LEGAL ETHICS:
LAWYER’S PERCEPTIONS
By
Zohaib Imran
Sheikh
Advocate
High Court & Service Tribunals
zohaib_imran_elahi@hotmail.com
I still remember my first day having been dropped at the
main Mall Road Gate Lahore High Court Lahore with deep hearted prayers of my
father to become giant lawyer, although my father forgot to visualize the
pre-occupied legal field. With trembling legs, fainted face, adjusting tie knot
repeatedly, looking for known people, enters the new lawyer. I also remember the
glowing face of my father riding an old 70 CC Bike praying for his son’s
future, perhaps from his heart, which only I could whisper. According to my
Principal Mr Nafeer A Malik only your father could wish prosperity for his son,
which I really felt that moment as being unaware of the consequences before
entering in the court premises. Law College forgot to teach me Hypnosis course
to capture clients, who often come just for enjoyment in terms of suggestions.
Pleasures in the Government College University Lahore ended with father’s
wishes to become lawyer, before whom I succumbed unilaterally without any
objections, I entered in private law college. Usually
rather frequently, I had always been with open mouth, laziness, eyes opened
like patient in state on dead bed waiting for an angel, listening to lectures
of faculties, whenever teachers confronted me, I lost my heartbeats and as
such, went so religious for betterment hereinafter. I was impressed by picture
of Quaid-e-Azam Muhammad Ali Jinnah (Now hanged in Mr Justice Mansoor Ali Shah’s Court) and I always thought to
be like him. To my fortune, I entered Mr Justice Sheikh Azmat Saeed’s Court,
(Just Behind Kayani Hall) it was more than pleasant to enjoy the peaceful
hearings in the court. I wish I could face my Lord, but with complete
preparations to avoid drastic results. That was good day; perhaps I saw the
authority of courts in chilled weather and also the decorum administered to
honorable court.
Curiosity with social constraints diverted me to have discussions
with a senior lawyer sitting in Kayani Hall, who advised me to join subordinate
courts, he was perfectly right but with exceptions. But there is no cent
percent formula so far devised to become successful lawyer, there are thousands
other considerations involved. I entered in Civil
court Lahore with Three months passed and learnt nothing except watching
entrance and exit. It was 2006. But one
thing which prejudiced rather disturbed my mind was threatening and insulting
attitude of young lawyers, who were searching for short cuts by extending
unusual contumacious behavior to the judges while office bearers of bar pushing
their shoulders, judges ditching and nagging their demands, either legal or
not. Having financial constraints coupled with responsible shoulders,
especially with realities tarnishing your dreams, I still decided to be
positive and calm with mystic approach, i.e arm with experience and wait for
betterment by placing great reliance on the Superiority of Almighty, and
practice and just practice remained my constant discussion with colleagues
sitting every where doing nothing. To our dismay, bar rooms were not intended
to be drawing rooms, but we did. Though it was great charm in condoling
friend’s grievances in early practice days but I learnt a lot, when a member of
cabinet put a judge surprise by suddenly calling names in open court and judge
recused himself to chambers. Judge was honorable as he knew the weakness and
impotency of our Punjab Bar Council to proceed against the lawyers, as such,
that gentleman
lawyer went scott free. My life changed
that moment and I half-heartedly decided to quit the practice, but that might
have resulted throwing myself at the mercy of misbehaved and unethical being. I
changed my self. Stomach never did matter;
I regularly bought law journals, specially labour and service digests, in which
I had great interest from the very beginning as said by Mr Thomas Jefferson that Lawyer without books would be like a workman without
tools. The hazards and corruptions in civil courts also inclined
me to adopt service laws practice, which I ultimately did. I never felt
disappointed, but remained patient and with patience came the success, meaning
thereof is not akin for all. There must be security of tenure, life and respect
to the subordinate judges, admittedly constitution is silent but one must not
lost sight of the basic fact, that subordinate hierarchy supplements the
superior judiciary. Protection and independence guaranteed by the constitution
for the subordinate judiciary should not be restricted in bringing them under the
judicial umbrellas of respective high court, but there must be extremely
practical steps to let the subordinate judge’s work with independent and
secured mind and reputation.
