LIARS
AND LAWYERS:
The
place of lying in lawyering
James
Gawuga Nkrumah*
INTRODUCTION
The life of the law student and the
lawyer are similar in at least two respects. First, both the law student and
the practicing lawyer enjoy prestige among the members of society. Law students
are among the very few students held in high esteem on campuses just for the
prestige of what they study. Practitioners are not treated differently in this
regard. They are accorded much respect in the society. For it is thought as
expressed per Ansah and Anin Yeboah JJSC in Henry Nuertey Korbea v. Francis Amosa[1]
that the “Legal profession is perhaps the most honorable profession in the
world and has for centuries seem to be so.” It is perhaps this aura of respectability
and prestige that has influenced the assertion that:
“…
certain occupations requiring public vows of faith or purpose should become
known as professions. Originally there were three: Medicine, Law, and Theology.
They were dignified by that title and set
apart from other occupations because they were more than a livelihood; they
represented a calling to some higher satisfaction than a commercial gain.
Further, having high purpose, there was the promise of intellectual direction
and occupational skill.”[2]
Notwithstanding the prestige lawyers
and law students enjoy, they suffer from an unpleasant tag as far as their
reputation is concerned. Their reputation has been tainted. They are said to
possess or are rather trained to possess some serpentine attitude: the mastery
of lies. This is the second sense in which the two categories of people are
similar. It is this latter similarity which concerns me in this paper. I seek
to challenge the notion that lies make the lawyer and that mastery of lies makes
the good lawyer.
I find the task I assume here not
different from that earlier assumed by Lonnie T.
Brown, Jr especially as our missions seem to converge. He puts it this
way:
“My mission as a teacher of legal ethics is to counteract this
negative conceptualization of lawyers by emphasizing the nobleness of our
profession, as best demonstrated by the enormously unique power and opportunity
that we possess to serve and protect the public welfare, in pursuing our
private clients’ interests and otherwise.”[3]
While he sought “to counteract this negative conceptualization of lawyers by
emphasizing the nobleness of our profession ….” with regard to mine as a
student of the law, my mission is to embark on an exposé, playing the role of
an undercover investigative journalist. To be fruitful in this, I will be
providing arguments not only to counter but, more importantly, to project the glaring
contradictions in the characterization of lawyers as liars.
In this paper, I take two things for
granted, one being who a liar is and the other, who a lawyer is. At best, I beg
the question by saying that a liar is a person who lies; a person who conceals
the whole or part of the truth or the fact of an event. And a lawyer, to paint
a graphical image of him, as someone who is “essentially a court-room lawyer”[4] –
the barrister - or a person who “essentially an office lawyer”[5] –
the solicitor.
The paper is divided into three
parts. Part I deals with the notion or the bad tag ascribed to law students and
lawyers and what that means. Under Part II, attempt is made to trace and
understand the source of this attribution to the legal profession. The final
part – Part III – contains three arguments which reflect the glaring contradictions
and also counter the notion in question.
PART
I - Lawyers, Sons and Daughters of Machiavelli
Lonnie T. Brown, Jr opens
his piece, “Lawyers” Not “Liars” with
an interesting encounter; an experience which, I think, is not new to lawyers
and law students. This is how he told his story:
During the summer of 1998, I met a gentleman named Delroy
Sheriffe. My wife and I were vacationing in Jamaica, and Delroy was the head
bartender at the hotel where we were staying. Over the course of our weeklong
visit, we got to know Delroy quite well, and he shared numerous entertaining
tales with us. His most memorable comment, however, was uttered in response to
my telling him that I was a lawyer. In a heavy Jamaican accent, Delroy
mockingly proclaimed: “Ah, a lawyer! I tell you the truth and you
tell lies for me.” Although this statement was surely made in jest, it
was apparent to me that Delroy really believed that his characterization of an
attorney’s role was accurate.[6]
[My emphasis].
My encounter with an academic is no
different. When I informed him that I had been offered admission at the School
of Law, University of Ghana, Legon, his response sincerely surprised me. It was
not because I had not heard similar comments before but my surprise was due to
the fact that a person in such a reputable academic community who has attained
an enviable stature in the community and beyond could espouse such a view. He
said to me: “You want to join the liars, right?” [My emphasis]. It was then that I realized
how the notion has become not just an easily saleable commodity but also well
patronized among the rank and file of the society.
