Disbarment of lawyers from law practice around the globe

Law-school classes on professional Ethics and Etiquette are predicated on the ground that the profession of law is a noble one. Its members, that is advocates, should be the most accountable, privileged and erudite persons of the society.

The role of lawyers in the society is of great importance. Being part of the system of delivering justice holds great reverence and respect in the society. People who are not lawyers are rarely persuaded by this claim – and sometimes for good reason.

But when Rudy Giuliani had his law licence temporarily suspended by the New York Supreme Court sometime in June, these claims resonated to lawyers and non-lawyers as more than idle statements. Giuliani is a distinguished layer and politician who has been the Mayor of New York.

He was the lead attorney for Donald Trump in the several attempts the former president made to challenge the results of last year’s presidential elections. It is for this that Giuliani was suspended from practicing law in the very state where he was the mayor.

The charges for the suspension were that while handling the brief for President Trump, Mr Giuliani as a lawyer made “demonstrably false and misleading statements” in his effort to overturn the election and thereby brought himself and the profession into disrepute by making what he knew to be untrue in statements.

This comes from the professional ethics rule that an advocate should not knowingly facilitate perjury by supporting a client in making clearly false statements in a court. Put differently – and surprisingly for many non-lawyers whose thought is that that some falsehoods are the stock-in-trade of the profession – an advocate should not allow the client to tell lies before a court.

The New York Supreme Court’s Appellate Division will hold a formal disciplinary hearing at which Giuliani can make his case and which will lead to a determination as to whether his licence to practice law should be permanently revoked.

The issue here is that the profession is serious about the manner in which lawyers conduct themselves and handle cases for their clients. The professional ethics adage that speaks to this scenario is that the client may pay an advocate fees but the ultimate client is the rule of law!

Decades before Giuliani, another lawyer who fell into trouble that resulted in the revocation of his right to practice law was John Dean. He was White House counsel when Richard Nixon was president.

In his zeal to serve the President, Dean became involved in events leading up to the Watergate burglaries and subsequently became the master manipulator of the cover-up. He was charged for this, pleaded guilty to a single felony count in exchange for becoming a key witness for the prosecution and disbarred from practicing law.

He rehabilitated his professional standing and now teaches an ethics course, which the Supreme Court of Illinois has certified as required continuous professional course that attorneys must take bi-annually.

Those who followed O J Simpson’s trial for murder in 1995 will undoubtedly be familiar with F Lee Bailey, who was one of the lawyers on the defence team in that trial. Known for being an incisive, fast-thinking cross-examiner with a sharp memory, he was choice defence counsel for many people charged with serious crimes in the United States.

In 1996, he was convicted of contempt of court. He was accused of failing to surrender to the court stock and money that a drug-dealer client had given him. He claimed that this constituted his fees for representing the client.

The Bar Associations in Maine and Massachusetts considered him to have engaged in egregious misconduct. He was then removed from the practice of law in those states. Lee Bailey’s attempt to be allowed back to practise law was denied. He died this year as a legal consultant and adviser to lawyers.

Even President Bill Clinton had his licence to practice law suspended in Arkansas where he had been governor and attorney-general of before he was elected President. The reason for this was that the Arkansas Supreme Court committee on professional conduct found that he had engaged in misconduct by giving what was deemed untrue testimony under oath in a case. The Arkansas bar suspended his right to practice for five years.

Flowing from this disbarment in Arkansas, the United States Supreme Court ordered President Clinton to be disbarred from practising law before it and gave him time to contest the order before it was made permanent. He instead resigned to avoid permanent disbarment by the Supreme Court.

However, professional misconduct for a lawyer is not just necessarily criminal action. Just this week, the Solicitors Regulatory Authority in England ordered that a solicitor be struck off from the profession for making racist and misogynistic remarks.

Victor Stokinger told an Afghan human rights lawyer to return to her country and educate the Taliban. He also told an African who was in that function that Africans lacked sound business acumen. In his defence, the solicitor argued he had expressed these opinions in jest and that the complainants represented thin-skinned wokeism.

In finding that the solicitor had misconduct himself, the Tribunal said that all solicitors as legal practitioners must conduct themselves in a way ‘which reflects everyone’s personal characteristics’ and added that solicitors should ‘embrace the qualities of equality, diversity and inclusion’.

In India, advocates have been struck off the roll or disbarred for the act of bringing the profession into disrepute. An advocate, while appearing in a suit as a counsel, wrote a letter to a client and asked for money to bribe and influence a judge to obtain a favourable order.

The disciplinary committee stated that such an act made the advocate “totally unfit to be a lawyer”. On appeal, the Supreme Court upheld the finding of the Bar Council and stated that the legal profession is not a trade or business. Advocates have a duty to uphold the integrity of the profession and to discourage corruption in order to ensure that justice is secured in a legal manner.

The first indigenous Kenyan admitted as an advocate, Argwings Kodhek, did not have it easy. There were constant claims and complaints against him which included misappropriation of clients’ money and failure to pay taxes and debts.

Harassed

Most of these were believed to have been spurious and meant to harass him for his political actions. In 1956, a court gave judgment in favour of a client who claimed he had withheld her money.

The advocates’ committee filed a case demanding that Argwings-Kodhek be struck off the roll of advocates for professional misconduct.

He was struck off the roll of advocates despite an appeal to the High Court. For 12 years, Argwings-Kodhek could not practise law until he was readmitted in 1968, just a few months before he died.

This shows that the legal profession the world over is concerned for its stature. A lawyer, in discharging his professional assignment, has a duty to his client, a duty to his opponent, a duty to the court, a duty to the society and a duty to himself.

That is what Giuliani and many advocates fail to remember too often.