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PROFESSIONAL ETHICS NOTES

Contents
Week 1-2- Philosophy, Morality etc. 2
Plato’s Apology of Socrates 2
Plato’s Meno 3
‘Should Lawyers listen to Philosophers about Legal Ethics?’- MBE Smith 3
‘If Philosophical Legal Ethics is the Answer, What is the Question?’, Alice Woolley 4
Week 3- Lawyer-Client Relationships 5
Charles Fried, The Lawyer as a Friend 5
Paul Lannon, A Lawyer In Pursuit Of Truth and Unity: Mohandas Gandhi and the Private Practice of Law 8
Wasserstrom (Optional oureading, these few points are from Chip’s notes) 10
Week 4 & 5- Statutory Provisions 10
Legal Ethics in an Adversary System: The Persistent Questions (Deborah L. Rhode) 10
Professional Responsibility of the Criminal Defense Lawyer: Three Hardest Questions (Monroe Freedman) 12
Week 6- Institutions and Structural Framework – Consumer Protection 14
The Myth of Self-Regulation- Fred Zacharias 14
Can a Reasonable Doubt Have an Unreasonable Price? Limitations on Attorneys’ Fee in Criminal Cases 17
Fees and Retainers from Raju Ramachandran’s Professional Ethics for Lawyers (Lexis Nexis), 2nd Edition, pp. 37 – 53 19
Indian Medical Association v. VP Shanta 1996 AIR 550 SC 22
Jacob Mathew v. State of Punjab and Anr. 23
DK Gandhi v. M Mathias 25
Week 8- Contempt of Court 26
E.M.S Namboodiripad v. T. Narayanan Nambiyar AIR 1970 SC 2015 26
In Re. V. C. Mishra AIR 1995 SC 2348 28
Supreme Court Bar Association v. Union of India AIR 1998 SC 1895 30
What Constitutes Scandalising the Court? V. Venkatesan, Frontline (May, 2001) 32
Contempt of Court- Need for a Second Look, Katju, Hindu (Jan, 2007) 32
Week 9- Adjournments 33
Shiv Cotex v. Tirgun Auto Plast Pvt. Ltd. 33
Ramrameshwari Devi v. Nirmala Devi 34
240th Law Commission Report on Costs of Civil Litigation. 35
Week 10- Right to Strike by Lawyers 36
Week 11- Advertising 39
Hazard, Pearce and Stempel- Why Lawyers Should be allowed to Advertise: A Market Analysis of Legal Services 39
Right to Advertise, Raju Ramachandran 42
Bar Council of Maharashtra v. MC Dabholkar (BCI r 36, Advocates Act s. 35) 43

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Week 1-2- Philosophy, Morality etc.

Plato’s Apology of Socrates
Context

 This text is Socrates’ defence before a jury for two crimes for which he was being prosecuted. The context in which this
monologue is based is that Socrates lived in a society which gave us the first model of democracy (Athens, Greece).
However, the State did not like that Socrates was teaching the public, especially the youth, to question authority. The
irony in this defence is that he was not apologising at all.
 The way in which Socrates taught his students was directly in contradiction to the Sophist tradition. The Sophists taught
their students the art of rhetoric, and were an established institution where young people went to learn. They were
accepted as the wisest members of society. Meletus, a Sophist, went to the Oracle of Delphi to ask her who the wisest
man is. She said that the wisest man is Socrates.
 However, Socrates did not agree with this and made it his mission to prove the Oracle wrong. As a result, he goes around
quizzing the many members of society (Sophists, poets, artisans, etc.) on their craft to show that they are wiser than he is.
This is the emergence of the Socratic Method. But he cannot find anyone wiser. The consequence of his mission is that
members of all parts of society are offended by his behaviour and want something to be done about him.

Text

 He starts with addressing the charges laid down by the prosecutors (Meletus, Lycon and Anytus). He states that while the
rhetoric of the prosecutors was convincing, the virtue of an orator is to speak the truth. Further, the virtue of a judge is to
determine whether what is said is just or not, irrespective of the manner in which it is said.
 The charges against him are:
(i) Challenging the existence of God
(ii) Corrupting the youth with his ideas
 He defends himself by saying that he only asked questions because of the Oracle of Delphi’s proclamation of his
wisdom. He states that he does believe in God, and he believes it is in the name of God that he proves that persons who
claim to be wise are not truly wise at all. Socrates also believes that wisdom and virtue are closely connected. He
undertakes this exercise to examine whether the persons who call themselves wise possess virtue. But if they only call
themselves wise and do not pass Socrates’ test, they cannot be virtuous. Therefore, it is only those who are truly what
they make themselves out to be who can possess virtue.

Plato’s Meno
 In this text, Socrates and Meno are discussing the meaning of virtue, and whether it can be taught. Meno asks whether
virtue can be taught, or whether one picks it up by practicing it, or whether it is something they are born with. Socrates
says he doesn’t know the meaning of virtue and so he cannot yet answer this question.
 Meno attempts to define virtue in the following ways:
o It is relative to the person in question (a housewife should be good at managing the household to be virtuous, for
example). But Socrates argues that several things may be virtues or qualities in a person, but that the essence of any
definition is that it should have something common running through it.
o The ability to rule men, because it makes possible the fulfilment of a person’s purpose. The key to the fulfilment of
purpose, and subsequent happiness, is to wield power. This enables persons to satisfy their desires, which is the key to
happiness. Socrates argues that this power is only good if it is exercised in a just fashion. But justice is only a kind of

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virtue, and there is a difference between the specific kind of something and the thing itself. Therefore, many qualities
may be virtues, but this does not define virtue itself.
o Virtue is the desire to have fine and beautiful things, and the ability to acquire them. This is also in line with the idea that
to experience pleasure and fulfil one’s desires is an exercise in virtue. But this ability to acquire fine and beautiful things
is only a virtue if it is done in a good way, or virtuously. But this is once again, only a dimension of virtuous behaviour.
 Socrates argues that virtue can be taught because for anything to be good, it must be accompanies by wisdom or
knowledge. And virtue is a good thing. Therefore, it is knowledge which can obviously be taught. However, Socrates
argues that if virtue can be taught, there should be teachers of virtue. But there is no such thing. So virtue cannot be
taught. People have, in the past, taught aspects of virtue. They have passed down knowledge that they possess but they
have not made virtuous people. They have only instilled certain kinds of virtue.
 Socrates ends by saying that virtue is present is people as a gift from the Gods. It is innate, and not definable, teachable
or comprehensible as a body of knowledge.

‘Should Lawyers listen to Philosophers about Legal Ethics?’- MBE Smith

 Plato argued that true moral insight is only possessed by philosophers, because only they have sufficient intellectual
training to fully understand it. But Aristotle argued that virtue is gained by acting rightly, and moral insight is basically
derived from the perception of the world around a person. He did not believe in the elitism of philosophy.
 He asks one larger question of whether lawyers should take the scolding from philosophers seriously. He breaks this
down into three individual questions.
o Whether philosophers’ training and experience give them authority to scold lawyers.
o Whether anything substantive has emerged in the scolding that lawyers are morally bound to take to heart.
o Whether lawyers ought to defer to philosophers’ claims about moral principle.
 The short answer to all three is no.
 His response to the first question is that philosophers lack practical knowledge and experience with empirical research.
They only rely on logical reasoning and rhetoric to explain themselves. They do not test hypotheses against what is true,
but what is possible or conceivable. This leaves them with ‘fantastical’ concepts which view all possible implications as
equally likely to occur in reality. There is very little engagement with reality and fact. He says that this is especially
problematic when philosophers are required to be cognizant of empirical fact before forming judgment. He speaks of
hyperadversariality as an assumption of the legal profession, but explains that while it exists, it is not predominant. This
is why philosophical scolding and blanket demands for reform cannot be taken seriously. It does not account for the
diversity of reality, and focuses on the abstract. He also speaks of the assumption among philosophers that lawyers do
not care for the larger moral good in the face of the preferences of their clients. He says that while philosophers suggest
that lawyers should be accountable to third parties for their actions, this interferes with a lawyer’s duty to effectively
represent their clients. This would result in a detriment to those who avail of legal services on the whole.
 His response to the second answer is to explain the morality of lawyers. While lawyers may be faced with the dilemma of
representing clients who are in the wrong, it does not mean they work towards unjust outcomes. Their duty lies in
realising the desires of their clients, to the extent that they are lawful. Further, this dilemma does not arise in non-
adversarial legal work, but the philosophical assumption is not nuanced enough to take that into account. Wasserstrom
argues that lawyers are morally justified provided they are doing their duty and executing their given role, which Smith
agrees with. Dworkin’s ‘Hard Cases’ arise even in the law governing lawyering, but a divergence of opinions does not
open the door to considerations of morality in the executing the duty of a lawyer. Lawyers are bound by legal obligations
as they have taken an oath to abide by the law, and a failure to do so is a violation of their prima facie obligation. Rawls’
principle of fair play is also an illustration of their obligation: ‘a person is under an obligation to do his part as specified
by the rules of a just institution, whenever he has voluntarily accepted the benefits of the scheme or has taken advantage

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or its opportunities to advance his interests’. Further, taking a fee from a client creates an additional obligation to act in
their interest. Therefore, moral obligations play second fiddle to professional obligations, because professional duty is
assumed to encompass moral considerations. There are only few grave circumstances where this may not apply.
 His third response delves into whether legal ethics should be conflated with philosophical ethics. He determines that
morality cannot be regulated and shaped by courses in philosophy, and if a person has received ‘defective moral
training’. Further, it is not the mandate or duty of philosophers to dictate this morality, which is specific to the institution
of law. The law looks for consensus, as an institution. This is something philosophy cannot agree on because it aims to
argue and contradict predecessors in search for new answers. This is not conducive to law. Normative theories are
littered throughout legal education, such as utilitarianism and contractarianism and so on. These are always open to
discussion and criticisms, which have been previously discussed. Excessive philosophical discussion will lead to moral
scepticism among lawyers. This will lead them to question the institution of law and the legitimacy of what they are duty
bound to uphold. This promotes ‘psychological dispositions that are potentially dangerous’ when held by lawyers and
judges. This is a ‘great danger to our legal institutions’ which aim at consensus.

‘If Philosophical Legal Ethics is the Answer, What is the Question?’, Alice Woolley
 Philosophical legal ethics asks three questions:
o What is the standard conception of a lawyer’s role?
o What is the relationship between the standard conception and the more general claims of morality?
o Can what lawyers do be morally justified?
 Woolley is criticising the methodological structure of philosophical legal ethics. She states that this discipline began with
Charles Fried and Richard Wasserstrom. While they agreed that the standard conception of a lawyer’s role is to be a
partisan advocate of a client’s interests, they disagreed on its implications. that anyone who assists a person in pursuing a
legally acceptable end is doing moral good. If it is outside the bounds of the law, it is immoral. Wasserstrom believed
that lawyers are in a moral Catch-22. On the one hand, they can embrace immoral ends for which they advocate or
embrace ‘hypocrisy and insincerity’. Both options are essentially a denigration of moral integrity. This divergence laid
ground for future debates on philosophical legal ethics.
 Daniel Markovits talks about the separation of advocacy and adjudication, and how that justifies a lawyer’s immoral
activities. He describes the adversarial excuse, where the rules governing lawyers’ behaviours ameliorate but do not fully
extinguish the need to lie and cheat as a lawyer. Does this mean a lawyer can achieve a life well-lived? Markovits
believes that a life well-lived involves the achievement of a person’s ‘first-personal commitment’. These are the things
which justify, from a person’s own point of view’, his or her efforts to live according to his or her suitable life plan and
to achieve their own ends. This requires them to re-define their behaviour within bounds of ordinary morality, to achieve
this first-personal commitment. For example, a lawyer is not merely a mouthpiece but a he or she must make the
inarticulate articulate, and commit to fidelity in translation. However, lawyers can use the ‘articulation excuse’ and cede
responsibility for their behaviour as it is not their duty to exercise moral judgment. However, this role re-description can
only work in an institution where it is supported. He argues that the diversity and lack of insularity has made it
impossible for the legal profession to support this. Therefore, lawyers can never live a life well-lived. They will be
unable to justify immoral behaviour.
 Tim Dare takes a different approach. He borrows from Rawls to describe ‘institutional morality’. This means that an
while an institution that appeals to ordinary morality, all that function within it are not held to this ordinary morality but
by the rules of the institution. Therefore, there is a trickle-down legitimacy to all those who function within it. The
assessment of morality occurs at an institutional level and not an individual one. He argues for ‘the pluralist
compromise’, which states that the tools used to judge a lawyer’s morality are wrong and need to be reorganised on a
spectrum. Since we live in a diverse society where there is no agreement on the right way to live, lawyers cannot be held

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to a uniform moral code either. However, rather than advocating radical individualism, Dare says that the role of lawyers
is to facilitate the exercise of individual choice in society, and so they perform an important social function which is
morally justifiable. But lawyers, according to Dare, must also strive to ensure the closest relation between ordinary
morality and demands of legality.
 There are three characteristics of the law governing lawyers:
o Client determination of ends (neutrality and moral non-accountability)
o Lawyer advocacy for, or representation of, client ends (partisanship)
o The constraint of legality, including maintaining the process of the adversarial system
 Therefore, the argument of philosophical legal ethics must account for all three of these characteristics to be fit the legal
institution. An important task of this body of work is to articulate how rules fit within the doctrinal form created by these
aspects. Therefore, arguments from ordinary morality are not sufficient when critiquing the law governing lawyers,
because there are concrete aspects that it does not explore. Therefore, it is important to make institutional and legal
arguments to critique legal ethics so that they are not merely policy arguments.
 Woolley also critiques the ‘first-personal problem’ because of Markovits’ conclusion that lawyers cannot have a life
well-lived. However, she states that Markovits relies on ordinary morality devoid of the nuance that Dare provides in
explaining institutional morality. That is, ordinary morality must apply differently to lawyers. However, lawyers must
also operate beyond that institution, and have a balance between work and home. They must pay attention to the many
roles they play to live a life well-lived. Therefore, a lawyer cannot be judged purely on their behaviour within their role
as a lawyer. His or her life encompasses many parallel aspects, and the morality of their professional behaviour is a
myopic perspective when answering the question of whether a lawyer can be a good person.
 Further, she states that philosophical legal ethics should give primacy to the societal perspective on lawyers’ morality
and not the individual perspective of his or her ethics. In a democratic society, lawyers play a particular role and they are
expected to conform to a particular societal conception. There is no necessary relationship between the ethical lives of
lawyers and the moral justification for what they do. This is the same for all professions (e.g. Immigration officers).
 Finally, the obligations and duties of lawyers are open to be changed as and when better methodologies and conceptions
arise. We should not be afraid to alter the role they play in society, if it is the democratic will of the society in which
lawyers practice.