The above notion presupposes this:
that the moment an individual decides to read or practice law, such a person
must think of and look forward to using Machiavellian ploys such as deceit. If
he is a person of generally good character, he must start getting rid of them
as soon as possible. For the worse the character he possesses, the better it
would be for him in the legal profession. And if he already possesses bad
character before his quest to read or practice law, then he must be very well
prepared long ago for the appointed time. For him, we can be sure he will not
face any difficulty at all.
Concerning the aforementioned, it
appears that the reason for holding this view stems from the belief that only
those who possess the capacity and potential for telling lies are those capable
and fit for practicing law. Lying then is considered a necessary, not a
contingent or coincidental, condition for practicing law. It is an indispensable
skill in lawyering, mastery of which can or does make a good lawyer. This is
because “men are so simple, and so much victims of circumstance that the
deceiver (being the lawyer) will always find someone ready to be deceived.”[7]
In line with this, desiring to learn and practice law, one “must know how
to colour one’s actions and to be a great liar and deceiver.”[8]
Lawyers are, consequently, regarded
by this section of the human populace as witty cons. They are said
to be well versed in the act of throwing dust into the eyes of people, after
all they have been trained. Yet these people, unfortunately not born of the
immaculate Virgin Mary but the notorious schemer, Niccolò Machiavelli, are the
role models that a good number of law students desire to emulate. As a result,
the law students adhere to the advice of Seneca:
Choose a master whose life, conversation, and soul-expressing face
have satisfied you; picture him always to yourself as your protector or your
pattern. For we must indeed have someone according to whom we may regulate our
characters; you can never straighten that which is crooked unless you use a
ruler.[9]
Following this advice, law students
use this rule (lawyers), regarded by society as the most crooked of all people,
to straighten themselves. Serpentine as lawyers are, their paths cannot be
straight though they themselves appear to be straight. Therefore for law
students to use them as rule means they (the law students) would be emulating
the crookedness of their trainers. The caution then is that people of
conscience and integrity, who are ethics conscious and truth loving must pursue
professions other than law. Otherwise they will be dead to conscience,
integrity, ethics and truth.
To a section of the public, the
statement that “A lawyer owes a duty to his client to be honest, skilful and
careful …”[10]
coming from the bench must be treated with suspicion. Honesty is far a virtue
to be cultivated by the lawyer. To be skilful, that the lawyer must be, certainly
in employing deceit and other unscrupulous acts in his endeavours. Skill
without care is dangerous to his survival, it is thought. He must be careful in
the use of dishonesty and unscrupulous skills not to be caught. This group
would hold Oliver Wendell Holmes to in contempt of truth when he said that “When we study law we are not studying a
mystery but a well-known profession. We are studying what we shall want in
order to appear before judges, or to advise people in such a way as to keep
them out of court.” The reason being that, to them, what we study is nothing
other than lies or how to tell lies. Same goes to Megarry when he remarked:
Nobody can become a solicitor [lawyer] without passing formidable
examinations and undergoing a period of apprenticeship. [That] These alone
guarantee a real degree of competence. The difficulty is that law, and the
practice of law, are indeed difficult – difficult and complex.[11]
The populace opinion is
that examinations are mere formalities and apprenticeship, the baptismal period
– the period of initiating the student and equipping him with lies, the requisite
lawyering skills. Unlike Megarry, what guarantees “a real degree of
competence,” in the populace view, is the mastery of unscrupulous acts, lying
being atop of all such acts. “Law and the practice of law” cannot be difficult
if one is well-versed in act and art of lying.
In consequence of all the
supposed perverted ways of lawyers, though the wages of sin is death for all
humans as Christians believe, the experience of lawyers is more than just
death. This is found in the time-honoured mystery that they (lawyers) are
buried upside down with their eyes opened. Of course, they must be made to see
the hell-fire that awaits them even before they are placed in there for their
evil ways.
I would
like to say a word or two about this well patronized perception about lawyers
and that is that perception is but a misconception. A number of reasons account
for this misconception. We may cite hearsay, lack of knowledge about the task
of the lawyer, and, more importantly, litigating about what appears to be
“obvious” to perhaps all and sundry in the society. On these issues, I shall
return shortly. But for moment, let us look at the source of the attribution of
lying as an appellation to lawyers.
Part
II - The Attribution and the Source
A critical consideration of the
genesis of this thought about the profession in question is necessary. My
submission with regard to this is that the attribution of lying as an
appellation to lawyers stems from the act of sophistry, very well practiced in
ancient Greece (especially Athens). Sophistry in Athens was a practice of using
artfully reasoned arguments that appeared true in favour or denial of a matter.
