Liars And Lawyers: The Place Of Lying In Lawyering

INTRODUCTION
The life of the law student and the lawyer are similar in at least two respects. First, both the law student and the practicing lawyer enjoy prestige among the members of society. Law students are among the very few students held in high esteem on campuses just for the prestige of what they study. Practitioners are not treated differently in this regard. They are accorded much respect in the society. For it is thought as expressed per Ansah and Anin Yeboah JJSC in Henry Nuertey Korbea v. Francis Amosa [1] that the “Legal profession is perhaps the most honorable profession in the world and has for centuries seem to be so.” It is perhaps this aura of respectability and prestige that has influenced the assertion that:

“… certain occupations requiring public vows of faith or purpose should become known as professions. Originally there were three: Medicine, Law, and Theology. They were dignified by that title and set apart from other occupations because they were more than a livelihood; they represented a calling to some higher satisfaction than a commercial gain. Further, having high purpose, there was the promise of intellectual direction and occupational skill.” [2]

Notwithstanding the prestige lawyers and law students enjoy, they suffer from an unpleasant tag as far as their reputation is concerned. Their reputation has been tainted. They are said to possess or are rather trained to possess some serpentine attitude: the mastery of lies. This is the second sense in which the two categories of people are similar. It is this latter similarity which concerns me in this paper. I seek to challenge the notion that lies make the lawyer and that mastery of lies makes the good lawyer.

I find the task I assume here not different from that earlier assumed by Lonnie T. Brown, Jr especially as our missions seem to converge. He puts it this way:

“My mission as a teacher of legal ethics is to counteract this negative conceptualization of lawyers by emphasizing the nobleness of our profession, as best demonstrated by the enormously unique power and opportunity that we possess to serve and protect the public welfare, in pursuing our private clients’ interests and otherwise.” [3]

While he sought “to counteract this negative conceptualization of lawyers by emphasizing the nobleness of our profession ….” with regard to mine as a student of the law, my mission is to embark on an exposé, playing the role of an undercover investigative journalist. To be fruitful in this, I will be providing arguments not only to counter but, more importantly, to project the glaring contradictions in the characterization of lawyers as liars.

In this paper, I take two things for granted, one being who a liar is and the other, who a lawyer is. At best, I beg the question by saying that a liar is a person who lies; a person who conceals the whole or part of the truth or the fact of an event. And a lawyer, to paint a graphical image of him, as someone who is “essentially a court-room lawyer” [4] – the barrister - or a person who “essentially an office lawyer” [5] – the solicitor.

The paper is divided into three parts. Part I deals with the notion or the bad tag ascribed to law students and lawyers and what that means. Under Part II, attempt is made to trace and understand the source of this attribution to the legal profession. The final part – Part III – contains three arguments which reflect the glaring contradictions and also counter the notion in question.

PART I - Lawyers, Sons and Daughters of Machiavelli

Lonnie T. Brown, Jr opens his piece, “Lawyers” Not “Liars” with an interesting encounter; an experience which, I think, is not new to lawyers and law students. This is how he told his story:

During the summer of 1998, I met a gentleman named Delroy Sheriffe. My wife and I were vacationing in Jamaica, and Delroy was the head bartender at the hotel where we were staying. Over the course of our weeklong visit, we got to know Delroy quite well, and he shared numerous entertaining tales with us. His most memorable comment, however, was uttered in response to my telling him that I was a lawyer. In a heavy Jamaican accent, Delroy mockingly proclaimed: “Ah, a lawyer! I tell you the truth and you tell lies for me.” Although this statement was surely made in jest, it was apparent to me that Delroy really believed that his characterization of an attorney’s role was accurate. [6] [My emphasis].

My encounter with an academic is no different. When I informed him that I had been offered admission at the School of Law, University of Ghana, Legon, his response sincerely surprised me. It was not because I had not heard similar comments before but my surprise was due to the fact that a person in such a reputable academic community who has attained an enviable stature in the community and beyond could espouse such a view. He said to me: “You want to join the liars, right?” [My emphasis]. It was then that I realized how the notion has become not just an easily saleable commodity but also well patronized among the rank and file of the society.

The above notion presupposes this: that the moment an individual decides to read or practice law, such a person must think of and look forward to using Machiavellian ploys such as deceit. If he is a person of generally good character, he must start getting rid of them as soon as possible. For the worse the character he possesses, the better it would be for him in the legal profession. And if he already possesses bad character before his quest to read or practice law, then he must be very well prepared long ago for the appointed time. For him, we can be sure he will not face any difficulty at all.

