Ethics: A losing battle against national and global storms

March 1st, 2024
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By Krish Govender

The SA context

The legal profession in South Africa (SA), especially after our freedom in 1994, has a duty to protect and advance the principles and values as enunciated in our Bill of Rights under our Constitution as amended. The legal profession is a crucial part of one of the three arms of our government, namely the judiciary, the other two being of course, the executive and the legislature, that are meant to not only protect but also advance justice and the rule of law. Lawyers under our constitutional democracy, should ideally all become the proverbial ‘foot soldiers’ for equality, integrity, and justice, more especially, in the absence of any noticeable activism among academics, unionists, religious and other professional groups. They should shoulder a major responsibility on behalf of society, in leading the march for justice, equality and socio-economic rights for all in the country.

Chapter 8 of our Constitution, which deals with the courts, administration of justice and the judiciary, is the basic framework within which all lawyers carry out their functions. Most importantly, s 7(1) of our Constitution describes the Bill of Rights, which is chapter 2, as ‘a cornerstone of [our] democracy’. It is fair to say that the Bill of Rights is the prism through which all lawyers ought to work in their quest for justice on behalf of the downtrodden and the victims of unjust actions by the forces of the state and other powerful institutions and individuals in society.

Some background to the ethical crisis in South Africa

While political rights are guaranteed, economic inequality, which has increased exponentially during the period of our democracy, has resulted in major rifts, and shifts in the social and living conditions of the vast majority of black people who remain largely poor and increasingly unemployed. These high levels of poverty and unemployment are also evident among the other broadly black populations, namely, Indian and ‘Coloured’. One must also recognise the growing poverty among the unemployed in the white community.

SA has the highest level of economic inequality between the wealthiest and the poorest, in the world and this socio-economic inequality in our country has resulted in the sharp rise in –

  • racial divisions, seriously discolouring the rainbow of the late Archbishop Desmond Tutu’s dream nation (this discolouration is also smudged by our fossil fuelled and heavily polluted atmosphere and environment);
  • unemployment, which has reached disturbing levels;
  • xenophobia;
  • nationalism, aided by all the political forces and parties (shockingly, we do not have the formation of either a socialist, or a ‘green’ political party in 2024);
  • corruption within the public (State institutions, security and the police services) and the private sector, including universities;
  • crime involving organised crime, money laundering, murder, rape, robbery and much else symbolic of a gangster state; and
  • violence against women, girls and children, and attacks on members of the LGBTQI+ community, broadly referred to as gender-based violence.

This list is not exhaustive but special mention must be made of our overwhelming pollution of our land, rivers and seas.

Challenges

The one arm of government, the judiciary, has stood somewhat firm against all the above since 1994 but we have seen, over the past ten years, an increase in the attacks on the broad judiciary for their judicial independence, and the growth of corruption within the legal system, with a not unsurprising extension to parts of the judiciary as well. This is seemingly because of the other two arms of government being mired in the highly corrupted political terrain which has stained the conduct of a few within the judiciary. This fight termed ‘state capture’ has not been won. This crucial battle will decide whether our constitutional democracy survives or succumbs to the forces undermining our constitutional democracy. The past few years has seen state efforts to reverse this downward plunge while countering an attempted insurrection during July 2021, confronting the effects of COVID-19 and weathering the consequences of floods, droughts and much damage caused through climate change.

The challenge

How do lawyers apply principles and values embodied in the Bill of Rights in this daunting and hostile environment? How do lawyers apply ethical principles in defending those allegedly engaged in skullduggery and crime. The very same suspects with bags of cash, ‘smoking guns’ and ‘bloodied daggers’ in their hands, who demand their right to remain silent and strict compliance with all the high standards of our constitutional order, in order to pass the test of a ‘fair trial’? This is a universal challenge for the principled and ethical lawyer who wishes to earn a honourable living as against the aggressive marketing and blatantly unscrupulous conduct of a money grabbing and/or shifty compromised lawyer.

