On Standards in The Legal Profession

By David Langwallner

In my last contribution to The Nigerian Lawyer on Gilligan and Belmarsh I adverted in the last sentence that said piece would lead to a piece on standards in the legal profession.

In much of my writings in fact in recent years I have sought to address, either by implication or directly, and often in passing, the question of what constitutes professional standards and it is a matter which increasingly troubles me. There has been a decline and fall in standards, in my view, both in Ireland, The UK and Internationally. Such examples as soft skills in cross examination and the teaching of law, conviction by generic bad character, absurdly over drafted catch all statues contribute to the decline into the abyss.

There is also a distinct misapprehension and confusion as to what standards in reality are. Standards also interact with the vexed question of ethics and morality, though they are different from both. I shall try and clarify what that difference is and approach an understanding of why standards are needed in our dangerous age.

Professional standards are in point of fact often perceived to be different from ethics or morality and often solely in clinical terms in terms of the substantive edicts or prescriptions of a particular culture.

Now I am not a moral relativist and have written elsewhere that international inspection needs to be imposed on the practices of a given culture.

A lawyer, of course even in a parochial context, needs to know procedure and substantive law to be competent and have an ability to comprehend ethical boundaries even if as some maintain as Alan Dershowitz who taught me “Tactics​ and Ethics” at Harvard that tactics reign supreme and ethics should be pushed to the boundaries. Something I disagree with profoundly and which seems to me to be a factor in precipitating the decline.

Some minor rules of course should be ignored and a degree of self-regulated informality promotes sensible solutions. So I am not puritanical.

One should also note that those who declaim about ethics often as in the cartelized Irish bar do so to eliminate opponents who pose a threat to their financial interests and manipulate a code of conduct or should that be misconduct to enhance greed, family ties and often state sponsored criminality. Thus do not criticize in public a clearly biased and absurd ruling devoid of merit but upholding the interests of the powerful banks. Do not upset the cartel. Be one of us not them.

As just as we should be wary of Greeks bearing gifts let us be also wary of those declaiming about ethics in a hysterical and protectionist manner. It is often a compensation for mediocrity. A defence mechanism.

But there are bright lines or red lights to use a former phrase and certain boundaries should not be trespassed and are sacrosanct in professional ethics terms or standards driven terms. What are they? Well of course there are lines of argumentation and disagreement but these unquestionably.

1: Never knowingly mislead a court an opponent or be dishonest in professional representation. Now you might not know something and barristers are often manipulated by their clients who lie, embellish and distort to save their skins as apparently was the legendary Brian Crespi prototype for The Rumpole books.

2: Do not which is pandemic in Ireland and The US manufacture a case what Chomsky called “Manufacturing​ Consent​”. This is a particular feature of the relationship between corrupt prosecutors, state agencies including police forces and social services.

3: Try to state the law correctly but with a modicum of flexibility. I am deeply suspicious of those who red light on per incuriam or misstatement criteria as much of law as Dworkin would maintain is interpretative or capable of being over turned and reinterpreted or over-ruled. Sometimes as Lord Denning often did when the law is an ass side step or reinterpret it and ignore hierarchical strictures and structures though of course said actions led to his colleagues pushing  him into early retirement.

4. Never prioritise money exclusively and over standards difficult in this day and age.
5. Do not learn standards from soap opera or american TV.

6.Do not accept or endorse soft skills which is not to say one should be rude.

Know your onions, attend to your duties, exercise due diligence and be creative and flexible. Think strategically.

Indeed, the great as opposed to good lawyer is flexible and creative and does not think exclusively in linear terms. That said structure within reason helps.

Before we address wider questions about the relationship between standards and ethics it should be said that to a limited extent lawyers need to be technical but the great lawyers are not technocrats or even that technical or rather any technical ability is subsumed in other qualities.

First, they are storytellers and artists with a grasp of narrative certainly the great trial lawyers. Often as Gerry Spence in his invaluable guide to advocacy and trial layering indicates in Argue​ and Win Every time (1995) they are in effect creating a story and narrative of a life or a case to present it in the best possible light. A skill that is transferable to all walks of life a point Spence saliently makes.

More to the point a lawyers has to have a measure of empathy often to represent someone effectively so technical skills are not enough. Compassion, human experience a least an understanding of the situation someone finds themselves in are always vital. And not fake compassion but real compassion mediated into practical solutions and remedial acts. One has to put oneself in someone else shoes frankly as Atticus Finch indicates in To Kill A Mockingbird.

Those who assess or decide anything in purely technical terms are what Habermas termed decisionist and thus in fact dangerous. A technically optimum outcome has to be modulated by moral considerations as Habermas further indicated and much of the present societal quagmire we find ourselves in is the absence of moral arguments mitigating or qualifying technical solutions.

As a professional you are exercising a technical skill but if you do not understand that moral and ethical criteria as well as a social structure that is also regulatory mediate and condition the exercise of such a skill then at one level you are acting unprofessionally though you may not perceive it as such.

It also facilitates the dog eat dog universe with a win at all costs mentality causing so much damage.

