Lawyers as Professionals
I wish to talk about the profession of which I am proud and privileged to belong, the profession of law.
There was a time when a lawyer was regarded as a family friend. He commanded awe and respect. And for good reasons. Prominent freedom fighters belonged to the legal fraternity and played a leading part in the framing of our Constitution. Gandhiji, Pandit Nehru, Dr. Ambedkar, Alladi Krishnaswami Iyer, K. M. Munshi to mention just a few. Lawyers gave up their practice to join the freedom movement and many of them went to jail in the cause of the freedom struggle.
At present the public image of lawyers is far from flattering. They are seen as fortune seekers rather than seeking to serve, a selfish class, who, on account of their special knowledge and expertise, provide services on such terms as they please. In short, the profession of law is regarded as a money making racket. Today people are apt to agree with Dean Swift’s description of lawyers as, “a society of men bred up from their youth in the art of proving by words multiplied for the purpose, that white is black and black is white according as they are paid.” No longer is the profession of law regarded as a noble one.
What are the reasons for this said decline? The main reason is that lawyers, as also other professionals like doctors for example, have forgotten what is entailed in a profession and their proper role in society.
It is worthwhile turning to dictionaries once in a while. Webster defines profession as “calling requiring specialised knowledge and often long and intensive preparation including instruction in skills and methods. . . . . . . and committing its members, to continued study and to a kind of work which has for its prime purpose the rendering of a public service” (Emphasis added). Roscoe Pound summed up the matter with admirable aptness when he said; “Historically, there are three ideas involved in a profession; organisation, learning and a spirit of public service. These are essential. The remaining idea, that of gaining a livelihood, is incidental.”
It is forgotten that the essential difference between business and a profession is that while the chief end of business is personal gain, the main goal of a profession is public service.
Of late lawyers seem to operate on the law of demand and supply and the forces of commercialism have overtaken the profession by and large. The idea that professionals are for the people and the people are not for the professionals sounds like a strange and alien doctrine. Today the fees charged by some lawyers are staggering. I was told that a middle rank lawyer charged Rs. 60,000/- for an application for an adjournment in the Bombay High Court. The fees charged by some seniors in SLPs in the Supreme Court are enormous. Lawyers charge fee even when they have not put in an appearance and it is a disgusting sight to see some lawyers plead with the judge to record their appearance to enable them to collect fees from their absent clients. Apparently lawyers have forgotten that they are the guardians of noble ideals and traditions, and not mere traders in the market place, whose sole aim is the amassing of vast fortunes.
It is not suggested that lawyers should not charge for their services and charge well in heavy matters where there are corporate clients. A lawyer needs to make money like any other person, and is not expected to live on love and fresh air. But his main purpose and desire should be of rendering service to those who seek his aid and also to the community of which he is a necessary part. To those unable to pay adequately, or not at all, professional service should be freely and cheerfully given. If doctors can have free medical clinics why should lawyers not run free legal clinics at least once a week? Lawyers must devote some part of their time and services free of charge for the benefit of the poor and the oppressed.
The legal profession has a social dimension. And the lawyer has a social role to play in society. The social dimension becomes a very relevant issue when we look at the manner in which legal services remain by and large inaccessible to the common person, particularly in a poor country like ours.
The assumption of our legal system is that all citizens have equal access to means of legal redress. Access to inexpensive and expeditious justice is a basic human right. In practice legal services of all kinds have gone to the highest bidders. Wealthy persons and large corporations receive the highest quality advice. The poorest in the society, the “third world population”, receive negligible or very haphazard and poor legal advice. The term “third world” is used as an all-inclusive expression for the exploited elements of society, the depressed minority groups, the workers, and the peasants. It also includes society’s “deviants” — prisoners, mental patients, radicals, dissenters, as well as the powerless groups generally, such as youth, women and the disabled.
As far back as 1905, one of the most distinguished American jurists, Louis Brandeis, said, “The leading lawyers of the United States have been engaged mainly in supporting the claims of the corporations. Able lawyers have, to a large extent, allowed themselves to become adjuncts of great corporations and have neglected the obligation to use their powers for the protection of the people”.
The lament of President Carter in May 1978 was in the same vein : “Lawyers of great influence and prestige led the fight against civil rights and economic justice................ They have fought innovation even in their own profession. ......... Lawyers as a profession have resisted both social change and economic reforms”.
The situation in 2001 in our country is not very different. By and large, successful lawyers have been defenders of the established order and of entrenched interests because in a society dominated by commerce and industry, individual and corporate owners have been their principal clients. It is not uncommon for several leading lawyers to be retained by a big corporation or a financial institution depriving the employees or less affluent parties who are pitted against them of the services of these lawyers. If this trend continues, the lawyer will eventually be reduced to an inferior and despised status in society.