Week 3- Lawyer-Client Relationships

Charles Fried, The Lawyer as a Friend
 Traditional conception of a lawyer: “a professional devoted to his client's interests and as authorized, if not in fact
required, to do some things (though not anything) for that client which he would not do for himself.”
 The ideal of moral purity- “the ideal that one's life should be lived in fulfilment of the most demanding moral principles,
and not just barely within the law.”
 “Does the lawyer whose conduct and choices are governed only by the traditional conception of the lawyer's role, which
these positive rules reflect, lead a professional life worthy of moral approbation, worthy of respect-ours and his own?”
 The two criticisms of the traditional concept (targeting both the means and the end):
o The first criticism focuses on social harm (also used in context of doctors). The traditional conception states that the
professional’s primary duty and loyalty is towards his client. This duty permits, maybe even demands, allocation of his
time, energy and resources to the client, such that the result is not always the greatest good for the greatest number. Eg.
Advice to avoid tax which will harm public interest or defending a criminal who is obviously a danger to society. It’s
great if the lawyer chooses the poorest or the sickest as his clients, but there is no professional duty obligating him to do
so. Critics contend that it is unethical and wasteful that some of the finest talent is used for intricacies of corporate law,

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real estate and the like. This immortality amplifies when the clients (corporates) use it to avoid obligations, in justice if
not in law, towards society and perpetuate inequality and injustice.
o The second crit focuses on the lawyer: This crit says that lawyers harm not only the unidentified persons (the poor) who
they do not choose as clients but also their identified adversaries. Eg. Discrediting a nervous but probably truthful
witness orusing the limitations act to avoid a debt that is clearly owed.
 In the face of these two criticisms, can a morally sensitive person conduct himself such that his professional AND moral
obligations are fulfilled?
 Fried argues that it is not only legally but also morally right for a lawyer to prioritise his client’s interest over collective
interest. He says that the traditional conception is mandated not just by positive law but also by morality and all
advanced legal systems should understand this in order to be just.
 Charles Curtis says that a lawyer can lie for his client the way one would to save his friends or relatives. This stems from
the understanding that one’s sense of partiality towards someone close to them is greater than an abstract sense of
humanity. Fried thinks that the analogy widens the problem. It basically says that in “claiming this authorization to have
a special care for my clients I am doing something which I do in other contexts as well.”
 Utilitarian Explanation: Utilitarians like Mill and Sidgwick said it’s reasonable to prefer the interests of those close to us
because we are most likely to know their needs and benefit them. This effectively means less overhead burden and admin
cost. Fried criticises this notion and says that if what is mentioned above is the sole basis of the preference then it would
be one’s duty to whether their efforts may not be spent “more efficiently on the society at large, “on the distant,
anonymous beneficiary”. Fried argues that this is an inquiry that that we are not required, often not even authorised, to
make. He says that it is logically inconsistent to expect someone to admit that the general good is one’s only moral
standard while simultaneously taking care of only his family and friends.
 Self, Friendship and Justice: The human person if the utilitarian claim were true- all my choices are based on the well-
being of humanity. This means that every human being has an equal claim on my good. So I am to myself only what
everyone else is to. This is problematic. Before morality comes the idea of the person and the self. Morality should be
understood such that it makes sense to “posit choosing, valuing entities – free, moral beings. “But the picture of the
moral universe in which my own interests disappear and are merged into the interests of the totality of humanity is
incompatible with that,21 because one wishes to develop a conception of a responsible, valuable, and valuing agent, and
such an agent must first of all be dear to himself. It is from the kernel of individuality that the other things we value
radiate.” Individuality is defined by concerns for the self and close ones and not by concerns for society because “as my
experience as a judging, valuing, choosing entity is crucial to me, I must conclude that for others, their lives and desires
are the centre of the universe.” The individualised relations of love and friendship have a more intense aspect that the
abstract relations of love and service to humanity in general. According to the ethics of a human being, the freedom to
reserve an area of concern for close ones and venture out based on one’s own choice and similarly, the freedom to be
cared for as a priority by a friend is central to the idea of every individual.
 A lawyer is a limited-purpose friend. He takes care of your interests and makes them his own in so far as it is necessary
to preserve the client’s autonomy within the law. The complex web of institutions does not allow an individual to
preserve his autonomy without help from an expert.
 The Asymmetry of Motive and Duty : the Form of the Relation: Even though friendships are normally reciprocal, in a
lawyer-client relationship, it is the client’s right to receive an extra measure of care and the lawyer’s right to give it. Is a
lawyer acting in a morally worthy manner when he picks an “unworthy” client? “The lawyer acts morally because he
helps to preserve and express the autonomy of his client vis-a-vis the legal system… Moreover, the legal system, by
instituting the role of the legal friend, not only assures what it in justice must-the due liberty of each citizen before the
law-but does it by creating an institution which exemplifies, at least in a unilateral sense, the ideal of personal relations of
trust and personal care which (as in natural friendship) are good in themselves.”

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 Friendship, unlike legal friendship, is not bought. Is it then a commercial transaction? Fried says no. “The lawyer and
doctor have obligations to the client or patient beyond those of other economic agents. The lawyer and doctor may not
refuse to give additional care to an individual who cannot pay for it if withdrawal of their services would prejudice that
individual.”
 Institutional Clients: Fried says that another criticism of my conception of lawyer as a friend maybe the existence of
government and corporation as friends. But corporations and other institutions are only formal arrangements of real
persons pursuing their real interests. If real people are allowed to protect their autonomy, they should be allowed to do so
even while exercising their right to operate through institutions.
 Application of Lawyer as a Friend to the Two Criticisms : Response to the first criticism: “The lawyer-client relation is a
personal relation, and legal counsel is a personal service. This explains directly why, once the relation has been
contracted, considerations of efficiency or fair distribution cannot be allowed to weaken it. The relation itself is not a
creature of social expediency (though social circumstances provide the occasion for it); it is the creature of moral right…
If I have a client with legal needs, then neither another person with greater needs nor a court should be able to compel or
morally oblige me to compromise my care for those needs.” But what of the initial choice of client? Should he pick a
client such that his efforts will do the most good? If we say yes to this, we basically define the lawyer as a scarce
resource but a person is not a resource. Human beings are entitled to free will and the liberty to exercise his professional
skills as per his professional inclinations.
 “I would be happy to acknowledge the existence of some moral duty to represent any client whose needs fit one's
particular capacities and who cannot otherwise find counsel. This is not a large qualification to the general liberty I
proclaim. The obligation is, and must remain, exceptional; it cannot become a kind of general conscription of the
particular lawyer involved.”
 Fried admits that there are several people with unmet needs but he says that if there aren’t enough lawyers to care for the
poor, it would be unfair to conscript the legal profession to fulfil those needs. The obligation of justice is one of society
as a whole, not just one profession. It would be hypocritical to not make society pay these lawyers via tax.
 In a democratic society, society does not have any “anointed priests of justice” as many critics characterise lawyers.
 Staying within the Law: The legal friend should protect his client’s interest (within the law) even if they aren’t in
consonance with public interest but this doesn’t mean he should violate the law. If the legal system is sensitive to moral
claims and individual rights, it must allow autonomy to be exercised in ways that are not necessarily linked to public
interest.
 In cases where lawyers further their client's rights-the rights which the law should, but did not, recognize, the lawyer
goes beyond legal friendship and it becomes a political friendship, political agitation.
 Response to the Second Criticism: Fried divides the injustice done to adversary in two types and says that one is
acceptable. “Consider the difference between humiliating a witness or lying to the judge on one hand, and, on the other
hand, asserting the statute of limitations or the lack of a written memorandum to defeat what you know to be a just claim
against your client. In the latter case, if an injustice is worked, it is worked because the legal system not only permits it,
but also defines the terms and modes of operation. Legal institutions have created the occasion for your act. What you do
is not personal; it is a formal, legally-defined act. But the moral quality of lying or abuse obtains both without and within
the context of the law. Therefore, my general notion is that a lawyer is morally entitled to act in this formal,
representative way even if the result is an injustice, because the legal system which authorizes both the injustice (e.g., the
result following the plea of the statute of limitations) and the formal gesture for working it insulates him from personal
moral responsibility. I would distinguish between the lawyer's own wrong and the wrong of the system used to advantage
by the client.” If there is a precedent leading to a morally unjust position, the wrong is wholly institutional.
 A lawyer can refuse a case that he finds morally reprehensible as long as there is another lawyer who will take it up. But
if he is the last lawyer in town, is there a moral obligation to take up a case where is there a moral obligation to help the

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finance company foreclose on the widow's refrigerator? Fried says to establish a sense of legal right (of the company, to
go to trial), yes. But if all the other lawyers happen to be on vacation and the case means no more to the finance company
than the resale value of one more used refrigerator, common sense says the lawyer can say no.
 Conclusion: “I would like to return to the charge that the morality of role and personal relationship I offer here is almost
certain to lead to the diversion of legal services from areas of greatest need. It is just my point, of course, that when we
fulfill the office of friend-legal, medical, or friend tout court-we do right, and thus it would be a great wrong to place us
under a general regime of always doing what will "do the most good." What I affirm, therefore, is the moral liberty of a
lawyer to make his life out of what personal scraps and shards of motivation his inclination and character suggest:
idealism, greed, curiosity, love of luxury, love of travel, a need for adventure or repose; only so long as these lead him to
give wise and faithful counsel. It is the task of the social system as a whole, and of all its citizens, to work for the
conditions under which everyone will benefit in fair measure from the performance of doctors, lawyers, teachers, and
musicians. But I would not see the integrity of these roles undermined in order that the millennium might come sooner.
After all, it may never come, and then what would we be left with?”

Paul Lannon, A Lawyer In Pursuit Of Truth and Unity: Mohandas Gandhi and the Private Practice of Law
 Gandhi: One must seek truth in all things not only for salvation but also for ethical living and happiness. For lawyers,
this would mean prioritizing pursuit of truth over the client’s interest and societal interest over self-interest.
 Gandhi expressed ambivalence towards legal practice and at times denounced it as immoral and called upon lawyers to
give it up.
 Gandhi’s Legal Education: Law, Equity and Religion: “Equity is premised upon the recognition that strict application of
the law can sometimes produce unjust results. Snell describes equity as a “moral virtue” and a “universal truth,” terms
which, in Gandhi’s mind, linked the practice of law with the moral imperative to pursue truth.” A foundational principle
of equity is that one seeking equity should have clean hands. Gandhi demonstrated this through his teachings on non-
violence, self-suffering and satyagrah (literally ‘truth force’). Gandhi derived inspiration from Bhagavad Gita regarding
public service, equality, nonviolence, non-cooperation with unjust forces—principles that would later guide his legal
practice and civil rights campaigns. According to him, law and religion are both means of discovering truth “in the daily
challenge of trying to live a moral life.”
 Model Rules of Professional Conduct by the American Bar Association- framework for ethical practice in US. The
Preamble states “as an advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system. .
. . It is the lawyer’s obligation zealously to protect and pursue a client’s legitimate interests.” Central ethical dilemma for
Gandhi and even for lawyers today: ““the tension between the client’s preferred position . . . and the position of equality
everyone else is accorded by general principles of morality and loyalty.” “Gandhi felt that the legal profession teaches
immorality as lawyers are consciously or unconsciously led into untruth for the sake of their clients. He thought that the
profession is prone to meritless quarrels, excessive costs and delays, greed etc. Gandhi’s solution to this ethical dilemma
was to elevate the pursuit of truth above the narrow interests of his clients. While attorneys must certainly advocate for
their clients, they have, according to Gandhi, a “prior and perpetual retainer on behalf of truth and justice.”39
Consequently, lawyers are bound to follow the law when it comports with truth and justice, but “when law fosters
untruth it becomes [their] duty to disobey it.”
 The truth Gandhi was looking for is situational and contextual. Like the Jains, he believed that truth is many sided. He
prepared for cases in light of this understanding by reading the facts through various perspectives.
 A senior advised Gandhi that “facts are three fourth of the law”. Gandhi scrutinised the facts of his first lawsuit in South
Africa he believed that ““facts mean truth, and once we adhere to the truth, the law comes to our aid naturally.” In course
of trial of the case, he realised that prolonged litigation would only benefit the lawyers, so he felt it his duty to bring the

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parties together and arbitrate and the result was two “happy and prosperous” parties. “The true function of a lawyer” is,
therefore, “to unite parties riven asunder.”
 By disclosing erroneous evidence in one of his cases, even though it was to the detriment of his client according to a
senior counsel (The client consented to the disclosure), Gandhi acted according to the Model Rules which require
lawyers to disclose errors in material facts and say that it is “professional misconduct” for a lawyer to act with
“dishonesty”. In one case, when Gandhi realised that his client had deceived him about the facts, Gandhi requested the
magistrate to dismiss the case. This seems to be in accordance with the provision in Model Rules stating that only cases
which have a basis in law and are not frivolous should be brought to court. However, there is a potential problem. There
is “an inherent danger in legal ethics based on a zealous commitment to truth, even at the client’s expense: the lawyer
will be tempted to usurp the judge’s and jury’s role of determining the truth about a party’s liability or guilt.”
 What does it mean for a lawyer to know that his client is guilty? Gandhi was against the idea that lawyers have a duty to
defend a client that they know to be guilty. Gandhi professed instead that the “duty of a lawyer is always to place before
the judges, and to help them to arrive at, the truth, never to prove the guilty as innocent.” This position rests on the
dubious assumption that lawyers know when their client is guilty. It’s not easy to determine guilt in the face of claims of
innocence and ambiguous evidence. Truth is not always black or white and lawyers practice in grey.
 When the truth is not clear, a Gandhian lawyer would probably continue his pursuit of the truth while abiding by his
client’s wishes unless the lawyer knows that the client is diverging from the truth. This is also in accordance with the
Model Rules in so far as the client’s decisions are given deference. Exceptions would arise when there is a need to
prevent an “untruth”, such as fraud on the court or frivolous claims.
 Gandhi’s broader view of the lawyer’s role can be consistent with the Model Rules, which stipulate in their Preamble that
a lawyer should follow his or her “personal conscience,” and which provide in Rule 2.1 that, “[i]n rendering advice, a
lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that
may be relevant to the client’s situation.”
 Gandhi’s practice based on these principles, with plenty of pro bono cases, still managed to earn him a handsome living.
Gandhi said “I lost nothing thereby—not even money, certainly not my soul.”
 Arbitration and Alternative Dispute Resolution: The “Master Key”: Gandhi claimed that ADR is the master key on four
grounds: 1. It saves time and money 2. It empowers clients to resolve issues on their own 3. It is consistent with a
lawyer’s duty to pursue truth and unity and 4. In his experience, it works.
 ADR and satyagrah in Ahmedabad- Gandhi’s satyagraha campaign had empowered the workers to improve their
situation through nonviolent collective action, and convinced the employers that it was also in their collective interest to
adopt a formal process by which labor disputes could be resolved efficiently and without violence.
 He suggests the use of ADR even to solve social and political issues during partition. According to him, it puts justice
back in the hands of the people. It has the capacity to teach self-governance (swaraj). “Evolution of democracy is not
possible if we are not prepared to hear the other side.”
 This view of ADR propelled him to call upon lawyers to give up their practice (litigation). He thought litigation is
confrontational and divisive.
 “Gandhi recognized then, as ethicists do today, that a core problem is the lawyer’s duty to prioritize the client’s interests
above all others. Gandhi tried to resolve that issue by transforming the role of the attorney from a zealous advocate of
client interests to a dedicated seeker of truth and unity for clients and their communities.”
 Gandhi was more concerned with ethics than legal ethics as he viewed lawyers as moral agents of society. This burden
on lawyers may result in the danger that lawyers act as judges instead of advocates. There is a real concern that lawyers
would feel compelled to impose their views on unwilling clients. Not all lawyers have Gandhi’s sense of discernment
and fairness. Lawyer-client relation is a fiduciary one and there is a lot at stake if the profession was to be given the role
of a vigilante.

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Wasserstrom (Optional oureading, these few points are from Chip’s notes)
 Lawyers are in a profession where they are more likely to be corrupt than in any other profession. They wield enough
power but they do not exercise enough discretion. They are duty bound by certain rules that prevent them to exercise the
discretion.
 Lawyers are generally self-regulated so they are not accountable enough. The profession is opaque and inaccessible. Eg.
Convoluted language.
 Basically he’s pessimistic and thinks lawyers are not and cannot be moral.