Thus Roy Cohen lawyer and instigator of the McCarthyism witch hunt and latterly the mobs lawyer was a brilliant lawyer as I have written for The Nigerian Lawyer as are many corporate lawyers but had shall we say an attenuated grasp of ethics. In fact he was a lawyer who was a criminal. Just Call Saul.​

This standard driven breakdown, as I perceive it, seems to me at one level the causas causans of much that is going wrong at all levels in terms of social, business, legal and professional regulation. More to the point the processes of regulation, and indeed the regulators themselves, are in the business of, at times, delivering double standards or dumbing down standards. Thus, much clarity and progress could be achieved if we seek to address both what standards are and what they are not.

Why a sense of decline and fall?

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Neo liberalism, about which I have written extensively, leads among other things to short term contracts, the disposability of labor, longer working hours and the side lining of experience and the wise elder, that which Japanese called the sensei and thus the transfer of real experiential knowledge. Thus, increasingly a younger docile workforce is not incentived to professionally develop, or given the opportunity to do so and thus grow in standards by dint of experience, or if they do, and develop a standards driven compass, as I have found representing whistleblowers, then they risk professional ruin and disposability.

Also short termism creates historical amnesia and an absence of archaeology of knowledge and reactive decision making that is insufficiently modulated and not tempered by ethics and as such uses people as commodities and not in Kantian terms as people in themselves.

This problem is augmented by the educational system in that we are encouraging non critical and conformist thinking, rote learning and the elevation of formal and technocratic achievement designed for exclusively corporate or commercial ends. Students of the present snowflake generation cannot now be upset (word used deliberately though critically) with unpleasant and politically incorrect realities and we are breeding an ultra-conformist, docile and controlled population suitable for market exploitation, and devoid of critical thinking unless it is instrumentally geared for the interests of the plutocracy.

Academics are also singing for their supper and getting funding from the business community which peddle the idea that market forces can solve problems when the last thing we now need are business solutions to human problems or to fail to understand that the problems are systemic, structural non cosmetic and not resolvable by gestures or sanitized preppies. Funding is accorded to such non sequiters as gender equity rather than homlessness or health care.

In the UK law schools also an obsession with branding and marketing and students as consumers leads to packaged non critical and ever narrower education.

The proliferation of institutions and degrees augmenting the problem and questions of quality judgment.

An undergraduate degree historically worth its weight in gold is now the weight of water and leading to very little if anything.

Specialization is also obliterating the generalist and inters disciplinary thought obliterated.

Neo liberalism is also coupled with post modernism with the consequences that the nonsense of relativism. Thus, whatever works? Standards of right and wrong are replaced by a results orientated culture. Notthe right answer or the truth but victory.

This is thus true professionally and academically and interacts with post truth.

Lawyers, our much derided profession, often distinguish between fact, semi fact and opinion. Though lawyers also seek to get matters established as fact which they often know are not. The new language of Orwellian newspeak gets patent lies and falsifications either established as fact or equally weighted as fact, in our courts of law and public opinion. This is, as a Greek lawyer friend of mine termed it, decadence, a standard less decline in culture. Perhaps it was always thus but there is an increasing acceptance of low brow argument and analysis.

The internet is also contributing to this as there is a deluge of information that is unfiltered and opinion based so fact and fiction become difficult to disentangle, and both are accepted as part of the new reality. The benchmark for standards in information terms this becomes blurred.

Language is distorted by spin doctors, message managers, content providers to create a culture of acceptably controlled bland disinformation and boy do I hate blandness.

So thus what is happening is that semi education, results orientated culture, over academic pedantic specialization, an anything goes mentality, a dumping down in the public discourse, the rise of neo liberalism and the insidious foe of moral relativism as well as the breeding of ultra-conformism are destroying competence levels. The regulators themselves are dumber down and incapable of self-regulation.

At the very least people have to do what they do well fearlessly and objectively without manipulation.

So let us approach the centrality of the question of standards.

Superficially etiquette or formal politeness are often confused with standards which is not to say that one does not aim for them in terms of civilized interaction but it is to say that they have nothing intrinsically to do with standards.

Formal politeness indeed often conceals deep seated hypocrisy and pleasant and soothing oratory. Further, a well regimented appearance can convince whereas it is often a paper mask to conceal a multitude of sins.

So what are the standards we need: competence, directness, candor, integrity, truth seeking, objectivity, culture and literacy, an appetite for knowledge and a distrust of post enlightenment relativism, a social conscience and either Christian or secular decency

Professional ethics thus need to embrace morality but professional ethics did not or should not include the following.

1: The curtailment of speech by lawyers.

2: A prohibition on direct access.

3. The abandonment of this nonsense about soft skills controlling robust cross examination. the governance of law by social workers, overly protective state agencies and housing associations.

4: Regulation in a cartelized way to serve the interests of the regulators.

5: Regulating disagreement that is legitimate out of the profession.

6: Disliking a person or a style which archives legitimate results in a non-programmatic way.

7: Tick box uniformity, pedantry and rote learning.

8: Stuffiness.

It is a lot to ask but in this climate of despair remember what Alexander Pope said:

“Hope springs eternal in the human heart.​  ​”

David Langwallner