On Martin Luther King Day 2014 – Re-Imagining the Law

martin_luther_kingWhen at the beginning of 2014 we scheduled the launch of our virtual platform for our consulting practice introducing to the world our new ethos, we had no idea that the day we chose, January 20th, 2014, was in fact Martin Luther King Day 2014. When I found this out, just a few days ago, I was stunned at what some may perceive to be a serendipitous occurrence but what I saw as a powerful personal confirmation that the decisions that I had taken to close the doors to my legal practice in the last quarter of 2012, to regroup, to meditate and to be re-inspired in the practice of the law were the best decisions for me.

As I celebrate the formal opening of Rose Law Caribbean on Martin Luther King Day 2014 I remember one of the principal catalysts to my own personal transformation in the appreciation of the role of law and lawyers in modern society after reading a book on Martin Luther King sometime in April 2013.  So inspired was I, that I started a facebook page called The Conscious Lawyer to share my thoughts about the changing role of lawyers in society and to share legal updates reflective of such changes and joining with other colleagues all over the world in promoting a legal reformation of sorts emphasizing the healing and empowering attributes of the law.

Martin Luther King Jr. who is best known as the civil rights leader who guided a peaceful protest of the racial injustice that was prevalent across the United States has been recognized as a transformational force on the civil rights front but less so within the legal profession.  Our less than enthusiastic engagement with Martin Luther King Jr, the lawyer, may be because his normative commitments, seemingly more apt for the pulpit than a legal consultation, tend to fly in the face of what we for a long time considered to be "good lawyering".

I qualified at the age of 23 and almost immediately embarked on a criminal practice in the chambers of now deceased Theodore Guerra SC. I remember time and time again as I provided advice to clients over the last two decades having to face conflicts between my position of conscience and the advice that I was giving.  What was in the best interests of the client, though lawful, did not necessarily meet my standards of moral conduct in society or put another way our moral or community responsibility as co-habitants in society. As a young criminal attorney I learned fast that in order to provide objective advice I had to learn the art of compartmentalization to such a degree, that one did it without even thinking. However, even though I recognized this dissonance, I continued like a good and faithful servant of the profession to advise clients only on their legal position. The practice of criminal law brought home to me in a very real sense the dangers and the unmanageable complications that could arise if lawyers mixed their personal opinions into the giving of advice or in casting moral judgment while receiving instructions.  In the legal profession compartmentalization is the order of the day and it is not difficult to see this similar compartmentalization in the area of business.  Praying at the altar of the shareholders best interests all other interests are statutorily collateral.

Our profession embraces a theory-driven fiction of sorts of a rights-bearing individual who stands alone without context, commitments, moral or social responsibilities. Clients do not come to us for our moral advice, or for our opinion on an issue if we ourselves were in the position.  Clients come to us for legal guidance simpliciter - What can or cant we do here?  What are our rights?  What are our obligations? And to these we lay out the playbook of options, advise of the benefits and disadvantages of each option (from a legal and sometimes economic perspective, of course) and support the client in the route they choose.   As the law changes to embrace more community responsibilities in the areas of the environment and health and safety, we as lawyers dutifully respond by including same in our playbook.

Unless our normative and moral commitments overlap or coincide with the client's interests, they are irrelevant to - and perhaps a dangerous distraction from - the lawyer's work. Or so it is argued.  This view which in fact, underpins the Ethics Code for lawyers in most jurisdictions was articulated by William Simon in The Ideology of Advocacy - Procedural and Professional Ethics as one of two fundamental principles of the ethics of legal advocacy as traditionally understood (1) the principle of neutrality requiring a lawyer to "remain detached from his client's ends" and (2) the principle of partisanship which "prescribes that the lawyer work aggressively to advance his client's needs" and "employ means on behalf of his client which he would not consider proper in a non-professional context even to advance his own ends".  So that not only is the lawyer's moral agency suspended as to the client's choice of objectives, it remains suspended as to the client's pursuit of those objectives.