Lawyers’ organisations and ethics

Whatever these challenges may be, one believes that most lawyers in general, despite the negative environment and culture of corruption, abide by the code of conduct for legal practitioners, have committed to upholding integrity and ethics, by inter alia

  • adhering fully to the values in the Bill of Rights in our daily lives;
  • embracing ethics in all activities and actions;
  • committing to the principle of equality by assisting all persons without reference to issues of race, class, age, gender or nationality;
  • treating all members of the judiciary, colleagues, members of the public and witnesses with utmost respect;
  • obeying the laws of the country;
  • abiding by the procedures and rules of courts;
  • ensuring that the fairness of the trial remains the prime objective, and not the acquittal or conviction of a person, and in this context, treating all accused persons as innocent before proven guilty;
  • adopting a sensitive approach to children in all court proceedings;
  • standing firm against all forms of corruption, within society in general and in all departments or components of the justice system, thereby promoting a corrupt free judiciary, especially for the future;
  • elevating the interests of clients above considerations of fees and profits; and
  • providing access to the profession and to justice on behalf of the needy and the vulnerable.
The current existential crises

The multiple threats of diseases, climate change, dangers of unregulated artificial intelligence and the growing negative growth in the global and national economy has taken its toll on legal practices. Many of the large and medium sized firms have had to rationalise their operations and retrench staff to maintain profit margins. However, the many, mainly black owned small and single practitioner firms, have been hard hit, and those still operating are struggling to survive financially. One unfortunate consequence of this is the negative impact on ethical standards within the profession. Instead of reflecting and taking advice, to deal with the economic realities, some have succumbed to temptation and in order to survive financially, have simply stolen from their trust accounts. Returning the stolen money into the trust account does occur in some cases, but this does not erase the consequences of theft, which among other penalties, leads to the disbarring of the offender from the profession.

Apart from the serious financial constraints facing black lawyers in SA, aspirant lawyers also face difficulties in the current economic climate as the profession has many difficulties in absorbing new entrants.

There can be little debate that the legal profession is mired in an ethical crisis amid these real and existential crises facing the profession.

A brief overview of the global crisis in legal ethics

Legal ethics is in a crisis in the global marketplace. The threats to world peace, climate change, the failure to reduce carbon emissions, the rapid growing inequality between the rich and poor countries of the world, unchecked gross violations of human rights, geopolitical military, and economic interests, have cumulatively seen the dissipation of ethics and integrity in the application of international law. Global finance and a selfish unipolar order, advanced by decades of United States (US) military power, has trumped the authority of the United Nations (UN), its Charter and many Conventions.

The global village or world is fast becoming ungovernable as evidenced by the UN. Although the UN is valuable in allowing for the divergent voices of the world to be heard, it is rendered impotent by the veto powers of the five permanent members of the UN Security Council. The under developed global cities are overcrowded where the populations gather in their teeming millions, with congested transport systems or no systems at all. There are military conflicts in many countries. In others not yet at war, there are serious tensions between countries with impending conflicts. Many global corporate companies based in western capitals are in partnership with armies, one side for profit and the other for power. A formula for death and destruction and little room for prosperity for all.

Environmental degradation and disasters, global warming and climate injustice foretell the end of not the earth but many of its inhabitants, plant, animal, and human species. The pollution has even extended to outer space with billions of pieces of space junk littering the outer atmosphere, pollution has extended too everywhere. The earth will survive, but not its people.

Where are the lawyers in this global landscape? The largest global grouping of lawyers is the International Bar Association (IBA), with a membership of more than 80 000. Its slogan is ‘the global voice of the legal profession’. It is distinctly the global voice of the corporate lawyers. It meets annually at or very near the major capitals of the western aligned world, and/or near playgrounds of the rich. The programmes for the lawyers are largely designed to prepare and lecture the wealthy corporate lawyers, around legal issues, which highlight global threats to their profits and identify opportunities for further growth and expansion to their global networks. Mergers and acquisitions are second nature to the participants, all in the context of greater profits. It follows that their interest in human rights is selective, and mainly raised when profits of multinationals corporations are threatened, for example, in oil rich Venezuela, mineral rich developing countries, Chile, Ecuador, and countries with anti-imperialist governments and people centred economies. The dispute with China over Hong Kong is a prime example. It is not difficult to suggest that where the violations of human rights in pursuit of profits occur, only muted voices, if any, are raised from the multinational corporate law firms. This is glaring in many parts of mineral rich Africa, the oil rich parts of the Middle East, and elsewhere in the world.