Concerning the aforementioned, it appears that the reason for holding this view stems from the belief that only those who possess the capacity and potential for telling lies are those capable and fit for practicing law. Lying then is considered a necessary, not a contingent or coincidental, condition for practicing law. It is an indispensable skill in lawyering, mastery of which can or does make a good lawyer. This is because “men are so simple, and so much victims of circumstance that the deceiver (being the lawyer) will always find someone ready to be deceived.” [7] In line with this, desiring to learn and practice law, one “must know how to colour one’s actions and to be a great liar and deceiver.” [8]

Lawyers are, consequently, regarded by this section of the human populace as witty cons. They are said to be well versed in the act of throwing dust into the eyes of people, after all they have been trained. Yet these people, unfortunately not born of the immaculate Virgin Mary but the notorious schemer, Niccolò Machiavelli, are the role models that a good number of law students desire to emulate. As a result, the law students adhere to the advice of Seneca:

Choose a master whose life, conversation, and soul-expressing face have satisfied you; picture him always to yourself as your protector or your pattern. For we must indeed have someone according to whom we may regulate our characters; you can never straighten that which is crooked unless you use a ruler. [9]

Following this advice, law students use this rule (lawyers), regarded by society as the most crooked of all people, to straighten themselves. Serpentine as lawyers are, their paths cannot be straight though they themselves appear to be straight. Therefore for law students to use them as rule means they (the law students) would be emulating the crookedness of their trainers. The caution then is that people of conscience and integrity, who are ethics conscious and truth loving must pursue professions other than law. Otherwise they will be dead to conscience, integrity, ethics and truth.

To a section of the public, the statement that “A lawyer owes a duty to his client to be honest, skilful and careful …” [10] coming from the bench must be treated with suspicion. Honesty is far a virtue to be cultivated by the lawyer. To be skilful, that the lawyer must be, certainly in employing deceit and other unscrupulous acts in his endeavours. Skill without care is dangerous to his survival, it is thought. He must be careful in the use of dishonesty and unscrupulous skills not to be caught. This group would hold Oliver Wendell Holmes to in contempt of truth when he said that “When we study law we are not studying a mystery but a well-known profession. We are studying what we shall want in order to appear before judges, or to advise people in such a way as to keep them out of court.” The reason being that, to them, what we study is nothing other than lies or how to tell lies. Same goes to Megarry when he remarked:

Nobody can become a solicitor [lawyer] without passing formidable examinations and undergoing a period of apprenticeship. [That] These alone guarantee a real degree of competence. The difficulty is that law, and the practice of law, are indeed difficult – difficult and complex. [11]

The populace opinion is that examinations are mere formalities and apprenticeship, the baptismal period – the period of initiating the student and equipping him with lies, the requisite lawyering skills. Unlike Megarry, what guarantees “a real degree of competence,” in the populace view, is the mastery of unscrupulous acts, lying being atop of all such acts. “Law and the practice of law” cannot be difficult if one is well-versed in act and art of lying.

In consequence of all the supposed perverted ways of lawyers, though the wages of sin is death for all humans as Christians believe, the experience of lawyers is more than just death. This is found in the time-honoured mystery that they (lawyers) are buried upside down with their eyes opened. Of course, they must be made to see the hell-fire that awaits them even before they are placed in there for their evil ways.

I would like to say a word or two about this well patronized perception about lawyers and that is that perception is but a misconception. A number of reasons account for this misconception. We may cite hearsay, lack of knowledge about the task of the lawyer, and, more importantly, litigating about what appears to be “obvious” to perhaps all and sundry in the society. On these issues, I shall return shortly. But for moment, let us look at the source of the attribution of lying as an appellation to lawyers.

Part II - The Attribution and the Source
A critical consideration of the genesis of this thought about the profession in question is necessary. My submission with regard to this is that the attribution of lying as an appellation to lawyers stems from the act of sophistry, very well practiced in ancient Greece (especially Athens). Sophistry in Athens was a practice of using artfully reasoned arguments that appeared true in favour or denial of a matter. However, in reality, the arguments were nothing more than falsities. The sophists (from the Greek word hoi sophists, ‘‘the wise’ [12] ) argued and also taught their students that any issue, no matter the subject area and notwithstanding the complexities of it, could be reduced to the portrait of a coin having two faces – head and tail - and argued in either way for a win. What essentially fueled this kind of behavior has been noted by Ackah in the following remark:

