Role of the lawyer in contemporary society

Dr. Ruwantissa Abeyratne

It is a platitude to say that the legal profession is considered the first among all professions. Those who enter this profession are regarded as people of sound reasoning powers and judgement. Lawyers are the cream and conscience of human society. When lawyers speak, people think twice. The legal profession, which is one of the world's oldest and most powerful professions, has existed for over two thousand years.

In addition to its indispensable role in the affairs of a nation, legal opinion is also influential in international affairs, diplomacy and military conduct of States. The influence of the legal profession on a State's military conduct has given rise to the catchword " lawfare" which describes a method of warfare where law is used as a means of realising a military objective. Because of their role in society and their close involvement in the administration of law, lawyers are subject to special standards, regulation, and liability.

Legal ethics, or professional responsibility, is perhaps most comprehensively described as the law governing lawyers.

Basic principles on the role of lawyers, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders in Havana, Cuba, from 27 August to 7 September 1990, recognise that the fundamental basis on which the role of the lawyer is anchored is the Charter of the United Nations in which the peoples of the world affirm, inter alia, their determination to establish conditions under which justice can be maintained, and proclaim as one of their purposes the achievement of international cooperation in promoting and encouraging respect for human rights and fundamental freedoms without distinction as to race, sex, language or religion.

Honour and dignity

Also of relevance is the Universal Declaration of Human Rights which enshrines the principles of equality before the law, the presumption of innocence, the right to a fair and public hearing by an independent and impartial tribunal, and all the guarantees necessary for the defence of everyone charged with a penal offence. Another significant instrument is the International Covenant on Civil and Political Rights which provides for the right to be tried without undue delay and the right to a fair and public hearing by a competent, independent and impartial tribunal established by law.

At the very basic level, lawyers are required at all times to maintain the honour and dignity of their profession as essential agents of the administration of justice and advise clients as to their legal rights and obligations, and as to the working of the legal system in so far as it is relevant to the legal rights and obligations of the clients.

Another critical function of the lawyer is to assist clients in every appropriate way, and take legal action to protect their interests as well as to assist clients before courts, tribunals or administrative authorities, where appropriate.

These basic principles, as adopted in Havana also provide that lawyers, in protecting the rights of their clients and in promoting the cause of justice, should seek to uphold human rights and fundamental freedoms recognized by national and international law and should at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession. Furthermore there is also the requirement that lawyers should always loyally respect the interests of their clients.

In view of their pivotal and influential role on society, professional associations of lawyers have to enforce strict standards of conduct on practising lawyers.

Codes of professional conduct for lawyers are established by the legal profession through its appropriate organs, or by legislation, in accordance with national law and custom and recognized international standards and norms. Charges or complaints made against lawyers in their professional capacity are processed by these professional associations expeditiously and fairly under appropriate procedures. Lawyers, like any other citizen, have the right to a fair hearing, including the right to be assisted by a lawyer of their choice.

Duties of the Government

On the flip side are the duties of a government toward lawyers which enable them to successfully and honourably discharge their duties toward their client. The Havana Principles require governments to ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference and that they are able to travel and to consult with their clients freely both within their own country and abroad. Also, governments must ensure that lawyers will not suffer, or be threatened with prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.

The Governments must adequately safeguard lawyers when their security is threatened as a result of discharging their functions. Furthermore, lawyers must not be identified with their clients or their clients' causes as a result of discharging their functions. No court or administrative authority before whom the right to counsel is recognized can refuse to recognise the right of a lawyer to appear before it for his or her client unless that lawyer has been disqualified in accordance with national law and practice and in conformity with these principles. Lawyers are accorded the right to enjoy civil and penal immunity for relevant statements made in good faith in written or oral pleadings or in their professional appearances before a court, tribunal or other legal or administrative authority. It is the duty of the competent authorities to ensure lawyers access to appropriate information, files and documents in their possession or control in sufficient time to enable lawyers to provide effective legal assistance to their clients.

Such access should be provided at the earliest appropriate time.

Governments are also required to recognize and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential.

Freedom of the Legal Profession

Lawyers like other citizens are entitled to freedom of expression, belief, association and assembly. In particular, they have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights and to join or form local, national or international organizations and attend their meetings, without suffering professional restrictions by reason of their lawful action or their membership in a lawful organization.

In exercising these rights, lawyers are always required to conduct themselves in accordance with the law and the recognized standards and ethics of the legal profession.

In any democratic contemporary society, lawyers are entitled to form and join self-governing professional associations to represent their interests, promote their continuing education and training and protect their professional integrity. The executive body of the professional associations is usually elected by its members and shall exercise its functions without external interference.

Also usually in such societies, professional associations of lawyers cooperate with Governments to ensure that everyone has effective and equal access to legal services and that lawyers are able, without improper interference, to counsel and assist their clients in accordance with the law and recognized professional standards and ethics.

