Features
Whither legal profession?
The recent judgment of the Supreme Court disenrolling attorney at law Nagananda Kodituwakku from legal practice for professional misconduct should prompt us to take a realistic and dispassionate look at the whole legal profession in this country.
Professional conduct is a fundamental prerequisite in any profession. Every profession has time-honoured ethical values and practices that its members are expected to observe in conducting their professional tasks and duties. These fundamental values and practices have been handed down from generation to generation. They are considered to be of fundamental importance and enduring value in any profession. The primary object of ethics in a profession is to, maintain the dignity and integrity of the profession. They also go a long way towards building trust and credibility with clients, colleagues, and the wider community.
Ethics in simple terms are the moral principles and standards that guide the behaviour and conduct of the professionals in their chosen fields. Today, we live in a time when the core values of every profession are being openly violated and treated with scant regard. The decline in professional values and professionalism has seeped into nearly every profession so much that no profession can boast of having maintained an untarnished professional reputation. This has resulted in the whole climate of opinion becoming hostile to many professions.
Professional ethics is particularly important in fields such as law medicine, engineering, and accounting. where professional conduct has a significant impact on the lives of individuals and society as a whole. Failure to adhere to ethical standards in these fields is bound to result in serious consequences, including loss of life, property, and financial loss.
In the legal profession, just as in other renowned professions adherence to ethical principles becomes very significant as every action, word, and decision professionals make has profound implications for society. As such it is crucial for lawyers to adhere to a strict code of ethics ensuring that they act with utmost honesty, integrity, and dedication.
The legal profession is one of the traditional professions characterised by certain features. Firstly, it is presumed that its members have specialised knowledge and a set of skills that are not generally available to a person who does not belong to that profession. Secondly, society accords special privileges to the legal profession because it thinks that lawyers would utilise their specialised knowledge in the best interests of their clients.
The word profession suggests a certain stature and prestige. The legal profession has been considered honourable and noble for centuries. It occupies a unique and responsible position in all civilised societies.
The legal profession has a long, distinguished, and eminent place in the history of this country. For many centuries’ lawyers have stood at the center of society and have played an important role in society. Not only in Sri Lanka but worldwide there is a high proportion of heads of state, ministers, and high officials drawn from the ranks of the legal profession. Leading the country in the right direction has fallen to the task of lawyers and it is generally the lawyers who have given leadership in our country more than any other. The future of a democratic state largely depends on the leadership provided by the legal profession.
There were eminent and patriotic lawyers in the past who fought indefatigably for the independence of this country. It is the lawyers who preserve inviolate the sacred fundamental and constitutional rights of the people enshrined in the Constitution whenever there are incursions into those rights. Lawyers have also fought valiantly to create a more equitable and just society in a period of crisis. Occasions have been many when lawyers fought for justice and equality. Therefore, there are ample reasons for the legal fraternity to be proud of its rich and glorious past.
Therefore, it is up to the present members of the profession look to the past and draw inspiration from the forebearers of the profession and keep the prestige of the profession inviolate.
Regrettably, today people witness a marked deterioration in the standard of the legal profession and the practice of law has now become a business in this country. It is important to remember that the legal profession is not a business or trade but a profession. A lawyer is expected to maintain a standard of conduct above that of a businessman.
As Thomas Shaffer, an American and most prolific author once declared. People become lawyers for many reasons. For some it is money: for some, it is the thrill of competition and desire for success: for others, it is the status that comes with it. At one time legal profession was ranked as the lowest among the professions and was considered one the most despised and hated professions in the US. It commanded little respect in their estimation. The President of the New York State Bar Association referring to the United States legal profession declared “Greed and avarice seem to permeate every facet of life in this country and practice of law too, is, not exempt.” It is no exaggeration to say that this applies equally to our legal profession. The legal profession has indeed moved away from long-established traditions and cannons of professional ethics.
In Sri Lanka, the practice of law by direct solicitation is prohibited in law. Nevertheless, how this prohibition is openly flouted with impunity by some unscrupulous lawyers can be seen if a person walks into some of the Magistrate’s Courts in the country. He will be able to see for himself how touts and other intermediaries hang around in the precincts of the courts to persuade prospective litigants to retain particular lawyers regardless of their capabilities. Such direct solicitation is bound to degrade the legal practice into a graft and destroy the confidence and respect of the community in the profession as a whole.
Some lawyers lack boundaries when stooping to low conduct, as they go to the extent of standing outside the courthouses with business cards in their hands offering their services to litigants. It is a disgusting practice degrading the whole profession, as a lawyer is not expected to solicit business or advertise either directly or indirectly.
People are appalled by the shame and disgrace to the profession and the legal profession has suffered tremendous damage to its image by the conduct of a few unscrupulous lawyers.
Moreover, some lawyers depend entirely on the police for their practice. They resort to what is known as police touting for their survival. There are also instances where defence lawyers have attempted to win over the witnesses with the cooperation of prosecuting officers intending to secure acquittals in cases.
Some lawyers are not dignified in their speech. They address the police officers on a friendly basis and address them as machan to obtain cases for them. Even some female lawyers address police officers by their first names and police officers in return address them by their first names. There have been instances when some junior lawyers have been abusive towards the senior members of the bar. It is sad to note that there are thorough misfits in the profession
However, it cannot be denied that there are exemplary practitioners in the legal profession and many lawyers are decent, ethical in their conduct and are hard-working, and maintain a high degree of integrity and commitment.
To uphold the integrity of the legal profession lawyers must be held accountable for breaches of established standards of professional conduct. It is of paramount importance that complaints against lawyers for misconduct in their professional capacity should be investigated expeditiously and appropriately dealt with if they are found wanting in their professional duties.
Although, much has been written and spoken on the deteriorating standards but nothing substantial seems to have been done to arrest the declining trend by the authorities whose responsibility it is to regulate the profession in the country.
The Bar Association as the governing body that represents the profession should have full control and powers of discipline over its members. However, the Bar Association’s failure to maintain high standards of ethics and professionalism warrants criticism.
It appears that there have been little efforts to arrest professional misconduct and malpractices committed by some black sheep and misfits in the profession. Disciplinary actions by the Bar Association to deal with professional misconduct committed by lawyers are few and far between. One can see an attitude of complacency and resignation in the face of the declining trend. There is a sense of apathy and inertia on the part of the authorities. The continued failure of the Bar Association to ensure that its members maintain high ethical standards in the practice of law has led to the decline in the profession and the corresponding decline in the public esteem of lawyers. As a result of the marked increase in the lawyers misconduct and the failure of the authorities to discipline violators, the standing of the legal profession is at its lowest. Therefore, it behoves the president of the bar association to take steps to arrest the declining trend in the profession.
The government should also be committed to safeguarding and improving a strong and independent legal profession. However, the legal profession’s independence is not a justification for immunity from public scrutiny. The government has a role to act in the public interest in setting the framework in which the self-regulating legal profession can provide an independent and quality legal service to the public.
I have adverted to some of these unpalatable truths that bring discredit and dishonour to the entire profession in one of my previous articles.
It is important to remember that the nobility of the legal profession lasts only so long as its members maintain their commitment to integrity and service to the community. The honour and nobility come to the profession through the conduct and behaviour of its members. Therefore, it is the duty of a person practicing law to maintain probity and a high standard of professional ethics and morality.