Post
3 November 2007 Scenario, the profession of law hath witnessed great occupied
field in all aspects, courts dispensing the justice, whereas lawyers assist the
bodies being officers of courts. Lawyer presenting client’s case owes both
legal and professional duties to be at his best to provide useful service.
Lawyer’s role does not end in courts, as he is always considered respected
member of the community, as myself witnessing. Lawyer aptitude prevails over
his qualification, ethics are inherent but human life is not stagnant,
diversity is the most amazing art of our Almighty. Human changes and can
change. Lawyer help the growth of democratic process as inferred from the
article written by Mr Mansoor Ali Shah Advocate Supreme Court (Now Honorable
Judge Lahore high court Lahore). Not only judiciary but lawyers are also
watchmen of human rights and detect infringements promptly. An American Jurist
namely Daniel Webster Portrays lawyer in the following sentiments while
addressing South Carolina Bar Charleston (May 12,1847):-
“I love our common profession, and love all
who honor it. I regard it as the great ornament and one of the chief defenses
and securities of our institutions. It is indispensable to and constructive of
public liberty. I honor it from the bottom of my heart. If I am any thing it is
the law, that notable profession, that sublimes science, which we all pursue,
that has made me, what I am. It has been my ambition, nay with my youth to be
thought worthy to be ranked under the banner of that profession”
So I love those who love my
profession. Advocate in parlance, means a person, who is engaged in practicing
profession of law. When a person had ceased to be in the profession, he could
not claim to be an advocate merely for the reason that his named had remained to
the rolls of Bar Council. See PLD
1994 LAHORE 182. Advocates are to be respected, but they also have to
restrict themselves within the frontiers of domain of law and justice and
courts should politely, if not bluntly, decline to surrender to their wishes
and refuse to advance their selfish interests at the cost of those who are
likely to be exposed to imminent and irretrievable injury. 1996 MLD 1216.
LEGAL PRACTITINOERS AND BAR
COUNCILS ACT 1973 and other provincial ACTS man the legal profession and provide
the mechanism from the enrollment of an advocate till his removal from the roll
on the grounds set forth by the law itself. The rules framed under the parent
legislation supplement the law. The term “Professional
Misconduct” is not capable of exact definition and can include in it
any conduct or behavior of legal practitioner prejudicial to good order or
unbecoming of an advocate and these terms have to be understood in context of
changing moralities of our society, demanding more sincerity, nobility and
idealistic approach from lawyers. Definition of professional misconduct is not
stagnant; it changes according to the circumstances wherein erring advocate has
entangled himself thereby calling for stern action under the law. Lawyers are
not sold by executing power of attorney, they act under the authority to
present the client’s cause to the best of abilities but one who intends to sell
lawyer’s office by executing power of attorney in negative way obviously
commits professional misconduct entailing punishments. Code of Civil Procedure
as well as Lahore High Court Lahore (Rules & Orders) remedy such situations
and provide mechanisms to be enforced in such situation.
Locus standi of an
advocate in public interest litigation has always been honored by superior
courts, we can challenge public policy on legitimate grounds, can pray for
judicial intervention where any organ of the state transgresses its allotted
sphere. This is not lawyers are superior to other humans, but because our
profession inheres in it basic fundamentals without which the judicial system
cannot sustain, we are recognized as officers of court, presiding officer
expects great assistance from us irrespective of his judicial approach and any
betrayal of such trust not only hampers the legal profession but also the
administration of justice and we must recognize our duties in order to save the
legal profession as well as the administration of justice from being eroded.
Sadly we opt blunt approaches in advertising our good
office, we harass judges, we interfere in transfer and posting of judges, we
create chaotic situation amongst institutions. Then people fear us “Oh Lawyer a
head” “slower thy self” more slower in fact. We are
not poison, we must respect and constantly remind ourselves the legal expectations
and restrictions.
Positions of Bar Associations has always been at highest pedestal and vitality of their
existence are never doubted. Multifarious functions and duties attached to Bar
Associations demand greatest repositions, which in present era are clearly
missing. Bar Associations place restrictions, adopt checks and balance in
working of judicial system and the superior courts in past always adopted the
resolutions qua integrity of judicial officer passed by bar councils. I
remember the case wherein the Honorable Judge terminated from service on mere
passing of resolutions of Bar Association. See 1985 PLC CS 62. There are certain obligations on bench too,
but that does not mean that office bearers of bar exploit their positions by
intimidating the judges, threatening the staff of court to get their work done.