“The dominating role of democratic politics in the life of the adult male citizen [in ancient Greece] has resulted in a highly utilitarian conception of the good life as the ability to succeed in the public domain. Rhetoric – the art of public persuasion – is the critical component of Sophist education; its key element is argumentation or eristicism (from ‘eris’ the Greek for ‘strife’ or ‘competition’). Eristicism is used for generating antilogies on any conceivable issue. That is to say, by argument the Sophist can demonstrate that the worse is better, that the shameful is honourable, etc., and vice versa. Consequently, a debtor trained in eristicism can prove that he does not owe [even when he in fact does] and that no one could tell a lie etc.” [13]

He continues to say that “Eristicism naturally gives rise to sophism or sophistry, a method of argumentation that is seemingly plausible though actually invalid and misleading, often employed as a trick for winning argument.” He gives this as an example of the Sophists’ line of argument: “That dog is a father. That dog is his. Therefore that dog is his father.” [14]

The aims of the sophists in offering persuasive yet deceitful arguments were for simple ends: to obtain money and acclamation. [15] On this, it must be borne in mind that the quest for financial gains and fame is not lost to men and women exercising professions, trade or vocations of different kinds in modern times. Some even engage in unscrupulous activities to reach such ends and some legal practitioners are caught squarely in this. With respect to fame and financial gains, the following remarks have been passed by the Ghanaian bench.

“Of late the courts are inundated with ill prepared initiatives by counsel whose only motives are to hit newspaper headlines by any means or be seen to be carrying out the mandates of their unsuspecting and/or misinformed clients or simply for undeserved financial gain. The result is the spate of unwarranted actions, writs, motions, petitions and appeals to cite but a few, which are hardly initiated in strict compliance with the procedure rules.” [16]

For the pursuit of money and acclamation, Socrates, Plato and, later on, Aristotle charged the sophists of being greedy, adding that they compromise morality. [17] It is this reputation of treachery, sham and façade of the sophists that is being transplanted onto the field of law. What might have influenced this transplant of the sophists’ ill-reputation seems to be the fact that both sophists and lawyers do engage in argumentation.

It is a truism that a cardinal vehicle upon which the law and lawyers thrive on is argumentation. Argumentation produces diversity of thoughts, ensuring that only opinions that can withstand the tempestuous storm of opposing thoughts stand. It further guarantees that the views accepted have been tried and tested and that such views are the best and preferred among the available alternatives. On the essence of argumentation in the legal practice, Ronald Dworkin observed as follows:

“Legal practice, unlike many other social phenomena, is argumentative. Every actor in the practice understands that what it permits or requires depends on the truth of certain propositions that are given sense only by and within the practice; the practice consists in large part in deploying and arguing about these propositions. People who have law make and debate claims about what law permits or forbids that would be impossible— because senseless— without law and a good part of what their law reveals about them cannot be discovered except by noticing how they ground and defend these claims.” [18]

It must thus be said that any attempt to clothe lawyers with the ill reputation of sophists on the sole ground of argumentation is simply untenable. In what follows, I provide the justifications for this claim.

Part III - The Arguments and Exposé
I. The Omniscient Man
In the eyes of many people in our society, lawyers appear to be playing the role of God which is to say that they, lawyers, act as if they are all-knowing. This is evinced by the very work they do. They handle election petitions even when they themselves have not contested elections before. They argue cases involving contracts for the purchase of one item or the other. They participate in litigation involving football. Even in maritime cases, they are there. Once the matter is justiciable, [19] you will see lawyers arguing in court or playing some other role for its determination.

This makes one wonder whether lawyers seem to be suggesting that they are actually omniscient. And the question that follows is this: ‘are they really all-knowing?’ Put differently, ‘do they know anything about everything or everything about anything?’ The society, thus, smells a rat as far as the work of the lawyer is concerned and this deepens the notion that lawyers are liars. It is thus not surprising to have come across a piece written by one of my law lecturers who said he was once provokingly asked “what does the lawyer know about salmon?” There is no doubt that this question was meant to cast doubt on the lawyer’s knowledge of salmon.

Salmon, a fish, is used, here, as a variable as understood in mathematical term. Any other thing can therefore take the place of salmon. It is thus anything or every other thing. Depending on the case or the situation, the salmon may be sawmill, chieftaincy, politics, manufacturing, inheritance or succession, citizenship, just to mention a few. The list is so long that a claim by any person to have knowledge and to be able to deal with all these things must either be regarded as falsehood or an attempt to play God, acting as an omniscient man. Such a claim must necessarily excite the suspicion of the public.