Week 4 & 5- Statutory Provisions

Legal Ethics in an Adversary System: The Persistent Questions (Deborah L. Rhode)
 The paper discusses legal ethics in an adversary system around three themes, which are autonomy, access and
accountability.
- What is the role of client autonomy in the adversary system and how does it compare with other values?
- What are the challenges of practicing in a system that enshrines equal access to justice in principle, but violates it
routinely in practice?
- How do we ensure an appropriate measure of public accountability for professional conduct?
 Note: The author is a student of Monroe Freedman who is a Professor of Legal Ethics and discusses most of his
arguments throughout the paper.
 Client autonomy and other values
 One of the main issues in legal ethics has always been the importance of client autonomy and the responsibilities that it
imposes on lawyers.
 The author states Freedman’s argument, which is that the adversary system thereby gives both form and substance to the
humanitarian ideal of the dignity of the individual.
 Freedman’s argument highlights the central concern in professional ethics, which should be to strengthen the role of the
lawyer in enhancing individual human dignity within the adversary system of justice. Therefore, a lawyer should uphold
the client’s wishes without getting influenced by his own morals or opinions.
 In the recent years, the theory and practice of legal ethics have leaned towards getting greater client satisfaction and
loyalty. They have been cognizant of the fact that clients need uncompromised advocacy even in cases when the client is
guilty.
 But there is always a tussle between such autonomy in civil and criminal cases. It is easier to defend clients in civil cases
because there isn’t a need to enforce one’s morality. Whereas in criminal cases, there is a higher chance imposing one’s
morality.
 The author points discuss David Luban’s argument on client autonomy requiring moral justification. His idea of client
autonomy is to foster personal initiative and social responsibility. If a client’s objectives does little to advance these
objectives and only seeks to harm third person parties, then your loyalty towards that client lacks moral justification. This
is because lawyers are also entrusted with responsibilities to prevent unnecessary harm and promote fairness and justice
in the legal system.
 Therefore, a lawyer always has the dilemma of satisfying the client’s wishes or promotes his commitment to justice and
fairness.
 Different jurisdictions have come up with multiple ways in which they deal with these competing principles. For
instance, Model Rules of Professional Conduct (US) requires the lawyer to resort to remedial measure if there is a case of
client perjury.
 However, modifying ethical responsibilities could have some impact on how lawyers counsel clients and how clients

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assess the value of proceeding to trial and taking the stand. But the most fundamental problems concerning client
representation in the current criminal justice system involve the inadequate resources and incentives for indigent defense.
 American Bar Association has a history with confidentiality provisions between lawyers and their clients. To begin with,
they were very strict with no exceptions to protect the client’s autonomy. However, there were multiple cases of lawyers
being complicit in financial and environmental scandals that warranted an exception to these provisions. Attorneys are
now permitted to reveal confidences necessary to prevent reasonably certain death or substantial bodily injury even if no
criminal act is involved.
 Example: Post Enron1, The Sarbanes Oxley Act by the Securities and Exchange Commission came out with a clause that
required lawyers representing securities issuers to report material violations of the law to supervisory officials within
the organization
 However, the efficacy of such provisions is open to debate. Even then, majority of the debate both within and outside the
profession is demanding that lawyers assume greater responsibility for the welfare of parties other than clients. Such a
response raises also touches upon issues on evolution of rules governing advocacy and the process for their formulation.
 Access to Justice
 One of the central challenges to American Legal Ethics is the disjuncture between the adversary system in principle and
in practice. There are multiple harms arising out of such a process. The one being dealt with in this paper pertains to
unequal access to justice.
 Throughout its history, the American Bar has done little to deal with this problem. They promulgated anticompetitive
ethical rules that inflated the cost and reduced the accessibility of legal services. Restrictions on advertising,
solicitation, minimum fees, unauthorized practice, and group legal services all helped to price law out of reach for
routine needs of most Americans.
 Recently, with mandatory provisions for legal aid, pro-bono services and technological innovations have increased
access to justice. Even then, there is a considerable distance from the equality in legal representation on which the
fairness of the adversary system depends.
 There is general lack of funds for civil legal assistance. Further, indigent criminal defense is rued with issues from top to
bottom. Most lawyers engaged in criminal defense lack the time, training, resources and incentive to mount an effective
defense. The issue stems also from the legal practitioners lack of interest in dealing with unequal representation. (Cases
when lawyers have come up drunk or have been missing for most part of the defense)
 Even in civil cases, there are a large number of parties without lawyers and the bar has done little to deal with this issue.
Part of the problem is also politicization of the judiciary that lacks incentive to promote a fair adversarial process.
 Despite having mandatory pro-bono services, the actual percentage of the service rendered is abysmal. Even in law
schools, pro-bono services are addressed in principle but never in practice. There is no discussion or promotion of the
importance of these services outside the clinics. This is problematic because law schools have unique opportunities and
obligations to shape future practitioners’ understandings of their professional role.
 Accountability
 The greatest obstacle and the roots of many others is the lack of accountability. This can be seen from the lens of the
judiciary. The judiciary confers authority on those who appear before them. This authority vests on two counts – i) the
judiciary needs such control to ensure smooth functioning and proper administration of justice ii) this kind of self
regulation furthers separation of powers and prevents state dominance
 Despite this, the judiciary generally lacks the time, incentives, resources, and managerial expertise to oversee an effective

1
This scandal is not talked about in the reading. But it occurred in the early 2000s when Enron Corporation
committed embezzlement through fraudulent accounting schemes and housing loans. The lawyers hired by Enron
contributed to this fraud that caused losses worth millions.

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governance structure. Legislators, administrative agencies, federal courts, and malpractice insurance companies have
come to play an increasing role in professional governance. They have supplemented or supplanted bar standards in
modest ways that coexist with the judiciary’s inherent governance powers.
 The increasing fragmentation of governance authority has produced standards that insufficient in their response to
societal concerns
 There is a need for more structural checks and public accountability in the governance process for legal practice. One of
which would be to place authority for the development and enforcement of ethical standards in independent national or
state regulatory commissions.
 This regulatory framework could produce standards that are both more protective of the public interest, and that make
lawyers more accountable for the consequences of their personal actions and performance of adversarial processes
 However, a key feature of this framework is context. Ethical standards need to be formulated and interpreted in light of
all the societal interests at issue in a particular practice setting
 The profession also must become more accountable for the effectiveness of the justice system and the distribution of
legal services. This will entail greater efforts to make assistance available, to expand its forms, and to ensure its quality
 Other strategies should focus on improving the quality and range of services now available to the poor. For indigent
criminal defense lawyers, courts and bar associations should enforce minimum performance standards.
 For routine civil matters, Americans deserve more accessible processes, and a wider range of options in law-related
assistance.
 Part of the problem is also rooted in the low level of information disseminated. This is where law schools could bridge
the gap by committing to such professional reform. Apart from inculcating such debates on ethical standards, there could
be a readjustment of academic reward structures to incentivize them to pursue research in this direction.
 In addition, they also need to strengthen their pro-bono and legal aid program.

Professional Responsibility of the Criminal Defense Lawyer: Three Hardest Questions (Monroe Freedman)
 This paper focuses on ethical considerations in criminal law. Lawyers are faced with a constant dilemma of either
respecting their client’s confidentiality or performing their duty to the court and the people.
 This paper analyses this dilemma by attempting to address three questions:
a) Is it proper to cross-examine for the purpose of discrediting the reliability or credibility of an adverse witness whom you
know to be telling the truth?
b) Is it proper to put a witness on the stand when you know he will commit perjury?
c) Is it proper to give your client legal advice when you have reason to believe that the knowledge you give him will tempt
him to commit perjury?

The Adversary System and the necessity for confidentiality

 A lawyer is also the officer of the court who participates in the search for the truth. Having that role, what is his special
responsibilities that could affect his resolution on the three questions above?
 A lawyer has to ensure the smooth functioning of the court process, maintain confidentiality and not compromise on his
duties as the officer of the court. What happens when they conflict? For instance, if a lawyer comes across a fact that
could harm the client while looking at the correspondence file, is he under an obligation to make the court aware of this
fact? American Bar Association Committee stated that lawyer has the right to remain silent and respect confidentiality.
They distinguished this with when the lawyers learn of such a fact from a source other than the client.
 In the adversary system, criminal law practice takes unique turns. The defendant is presumed to be innocent before
proven guilty. It is the defense’s job to prove that the defendant is not ‘legally guilty’. He/she does not have to prove that

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the defendant is ‘guilt in fact’. The moralist would say that this gives the lawyer the leeway to lie in court. However, the
adversarial practice sanctions the lie.
 In actual practice, criminal defense lawyers do not win by arguing reasonable doubt. Effective trial advocacy is
aggressively stating the client’s innocence ‘in fact’ to further prove his innocence in ‘legal terms’. This is mostly done to
appeal to the jury for the client’s innocence.
 It is also argued that a criminal defense lawyer can choose to remain selectively ignorant. He can choose to disregard the
client’s guilt or even choose to be unaware of it.
 If one recognizes that the lawyer’s professional responsibility is to have knowledge of every fact then he has to seek the
truth and not shun it. This has to be done while ensuring full confidentiality. Confidentiality becomes expressly
important in cases of indigent criminal defense when the lawyer has not been chosen by the client and has to develop a
relationship with client in order to defend him.

The Specific Questions

 Begin with dealing with first question pertaining cross-examination to the extent of discrediting witnesses by the lawyer.
 For example, your client has been accused of robbery and he discloses that he was walking away from the crime scene
and not a part of it. This disclosure was only after your assurance of how no facts will be prejudiced against him. Two
witnesses testify, out of which one is an old woman with poor eyesight. The same woman has confidently testified
against your client and you have the option of attacking her eyesight as a way to discredit her testimony. What would you
do?
 Strictly, the lawyer’s failure to discredit her would not be violative if his confidentiality with the client. However, the
obligation of non-disclosure is combined with the lawyer’s duty to not prejudice the client. When a lawyer fails to cross-
examine, he looses the trust derived from professional assistance. A client’s confidentiality is considered to be inviolable.
 Therefore, the lawyer is obligated to attack the credibility of the witness whom he knows to be truthful to impart his
duties to the client. Not doing so would impair the perfect freedom of consultation by client with attorney, which is
essential to the administration of justice.
 The second question deals with whether or not to put a witness on stand when he/she is going to commit perjury.
 There is clear consensus among prosecutors and defense lawyers that the likelihood of conviction is increased when the
defendant does not take the stand. A lawyer that doesn’t allow the defendant to take the stand because he/she has
confessed to his guilt is violating his confidence by not making him privy to this consensus that could prejudice his/her
interest.
 The alternatives that the lawyer has are to either withdraw from the case or inform the judge about his predicament that
would eventually lead to a mistrial. In all cases, he is either shifting his ethical burden or abandoning it. To conclude, the
obligation of confidentiality, in the adversarial system, gives the lawyer no alternative to deal with a perjurious client.
 Further, there are only two exceptions to confidentiality, which are – either the lawyer discloses information to defend
himself when the client accuses him or if the client discloses intention to commit a crime. Both the exceptions do not
deal with the dilemma of a perjurious witness. In such a case, the lawyer can either discuss the consequences of
committing perjury or withdraw from the case.
 The third question is whether it is proper to give your client legal advice when you have reason to believe that he/she will
commit perjury. This is the most difficult problem as the lawyer could be seen as encouraging or promoting perjury.
 The ethical issue here is that a lawyer has to make full disclosure on the consequences of the client’s testimony and
answers. So if a certain statement could harm him, the lawyer is within ethical confines to tell the client why and how.
 What should we make of the circumstance when a client asks for advice that could be illegal? For instance, if a man
wants to reduce his tax liability and he seeks assistance from a lawyer to evade tax, what should the lawyer do? The

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lawyer can do one of two things – either choose to give the advice, or give the advice and report the matter to the Tax
Authorities. Whatever consideration that the lawyer decides to make, it should not be unethical for him to give advice on
tax evasion.

Conclusion

 A lawyer is very often faced with such competing considerations. While being faced with them, it is important to
remember that he is the officer of the court in search of the truth. However, there are other policy considerations that at
times justify frustrating the search for the truth. Similarly, there are policies that justify an affirmative answer to all the
three questions posed in the article.

These policy considerations could be maintenance of the adversarial system, the presumption of innocence, the right to
counsel and the obligation to maintain confidentiality. These are identified as important pillars in a legal practice that
could justify compromising on the search for the truth.

Week 6- Institutions and Structural Framework – Consumer Protection

The Myth of Self-Regulation- Fred Zacharias
 The synopsis to week 6 & 7 in our course manual stated that the myth of self-regulation – which was promoted with a
view to creating an ethically driven legal institution, has led to stagnation.
 This articles tries to say that the term “self-regulation” produces an image of lawyers unilaterally controlling the behavior
of their peers, however, this image is patently false.
 This article points out the consequence of the persistence of the image of self-regulation and the continued use of the
term on lawyers, external regulators and consumers perceive the bar.
 Hence, it encourages all participants in the lawyer regulatory process to abandon the misnomer “self-regulation” and to
replace with “co-regulation”.
 “Courts, commentators and legal ethics regulators continue to conceptualize law as a self-regulated profession.”
 “The preamble to the ABA model Rules of Professional Conduct maintains an emphasis on the importance of self-
regulation.”
 “When lawyers meet the obligations of their professional calling, the occasion for government regulation is obviated.”
 “Although the legal profession is often called a ‘self-regulating profession’, this is a misnomer. ”
 “ There are many forms of law that constrain the conduct of lawyers.”
 Since “the profession is self-regulated, the resulting behavioral norms and implementation of discipline are self-serving.”
 “There is an universal law that tells us no one is capable of fairly judging themselves.”
 “If lawyers do not regulate themselves, external regulators will fill the vacuum.”
 “ This article argues that the continued emphasis on lawyer self-regulation exacts costs. Conceiving of the disciplinary
codes as mere professional self-regulation rather than as one element of an expansive regulatory regime governing the
bar misleads courts, code drafters, lawyers and laypersons alike.”
 “This article therefore proposes an amendment to the Model Rules that would eliminate all reference to self-regulation
and replace it with a more accurate statement of the status of the professional codes.”
 “This article’s goal is.. to highlight the various adverse consequences that arise when different actors in the system –
including the co-regulators of the bar, lawyers themselves, and the public – cling to an image of self-regualtion.”
 The first part of the article clarifies why the notion of law as a self-regulated industry developed and how it became
archaic.
 The second part highlights how law has become a heavily regulated industry in modern times.

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 The third part addresses the impact of continued reliance on the notion of self-regulation.
 The 4th part suggests and describes the potential benefits of an amendment to the Model Rules of Professional Conduct
that would begin to roll back the self-regulation myth.
 The History of the Regulation of American Lawyers
 There were always lawyers in America, many of them played a critical role in the founding of the country, however,
there were no bar organizations and rules of ethics governing lawyers.
 Any regulation of lawyers came from judges e.g.: judges exercising authority to admit lawyers to practice in courts,
forbid them to appear, sanction them for misconduct, etc.
 There were no formal or uniform standards governing lawyer behavior, however, post the revolutionary period of the
U.S., law was a self-regulated profession, i.e. informal norms of practice were developed.
 Collegial assumptions about the profession developed such as lawyers should act as gentlemen, should not betray the
clients’ secrets etc.
 All this was developed in a vacuum of regulatory institutions and standards of conduct.
 3 developments in the late nineteenth and early twentieth centuries began to give structure to the profession and
professional norms;
 1) Professional law schools which opened in large numbers and began to impart a shared experienced to larger numbers
of the bar
 2) by 20th century, central bar examining boards became common, creating a mandate of education that helped regularize
practice.
 3) bar associations began to develop. Bar associations represented the modern form of lawyer self-regulation.
 The first bar association was the Bar of the City of New York in the begin of 1870.
 Followed by ABA in 1878, which was purportedly a national bar organization with the purpose of elevating the image of
the profession.
 Legal ethics code became the primary mechanism by which these private organizations could input into what courts were
saying about the lawyer’s role.
 The first ABA code was developed in 1908, although it had no legal force, they were intended to guide lawyers and
influence judges about the content of lawyer responsibilities.
 These developments formalized lawyer self-regulation.
 In 1920s, a movement began to produce court rules or statues requiring all practicing lawyers to belong to state bar
organizations. This allowed them to collect fees, control and limit admission to the bar, and participate in the discipline
of lawyers.
 In pursuit of increasing their mission on elevating the status of law as a profession, ABA came up with the Code of
Professional Ethics/
 All the states adopted it and began to use it as a disciplinary mechanism
 Thus developed the model for modern seld-regulation. The profession itself established the norms governing lawyers.
 Changes in Lawyer self-regulation and the road to the status quo
 Most significant ones are
 1) Due process revolution – progression from a gentlemanly to a modern elite profession
 2) Changing demographics of the bar
 3) Economics of legal practice (including growth of corporate firms)
 4) The development of regulatory state
 The reading then gives an unwanted narration of American events, which are unnecessary; therefore, I have not
summarized that part.

