Looking in the mirror

The writer is a lawyer based in Islamabad.
“The time will come when it will disgust you to look in the mirror,” Rose Kennedy (mother of JFK) had said. That time seems to have returned for the legal fraternity. The rule of law in Pakistan remains frail and vulnerable for multiple reasons, including that the legal fraternity doesn’t have the moral authority it professes. The legal profession presents an image of impartial judges and lawyers as officers of the law engaged in public service. But not only do we not rise up to this image we don’t even seem to be trying. Resultantly when we stand around preaching the importance and virtue of the law, the reaction it now provokes amongst cynical fellow citizen ranges from indifference to disdain.
With the lawyers’ movement, we set out to strive for something that was larger than our personal interests. That earned us the respect of our community. In 2007-08, the random senior citizen would stop you in a market if you were wearing the black coat and bless you with prayers. Notwithstanding the conduct of lawyers and judges since the inception of the country, the moment our deeds matched our words the fellow citizen was willing to give us the benefit of the doubt and stand besides us to fight for rule of law. And what did we do? The moment the immediate objective of the movement was realised, we went right back to our rotten ways.
Our loutishness, selfishness and disregard for cannons of professional conduct has cashed out the goodwill generated between 2007 and 2009 with such speed that today we are squarely back within the dark corner of the society where we existed prior to March 2007. The members of the legal fraternity – lawyers and judges included – are still refusing to take individual and collective responsibility for the dismal performance of the legal system. While our society has reached a state of disrepair where all segments and institutions will need to be reformed simultaneously, it is

essential for advocates of change to start with putting their own houses in order. And when it comes to the justice system, our biggest challenge is behavioural.
Lawyers are more empowered in most societies in comparison to ordinary citizens because they are aware of their rights. But with power comes responsibility. When law is your business, you are expected to exhibit greater fidelity to it. Not in Pakistan though. Our hooliganism has few parallels. You can search hard and will probably find the occasional incident in another country involving a rowdy lawyer. But the way we are going around beating litigants, policemen, media representatives, and hurling abuse and shoes at judges, reflects a pattern. First there were only the faujis who thought they were above the law. Then came along the maulvis. And now we are at the forefront of this hallowed company of untouchables.
It is the inexplicable apathy of the bar and the bench to blatant violence that is the most obvious manifestation of the rot that has set in. Is it not surprising that in a country that witnessed an epochal public movement inspired by need for justice, there has hardly been any conversation about reforming the legal norms and practices that impede dispensation of justice? Let’s start with the widespread practices we’re aware of and don’t find fault with. It is natural to wish for a judicial bench that has integrity and the intelligence to understand and meticulously decide a matter. Is it all right then to pay money to ensure that the matter is fixed before such a bench? If the end is legitimate, does it cleanse soiled means? Once eager and willing to grease the means, how far away are we from paying for the manufacture of a desirable end?
The legal fraternity seems oblivious to the cannons of professional conduct and etiquette for advocates prescribed by the Pakistan Legal Practitioners and Bar Council Rules, which address the role of lawyers in the society and their duty to the client, the court and the public at large. These are overlapping duties and Bar Council Rules seem to strike a prudent balance. Rule 153 says that, “it is the right of an advocate to undertake the defence of a person accused of a crime, regardless of his personal opinion, as distinguished from knowledge of guilt of the accused.” Rule 171 further states that, “no advocate is obliged to act either as adviser or advocate for every person who may wish to become his client.” And Rule 169 clarifies that “the client cannot be the keeper of the advocate’s conscience in professional matters.”
Rule 152 mandates that “an advocate in his professional capacity shall not advise the violation of any law.” But hasn’t prepping on ways to dodge service and abuse the technicalities of the law and procedural rules to protect a client’s interest come to be regarded as an integral part of a lawyer’s duty to the client? Rule 166 states the obvious: “It is the duty of advocates to appear in court when a matter is called.” We know that people age and die waiting for the outcome of cases. Even the average Joe now understands that justice delayed is justice denied. But aren’t practices in a whole set of legal areas built on the celebrated ability of specialist lawyers to delay decisions on merit due to their facility with procedural tactics?
The other windfall of the lawyers’ movement has been in the form of legal fees. Notwithstanding our society’s collective bias against money (rooted in the assumption that all of it is a product of loot), there can hardly be any objection to professionals determining the worth of their time and charging for that expended in the service of a client. Rule 154 of the Bar Council Rules identifies the legitimate considerations to be borne in mind while determining fees, paramount among which is, “the time and labour required, the novelty and difficulty of the questions involved and the skill requisite to properly conduct the case.” It ends by stating the forgotten cardinal principle that “in fixing fees it should never be forgotten that the profession is a branch of the administration of justice and not merely a moneymaking trade.”
There clearly is a permissible range for charging professional fee and it’s the lawyer alone who can determine the value of his time. But at what price does one value time to charge a professional fee in a court case amounting to, say, Rs30 or 50 million? Even if you valued one hour of your time at Rs100,000 (the highest per hour fees charged on Wall Street), you would need to have estimated that you’d spend 300-500 man-hours working on the case to raise such invoice. Can charging such fees be justifiable especially in view of Rule 154, which holds that a client’s ability to pay is not a valid consideration in determining fees? And if you aren’t just charging for your time, what other services are you providing? Can lawyers’ guarantee results and charge for it?
Can a lawyer furnish technically valid advice without consideration for its socio-political consequences? In the Interest of Justice, the author Deborah L Rhode highlights two essential imperatives for reforming the legal profession: Lawyers, individually and collectively, need to assume greater responsibility for the consequences of their professional actions and for the performance of the legal system; and the public needs to demand greater accountability from the profession. In order to avoid making ethical decisions, we as lawyers are painting a flawed picture of client rights that is largely meant to achieve personal ends. Unless we revisit our abhorrent professional practices that undermine the rule of law, our championing the cause of justice will continue to attract derision.
Email: sattar@post.harvard.edu