Dishonest doctors and lawyers who deliberately lie and cheat to help patients and clients avoid testifying in court are unethical and a disgrace to their professions, writes Professor Pierre de Vos, referring to the slew of alleged “sick notes” presented by witnesses during the Madlanga Commission of Inquiry.
De Vos writes:
In a speech at the launch of a new book entitled Legal Ethics in South Africa, Justice Mbuyiseli Madlanga repeated an old joke to emphasise the point that the public may not hold the legal profession in high regard.
The joke is about the epitaph on a lawyer’s tombstone: “Here lies a lawyer, and an honourable man”. To which passers-by would remark: “How could they bury the two together?”
In his speech, the former Constitutional Court judge, who currently heads the Commission of Inquiry into Criminality, Political Interference and Corruption in the Criminal Justice System, called on all lawyers to play their part in bringing back honour to the profession.
The same goes for medical professionals who knowingly go along with obviously dishonest ploys that help their patients avoid court appearances.
Fraudulent ignorance
Lawyers don’t only have a duty to their clients, whom they must represent to the best of their ability, but also to the court, whom they may not mislead. They may not advance facts they know to be untrue or invoke court judgments they know have been over-ruled: if they do so, they are behaving unethically and not fit to be members of the profession.
“I’m not suggesting,” Madlanga said in his speech, “that lawyers must not represent clients who lie, cheat, or are dishonourable.
“But what lawyers must never do is to be the source of their client’s lies. Nor must they help advance their lies. They must never be party to cheating. They themselves must never be tainted by dishonourable conduct. After all, they are officers of the court. As such, they have a duty to assist the court and not pull the wool over the eyes of whoever sits in judgment.”
But as Madlanga also suggested, the line between lying to the court, on the one hand, and advancing dishonest claims made by your client without knowing for a fact that it is a lie, on the other, is not always that clear.
It becomes an ethical problem when lawyers dodge the prohibition on knowingly advancing their clients’ lies through “fraudulent diligence in ignorance”. This they do by taking every precaution to remain ignorant of any information that might expose them to the truth of their client’s lies, with the express purpose of being able to advance those lies in court (or before a Commission of Inquiry) without falling foul of the ethical rules of the profession by which they are bound.
This reminds us that there is often a gap between what is legally permissible and what is right, and that in the absence of ethical judgment, it becomes impossible to uphold this distinction.
Some lawyers may scoff at the distinction and contend that no matter how implausible or far-fetched the factual claims and legal arguments they’re prepared to make on behalf of their clients, what they are doing is lawful.
But they would be hard pressed to claim that their actions are ethically justified, let alone that they are champions of justice.
Harming professions
Lawyers are, of course, not the only culprits.
Members of other professions – medical practitioners, psychologists, and chartered accountants among them – also sometimes allow themselves to become part of some or other scheme to protect clients from the legal consequences of their actions.
Specifically, I’m thinking of the list of dodgy witnesses who seemed about as eager to testify before the Madlanga Commission as Jacob Zuma has been to have his day in court, but who then all mysteriously fell deathly ill on the eve of their scheduled appearances.
Presumably, they had all obtained sick notes from medical professionals, which were then submitted to the commission by their legal team, lending a semblance of credibility to claims that would otherwise have been laughed out of court.
It’s not surprising, then, that criminal suspects and people implicated in wrongdoing would turn to well-paid medical professionals and lawyers to help them bolster their often highly implausible excuses for being unable to testify.
Many pay very good money for such services, because these experts have a relatively high status and are generally viewed as credible. Their professional opinions can bolster the cover for a cockamamie story concocted by a suspect or dodgy witness.
But to ensure this does not damage the esteem and credibility of their profession, it is pivotal that medical professionals and lawyers do not willingly and dishonourably allow themselves to be used to promote dishonest stories concocted to mislead a court or a commission of inquiry.
It is also important to understand that when professionals abdicate their responsibility to act ethically – with the excuse that what they’re doing is not strictly speaking unlawful or in breach of their professional code of conduct – this has the potential to harm the profession as a whole.
‘Stinks of machinations’
Alleged “businessman” Suliman Carrim, against whom the Madlanga Commission recently laid criminal charges for contempt after he again failed to honour a subpoena to testify, had, for months, used every trick in the book to avoid testifying, claiming, among other things, that he was too sick to do so, a claim allegedly supported by medical reports submitted by his legal team.
Madlanga was scathing about the unnamed doctor who had changed his story about who could give permission for Carrim to leave his hospital bed – after Carrim was spotted shopping and dining at a Cape Town mall during his so-called illness.
“We do not consider Mr Carrim’s doctor to be an objective expert,” Madlanga said, suggesting the doctor might be closer to a “hired gun”.
“He is an expert closely associated with Mr Carrim and who, from where we are sitting, unless we get another opinion, appears to us to be pushing Mr Carrim’s story.”
The does not reflect well on Carrim’s medical and legal team. To borrow the words of Commissioner Sesi Baloyi at another hearing: “It stinks of machinations”.
While it is possible one or more of the witnesses had indeed fallen ill just in time to avoid testifying, I don’t, for a second, believe that all of them became gravely ill in such a timely fashion. And I find it difficult to imagine that all of the doctors and lawyers involved would have believed these stories.
I suspect some professionals who participated in the sick note schemes might have resorted to the old “fraudulent diligence in ignorance” excuse to protect themselves from accusations of unlawful ethical behaviour.
Others, not excluding Carrim’s doctor and his legal team, may truly have been taken in by their patients or clients.
But how do any of them sleep at night?
Professor Pierre de Vos is with the department of law at UCT.
See more from MedicalBrief archives:
Plague of ‘useless’ sick notes impeding judicial processes
Zuma’s ‘ life-threatening emergency’ again spotlights the weaponising of medical testimony
Why the courts are sceptical about sick notes