However, in reality, the arguments were nothing more than falsities. The
sophists (from the Greek word hoi
sophists, ‘‘the wise’[12]) argued
and also taught their students that any issue, no matter the subject area and
notwithstanding the complexities of it, could be reduced to the portrait of a
coin having two faces – head and tail - and argued in either way for a win.
What essentially fueled this kind of behavior has been noted by Ackah in the
following remark:
“The
dominating role of democratic politics in the life of the adult male citizen
[in ancient Greece] has resulted in a highly utilitarian conception of the good
life as the ability to succeed in the public domain. Rhetoric – the art of
public persuasion – is the critical component of Sophist education; its key element is argumentation or
eristicism (from ‘eris’ the Greek for ‘strife’ or ‘competition’).
Eristicism is used for generating antilogies on any conceivable issue. That is
to say, by argument the Sophist can demonstrate that the worse is better, that
the shameful is honourable, etc., and vice versa. Consequently, a debtor
trained in eristicism can prove that he does not owe [even when he in fact
does] and that no one could tell a lie etc.”[13]
He continues to say that “Eristicism
naturally gives rise to sophism or sophistry, a method of argumentation that is seemingly plausible though actually
invalid and misleading, often employed as a trick for winning argument.” He
gives this as an example of the Sophists’ line of argument: “That dog is a
father. That dog is his. Therefore that dog is his father.”[14]
The aims of the sophists in offering
persuasive yet deceitful arguments were for simple ends: to obtain money and
acclamation.[15]
On this, it must be borne in mind that the quest for financial gains and fame
is not lost to men and women exercising professions, trade or vocations of
different kinds in modern times. Some even engage in unscrupulous activities to
reach such ends and some legal practitioners are caught squarely in this. With
respect to fame and financial gains, the following remarks have been passed by
the Ghanaian bench.
“Of late the courts are inundated with ill
prepared initiatives by counsel whose only motives are to hit newspaper
headlines by any means or be seen to be carrying out the mandates of their
unsuspecting and/or misinformed clients or simply for undeserved financial
gain. The result is the spate of unwarranted actions, writs, motions,
petitions and appeals to cite but a few, which are hardly initiated in strict
compliance with the procedure rules.”[16]
For the pursuit of money and
acclamation, Socrates, Plato and, later on, Aristotle charged the sophists of
being greedy, adding that they compromise morality.[17] It
is this reputation of treachery, sham and façade of the sophists that is being
transplanted onto the field of law. What might have influenced this transplant
of the sophists’ ill-reputation seems to be the fact that both sophists and
lawyers do engage in argumentation.
It is a truism that a cardinal
vehicle upon which the law and lawyers thrive on is argumentation.
Argumentation produces diversity of thoughts, ensuring that only opinions that
can withstand the tempestuous storm of opposing thoughts stand. It further guarantees
that the views accepted have been tried and tested and that such views are the
best and preferred among the available alternatives. On the essence of
argumentation in the legal practice, Ronald Dworkin observed as follows:
“Legal practice, unlike many other social phenomena, is argumentative.
Every actor in the practice understands that what it permits or requires
depends on the truth of certain propositions that are given sense only by and
within the practice; the practice consists in large part in deploying and
arguing about these propositions. People who have law make and debate claims
about what law permits or forbids that would be impossible— because senseless—
without law and a good part of what their law reveals about them cannot be
discovered except by noticing how they ground and defend these claims.”[18]
It must thus be said that any attempt
to clothe lawyers with the ill reputation of sophists on the sole ground of
argumentation is simply untenable. In what follows, I provide the
justifications for this claim.
Part
III - The Arguments and Exposé
I. The Omniscient Man
In the eyes of many people in our society, lawyers appear to be playing
the role of God which is to say that they, lawyers, act as if they are all-knowing. This is evinced by the very work they
do. They handle election petitions even when they themselves have not contested
elections before. They argue cases involving contracts for the purchase of one
item or the other. They participate in litigation involving football. Even in
maritime cases, they are there. Once the matter is justiciable,[19]
you will see lawyers arguing in court or playing some other role for its
determination.
This makes one wonder whether lawyers seem to be suggesting that
they are actually omniscient. And the question that follows is this: ‘are they
really all-knowing?’ Put differently, ‘do they know anything about everything
or everything about anything?’ The society, thus, smells a rat as far as the
work of the lawyer is concerned and this deepens the notion that lawyers are liars.
It is thus not surprising to have come across a piece written by one of my law
lecturers who said he was once provokingly asked “what does the lawyer know
about salmon?” There is no doubt that this question was meant to cast doubt on
the lawyer’s knowledge of salmon.