However, in the above lies the misconception about the work the lawyer is trained to do. It must be made known that the training of the law student and for that matter task of the lawyer has nothing to do with anything apart from the law. To iterate the point just made, the law student’s training and the lawyer’s task are not about politics, chieftaincy or sawmill per se, they are, in fact, simply about the law. Therefore the law student, the future lawyer, is trained to know how to research for the law as it applies to specific things say lending and borrowing, crime against humanity and war crimes among others. So he is taught the law of torts, contract, succession, mortgages etc. so that in future when a case is brought by a client, he will identify the appropriate cause of action, [20] the applicable law and its resolution.

To make the point sink, let us take this case study. X is a surviving spouse of Y. In Y’s lifetime, they were tenants [21] of Z. Y dies intestate (that is, without making a will). [22] A week after Y’s demise, Z, the landlord, then ejects X from the matrimonial home. Let us say X and Y failed to pay their rents when it was due.

On this set of facts, one must be sure of having divided opinion even among lay persons, by which, I mean people without legal knowledge. We may find one group arguing that the landlord was right in ejecting X for the non-payment of their rent when it was due. They would add that the landlord is a business person whose interest is to make some gains from the investment in putting up the building. His motive in putting up the building is a far from engaging in surreptitious acts, they will further add. They will, finally, rest their case on the legal parlance pacta sunt servanda [23] , albeit unknowingly by arguing that promises or agreements are not meant to be broken but to be kept.

On the other hand, we may have those who will say that the landlord should have tempered justice with mercy. No doubt X owed but the circumstances demanded a human face to the matter. The deceased spouse, for instance, may be the breadwinner. The landlord should have notified the surviving spouse of what he intended to do. All in all, people on each side of the divide may find justification for their position. But our lay persons need not have suffered the fate of X and Y or be in the position of Z to be able to offer opinions and justifications for their stance. In essence the validity of their justifications is not dependent on a prior experience of the situation at hand.

What does the foregoing mean for us? Firstly, that the lawyer need not to have experienced the situation before he can offer legal advice or opinion or represent a party in the matter. Secondly, the lawyer is to live above the public opinions and sentiments and look at what the “law has decreed” about such a situation at hand. For it is written:

“We live in and by the law. It makes us what we are: citizens and employees and doctors and spouses and people who own things. It is sword, shield, and menace: we insist on our wage, or refuse to pay our rent, or are forced to forfeit penalties, or are closed up in jail, all in the name of what our abstract and ethereal sovereign, the law, has decreed.” [24] [My emphasis]

Thus, whatever the salmon is, the lawyer is to research for the law as it applies to it. Once again, he does not need to have experienced the salmon. What he ought to do is to research for the law concerning the case – the salmon. He will then, for instance, look at whether the law has been complied with. If not, he will then make a judgment of his own that there is a cause of action. This done, the lawyer may frame the case of his client on grounds of breach of natural justice for not giving his client an opportunity to be heard before his dismissal or on breach of contract for not delivering the goods his client requested or the that the statutory period allowed before ejecting a bereaved spouse has not been complied with.

The importance of this must be recognized because “law”, as Justice Aharon Barak of the Supreme Court of Israel has noted, is “a tool designed to realize a social goal.” [25] We must also not forget the fact that “we live in and by the law.” The law is ubiquitous. In other words, it is omnipresent; it is everywhere. And it concerns all things. Taking cognizance of this, Dr. Raymond Atuguba remarked:

The second obvious, but often unappreciated, fact about law is this: everything that is done within a state is required, permitted, condoned, discouraged, or not permitted by some law or other. In other words, we often look to the law for the legitimacy or otherwise of our actions and inactions. The payment of taxes is required by the law; demonstrations are permitted by the law (there were times in this country when we needed permits to go on demonstration); adultery is condoned by the law (it is not a crime in Ghana); prostitution is discouraged by the law (although prostitution is not illegal, living off the earnings of a prostitute is illegal and what better way to discourage a practice than this); and murder is not permitted by the law. Everything from worshipping God (there are laws that regulate worshipping centres and institutions, and there was a time in Ghana when certain churches were banned from operating) to the tiny ant (there are laws that regulate animals and wildlife) are affected in some way by the law. [26] [My emphasis]

Now to the all-important question: “is the lawyer an omniscient man?” The response to that question must certainly be in the negative. In any attempt to trace the genesis of this notion of omniscience, what will become evident is that the ascription of omniscience to the lawyer stems from the very nature of law. The law undoubtedly concerns all things “known” to human beings. And it is the task of the lawyer to know the law or know where to find the law which concerns these things. Since the law concerns all things, the laws of which the lawyer ought to know or research as and when different cases are brought by his clients, the lawyer is deemed knowing all things.