This is not curable debate, I must not indulge. Morality and
legality though not synonymous but not so distinct otherwise. Lawyer
should try to be moral as he impliedly takes oath while entering in the
profession to be legal. I have not been able to trace any case law wherein an
advocate has been entangled owing to moral turpitude, but reference to 1998 CLC 1810 MUHAMMAD MUAZAM BUTT etc
VS QAZI MUHAMMAD ANWAR etc
would be illustrative at this juncture. Besides in case reported as AIR 1997 SC 864, where an
advocate assaulted his opponent with knife in the court room, the court
declared such act amounted moral turpitude resulting removal of his name from
the roll of advocates held proper punishment. Conduct of advocates can be
scrutinized by apex court as held in 1992
SCMR 90, wherein apart from dealing with the jurisprudential relation
between Legal Practitioner and Bar Council Act 1973 and Supreme Court Rules
1980, the apex court passed the following order:-
“We would therefore order that Mr Yusuf Ali Khan be removed
from practice of Supreme Court under Rule 30. however,
we may observe that it will be open to Mr Yusuf Ali Khan to apply for recalling
of this order upon the expiry of three years provided his conduct remains
satisfactory”
Mr Khan assailed above order by taking preliminary
objection as to competency of Supreme Court to frame rules Under Article 191
and also pleaded to be ultra vires to Legal Practitioner and Bar Council Act
1973, however after detailed analysis of power of apex court under Article 191,
Supreme Court dismissed his objections and upheld earlier order disentitling
him from practice.
Where advocate has not prepared his brief properly and has
not placed the relevant law before the court such counsel has failed in his
duty by not maintaining the standards expected of an advocate. Where counsel
does not come to the court ready with the facts and laws on the legal
proposition, such lapse on his part would show disrespect to the standards of
the profession, deity to the court in the administration of justice and
negligence of his duty towards his client. Such counsel has not only committed
breach of injunction of Islam but
also breach of promise with the client. See 2001 CLC 1599. Advocate’s
duty towards his client also were subject matter of
repeated judgments by the superior courts; there is no escape from this
obligation once engaged, until the authority is expressly determined. See AIR 2000 RAJ 65. Just must wear
all laws on the sleeves of his robe and failure of counsel as to properly
advise him is not a complete excuse in the matter as held in 2011 SCMR 437 , but that
maxim/rule does not absolve lawyer from his inherent duty in preparing his case
with zeal, honesty and alacrity. It is professional duty of an advocate to
assist the court properly; otherwise he may be removed from lawyer’s roll. An advocate is an officer of court and is
concerned in the proper administration of justice and owes an overriding duty
to the court to the standards of his profession and to the public to ensure
that it is achieved. Where advocate has not prepared his brief properly and has
not placed the relevant law before the court such counsel has failed in his
duty by not maintaining the standards expected of an advocate. Where counsel
does not come to the court ready with the facts and laws on the legal
proposition, such lapse on his part would show disrespect to the standards of
the profession, deity to the court in the administration of justice and
negligence of his duty towards his client. Such counsel has not only committed
breach of injunction of ISLAM but also breach of promise with the client See. PLJ 2009 CRC PESHAWAR 25.
In other cases, where the advocates have been found negligent in performance of
their duties, resulting into dismissal of cases by apex court due to their non
appearance, the courts refused to restore the dismissed case by making
observations that clients whose cases have been destroyed due to personal
negligence of their advocates must sue them for damages. SEE 2005 SLJ 336 & 547 & AND ALSO BY LAHORE HIGH COURT
LAHORE IN 2010 YLR 225 SB LHC
Irrespective of statutory definition of professional misconduct, courts
themselves declared the advocates guilty of professional misconduct whey they
fail to perform their duties properly and as such, the affectee client can
always set the law in motion either in Bar Council’s proceedings or otherwise.
Similar to the terminology of “misconduct” provided in civil service laws,
which provides inclusive definition to contain any action or omission
prejudicial to good order of service, as such our legal profession,
notwithstanding, any act or omission on part of lawyer statutorily termed as
misconduct or not, must take strict cognizance of any act or omission of lawyer’s
part which goes against good order or conscience affecting the morality and
sanctity of legal profession. ” See 2001 PLC CS 761.
