lawyers adverse

Change for the better:

Lawyers should not be adverse to acknowledging that many changes, which alter somewhat the character and activities of the legal profession, often forced upon it reluctantly, have been for the better. Clinging to old ways, just because they are old is not very rational, least of all in a profession, which boasts of being "learned". Sometimes we have to unlearn bad old habits, which have outlived whatever usefulness they may have had such as the two counsel or the two-thirds fee rule amongst barristers, or the total ban on advertising, or the professionals. Sometimes too we have had to respond to the call for external scrutiny of the way we handle public and client complaints against members of the profession. One does not have to wholly embrace Richard Ackland's view that lawyers are members of a Broederbond, or criticism from within that the bar is simply a cartel, to accept that external perceptions are actually often useful and legitimate. Lord Justice Staughton in England recently remarked that some of the profession's ethical rules appeared to have been simply protectionist and not at all concerned with the public interest or the proper administration of justice. We can now see that at least some of the ethical truisms of the past were less concerned with ensuring right behaviour to clients than with gathering and retaining clients from the ambitions of competitors or stamping a very high degree of conformity on professional behaviour and services. If this may seem to some to be an uncharacteristically muted, grudging, even reluctant concession, it is fair to observe that it is one that would probably not have been offered by many of his predecessors.

If changes, resisted at the time, are now seen to have been "beneficial reforms" members of the legal profession must keep their minds open to the possibility that other changes, urged today, will in due course come to be seen as beneficial to the ultimate objective of practicing lawyers, which is to ensure that as many people as possible secure accurate advice and competent representation.

It should be acknowledged, both within the legal profession and by its critics, that there remain many, possibly a majority who are as committed to the ideals of service and dispassionate advice as existed in times gone by. Many of them derive from the growth of very large firms with their assignment of unrewarding work to the best and brightest graduates. Such firms themselves must address the growing evidence of lawyer dissatisfaction with their life and work. In part, they do by encouraging a little pro bono work and engagement in professional bodies. But unless a culture of loyalty and self-respect can be restored, the mercantile values of ruthless self-interest will permeate legal practice. This will be to the destruction of the ethos of firm loyalty and client that has existed until now.

The revival of the public debate about what legal professional ethics should be, and the heart-searching within the legal profession itself, signaled by this occasion, make it timely to urge an intensified interest in law schools in the teaching of legal ethics. This is not just a rudimentary training in the provision of the local professional statute, rules of etiquette and, where applicable, book-keeping and trust account requirements, offered in a few lectures thrown in at the end of the law course. It is a matter of infusing all law teaching with a consideration of the ethical quandaries that can be presented to lawyers in the course of their professional lives. Only in this way will law schools provide students with guidance on the professional responsibility and on the ethical issues they will face as they enter the profession. One commentator has remarked, rightly: "Law teachers cannot avoid teaching ethics. By the very act of teaching, law teachers embody lawyering and the conduct of legal professionals. We create images of law and lawyering when we teach doctrine through cases and hypothetical".

Professor Ross Cranston in his new book 'Legal Ethics and Professional responsibility' accepts that the technical rules can be left to the practice course but asserts that: "all law teachers have a responsibility to give attention to the ethical under-pinning of legal practice. We have a responsibility to sensitize students to the ethical problems they will face as practitioners to provide them with some assistance in the task of resolving these problems, and to expose them to wider issues such as the unmet need for legal services".

The courts and bodies, supervising professional conduct, also have a duty to uphold high standards of honest, faithful, diligent, competent and dispassionate legal advice and representation.

In a time when so many fundamentals are questioned, doubted, even rejected, it is hardly surprising that the ethics of the legal profession should also be doubted by some of its members and attacked by its critics. It is easier to adopt a purely economic or mercantile view of the law if you have no concept of the nobility of the search for individual justice, of the essential dignity of each human being and the vital necessity of providing the law's protection, particularly to minorities, those who are hated, even demonized, and reviled. Without some kind of spiritual foundation for our society we can do little else than to reach back into the collective memory of our religious past or to rely on consensus declarations as to contemporary human values.

The challenge before the legal profession today is to resolve the basic paradoxes, which it faces, to adapt to changing social values and revolutionary technology, to reorganize itself in such a way as to provide more effective, real and affordable access to legal advice and representation by ordinary citizens, to preserve and, where necessary, to defend the best of the old rules requiring honesty, fidelity, loyalty, diligence, competence and dispassion in the service of clients above mere self-interest and specifically above commercial self-advantage, to adapt to the growth and changing composition of our society and of its legal profession. And to mould itself to the fast changing content and complexity of substantive and procedural law. It is quite a tall order. Are we up to it?

The hope must be that some of the old-fashioned notions of selfless and faithful service will survive even these changing times. In the void left by the undoubted decline of belief in fundamentals, we must hope that a new foothold for idealism and selflessness will be found. Despite the beliefs of some of its critics, the Indian legal profession's guiding principles will not be found in economics alone. Still less will it be found in a dogma of free market competition. Economics simply cannot explain the will to do justice, to be dutiful to courts and honest and dispassionate to clients. Modern economic theory, now put into widespread practice, has not done such a good job in terms of social engineering. The large pool of long term unemployed, the rise in crime, drug use and increased stress within personal relationship all suggest the failure of unbridled economic rationalism as an alternative foundation principle for society.

The great debate for lawyers in the coming century is not whether a separate cadre of advocates will survive. It is not even whether competition and consumer pressure will improve the delivery of some legal services. Of course they will. It is whether the ascendancy of economics, competition and technology, unrestrained, will snuff out what is left of the nobility of the legal services. We must certainly all hope that the basic ideal of the legal profession, as one of faithful service beyond pure economic self-interest will survive. But whether it survives or not is up to the lawyers of today. We should use an occasion such as this to reflect upon the problems that we can see, looming and to examine the sources of our deepest concerns. And then we should do what we can, whilst moving with the times, to revive and reinforce the best of the old professional ideals, to teach them rigorously and insistently to new recruits and to enforce them strictly where there is default. We cannot say that we have not been warned.