In sum, it is in fact a misconception to claim that the lawyer knows all things. Rather, it is the law that concerns all things. His task then is not to know all of these things per se but he ought to know or to be able to research for the law that concerns these things.

II. Perspectives and Interpretation
Perspectives matter in law just as they do in our daily lives. One person may see water halving a glass as the glass being half empty. Another may report same as being half full. All this borders on perspectives and interpretation. Essentially, both observers of the water in the glass have said the same thing, the only difference being the expressions they used. For to be half full is to be half empty and the veracity of the inverse is indubitable.

In the light of the above, if we were to accept the mathematical teaching on approximation, we would not be correct to say that a half full glass is half empty. For the principle under approximation is to run the number to the nearest tens, hundreds, thousands etc. That being our rule, our law, we cannot but to conclude that a half-full glass is full. What this means is that situations in normal life and our expected conclusions to arrive at from them may differ on applying certain principles, rules and laws as we have just seen with the half-full glass of water.

Another point worthy of note is that because we are all not the same, we tend to see things differently. Even at time, when it appears that we are agreed on the matter, problems arises when we seek to be accurate. On this point, Betrand Russell has made some useful remarks when he wrote on The Problems of Philosophy. He had this to say:

“In daily life, we assume as certain many things which, on a closer scrutiny, are found to be so full of apparent contradictions that only a great amount of thought enables us to know what it is that we really may believe. … To make our difficulties plain, let us concentrate attention on the table. To the eye it is oblong, brown and shiny, to the touch it is smooth and cool and hard; when I tap it, it gives out a wooden sound. Anyone else who sees and feels and hears the table will agree with this description, so that it might seem as if no difficulty would arise; but as soon as we try to be more precise our troubles begin. Although I believe that the table is 'really' of the same colour all over, the parts that reflect the light look much brighter than the other parts, and some parts look white because of reflected light. I know that, if I move, the parts that reflect the light will be different, so that the apparent distribution of colours on the table will change. It follows that if several people are looking at the table at the same moment, no two of them will see exactly the same distribution of colours, because no two can see it from exactly the same point of view, and any change in the point of view makes some change in the way the light is reflected. … It is evident from what we have found, that there is no colour which pre-eminently appears to be the colour of the table, or even of any one particular part of the table—it appears to be of different colours from different points of view, and there is no reason for regarding some of these as more really its colour than others.” [27] [My emphasis].

The foregoing sheds light on why there are various denominations of Christianity with varied and at times opposing dogmas or doctrines. One can cite numerous examples but at least one will suffice. The issue of trinity i.e. whether or not there are three persons in one God has remained, for many years, an unresolved ‘debate’ in the Christendom. For the Catholic Church on one hand, belief in trinity is cardinal in their scheme of things. They therefore maintain that:

“This is the true Christian faith, that we worship one God in three persons and three persons in one God without confusing the Persons or dividing the divine substance. For the Father is one Person, the Son is another and the Holy Spirit is still another, but there is one Godhead of the Father and of the Son and of the Holy Spirit, equal in glory and coequal in majesty.” [28]

This is what Jesus Christ meant, for them, when he said “I and my father are one.” [29] They are one and the same.

Directly against the teaching of three persons in “one Godhead” is the Jehovah Witnesses, who preach that the three persons are separate and that any teaching with respect to conjoined persons as trinity is not only unbiblical but also a misconception. The declaration that “I and my father are one” meant that Jesus Christ and his father, God, only share some identical characteristics. That by no means mean that they are one and the same.

So, we see that the Bible is one and that the various versions of it are in substance not really different as, in the main, any difference will be textual. However, when a number of clergymen are given same text to preach with, we must be sure of one thing: different interpretation of the Word of God. These problems of perspectives and interpretation are equally faced in the legal arena.

Like the Bible, legal documents say constitutions, statutes etc. are made up of text. Some of these texts are to guide our conduct so that we adhere to certain prescribed obligations or refrain from those acts proscribed. Others make us aware of some benefit or rights conferred on us and the processes to follow in securing them whenever we are denied them. These textual provisions are, more often than not, intended to be applied to various foreseeable situations that may arise in our ordinary lives. What law students are trained to do, which lawyers in fact do, is to apply these provisions to situation. Since we are all not the same, for which reason we may espouse different views about many things, lawyers too may be divided on, among other things, whether or not the provisions of a law are applicable to a case or whether its meaning is just one thing and not another.