It must be remembered that the availability of lawyers to defend the rights of all individuals is an indispensable aspect of the rule of law. This involves an obligation to take an active part in implementing schemes of legal aid. If the vast majority is denied justice for no fault of theirs except that they are too poor to pay for it, justice and law remain mere slogans, and Courts of law become objects of cynical decision. It would however be unfair if I did not mention that there are honourable exceptions. In important matters of public interest and constitutional importance some seniors have appeared free of charge for days voluntarily or as amicus. These are rare exceptions. But we must convert these exceptions into general rules.
The urgent need for the legal profession is to become people oriented and to reorient themselves towards the service of the people. They must show recognition of what is meant by the ‘service ethic’s of dealing with a fellow human being’s needs without consideration of self-interest. Lawyers must serve as healers, not makers, of human conflicts and suffering.
A lawyer because of his importance in society and the respect that is accorded to the black gown he dons has certain obligations to discharge both inside and outside the Court. A lawyer has a duty to his client and to the Court. His duty to the Court requires not only that he will be prepared to assist the Court but also that he must be fair in pleading his case before the Court. He must not make a statement of fact which he knows to be false. In particular in criminal matters it will be misconduct on the part of a lawyer to implicate an innocent person deliberately in order to secure an acquittal for his client. Court expects lawyers to cite cases which have relevance and are important for the determination of the issue before the Court irrespective of whether the decided cases will help the lawyer’s case or otherwise. This is what Lord Birkenhead called “an obligation of confidence”. I am afraid this obligation today is honoured more in breach than in observance. Furthermore, there are obligations which professionals as members of the community owe to the public and society. Acts which are criminal or illegal or which intentionally harm innocent persons cannot be rationalized away on the high sounding ground of “for the cause of my client”.
The other phenomenon which troubles me is the politicisation of the profession. Developments which affect the independence of the judiciary and the autonomy of the legal profession must be debated and countered objectively. We must banish partisan political considerations from issues affecting the fair administration of justice. If there is an onslaught on the institution of an independent judiciary or the independence of the Bar, we should unitedly fight against it irrespective of our political affiliations. In these matters there should be no divisions in the Bar on political lines. Always remember that a lawyer has an abiding moral obligation to uphold the rule of law and give effect to many of its principles in his daily work. In our secular state he should strive to make reverence for the law the religion of the nation, and make sure that nothing is done to lower the prestige and authority of the judiciary by anyone, however high or mighty. He should fulfil that obligation even if it brings him into disfavour with the authorities or is contrary to current political or social pressures. The existence of an independent Bar is a bulwark against authoritarianism. It is not a coincidence that in a dictatorship lawyers are jailed on frivolous charges. And it is the courageous efforts of lawyers that have led to the over-throw of totalitarian regimes.
Lawyers to whom Providence has been kind and have established a lucrative practice and have benefited from the profession should not decline the call to serve on the Bench unless there are genuine compelling domestic or personal reasons. Of course there will be a reduction in the income and also restriction on social and other activities which are inevitably entailed upon elevation to the Bench. But some amount of sacrifice should be made as part of the moral obligation of a lawyer to serve the society and the profession of which he has been a beneficiary. There is one admonition which I may be permitted. After accepting judge ship do not grumble about the fall in income and donot bother about how much the leading members of the Bar are earning.
There is one more aspect to which I wish to advert. Senior lawyers have an obligation to train and encourage junior members of the Bar and should not deny entry into their chambers to juniors who are keen to learn and have a commitment to practise law. A competent well-trained junior Bar is an essential adjunct to the administration of justice. The role of a senior lawyer is not merely to familiarise the junior with case law and the relevant statutes. The habit of independent thinking and questioning should be inculcated. And, above all, the junior must be exposed to and imbibe the noble traditions of the Bar, the tradition of truthfulness, the tradition of fearlessness, the tradition of fairness and the tradition of service to the indigent and the disadvantaged.
I am deeply anguished by the precipitate fall in the public image and the standards of the Bar. The real malady is the catastrophic decline in our sense of values. Today we are afraid of simple words like goodness and honesty and kindness. We do not believe in the good old word because we do not believe in the good old values any more and that, according to the Chinese philosopher Lin Yutang, is the reason why the world is sick. Today’s scene reminds one of Wordsworth’s lines:
“The wealthiest man amongst us is the best ............................................................... Plain living and high thinking are no more”.
It was the boast of Emperor Augustus that he found Rome of brick and left it of marble. But how much nobler will be the lawyer’s boast when he shall be able to say that he found law dear and left it cheap; found it a sealed book and left it a living letter; found it the patrimony of the rich and left it the inheritance of the poor; found it the two-edged sword of craft and oppression and left it the staff of honesty and the shield of innocence.
I am an unrepentant optimist. I have no doubt that if we dedicate ourselves to the realisation of that noble vision not by mere words but by deeds and by practising the noble profession of law in the spirit of public service we shall restore the stature, the dignity and the image of our profession and play our rightful role in society and provide much needed service to the community and become a model for emulation to others.
Author Name: Soli J. Sorabjee
