Have you heard about the senior advocate who “borrowed” paintings from a five-star suite and then got his client to pay for them? Or that junior lawyer who told his client that the matter was being heard on a day-to-day basis and forged the court’s orders to hide the fact that it had been dismissed as withdrawn on the first hearing?
No? You should ask any lawyer near and dear to you. They’ll tell you a dozen stories worse.
Nick Robinson’s piece in The Hindu over the weekend was spot on about legal ethics and the Bar Council of India’s (BCI) failure to regulate. Clients are short-changed, judges browbeaten, and the judicial systems clogged by unscrupulous lawyers.
The BCI’s list of dos and don’ts for lawyers is pretty long and there’s a fascinating jurisprudence of cases concerning professional ethics too.
But the simple truth, as Blackadder would have said, is that it’s bollocks.
Charming snake
As I’ve written before, the life of a junior advocate is fraught with many dangers and pitfalls. Along with the insecurities of trying to start out in private practice, thus the ever present snake of temptation constantly hissing in your ear, willing you, “Go on, you know no one’s going to find out anyway.”
If you don’t give in, the voice tells you, “Someone else will and you’ll still be the one who’s two months late on the rent.”
The temptation comes in many subtle and less than subtle forms.
The paying client asks you if you’ve done matters like this before and you know she’ll go elsewhere if you say no.
The senior advocate who promises a fee for every client you send to him whether they need it or not?
An adjournment that you know has no purpose except to bleed your opponent dry?
In the abstract, legal ethics is very straightforward – all black and white: do your duty to your client, the court and your opponent. Yet, what it doesn’t tell you is that reality is messy, just jumbled greys that seem to be more or less grey depending on who’s seeing it.
Does your duty to the court trump your duty to your client? Should you press a hopelessly bad case because your client’s interest depends on it, even if you know the court will never grant it? Or do you want to be in the judge’s bad books as an obstinate advocate just to please your client?
Does agreeing to an adjournment as a common courtesy to your colleague mean necessarily annoying a client? And should you give helpful but unsolicited advice to a client or shut up and do as he asks?
Carve outs
Even when they’re not greyer than English skies in summer, the rules don’t come with an “unless you really need the money” exception clause.
But then you wonder, did those who make the rules have to live in little ratholes at exorbitant prices, borrow money from friends, family and relatives just to keep body and soul together, or worse, suffer the shame of watching their peers earn five- and six-figures every month?
So, you tell yourself, I’ll do it just once. That’s it. Then another such temptation comes along and you say you’ll do this thing also only once, that’s it. Soon it becomes a practice and from there solidifies into a habit. It helps that the risks are low – almost no one ever gets caught and you know that most judges’ bark is worse than their bite.
This is not to say that there are no honest lawyers who’ve struggled their way up.
Temptation to do the wrong thing can be overcome but often not through sheer strength of will alone. It helps if you don’t have to pay the rent, for example, or rather someone pays it for you. I cannot stress the importance of having family support (even of the non-legal kind) when you start off.
It also helps if you start your career in the right chambers – the kind of chambers where your senior is uniformly known for his or her good ethical conduct.
It honestly doesn’t matter if they have a “big” practice, so long as they have a good practice (yes, the two are different), in which case you will have made the right start to a legal career.
From the top
Ultimately the obligation to do the right thing always rests on all of us.
But even so, in a time when the practice of law is undergoing an unprecedented change in India, it would help to know where the foundation of a good practice lies.
For that a course in legal ethics or even explicit haranguing from the pulpit will not suffice.
What we really need is the practice of good practice.
We need leaders at the bar who can say with confidence what is right and wrong not because they hold briefs for this many clients for this many years, but because their moral compass is unimpeachably sound.
We need leaders at the bar who possess the moral courage of an MC Setalvad or CK Daphtary who could tell a Supreme Court judge when they were doing wrong and would be obeyed because they knew it was the right thing to do.
We need leaders at the Bar who measure their careers in the right things they did and not the number of cases they won at the end of it.
Court Witness is an advocate of the Supreme Court of India and tweets @courtwitness1.
Photo by Kevin Dooley
Comments
Right now its easy to bend/break the rules for clients as that is what theyve come to expect from our legal system. After all, "lawyers and prostitutes are the oldest professsionals in the world and we both aim to please."- Rumpole of the Bailey
There is nothing unethical about writing under a pseudonym or about what the author has said. He has chosen to be anonymous - so just let's respect that choice. No specific person has been defamed or insulted. What is said would not be any less relevant had he disclosed his name. How does it matter who has written the article?
The reason that people prefer to remain anonymous while reporting on controversial / sensitive stuff is because otherwise lackeys and sycophants (of which we have a plethora in this country) are otherwise more than happy to launch into a mud-slinging offensive and persecute the person. Moreover, who writes it is completely unimportant, and discussions of such person's identity is not only detracts from the real topic but is also counter-productive. Case and point is Prashant Bhushan's expose of corruption in the highest of courts. Instead of investigating whether or not such egregious acts of corruption had occurred, instead the court (and bar) made him (and his alleged contempt of court) the only topic of discussion.
Shemale: we've had lawyers who were beloved, who couldn't find a coherent sentence with two hands and a flashlight. People don't drink the sand because they're thirsty. They drink the sand because they don't know the difference.
Which movie?
The crux of the story is that senior lawyers in India have not led the way to a bar which has some modicum of decency. The possible reason is that the senior lawyers have seen so much hardship in their junior days, that they have become mentally "poor". Like Pavlov's conditioned dog, they can't resist salivating at any opportunity to make a quick extra buck.