So then regarding wills for instance, Striggner-Scott J has observed that

“They [Lawyers] try in the best way they possibly can to express the intention of their clients in their own chosen words. In some cases their choice of construction may coincide with the exact intentions of a testator whose will they draw up, and in other cases they may fall short of the intentions sought to be generated.” [30]

Now, the problem in all this is that it is commonly mistaken that the court is after what the society will term as the ‘truth’. Truth, it must be said, is relative. The question what is truth has occasioned a long debate for philosophers, which has received no universally approved and accepted definition. Operationally and to the layman, the truth is reporting the situation as it is or exists. So we may say that the truth is that X took the pen without the owner’s (Y) permission. This being the case, X may be guilty of a charge of stealing in the public’s view. What is forgotten is that stealing is just one of the many reasons for taking another person’s property without that person’s authorization. X may have taken the pen to ensure its safe keeping or even to prevent it from being stolen by another person. It is here that the lawyers and the courts come in to determine whether X, in taking the pen, really intended to steal it. In Ghana, for instance, merely taking another’s property without his permission does not amount to stealing. The law provided on stealing in section 125 of the Criminal Offences Act [31] is that “A person steals who dishonestly appropriates a thing of which that person is not the owner.” The following as stated in the case of Lucien v. The Republic [32] must be proved to the court: “(i) the person charged must not be the owner of the thing stolen, (ii) he must have appropriated it and (iii) the appropriation must have been dishonest.” Any of these requirements lacking means that X cannot be said to have stolen although he might have taken the pen. What matters is not the taking of the pen per se but the prosecutor proving these elements of the law.

The situation as it exists – what we usually call the ‘truth’ - as seen from the case of our friend, the pen taker, is not enough. The laid down elements of the law must be proved. And that is exactly what justice according to law, justice based on what the law has said pertaining to some situation is the one and only thing the courts exists to do and which is different from justice according to the some “truth.” For if any of us were the pen taker, probably, as said earlier, taking it for safe keeping, we would not wish to be thrown into jail. That expectation fulfilled, we would say justice has been done in accordance with law and not some “truth”. Thus the court has said concerning its function:

“As Courts of law we administer justice according to law and equity which are strictly guided by laid down rules fashioned over the centuries to guide our conduct.” [33]

III. Society of Dead Conscience

Charles Fried has identified a question which he says “troubles lawyers and law students alike.” The troubling question, according to him, is “Can a good lawyer be a good person?” [34] It would appear from this question that a lawyer or law student ought to be a bad person so that it is wondered whether there is the possibility of either the lawyer being a good person or anything good coming from him just as Nathanael wondered: “Can anything good come out of Nazareth?” [35]

In all this, the question that must concern us in order to resolve Fried’s is ‘why is it doubted that the law student after his training can be a good person or that the lawyer, in the performance of his duties, can be a good person?’ This question is of some importance especially as some people in the society have taken delight in continuously repeating the words of the biblical Saul (also known as Paul) to Elymas to the lawyer:

“You are a child of the devil and an enemy of everything that is right! You are full of all kinds of deceit and trickery. Will you never stop perverting the ways …?” [36]

At least two apparent reasons account for this. One is the fact that for every case, there are counsel on each side arguing for or defending a client. They say truth is one and for that matter that we cannot have two people arguing it to different direction, one saying it is this and the other saying it is that. Surprisingly, this is not only the situation in rear and, perhaps, weird cases but also in very obvious matters.

The other ground is rooted in what is probably considered the greatest evil that lawyers commit and that is defense of the apparently guilty. Recently, a Ghanaian soldier, Major Mahama was lynched by a mob in the infamous Denkyira-Obuasi matter. His death, no doubt, caused grief in many as video evidence of him being killed like a snake went viral. Following this, the police made some arrest. I recall that someone wrote on his Facebook page saying “So will these people too be defended by lawyers?” This is what I mean when I talk of defense of the apparently guilty. It was thought that all who appeared in the video must be thrown into jail. It was, however, forgotten that someone say an onlooker, even though he could be under a legal duty to prevent a felony, could have been surprised by the barbaric and sinister conducts of the mob in killing a human just like a snake. Does he not deserve a defense? Would you not have sought a defense if you were our dear onlooker? If you would, what evil has the lawyer committed in defending the innocent?

