The Challenges, Prospects and Future of the Modern Lawyer
Originally written on 17 March 2009, Delivered at the 2009 Law Week Celebrations, Faculty of Law, University of Ghana
The modern lawyer has three principal characteristics: (i) social role (ii) private practice and (iii) public practice.
Social role
The legal profession has always had an ambiguous social position. Leading lawyers have usually been socially prominent and respected. Yet, along with this high repute, lawyers have also engendered tremendous distrust and even hatred in many societies. “The first thing we do,” said the character in Shakespeare’s Henry VI, is “kill all the lawyers.” This accolade was spoken by Dick the Butcher, a follower of the anarchist Jack Cade, whom Shakespeare depicts as “the head of an army of rabble and a demagogue pandering to the ignorant,” who sought to overthrow the government. Thus contrary to popular belief, that proposal was not designed to restore sanity to commercial life. Rather, it was intended to eliminate those who might stand in the way of a contemplated revolution. The surest way to chaos and tyranny even then was to remove the guardians of independent thinking.
The legal profession is inherently conservative because it is committed to working mainly through existing institutions and that law itself is predominantly intended to satisfy expectations arising from inherited patterns of behaviour. However, many lawyers have been on the side of revolutionaries and rebels. For instance Robespierre and Lenin were lawyers. There is also the long and rich tradition in many countries of lawyers’ serving as leaders of struggles for social justice such as Mahatma Ghandi, Thurgood Marshall, Nelson Mandela and J. B. Danquah.
The distrust is sometimes based on the inherent difficulties associated with law and some legal functions. Many would like law to be so clear that its application is equally certain in all cases and so simple that any person of sense can readily see how it applies. But the law as a discipline, shares the imperfection and complexity of society itself, and as such no such situation is attainable. The modern lawyer gets to carry the can for the basic difficulty of his/her craft. But I am quick to admit that the modern lawyer sometimes compounds this by multiplying obscurities, contradictions, and complexities. With respect to legal function, the one that is often distrusted by the average person (though it also produces some of the law’s heroes) is the litigator, particularly in criminal law. Even in the days of Plato and Aristotle, they condemned the litigator as one who was paid to make the worse cause appear the better and endeavoured by sophisticated tricks of argument to establish as true what any person of common sense could see was false.
The dilemma that the modern lawyer faces is whether in the course of litigation, his/her dominant duty is not to the client but to the truth and the law. Lawyers are required to take oaths to this effect, and are often technically been described as “officers of court.” But is the duty of the modern lawyer to fight for the rights of his client, but only up to the point where an honourable person could fairly put the case on his own behalf? Or are lawyers obliged to advocate zealously for their clients, even if they disagree with the client’s position or views, provided that they neither misrepresent the law nor misstate the facts? Where do we find a balance and can we find a balance at all?
Private Practice
Lawyers often are called ‘counsel’, and in the original sense of the word, giving advice as to how the law stands. But in his private practice the modern lawyer is concerned with how the law affects specific circumstances, which can for convenience be divided into two main types: transactional and litigious.
The modern transactional lawyer is concerned with the validity or legal efficacy of a transaction. This is the largest area of activity, in terms of the number of lawyers involved, time spent on the task, or the number of clients affected. If the client consults the lawyer after the events happen, the lawyer advises on legal significance of the events and suggests methods of overcoming legal deficiencies in what has been done. If the client consults the lawyer on future conduct, the lawyer helps the client plan a course of action that will achieve the desired outcome that the law permits and in a manner that minimizes the chances of future litigation.
Transactions cover the drafting of documents that transfer interests in land, transmit property on death, settle property, make agreements (especially commercial agreements of some complexity and duration), incorporating or dissolving corporate entities, varying the terms on which a corporate entity is conducted, and adjusting the ownership and control of property and income to comply with the requirements of taxation laws and minimize their impact on the property and income in question, to ensure the proper management of the assets and distribution of the proceeds among beneficiaries.