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 In short, the professional codes adopted by ABA was found to be no longer sufficient to foreclose other regulation and
do not represent self-regulation. A variety of regulators external to the ABA including the courts- interpret, adjust, and
enforce the rules and provide their own regulations when the prevailing professional code seems inadequate.
 At best codes are a form or co-regulation.
 Consequences of relying on the idealized image of lawyers as self-monitoring and self-policing has lead to the following
consequences
 a) For state S.C. – it is odd that the notion of lawyer self-regulation persists when supreme courts, rather than the bar,
actually promulgate the prevailing professional codes. Therefore, it often prevents the courts from conducting fully
independent review of bar committee findings. Thus, the notion of self-regulation becomes a self-fulfilling prophecy (in
its negative sense).
 The State S.C. have the wherewithal to reconcile the professional codes with substantial law and supervisory standards in
two ways.
 1) when promulgating the codes, they can predict the direction the substantive law will take because it is they who will
have the power to adjust the substantial law. They can for example adopt professional rules that take account of
lawyers’s potential liability under the substantive law or judge-made supervisory requirments. (e.g.: malpractice law)
 2) while reviewing lower courts decisions on appeal, they can harmonize those decisions with the professional codes
standards.
 b) Consequences for lower, supervisory courts – lower court judges rarely disobey a recent S.C. opinion, setting forth a
legal doctrine. Thus treating the professional code as less relevant, or less binding than the S.C. legal decisions.
 C) Consequences for Bar Code-Drafters
 Perceiving the role of the professional codes unrealistically as a regulatory regime that should operate in the place of
external regulation can cause the bar to err in the rules it includes
 Conversely, recognizing the professional codes as co-regulation would help the bar tailor its regulatory endeavors to gaps
in the law and to forms of behavior that the bar, and the professional disciplinary process, is particularly well suited to
regulating.
 Overall meshing the codes with external law can lead to a clearer regulatory regime and better guidance for lawyers.
 It also would maximize the bar’s resources by avoiding duplicative regulation.
 D) Consequences for lawyers
 Self-regulation creates questions about the nature of the professional codes as binding law, thereby undermining the
value of the codes in providing guidance.
 That is if lawyers conceptualize the code, they may fele freer to disagree or disobey the codes.
 E) Consequences for laypersons
 Laypersons assume that the bar self-regulates in a self-serving way. They may perceive the discipline as the sum total of
lawyer regulation become discouraged when conduct that may be inappropriate in one sense does not lead to professional
sanctions. This in turn can produce distrust in the legal system and in the integrity of the bas as a whole.
 Hence, the regulators much be able to make clear that the lawyer regulatory regime is one of co- rather than self-
regulation.
 A proposal to amend the model rules
 The upshot of this article’s analysis is to embrace the notion that professional standards of behavior are only one aspect
of a multipronged scheme of lawyer regulation.
 The first proposal is to amend the ABA’s model rules that equates the code to self-regulation. It should emphasize the
role of the professional code in the broader regulatory regime.
 Another proposal is to acknowledge the fact that the codes when adopted become law.

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Can a Reasonable Doubt Have an Unreasonable Price? Limitations on Attorneys’ Fee in Criminal Cases
 The disciplinary rules of every state prohibit attorneys from charging “unreasonable” fees. These provisions, however,
are virtually never enforced.
 The reasonable fee rules are either unenforced or questionably enforced because they are not designed to limit lawyer’s
fee or incomes per se, but to ensure that lawyers do not take advantage of clients, and that clients understand the nature
of the legal services they are buying.
 Only 2 published cases involve a lawyer disciplined solely for charging excessive fees; both involve lawyers representing
criminal defendants.
 The reasonable fee limitation has been unenforced or enforced perversely because the substance of the rule is not
connected to the purpose behind it.
 In America, ABA Canons of Professional Ethics of 1908 was the first true ABA code, this was replaced by the Model
Code of Professional Responsibility in 1969. The Model Rules of Professional Conduct replaced this. The Rules required
“a lawyer’s fee to be reasonable.” Under the Code, the assessment f the excessiveness of the fee is to be determined from
the standpoint of the “lawyer of ordinary prudence”.
 A “clearly excessive” fee under the rules was defined as one more than reasonable.
 Therefore, the test seems to be whether or not the fee is reasonable.
 The Eight Factor Test for reasonableness
(1) The time and labor required, the novelty and difficulty of the legal questions involved, and the skill requisite to
perform the legal service properly;
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other
employment by the lawyer;
(3) The fee customarily charged in the locality for similar legal services;
(4) The Amount involved and the results obtained;
(5) The time limitations imposed by the client or by the circumstances;
(6) The nature and length of the professional relationship with the client;
(7) The experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) Whether the fee is fixed or contingent.
 This test is non-exclusive; lawyers and courts are free to consider other factors such as client’s ability to pay a fee etc.
 The problems with the rules are that not only are they badly drafted or too complicated, they are intended to be construed
in accordance with their purpose, however, that is not known. The articulated rationales for fee regulation are divided
into two categories – 1)maintaining access to the legal system in behalf of the poor and 2)prevention of abuse of the trust
which clients naturally repose in counsel.
 (1)Access to the legal system for the poor – this rationale rests on the impact of excessive or unreasonable fees on public
access to the legal system.
 A lawyer should not charge more than a reasonable fee, for excessive cost of legal services would deter laymen from
utilizing the legal system in protection of their rights.
 However, most individuals with legal needs do not receive legal assistance to resolve them because of their limited
resources, not because prices have been fixed. Because the ethics system does not propose that lawyers as a whole meet
the legal needs of the nation, the fact that a lawyer’s fee is out of reach of a layperson does not suggest that it is
excessive.
 The treatment of pro bono work in the Model rules confirms that the ethics provision was not designed to make sure that
lawyers’ fee are within the reach of the average person. Although the code recommends “ persons unable to pay for legal

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service to be provided need services”. It does not support the idea that fees should be low in any given case, if the fees
are being kept at a “reasonable” level. That is, the rules recognize the necessity of pro bono work however; it does not
encourage fees to be low in any given case on the pain of discipline.
 (2)Abuse of fiduciary Relationship
 It has been suggested that fee regulation is warranted to protect the competent administration of justice, to uphold and
preserve the integrity of the profession and to deter other attorneys from engaging in improper fee charging activities.
 Hence, it boils down to not that handsome fees are to be avoided but rather that lawyers should not take advantage of
their clients. That is, a lawyer should not exploit a fee arrangement based primarily on hourly charges by using wasteful
procedures.
 Overreaching and the amount of fees – the rationale for scrutinizing the amount of fees is to determine whether the
charges represent an abuse of trust by the lawyer taking advantage of the client.
 The question of overreaching will not always be answerable simply by looking at the objective circumstances and the
amount of the fee without also examining the client’s purpose. In some cases, the client might engage a lawyer to provide
services at a cost some might regard as unreasonable. Such fees are deemed reasonable because the clients knew what
they wanted and bargained for it.
 Problem with the rules – 1) application of the 8 factor test does not inevitably lead to the conclusion that the fees were
excessive 2) application of the unreasonable fee rule in routine criminal cases may tend to make high quality counsel less
available because lawyers will know that if they want to be able to charge what the market will bear, they must practice
in a different field.
 In re Fordham – the Massachusetts Supreme Judicial Court publicly censured an attorney for charging a “clearly
excessive fee” in violation of Supreme Judicial Court Rule. Thus case involved the prosecution of the client Timothy
Clark for operating a motor vehicle under the influence of alcohol and other charges. The police found a half-empty quart
of vodka in his car and clark admitted that he had been drinking, he failed a sobriety test and then registered a 0.10 &
0.12 on the breathalyzer machine at the police stationhouse, exceeding the statutory limit.
 Clark’s father met Fordham. The clarks made it clear that they would not consider a guilty plea and Fordham stated that
he would charge $200 per hour. He had never tried a case in the state district court system and would need to undertake a
lot of work to prepare for the case. The Clarks chose Fordham because of his reputation and credentials. He and his
associates worked for 227 hours and billed more than $50,000. He had filed 4 pre-trial motions. He was able to suppress
the results of the breathalyzer and the motion was granted. He billed Clark 5 times during the 7 months the case was
pending. Clark’s father paid a total of $10,000 and refused to make any additional payments. After his acquittal, the
Clark family filed a complaint with the Bard of Bar Overseers concerning fordham’s fee.
 The chair of the board dismissed Bar council’s petition for discipline against Fordham. The Bar counsel then appealed to
the to full board. The full board accepted the petition and then dismissed it. However, the Supreme Judicial Court bound
that the board erred in determining that Fordham’s fee was not clearly excessive. The court looked into the time and
labour required, the novelty and difficulty of the questions involved, and the skill requiste to perform the legal service
properly. Court did not find Fordham’s inexperience with criminal defense matter as a justification or the amount
charged. The court compared the fee charged with the fees customarily charged in the locality for the same or similar
services. In this case, the court held that client consent was irrelevant to the question of whether the fee was reasonable.
The test is whether the fee “charged” is clearly excessive, not whether the fee is accepted as valid or acquiesced in by the
client”.
 In re Kutner – 1979 – Illinois S.C. publicly censured an attorney for charging an excessive fee. Similar facts, Mr. Kutner
agreed to consult with William Fisher, who was charged with batter by his sis-in law. Fisher’s mother was aware of
Kutner’s reputation. He consulted kutner for a fee of $250 and he explained that he would charge a $5000 fee in adavcne
for the whole case. He sent a colleague to attend the preliminary court, the sis –in law appeared and asked the judge to

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drop the case, the judge obliged. Fisher regretted paying so much and sought to recover part of his fee but kutner
declined. A hearing board evaluating the complaint dismissed it however, the Review Board and Illinois SC disagreed.
 Sixth Amendmenth right to retain counsel of choice
 The 6th amendment gurantees that “ in all criminal prosecutions, the accused shall enjoy the right… to have the assistance
of counsel for his defense.”
 However, the Court has concluded that a criminal defendant does not have a Sixth Amendment right to employ counsel
with a conflict of interest, even if the client was willing to waive the conflict for purposes of the case such as an advocate
who is not a member of the bar may not represent clients . . . in court. Similarly, a defendant may not insist on
representation by an attorney he cannot afford or who for other reasons declines to represent the defendant. Nor may a
defendant insist on the counsel of an attorney who has a previous or ongoing relationship with an opposing party
 Later, the courts have allowed defendants to receive qualified counsel if they could afford it on their own. that would
mean that the rich have a greater right to counsel than the poor.
 The article concludes by suggesting how One possible rule could look like Proposed Model Rule 1.5(a). A lawyer shall
not:
 (1) Charge or collect a fee which is prohibited by law;(2) Charge or collect a fee without permission of any court or other
authority from whom permission is required by law, or in an amount that is more than authorized by the court or other
authority;(3) Charge a fee which exceeds or is otherwise in material breach of the fee agreement with the client; and (4)
Charge or collect a fee without reasonable consultation with the client at the beginning of the representation and WIthin a
reasonable time after any material change. Consultation shall include the amount of the fee if it is fixed, or the manner in
which it will be calculated if it is not; the alternative means by which the matter could be handled; the risks and benefits
of the alternatives; general estimates as to the costs of the alternatives; and any other matter which, under the
circumstances, is reasonably necessary to permit the client to make an informed decision. If the fee is not fixed, the
lawyer shall make clear that any general estimates are non-binding and subject to revision.(5) This rule does not Modify
any authority granted courts by law to regulate fee agreements and fee awards.

Fees and Retainers from Raju Ramachandran’s Professional Ethics for Lawyers (Lexis Nexis), 2nd Edition, pp. 37 – 53
Various Types of Fee Arrangements

 Fixed Fee :This is also called the ‘standard fee’. Under this system, the lawyer stipulates a fixed amount for services
rendered in a particular case. In some jurisdiction, it is mandatory for the lawyer to stipulate the fee before be renders
services. There could be variations as in, one fee upto admission, and a further fee if it goes on for longer. However, these
are lumpsum fees.
 Hourly Fee: Many lawyers charge by the hour. Hourly rates vary based on the nature of the establishment the lawyer runs,
the no: of years of experience etc. Lawyers, who charge by the hour, normally maintain time sheets, which record the
number of hours spent on a particular case and the details of the work done. In India, hourly billing is usually restricted to
big firms carrying on transactional practice.
 Per Hearing Fee: Senior advocates, counsel and other who practice in the superior courts normally charge such fees.
 Contingency Fee: It is the most controversial aspect of lawyers’ fees. This method of charging clients is prohibited in
most jurisdictions. Contingency fee is a system whereby a lawyer’s fee is based on the outcome of the case. If the client
loses, the lawyer does not get paid anything but if the client succeeds, the lawyer gets paid a pre-determined percentage of
the damages or compensation recovered.
In India, the code of professional ethics framed by the Bar council of India specifically prohibits lawyers from charging
contingency fee.
In 1955, the S.C. in Re G, Senior Advocate, dealt with a case where an advocate entered into an agreement with the client

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whereby the advocate entered into an agreement with the client whereby the advocate was entitled to 50% of the
recoveries. The advocate stated that as per the Legal Practitioners (Fees) Act 1926, he was entitled to enter into an
agreement for fees with the client an there was no restriction on the same. The S.C. however, held that the charging of
contingent fee amounted to professional misconduct.
 Retainer fees:This is a fee which is paid in order to ensure the availability of lawyers and to ensure that they do not appear
for opponents. Companies and parties involved in litigation pay retainers to lawyers for the performance of normal,
routine work.
Blocking retainer is objectionable. In this case, the lawyer is retained not to appear for the opponent but even the retaining
party does not engage hi,. This kind of retainership is objected as it prevents access to justice. Here, he is being paid not
for rendering services to his client but for making himself unavailable to the opponent.
 Referral Fee: It is a fee given as a compensation for reference of a case. It is not permitted in most countries. Division of
fee between lawyers and third parties amounts to misconduct. Division of fee between lawyers can only be made if the
division is in proportion to the services performed by each lawyer, the client is advised and does not object and the total
fee is reasonable – Moran v. Harris 131 Cal. App 3d 913
 Indian Legal Framework relating to Fee Chargeable by Lawyers
 only statue governing fees in India – Legal Practitioners (Fees) Act 1926
 Does not lay down guidelines about the extent or nature of fees which may be charged by lawyers.
 It is limited in its application and did not provide for nay code of conduct in regarding to charging fees.
 S3 of the act confers freedom on a legal practitioner who acted or agreed to act for any person to settle with his clients the
terms of his engagement and the fee to be paid for his professional services by private agreement.
 S 4 provides that every legal practitioner has the right to sue for fees. In case, the fee was not settled, it was to be
calculated in accordance with the law for the time being in force.
 S 5 states that the legal practitioner is liable to be sued in case of any loss or injury to the client due to his negligence in
the conduct of his professional duties.
 S 50(5) of the Advocates Act repealed the legal practioners (fees) act, 1926. Till date, no statute has been enacted to
regulate advocates fees.
 The only regulation in India in regard to fee is found in the Bar Council of India’s Standards of Professional Conduct and
Etiquette:
 An advocate is bound to accept any brief in the courts or tribunals or before any other authorities in or before which he
proposes to practice at a fee consistent with his standing at the Bar and the nature of the case. Special circumstances may
justify his refusal to accept a particular brief. (see duties to client – r 11)
 An advocate shall not stipulate for a fee contingent on the results of litigation or agree to share the proceeds thereof. ( see
duties to client – r 20)
 An advocate shall not adjust fee payable to him by his client against his own personal liability to the client, which liability
does not arise in the course of his employment as an advocate. ( see duties to client – r 23)
 An advocate should keep accounts of the client’s money entrusted to him and the accounts should show the amounts
received from the client or on his behalf, the expenses incurred for him and the debits made on account of fees with
respective dates and all other necessary particulars. (see duties to client – r 25)
 Where moneys are received from or on account of a client, the entries in the accounts should contain a reference as to
whether the amounts have been received for fees or expenses and during the course of the proceeding, no advocates shall,
except with the course of the proceeding, no advocates shall, except with the consent in writing of the client concerned, be
at liberty to divert any portion of the expenses towards fees. After the termination of the proceeding, the advocates shall
be at liberty to appropriate towards the settled fee due to him, any sum remaining unexpended out of the amount paid or