Salmon,
a fish, is used, here, as a variable as understood in mathematical term. Any
other thing can therefore take the place of salmon. It is thus anything or
every other thing. Depending on the case or the situation, the salmon may be sawmill, chieftaincy, politics, manufacturing, inheritance
or succession, citizenship, just to mention a few. The list is so long that a
claim by any person to have knowledge and to be able to deal with all these
things must either be regarded as falsehood or an attempt to play God, acting
as an omniscient man. Such a claim must necessarily excite the suspicion of the
public.
However, in the above
lies the misconception about the work the lawyer is trained to do. It must be
made known that the training of the law student and for that matter task of the
lawyer has nothing to do with anything apart from the law. To iterate the point
just made, the law student’s training and the lawyer’s task are not about politics,
chieftaincy or sawmill per se, they are, in fact, simply about the law. Therefore
the law student, the future lawyer, is trained to know how to research for the
law as it applies to specific things say lending and borrowing, crime
against humanity and war crimes among others. So he is taught the law of torts,
contract, succession, mortgages etc. so that in future when a case is brought
by a client, he will identify the appropriate cause of action,[20]
the applicable law and its resolution.
To make the point sink,
let us take this case study. X is a surviving spouse of Y. In Y’s lifetime,
they were tenants[21]
of Z. Y dies intestate (that is, without making a will).[22]
A week after Y’s demise, Z, the landlord, then ejects X from the matrimonial
home. Let us say X and Y failed to pay their rents when it was due.
On this set of facts, one
must be sure of having divided opinion even among lay persons, by which, I mean
people without legal knowledge. We may find one group arguing that the landlord
was right in ejecting X for the non-payment of their rent when it was due. They
would add that the landlord is a business person whose interest is to make some
gains from the investment in putting up the building. His motive in putting up
the building is a far from engaging in surreptitious acts, they will further
add. They will, finally, rest their case on the legal parlance pacta sunt servanda[23], albeit unknowingly
by arguing that promises or agreements are not meant to be broken but to be
kept.
On the
other hand, we may have those who will say that the landlord should have
tempered justice with mercy. No doubt X owed but the circumstances demanded a
human face to the matter. The deceased spouse, for instance, may be the
breadwinner. The landlord should have notified the surviving spouse of what he
intended to do. All in all, people on each side of the divide may find
justification for their position. But our lay persons need not have suffered
the fate of X and Y or be in the position of Z to be able to offer opinions and
justifications for their stance. In essence the validity of their justifications
is not dependent on a prior experience of the situation at hand.
What does the foregoing mean
for us? Firstly, that the lawyer need not to have experienced the situation
before he can offer legal advice or opinion or represent a party in the matter.
Secondly, the lawyer is to live above the
public opinions and sentiments and look at what the “law has decreed” about
such a situation at hand. For it is written:
“We live in and by the law.
It makes us what we are: citizens and employees and doctors and spouses and
people who own things. It is sword, shield, and menace: we insist on our wage,
or refuse to pay our rent, or are forced to forfeit penalties, or are closed up
in jail, all in the name of what our abstract and ethereal sovereign, the law,
has decreed.”[24]
[My emphasis]
Thus, whatever the salmon
is, the lawyer is to research for the law as it applies to it. Once again, he
does not need to have experienced the salmon. What he ought to do is to
research for the law concerning the
case – the salmon. He will then, for instance, look at whether the law has been
complied with. If not, he will then make a judgment of his own that there is a
cause of action. This done, the lawyer may frame the case of his client on
grounds of breach of natural justice for not giving his client an opportunity
to be heard before his dismissal or on breach of contract for not delivering
the goods his client requested or the that the statutory period allowed before
ejecting a bereaved spouse has not been complied with.
