An admission of guilt
As practising lawyers, we tend to do our best to serve our clients, offer constructive criticism, and over and above this, to act in pursuit of larger institutional goals. But we do so whilst walking a tightrope, and in making sure that our choice of words is deliberate and as palatable as possible to those who may take offence easily.
We live in peculiar times, where the Supreme Court is being accused of trying to force a chief justice of a high court to accept an ad hoc appointment against his will, where a Supreme Court judge writes an atypical note objecting to his exclusion from benches, alluding to larger questions of groupings and the politics of constituting benches, and where repeated allegations of partiality are levelled by the bar and public at large in relation to dissimilar treatment in similar cases.
Many may have already guessed as to what is being alluded to, whereas others may be wondering as to why I have not been more explicit. The former would understand why I have been somewhat cautious, whereas the latter would do well to realise that there is no greater regulation of free speech than self-regulation. And this is exactly what I am compelled to do.
Unfortunately, no matter how much or how vehemently many of us would like to state the obvious, pinpoint the ridiculous, or highlight the theatre of the absurd that plays out every other day, we are consigned and resigned to saying something, but not everything, in consideration of our personal interests.
No matter how much lawyers would like to state the obvious, certain considerations come in the way.
This self-regulation stems from the fusion of a variety of considerations. Firstly, there is a real fear amongst many that bold statements in public forums may upset judges before whom we are to appear. Unlike many third-party readers, these judges may not believe that the expression of opinion was anything but an implicit or explicit attack on their person or their institution. And if one does succeed in upsetting a judge, or multiple judges, there is a fear that this may give rise to adverse consequences in court, such as a difficult time during hearings, adverse remarks or orders for one's clients, and a general lack of consideration towards one's pleas.
This is not to say that this would in fact be the case, because as many of us have witnessed first-hand, many judges can take criticism, and even if they cannot, they can certainly adjudicate impartially despite not liking a lawyer. But the concept of self-regulation stems not from what is the probability of something happening, but rather from the mere possibility of it.
Secondly, self-regulation is also practised on account of a fear of penal consequences, which amongst other things, may be in the form of contempt notices being issued. Again, in relation to this, the mere issuance of a contempt notice may not be as much a deterrent as the fear of one's stature being belittled openly in court, regardless of whether that actually happens or not. Other than that, the lawyer may have his licence suspended, or worse, revoked altogether. Although these may seem like distant possibilities, let us not forget that the possibility of losing one's source of livelihood, coupled with the burdens of meeting one's personal standards of living, can be a great motivator in convincing oneself to merely think something but not say it.
Thirdly, whether we like it or not, clients prefer a lawyer who is non-controversial, who is liked by the judges, and who is reliable in terms of appearances and advocacy. No one wants that lawyer who is brilliant but unavailable, audacious but preoccupied, aggressive but dogged by controversy, and intelligent yet not taken seriously in court. In fact, if the past is anything to go by, lawyers who have been involved in controversial activism are often more likely to be passed over, not because they are not good, but because they are 'politicised'.
When you put all these things together, most lawyers will have to either tip-toe around the issues they want to talk about or forgo speaking about them altogether. However, such self-regulation can only be considered preferable to a certain extent. Once the controversies or perceived injustices become all too real and apparent, once lawyers start feeling that the differences on the bench and the politics of it all are directly affecting their credibility and ability to pursue their professional responsibilities, there may come a point when even those who self-regulate their speech feel compelled not to.
And it appears that that point may be closer than we think. The recent speeches and messaging of the bar at conventions, on social media, and through bar resolutions, should indicate to the powers that be that something is amiss. When bar representatives start openly discussing the apparent divisions in the Supreme Court and the lack of regulation of their powers, and start raising questions about judicial appointments and elevations, with the decision-making process itself becoming a source of controversy, it becomes apparent that the traditional barriers to such conversations, or the boundaries of selfregulation, have started to give way to the hard and difficult conversations which would have otherwise not taken place.