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sent to him for expenses or any amount that has come into his hands in that proceeding. Where the fee has been left
unsettled, the advocate shall be entitled to deduct, out of any moneys of the client remaining in his hands, at the
termination of the proceeding for which he had been engaged, the fee payable under the rules of the Court, in force for the
time being, or by then settled and the balance, if any, shall be refunded to the client. ( see duties to client – r 26,28 & 29)
 A copy of the client’s account shall be furnished to him on demand provided the necessary copying charge is paid ( see
duties to client – r 30)
 An advocate shall not accept a fee less that the fee taxable under the rules when the client is able to pay the same. ( see
duties to colleagues– r 38)
 every advocate shall in the practice of profession of law bear in mind that any one genuinely in need of a lawyer is entitled
to legal assistance even though he cannot pay for it fully or adequately and that within the limits of an advocate’s
economic condition, free legal assistance to the indigent and oppressed is one of the highest obligations an advocate owes
to society. (see duties to render legal aid– r 46)
 Reasonableness of fee
 The model rules of the American Bar association sets out the factors which are to be considered while determining the
reasonableness of fees ( R 15)
 (1) The time and labor required, the novelty and difficulty of the legal questions involved, and the skill requisite to
perform the legal service properly;
 (2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other
employment by the lawyer;
 (3) The fee customarily charged in the locality for similar legal services;
 (4) The Amount involved and the results obtained;
 (5) The time limitations imposed by the client or by the circumstances;
 (6) The nature and length of the professional relationship with the client;
 (7) The experience, reputation, and ability of the lawyer or lawyers performing the services; and
 (8) Whether the fee is fixed or contingent.
 In London, there are separate rules to counsel fees:
 1)counsel should charge separate fee for each case
 fixed fee for advising over a period of time is not permitted
 min. rates of fee for Queen’s counsel and junior counsel are fixed etc.
 despite the aforesaid guidelines, it is very difficult to determine the reasonableness of fees. In Re Kutner, the SC of Illinois
went into the question of excessiveness of an attorney’s fee and concluded that in the facts of that case the fee was indeed
excessive,. Clark J dissented, opining that by adjudicating upon the excessiveness or otherwise of a lawyer’s fee the court
was venturing into troubled waters: a client who voluntarily pays the lawyers fee should not be permitted to complain
about it later.
 NB Mirzan v. Disciplinary Committee of the Bar Council of Maharastra, the SC held that an advocate obtaining monies
from the client under false pretexts is liable to be punished for professional misconduct.
 In India, there is no prescription of minimum fees. It would be desirable for us to adopt the European example and
prescribe a min. fee as it would be useful for the following reasons:
 1) interests of junior lawyers will be protected
 2)undercutting by lawyers will be minimized
 3) the fee can be used as a benchmark to determine reasonableness or otherwise of fees.
 Management of Funds of Clients

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 SC in Re M, an advocate, has held that when the lawyer comes into possession of the monies of the client, he has to treat
himself as a trustee and cannot retain them even towards his fees.
 A lawyer is permitted to file a suit for recovery of fees. earlier legal practioners (fees) act of 1926 explicitly permitted
them, however, currently there is no specific provision in this regard.
 A lawyer in India has no right to retain a lien over the client’s papers. ( SC in RD Saxena v. Balram Prasad Sharma)
 Fees cannot be standardized as it is impractical and impossible.
 The focus ought to be to ensure that the already established legal aid programme is strengthened and on inculcating in
every lawyer the needs to set apart a portion of professional time for free legal services and also legal services at
concessional fees for those who require them.

Indian Medical Association v. VP Shanta 1996 AIR 550 SC

Facts

 The treatment that was given to the deceased husband of the complainant in a nursing home belonging to the opposite
party was totally free of any charge, hence, the National Consumer Commission held that it did not contitute 'service' as
defined in Section 2(1) (o) of the Consumer Protection Act.

Issue

1) Whether and, if so, in what circumstances, a medical practioner can be regarded as rendering ‘service’ under S 2(1)(o) of
the consumer protection act, 1986?
2) Whether the service rendered at a hospital/nursing home can be regarded as ‘service’ under S 2(1)(o) of the Act
3) K.Parasaran, Harish Salve, A.M. Singhvi, Krishnamani and S.Balakrishnan have addressed the court on behalf of the
medical profession and the hospitals.
4) Rajeev Dhavan has presented the case of the complainants.

Rule
 Since the Act gives protection to the consumer in respect of service rendered to him, the expression "service" in the Act
has to be construed keeping in view the definition of "consumer" in the Act. It is, therefore, necessary to set out the
definition of the expression `consumer' contained in Section 2(1)(d) insofar as it relates to services and the definition of
the expression `service' contained in Section 2(1)(o) of the Act. The said provisions are as follows :
 "Section 2(1)(d) "consumer" means any person who, -
 hires [or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised,
or under any system of deferred payment and includes any beneficiary of such services other than the person who hires
[or avails of ] the service for consideration paid or promised, or partly paid and partly promised, or under any system of
deferred payment, when such services are availed of with the approval of the first mentioned person.
 "Section 2(1) (o) : "service" means service of any description which is made available to the potential users and includes
the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or
other energy, board or lodging or both, [housing construction], entertainment, amusement or the purveying of news or
other information, but does not include rendering of any service free of charge or under a contract of personal service;"

Analysis

 The definition of `service' in Section 2(1)(o) of the Act can be split up into three parts - the main part, the inclusionary
part and the exclusionary part. The main part is explanatory in nature and defines service to mean service of any
description which is made available to the potential users. The inclusionary part expressly includes the provision of

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facilities in connection with banking, financing, insurance, transport, processing, supply of electrical of other energy,
board or lodging or both housing construction, entertainment, amusement or the purveying of news or other information.
The exclusionary part excludes rendering of any service free of charge or under a contract of personal service.

Conclusion

 Keeping in view the wide amplitude of the definition of `service' in the main part of Section 2(1)(o) as construed by this
Court in Lucknow Development Authority (supra), we find no plausible reason to cut down the width of that part so as
to exclude the services rendered by a medical practitioner from the ambit of the main part of Section 2(1)(o).
 The activity of providing medical assistance for payment carried on by hospitals and members of the medical profession
falls within the scope of the expression 'service' as defined in Section 2(1) (o) of the Act and that in the event of any
deficiency in the performance of such service the aggrieved party can invoke the remedies provided under the Act by
filing a complaint before the Consumer Forum having jurisdiction.
 It would thus appear that medical practitioners, though belonging to the medical profession, are not immune from a
claim for damages on the ground of negligence. The fact that they are governed by the Indian Medical Council Act
and are subject to the disciplinary control of Medical Council of India and/or State Medical Councils is no solace to
the person who has suffered due to their negligence and the right of such person to seek redress is not affected.
 The Tribunal did not considered the question whether services are rendered free of charge to all the patients availing
services in the said nursing home or such services are rendered free of charge only to some of the patients and are
rendered on payment of charges to the rest of the patients. Unless it is found that the services are rendered free of
charge to all the patients availing services at the nursing home, it cannot be held that the said services do not
constitute 'service' as defined in Section 2(1) (o) of the Act.
 Civil Appeal petition was, therefore, allowed and the matter was remitted to the National Commission for consideration
in the light of this judgment.

Jacob Mathew v. State of Punjab and Anr.

 Concept of ‘Professional Negligence’ and as to when and how it does give rise to an action under the criminal law.
 Case alleged was one of negligence or criminal rashness (under S-304 A of the IPC) of doctors (professionals) when an
empty gas cylinder was fixed on patient which resulted in him passing away. Man was suffering from late stages of
cancer and wasn’t being admitted into hospitals, but sons being influential managed to admit him. Treated with utmost
care and caution and given all required medical assistance by doctors and every conceivable effort was made by all the
attending staff.
 Whether a different standard is applicable for recording a finding negligence when a professional is to be held guilty of
negligence?
 The Consumer Protection Act, 1986 has jurisdiction to hear complaints against professionals for ‘deficiency in service’
(very widely defined in Act) has given rise to a large number of complaints against professionals being filed by person
aggrieved.
 The definition of Negligence involves three constituents of negligence: (1) A legal duty to exercise due care on the part
of the party complained of towards the party complaining the former's conduct within the scope of the duty; (2) breach of
the said duty; and (3) consequential damage. Cause of action for negligence arises only when damage occurs; for,
damage is a necessary ingredient of this tort."
 ‘Negligence by Professionals’ include lawyers, doctors, architects and others professing some special skills. Any
reasonable man entering into a profession which requires a particular level of learning to be called a professional of that
branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and
exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell

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his client that the client shall win the case in all circumstances. The only assurance which such a professional can give or
can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession
which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his
skill with reasonable competence.
 Judged by this standard, a professional may be held liable for negligence on one of two findings: either he was not
possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable
competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person
charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that
profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he
practices.
 Decided in Bolam v. Friern Hospital Management Committee , it was held: Where you get a situation which involves the
use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the
man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary
skilled man exercising and professing to have that special skill . . . A man need not possess the highest expert skill; it is
well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that
particular art. The water of Bolam test has ever since flown and passed under several bridges, having been cited and dealt
with in several judicial pronouncements, one after the other and has continued to be well received by every shore it has
touched as neat, clean and well- condensed one. The classical statement of law in Bolam's case has been widely accepted
as decisive of the standard of care required both of professional men generally and medical practitioners in particular. It
has been invariably cited with approval before Courts in India and applied to as touchstone to test the pleas of medical
negligence.
 A Professional man should command the corpus of knowledge which forms part of the professional equipment of the
ordinary member of his profession. He should not lag behind other ordinary assiduous and intelligent members of his
profession in knowledge of new advances, discoveries and developments in his field. He should have such an awareness
as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill.
He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily
competent members of the profession would be alert. He must bring to any professional task he undertakes no less
expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more.
The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon
combining the qualities of polymath and prophet.
 Two things are pertinent to be noted . Firstly, the standard of care, when assessing the practice as adopted, is judged in the
light of knowledge available at the time (of the incident), and not at the date of trial. Secondly, when the charge of
negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not
generally available at that point of time on which it is suggested as should have been used.
 Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be
shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in
fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care."
 The purpose of holding a professional liable for his act or omission, if negligent, is to make the life safer and to eliminate
the possibility of recurrence of negligence in future. Human body and medical science, both are too complex to be easily
understood. To hold in favour of existence of negligence, associated with the action or inaction of a medical professional,
requires an in-depth understanding of the working of a professional as also the nature of the job and of errors committed
by chance, which do not necessarily involve the element of culpability.
 Held:

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o Before the court faced with deciding the cases of professional negligence there are two sets of interests which are at stake
: the interests of the plaintiff and the interests of the defendant. A correct balance of these two sets of interests should
ensure that tort liability is restricted to those cases where there is a real failure to behave as a reasonably competent
practitioner would have behaved. An inappropriate raising of the standard of care threatens this balance. While
expectations from the professionals must be realistic and the expected standards attainable, this implies recognition of the
nature of ordinary human error and human limitations in the performance of complex tasks.
o Negligence for civil and criminal cases are different- latter is much higher degree.
o Doctor is not criminally responsible for patients death unless his negligence/incompetence went beyond a mere matter of
compensation between subjects and showed such disregard for life and safety of others as to amount to a crime against
the State.
o That the degree of negligence required is that it should be gross, and that neither a jury nor a court can transform
negligence of a lesser degree into gross negligence merely by giving it that appellation. There is a difference in kind
between the negligence which gives a right to compensation and the negligence which is a crime.
o In case of errors, the only failure is a failure defined in terms of the normative standard of what should have been done.
There is a tendency to confuse the reasonable person with the error-free person. While nobody can avoid errors on the
basis of simply choosing not to make them, people can choose not to commit violations. A violation is culpable.
 In Indian Medical Association v. VP Shanta the Court dealt with how a 'profession' differs from an 'occupation'
especially in the context of performance of duties and hence the occurrence of negligence. In the matter of professional
liability professions differ from occupations for the reason that professions operate in spheres where success cannot be
achieved in every case and very often success or failure depends upon factors beyond the professional man's control. In
devising a rational approach to professional liability which must provide proper protection to the consumer while
allowing for the factors mentioned above, the approach of the Courts is to require that professional men should possess a
certain minimum degree of competence and that they should exercise reasonable care in the discharge of their duties. In
general, a professional man owes to his client a duty in tort as well as in contract to exercise reasonable care in giving
advice or performing services.
 Dismissed

DK Gandhi v. M Mathias
 The state Consumer disputes redressal commission of the state of Delhi ruled that the services of a lawyer would not
qualify as a service under the section 2(1)(o) of the Consumer Protection Act.
 The National Consumer Disputes Redressal Commission, on appeal changed this and said that the state commission was
wrong in holding that the services of a lawyer would not qualify to be a service. They reversed this.
 “In our view, the reasoning given by the State Commission is totally erroneous. The ambit and scope of Section 2(1)
(o) of the Consumer Protection Act which defines service is very wide and by this time well established. It covers all
services except rendering of services free of charge or a contract of personal service. Undisputedly, lawyers are rendering
service. They are charging fees. It is not a contract of personal service. Therefore, there is no reason to hold that they are
not covered by the provisions of the Consumer Protection Act,1986.”
 The National Dispute Resolution Commission has used SC cases to determine that lawyers would be qualified under the
act as providing services.
 “In the case of Indian Medical Association v. V.P. Shantha and Others  - the Apex Court discussed whether medical
practitioner would be covered by the said definition. For this purpose, it was observed that in the matter of professional
liability, professions differ from other occupations for the reason that professions operate in spheres where success
cannot be achieved in every case and very often success or failure depends upon factors beyond the professional mans
control. In devising a rational approach to professional liability which must provide proper protection to the consumer

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while allowing for the factors mentioned above, the approach of the courts is to require that professional men should
possess a certain minimum degree of competence and that they should exercise reasonable care in the discharge of their
duties. If there is negligence on the part of medical practitioner, the right of affected person to seek redress would be
covered by the Act. Medical practitioners would not be outside the purview of the provisions of the Act. The same
principle would apply in case of service to be rendered by a lawyer.”
 “In the case of Jacob Mathew vs. State of Punjab the Apex Court has held that in law of negligence, professionals such as
lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled
persons generally and a professional may be held liable for negligence on one of the two findings: either he was not
possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable
competence in the given case, the skill which he did possess.”
 Therefore the services of a lawyer do fall under the ambit of services under the Consumer Protection Act.
 “For the reasons stated above, the impugned order passed by the State Commission is set aside and the matter is remitted
to the State Commission for deciding the same on merits in accordance with law.”

Week 8- Contempt of Court

E.M.S Namboodiripad v. T. Narayanan Nambiyar AIR 1970 SC 2015
 Appeal to the SC from the Kerala HC.
 The Appellant was charged for contempt of Court.
o Facts & Procedural History
 Appellant (CM of Kerela) at a press conference made critical remarks relating to the judiciary.
 He referred to the Judiciary as “an instrumental of oppression” + Judges as “dominated by class hatered, class
prejudices”. “instinctively” favoring the rich against the poor + a system “working against workers, peasants and other
sections of the working classes” + “law and the system of judiciary essentially served the exploiting classes”
 These remarks were reported in the newspapers and thereafter in proceedings commenced in the HC; appellant was
called upon to show cause why he should not be committed for contempt of court.
 The appellant argued before the HC, via an affidavit, that the offence charged could not be committed, in view of the
guarantees of freedom of speech and expression under the Constitution.
 The appellant argued: It did not offend the majesty of law, undermine ‘the dignity of courts’ or obstruct the
administration of justice. + He argued that his words contained a “fair and reasonable” criticism of the system of
judicial administration +
 HC: By a majority judgement, the appellant was convicted for contempt of court and fined Rs. 1000/0 or simple
imprisonment for one month.
o Appeal to the SC
 Appellant argued:
 Guarantee of freedom of speech and expression in Article 19(1)(a), +
 The intention of the appellant while making his remarks should be examined in the light of his political views
which he was at liberty to put before the people. He sought to justify the remarks as an exposition of his ideology,
which he claimed was based on the teaching of Marx and Engels and on this ground, claimed protection under Article
19(1).
 The contempt of court, under which he is charged, “scandalizing the court” had fallen in desuetude and was no
longer enforced in England (relying on Mcleod v. St Aubyn)
 SC: Held convicted for contempt of court.
o SC Responding to Intention-Contempt to Court Argument

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 The law punishes not only act which do not interfere with the courts and administration of justice, but also those which
have the tendency-that is to say, are likely to produce a particular result.
 The intention can serve as a consideration for deciding the final sentence to be imposed, but not as a justification
for committing contempt of court.
 Judging from the angle of court and administration of justice, there was no doubt that the appellant was guilty of
contempt of court.
 The likely effect of his (appellant’s) words must be seen and they clearly had the effect of lowering the prestige of judges
and courts, in the eyes of people. Hence, appellant’s justification of his understanding of Marx doesn’t serve as a
defence.
 To charge the judiciary as an instrument of oppression etc. Was clear that the Appellant bore an attack upon judges,
which was calculated to rise in the minds of the people a general dissatisfaction with, and distrust of all judicial
decisions.
o SC on Contempt of court:
 It’s right of the courts to punish by imprisonment or fine persons guilty of words or acts which either obstruct or tend to
obstruct the administration of justice.
 The chief forms of contempt of court are- Insult to judges, Attacks upon them, comment on pending proceedings
with a tendency to prejudice fair trial, obstruction to officer of courts, witnesses or the parties, abusing the
process of the court, breach of duty by officers connected with the court and scandalizing the judges or the courts.
 Scandalizing the Judges or the Courts: generally when the conduct of a person tends to bring the authority and
administration of the law into disrespect or disregard. In this conduct are includes, all acts which bring the court into
disrepute or disrespect or which offend its dignity, affront its majesty or challenge its authority. Such contempt may be
committed in respect of a single judge or a single court but may, in certain circumstance, be committed in respect of the
whole of the judiciary or judicial system.
 SC responding to the Appellant: No doubt that in Lord Morris it was observed that the contempt of court known from
the days of the Star Chamber as Scandalum Justiciae Curiae or “scandalising the judges”, had fallen into disuse in
England. But as pointed out by Lord Atkin in Andre Paul Terence Ambard v. The Attorney General of Trinidad and
Tobago, the observations of Lord Morris were disproved within a year in The Queen v. Gray. Since then many
convictions have taken place in which offence was held to be committed when the act constituted scandalising a judge.
We may dispose of the Bombay case above cited. The contemner in that case had expressed contempt for all
courts. Beaumonth C. J. (Wasoodew, J. concurring) held that it was not a case in which action should be taken.
The case did not lay down that there could never be contempt of court even though the court attacked was not one but all
the courts together.
o SC On Article 19(1)(a) Freedom of Speech & Expression & Contempt of Court
 Although Art. 19(1)(a) guarantees complete freedom of speech and expression, it also makes an exception in respect of
contempt of court.
 Art. 19(1)(a) + it’s restrictions read with Arts. 129 and 215: exception in respect of contempt of court.
 While the right to freedom of speech & expression is essential to a free society, the Constitution has itself imposed
restrictions in relation to contempt of court and it cannot therefore be said that the right abolishes the law of contempt or
that attacks upon judges and courts will be condoned.
 The appellant has contended before us that the law of contempt should be so applied that the freedom of speech and
expression are not whittled down. This is true. The spirit underlying Art. 19 (1) (a) must have due play but we cannot
overlook the provisions of the second clause of the article. While it is intended that there should be freedom of speech
and expression, it is also intended that in the exercise of the right, contempt of court shall not be committed.

