(This is Part One of a two-part guest post series by Goutham Shivashankar.)
If you haven’t yet read Gautam Bhatia’s stunning post on the “Ethics of Representation in an Adversarial Legal System”, I suggest that you do so immediately. It is important, timely, excellently articulated, and truly fascinating. In my view, it is also gravely incorrect. Bhatia makes a limited argument. He admits that in an adversarial legal system, every litigant has a right to legal representation. He further admits that every advocate has a right to represent a litigant. He argues, however, that the decision of an advocate to represent certain types of litigants, or in fact any litigant, ought not to be exempt from ethical / moral scrutiny by the society at large. He seems to have in mind cases where the law is used as a tool to perpetuate existing power structures, and asserts that in such cases, the decision of a lawyer to take on such a case ought not be exempt from moral scrutiny.
Bhatia ends his post with a personal anecdote that hints at the root of his moral instincts on the issue. He refers to an incident at a theatre performance of Henry VI, where the audience spontaneously burst into applause at the play’s immortal lines “The first thing we do, let’s kill all the lawyers.” Bhatia admits that this made him feel “small and alone” (no doubt, because he is a lawyer). This is an important point to note at the outset. Even public censure of the profession of lawyering or advocacy (which is a step removed from public censure of a specific lawyer) seems to have a tangible psychological impact on lawyers. This, for reasons I will explain below, is probably a bad thing, at least when such censure is targeted at the decision of a lawyer to represent a specific litigant or take on a specific case.
I will not end with a personal anecdote. Instead, I will begin by stating my personal credo as an advocate. I practise as an advocate mainly at the Supreme Court. I intend, unabashedly, to represent any litigant who approaches me, no matter how grave his alleged crime or misdemeanour or the nature of the case, to the best of my abilities. This, I find to be wholly in accord with my personal value system, and I don’t expect to lose sleep over it (unless of course, someone convinces me that the arguments I make here are without merit). But I will go a step further. I will argue that society ought not to be allowed to subject my decision to represent any litigant, to moral censure. In fact, society, by subjecting any lawyer to such censure, would be committing an immoral act (or at the very least, an act detrimental to public interest). The best defence, as the saying goes, is a good offence.
I propose to do this in two posts. In the first post, I state my own proposition and try to justify it in my own way. In my second post, I try to counter Bhatia’s arguments against the traditional justifications for the exemption of the lawyer’s decision to take on a client or a case from ethical scrutiny. This is just to keep the posts short and, hopefully, also interesting. It is also important to note that my reasons for justifying my proposition (i.e. my first post) are largely different from the arguments that are attacked by Bhatia. I am also aware that my reasons are not what people traditionally cite to justify the moral exemption extended to lawyers regarding their decision to take on a case. But I reckon there is no harm done in thinking this through afresh, just like Bhatia has attempted.
Stating the Proposition Clearly
Let me begin by clarifying my proposition. I am not stating that all decisions of lawyers ought to be exempt from moral scrutiny / public censure. For instance, a lawyer certainly ought to be regarded as immoral if he knowingly states falsehoods in order to advance his client’s case. Similarly, a lawyer ought to be censured for taking undue advantage of a vulnerable client. A whole host of lawyers’ decisions ought to be, and are in fact, subjected to moral and ethical scrutiny. This is essential to ensure that the profession remains a morally sound one.
It is not even my case that the decision of a lawyer to take on a specific case / client should be completely excluded from moral scrutiny. Indeed, some such decisions ought to be censured on moral or ethical grounds. For instance, a lawyer’s decision to represent a client or take on a case despite a conflict of interest ought to be regarded as immoral and unethical.
