- Ensure continuing legal education and training in ethics
To ensure compliance with legal professional ethics in Sri Lanka, several steps including staying updated on ethical norms and emerging issues, and ensuring that attorneys complete continuing legal education and training in ethics, must be implemented.
These recommendations were made in an article on ‘Public interest over private gain: A critical examination of the ethical perspective in the Sri Lankan legal profession’ which was authored by attorney K.A.L.L. Gunaratne and published in the Kotelawala Defence University Journal of Multidisciplinary Studies' Sixth Volume's Second Issue, last month.
The development of justice and societal welfare is one of the primary focus areas of the legal profession, which is an essential component of society. It represents a noble effort to protect individual rights, maintain the rule of law, and promote justice and equity in society (M.G. Karnavas’s ‘Lawyer’s ethics’). Lawyers maintain fairness, and defend the rule of law. Lawyers’ job provides them with a livelihood and a sense of professional achievement, but their primary responsibility goes beyond individual profit to serve the public interest and guarantee that everyone has access to justice. This dedication frequently entails standing out for the rights of the marginalised, representing a range of interests, and upholding moral principles that put the good of the public above personal gain. Ethical conduct is important in the legal field and vital to uphold justice, integrity, and trust.
Professional ethics
The idea of ‘public interest over private gain’ implies that decisions and actions should prioritise the welfare and well-being of the general public over the interests of individuals or specialised groups for personal profit or benefit. It is frequently mentioned in discussions about governance, commercial practices, and social responsibility.
Professional ethics is the cornerstone of every profession. Ethics are essential in the legal field, operating as a foundation for sustaining the rule of law and justice. Preserving public trust in the field of law requires professional ethics. Professional ethics mean a set of rules that a potential lawyer must follow and the moral ideas that should operate as guidelines for a lawyer's behaviour (A. Madhavan’s ‘Legal profession and ethics’).
These rules govern the behaviour and activities of practicing lawyers, including dealings with clients, the opposing side, and the courts. When lawyers act ethically, the public's trust in the system of law is strengthened. This trust is essential for the legal system to work properly. Also, professional ethics in the field of law promotes integrity and responsibility. In his book ‘Professional Ethics and Responsibilities of Lawyers’, late Supreme Court Justice Dr. A.R.B. Amarasinghe emphasises that lawyers must work with honesty, integrity, and truthfulness, fulfil court directives, and maintain client trust while demonstrating ethical conduct to the public.
Also, Principle 12 of the United Nations (UN) Basic Principles on the Role of Lawyers states: “Lawyers shall at all times maintain the honour and dignity of their profession as essential agents of the administration of justice” (Eighth Congress on the Prevention of Crime and the Treatment of Offenders). Therefore, it is clear that adhering to ethical norms develops duty and accountability, which improves the overall image of the legal profession.
The legal profession is important in maintaining justice, defending human rights, and ensuring the rule of law. However, challenges develop when personal or corporate interests outweigh these fundamental principles.
According to the International Bar Association’s International Principles on Conduct for the Legal Profession: “Lawyers throughout the world are specialised professionals who place the interests of their clients above their own and strive to obtain respect for the rule of law. They have to combine a continuous update on legal developments with service to their clients, respect for the courts, and the legitimate aspiration to maintain a reasonable standard of living.”
Domestic legal framework on legal ethics
The legal ethics of a country are generally established from domestic laws, although they may also be based on international and regional principles. According to Principle 26 of the UN Basic Principles on the Role of Lawyers, “Codes of professional conduct for lawyers shall be established by the legal profession through its appropriate organs, or by legislation, in accordance with national law and custom and recognised international standards and norms”.
In Sri Lanka, as in many other nations, legal ethics refers to the norms, standards, and principles that regulate the conduct of attorneys and legal professionals. The Bar Association of Sri Lanka (BASL) is a major body that regulates legal ethics in Sri Lanka. They generally publish a code of ethics or conduct that outlines the rules that lawyers must follow in their duties as attorneys. Moreover, the Supreme Court (SC) of Sri Lanka has developed its own set of guidelines, outlining the behaviour expected of lawyers under Article 136(1) of the Constitution, and these regulations were published as Rules in the Gazette (Extraordinary) on 7 December 1988. These rules frequently address a variety of areas, such as professional standards, client representation, conflicts of interest, confidentiality, and courtroom behaviour.
