|
From Standard Times Press News Paper IN THE COURTROOM
Let me begin by saying that I consider Frank Riley's article to be an important contribution to debate about the ethics of the legal profession. One significant aspect of the article is the way in which the author reminds his audience about the profession's long tradition of concern about such matters. His reminder is important because much of the current debate within the profession is conducted as if the problems faced are entirely novel in construction. This may be evidence of a general ignorance of the history of thinking in this area, or it may be one result of a conscious decision to ignore forms of argument that lead to conclusions that are no longer fashionable. It is my observation that a positivist strain is dominant in the culture of deliberation within and about the legal profession. In my experience, the majority of practitioners act as if ethical issues are best decided by reference to the law. A separate ethical dimension beyond the law is either considered theoretically inconceivable or beyond serious contemplation. Similarly, the terms of debate are often conducted as if legal reasoning offered the only legitimate way of thinking about issues of principle. It could be objected that the above account is a crude caricature of the terms of debate. A good number of exceptions could be cited. For example, Frank Riley's own work is a splendid example of broader thinking. And so is that of many members of the judiciary. While accepting the evidence of exceptional contributions from individuals, one still encounters evidence of a disturbing narrowness of perspective. For example, I have sat on committees dominated by lawyers in which a member of the legal profession has expressed grave concern that an international body has included the word 'justice' in its model code of ethics. Frank Riley includes reference, in his article, to the lawyer's duty to the community. In recent years, detailed consideration of this duty has been conspicuous by its absence. Many perceive a clear tension between the duty to the community which most professions explicitly recognise and the lawyer's duty to serve the client faithfully within the limits of the law. It may be that the tension has, for the moment, been resolved by recourse to the argument that the duty to the community is fully discharged by faithfully observing the duty to the client and the court. This means that there is much in Frank Riley's article. However, it is hoped that the following argument at least indicates the points where I would agree with Frank and/or what I might say by way of disagreement with either him or those whom he quotes. The following discussion offers the 'bones' of an argument about the relationship between lawyers and the community. It lays the ground for a more detailed exploration of the issue at some later date. As with any skeleton, some parts need to be stronger than others. With this in mind, I have been selective when choosing points to explore in greater detail. To extend the analogy, although a skeleton is a rigid structure, its form is such that it 'anticipates' and 'accommodates' the softer tissue. One mentions this because a complete argument about the relationship between lawyers and the community will require that proper weight be given to a range of factors including popular intuition and feeling about the role of the legal profession per se. Such factors need to be tested in the crucible of reason. Indeed, they often fire proper consideration. It would therefore be a mistake a frequently made mistake! to assume that only the products of cold calculative rationality are to be considered relevant if a more complete discussion is to be developed. One would wish to suggest that the question about the relationship between lawyers and the community has been raised at a time, the significance of which has not been fully appreciated. According to one aspect, the current discussion can be seen as the product of a concern to protect the legal profession from the attacks and proposed programmes of its critics. However, even if there is some truth to the claim that lawyers are predominantly motivated by self-interest, its articulation should not be allowed to obscure the apprehension of matters of greater moment. It is suggested that the real significance of the debate is best viewed in light of the contention that the interaction between the community and the legal profession provides an indication of the health of society itself. The worst case arises when members of the community generally feel that lawyers can no longer be trusted to promote the common good. Put simply, we might ask; if society can no longer trust those best acquainted with the demands of justice, then who can be trusted? And if there is no trust, then to what degree can there be said to be a community at all? Rather, it would be truer to say that there is a bare and contingent association of individuals - each armed against the potential predations of the other. These opening comments are offered at one of those rare times when popular cynicism about social institutions is near its zenith. There has probably never been a period in history without one or two institutions being the target of public criticism. But surely it is unusual to find nearly all of society's institutions rocking in unison, the vibration of each resonating with the others as their foundations crumble. What today is the standing of lawyers, politicians, doctors, accountants, the clergy, parents, bankers, police, and those in industry and commerce? It is against this background that the legal profession needs to make a decision about its relationship to the community. It is a time for serious and sober assessment. One of the difficulties facing the legal profession is that the consensus about what it means to be a profession has been eroded to a considerable degree. And even where some residual understanding remains, there are those who maintain that the obligations of professional status are too onerous to sustain. It is now said quite openly that to practice law is to run "a business in the law". Thus, the argument is conceded to