It must be borne in mind that even though people are entitled to defense, the court has in the case of Francis Yirenkyi v. The Republic [37] said that “it is even considered unethical to defend the indefensible when it is apparent that the position being defended is either not supported by law or evidence on record.” So then not all cases are defensible. And they become so, that is indefensible, only “when it is apparent that the position being defended is either not supported by law or evidence on record.” In such cases, lawyers are encouraged to concede in good faith. [38]

As stated earlier, it is a misplaced thought that the courts are after what the society thinks is the truth. What the court does is to say what the law is in relation to a matter brought before it. Now let us take a scenario with these persons – clients, counsel and the judge - to determine who among these persons are preview to any truth, even if we say that the court must be after the truth and not just administering justice according to some law. The chain of events will be of help.

Clients have a situation at hand and each goes to their lawyers. Like children, one says “I did nothing before he hit me.” The other also reported, “It was he who hit me first.” Each presents his case to his lawyer to make him appear to be blameless. Both lawyers believing the words of their clients present their case on their behalf to the judge. What follows is not necessary for us at the moment. The question that must concern us, if there is any truth to be known by any of these people who among them must be previewed to that. It certainly must be the parties who experienced the situation. They are the primary source of the truth. Similarly, if there is any lie, one of them must be lying to the counsel and the court and this is surely known to both parties. And it is because a party is unwilling to say the truth that is why they come to the judge for him to determine that – the ‘truth’ – using the law. Unless, there is some conspiracy on the part of the lawyers with their clients, the former certainly must be innocent in this case.

There is also a moral problem that arises from the societal condemnation of lawyers as liars. Lying is undoubtedly frowned upon by many in the society. It is never a virtue that the society would want its member to seek. Now, granted that the claim that lawyers are liars or that lying makes the lawyer, mastery of which makes the good lawyer is to be accepted, what would the society actually be doing when members of the society seek the services of lawyers? It would, in one breath, be promoting lies, that which it would be condemning in the other. It is this society that I called a society of dead conscience. It is bereft of conscience, truth and trustworthiness. It is no more than a society full of a bunch of hypocrites, preaching virtue but practicing vice when it suits them.

In all this, the society has failed to recognize two key things. One is that even lying to the court, what in legal parlance is referred to as perjury, is an offence. Perjury has been criminalized under section 211 of the Criminal Offences Act. [39] For this reason, that it is provided under rule 5(8) of the Legal Profession (Professional Conduct and Etiquette) Rules [40] that:

“A lawyer is, in all his practice, but especially with regard to settling and signing of pleadings, under responsibilities to the Court as well as to his client. He shall not put into a pleading any allegation which is not supported by the facts which are laid before him by his client. If on the material before him there is no cause of action or no defence in law, he may ask for further instructions to find if more material can be obtained; and if it cannot, he may advise his client accordingly.”

On this, James Boswell [41] wrote that: “A lawyer must not tell what he knows to be a lie: he is not to produce what he knows to be a false deed; ….” And on what the lawyer ought to do and not do, Boswell adds the following “he [the lawyer] is not to usurp the province of the jury and of the judge, and determine what shall be the effect of evidence – what shall be the result of legal argument … A lawyer is to do for his client all that his client might fairly do for himself, if he could.”

The other thing that society has failed to take cognizance of is the fact that the legal profession operates on a high level of ethical and professional standards and it is one profession which is integrity conscious. It is also seriously regulated. With respect to this, Dotse JSC in Henry Nuertey Korbea v. Francis Amosa [42] observed that

“There is the need to maintain high ethical and professional standards in the legal profession by ensuring strict compliance with the requirements of licensing of persons as lawyers under Act 32. This will in addition maintain the integrity of the legal profession. There is therefore the need to maintain high ethical and professional standards.

CONCLUSION
The above has been an attempt to dispute a popular notion about the legal profession. The notion that lying makes the lawyer and that mastery of deceit and some other Machiavellian ploys makes the good lawyer has been watered down in this piece. It has been found to be baseless, and filled with contradictions. Though that thought stems, for instance, from the defense of the apparently guilty and counsel being on each side of a case arguing for or defending their client in even what appears to be obvious matters, it clearly portrays the lack of knowledge about the legal profession and what the professionals in there actually do.

However, it would be atrocious to paint a portraiture of lawyers, and perhaps law students, as infallible beings. Any attempt to do that would certainly be a conscious fruitless effort to remove lawyers from among human beings so that the saying “to err is human” is held to be applicable to some categories of human beings save lawyers and those being trained to be like them. In recognition of this, the bench has long observed that “Lawyers are not infallible.” [43] Of course, there may be some bad nuts here or there who have mastered the act and art of throwing dust into the eyes of people, including judges. But this does not mean that that is a license to perform or excel at the bar.