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In Re. V. C. Mishra AIR 1995 SC 2348

 Proceedings brought under Art. 129 + 215+ 142
 Facts of the Case:
 Contempt alleged is in the face of the Court: He contemner was questioned by the Bench regarding the provision under
which the impugned order had been passed. He started shouting and said “No question could have been put to him” and
that he would get the Judge transferred or impeached and threatened by saying that he had “turned up many judged” and
created a scene in the Court and the counsel lost his temper and, according to the Judge, “except to abuse him of mother
and sister” the contemner abused and insulted him “like anything”-Contemner thereby, according to Judge, wanted to
convey that admission of appeal was a matter of course and no arguments were to be heard at that stage. Contemner is
not only a senior adv. But also President of Bar and Chairman of the BCI.
 The Judge could decide on the spot, BUT, still decided to report the incident to the acting CJ of his Court. The complaint
was that such a situation where its difficult for judges to discharge their judicial function without fear or favour and thus
required them to appeal for “restoration of the dignity of the judiciary”
 The procedure adopted was not only summary but has adequately safeguarded the interest of the contemner.
 The contemner was issued notice, intimating him the specific allegations, he was given opportunity to counter the
allegation by filling his Counter Affidavit. He was also given enough time to file an affidavit of any other person that he
chose or to produce any other material.
 SC has taken cognizance keeping with Section 14 of Contempt of Court Act, 1971.
 Following questions with respect to contempt to court were discussed:
 Question1: Can SC take cognizance of contempt of a HC and suo motu initiate contempt proceedings against the
contemner?
 Answer 1:
 Art. 129 Vests the SC with the power to punish not only for the contempt of itself but also of the HC and subordinate
courts. Such contempt of proceedings before the SC of contempt of HC are maintainable despite the fact that the HC
concerned is also under Art. 215-another court of record vested with identical and independent power of punishing for
contempt of itself.
 The contention raised in support of the objection to the SC taking cognizance of the contempt of the HC ignores the fact
that the SC is not only the highest court of record, but under various provisions of the Constitution, is also charged with
the duties and responsibilities of correcting the lower courts and tribunals and of protecting tem fro those whose
misconduct tends to prevent the due performance of their duties.
 SC under Art. 129 has the powers of court of record, including power to punish for contempt for itself +superintending
powers over the lower courts and tribunals as the highest court of record
 SC is the custodian of the administration of justice in the country. As the highest court imbued with supervisory and
appellate jurisdiction over all the lower courts and tribunals, it is inherently deemed to have been entrusted with the
power to see that the stream of justice in the country remains pure, that its course is not hindered or obstructed in any
manner, that the justice is delivered without fear or favour and for that purpose all the courts and tribunals are protected
while discharging their legitimate duties. To discharge all its obligations, the SC has to take cognizance of the deviation
from the path of justice in the tribunals of the land, and also of cases which obstruction in the course of justice. To hold
otherwise would mean that although the SC is charged with the duties, it is not equipped with the power to discharge
them.
 Question 2: Can “Contempt in the face of the Court in the nature of facie curiae contempt be a justification for adopting
summary procedure and punishing the offender on the spot?

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 Answer 2: Yes.
 Criminal contempt of court undoubtedly amounts to an offence, but it is an offence sui generis and hence for such
offence, the procedure adopted both under the common law and the statute law, even in this country, has always been
summary. However, the fact that the process is summary does not mean that the procedural requirement i.e. the
opportunity of meeting the charge is denied to the contemner.
 The degree of which the charge maybe stated depends upon the circumstances, So long as the gist of the specific
allegation is made clar or otherwise the contemner is aware of the specific allegation, it is not always necessary to
formulate the charge in a specific allegation.
 Question 3: Does the principle of natural justice get affected in case of “contempt in the face of the court” where there
is “on the spot judgment”, decided by the judge before whom contempt took place?
 Answer 3:
 Despite the objection that the Judge deals with the contempt himself, and the contemner has little opportunity to defend
himself, there is a residue of cases where not only it is justifiable to punish on the spot, but it is the only realistic way of
dealing with certain offenders.
 This procedure does no offend the principles of natural justice viz., nemo judex in sua causa, since the prosecution is not
aimed at protecting the judge personally but protecting the administration of justice. The threat of immediate punishment
is the most effective deterrent against misconduct.
 The judge has to remain in full control of the hearing of the case and he must be able to take steps to restore order as
early and quickly as possible. The time factor is crucial. Dragging out of the contempt proceedings means a lengthy
interruption to the main proceedings which paralyses the court for a time and indirectly impedes the speed the efficiency
with wich justice is administered.
 Question 4: Is it necessary to summon the judge for examination of verfy his allegation against the contemner? Even if
the version of the contember of the alleged incident is different from the judge?
 Answer 4: No, not required to summon the Judge.
 Section 14 of Contempt of Court Act. 1971- deals with the procedure when the action is taken for the contempt in the
face of the SC and the HC. Sec. 14(3) deals with a situation where in facie curiae contempt is tried by a Judge other than
the judge or judges in whose presence or hearing the offence is alleged to have been committed. The provision in specific
terms and for obvious reasons, states that in such cases it shall not be necessary for the Judge or Judges in whose
presence or hearing the offence is alleged to have been committed, to appear as a witness and the statement placed before
the CJ shall be treated as the evidence in the case.
 Context For Question5: After filing of affidavits and counter affidavits between the judge and the contemner, the
contemner later filed a written apology therein to withdraw his applications, petitions, counters, allegations, and
submissions.
 Question 5: Whether this apology should be accepted?
 Asnwer 5:
 On Fact, the contemner did indulge and commit the acts attributed to him, and they were calculated to overawe the court
and intended to interfere with and obstruct the course of justice. Such acts lower the confidence of people in the ability of
the Court to bring administration of justice to deliver free and fair justice.
 Such acts are unbecoming of a lawyer, thus the so-called apology tendered by the contemner is not acceptable.
 The submissions made by the contemner amount to “Contempt of Court” under S. 2(c) & S.12 u/Contempt of Courts
Act, 1971.
 Question 6: Role expected of a lawyer representing the interest of his clients and as an officer of the court?
 Answer 6:

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 The Judge has a right to ask whatever questions he wanted to, to appreciate the merits and demerits of the case. There is
no convention in India that only the senior members of the Bench could have asked questions.
 No one expects a lawyer to be subservient to the Court while presenting his case, and not to put forward his clients
interest, merely because the Court is against him. In fact, that is the moment when he is expected to put forth his best
effort to persuade the Court. However, if, in spite of it, or to filing hot words or epithets or use disrespectful, derogatory
or threatening languages or exhibit temper which has the effect of overbearing the Court. The lawyer is not entitled to
indulge in unbecoming conduct either by showing his temper or using unbecoming languages.
 By threatening the judge and using disrespectful language, the contemner has obstructed the course of justice. Such acts
prevents the judge from performing its duty to administer justice.
 Question 7: Is the jurisdiction and power of SC to take cognizance of any contempt of court and to award punishment
for it, circumscribed by any statute?
 Answer 7: Neither Contempt of Court Act nor Advocates Act, 1961 could be pressed into service to restrict the
jurisdiction of SC under Art. 129 & 142, to punish an advocate found guilty of criminal contempt of court. Court’s power
extends to cancelling or suspending the license of such advocates. SC acting under Art. 129 and 142 can impose
punishments it can impose under S. 38 Advocates Act-Contenting seeking to restrict power under Art. 129 on the basis
of Art. 19(1)(a) * (2) and 19 (1)(g) & (6) NOT WELL FOUNDED.
 Question 8: Is Article 142(1) or 129 limited or conditioned by any statutory provision?
 Answer 8:
 The jurisdiction of SC under Art. 129 is independent of the statutory law of contempt enacted by Parliament under
Entry77 OF list I of 7th Schedule of the Constitution. This jurisdiction to take cognizance of the contempt as well as to
award punishment for it being constitutional, it cannot be controlled by any statute.
 Neither, therefore, the Contempt of Court Act, 1971 nor the Advocates Act, 1961, can be pressed into service to restrict
the said jurisdiction.
 Furthermore, the FREEDOM OF SPEECH AND EXPRESSION CANNOT BE USED FOR COMMITTING
CONTEMPT OF COURT NOR CAN THE LEGAL PROFESSION BE PRACTISED BY COMMITING THE
CONTEMPT OF COURT.
 Question 9: “Contempt of Court” Definition under Common law
 Answer 9:
 Under the common law, the definition “contempt of court” is defined as an act or omission calculated to interfere with
the due administration of justice. This covers criminal contempt (that is acts which so threaten the administration of
justice that they require punishment) and civil contempt (disobedience of an order made in a civil cause).
 Need and Justification for vesting the extraordinary power in Court to punish for contempt of court- Object is to uphold
the majesty of the law and the administration of justice. Judiciary in a democratic written constitution has been assigned
a special role and hence the need to protect its dignity and authority (Art. 129, 215 and 32, 226 & 136)

Supreme Court Bar Association v. Union of India AIR 1998 SC 1895

Facts:

 In Re: Vinay Chandra Mishra, this Court found the Contemner, an advocate, guilty of committing criminal contempt of
Court for having interfered with and "obstructing the course of justice by trying to threaten, overawe and overbear the
court by using insulting, disrespectful and threatening language".
 Aggrieved by the direction that the contemner shall stand suspended from practising as an advocate for a period of three
years issued by the Supreme Court by invoking powers under Articles 129 and 142 of the Indian Constitution, the
Supreme Court Bar Association, through its Honorary Secretary, filed a petition under Article 32 of the Constitution of

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India seeking relief by way of issuing an appropriate writ, direction, or declaration, declaring that the disciplinary
committees of the Bar Councils set up under the Advocates Act, 1961, alone have exclusive jurisdiction to inquire into
and suspend or debar an advocate from practising law for professional or other misconduct, arising out of punishment
imposed for contempt of court or otherwise and further declare that the Supreme Court of India or any High Court in
exercise of its inherent jurisdiction has no such original jurisdiction, power or authority in that regard notwithstanding the
contrary view held by this Hon'ble Court in In Re: Vinay Chandra Mishra.
 Question: SC’s power to investigation and punishment for Contempt of Itself falls under which law?
 Supreme Court’s power of investigation or punishment for contempt of itself is inherent. Though by virtue of Art.
142(2), it is subject to law made by Parliament, but such law cannot take away the inherent jurisdiction of SC.
 Contempt of Courts Act, enacted by Parliament does not deal with SC’s power regarding investigation and punishment
for contempt of itself and therefore SC exercises this power under Art. 129 r/w Art. 142. However, nature of punishment
prescribed under the Act, may act as a guide for SC. But the extent of punishment prescribed under Act can apply only to
HC- Section 15 of the Act only prescribes procedural mode for taking cognizance of criminal contempt and is not a
substantive provision. {Ref: Section 10 + 15 of Contempt of Courts Act, 1971)
 Question: Jurisdiction of SC to punish an advocate for contempt of court? What’s the role of the Bar?
 The jurisdiction of SC to punish for contempt of court is different from jurisdiction to punish the advocate for
professional misconduct. The former is conferred on the SC under Art. 129 r/w Art. 142. While the latter is exclusively
conferred on the authorities such as State Bar Council r BCI created under Advocates Act.
 SC, while punishing an Adv. For contempt of court, also suspends his license for practice and removing his name from
roll of State Bar Council. The Bar pursuant to an elaborate enquiry can impose such a punishment. It cannot be imposed
by SC even by resort to appellate power under S. 38 of Advocate Act.
 The SC cannot exercise its appellate jurisdiction under S. 38 of the Act and impose punishment prescribed under the Act,
while punishing the contemner.
 Whenever the Court of Record while finding an advocate guilty of contempt also records finding about his conduct and
desires or refers the matter to be considered by the Bar Council, the Bar Council should “Act in Aid of the SC” as
envisaged in Art 144 and proceed in the manner prescribed in the Adv. Act and Rules- But if the Bar Council fails to take
any action SC may consider invoking S. 38 of the Act.
 Other IMP Point: The jurisdiction of the court under Art 129 & 215 IS NOT ADVERSARIAL IN NATURE. Party who
brings to the notice of the court the contumacious conduct is only an informant and not a litigant.
Conclusion-Takeaway:

 The Supreme Court is vested with the right to punish those guilty of contempt of Court under Article 129 read with
Article 142 of the Constitution of India.
 The power to punish contemners is also vested with the High Courts under Article 215 of the Constitution and the
Contempt of Courts Act, 1971 also governs the punishments given by the High Court. This act in no way controls the
jurisdiction of the Apex Court.
 The Court in In Re: Vinay Mishra misconstrued Article 129 read with 142 and robbed the Bar to of all powers to try and
punish those for professional misconduct. It even assumed jurisdiction when Section 38 of the Advocates Act, 1961
explicitly provides only appellate jurisdiction to the Apex Court. The Court punished Shri Mishra by suspending him
thus the petition arose in the 1998 case, Supreme Court Bar Association v. Union of India.
 The Court overruled the Mishra case and recognized the Bar Council's power to try and punish all those guilty of
professional misconduct. It is well settled that contempt proceedings are brought about to protect the majesty of law and
uphold the judiciary's position, the central pillar in Indian democracy, among the public and give them reason to keep

