Tags

,

Recently, in the wake of the news that the prominent law firm Karanjawala and Co. was representing M.J. Akbar in his criminal defamation case against Priya Ramani, I tweeted that “it has repeatedly struck me how lawyering is the one profession where “I am doing my job” is offered up as a complete moral and ethical defence to the consequences that flow from “doing one’s job” (in this case, upholding deeply unequal power relations).” Perhaps unsurprisingly, there were a number of responses expressing disagreement with this sentiment. I know that it is at odds with the received wisdom within the legal community. In this post, however, I want to challenge that received wisdom.

A Right to Represent v The Ethics of Representation

I should start by clarifying the nature of the claim. It is not my argument that M.J. Akbar doesn’t have a right to be represented, or that Karanjawala and Co. don’t have a right to represent him. As long as we remain committed to the adverserial legal system, the right to represent and to be represented will remain foundational. However, there are a lot of things that we have the right to do, but really shouldn’t be doing (such as, for example, hurting our loved ones). And if we do them, we shall – rightly – be subjected to ethical and moral criticism for our actions.

The argument, then, is more modest: it is that the choice to represent M.J. Akbar in his criminal defamation case cannot be insulated from moral and ethical assessment. Indeed, every decision to represent – or indeed, not to represent (as Indira Jaising recently did with Talib Hussain) – must be subjected to such an assessment, like we subject all other significant human choices.

The Illusion of the Cab Rank Rule 

Why is this so controversial? At first blush, it appears to chime with a very basic intuition: that as human beings, we are ethically and morally responsible for the actions that we choose to take (or choose not to take). If I drive my car recklessly, I am morally responsible for causing an accident and injuring people. If I abandon my parents in their old age, I am guilty of a serious ethical lapse. And this is true for all acts, including acts of great significance: whether it is a decision to go to war or to “demonetise” the currency, the actors making those choices are deemed responsible for the consequences, and held to a moral account for it.

This intuition should apply with even greater force to lawyers, because of the direct impact that the legal system has on the world. Peoples’ property, their liberty, and sometimes their very lives, depend upon what goes on in the courtroom. For example, if I successfully represent a landlord in eviction proceedings, then as a direct consequence of my actions, a person may have lost their shelter. Now, that may well be justified, all things considered; but there seems to be no reason why I should be excused of my responsibility in having brought about that outcome.

Therefore, if the normal intuition that we are all to be judged for the consequences of our actions is not to apply to lawyers, there must be something special about the legal profession that displaces that presumption. Lawyers often locate it in something called the “cab rank rule“, which is treated as a necessary corollary of the adverserial system. The basis of the “cab rank rule” is that the adverserial system can work only if a lawyer blinds herself to the character of her client. Like the first cab in the row of vehicles outside an airport is supposed to take the first passenger to her destination, regardless of what the destination is or who the passenger is, the “cab rank rule” requires lawyers to represent the client who comes to them seeking representation, regardless of their personal views about the client or the case.

The logic of the “cab rank rule” is simple. If lawyers have no real choice in whom they represent (that is, if the system commits them to this course of action), then naturally, they cannot be held morally responsible for the consequences that follow from any specific case that they do. The debate then shifts from the morality of representation to the moral or ethical desirability of the “cab rank rule” itself.

The “cab rank rule”, however, is an illusion. Lawyers choose their clients all the time. As the “cab rank rule” itself qualifies, the obligation to represent is subject to the nature of the case being within the expertise of the lawyer, at a court at which she normally practices, and subject to her usual rates. I want to stress this last bit: lawyers reject clients who cannot afford to pay their fees all the time (and this includes lawyers who split their practice between paying and pro bono – as they themselves would be the first to admit, the pro bono component is normally between 10 to 20% of the practice). Indeed, in our system, there need not be an explicit rejection – the system works by self-selection. You just won’t go to a lawyer that you can’t afford; and the first thing a drafting counsel asks at a senior counsel’s office is how much the senior charges for a hearing, before taking a call on whether that senior is affordable for her client.