JAMES GAWUGA NKRUMAH, B.A(Ghana); LLB (Ghana)
GHANA SCHOOL OF LAW
ACCRA – GHANA
+233241747972
[email protected]

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* L.L.B (Ghana), B.A (Ghana), Student, Ghana School of Law

[1] Civil Appeal No. J4/56/2014
[2] E. W. Roddenberry, “Achieving Professionalism,” 44 J. Crim. L. Criminology & Police Sci. 109 (1953-1954)

[3] Lonnie T. Brown Jr. “Lawyers” Not “Liars”: A Modified Traditionalist Approach to Teaching Legal Ethics. Saint Louis University School of Law [Vol. 51:1119]

[4] R. E. Megarry, Lawyer and Litigation in England, (London, Stevens & Sons Limited, 1962).

[5] Ibid
[6] Lonnie T. Brown Jr. supra note 1
[7] Niccolò, Machiavelli. The Prince. England: Clays Ltd. 1999.

[8] Ibid
[9] Seneca Lucius Annaeus, translated by Richard M. Gummere, Seneca in Ten Volumes IV AD Lucilium Epistulae Morales, Great Britain: Harvard University Press and William Heiemann Ltd, 1979

[10] Agbemashior and Others V. State Insurance Corporation and Others [1972] 2 GLR 65-75, Per Abban J.

[11] Megarry, supra, note 2
[12] Kofi Ackah, Living the Examined Life: Introducing Socrates, Accra, Adwinsa Publications (Gh) Ltd, 2004

[13] Ibid
[14] Ibid
[15] Ibid
[16] F.K.A. Company Limited v Nii Ayikai Akramah II and Others, Civil appeal no. J4/1/2016

[17] Ackah, supra, note 10
[18] Ronald Dworkin, Law’s Empire, (Massachuesetts, The Belknap Press of Harvard University Press, 1968)

[19] Ghana Lotto Operators Association v. National Lottery Authority [2007-2008] 2SCGLR 1088, Per Dr. Date-Bah JSC: “An issue is justiciable if it is capable of being settled by a court.”

[20] Letang v. Cooper [1961 L. No. 296]. Per Diplock L.J “A cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person.”

[21] Rents Act, 1963 (Act 220), section 36 defines “tenant” to includes a person who leases premises from another person in consideration of the payment of rent, and

(a) a person deriving title under the original tenant,

(b) a sub-tenant,
(c) a person who, before the commencement of this Act has retained possession of premises and who on and after that commencement continues in possession of the premises, and

(d) a person who retains possession of premises by virtue of this Act.

[22] Intestate Succession Act, 1985 (PNDCL 111) section 2(1).

[23] See Black’s Law Dictionary "agreements must be kept"

[24] Ronald Dworkin, supra note 7
[25] Aharon Barak, “A Judge on Judging: The Role of a Supreme Court in a Democracy” (2002) 116 Harv. L R 19 at p 66

[26] Raymond A. Atuguba “Ghana Developing Through Law” The Institute of Economic Affairs [2005] Vol 1 No. 9

[27] Betrand Russell, The Problems of Philosophy.

[28] The Athanasian Creed
[29] John 10:30
[30] In Re Amarteifio (Decd.); Amarteifio v. Amarteifio [1982-83] GLR 1137-1140

[31] Criminal Offences Act, 1960 (Act, 29)
[32] [1977] 1 GLR 351-359
[33] F.K.A. Company Limited, supra, note 8
[34] Charles Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation, 85 Yale L.J. 1060 (1976).

[35] Holy Bible, English Standard Version, John 1:46

[36] Ibid, New International Version, Acts 13:22

[37] Per Dotse JSC in Francis Yirenkyi v. The Republic, Criminal Appeal, No. J3/7/2015, Unreported

[38] Ibid
[39] Criminal Offences Act, supra, note 31
[40] Legal Profession (Professional Conduct and Etiquette) Rules, 1969 (LI 613)

[41] James Boswell, A Journal of a Tour to the Hebrides (ed. P. Fitzgerald, 1888), p.

[42] Civil Appeal No. J4/56/2014
[43] In Re Amarteifio (Decd.); Amarteifio v. Amarteifio [1982-83] GLR 1137-1140, Per Striggner-Scott J