“There can be no equal justice where the kind of trial a man gets depends on the amount of money he has” — Hugo Black, former Supreme Court Justice of USA.
In one of his articles, Michael Parenti, a leading progressive writer and political activist in USA, raises a very important issue about the inclinations of the legal system towards the wealthy elite. Michael Parenti argues, through various examples, that the legal system is inclined towards safeguarding the rich, led by the executives of the giant multi-national corporations, against the poor. This inclination is not just implied, but very well coded into the legal system through judicial pronouncements and penalties provided. The emphasis is on the white-collar crimes that often remain unpunished. One of the examples of the white-collar crime going without imposition of any penalty is “when Firestone pled guilty to filing false tax returns concealing $12.6 million in income, it was fined $10,000, and no one went to jail. Over seven hundred people a year are imprisoned for tax evasion, almost all of them for sums far smaller than the amount Firestone concealed.”
The bias in the legal system is quite blatant from empirical evidence. In gaining this privilege for the white-collar criminals, the lawyers, the instrumental components of the most of the legal systems, play the important role, apart from wealth. This provides a very huge dilemma for the professionals engaged in the legal system. How does this all go along with the lessons of legal ethics? What should be the role of the society at large that is the directly receiving the harm facilitated by unethical lawyers? Should there be any limit on the benefits accrued by lawyers in lending their services to their clients, whether rich or poor? How should these regulations be enforced? These are all some of the questions that are linked with the moral autonomy that has to be present in a lawyer, who is expected to behave according to ethical standards.
Legal service, like many others, is a scarce commodity. Many people, while presenting an argument against coded legal ethics, ignore that the society also has a very large stake in the direction that legal profession takes. At the same level, those who say that the “layman”, or those alien to legal profession, should not be allowed to participate in the formulation of legal ethics dismiss or undermine the direct effects and influence that legal profession has on the society at large. Therefore, the society must act proactively to reduce the harm. It would negate the basic tenants of democracy to say that non-lawyers should not play any part in directing lawyers, where the non-lawyers have an active stake in the behavior of lawyers. It may be said that non-lawyers don’t have the requisite knowledge to understand the ethical dilemmas faced by those engaged in the legal profession, but such a gap can be easily filled by an active dialogue and discussion. The problems faced by the lawyers are not individual in nature, but are shared by the society as well. This is just to pronounce the slogan that motivated the American Revolution: “no taxation, without representation.”
In order to minimize the tilt of legal system towards the wealthy, the society can play an active part in regulating the scarce legal service so that it can be efficiently utilized for the benefit of the whole society, rather than being accessible for the elite class only. The first and the most important step to regulate the money involved in the legal business, so that lawyers are no longer heavily pressured by the forces of the market. Wealthy clients have the resources to provide the lawyers with enough money to diminish their individual discretion. On the other hand, the economically weaker party usually doesn’t have enough resources to arrange an equally good lawyer. This is the dilemma that Justice Hugo Black points towards in his quotation at the start of the article. The party that suffers, other than the economically feeble one, is not the lawyer, who might not even care about the loss of his individual moral autonomy after selling his services, but the society at large. Therefore, the society has to play a lively participatory role in devising the desirable ethical guidelines for the legal community.
The foremost decree of the society should be to set-up a regulation providing a ceiling for the maximum fees that a lawyer can take. A regulation on the maximum fees can allow a lawyer to practice a large degree of moral and ethical autonomy so as to enable the his to direct a case to a more just and equitable course. Without the presence of ethical discretion, it’s redundant to think that giving lessons of ethics to lawyers can bring any substantial good. Without any enforceable regulation of the fees that can be offered to any lawyer, it’s hopeless to think that lawyer can freely engage in any dialogue with the client or practice any considerable degree of ethical discretion. With the regulation, the influence played by the client will also reduce to a large extent, and the lawyer can choose his arguments with freedom, and can be expected to take a more just path.
This brings us to the second point: is such a change possible in the prevailing adversarial system? Adversarial system might be incapable to entertain any regulation on the fees that can be offered to a lawyer. The object here is to dismantle the basic tenant of adversarial system, which states that lawyers should keep the interests of his client dearest to himself. A lawyer should be capable to look beyond the interests of his client to think about the interests of the society at large. A radical change in the present adversarial system is needed to push forward justice and make lawyers active agents of justice rather than mere agents of clients. The republican system, where the lawyers have a relatively higher autonomy, or inquisitorial system is much preferable from the adversarial one when it comes to promotion of justice on equal basis.
All these changes can not only reduce the inherent bias of law towards the wealthy, but can also make the lawyers the instruments of such a change. The aim here is to reduce the outside pressures in order to observe the changes in the legal profession, rather than just blaming lawyers alone for their unethical conduct.