Where are the voices of the global lawyers who fight for justice under international law, and who are activists for peace, human rights, the rule of law, and champions against torture, repression, crimes against humanity, war crimes and genocide? You will find them in the small and financially hard-pressed voluntary socialist aligned associations of lawyers, International Association of Democratic Lawyers, and some who serve in Amnesty International, International Commission of Jurists, Commonwealth Lawyers Association, and the like. The activist lawyers in the world working for humanity and not for profit are in pockets scattered around the poverty-stricken parts of the developing world and also in many major capital cities.

Not surprisingly, certain corporate dominated international law bodies like the IBA, also have small ethics and human rights sub-committees.

There are many documented cases in different countries that expose the non-independent thinking of judges appointed via political processes, who first  serve their political masters and not the law. The US stands out starkly with many such cases, for example, the Cuban Five, Julian Assange, Chelsea Manning, the Black Lives cases, the recent reversals of progressive jurisprudence via the changes to the composition of their Supreme Court, for example, the pressure to reverse the gains of Roe v Wade 410 US 113 (1973), and decisions pending around former US President, Donald Trump.

There are similar serious violations of the rights of citizens and lawyers by governments, aided by their justice system, in many other countries, including Turkey, the United Kingdom, France, the European Union countries, the Middle East, Israel, Africa, and Philippines.

Much more can be said of the serious and increasing threats posed by the abuse of  artificial intelligence in many legal cases around the world. Miscarriages of justice lurk in many heads of arguments. Ethics and integrity are non-existant in the realms of artificial intelligence programmed by corporate minds of mainly men.

Conclusion

There is a need in conclusion to refer briefly to the Legal Practice Act 28 of 2014 (LPA). This Act now regulates the whole of the legal profession without exception. A Code of Conduct for all Legal Practitioners, Candidate Legal Practitioners and Juristic Entities has been adopted in terms of s 36(1) of the LPA. It runs into 56 pages. It is detailed and was drawn from all the submissions received by the Legal Practice Council from every stakeholder and interested party in law and the legal profession. Professional ethics is a golden thread that runs through this Code. It should be a source of studies as part of the contents of any module necessary for the LLB degree. The Code is without the serious philosophical, conscience and moral roots necessary for the absorption of legal ethics. The Code is simply rule based and pedantic in parts very much suited to the bureaucratic requirements of the national regulator and not much more. The philosophical and historical roots of ethics are matters that should form part of a mandatory module for law studies in the LLB degree.

Lastly one must reflect on the serious gaps in the legal education under the LLB law degree. It is shameful that as of 2016 only three universities were engaged in teaching, or intend to teach ethics, via full course mandatory modules.

The majority of law deans of SA have unfortunately failed the legal profession and society in understanding their roles in producing well rounded law graduates who will contribute to building a better SA and who will help strengthen our constitutional democracy and the rule of law, essential for a society rooted in equality and justice. The demands of the present corporate styled universities have trumped the classical role of a university, which reflected the search for higher purposes and the soul of society. 

Krish Govender BA Law (UKZN) BProc (Unisa) is a legal practitioner at Shamla Pather Attorneys in Durban. He is a former Co-Chairperson of the Law Society of South Africa (LSSA). He is a member of the National Association of Democratic Lawyers, the LSSA’s House of Constituents, and the Chairperson of the Ethics Committee of the LSSA.

This article was first published in De Rebus in 2024 (March) DR 49.

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