The Jeff Cumberbatch Column – Popular Perception and the Regional Lawyer

Jeff Cumberbatch – Columnist, Deputy Dean of UWI, Law Faculty, Chairman of the FCT

“You shall not pervert the justice due to the poor in his lawsuit…”Exodus 23:6

“What is the difference between a lawyer and a mosquito?”

“One is a blood-sucking parasite, the other is an insect.”Anonymous

Frequent instances of disbarment, of defalcation, embezzlement, and of sundry other fraudulent conduct in one jurisdiction or another, inordinate delays at all stages of the process, bungled judicial appointments in Trinidad & Tobago, accusations of exorbitant fees charged to the state in Barbados, and even convictions for conspiracy to murder; these are but some of the items of misconduct listed on the rather lengthy charge sheet of the regional legal profession. Naturally, given our penchant for generalization – “All Jamaicans are…” “All men are …”-, these acts of misfeasance and, in some cases, criminality, have served to tarnish the entire profession so that what should be perceived as a noble and prestigious vocation devoted to the service of mankind in its quest for justice and the rule of law in statal affairs has become in some eyes rather a calling for rogues and those given to sharp practice with the property and financial affairs of others.

Of course, none of this is new. Whether justifiably so or not, people have throughout history viewed the profession with disfavour, to such an extent that the barbs that have been written pertaining to lawyers could fill a small library.

Some have the very highest authority. In Luke 11:45-52, in response to one lawyer’s assertion that in accusing the Pharisees of “loving the most important seats in the synagogues and respectful greetings in the marketplaces” and likening them unto unmarked graves that people unwittingly walk over, he had also insulted the lawyers, Jesus responded, “And you experts in the law, woe to you, because you load people down with burdens they can hardly carry, and you yourselves will not lift one finger to help them. Woe to you, because you build tombs for the prophets, and it was your ancestors who killed them. So you testify that you approve of what your ancestors did; they killed the prophets, and you build their tombs”.

Much later in his history, Henry VI, Part II, Shakespeare put it in the mouth of Dick the Butcher, one of the followers of the anarchist rebel Jack Cade to say, “The first thing we do, let’s kill all the lawyers”, although there is a cogent argument to the effect that this is rather a back-handed compliment to the profession in that it was Cade’s wish to disrupt law and order so that he might become king. Indeed, if we read on, Cade would have had even those such as the Clerk who could read and write put to death by hanging “with his pen and inkhorn about his neck”.

And in his chapter on Defamation, the learned author of Winfield & Jolowicz on Tort (17th edition), when searching for an example to illustrate the rule that the publisher of defamatory information about a group is not ordinarily held liable in defamation to a member of that group, chose, perhaps unintentionally, the dicta of Willes J. in Eastwood v Holmes to the effect that, “If a man wrote that all lawyers were thieves, no particular lawyer could sue him unless there was something to point to the particular individual…”

Members of the legal profession are naturally concerned about their declining public image and are intent on doing something about it. In an article published in Volume 50 of the DePaul Law Review entitled “The Public’s Perception of Attorneys: A time to be Proactive”, Robert Clifford, an attorney-at-law, notes that the image of the lawyer has deteriorated from the fictitious portrayals of television hero Perry Mason or To Kill a Mockingbird’s Atticus Finch to a stage “where a beer brewery thinks it can improve profits by running commercials depicting lawyers as rodeo cattle”.

He blames the distortion of lawyers’ behaviour on television shows and the movies for having contributed to the mistaken impression that zealous advocacy calls for “rude, aggressive and often dramatic techniques”.

However, while acknowledging that legal professionalism exists today in a milieu filled with conflicts such as fierce competition, time constraints, client pressures, unwieldy rules and the superiority of the bottom line, he advocates that the adversarial nature of law practice should not act as an excuse for incivility but should provide a reason for lawyers to educate the public about what lawyers do and why they act as they do.

He further recommends mentoring, which he describes as something that cannot be taught in law school or instruction in an ethical approach to practice as one way to raise the bar (no pun!)

The Honourable Justice Dennis Morrison QC, the President of the Court of Appeal of Jamaica, has also endorsed the ethical approach to law practice. In a recent address to the Barbados Bar Association, “The Ethical Lawyer –Burnishing the Brand”, his Lordship drew on an extract from one legal scholar who had commented earlier in a similarly titled piece, “The title, the Ethical Lawyer may be viewed by many as a contradiction, a paradox or even an oxymoron. Indeed, the perception amongst the majority of persons is that lawyers are deceitful, manipulative people who are motivated by sheer avarice. The image of the lawyer as a shark or other savage creature is not uncommon…”

Morrison then goes on to recount the transformation of Atticus Finch from the iconic defender of justice and the black accused, Tom Robinson, in “To Kill a Mockingbird” to the cynical segregationist in the harper Lee sequel “Go Set a Watchman” and posits that this mimics the transformation in the public eye in the image of lawyers from that of crusaders for right, symbols of ethical conduct to that of cynical, self seeking predators. He contends that for all those lawyers who believe that most lawyers are hard working professional who strive to uphold the honour and dignity of the profession, this must rank as high among the saddest transformations of our time. I shall continue this discussion in a future essay.

To be continued…