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Lawyers and the fight against ethical ambiguity
However, the code does not specifically prohibit a lawyer from counseling or assisting a client to engage in a wide variety of misconduct that is not criminal.
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n a democratic society, everybody has a right to a fair trial and people have a right to counsel. The state will allow them to have a lawyer if they can find one they can afford. Every suspected terrorist, mass murderer or corrupt official needs a lawyer.
But, how do you defend a person who you know is guilty? Some lawyers think of themselves like a doctor. If a patient enters the emergency ward, the doctor will take care of him or her. A lawyer does not defend a crime, but a criminal. Their defense is not an endorsement of those crimes.
According to Law 18/2003 on advocate, lawyers are also law enforcers. This idea highlights a very important dual role that lawyers serve that a lot of people tend to forget, especially clients. Lawyers do not represent clients’ interests at all costs. There are certain things that lawyers are not allowed to do, even if it is in the interest of their clients.
When Djoko Tjandra returned to Indonesia, he did so as one of the most wanted persons. The fugitive tycoon acquired a new ID card and passport, filed a case review and traveled around the country, before disappearing again.
What about his lawyers who defend him? I am sure they are committed to their role to protect their client’s rights. Perhaps they see their client as a human being in a difficult situation, who might or might not have made a mistake and find himself being churned through the machinery of our criminal justice system. In this case, if the lawyer fails to respond to the media’s questions or the society’s accusation, then the lawyer will be accused of “hiding” the client. Lawyers cannot please all parties, nor should they try. These are the problems that only lawyers can appreciate.
With lawyers, there are ethics. The Honorary Council or Dewan Kehormatan of the advocates association is responsible for making sure that lawyers play by the rules, and those rules are Law 18/2003 and the Advocates Ethics Code (code). Both prescribe conduct that is expected of lawyers in their relationships with the client, the public and the legal system. There is no ambiguity in either document that a lawyer may not counsel his client to engage in a crime or fraud and may not assist the client should the client chose to do so.
However, the code does not specifically prohibit a lawyer from counseling or assisting a client to engage in a wide variety of misconduct that is not criminal, fraudulent, or otherwise prohibited by the code.
Article 4b of the code implies that a lawyer may actively counsel his or her client about the criminal or fraudulent nature of the activity and help the client understand the consequences of proceeding. Only if that latter counseling encourages the crime or fraud, the lawyer may be considered to be violating the code.
Further, Article 6 of Law 18/2003 stipulates that the association can discipline a lawyer that violates laws and regulations. However, there is no further explanation on how this article should operate. From the wording it can be argued like this: Lawyers are allowed to assist clients in their wrongdoing so long as the client's dishonest behavior is not criminal, fraudulent or in violation of a court order. But if the representation of the client requires the lawyer to break the law, the lawyer may not continue with the representation and must withdraw.
Can a lawyer refuse to represent a client for moral/ethical reasons? Absolutely. The rationale for this is that clients should retain a lawyer that will be guaranteed to act in their best interests, and that a lawyer who has a moral issue with the case cannot actually be trusted to do so and probably will deliver sub-standard.
Assisting a client in wrongdoing may expose the lawyer to some liability. A lawyer who does not choose to accept that risk has sufficient grounds to refuse the client's request or cease working for the client, even if this action ends up harming the client’s interest.
But some lawyers do not agree with this approach. They believe that they are not tarred morally by their clients' character, underlying intentions or by the outcome, as long as they do not participate in law-breaking themselves. My opinion is rather conservative. I think you are tainted by the bad actions of clients that you facilitate in your work as a lawyer.
A lawyer does not in most situations have to take on a client. If you think the client is trying to do something terrible, illegal, and wants to use your lawyer skills to do harm, you do not have to take the case. You should not take the case if you think it would be better for society or if your client is enforcing his legal rights, but is using his legal rights in a bad cause.
Let’s take a step further. Lawyers have to normalize refusing clients on nonlegal grounds. It does not mean lawyers could deny service to anyone who is unpopular or when the community reaction is adverse. It means they may refuse on the grounds that the clients in question are doing more harm than good. However, in a scenario in which certain individuals can only get you as a lawyer to represent them, and there is a chance that they would be treated unfairly by the system if they do not have a lawyer, then you have the duty to take such a case to prevent abuse of their rights because they are being unrepresented.
Lawyers have the freedom to pick cases. Yet, if lawyers think the outcome of counseling the clients would damage the trust of society in our national legal system, lawyers should decline to participate, even though they would not be doing anything that came close to violating the law or professional ethics.
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The writer is lawyer at a law firm in South Jakarta.