those who would have lawyers define themselves exhaustively as service providers operating in and according to the laws of the market-place. Those who wish to oppose this trend mounts sophisticated political strategies and engage the services of lobbyists and PR consultants. There is much talk of the ‘public interest’. But to many, the words sound hollow and self-serving. Why should this be so? Why should the standing of lawyers continue to fall? One possible reason is that lawyers generally don't believe their own rhetoric and thus, fail to convince. Favourite statements of principle are rehearsed and aired by people who juggle the husks of traditional incantations. Empty of the substance of understanding, the formulae are whisked away by the winds of change. Lying at the heart of the problem is the issue of the relationship between the lawyer and the community. The legal profession does not have a right to exist. It is not the product of a law of nature. Nor is its existence a curious metaphysical fact that one must necessarily take into account when contemplating the cosmos. Rather, the legal profession is a social artifact. There could be thousands of people with a superb knowledge and understanding of the Law and still be no profession as such. Individual lawyers might attract clients willing to recognize and pay for their learning and skill, but this would not make for a profession. Indeed, for there to be a profession at all it would first be necessary for people to come together in order to form some sort of voluntary association. The trouble is that not all associations are allowed to survive, let alone flourish. For longevity, one or more of the following conditions need to apply. As noted before, the conditions outlined above are not mutually exclusive. Indeed, it is quite possible that a fledgling association will pass through a number of phases in which its status changes. One imagines that a history of the legal profession would reveal just such a progression. But this is beside the point. The chief fact to bear in mind is that the existence of an association is a contingency and not a necessity. A sufficiently powerful force can obliterate it at any time. Alternatively, it can destroy itself through implosion, collapsing when internal supports have decayed. The facade may stand awhile, but it too will eventually fall. Of the external conditions, except in the application of conditions five and six, the association will depend on the good-will (or indifference) of the host society. One can imagine societies in which a powerful protector might be minded to guard the interests of an association. And it is possible to think of groups having sufficient power to protect themselves. However, all of this is quite academic when it comes to understanding the place of associations in a modern democracy such as we find today. Given the sovereignty of the people, the community has the power to dissolve associations as and when it may desire. Constitutions and Bills of Rights offer only limited protection as they may be amended according to the popular will. Of course, it could be argued that the selective abolition of certain associations would be ‘undemocratic’. This may be true. However, it is a curious feature of democracies that they enjoy the capacity to act undemocratically. The only penalty they might suffer is the sting of criticism from those who are concerned to promote authentic democratic consistency. The charge of bad-faith might stick. But short of some external power imposing sanctions, there would be little to prevent such a course of action being followed. The social 'compact' While a society might be expected to tolerate all manner of associations as a proper expression of a commitment to the principles of liberty, it is a little more difficult to see why it should allow any group, defined by a common occupation, to enjoy privileges not available to other occupational groups. A moment's reflection will lead one to conclude that a society founded on the idea of the formal equality of all can accept only one reason for positively discriminating in favour of one group over another. Similarly, it has been concluded that society would suffer if each individual was permitted to take the law into his or her own hands. Civil peace is thought to be enhanced if a properly accountable State is able to exercise a monopoly in the administration of force. There is, however, another dimension to the discussion of professions. Rather than flowing from a consideration of the external environment in which the professions are sustained, this other dimension relates to what have been held to be the internal standards of a profession per se. One can observe that all manner of occupational groups can make bargains with society in return for privileges or other social goods and yet still not be considered to be professions. For example, the police have special powers not normally conferred on ordinary citizens. Yet, to be a police officer is not to be a member of a profession. So where does the distinction lie? If the idea of a profession is to have any significance, then it must hinge on this notion that professionals make a bargain with society in which they promise conscientiously to serve the public interest, even if to do so may, at times, be at their own expense. In return, society allocates certain privileges. These might include one or more of the following: § the right to engage in self regulation § the exclusive right to perform particular functions § special status At all times it should be remembered that what society gives, it can take away. It only accords privileges on the condition that members of the profession work to improve the common good. Having said this, there should be no doubt that all citizens are served by the existence of independent professions that are free to interpret the common good as being something other than that which a government of the day decrees. Once again, it should be noted that a capacity for a profession to fulfill this role depends on the extent to which the broader community trusts its judgment and motives. (To be continued) © Copyright by www.standardtimespress.net |