The importance of this must be recognized because “law”, as
Justice Aharon Barak of the Supreme Court of Israel has noted, is “a tool designed
to realize a social goal.”[25]
We must also not forget the fact that “we live in and by the law.” The law is
ubiquitous. In other words, it is omnipresent; it is everywhere. And it
concerns all things. Taking cognizance of this, Dr. Raymond Atuguba remarked:
The
second obvious, but often unappreciated, fact about law is this: everything that is done within a state is
required, permitted, condoned, discouraged, or not permitted by some law or
other. In other words, we often look to the law for the legitimacy or otherwise
of our actions and inactions. The payment of taxes is required by the law;
demonstrations are permitted by the law (there were times in this country when
we needed permits to go on demonstration); adultery is condoned by the law (it
is not a crime in Ghana); prostitution is discouraged by the law (although
prostitution is not illegal, living off the earnings of a prostitute is illegal
and what better way to discourage a practice than this); and murder is not
permitted by the law. Everything from
worshipping God (there are laws that regulate worshipping centres and
institutions, and there was a time in Ghana when certain churches were banned
from operating) to the tiny ant (there
are laws that regulate animals and wildlife) are affected in some way by the law.[26]
[My emphasis]
Now
to the all-important question: “is the lawyer an omniscient man?” The response to
that question must certainly be in the negative. In any attempt to trace the
genesis of this notion of omniscience, what will become evident is that the
ascription of omniscience to the lawyer stems from the very nature of law. The
law undoubtedly concerns all things “known” to human beings. And it is the task
of the lawyer to know the law or know where to find the law which concerns
these things. Since the law concerns all things, the laws of which the lawyer
ought to know or research as and when different cases are brought by his
clients, the lawyer is deemed knowing
all things.
In sum, it is in fact a misconception to claim that the lawyer
knows all things. Rather, it is the law that concerns all things. His task then
is not to know all of these things per se but he ought to know or to be able to
research for the law that concerns these things.
II. Perspectives and
Interpretation
Perspectives matter in law just as
they do in our daily lives. One person may see water halving a glass as the
glass being half empty. Another may report same as being half full. All this
borders on perspectives and interpretation. Essentially, both observers of the
water in the glass have said the same thing, the only difference being the
expressions they used. For to be half full is to be half empty and the veracity
of the inverse is indubitable.
In the light of the above, if we were
to accept the mathematical teaching on approximation, we would not be correct
to say that a half full glass is half empty. For the principle under
approximation is to run the number to the nearest tens, hundreds, thousands
etc. That being our rule, our law, we cannot but to conclude that a half-full
glass is full. What this means is that situations in normal life and our
expected conclusions to arrive at from them may differ on applying certain
principles, rules and laws as we have just seen with the half-full glass of
water.
Another point worthy of note is that
because we are all not the same, we tend to see things differently. Even at
time, when it appears that we are agreed on the matter, problems arises when we
seek to be accurate. On this point, Betrand Russell has made some useful remarks
when he wrote on The Problems of
Philosophy. He had this to say:
“In daily life, we assume as certain many things which, on a
closer scrutiny, are found to be so full of apparent contradictions that only a
great amount of thought enables us to know what it is that we really may
believe. … To make our difficulties plain, let us concentrate attention on the
table. To the eye it is oblong, brown and shiny, to the touch it is smooth and
cool and hard; when I tap it, it gives out a wooden sound. Anyone else who sees
and feels and hears the table will agree with this description, so that it
might seem as if no difficulty would arise; but
as soon as we try to be more precise our troubles begin. Although I believe
that the table is 'really' of the same colour all over, the parts that reflect
the light look much brighter than the other parts, and some parts look white
because of reflected light. I know that, if I move, the parts that reflect the
light will be different, so that the apparent distribution of colours on the
table will change. It follows that if several people are looking at the table
at the same moment, no two of them will see exactly the same distribution of
colours, because no two can see it from exactly the same point of view, and any
change in the point of view makes some change in the way the light is
reflected. … It is evident from what we have found, that there is no colour which
pre-eminently appears to be the colour of the table, or even of any one
particular part of the table—it appears to be of different colours from
different points of view, and there is no reason for regarding some of these as
more really its colour than others.”[27]
[My emphasis].
The foregoing sheds light
on why there are various denominations of Christianity with varied and at times
opposing dogmas or doctrines. One can cite numerous examples but at least one
will suffice. The issue of trinity i.e. whether or not there are three persons
in one God has remained, for many years, an unresolved ‘debate’ in the Christendom.
For the Catholic Church on one hand, belief in trinity is cardinal in their
scheme of things. They therefore maintain that:
“This is the true Christian faith, that we worship one God in
three persons and three persons in one God without confusing the Persons or
dividing the divine substance. For the Father is one Person, the Son is another
and the Holy Spirit is still another, but there is one Godhead of the Father
and of the Son and of the Holy Spirit, equal in glory and coequal in majesty.”[28]
This is what Jesus Christ
meant, for them, when he said “I and my father are one.”[29]
They are one and the same.
Directly against the
teaching of three persons in “one Godhead” is the Jehovah Witnesses, who preach
that the three persons are separate and that any teaching with respect to conjoined
persons as trinity is not only unbiblical but also a misconception. The
declaration that “I and my father are one” meant that Jesus Christ and his
father, God, only share some identical characteristics. That by no means mean
that they are one and the same.