You may argue that rejecting a client based on affordability is different from rejecting a client based on – say – the nature of the case. I don’t see any real morally salient difference, however. It certainly makes no difference to the client, who finds herself without good legal representation because it is too expensive. Besides, the link between the wealth of the client and the nature of the case is not as detached as we’d like to believe. Poor and vulnerable clients are not exactly going to be looking for lawyers to handle their corporate restructuring, or fight for their Ambi Valley property. The clients who do need representation, but are shut out because they can’t pay counsel fees, will invariably be women at the receiving end of domestic violence, retrenched workmen without the protection of a labour union, the socio-economic class that is always in the cross-hairs of the police, and so on. In other words, affordability is little more than a proxy for lawyers selecting a certain type and character of client. And above all else, the simple issue is this: is a hierarchy based on personal wealth any more justifiable than a hierarchy based on (say) ideology?

The “cab rank rule” may work in a legal system where – like the UK’s National Health Service – you had a “National Legal Service” that actually functioned effectively, was free at the point of need, and using which made no discernible difference to the quality of the service received. Our legal system (despite the existence of NALSA), at present, is a few light-years away from that. And in the system that we have right now – as I said above – the simple act of setting a standard fees amounts to choosing one type of client and turning away another. The “cab rank rule”, therefore, cannot insulate lawyers from moral and ethical judgment.

But What About Ajmal Kasab? 

Once you take away the “cab rank rule”, you find that there is nothing else to justify the moral and ethical insulation of representational choices. The “I am just doing my job” defence cannot, in and of itself, carry the water: that defence was most famously rejected at Nuremberg (apologies for proving Godwin’s Law!), but even if you ignore that analogy as mistaken, it’s not a blanket defence we normally extend to other “jobs” (with the exception of doctors).

But the objection then takes another form: “What about those who defended Ajmal Kasab?” Or, in other words, the argument (which is really a variation of the “cab rank rule”) goes thus: if you’re going to judge lawyers by the cases that they take, then there can be no justification for those who defend rapists, murderers, and terrorists. This is, of course, an unacceptable outcome; consequently, if you’re going to support the representation of Ajmal Kasab, you have to also support the representation of M.J. Akbar.

The Ajmal Kasab argument is an important one, but in the way that it is deployed here, it gets things badly wrong. The legal defence of Ajmal Kasab is not grounded in insulating a lawyer from the ethics of representation, or in a “the lawyer is just doing her job” fudge. Rather, Ajmal Kasab should be represented precisely because there are good moral and ethical reasons for representing him in court. In other words, you don’t avoid the moral question – you tackle it head on.

What are these moral and ethical arguments? Criminal defence lawyers have made them repeatedly over the years (see, for example, Kevin Jon Heller’s article justifying his choice to represent Radovan Karadzic at the ICTY), and there’s no dearth of material on the subject. But here is what’s of most significance to me: a criminal trial involves the State (in its capacity as the interrogator) against the individual (standing as an accused). It is perhaps the greatest imbalance of power that we can imagine in our system. Good legal representation in that context is needed purely to even out that fundamental imbalance. A lawyer I know once described it as achieving an “equality of arms”, and I think that that captures the core of the issue: the moral and ethical justification of legally defending the accused rapist, the accused murderer, and – yes – Ajmal Kasab – is the importance of the equality of arms as a fundamental value.

There is another point: criminal trials invariably involve a tug-of-war between Prosecution and Defence over the scope and limitations of the procedural rights that are afforded to accused criminals. The higher the profile of the case, the more gruesome the crime, and the more unjustifiable the conduct of the accused – the greater the temptation (from both the Prosecution and the Court) to give a go-bye to procedural safeguards in order to ensure a conviction. Criminal defence, therefore, serves the crucial function of safeguarding procedural rights, the dilution of which will ultimately hit those who need it the most – the innocent, the vulnerable, and the marginalised. Once again, therefore, it is about preserving a balance of power between the individual and the State, and preventing the effacement of the individual who stands in the dock as an accused.

