen.com.pk



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