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their faith in the administration of justice. Contempt proceedings are not brought about to restore the pride of the Judge
in who's Court or against whose order their was contempt.
 In the Mishra case the Court instead of protecting the image of the Judiciary, the upholder of the law, knowingly or un-
knowingly, tried to restore the pride of the Judge by suspending the advocate Mishra who might have been influenced by
his high position in the Bar, and felt that appropriate punishment might not be meted out to him.
What Constitutes Scandalising the Court? V. Venkatesan, Frontline (May, 2001)
 Contempt of Court jurisdiction exercised not to protect dignity of an individual judge, but to protect the administration of
justice from being maligned.
 “Criminal contempt” as defined in S-2(c) of Cont. of Courts Act, 1971 as the publication (whether by words, spoken or
written, or by signs, or by visible representations or otherwise) of any matter or the doing of any other act whatsoever
which scandalizes or tends to scandalize, or lowers or tends to lower the authority of courts.
 “Scandalize” understood as offend the moral sensibilities of; horrify or shock by a (real or imagined) violation of
morality or propriety." In the absence of a legal definition of the term in the Act or elsewhere, the meaning of the term
needs to be considered as it is commonly understood.
 Issue? Division Bench at Delhi HC (J Anil Dev Singh and J OP Dwivedi) issued notices on criminal contempt petition by
the Bar Council of Delhi. P alleged that magazine (Wah India) carried a write-up, photographs of the Judges, reflecting
on their integrity, quality of judgement, depth of basic knowledge, observance of punctuality, manners in court and
receptiveness to arguments, which amounted to contempt. Imputation that some Judges of the Delhi High Court were
perceived by some senior advocates (whose ratings were sought by the magazine), as being less than 100 per cent honest.
Whether their ratings on the Judges' integrity, understanding of law, and courtroom behaviour on a six-point scale
amounted to "scandalisation of judiciary" or lowered the authority of the court?
 Woes of other Media Companies: The court's directions created an uproar in the media. While editorial comments in
sections of the print media questioned its order gagging the media, six media personalities. They clarified that they did
not wish to defend the article or contest the contempt petition but told the court that they were aggrieved by its direction
barring the press from reporting the contempt proceedings. Asserting a violation of their FR, they said that their
proceedings would not interfere with or obstruct the course of justice or the administration of the law in any manner and
that it is vital that proceedings conducted in open court could be reported in the interests of justice and in public interest.
 Media coverage was allowed and Madhu Trehan (Wah India editor) tendered an “unconditional and unqualified apology
and expressed deep regret for the article published. So, Court reversed judgement. But…
 Clear that the only basis for initiating contempt proceedings against editor was that report had ‘scandalized the court’.
What needs to be pointed out was that a perceived lack of respect for the institution and the credibility of the judiciary
which some judges underlined as the reason why they found the report offensive cannot be construed as ‘scandalizing the
judiciary’. Especially when the magazine's survey had added that it was by no means an attempt to cast any aspersion on
the competence of the judiciary, but was a small and humble attempt to hold a mirror to it.
 Court has read too much into the ratings which are purely subjective

Contempt of Court- Need for a Second Look, Katju, Hindu (Jan, 2007)
 In a democracy the people should have the right to criticise judges. The purpose of the contempt power should not be to
uphold the majesty and dignity of the court but only to enable it to function.
 Imagine citizens of India as masters and all authorities (including courts) as their servants. Masters should be allowed to
criticize servants if they don’t act or behave properly. Democracy dictates that people have the right to criticize judges—
should there be a Contempt of Courts Act, which to some extent prevents people from criticizing judges or doing other
things that are regarded as contempt?

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 Freedom of Speech- However, A-129 and A-215 give power of contempt of court to higher judiciary, however, keeping
democracy in mind, 19(1)(a) should be treated as primary and power of contempt to be subordinate. People are free and
have the right to criticize judges, but should not go to the extent of making the functioning of the judiciary
impossible/extremely difficult? (TEST to determine whether an act amounts to contempt. If it does not, then even if it is
harsh criticism, it wont be contempt.
 Fali Nariman, “The Law of Contempt - is it being stretched too far? ‘the offence of scandalizing the court is a mercurial
jurisdiction in which there are no rules and no constraints.
 Uncertainty in the law of Contempt (Reasons):
o No def in Act for ‘contempt’ in1952 Act
o Even when def was introduced in 1971 Act, there was no def, of what constitutes scandalizing the court, or what
prejudices, or interferences with, the course of justice. (What may be scandalous before may not be today)
 Contempt was for vindicating the Court’s authority and it was coeval with their foundation and institution and was a
necessary incident to a court of justice. Authority and dignity of court then came from the King who would decide cases
himself. Situation should be totally different in a democracy.
 Lord Denning in R vs. Commissioner of Police (1968): "Let me say at once that we will never use this jurisdiction as a
means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak
against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less
than freedom of speech itself."
 Best shield and armour of a judge is his reputation of integrity, impartiality and learning. Contempt power should only be
used in rarest of rare cases (not just where a mere threat suffices), but where it is impossible for the court to function.
 ‘Preventing or making it extremely difficult…” should ordinarily be understood with reference to a judge who has a true
judge’s temperament one that is detached, calm with equanimity, and with broad enough shoulders to shrug off baseless
criticisms or attempts to influence with him without being perturbed.
 Contempt is discretionary jurisdiction.
 Wholly undemocratic to treat the public as children who are unable to accept the inescapable shortcomings of man-made
institutions and so a mistake to try and establish and maintain through ignorance, public esteem for our courts.
 S-13(b) of Amendment (2006) to Contempt of Court Act - The courts may permit, in any proceedings for contempt of
court, justification by truth as valid defence if it is satisfied that it is in public interest and the request for invoking the
said defence is bona fide.

Week 9- Adjournments
Shiv Cotex v. Tirgun Auto Plast Pvt. Ltd.
 The Plaintiff applied for a mortgage loan with the respondent and received the same.
 Plaintiff defaulted the payment. Respondent takes over the mortgaged property.
 Plaintiff approaches the court to seek more time and that the interest also be continued on the debt.
 The burden was on the Plaintiff to prove that such takeover of the mortgaged assets was illegal.
 The lower court gives time to the Plaintiff to produce evidence as to why such a takeover by the respondent is illegal.
 Plaintiff fails to produce the said evidence on three occasions (basically after repeated adjournments)
 The court gave the following orders, "Matter is fixed for conclusion of the plaintiff's evidence being last opportunity. No
plaintiff's witness is present and neither any cogent reason has been put forth for such failure fully knowing the fact that
today is the third effective opportunity for conclusion of plaintiff's evidence. Hence, matter is ordered to be proceeded
under Order 17, Rule 3(a) C.P.C. and plaintiff's evidence is deemed to be closed. Heard. To come up after lunch for
orders."

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 On May 10, 2007 itself in light of the above order, the trial court dismissed the suit in its post lunch session.
 After dismissal of the suit by the lower court the Respondent sold the mortgaged property.
 Being utterly dissatisfied with the verdict of the lower court the petitioners have approached the High Court to set aside
the order given by the Lower Court.
 High Court accepted the appeal and remanded the case to the lower court for trial and fresh decision in accordance with
law.
 Supreme Court held “that the judgment of the High Court is gravely flawed and cannot be sustained for more than one
reason. In the first place, the High Court, while deciding the second appeal, failed to adhere to the necessary requirement
of Section 100 CPC and interfered with the concurrent judgment and decree of the courts below without formulating any
substantial question of law. The formulation of substantial question of law is a must before the second appeal is heard
and finally disposed of by the High Court. This Court has reiterated and restated the legal position time out of number
that formulation of substantial question of law is a condition precedent for entertaining and deciding a second appeal.”
 “The High Court observed that the stakes in the suit being very high, the plaintiff should not be non-suited on the basis of
no evidence. But, who is to be blamed for this lapse? It is the plaintiff alone. As a matter of fact, the trial court had given
more than sufficient opportunity to the plaintiff to produce evidence in support of its case. As noticed above, after the
issues were framed on July 19, 2006, on three occasions, the trial court fixed the matter for the plaintiff's evidence but on
none of these dates any evidence was let in by it. What should the court do in such circumstances? Is the court obliged to
give adjournment after adjournment merely because the stakes are high in the dispute? Should the court be a silent
spectator and leave control of the case to a party to the case who has decided not to take the case forward? It is sad, but
true, that the litigants seek and the courts grant adjournments at the drop of the hat.”
 The court goes on to give a list of illustrations (not exhaustive) as to when an adjournment can be given and under what
circumstances like for example, illness of the litigant or the witness or the lawyer; death in the family of any one of them;
natural calamity like floods, earthquake, etc.
 The appeal is allowed and judgment and order of the High Court passed on is set aside.

Ramrameshwari Devi v. Nirmala Devi

 Government allots X a piece of land to the extent of 200 Sq.yards in Lajpat Nagar, new Delhi.
 X, out of humane considerations allowed his three brothers to reside with him in his house.
 These three brothers filed a petition saying that the said Lajpat Nagar property belongs to a joint hindu family and sought
partition on that basis.
 This dispute goes through several rounds of litigation on different grounds, which is something that you need not know.
The only thing you need to know is that it lasted for 40 years.
 The Supreme Court looks into this matter and came up with some recommendations,
 Dr Arun Mohan was appointed as the Amicus Curiae in this case. This case is once again referred to in the 240th Law
Commission Report.
 He talks about how the courts need to start imposing realistic costs on the parties in order to ensure that the parties are
not unduly burdened as a result of vexatious litigation.
 “Usually the court should be cautious and extremely careful while granting ex-parte ad interim injunctions. The better
course for the court is to give a short notice and in some cases even dasti notice, hear both the parties and then pass
suitable biparte orders. Experience reveals that ex-parte interim injunction orders in some cases can create havoc and
getting them vacated or modified in our existing judicial system is a nightmare. Therefore, as a rule, the court should
grant interim injunction or stay order only after hearing the defendants or the respondents and in case the court has to

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grant ex-parte injunction in exceptional cases then while granting injunction it must record in the order that if the suit is
eventually dismissed, the plaintiff or the petitioner will have to pay full restitution, actual or realistic costs and mesne
profits.”
 The following are the final suggestions in the opinion of the court, that could improve the situation.
o “A. Pleadings are foundation of the claims of parties. Civil litigation is largely based on
documents. It is the bounden duty and obligation of the trial judge to carefully scrutinize, check and verify the
pleadings and the documents filed by the parties. This must be done immediately after civil suits are filed.
o B. The Court should resort to discovery and production of documents and interrogatories at the earliest according to the
object of the Code. If this exercise is carefully carried out, it would focus the controversies involved in the case and help
the court in arriving at truth of the matter and doing substantial justice.
o C. Imposition of actual, realistic or proper costs and or ordering prosecution would go a long way in controlling the
tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs
would also control unnecessary adjournments by the parties. In appropriate cases the courts may consider ordering
prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings.
o D. The Court must adopt realistic and pragmatic approach in granting mesne profits. The Court must carefully keep in
view the ground realities while granting mesne profits.
o E. The courts should be extremely careful and cautious in granting ex-parte ad interim injunctions or stay orders.
Ordinarily short notice should be issued to the defendants or respondents and only after hearing concerned parties
appropriate orders should be passed.
o F. Litigants who obtained ex-parte ad interim injunction on the strength of false pleadings and forged documents should
be adequately punished. No one should be allowed to abuse the process of the court.
o G. The principle of restitution be fully applied in a pragmatic manner in order to do real and substantial justice.
o H. Every case emanates from a human or a commercial problem and the Court must make serious endeavour to resolve
the problem within the framework of law and in accordance with the well settled principles of law and justice.
o I. If in a given case, ex parte injunction is granted, then the said application for grant of injunction should be disposed of
on merits, after hearing both sides as expeditiously as may be possible on a priority basis and undue adjournments should
be avoided.
o J. At the time of filing of the plaint, the trial court should prepare complete schedule and fix dates for all the stages of the
suit, right from filing of the written statement till pronouncement of judgment and the courts should strictly adhere to the
said dates and the said time table as far as possible. If any interlocutory application is filed then the same be disposed of
in between the said dates of hearings fixed in the said suit itself so that the date fixed for the main suit may not be
disturbed.”

240th Law Commission Report on Costs of Civil Litigation.

 Costs in civil suits/proceedings should be such as to curb false and frivolous litigation and to discourage adjournments on
feeble grounds or for ulterior purpose. Further, the costs to be awarded to a successful party should be realistic and
reasonable and to this effect the rules in vogue should be revisited by the High Courts.
 The principle that costs should follow the event which finds statutory recognition in Section 35 of CPC ought to be given
effect to by the Courts with all seriousness and the deviations should be rare. The recent decision of Supreme Court in
Sanjeev Kumar Jain (2011, JT (12), 435) has laid stress on this aspect. However, the award of costs should not cause
undue hardship to the parties who by virtue of their socio-economic circumstances may not have paying capacity.
 (3)

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o a) The rules framed by the High Courts in relation to costs especially the advocate’s fee should be thoroughly revised so
as to accord with the principle of realistic and adequate costs [The aspects on which the Committee of the High Courts
should focus their attention while revising the rules in this regard are discussed at various places, especially paras 4.2,
4.3, 5 and 6.
o b) The rules must be updated and language to be made simpler so as to impart clarity. Unnecessary and outdated rules
ought to be weeded out.
o The format of bill of costs needs to be revised. The procedure for filing fees certificate also needs a change.
 Adjournment costs should be sufficiently high and with a view to ensure this, the High Courts may, by virtue of practice
directives or circulars, lay down guiding principles. Uniformity in approach on the part of the trial judges in granting
costs for adjournments ought to be developed.
 The following legislative amendments in CPC are suggested:
o Section 35A (Compensatory costs for false or vexatious claim/defence) should be recast as set out in paragraph 8.19 to
have a better check against false and frivolous litigation. The thrust of the proposed amendment is to raise the ceiling
from Rupees three thousand to Rupees One lakh and creation of Judicial Infrastructure Fund into which part of the costs
shall be ordered to be deposited;
o Amendment of Section 95 (compensation for obtaining arrest, attachment etc. on insufficient grounds) in order to raise
the ceiling limit of Rupees fifty thousand to Rupees One lakh vide paragraph 9.2.
o Order XXV of CPC (Security for costs) should be so amended as to include the defendant within its purview;
o In order to facilitate easy recovery of costs, Order LXI has to be amended so as to make it obligatory to file proof of
payment of costs before the appeal is entertained subject to the discretion vested in the appellate Court to dispense with
payment to the extent of half the costs for special reasons.
o In Oder XX, Rule 6A(preparation of decree), the words ‘30 days’ may be substituted for the words “15 days” so that
sufficient time is given to the parties to claim all the admissible items of costs and the Costs Taxation Officer will be able
to ascertain costs more satisfactorily.

Week 10- Right to Strike by Lawyers

Duty towards client and duty towards law--Important of justice as public good overrides lawyers’ freedom of
expression.--- SC has said lawyers cannot go on strike. Attorney General said only in extreme cases lawyers can go on
strike (this is not a rule or court holding). Extreme cases would mean conflict between judiciary and executive or when
transparency of judiciary is at stake. We dicussed better methods of expressing dissent like wearing a black band to
court. Lawyers still go on strike- remedies- contempt (obstructing justice), CPA, negligence etc. Whether the
transparency and compartmentalization of institutions is clearly given in the advocates Act? If court rules against bar, bar
won’t receive it well. If bar member complains against other bar members, he’ll be ostracized, bar members have to
stand for their own elections so they won’t take unfavorable stands even if they are correct. Under the advocates act what
are the regulatory lax that inhibit regulators to take action against lawyers? Aspects of separation of powers are clearly
not spelt out. Clear conflict of interest. Bar members ruling on other members has issues of prejudice and bias. They rely
on each other for elections and even for the integrity of their profession in general. Maybe one solution could be to
constitute independent tribunals. The people selected as judges for tribunals should be apolitical to the issues concerned
and vested interest should be minimized as much as possible. If I rely on you for elections I am not likely to take a
decision against you. Such conflict of interest and bias is a reason why judges are given security of tenure instead of
being made judge for 5 years like politicians. “Professional misconduct” doesn’t have much meaning now. One is
because of constitution of bar council and conflict of interest. Need for intensive regulation.