One of the greatest sources of the study of ethics is Aristotle's Nichomachean Ethics which is composed of 10 books, all of which draw the central Aristotlean theme that ethics is based on virtue.

Nicomachean Ethics focuses on the importance of habitually behaving virtuously and developing a virtuous character. Aristotle emphasized the importance of context to ethical behaviour, and the ability of the virtuous person to recognize the best course of action.

In his endeavour to further elaborate on ethics, Aristotle had to first establish what was virtuous.

He began by determining that everything was done with some goal in mind and that the goal is 'good': Therefore, every skill and every inquiry, and similarly, every action and choice of action, is thought to have some good as its object. This is why the good has rightly been defined by Aristotle as the object of all endeavour.

Building on this base, legal ethics refers to a righteous code governing the conduct of people engaged in the practice of law.

Role of the Lawyer

A lawyer is a person learned in the law and has received public recognition of membership in the legal profession.

The legal profession is composed of jurists (who do not have a licence to practice in the courts but nonetheless are qualified in the law through a learned institution such as a university); and those who have obtained a license to practice law as an officer of the court.

With regard to the latter category, it is the lawyer's responsibility to establish a relationship of trust and confidence with his client and represent the client to the best of the lawyer's ability. A lawyer can be thought of as a spokesperson hired to speak for a client to settle a conflict.

A lawyer can often communicate more effectively than the client because the lawyer is not emotionally involved in the dispute and has been trained to look for ways to settle a dispute by using the legal knowledge he or she has gained. The lawyer's main responsibility is to his client.

A lawyer may be sometimes called upon to perform the role of advisor or counsellor to help clients with problems such as divorce, relationships between parents and children, drafting wills, drafting contracts and other matters. In this role, the lawyer must seek to meet the desires of the client while providing practical advice to accomplish their goal.

Often, the lawyer serves as a negotiator working with the client as well as the opposing side to find the best way to settle a conflict.

This is a difficult role, as the lawyer must be able to find compromises and to know the right moment to present these to reach the best settlement for the client.

In view of the above responsibilities, arguably, the most challenging role played by members of the legal profession in contemporary society, particularly one which has to resolve an external or internal conflict, is to be that society's guardian and advisor in law and ethics. Lawyers not only have a duty to preserve and continue democracy in a society but they also have to actively involve themselves in the day to day activities of the society they live in.

They have to take the front seat to ensure that the Rule of law, which is the principle that no one is above the law and tells us that law follows logically from the idea that truth is the fundamental postulate of justice, and therefore law is based upon fundamental principles which can be discovered, but which cannot be created through an act of will. The Rule of Law is the salient pillar of sustainable democracy and a guarantor of peace, harmony and equality, as well as unity in every human society.

The Rule of Law is an underlying constitutional principle requiring government to be conducted according to law and making all public officers answerable for their acts in the ordinary courts The fundamental role of the lawyer towards his society is to ensure that the Rule of Law is adhered to accordingly. Another duty of the lawyer is to ensure that the Constitution of the State, which is the organic law of the land is respected and protected by all. Also, lawyers must be fully involved in administering the affairs of the Legislative Branch of Government, the Executive as well as the Judiciary.

In times of military conflict, be it international or national, lawyers hold a position of power with the inherent ability they have to defend alleged offenders. In such instances, lawyers should take particular care not to represent complex issues of morality as technical issues of legality, giving those involved in warfare a false feeling of security that they would be defended against any crime against humanity.

Military lawyers are involved with both the rules of engagement and rules of combat.

They also have to discern and distinguish between military and civilian perspectives of intended and unintended consequences. Too often it seems that initiatives suffer from an insufficient understanding of the direct military impact and a lack of adequate analysis of the unintended military consequences.

This produces situations that do not make common sense to many in uniform, and serve to make the law an object of disdain.

The classical tradition of the legal profession is seemingly at a crossroads of transition when it comes to a society engaged in military combat, for the simple reason that since September 11, 2001 when several acts of terrorism were perpetrated against the United States, new paradigms have been set and old paradigms have been extended.

The hyperlegalism applied to curb a country's response toward a devastating act of terrorism mainly based on the rule of law may not necessarily be the desired approach of the pubic any longer as people desire peace and security at any cost.

In real terms, the clash of arms no longer necessarily define the outcome of a war and State based diplomacy through engagement of elites with other societies may not always be the panacea to all ills.

As former U.S. Counterterrorism Ambassador Hank Crumpton said, modern warfare involves adaptation and success in any war will need adaptation and new responses.

These in turn will need an adaptive approach to the law, requiring the legal profession to seriously consider the balance between those traditional principles and philosophy of the law and a new approach that will serve the noble objectives of justice while at the same time affording people the right to take adequate measures to ensure their security.