More recent defenders of this approach to the practice of the law assert that this ethos is "grounded in the logic of service, not identification" (Norman Spaulding, Reinterpreting Professional Identity 2003).  Whilst I appreciate the need for lawyers to disentangle their interests from that of their clients and for a client's lawful interests to be autonomous, as I look around at the world today and the role of lawyers in it, I urge the question of whether the legal profession needs to develop a more flexible ethos given the plethora of examples where this rights-bearing individualist premise manifests in anti-social behaviour.  Prudent concern for the client-centered nature of legal representation should not be allowed to obscure the importance of engaging clients on the relational/community repercussions of their actions.  In short, how does the act of the client impact his society, his employees, shareholders, colleagues, associates and family? What of the client's relational interests? What of unregulated relational accountability?  By subordinating these issues to the assertion of legal rights and achievement of economic gain of a client, a lawyer may be unwittingly facilitating and/or deliberately contributing to ant-social decision-making.  Advising clients solely on issues relating to legality portrays a minimalist approach to the practice of the law and sometimes allows us to miss opportunities to help a client heal, become empowered or to maximize their potential in the midst of a legal issue or crisis.

According to Prof. Deborah Rhode, Stanford University and Director of the Stanford Center on the Legal Profession, if Enron's lawyers had "brought a stronger, more objective and more critical voice to the disclosure process" as opposed to allowing their clients to dangle on the precipice of legality much of the debacle might have been averted. See for further discussion Deborah L Rhode & Paul D. Paton Lawyers, Ethics & Enron, Stanford J.L, Bus. & Fin.9 

As Senator Fred Thompson also noted "the real scandal here may be from not what is illegal, but what is totally permissible. . . . The system is clearly not designed with the interest of the general public or the investor in mind.” (See The Fall of Enron: How Could This Have Happened: Hearing Before the Committee on Governmental Affairs, 107th Cong. (Jan. 24, 2002), (Statement of Sen. Fred Thompson, Senate Governmental Affairs Committee).

Disregard for relational accountability issues can also be seen recently when the Catholic Church's lawyers adopted a no-holds-barred approach to contesting sexual abuse lawsuits, including opposing discovery requests and forbidding contact or apologies between bishops and victims.  Only 5 days ago the Catholic Church in Chicago agreed to hand over thousands of documents relating to sex abuse allegations to victims' attorneys who have for years (since 2005) fought to hold the Catholic church accountable for its handling of such claims.  Arguably the lawyers were exacerbating the damage that had already been done to relationships that are part of the church's mission and institutional identity.

I accept that these are arguable propositions only and weight of opinion may be against this perspective. There are those who may argue that the lawyers for Enron and the Catholic Church acted lawfully and even laudably as conduits of their client's stated objectives. However, failing to call upon clients to reflect critically on the wisdom and relational implications of their objectives provides a missed opportunity for clients to maximize opportunities to be more strategic and holistic in the midst of challenges.  According to Paula Schaefer

"While lawyers defend a technical approach to legal compliance in the wake of a scandal, their clients are often the casualty that lies in the background.  The argument seems to be that this is what the client wanted, so it is too bad the client was harmed in the process.  What the argument misses is that perhaps the client did not make an informed choice to engage in the liability-creating behaviour because the lawyer never provided that advice.  Rather the lawyer zealously pursued the client's stated agenda in a manner that technically complied with some aspect of the law, but nonetheless created liability that a knowledgeable client may have chosen to avoid." (See Paula Schaefer, Harming Business Clients with Zealous Advocacy: Rethinking the Attorney Advisor's Touchstone, 12)

It is clear from his speeches and from his writings, which view of the practice of the law was held by the late Martin Luther King Jr. In his book Martin Luther King Jr. and the Morality of Legal Practice, Robert K Vischer explores among other issues Martin Luther Kings views on the role of lawyer as healer, lawyer as prophet and lawyer as subject.  Vischer urges that King's example should inspire the legal profession as a reminder that truth telling, even in a society that often appears "morally balkanized", has the capacity to move hearts and minds.  At the same time Vischer states that King's example should give the legal profession pause for thought, for King's success would have been impossible without his substantive views about human nature and the ends of justice.

