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THE DUTY OF ATTORNEYS TO THE STATE

Published: 
Sunday, January 8, 2017

Mickela Panday

​Attorneys provide an indispensable service to the public because they advise clients to act in accordance with the law and they resolve disputes by negotiating an amicable resolution or by obtaining a binding judgement of the court. They are critical in engendering respect for the law and upholding the rule of law. Not surprisingly, by Rule 13 of Part A of the Code of Ethics in the Schedule to the Legal Profession Act, every attorney owes a duty to the State to maintain its integrity, its Constitution, and its laws.

The State, whether Central Government, the many statutory authorities, state enterprises, etc, requires legal advice and representation regularly. But unlike other state procurement practices, which require a transparent tendering process for goods and services, with bids, evaluations, and selection, there is no procurement system for legal services. It would be beneath his dignity for any attorney to enter into a competitive bidding process to be selected for provision of his legal services.

It is for the State to select attorneys on the basis of their ability and experience and suitability to the particular type of legal service. It should be no different to how anyone goes about selecting a doctor, a dentist, an artisan, a mechanic or, yes, an attorney.

Unfortunately there has been a tendency in the past for selection of attorneys to be based on political affiliation principally, which affiliation can vary depending on who is in office. Yes, there are those attorneys who are seen as resolutely independent, whose sheer ability and experience trump refusal to play the partisan game.

However, there are many who, because of alliances which should be of no relevance to selection, are given state work. That may not necessarily always be a bad thing because it can give attorneys work that they would not usually get because of strangleholds by others, and they will hopefully gain experience and develop as lawyers, especially if they get to work with experienced senior counsels.

The State is the driver of the economy and it controls the Treasury. Access to the State through legal retainer means access to the Treasury. It is here that political affiliation must give way to professional ethical conduct by attorneys who must scrupulously not abuse or be seen to abuse this access.

Equally there is a duty on the Attorney General, the titular head of the Bar, who must act in the public interest and ensure that the State and the public get value for money. The same goes for those in control of all embodiments of the State.

But, of course, the AG and those in control of state bodies are usually cut from the same political cloth. Politicians and quasi-politicians like to keep allies happy and, sadly, there may have been those who personally received financial benefits through the largesse of bodies under their control.

Because of this reality, the duty is on attorneys selected by the State themselves to act honourably and ethically. It is that professional conduct which is supposed to prevent abuse of access to the Treasury.

Rule 31 of Part A of the Code of Ethics states that an attorney is entitled to reasonable compensation for his services but should avoid charges which overestimate the service rendered. Importantly, in relation to the State, the ability of a client to pay cannot justify a charge in excess of the value of the service rendered.

Rule 10 of Part B of the Code of Ethics prohibits attorneys charging fees that are unfair or unreasonable. In determining fairness and reasonableness, the following factors are taken into account: (a) the time and labour required, the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly; (b) the fee customarily charged in the locality for similar legal services; (c) the nature and length of the professional relationship with the client; and (d) the experience, reputation and ability of the attorney.

It is clear that under the last administration there was a complete and bold abandonment of the Code of Ethics by certain attorneys, aided by unjustified approval and payment of their exorbitant fees by those in office. This led to a decline in the regard for the legal profession generally by the average hard-working, reasonably or less than reasonably paid citizen.

The conundrum is that the Law Association cannot through its disciplinary process do anything without a complaint from a client, and no one expects the same office holder who okayed payment to make a complaint.

Ethical conduct may be prescribed but it is for an attorney to actually practice it even when he is being urged, directly or implicitly, to gorge at the Treasury trough. He does his profession and himself well when he does so, and he will be respected for it. He must remember his obligations to his country and to the citizens who pay him.