There should be end to litigation being principle of public policy as
enshrined by various legislations. Limitation ACT 1908 is one example. Sir Abraham
Lincoln said “Discourage litigation. Persuade your neighbors to compromise
whenever you can. As a peacemaker the lawyer has superior opportunity of being
a good man. There will still be business enough”. Its
also lawyer’s basic duty to avoid assisting unnecessary and frivolous
litigations. Enforcement of law is not automatic; the jurisprudential
approaches to be adopted bind other institutions, such as bar councils to be of
assistance in reaching this target. I must refer 2011 SCMR 27, wherein honorable court held that where
the parties are found in repetitive frivolous and fraudulent litigation after
final adjudication of matter, duty of court to take effective measures against
obstinate litigants and their lawyers in such cases. This is public policy
based on jurisprudence, without which the judicial system cannot sustain and
without proper judicial system, the concept of state does not exist. I must
also refer to Article 7 of Constitution of Pakistan 1973, which defines state
but excludes the judiciary, but on repeated ocasssions superior courts read
down it in the said article. For instance see PLD 1992 SC 811.
Clause (2) (b) of Article 193 of Constitution of Pakistan
provides that a member of civil service if he is qualified, may be appointed as
judge of a high court. High courts have witnessed elevation of outstanding
judges from the civil service including Mr Justice Cornelius, Justice Rustam
Kayani, Justice Saad Saud Jan, Justice Shafi ur Rehman and Justice K.M.A
Samdani, but article omits to provide the effect of not making judges permanent
appointed from civil service, whether such would entail repatriation to civil
service or otherwise. Legal Practitioner and Bar Council Act 1973 specifically
bars enrollment of government servant/civil servants or persons holding
business into sacred legal profession. But the law in this regard is not self
executory, depends upon the complaints to be initiated, which in turn happened
to be hostility amongst parties. Bar Councils in this regard always considered
themselves completely helpless in taking stern action against the person
falsely deposing before being enrolled. Legislature has provided consequences
for false declaration under PPC 1860 but the inaction of bar council in this
regard need serious attention to prevent pressure in already over crowded legal
field in view of judgments cited as 1996 MLD 513, 2006 MLD 1179, 2002 YLR 3944
In the practice of law
conflicting responsibilities are often encountered. Difficult ethical problems
may arise from a conflict between a lawyer's responsibility to a client and the
lawyer's own sense of personal honor, including obligations to society and the
legal profession. The Rules of Professional Conduct prescribe terms for
resolving such conflicts. Within the framework of these rules many difficult
issues of professional discretion can arise. Such issues must be resolved
through the exercise of sensitive professional and moral judgment guided by the
basic principles underlying the rules, and in doing so, one must be more
cautious as if
overruled precedent was referred intentionally same would be professional
misconduct and if unintentionally then it would reflect height of negligence
and irresponsibility, as such, all possible
care should be taken to ascertain that case/judgment being cited as precedent
had not been overruled or set aside in appeal. SEE PLD 1998 LAHORE 321 & 1980 CLC 1561
The menace of toutism also
sheds the soft image of our legal profession, at the very outset, young entrant
opts every possible measure to widespread his professional net and while doing
so, there is probability that one may cross the restricted boundaries either
legally or morally or religiously. The revolutionized toutism, as I have witnessed,
create direct conflicting system with the sacred religions. One may give half
portion of fee to ensure repeated references. Bribing readers of the courts to
avail cheap publicity and to detract / throw away already engaged counsels
being sin must be recognized as religious besides legal crime. Interfering and
defaming one lawyer and carving the cause of other lawyer just to obtain petty
financial commission is clear religiously forbidden act. I still remember the
shining eyes of my English professor S Faisal Khurshid in Government College
University Lahore commenting upon the Story titled as “How much land does a man need” by Leo Tolstoy, which clearly fits
in present scheme of things. Almighty Allah feeds you, but the way our
professional jealousy aims at destroying one’s career has been tackled in the
following Quranic verses:- “People resort to unfair and improper ways to amass wealth
because they are driven by greed”. The rat
race is referred to by the Quran as at-takaasur (also the title of chapter
102): "The greedy race to amass wealth carries men to their graves."
