[Reader-list] Of lawyers and corporate scandals

[Amit K Agnihotri]

     Highly respected lawyer Abhishek Singhvi wrote in The Hindustan
Times, October 5, 2005, that he said at a seminar on business ethics
that it has become an oxymoron.  This article is a shining example of
how it is accepted practice that one's actions need not have even a
distant connection with one's words.  He lectures at great length
about the lack of ethics in business houses and about "the numerous
corporate scams and scandals litter the moral landscape."  Singhvi
gives the examples of Enron and Tyco.  But he forgot the biggest
recent one: Escorts, who he represented in the Delhi High Court. 
Since the case is sub judice, not much can be said, but it can be said
safely that the legality of the conversion of a charitable institution
into a profit making company and then its sale has been brought into
question.  The strong interim order passed by the judge Anil Kumar,
showed that not only did he quickly grasp the matter but actually
wrote:  "The acts committed by the defendants in creation of another
society, merger of two societies and thereafter floating a company
with limited liability and the new company giving loans to defendant
no.1 and pledging its assets for the loans given to defendant no.1 and
thereafter transfer of shareholding and assets to third parties,
require adjudication and investigation."
     Instead of writing about the ethics of business, it would have
been more appropriate for Singhvi to address the ethics of lawyers. 
Yes, every citizen has a right to defence.  And many lawyers justify
accepting any brief with that reference.  But, there are multitude
cases where lawyers refuse a brief on one pretext or another.  Can we
forget that when Kiran Bedi stood by the principled belief of standing
by her constable who hand cuffed a lawyer in 1988, there was no lawyer
willing to represent her?  The same lawyer who gave legal opinions to
a businessman and told him what he wanted to hear:  that it is legal
to convert a charitable institution into a profit making company,
knowing full well that it is questionable, also ensures a steady
income when he represents that client to defend that doubtful legal
opinion.  We now learn that wily, slimy businessmen often shop for a
lawyer who will give them the twisted legal opinion that they need, to
do what they want to do, rather than what is strictly the law.
    Get this.  Singhvi writes:  "We have also avoided addressing
unpleasant issues like the role of professionals (especially
accountants and legal advisors).  Ancient jurisprudence described them
as 'bloodhounds'.  Slowly, case law started using the milder term
'watchdogs'.  Recent corporate scams have led them to being described
as 'lapdogs'.  Enron and Tyco could not have occurred unless these
professionals "cooked the books with a flair and a zest which would
put the chefs at Taj Hotel to shame"."  Right.  Do we have to wait for
the press to inform the distinguished lawyer where all these facts
also apply?
     No doubt, this will make many a lawyer squirm at the unfairness
of judging a lawyer for accepting a brief that contains illegal
actions.  Isn't that what lawyers are suppose to do?  But is it?  It
is debatable, at least.  The Bar Council of India, states in it Rules,
Preamble, Chapter II, Standards of Professional Conduct, Section I -
Duty to the Court:
"An advocate shall refuse to represent the client who persists in such
improper conduct. He shall not consider himself a mere mouth-piece of
the client……………."  A lawyer cannot absolve himself of endorsing
illegal acts of the client.  Okay, he can, but should he then
virtually in the same breath write and lecture on "declining
morality"?   He should have added: "and increasing hypocrisy".
     Every lawyer's first and foremost loyalty is to uphold the law of
the land.  That is his stated dharma.   There are lawyers and there
are lawyers.  There is a large section of senior lawyers who are
honest and are known to refuse cases that hit against their
conscience.  Examples of many such cases have been reported, where
briefs have been refused even when they come from the government in
power.  And there are those lawyers in a minority, whose doors are the
first ones knocked at when you have run over and killed seven people,
who can turn witnesses hostile and then morph a BMW into a truck.  The
actions of such lawyers attack and destroy the basis of Indian law.
    Singhvi wrote:  "Unlike the US, we forget the mandate of the
'Doubter's dictionary', which defines ethics as 'a matter of daily
practical concern, described glowingly in commercial terms by those
who intend to ignore it.'"  Exactly.  Daily, practical concern.  One
presumes Singhvi is attempting to use a quotation from The Doubter's
Companion (1994), known as the devil's dictionary, written by Canadian
philosopher and writer, John Raulson Saul.  So, let me continue to
quote Saul:  "So much credence has been given to essentially silly
ideas, such as we are driven by self-interest, which would really make
us hardly human at all, but mammals and nothing more.  Obviously, what
makes us most interesting is our ability to live with uncertainty and
our ability not to slip into either/or views of the world.  You cannot
help but debunk a lot of the theories that have developed over the
last 20 to 25 years.  They are dependent upon us accepting the idea we
are a frightened people driven by self-interest."
      Saul says citizens have more choice than they are led to believe
and the aim of his book is to demonstrate this.  "People feel they
only have two choices," he says, "the head and the heart.  One is the
instrumental, hard-nosed thing, and the other is the marginal,
romantic, idealist thing. Well, that is not a choice.  The point is to
show people they have these qualities they can use.  For example,
ethics is really very practical, but it isn't good enough to be right.
 It also has to work; otherwise, it is just good intentions, and then
it is romantic.  That doesn't mean it's easy and pretty."  A lawyer
can act as an officer of the court, that is, choose to stand up and
protect the Law or he can be a taxi for hire.
     Singhvi ends his article reminding us of Mahatma Gandhi's demands
for public character.  While invoking Gandhi, it might serve him well
to remember that it was Gandhi who defined his job as a lawyer in
South Africa, when he refused to defend a client who turned out to be
a liar and told the judge so.  Gandhi was also brilliant enough to
realise a mistake and was intelligently flexible enough to change
track as he evolved.  Singhvi ends his article with a plea to
reconstruct our morality and reminds us of Gandhi's itemized seven
deadly sins:  "He listed them as politics without principles, wealth
without work, business without morality, education without character,
pleasure without conscience, science without humanity and worship
without sacrifice.  We have covered some parts of the journey but many
miles remain."   There are millions of lawyers who take that journey
every day by working on cases that support their conscience.
     Gandhi always led by example and action.  Now it is time for
Abhishek Singhvi to walk his talk and cover the miles that remain.

Thanks
Amit Kumar Agnihotri