Law and Power Relations

The above discussion should make it clear that the “smoking gun” hypotheticals – defending indefensible clients, being the “attorney for the damned” – are best answered not by running away from the ethical questions, but by embracing them. And in the process of answering those hypotheticals, we can work out a rough model of what the ethical critique should look like.

Let us, for example, compare the M.J. Akbar situation with our discussion above. The defamation complaint has arisen out of the #MeToo movement, which has involved a large number of women coming forward and articulating experiences of sexual harassment, at the hands of powerful and well-established men. The movement has taken the form that it has – anarchic, decentralised, and public – because the traditional structures of accountability – the courts, legal due process, internal complaint mechanisms – were correctly perceived as utterly broken, and serving to shield the powerful and to perpetuate hierarchies, rather than bring them down. #MeToo is (as I understand it) fundamentally about finding a new vocabulary to articulate a range of experiences that were actively suppressed (including by the absence of legal and other forms of language in which to describe them), and to replace a culture of authority with a culture of accountability. In every sense of the word, therefore, it is an anti-hierarchy movement.

What is criminal defamation? A colonial provision that the British introduced to stifle political dissent, which authoritarian politicians have weaponised against the press, and which by its very structure (no jurisdictional constraints, low-threshold definitional provision that allows for charges to be framed and trial to commence before the defences can be brought in, and high-threshold defences) is designed to harass, intimidate, and silence. It is not about finding an appropriate “balance” between speech and reputation, but about invoking reputation to silence speech.

What is criminal defamation applied to #MeToo? It is the leveraging of this draconian criminal law provision to shut down the movement: it is, in short, the use of law to perpetuate status quo and entrench power, against a movement that challenges both.

You may disagree with me on the characterisation of this situation, and we can have a debate about that. But my point here is this: if you do agree with me about the characterisation of #MeToo and of the criminal defamation provision, then the ethical and moral critique of the choice to represent M.J. Akbar in this particular manner and in this way is self-evident. There is no hiding behind “the lawyers are just doing their job” and “M.J. Akbar has the right to a legal defence.”

For me, the issue ultimately boils down to this: as the critical legal theorists realised long ago, law is not some neutral set of principles applied by neutral umpires to resolve technical disputes. Rather, law is inextricably linked with systems, relations, and hierarchies of power. The law can be used to interrogate power, to challenge it, to liberate and to equalise. But law can also be used to sustain power, to defend it, to entrench it, to enslave and to subordinate. As lawyers, we have the privilege of choosing the use to which we can put the law. Of course, we have the right to use it in any we we choose to; but it seems to me that the choice comes with ethical and moral consequences, and we can claim no immunity from those.

Yes, someone will represent M.J. Akbar in his criminal defamation case against Priya Ramani.

But it doesn’t have to be you, does it?

Conclusion

Once, long ago, I was watching a theatre performance of Henry VI. This is the play that has those famous lines: “The first thing we do, let’s kill all the lawyers.” When those lines were spoken, the theatre burst into spontaneous applause, cheering, and hooting. Needless to say, I did not join in. I also felt rather small and alone.

I have often thought back to that moment, and wondered about the intense – almost visceral – dislike that people seem to hold lawyers in. I wonder if one of the reasons is simply this: that as lawyers, we wield so much power, but with the arrogance of gods, exempt ourselves from any accountability for how that power is wielded. And I wonder if a simple acknowledgment – that the things we do as lawyers have consequences, and that we are not immunised from a reckoning for having brought about those consequences – is both necessary, and long overdue.

(PS. I understand that this post is not about the interpretation of a constitutional provision – but I decided to take liberties with the phrase “constitutional philosophy”, and discuss an issue about the nature of the adverserial legal system that does – I believe – go to the question of how we think of justice under our Constitution.)