So, we see that the Bible
is one and that the various versions of it are in substance not really
different as, in the main, any difference will be textual. However, when a
number of clergymen are given same text to preach with, we must be sure of one
thing: different interpretation of the Word of God. These problems of
perspectives and interpretation are equally faced in the legal arena.
Like the Bible, legal
documents say constitutions, statutes etc. are made up of text. Some of these
texts are to guide our conduct so that we adhere to certain prescribed
obligations or refrain from those acts proscribed. Others make us aware of some
benefit or rights conferred on us and the processes to follow in securing them
whenever we are denied them. These textual provisions are, more often than not,
intended to be applied to various foreseeable situations that may arise in our
ordinary lives. What law students are trained to do, which lawyers in fact do,
is to apply these provisions to situation. Since we are all not the same, for
which reason we may espouse different views about many things, lawyers too may
be divided on, among other things, whether or not the provisions of a law are
applicable to a case or whether its meaning is just one thing and not another.
So then regarding wills for instance, Striggner-Scott J has observed that
“They
[Lawyers] try in the best way they possibly can to express the intention of their clients in their own chosen words.
In some cases their choice of construction may coincide with the exact
intentions of a testator whose will they draw up, and in other cases they may
fall short of the intentions sought to be generated.”[30]
Now, the problem in all this is that
it is commonly mistaken that the court is after what the society will term as
the ‘truth’. Truth, it must be said, is relative. The question what is truth
has occasioned a long debate for philosophers, which has received no
universally approved and accepted definition. Operationally and to the layman,
the truth is reporting the situation as it is or exists. So we may say that the
truth is that X took the pen without the owner’s (Y) permission. This being the
case, X may be guilty of a charge of stealing in the public’s view. What is
forgotten is that stealing is just one of the many reasons for taking another
person’s property without that person’s authorization. X may have taken the pen
to ensure its safe keeping or even to prevent it from being stolen by another
person. It is here that the lawyers and the courts come in to determine whether
X, in taking the pen, really intended to steal it. In Ghana, for instance,
merely taking another’s property without his permission does not amount to
stealing. The law provided on stealing in section 125 of the Criminal Offences
Act[31]
is that “A person steals who dishonestly appropriates
a thing of which that person is not the owner.” The following as stated in the
case of Lucien v. The Republic[32] must be proved
to the court: “(i) the person charged must not be
the owner of the thing stolen, (ii) he must have appropriated it and (iii) the
appropriation must have been dishonest.” Any of these requirements lacking
means that X cannot be said to have stolen although he might have taken the
pen. What matters is not the taking of
the pen per se but the prosecutor proving these elements of the law.
The situation as it exists – what we
usually call the ‘truth’ - as seen from the case of our friend, the pen taker, is
not enough. The laid down elements of the law must be proved.
And that is exactly what justice according to law, justice based on what the
law has said pertaining to some situation is the one and only thing the courts
exists to do and which is different from justice according to the some “truth.”
For if any of us were the pen taker, probably, as said earlier, taking it for
safe keeping, we would not wish to be thrown into jail. That expectation
fulfilled, we would say justice has been done in accordance with law and not
some “truth”. Thus the court has said concerning its
function:
“As Courts of law we administer justice
according to law and equity which are
strictly guided by laid down rules fashioned over the centuries to guide our
conduct.”[33]
III. Society of Dead Conscience
Charles Fried has
identified a question which he says “troubles lawyers and law students alike.” The
troubling question, according to him, is “Can a good lawyer be a good person?”[34] It would appear from this question that
a lawyer or law student ought to be a bad person so that it is wondered whether
there is the possibility of either the lawyer being a good person or anything good
coming from him just as Nathanael
wondered: “Can
anything good come out of Nazareth?”[35]
In all this, the
question that must concern us in order to resolve Fried’s is ‘why is it doubted
that the law student after his training can be a good person or that the
lawyer, in the performance of his duties, can be a good person?’ This question
is of some importance especially as some people in the society have taken
delight in continuously repeating the words of the biblical Saul (also known as
Paul) to Elymas to the lawyer:
“You are a child of the devil and an enemy of everything that is right! You are full of all kinds of
deceit and trickery. Will you never stop perverting the ways …?”[36]
At least two
apparent reasons account for this. One is the fact that for every case, there
are counsel on each side arguing for or defending a client. They say truth is
one and for that matter that we cannot have two people arguing it to different
direction, one saying it is this and the other saying it is that. Surprisingly,
this is not only the situation in rear and, perhaps, weird cases but also in
very obvious matters.