According to Section 40 of the Judicature Act, No. 2 of 1978, if an attorney-at-law becomes a client’s representative, he/she must have these key qualifications: Good repute, competent knowledge, and skills. Attorneys are supposed to represent their clients with diligence, skill, and ethics. This entails giving genuine advice, keeping information private, avoiding conflicts of interest, and defending their clients’ interests within the bounds of the law.
Rule 5 of the SC states: “An attorney-at-law may not refuse to act on behalf of a party or a person in any matter or proceeding before any court, tribunal or other institution established for the administration of justice or in any professional matter at his or her professional fee,” and also, if an attorney-at-law feels that if he/she represents a client, he/she will lose his/her professional independence, he/she therefore has the option of refusing the case without taking it.
This is known as the Cab Rank Rule (L. Deegalla's ‘Ethics of Lawyers: Legal Method’). If the client forces the attorney to provide fake documentation and evidence, or attempts to wangle an attorney, then the attorney can refuse to act as the client’s representative by SC Rules 6 to 13 which are exceptions to the Cab Rank Rule.
If a lawyer provides services to a client in an irresponsible manner, it violates their professional responsibilities. “When a lawyer carries out their duties in such a manner, the legal professional needs to be disqualified,” Gunaratne opined. The SC was given this authority under Article 43(1) of the Judicature Act.
If a client chooses a lawyer to be their legal representative, then the client is required to pay the lawyer’s fee and the attorney has no ethical reason for refusing that fee. When collecting fees, the attorney-at-law is supposed to follow SC Rules 27 to 30(b) including that the attorney-at-law can waive fees due to client poverty or hardship, but cannot use client funds for specific purposes without client permission, and must respect their trust for legal advice and representation. According to SC Rule 17 and as per the cases In Re Arthenayake, Attorney-at-Law (1987) and In Re Brito (1942), lawyers must behave with complete honesty in all their interactions with clients and should not take any undue advantages from their professional responsibilities.
Moreover, lawyers are required by professional ethics to offer their clients fair and impartial assistance. Lawyers guarantee that justice is not only served but also viewed as fair and unbiased by respecting ethical norms. Also, competent and diligent representation necessitates that lawyers maintain a high level of knowledge and skill to successfully serve those that they represent. Per the 16th SC Rule, attorneys-at-law must appear in court on specific days. Usually, only the lawyer can postpone his/her case if he/she is unable to perform his/her official duties. When justice is delayed, justice is denied.
Confidentiality is essential in ensuring that clients can provide highly sensitive information to their lawyers. SC Rules 31-38 and Section 126 of the Evidence Ordinance, No. 14 of 1895, point out the confidentiality of information. According to Section 126(1), the attorney-at-law or notary cannot disclose any communication made to them, the contents of any document that they have become familiar with, or any advice given to their client without their client's express consent, during their professional employment. Therefore, attorneys-at-law are required to maintain the confidentiality of the information provided by their clients. Because of this, lawyers must not reveal the details provided by the client or utilise the material for their gain.
The SC Rules 39-49 are specified about advertising and touting. The client experiences difficulties with their cases as a result of excessive advertising and touting. Using a tout to help an attorney is a matter that goes to the heart of improper discipline and professional misconduct, which the courts condemn, resulting in heavy penalties for delinquent lawyers. The In Re A.V. de Silva, Advocate (1934) case states that an attorney-at-law is not permitted to use brokers to find clients.
Attorneys often find themselves in circumstances where the client’s interests conflict with the lawyer’s obligations to another client, previous clients, or third parties, or even against the lawyer’s own personal interests due to the nature of the profession of law. This is referred to as a conflict of interest. The SC Rules outline some responsibilities of an attorney when there is a conflict of interest. According to SC Rule 58, an attorney’s own interests shall not conflict with the interests of his/her client, and as per SC Rule 57, an attorney must have no contacts or discussions with the opposing party. In the Indian case, Chandra Shekhar Soni vs. Bar Council of Rajasthan and Others (1983), an attorney who was defending one party in a case shifted sides and began representing the other side and the SC held that it was not proper professional conduct.
