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Posted: Wednesday 15 November, 2017 at 9:11 AM

Lawyers should be critical of the Bar and Bench

By: Bertram L. Charles, Esquire

    Lawyers are uniquely distinguished from the other professions, in that they are governed by a Code of Professional Responsibility. 

     

    There are many duties expressed or implied in the Code of Professional Responsibility, as follows: The duty to undertake the representation of indigent clients without charge; the duty to see that able and honest men and women are appointed as Judges and Magistrates; the duty to aid in the improvement of legal education; the duty to maintain the competence and the integrity of the Bar and to disclose violations of the rules of professional conduct; the duty to set an example and maintain public confidence by avoiding even minor violations of the law; the duty to seek legislative changes to improve the law and the legal system and the duty to educate the public and to protect it from the unauthorized practice of law. 

    It is unprofessional for a lawyer to represent conflicting interests. For example, a lawyer represents conflicting interests when on behalf of one client it is his or her duty to contend for that which duty to another client requires him or her to oppose. A lawyer owes his or her client undivided allegiance. He or she cannot act both for his or her client and for one whose interest is adverse to or conflicting with that of his or her client in the same general manner. 

    There is a Canon in the Code of Professional Responsibility that instructs lawyers to assist in improving the legal system. The Canon acknowledges that lawyers are especially qualified to recognize deficiencies in the legal system and to initiate corrective action. The existing legal institutions, such as the Courts, and the upkeep of current legal infrastructure are intolerable.  The procedures and methods of the judicial system are insufficient, outworn and inadequate to deliver prompt Justice at reasonable cost to the consumers of Justice. The laws are outdated, obsolete, antiquated and irrelevant to today’s society and modern day. There is a dire need for legal materials, publications, reports and laws. 

    St. Kitts and Nevis has been transformed from the plantation, horse and buggy days to supersonic transportation, telecommunication and the electronic age, but the judicial system has not kept pace with the science and technology of the times. It appears that the lawyers are unable or unwilling to employ their knowledge and training to reform the law or to be social engineers in the social, economic and political development of the country. 

    While lawyers generally feel free to criticize the Bar and the legal system, there are those who are reluctant to criticize judicial decisions or individual Judges/Magistrates because of the unfortunate but well-founded fear on the part of lawyers that such criticism may result in unnecessary antagonism, retaliation, harassment, disciplinary action or even worse. 

    Nevertheless, lawyers are obliged by the mandate of the Code, not only to educate the public about the law, the legal system and the Judges/Magistrates, but to inform the Court as well. 

    Justice Jackson at one time commented that: “Lawyers are the only group in a community who really know how well judicial work is being done. The public may rightly look to them to be the first to condemn practices or tendencies which they see departing from the best judicial traditions.” 

    When Stephen A. Douglas denounced Abraham Lincoln for questioning the validity of the Dred Scott decision, the most infamous case in American history, in which the United States Supreme Court ruled that descendants of African slaves could not be citizens of the United States of America, Lincoln proclaimed:  “We believe as much as Mr. Douglas, perhaps more, in obedience to and respect for the judicial department of Government. We think its decision on constitutional questions , when fully settled, should control not only the particular case decided, but the general policy of the country, subject to be disturbed only by amendments of the Constitution, as provided in that instrument itself. We think the Dred Scott decision is erroneous. We know the Court that made it has often overruled its own decisions, and we shall do what we can to have it overruled this.”  

    Lincoln publicly criticized both the Dred Scott decision and the Chief Justice of the U.S. Supreme Court and suggested that there was a moral duty to resist Supreme Court decisions that were clearly wrong. Lincoln was a great lawyer and President of the United States who understood the public responsibility of the Bar. 

    If Judges/Magistrates are arbitrary, if their behaviour is improper or if their decisions are not well-grounded in constitutional and legal principles, then the Bar is in the best position to evaluate the deficiencies, to inform the public and to suggest corrections. When lawyers engage in criticism of the judiciary for constructive and positive purposes, rooted in good faith and reason, the Courts are strengthened, the rule of law reinforced and the public duty of the Bar is performed.
     

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    This article was posted in its entirety as received by SKNVibes.com. This media house does not correct any spelling or grammatical error within press releases and commentaries. The views expressed therein are not necessarily those of SKNVibes.com, its sponsors or advertisers. 

     

     

     

     

     

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