POV: Lawyer asserts that lawyers are not liars
FIRST things first. What is law? The law is a large body of rules and regulations based mainly on general principles of justice, fair play and convenience, worked out and promulgated by governmental bodies to regulate human conduct. Simply put, a law defines what is and what is not acceptable conduct. It is what tells us what we, as a society, have accepted to be right or wrong.
A lawyer is someone trained to navigate the inroads of law, give legal advice and maintain the sanctity of the law. Accordingly, lawyers have three principal obligations: to keep their client’s confidence; to advocate zealously for their clients and conduct themselves as officers of the court in which they are admitted to practice.
This last duty is of particular recognition because it serves as a check against any unsavoury requirements of the first two. Lord Denning MR puts it this way, “while they have a duty to represent their clients, they also owe allegiance to a higher cause. The cause of truth and justice… [the lawyer] must disregard the most specific instructions of his clients if they conflict with his duty to the court.” Technically then, a person who identifies as a lawyer but lies on the job is akin to a malfunctioning robot.
If this is true, then the definitive attribute of a lawyer cannot be “liar”. Why then does this description persist? It could be the case of a few bad apples, but more likely, it is that the understanding of lawyering among the learned differs from the same understanding among laymen.
To a layman i.e., one who does not belong to the profession lacks specialised knowledge in the same and therefore is not skilled at manoeuvring the labyrinths of the law, what a lawyer understands as the rudiments of practice, the layman interprets as wrongdoing.
Two common instances where the esteemed maestros of the maze have been accused of being lawyers are addressed below.
Lawyers defend guilty persons
The principle of the rule of law is to the effect that all are equal before the law, and the law is deemed to apply to everyone regardless of age, gender, social cadre, innocence or guilt. Flowing from this, there are two important factors to recognise when it comes to defending an accused person. The first is the presumption of innocence principle and the second is that all persons, even the manifestly guilty, are entitled to a defence.
The first principle is to the effect that every accused person is presumed innocent until it can be proven beyond our emotions, impressions and assumptions that he/ she is guilty. This ensures, to an extent, that personal biases are not the foundation for a guilty verdict. The second gives a defendant an opportunity to tell his side of the story and present facts and circumstances to prove his innocence or inspire mercy, and thus mitigate the sentence. Without the first, the innocent may be unjustly punished and in the absence of the second, the criminal justice system would amount to a tire-burning exercise.
In these cases, each lawyer has a duty to discharge. The burden to prove that the accused is indeed guilty of the offence charged lies with the prosecution because the accused is presumed innocent until all elements of the crime are established with evidence. The accused does not have to prove his innocence. The lawyer for the accused is required to highlight the gaps in the prosection’s argument and present the facts for the best outcome for his client.
When a lawyer defends an accused person, he is not implying that he/she believes in their innocence, he is only ensuring that the accused is tried according to the law and that all the ingredients of the offence are proven before due punishment is meted out.
To some, this may be called lying, because according to them, “the lawyer knows that he is guilty”. The truth is, the accused may very well be guilty, but that’s the job.
Section 36(5) of the Constitution provides that, “every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty”. Furthermore, the Criminal Code insists that anyone accused of a capital offence has a “right to have his defence conducted by a legal practitioner assigned by the Court if he was unable to afford the services of one”. By virtue of these two provisions, defending an accused person is, not lying, but upholding the law.
Lawyers lie to save their clients
To properly address this issue, we must speak of “truth”. And in the famous words of Pontius Pilate, “What is truth?” In Peter Murphy’s Practical Guide to Evidence, an interaction between a judge and a barrister is recounted, “A frustrated judge in an English (adversarial) court finally asked a barrister after witnesses had produced conflicting accounts, “Am I never to hear the truth?” “No, my lord, merely the evidence” replied the counsel.
Within the ambits of the law, evidence is truth. Evidence has rules and it is the application of these rules to the facts and issue in question that determines the culpability of a person.
Lawyers, therefore, are persons who know how to navigate the hallways of evidence to produce solutions within the ambits of the law. To establish then that a lawyer lied, you must understand the rudiments of evidentiary proceedings.
Many assert that lawyers lie well because they know the law, but it is precisely because lawyers know the law that they are less likely to lie. Technical loopholes are not lies. Navigating the hallways of evidence to build a favourable case is not lying.. To lie is to say something that is not true according to the facts, and a lawyer can be sanctioned, suspended or even debarred for lying or the falsification of evidence, so generally, lawyers are not quick to risk their bar credentials for a client.
Although there are some lawyers who “lie with style”, it is typically the case that what is consistently understood as lying by most persons is simply an ingenious application of the law, based on this one understanding; Law is a game of evidence, not truth, and the best lawyers are not those who lie as easily as they breathe, but are more accurately described as creative problem solvers.
Conclusion
The idea that a lawyer is a liar seems to arise from the understanding that a lawyer’s duty is to misrepresent facts to suit his client so that he can win at all costs, typically for pride or monetary reasons.
Since lawyers know that this is not true, and this understanding is rampant among laymen it seems then that this says more about what others want in a lawyer than it does about what lawyers actually do.