The attorney, in his/her capacity as an officer of court, is bound by SC Rules 50 to 55 with regard to the courts. A lawyer must support the court in the proper administration of justice without undermining the Bar's independence and a lawyer is not allowed to let their client mislead or deceive the court in any way.
Lawyers should conduct themselves with dignity and should adhere to the proper dress code when coming to court because it is crucial for a professional to show ‘professionalism’ in their attire. It is crucial to remember that in the legal profession, appearance matters. This does not imply that a lawyer has to drive a luxurious vehicle and wear expensive suits (Junior Bar Committee Induction Handbook for Junior Lawyers, 2022). If an attorney is not appropriately attired, they may lose their chance to present their case before a judge. The court attire of a Sri Lankan attorney is outlined in SC Rules Six to Eight.
Furthermore, an attorney is expected to treat fellow members of the Bar fairly, courteously, and with respect in all professional engagements as a member of the profession. When interacting with other members of the profession, a lawyer ought to follow SC Rules 56 to 61. These are the main rules and regulations of Sri Lanka that an attorney should adhere to when dealing with clients, courts, and other fellow members.
Recent claims against Sri Lanka’s legal profession present compelling examples of unethical activities within the legal profession. One important example is the BASL, where numerous office bearers, including a particular President and a particular Deputy President, have been accused of misappropriating money intended for an anti-corruption effort aided by the Japan International Cooperation Agency. According to reports, around Rs. 19 million of the Rs. 21 million allocated for the work was misused. This led to calls for a thorough investigation from the legal profession, highlighting the necessity of transparency and ethical leadership to rebuild the public's trust.
Challenges to uphold legal ethics
Conduct that violates ethics in the legal sector can have serious consequences. Regulatory authorities may apply disciplinary measures and professional punishments, leading to a destroyed professional image. Furthermore, ethical violations may contribute to the loss of clients and coworkers, and the trust of the public. Also, professional misbehaviour can potentially have legal and financial effects.
One important factor to examine is the presence of corruption and unethical behaviour in the judicial system. Bribery, nepotism, and cooperation with prominent parties are some examples of how this might emerge. When attorneys put financial gain over public interest, the entire legal system’s legitimacy suffers, as does public trust.
Another factor to consider is the affordability and accessibility of legal services. In Sri Lanka, like in many other nations, socioeconomic class frequently determines access to justice. Lawyers may favour profitable cases over pro bono work or affordable legal assistance, exacerbating the disparity between the rich and the underprivileged.
To overcome these difficulties, significant reforms are required at both the institutional and individual levels. Regulatory agencies must impose strict ethical standards and hold attorneys accountable for misbehaviour. Furthermore, legal education should highlight the value of ethical behaviour and inculcate a feeling of societal responsibility in future attorneys.
Furthermore, actions aimed at increasing openness, such as publicly declaring financial interests and conflicts of interest, can assist in reducing unethical behaviour. Encouraging a culture of integrity and accountability within the legal profession is critical for protecting the public's interests while respecting the values of justice and fairness.
Conclusions
Being an attorney is extremely noble, and it is important for both practicing and prospective attorneys to respect the profession and maintain their dignity. As lawyers are responsible for serving the society, upholding the law, and assisting in the maintenance of law and peace in the nation as a whole, they must carry out their responsibilities while adhering to the rules of ethics.
Ethics in the legal profession outweigh the financial benefits. Valuing ethical practices over financial incentives is critical. Maintaining standards of ethics not only fosters trust and integrity within the field of legal practice, but also ensures that justice is carried out impartially and fairly.
While financial gain may provide short term benefits, the long term consequences of violating ethics may reduce public trust, ruin reputations, and undermine the legal system. Every attorney can pursue success while maintaining the ideals and standards that characterise their noble profession by adhering to professional ethics. Therefore, it is clear that the goal of the legal profession is to serve the individual properly with justice, not to make money.