The litigious function is subdivided into three main stages. First is the case preparation: client interviews and investigating the circumstances on the basis of leads provided by the client, attending to the formal requirements of the procedure in question—which may involve drafting writs, settling pleadings and filing and arguing motions—and preparing for trial. Second is the trial proper, where the facts and law are established and argued before the judge and a decision is made. Third is the execution of the judgment—payment of damages, delivery of property, or performance of obligation in civil cases, payment of fine or imprisonment, etc., in criminal cases. Similar stages arise on appeal.
Public Practice
Many modern day law graduates choose to enter public service rather than private practice. Of the public roles played by members of the legal profession, that of judge is the most visible. A lawyer who wants to be a judge simply applies to the Judicial Service. There is no preparatory training programme although currently prospective High Court judges and judges of inferior courts are required to write an examination. It used to be the case that judges would resign and return to private practice or eminent lawyers decline to be considered for judicial positions, because the terms and conditions of the office were very poor. But that is no longer the case and the judiciary is beginning to attract some rather interesting talents.
Governments have always required legal specialists, and the scope for such employment is enormous. The Attorney-General and Minister of Justice must by convention be a lawyer, who heads a department concerned mainly with the legal issues of the government, as demanded by Article 88 of the Constitution. Increasingly, however, some government ministries (such as the Ministry of Finance) are establishing their own legal departments or hiring specialist lawyers as consultants. Lawyers also serve in high offices in the civil service.
There is the office of the prosecutor, a specialized officer under the general control of the Attorney-General. The prosecuting function is particularly delicate because criminal prosecution can be used as an instrument of oppression and persecution, even where conviction is not obtained, and because in most systems prosecutors are expected to act with a degree of fairness and restraint not necessarily expected of lawyers involved in civil litigation. There is also the legislative drafters who are expert lawyers trained to craft laws in readily comprehensible language, which is also a part of the Attorney-General’s department.
These are by no means exhaustive, because modern lawyers serve in almost all government Commissions and Authorities, State Corporations, etc., and as lecturers in public tertiary institutions.
Contemporary Trends
The legal profession has been undergoing enormous changes in recent years, and the pace of change can only accelerate. Perhaps the most obvious change of the past decade and a half is the increase in the number of women lawyers. In my class (1990), there were less than 10 women. In the very next year, the women were almost half the class and that trend has continued. However, this significant shift has not fully made itself felt at the partnership level in the nation’s leading law firms, for reasons that can be hotly debated (one contention is that the great number of work hours demanded of young lawyers imposes particular strains on women). The same argument can be made with respect to the legal academia where there is a notable decrease in the number of women. The entire Ghana Law School has a single woman lecturer and I am not sure that the Faculty of Law of the University of Ghana has any women on their academic staff. Nevertheless, at the associate level, in government and business the growing presence and prominence of women is evident.
The internal structure of the legal profession is also changing. Some of the leading law firms have entered into associations with foreign counterparts (mainly English law firms). Although this is not exactly prevalent right now, it is indicative of the profound changes in the legal profession brought about by globalization—the increasing exchange across international boundaries of capital, goods, technology, services, personnel, and ideas.
Law firms have also taken advantage of technological advances in computers and the Internet to avail themselves of electronic databases for legal research, to provide legal advice to clients far from their home offices, and even to develop software that can be used to reduce the human element in the preparation of contracts, licensing agreements, wills, and other documentation. I am an avid supporter these changes because they will better equip law firms to compete with large accounting firms that now hire lawyers and offer legal services. I am aware that some opponents worry that some of these developments are helping to erode the distinction between law and business. Maybe. But I am in the BUSINESS of practising LAW. As long as legal ethics are complied with, I believe that we should allow room for advancement. Today, many Ghanaian law firms are listed in Martindale-Hubbell. And, Ghanaian law firms are now ranked by Chambers & Partners. These would have been unimaginable just a few years ago. Indeed, I daresay that no one can stand in the way of advancement.
Conclusion
The modern lawyer needs a particular ideal that embodies his/her skills, qualities, and aspirations – a model to emulate, a standard for judging professional development, and a source of pride in being a lawyer. To accomplish this, the modern legal profession must function within a professionalism paradigm that re-creates the lawyer of practical wisdom who serves clients by always ascertaining the ‘theory of the matter’, i.e. what is in the best interest of my client?