Role of lawyers and advocates in India

Posted on Posted in Legal Consulting

I am extremely happy that India Decision Management has unveiled itself before the netizens. Being part of the IDM legal team has its fair share of opportunities and challenges. This being my first post I will confine myself to generic themes of law and litigation.

I had attended a 2 day conference on the “Rule of Law” organized by the Bar Association of India last month wherein a bevy of legal luminaries spoke on the oft repeated topic. Listening to them let a breath of fresh air to the cynical minds of the legal fraternity.

Mr. Fali S. Nariman, Senior Advocate portrayed the present state of affairs by means of an interesting anecdote as under:

“When a man jumps into the river and drowns to his death it is case of suicide, when a politician does likewise it is case of river pollution.”

The growing disenchantment with the political class as a whole has widespread ramifications on the future of Indian polity.

I foresee a similar scenario for the legal fraternity.

The Indian Constitution through its Preamble proclaims securing Justice – social, political and economic for We – the People of India. The Judiciary and the Advocates (commonly known as the Bar and Bench) play a vital role to ensure proper Administration of Justice.

In the present legal framework and with the advent of the ICE age (Information Technology, Communications and Entertainment) the role of the Advocates as Legal consultants, Law Officers and litigation experts has undergone a sea change.

In the above context the ancient adage holds true – The more things change the more they remain the same.

The common chord ringing through the voice of the legal luminaries like Mr. P.P Rao, Fali S. Nariman, Soli. J Sorabjee, Ram Jethmalani, Anil B. Dewan etc. who addressed the 2 day conference mentioned above was that while adapting to the changes circumstances the legal fraternity must hold steadfast to its core principles, some of which have been very succinctly mentioned in the rules governing the conduct of advocates by the Bar Council of India. The Preamble to Chapter II of Part VI titled Standards of Professional Conduct and Etiquette captures the demeanor of an Advocate as under:

“An advocate shall, at all times, comport himself in a manner befitting his status as an officer of the Courta privileged member of the community, and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may still be improper for an advocate. Without prejudice to the generality of the foregoing obligation, an advocate shall fearlessly uphold the interests of his client and in his conduct conform to the rules hereinafter mentioned both in letter and in spirit. The rules hereinafter mentioned contain canons of conduct and etiquette adopted as general guides; yet the specific mention thereof shall not be construed as a denial of the existence of others equally imperative though not specifically mentioned.”

Of these the following phrases are noteworthy in their meaning and context:

  1. An advocate must comport himself in a manner befitting his status as an officer of the Court
  2. An advocate must comport himself in a manner befitting his status as a privileged member of the community
  3. An advocate must comport himself in a manner befitting his status as a gentleman
  4. An advocate must comport himself in a manner bearing in mind that what may be lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may still be improper for an advocate
  5. An advocate shall fearlessly uphold the interests of his client and in his conduct conform to the rules hereinafter mentioned both in letter and in spirit.

The above unequivocally proclaim the exalted status of an Advocate in India but saddle him/her with responsibility not limited to the client but in strengthening the justice delivery system thereby establishing the Rule of Law.

Thus the Advocate in India is neither a mouthpiece for his /her client or a servant of the Court, rather he/she is expected to give sound legal advice to his/her client and fearlessly state his case before the Court. He/she is not expected to fraternize with either his client beyond maintaining a strictly professional relationship nor appear before a court whose members are related to him personally or professionally.

In a recent judgment rendered by the Supreme Court of India it was observed that it is the duty of the Advocate to correctly state the law including case laws involving the same subject matter wherein the issue was decided against his/her clients interest as the primary duty of the Advocate was to ensure proper administration of justice. In the process, if the advocate loses the faith of his/her client it shall be a temporary loss of faith. However, if the Advocate is found to be misleading the Court it would cause a permanent loss of faith of the Court on him/her.

There is urgent need for change in the public expectation with respect to legal advice given to them. Prospective clients need to be aware of the fact that there is difference between rendering sound legal counsel/advice to address their problem and legal advice tailor made to suit their problems. The latter can never stand judicial scrutiny and shall weaken the legal fabric of their institution.

Just like a good doctor does not give medicines on but prescribes medicines to combat the disease afflicting the patient, similarly there is need for prospective clients to verify that the legal advice/counsel rendered by the Advocate is based on sound legal premise.

A true Legal professional will not render advice governed by the client’s expectation. A true legal professional will not render advice prejudiced by his personal convictions. A true legal professional will only render legal advice – plain and simple. To expect anything else is a fallacy.

Looking forward to sharing similar thoughts in my next post.

Have a wonderful day.

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