(102:1-2). The avarice for money drives one to
obsession: "(just to gather money and keep counting it." (104:3); But
no! this wealth will drive him to hellish
destruction!" (104:4-5-6-7-8-9). Men often adopt illegal and improper ways
of acquiring wealth for the sake of their families and children. But such
wealth is a source of trouble for you (8:28). In a nutshell, the permitted
(halal) sustenance is that which is acquired through fair and proper (tayyeb)
means. It is the Right (haq). On the contrary, is the forbidden (haram). Improper earning is termed as ithm by the Quran (2:188). Ithm creates lethargy which causes one
to fall behind. The Quran also forbids maisara (2:219) which not only refers to
betting but also to any means of earning easy money. Such earning gives one
wealth but creates 'acute lethargy' (2:219) which is more than the benefits of
such money (2:219)”. According to Abdullah ibn Masud, Radi-Allahu unhu, The
Prophet Muhammad, Sall-Allahu alayhi wa sallam, said: 'Seeking halal earning is a duty after
the duty.' In other words working to earn a halal living is itself a
religious obligation second in importance after the primary religious
obligations like prayers, fasting and hajj. Lahore High Court Rules and Orders also
provides measures to remedy toutism, but in my humble view, same are not self
executory and sufficient to curb such menace.
Lawyers are officers of the
court and they are responsible to the judiciary for the propriety of their
professional activities. Within that context, the legal profession has been
granted powers of self-government. Self-regulation helps maintain the legal
profession's independence from undue government domination. An independent legal profession is an
important force in preserving government under law, for abuse of legal
authority is more readily challenged by a profession whose members are not
dependent on the executive and legislative branches of government for the right
to practice. Supervision by an independent judiciary, and conformity with the
rules the judiciary adopts for the profession, assures both independence and
responsibility. This sacred profession demands more attention and absorption,
replacing personal priorities by professional commitments. See
2002 SCMR 526, wherein the
apex court held that personal engagements of counsel cannot be allowed to
supersede the professional duties mandated by law.
Article 5(2) of Constitution
of Pakistan 1973 provides “Obedience to the constitution and law is the
inviolable obligation of every citizen wherever he may be and of every person
for the time being within Pakistan”. And article 37(d) of our constitution
provides “The state shall ensure ……...…………… Ensure inexpensive and expeditious justice”
Judiciary being organ of state has bounded duty to act in accordance with the
mandate of reproduced article. In accomplishing such constitutional mandates,
the assistance from advocates forms integral part of judicial dispensation, but
what if lawyers resort to strike, it surely amounts to
violating fundamental rights of public at large. Direct resort to strike has
never been proved to be fruitful for legal profession. Delhi High Court Indian
has taken strict view in this regard by holding that strike by lawyers is
illegal and unethical. It infringes the fundamental rights of litigants for
speedy trials. Lawyers absenting from appearing in courts are guilty of
professional misconduct. AIR
2000 DELHI 266. On the other hand, resolution passed by the bar council to boycott a
particular judge and in consequence thereof lawyers absenting and stating by
expressing reluctance to appear were held to be guilty of professional
misconduct and unbecoming of an advocate. See
AIR 1999 SC 287
I must conclude by quoting
extracts from Mr A.K Brohi’s Fundamental Law of Pakistan, goes as under:-
“……………
it is necessary to stress that courage, intellectual honesty and moral
independence ought to be chief ornaments of the advocate’s personality. Legal
learning by itself is not enough. Above all, an advocate should have a mind of
his own; so much is this true that it is better to be wrong sometimes than
never to have a mind of one’s own. In the court, of course an advocate can only
make submissions at the bar, and he cannot make a present of his personal
opinions. All that is required of him is advocacy, not his judgment. The
judgment is to be of court which it should be his Endeavour to procure as far
as practicable in favor of his client. And as to this, the judges, too have an
obligation to assist the counsel at the Bar in serving the institution of the
law ……………………………………….. patience and gravity of hearing
is an essential part of justice, and an over-speaking judge is no well-attuned
symbol. It is no grace to a judge first to find that
which he might have heard in due course from the Bar, or to show quickness of
comment in cutting evidence or counsel too short, or to prevent information by
questions, though pertinent”