The other ground
is rooted in what is probably considered the greatest evil that lawyers commit
and that is defense of the apparently guilty. Recently, a Ghanaian soldier, Major
Mahama was lynched by a mob in the infamous Denkyira-Obuasi matter. His death,
no doubt, caused grief in many as video evidence of him being killed like a
snake went viral. Following this, the police made some arrest. I recall that
someone wrote on his Facebook page saying “So will these people too be defended
by lawyers?” This is what I mean when I talk of defense of the apparently
guilty. It was thought that all who appeared in the video must be thrown into
jail. It was, however, forgotten that someone say an onlooker, even though he
could be under a legal duty to prevent a felony, could have been surprised by
the barbaric and sinister conducts of the mob in killing a human just like a
snake. Does he not deserve a defense? Would you not have sought a defense if
you were our dear onlooker? If you would, what evil has the lawyer committed in
defending the innocent?
It must be borne in mind that even
though people are entitled to defense, the court has in the case of Francis Yirenkyi v. The Republic[37]
said that “it is even considered unethical to defend the indefensible when it
is apparent that the position being defended is either not supported by law or
evidence on record.” So then not all cases are defensible. And they become so,
that is indefensible, only “when it is apparent that the position being
defended is either not supported by law or evidence on record.” In such cases,
lawyers are encouraged to concede in good faith.[38]
As stated earlier,
it is a misplaced thought that the courts are after what the society thinks is
the truth. What the court does is to say what the law is in relation to a
matter brought before it. Now let us take
a scenario with these persons – clients, counsel and the judge - to determine
who among these persons are preview to any truth, even if we say that the court
must be after the truth and not just administering justice according to some
law. The chain of events will be of
help.
Clients have a
situation at hand and each goes to their lawyers. Like children, one says “I
did nothing before he hit me.” The other also reported, “It was he who hit me
first.” Each presents his case to his lawyer to make him appear to be
blameless. Both lawyers believing the words of their clients present their case on their behalf to the judge.
What follows is not necessary for us at the moment. The question that must
concern us, if there is any truth to be known by any of these people who among
them must be previewed to that. It certainly must be the parties who
experienced the situation. They are the primary source of the truth. Similarly,
if there is any lie, one of them must be lying to the counsel and the court and
this is surely known to both parties. And it is because a party is unwilling to
say the truth that is why they come to the judge for him to determine that – the ‘truth’ – using the law. Unless,
there is some conspiracy on the part of the lawyers with their clients, the
former certainly must be innocent in this case.
There
is also a moral problem that arises from the societal condemnation of lawyers
as liars. Lying is undoubtedly frowned upon by many in the society. It is never
a virtue that the society would want its member to seek. Now, granted that the
claim that lawyers are liars or that lying makes the lawyer, mastery of which
makes the good lawyer is to be accepted, what would the society actually be
doing when members of the society seek the services of lawyers? It would, in
one breath, be promoting lies, that which it would be condemning in the other. It
is this society that I called a society of dead conscience. It is bereft of
conscience, truth and trustworthiness. It is no more than a society full of a
bunch of hypocrites, preaching virtue but practicing vice when it suits them.
In
all this, the society has failed to recognize two key things. One is that even
lying to the court, what in legal parlance is referred to as perjury, is an
offence. Perjury has been criminalized under section 211 of the Criminal
Offences Act.[39] For this reason, that it
is provided under rule 5(8) of the Legal Profession
(Professional Conduct and Etiquette) Rules[40] that:
“A lawyer is, in all his practice, but
especially with regard to settling and signing of pleadings, under
responsibilities to the Court as well as to his client. He shall not put into a pleading any allegation which is not supported
by the facts which are laid before him by his client. If on the material
before him there is no cause of action or no defence in law, he may ask for
further instructions to find if more material can be obtained; and if it
cannot, he may advise his client accordingly.”
On this,
James Boswell[41] wrote that: “A lawyer must not tell what he knows to be a lie: he is not to
produce what he knows to be a false deed; ….” And on what the lawyer ought to do and not do, Boswell adds the
following “he [the lawyer] is not to
usurp the province of the jury and of the judge, and determine what shall be
the effect of evidence – what shall be the result of legal argument … A lawyer
is to do for his client all that his client might fairly do for himself, if he
could.”
