The Ethical Role of Lawyers
The legal profession is one of the oldest professions, yet lawyers are often parodied as being light on ethics. Considering the impact that the legal profession has on the moral justice in a country, the Pan African Lawyers Union is finalising a Code of Ethics for Lawyers Working in Africa. Kris Dobie was invited to their regional conference in Maputo to present a keynote address to set the scene for their deliberations.
written by Kris Dobie (The Ethics Institute)
When considering what the ethical role of lawyers is, one needs to reflect on what it means to be a professional.
How does being a member of a profession differ from other occupations?
The use of the term profession apparently dates back to the late 17th century and was used in reference to the ‘learned professions’ of which there were originally three – the divinity, medicine, and the law. What these have in common is that they are all based on the use of intellectual knowledge in the interests of another person. In theory then, the professional applies their knowledge for the benefit of another person – and mostly a person who is in a position of need and vulnerability. There is therefore a strong relationship of trust between the professional and the client. The client needs to trust that the professional has the knowledge and skill that they claim, and the client should furthermore be able to trust that the professional will use it solely in the client’s interest.
In modern times there are a number of other characteristics of professions. For one, they have a monopoly on the provision of their services. One cannot practise as a doctor, engineer, or lawyer without the required qualifications and accreditation. To ensure that only appropriate people enter the professions, the professions are to some extent self-regulated. It is also a requirement that professions have certain ethical standards. It is not sufficient to have the intellectual abilities, but one must also have the required moral standing to practise the profession. Besides the responsibility to act in the interest of the client, most modern professions also have a moral requirement that the professional should act in the public interest.
There is therefore a higher ethical obligation on professionals than in other occupations. And yet the jokes and anecdotes about the moral questionability of lawyers abound.
Why is it that lawyers have this reputation?
Lawyers often deal with those who have fallen foul of the law, or with those who want the most beneficial interpretation of the law. For this reason, I would argue that they are more likely than other professionals to experience a conflict between their clients’ interests and the public interest.
Dealing with such challenges appropriately requires sound judgement and significant wisdom. The question is whether there is sufficient focus on developing character and wisdom in lawyers as part of their studies and professional development.
Lawyers in developing countries also face far more complex challenges.
The Ethics Institute was recently involved in a project in Mozambique to look at ways of assisting the private sector to combat corruption. It was funded by the UK Department for International Development (DFID) and was run in partnership with the Mozambican Institute of Directors. As part of the project we conducted interviews with 35 senior representatives from businesses and business associations who have activities in Mozambique.
The area of corruption that participants raised as causing the most frustration to businesses was corruption in bureaucratic processes, including business licenses, regulatory inspections, customs and taxes.
Participants also expressed concern about corruption in the justice system. They bemoaned the fact that it is difficult to get access to justice, and that this also contributes to the belief that people get away with corruption.
It can be seen that lawyers may be at the coalface where many of these challenges occur. They are likely to be called on to assist clients with navigating the many regulatory and legal challenges that businesses might face.
This complex environment of course begs some questions. How do you advise and assist a client in an environment where the regulatory system is dysfunctional? Would a facilitation payment at the right time not perhaps have a more just outcome for the client? After all the client may be in a position of vulnerability from the bureaucratic process and came to a lawyer for expert advice.
Again, judgement and wisdom are required to navigate these challenges and balance the interest of the client with the greater public good.
The relationship between the law and ethics.
– “In a civilized life, law floats in a sea of ethics.” – Earl Warren (American Chief Justice)
To my mind this quote points to the close interrelationship between the law and ethics. Most laws are written to support ethical principles that are widely held by a society. At the same time the law needs to be supported by a basic ethical environment to be able to function effectively.
The legal system is not an island. As can be seen from the Mozambican survey, when there is significant corruption in society, the legal system struggles to give access to justice.
It is also important to point out that ethics goes beyond the law. South Africa’s public protector, Adv. Thuli Madonsela, made the point that if someone has not been found guilty in a court of law, it is no indication of them being an ethical person. It just means that they are not a criminal, and the two things are not the same.
In the same way, being legally compliant means doing the right thing when someone is watching, whereas being ethical means doing the right thing when no-one is watching. Ethics also goes beyond the law in that it requires an internalisation of values.
– “I suppose it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.” – Abraham Maslow
And the hammer that lawyers have at their disposal is the law.
In the debate in South Africa’s Parliament about the spending on the President’s Nkandla residence, one noticeable thing was that all the reasoning was legal. Everyone tried to present legal reasons to support their point. But no one asked whether it was morally right.
Moral questions often have power where legal questions do not. If the sea of ethics has disappeared, we need to use moral language to get it back.
So how do we take this forward?
The legal profession needs to take a two-pronged approach:
Need to talk about what it means to be a ‘good’ lawyer
The question is often posed whether Hitler was a good leader? He certainly was effective in getting many people to follow him, but is that what makes a good leader?
I am reminded of a TV movie which was set in Renaissance France. A philosopher at the court of the king used his philosophical prowess to prove that God exists. The king and the audience were very impressed and praised his abilities. Then, in his arrogance, he said that perhaps next week he would come and present a treatise proving that God does not exist. This was of course not accepted with the same enthusiasm. But it resonates because it begs the question of what we use our skills for.
Is a good lawyer merely one that is exceptionally intelligent and can promote anyone’s case, no matter their moral standing and the impact on society? Is a lawyer just a gun for hire? Do lawyers just use their intellectual ability to make money? Or is there some broader context?
As shown above, lawyers operate in highly challenging environments that require judgement and wisdom to navigate. If we want the law to be an instrument of justice there needs to be more talk of the moral character of ‘good’ lawyers, and not just their intellectual abilities. And the language that we should use should be moral, and not legal language.
The philosopher Alasdair MacIntyre says that the practices (such as the legal profession) are the foundation of societal virtues. By being a good lawyer, you are constantly in a dialogue about what it means to be a good lawyer, but very importantly, you are also at the same time creating the kind of society where people can thrive and develop their virtues.
Which brings us to the second prong:
Need to promote the reform of the legal institutions and judiciary.
Aristotle said one of the preconditions for living a virtuous life is living in a just society. If our legal system does not ensure justice, where can people turn to?
Our legal system is dependent on an ethical environment, but at the same time the legal system plays a crucial part in creating a just and ethical society.
Societies with severe corruption challenges are however likely to experience an onslaught on the integrity of the justice system, as those with vested interests aim to destabilise the system.
Leaders in the legal professions, including the judiciary, have a responsibility to promote a system where the public can get justice, but also where lawyers themselves can practice their profession without pressure to compromise their ethical standards. This will require moral courage and wisdom.
It will not be an easy process, and it will not be quick, but it is important.