My proposition is limited to just this: the moral scrutiny of any decision made by a lawyer ought to be an exercise that is completely divorced from the morality of his client’s alleged actions (let’s call these situations as “morally unworthy clients”). It ought not also be linked with some underlying systemic immorality with “the law / legal systems” – for instance, where the law perpetuates power structures – the situation that Bhatia specifically considers (let’s call these situations “morally unworthy cases”). In other words, the morality of the host of decisions that lawyers make in the course of representing their clients ought not to be contingent on the moral worth of either the client or the law/legal system, i.e. it should not be linked to whether the client is a “morally unworthy client” or whether the case is a “morally unworthy case”. If that proposition is true, it would be a sequitur, that a lawyer’s preliminary decision to represent a client or to take on a case ought not to be regarded as immoral only for the reason of either the client’s immorality or the legal system’s underlying immorality that may be play in the case at hand. It is important to note here that a lawyer’s decision to represent a “morally unworthy client” or take on a “morally unworthy case” may be morally suspect for other reasons that are independent of the moral worth of the client or the case. For instance, a lawyer may choose to represent an alleged rapist because the rapist happens to be a close aide of a judge, and the lawyer believes that representing that litigant may help him curry favour with the judge. Here, the lawyer’s decision to represent a client becomes morally unworthy for reasons that are not tied to the moral worth of the client, i.e., because the lawyer is trying to curry favour with a judge. Similarly, a lawyer firm’s decision to represent a home minister accused of sexual harassment may be morally unworthy if it is shown that the law firm in question did so in the hope of being appointed to a panel of government lawyers as quid pro quo for taking on the case.
Justifying the Proposition on Systemic Grounds
There is a systemic justification for my proposition. Let us assume a system where my proposition is disregarded, i.e., a system where the moral worth of lawyers’ decisions in taking on a client can be tied to the moral worth of their clients themselves. Or a system where such the moral worth of the lawyer’s decision to take on a case can be tied to the moral worth of the law/legal system itself in relation to that case. This is really a system akin to what Bhatia is suggesting. Let us assume also that most lawyers care about being moral persons (i.e., that they would not like to be regarded as immoral or do immoral acts), but some lawyers don’t. This assumption is not an unreasonable one to make. Clearly, much of humanity is made of people who care about being morally good, and some part of humanity is not similarly concerned. Most people do not want to feel “small and alone” like Bhatia did, when their professions and their professional conduct are deemed morally unworthy. There is no reason, at least intuitively, to believe why this would not be true for the sub-set of humanity consisting of lawyers. However, clearly, some persons (including lawyers), do not feel “small and alone” despite their acts being deemed morally unworthy. They simply don’t care about being perceived as immoral. If things weren’t this way, we would have a perfect world, which we clearly don’t.
Now, if the lawyer’s initial decision to represent a client is deemed morally unsound for the reason of the client’s immorality or because of the immorality of the legal system itself, then lawyers who care about being moral, will likely refuse to represent a morally unworthy client or take on a morally unworthy case. The systemic effect of this would be catastrophic, because it would likely funnel morally unworthy clients and morally unworthy cases to the lawyers who do not care about being perceived as moral. In other words, the morally unworthy clients / cases would gravitate as a class, to the class of immoral lawyers. Immoral lawyers, are likely to be immoral in the entire series of decisions they make in advancing their morally unworthy client’s case (not just in the initial decision to take on the client). That class of lawyer would not think twice about lying to the judge if they are sure that they would not be caught out. They may even be okay with bribing judges to win their client’s case. The systemic effect would be that morally unworthy clients or morally unworthy cases would likely get a competitive advantage in advancing their case, because the system would funnel them towards lawyers who do not mind adopting morally unworthy tactics to win their case.
Let us take the alternate scenario. Assume my kind of system, where lawyers are exempt from moral scrutiny for their decision to represent morally unworthy clients or take on morally unworthy cases. In such a system, the likelihood of morally unworthy clients / cases gravitating to the class of immoral lawyers drastically reduces. In such a system, the class of lawyers who care about being perceived as moral have no disincentive to take on such cases. Once such lawyers have taken on these cases, the whole of host subsequent decisions that they make in handling the case, are more likely to be moral (since these lawyers care about being moral). Thus, we end up with a situation where morally unworthy clients / cases are distributed between the classes of both moral and immoral lawyers. That is a systemically good outcome, since it reduces the chances that immoral tactics would be adopted by the lawyers in such morally suspect cases.
Thus, there appears to be a systemic justification in the moral exemption granted to lawyers qua their decision to take on morally suspect cases / clients. In my next post, I will deal with Bhatia’s specific arguments to the traditional justifications to such moral exemption advanced to lawyers.