The other thing that
society has failed to take cognizance of is the fact that the legal profession
operates on a high level of ethical and professional standards and it is one
profession which is integrity conscious. It is also seriously regulated. With
respect to this, Dotse JSC in Henry
Nuertey Korbea v. Francis Amosa[42]
observed that
“There
is the need to maintain high ethical and professional standards in the legal
profession by ensuring strict compliance with the requirements of licensing of
persons as lawyers under Act 32. This
will in addition maintain the integrity of the legal profession. There is
therefore the need to maintain high ethical and professional standards.
CONCLUSION
The above has been an attempt to
dispute a popular notion about the legal profession. The notion that lying
makes the lawyer and that mastery of deceit and some other Machiavellian ploys
makes the good lawyer has been watered down in this piece. It has been found to
be baseless, and filled with contradictions. Though that thought stems, for
instance, from the defense of the apparently guilty and counsel being on each side of a case arguing for or defending their
client in even what appears to be obvious matters, it clearly portrays the lack
of knowledge about the legal profession and what the professionals in there
actually do.
However, it would be atrocious to
paint a portraiture of lawyers, and perhaps law students, as infallible beings.
Any attempt to do that would certainly be a conscious fruitless effort to
remove lawyers from among human beings so that the saying “to err is human” is
held to be applicable to some categories of human beings save lawyers and those
being trained to be like them. In recognition of this, the bench has long
observed that “Lawyers are not infallible.”[43] Of
course, there may be some bad nuts here or there who have mastered the act and
art of throwing dust into the eyes of people, including judges. But this does
not mean that that is a license to perform or excel at the bar.
* L.L.B
(Ghana), B.A (Ghana), Student, Ghana School of Law. I
am extremely grateful to His Lordship Justice Marful-Sau, Justice of the Court
of Appeal, Ghana for his guidance, review and comments on this piece. Special
thanks to Yvonne N.A. Adjadi, Robert Nkansah Boateng, Gladys Naana Maku Nanor
and Georgina Ampomah-Serwah for proof-reading this piece.
[1]
Civil Appeal No. J4/56/2014
[2]
E. W. Roddenberry, “Achieving
Professionalism,” 44 J. Crim. L. Criminology & Police Sci. 109
(1953-1954)
[3] Lonnie T. Brown Jr. “Lawyers” Not “Liars”: A
Modified Traditionalist Approach to Teaching Legal Ethics. Saint Louis University School of Law [Vol. 51:1119]
[9]
Seneca Lucius Annaeus, translated by Richard M.
Gummere, Seneca in Ten Volumes IV AD
Lucilium Epistulae Morales, Great Britain: Harvard University Press and
William Heiemann Ltd, 1979
[10] Agbemashior and Others V.
State Insurance Corporation and Others [1972] 2 GLR 65-75, Per Abban J.
[12]
Kofi Ackah, Living the Examined Life: Introducing Socrates,
Accra, Adwinsa Publications (Gh) Ltd, 2004
[16] F.K.A. Company Limited v Nii Ayikai Akramah II and Others, Civil
appeal no. J4/1/2016
[18]
Ronald Dworkin, Law’s Empire, (Massachuesetts, The
Belknap Press of Harvard University Press, 1968)
[19] Ghana Lotto Operators Association v. National Lottery Authority
[2007-2008] 2SCGLR 1088, Per Dr. Date-Bah JSC: “An issue is justiciable if it
is capable of being settled by a court.”
[20]
Letang v. Cooper [1961 L. No. 296]. Per Diplock L.J “A
cause of action is simply a factual situation the existence of which entitles
one person to obtain from the court a remedy against another person.”
[21]
Rents Act, 1963 (Act 220), section 36 defines “tenant” to includes a person who leases premises from
another person in consideration of the payment of rent, and
(a) a person
deriving title under the original tenant,
(b) a
sub-tenant,
(c) a person
who, before the commencement of this Act has retained possession of premises
and who on and after that commencement
continues in possession of the premises, and
(d) a person
who retains possession of premises by virtue of this Act.
[25]
Aharon Barak, “A Judge on Judging: The Role of a
Supreme Court in a Democracy” (2002) 116 Harv. L R 19 at p 66
[26]
Raymond A. Atuguba “Ghana Developing
Through Law” The Institute of Economic Affairs [2005] Vol 1 No. 9
[30] In Re Amarteifio (Decd.);
Amarteifio v. Amarteifio [1982-83] GLR 1137-1140
[34] Charles Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client
Relation, 85 Yale L.J. 1060 (1976).
[43] In Re Amarteifio (Decd.);
Amarteifio v. Amarteifio [1982-83] GLR 1137-1140, Per Striggner-Scott J