As a lawyer in the 21st Century, I believe the time has come for the legal profession to provide thought leadership on human nature and the demands of social and economic justice.  It is becoming recognized that some of the economic theory upon which we have ordered our markets and ourselves no longer serve us. The theory of an "economic man" with only self-serving approaches to procurement and supply is now being heavily criticized by academics and practitioners across the board in favour of a more holistic understanding of human nature and human motivations in markets.  Similarly, I would proffer that the de minimis/ minimalist approach to the practice of the law (i.e just enough to escape legal liability) is based on an abridged version of man as well, a sort of "regulated man" i.e. a man whose only concern is compliance. Lawyers are more than amply suited to advise clients over and above mere compliance.  Understanding the world of compliance provides the best foundation to advise clients on how lawfully to maximize their conduct in a way which supports a more just and equitable world.

Whilst one could quite correctly advise a client that there being no regulation governing his or her conduct in a particular transaction that there is no risk of legal liability, a 21st Century lawyer may wish to go further and advise, in the context of some of the challenges facing the globe, or his/her local community, that there is another way to act, which could provide greater equity or justice.  A client may choose to follow or not to follow the advice but the lawyer would have been the conduit for more holistic advice which can provide a source of inspiration to clients to participate in broader societal goals.

The question of law and morality is a belaboured one, and one which I have settled in my own mind as being inextricably intertwined.  In a perfectly operating society, what becomes law is a function of the level of acceptance of a particular norm or standard of morality.  The acceptance of a particular norm or standard of morality requires the active involvement of each of us.  However, no society is perfect, if there are laws or lacunae in the laws which are no longer reflective of us, we can encourage clients lawfully to challenge, create and innovate. For the first twenty years of my practice I did not do enough of that, for the rest of my professional life, I propose to do only that.

There is now a growing consensus globally on the issues that we agree to be reflective of our understanding of humanity and justice.  According the Universal Declaration of Human Rights we now recognize at a global level the inherent dignity and the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world.

As we follow closely the Reparations claim currently being considered by the post-slavery CARICOM member states, we are mindful, that despite the legal obstacles which the claim inevitably will face, there is a broader social value to the understanding the multiple interests affected by the trans-atlantic African slave trade.  Moreover the political reconciliation effort which it may catalyse can contribute to creating a more just playing field within the global economic system.

According to Martin Luther King Jr. "Our lives begin to end when we become silent about the things that matter."

This is the ethos of Rose Law Caribbean.  We are re-imagining the law, looking to its highest purpose and potential:

- Healing relationships and holistic dispute resolution as opposed to merely focusing on the win-lose-paradigm.

- Maximizing clients positions by managing risk arising from legal issues both in and out of the courtroom underpinned by a bias (yes bias) in favour of preventative legal and strategic mechanisms.

- Empowering clients to take responsibility as global citizens and to become active participants in building a just, fair and equitable world

Our areas of operation are in Public Procurement, Integrity Management, Community Law & CSME, Dispute Resolution, Crisis & Litigation PR and Social Entrepreneurship.  Rose Law Caribbean is more of a business consulting practice than a law practice but we engage lawyers to provide holistic advice to clients.

We want to be part of the change we want to see in the world and we appreciate and seek out the opportunity in every transaction, regardless of how mundane, to make this world a better place.  We are committed to the Millennium Development Goals.

I had dreamed about creating a virtual platform of this kind in the Caribbean since 2004.  I started the project and stopped and started again and stopped with the flow and ebb of the viscisitudes of personal and professional life. Now in 2014, as a professional with a more mature awareness of the role that I wish to play in co-creating a just, fair and equitable world, I am thankful that this dream is being fulfilled today and not before.  I am grateful for the opportunity to use technology, creativity and compassion to be a part of the solution to our millennium challenges.

Our lawyers, strategic affiliates and clients are those who share our ethos, our approach to legal problem solving and our view of our role as advisers in modern society.

Over the coming weeks we will share more with you on how we are leveraging technology, utilizing alternative billing arrangements and engaging non-legal specialists in order to provide a more holistic service to our clients.

Happy Martin Luther King Jr. Day 2014 and Welcome to Rose Law Caribbean.  We are now live at www.roselawcaribbean.com.

Margaret Rose

Managing Partner

Rose Law Caribbean

info@roselawcaribbean.com

www.roselawcaribbean.com

PS - We are still in Beta testing mode.  While all the functionality on the site should be working, we have only been live for a couple of hours so we are still working out the kinks and we are still in the process of updating some of our pages.  If you cannot find the information you are looking for please send us an email at info@roselawcaribbean.com