..::LEGAL ETHICS: LAWYER’S PERCEPTIONS in Pakistan

LEGAL ETHICS: LAWYER’S PERCEPTIONS: 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 LHCIrrespective 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 lawyersis 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”

By Zohaib Imran Sheikh Advocate High Court & Service Tribunals