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Common Cause v. Union of India AIR (2005) SC 4442

 Two contempt petitions:

 Whether the action of the Bar Associations, i.e., the Delhi High Court Bar Association and the Supreme Court Bar
Association, in visiting the Advocates, who refused to participate in the strike call, with punitive action of suspension
and the action of the Bar Council of Delhi passing a resolution which inter alia proposes to take against lawyers who did
not participate in the strike call, amounts to contempt of the Judgment of this Court in the case of Common Cause 'A
Registered Society v. Union of India?
 The legal position laid down by the Constitutional Bench in Ex. Capt. Harish Uppal v. Union of India was reiterated
stating- lawyer having accepted a brief cannot refuse to attend Court because of boycott. The State Bar Council and on
its failure, the BCI must immediately take disciplinary action against Advocates giving call for strike. The Bar Councils
are expected to rise to the occasion as they are responsible to uphold the dignity of Courts and majesty of law and to
prevent interference in administration of justice. Even if the BCI doesn’t rise to the occasion and perform their duties by
taking disciplinary action on a complaint from a Client against an Advocate for non-appearance by reason of a call for
strike or boycott, on an Appeal, the Supreme Court can and will.
 Advocates holding vakalatnamas and still refraining from attending Court pursuant to strike call will be held personally
liable to pay costs in addition to damages suffered by the Client.
 Directions (not an order, interim) passed in Common Cause Society, but not yet implemented, but should be:
* In the rare instance where any association of lawyers including statutory Bar Councils considers it imperative to call
upon and/or advise members of the legal profession to abstain from appearing in courts on any occasion, it must be left
open to any individual member/members of that association to be free to appear without let, fear or hindrance or any
other coercive steps.
* No such member who appears in court or otherwise practices his legal profession, shall be visited with any adverse or
penal consequences whatever, by any association of lawyers, and shall not suffer any expulsion or threat of expulsion
therefrom.
* The above will not preclude other forms of protest by practicing lawyers in court such as, for instance, wearing of
armbands and other forms of protest which in no way interrupt or disrupt the court proceedings or adversely affect the
interest of the litigant. Any such form of protest shall not however be derogatory to the court or to the profession.
* Office-bearers of a Bar Association (including Bar Council) responsible for taking decisions mentioned in Clause (1)
above shall ensure that such decisions are implemented in the spirit of what is stated in Clauses (1), (2) and (3) above."
 Laws involved:
* Section 30 of the Advocates Act (Right to Practice) doesn’t get invoked.
* Section 34 of the Advocates Act empowers High Courts to frame rules, inter alia to lay down conditions on which an
Advocate shall be permitted to practice in Courts
* Section 38 of the Advocates Act provides that even in disciplinary matters the final Appellate Authority is the Supreme
Court. Thus even if the Bar Councils do not rise to the occasion and perform their duties by taking disciplinary action on
a complaint from a client against an advocate for non-appearance by reason of a call for strike or boycott, on an Appeal
the Supreme Court cart and will.
* Section 49 of the Advocates Act merely empowers the Bar Council to frame rules laying down conditions subject to
which an Advocate shall have the right to practice.
* Article 145 of the Constitution empowers the Supreme Court to make rules for regulating this practice and procedure of
the Court including inter alia rules as to persons practicing before the Supreme Court. Thus Article 145 of the
Constitution of India gives to the Supreme Court and Section 34 of the Advocates Act gives to the High Court power to

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frame rules including rules regarding condition on which a person (Including an Advocate) can practice in the Supreme
Court and/or in the High Court and Courts subordinate thereto.
* Under Article 144 of the Constitution all authorities, civil and judicial, in the territory of India shall act in aid of the
Supreme Court". The Bar Council which performs a public duty and is charged with the obligation to protect the dignity
of the profession and maintain professional standards and etiquette is also obliged to act "in aid of the Supreme Court". It
must, whenever facts warrant, rise to the occasion and discharge its duties uninfluenced by the position of the contemner
advocate. It must act in accordance with the prescribed procedure, whenever its attention is drawn by this Court to the
contumacious and unbecoming conduct of an advocate which has the tendency to interfere with due administration of
justice.
 Held?
* It is unprofessional for a lawyer to strike or boycott the court
* Bar associations should not permit meetings calling for such strikes or boycotts & such requisitions should be ignored.
* It is the duty of the State and National Bar Councils to take action against striking bar associations and sponsors of
boycotts
* The Courts must hear matters posted before them undeterred by boycotts
* It is only in the rarest of rare cases that abstention from court is justified, such as dignity, integrity and independence of
the Bar and Bench, and that must be decided by the judge heading the Court, and even this must be only for one day.
* Lawyers have no right to go on strike or give a call for boycott, not even on a token strike. The protest, if any is required,
can only be by giving press statements, TV interviews carrying out of Court premises banners and/or placards, wearing
black or white or any colour arm bands, peaceful protect marches outside and away from Court premises, going on
dharnas or relay facts etc.

When Lawyers Stay Away from Courts- Sriram Panchu (The Hindu), June 2013

 Once more, on June 10, 2013, lawyers in Tamil Nadu went on a boycott of the courts. This time the lawyers allege that
the Director General of Police was willing to meet only a few, and not all the members of the delegation of lawyers who
wished to protest about the arrest of some members of the profession following a complaint lodged by a hotel, and that
the DGP used “unparliamentary” language. The advocates’ associations have brought the courts in the State to a grinding
halt.
 Litigants don’t benefit from this since it is already difficult enough getting their case to be heard with the frequent
adjournments. Bail applications are the foremost examples- if the court does not work, the citizen is deprived of his
chance to resume his freedom.
 Those who call for the boycott benefit for it shows their power, making a phenomenon for competitive boycotting.
Courts are after all the institutions where complaints and grievances are taken for resolution, and lawyers are the experts
to provide dispute resolution services. It says little for the confidence of the lawyers in their system, and themselves,
when they hold courts to ransom till their demands are met.
 On their side, policemen complain that lawyers throw their weight around and when charged with breaking the law,
escalate the incident to a lawyer-police conflict. It must be conceded that both sides have cause for grievance. However,
this is a problem of frequent occurrence, and the reason why lawyers rush to boycott is that they think that the ordinary
legal processes will not bring the police to book. They are wrong here; one well directed suit against specific police
officers for damages will have far more threat and deterrent value than ten strikes.
 However, to prevent such flashpoints from escalating to violence and prolonged conflict, we would do well to set up a
standing committee to handle these issues of lawyer-police conflict, which can consist of retired judges, bar office-
bearers and senior police and government officers.

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Lawyers don’t have the Right to go on Strike- Amit Anand Choudhry (Nov 2015) (TOI)

 Bench of Justices Kurian Jospeh and Arun Mishra asked the advocates associations and BCI to “help it out” in dealing
with the issue, expressing doubt on the effectiveness of any order, if passed, to bar lawyers from going on strike.
 Self-discipline is required on the part of lawyers. We have serious doubts on how effective our order would be.
 Court asked BCI to frame rules for restraining lawyers from going on strike and asked the advocates' bodies and
associations to sit together to evolve a mechanism to solve the problem once and for all.
 With tussle between Bar Associations of the Delhi High Court and lower courts over pecuniary jurisdiction resulting in
strikes by lawyers, the apex court had sought response from both bodies on why contempt proceedings should not be
initiated against them for boycotting court proceedings in violation of its order.
 The court issued notice to Bar Associations on a contempt plea filed by an NGO, Common Cause, which alleged that
lawyers going on strike violated the apex court's order.
 "These bar associations have been repeatedly seeking abstinence from all the lawyers from last two years over the issue.
Advocates have obligations and duties to ensure smooth functioning of courts.
 The associations have been fighting over a proposed law under which civil suits up to Rs 2 crore will be heard by the
district courts instead of the Delhi High Court. Currently all suits above Rs 20 lakh are heard by the high court.

Week 11- Advertising

Hazard, Pearce and Stempel- Why Lawyers Should be allowed to Advertise: A Market Analysis of Legal Services
 Summary: For purposes of analyzing the advertising problem, legal services are of two types, and the effect of
advertising on the legal services market will vary with the type of service
 "Individualized" services involve legal matters that pose a significant risk of loss for clients and require close personal
attention from an attorney. For lawyers who provide this type of service, the authors argue, advertising is of little use
since their clients are likely to rely on personal knowledge and reputation in selecting an attorney.
 "Standardizable" services, however, involve low risk matters and can be provided by means of routinized production
systems. The authors believe that these services can be mass produced at low cost without loss of quality. They argue
that advertising is necessary to generate the mass demand and economics of scale required to make mass production
profitable.
 The authors conclude that lawyer advertising will likely result in more affordable legal services of the standardizable
type and in import ed product information about these services, thus benefiting low and middle income consumers as
well as the attorneys who specialize in providing standardizable services.
 Article: Bates v. State Bar of Arizona (1977): Held that advertising is within the lawyers’ right to free speech under the
First Amendment. However, the scope of permissible regulation was still left unsettled. The majority expressly declined
to consider the problems of advertising claims relating to the quality of legal services.
 Two years after Bates, many States had not yet framed advertising rules. Many of the new rules permit only print
advertising of the name, address and specialisation of the attorney. This was incompatible with the broader scope of the
Bates case. In response to the case, ABA revised the Model Code of Professional Responsibility to permit limited
advertising of the type specifically at issue in the case: simple publication by print or radio. It concurrently rejected a
proposal that would have allowed all advertising that was not "false, fraudulent, and misleading." ABA Commission
recommended a less restrictive rule which was adopted in 1983. The extent to which State Bar Associations will follow
ABA’s lead on the advertising issue is unclear.
 Legal Services as a Market Commodity : Participants in the debate on advertising by lawyers have failed to acknowledge
legal services as a market commodity. Opponents of lawyer advertising think that ads can lead to incompetent lawyers

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getting clients and that reputation is a more reliable index. They also believe that ads will make the legal profession more
expensive. This will create barriers for entry. They also content that it will undermine respect for the legal profession.
 Supporters of lawyer advertising say that prices will reduce as competition will induce lawyers to offer services at lower
rates [what about corresponding reduction in quality+allegiances forged on account of lawyers needing resources?]. They
say that ads will provide additional info beyond what is available through reputation [are ads really that truthful and
unfiltered?] so there will be more informed choices.
 Both opponents and supporters don’t realise that legal services are a market commodity and so they don’t consider how
the market works [is it really a market commodity governed solely by demand and supply laws? Isn’t the demand for it
perennial?]. This leads to two misconceptions: 1. That advertising will have a similar effect on all legal services, and 2.
that production and consumption in the legal services market are static.
 Legal services can be divided into two types: 1. Individualised and 2. Standardised. Whether a legal service is
individualized or standardizable depends primarily on the degree of risk that the particular legal problem poses for the
client. [But individualised services can be offered in a standardised way and standardised services can be offered in an
individualised way- to the discerning client, the line is blurred]. “Risk” here means, 1. Gravity of consequence to liberty,
life or property and 2. The probability of one of these consequences occurring. Individualised legal services involve high
risk. Standardised services respond to routine situations. So complexity or cost isn’t to be considered but rather risk is
important while determining the value of legal services.
 Opponents say that since legal services are a necessity, ads will stimulate demand only by encouraging frivolous, ill-
spirited litigation. They fail to understand that clients will resort to legal services only after doing a cost benefit analysis.
Moreover, since cost of services will reduce, middle and low income clients will be able to access them.
 Demand is elastic for legal services. So if price decreased, demand will increase [Is this really true? Legal services are
not like any other market commodity. Someone will not decide to go to court just because services are cheap. Clients
aren’t that gullible. They’ll do a CBA+consider other things like impact on rep if they go to court, the time and effort
involved etc.]. Supply is also elastic and if demand increases, there will be more incentive to suppliers to produce. [The
authors look at legal services in a strictly economic sense, not giving due consideration to other aspects like social,
emotional and political repercussions that determine the willingness to go to court. Characterisation of ads for indi and
std firms is done to see how each can benefit and profit from ads- profit making is not the primary function of lawyers
especially not from std services which authors admit are used by middle and low income groups. This profit making
should not then be made a justification for ads.]
 The Role of Advertising in the Legal Services Market: An informed decision can only be made when one can compare
his personal experience of knowledge of reputation of one service with the other services available in the market. Since
first-hand experience is obviously insufficient, people rely on secondary source of information- reputation. Info based on
rep is important for two reasons: 1. Rep is trustworthy because they come from reliable people like friends and family
and 2. Acquisition of info requires relatively less investment of time and energy. The authors believe that rep is not
conclusive and a person looking for legal services will try to cross check with personal knowledge and other sources.
Only well connected people have access to reliable rep info, people outside that network will not have access (Eg. Non-
white, persons of middle and low income).
 Ads allow people to compare a range of services at little personal cost. Ads may have less of an impact than first hand or
second hand info because of brevity of message and because of impersonal source. Ads also carry costs of mass
marketing. Restrictions on ads limit lawyers’ exposure to entrepreneurial risks.
 The Effect of Market Forces on the Utility of Lawyer Advertising: Exchanges between producers and consumers
generally depend on three factors: 1. product design (encompasses both the particular nature of a product, as well as its
price to the buyer), 2. market segmentation (refers to a product's characteristic features and their effects on the
preferences of consumers willing to purchase the general type of product), and 3. Information dissemination (involves

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both the methods that producers use to provide consumers with information about their products and the methods that
consumers use to obtain information).
 Product Design: Legal practices generally fall within three categories: Primarily individualised practices (deliver most of
their services through individualized production and incur most of their costs and earn their profits on a case-by-case
basis. Can gain good incomes even if number of cases is small or moderate as the skills applied are specialised and
unique to the case at hand.) 2. Primarily standardised services (They assume a high volume of client matters60 and focus
their labor on systematizing their response to similar legal issues. The costs for building this system can be procured
through subsequent cases.) 3. Mixed (elements of both- likely to have small profit margin because they are less efficient
than firms focusing solely on indi or std services).
 Market Segmentation: Refers to the phenomenon that various categories of purchasers will buy different types of product
images. Clients choose services based on financial resources and risk involved. High income groups or matters involving
high risk will prefer individualised services. The majority however has moderate or low income and matters with less
risk so they prefer standardised or mixed services.
 Information Dissemination: Info techniques: 1. Direct experience, 2. Reputation and 3. Advertising. Advertising is not
advisable or cost effective for lawyers offering individualised services because the stakes are high and people will not
rely on brief ads. Plus, many users of indi services are regular clients. “Firms offering primarily standardizable services,
however, must appeal to a broader-based, less well-connected, and less well-informed clientele to generate the volume of
business necessary to profit from their moderate prices.. personal knowledge and reputation cannot reach such a wide
audience efficiently.” Lawyers providing mixed services can make use of all three forms of info dissemination. For
mixed firms, advertising is not profitable unless it is made very skilfully, because they cannot compete with the unique
focus of indi firms of the ability to accommodate mass demands of std firms.
 The Consequences of Advertising for the Legal Services Market: Not very useful for indi firms as established. But ads
can result in cheaper services on account of competition arising from info dissemination that allows consumers to
compare. Current restrictions on ads interfere with the optimal function of the market- producers do not have the
incentive to produce high volume and affordable std services. “Advertising will also tend to improve the quality of
standardizable legal services by improving information dissemination in the market in two ways. First, advertising will
create greater familiarity with names of firms, making it easier for consumers to retain information they hear about a
particular firm. Second, advertising will improve access to reputation information by stimulating latent demand.
Individuals who could not, or who believed they could not, afford legal services will find that legal services are
affordable.”
 Explaining the Opposition to Lawyer Advertising: “Mixed practices profit by charging inflated fees for standardizable
services or, alternatively, by using standardizable services as loss leaders to attract individualized service businessY5
Advertising would permit growth of primarily standardizable firms, and these firms would then begin to compete for
clients who would otherwise patronize mixed service firms. As a result, mixed service practitioners would like to prevent
advertising. Because mixed service practitioners probably constitute a majority of current legal service producers, and
because they have correspondingly great power in the organized bar and in the political system at large,9 these
practitioners have presented an influential opposition to lawyer advertising.”
 “If the advertising problem were only one of economic competition within the bar, however, it might not have generated
such heated controversy. One must look deeper, even if only to speculate. Perhaps the underlying anxiety about
advertising stems from its tendency to portray legal services as a "business" rather than a "'profession."” The idea is that
justice cannot be sold. The authors say that this obsession with protecting legal practice from the label of business is not
well founded. Justice at the margin, can be sold (std services and all).
 “Analysis of the legal services market, however, suggests that advertising will not increase the degree to which justice is
actually bought and sold. The services best suited to advertising are standardizable and involve simple, low risk, often

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uncontested situations. The explicit sale of these services will not affect the sale of other, more sophisticated services on
which the result of a high risk legal contest most likely depends. Thus, increased use of lawyer advertising can help lead
to significant improvements in the function of the market for legal services without threatening the ideal that justice
cannot be sold."

Right to Advertise, Raju Ramachandran

 On the one hand, ads are imp to provide info and improve access to justice but on the other hand, it involves practices
that lead to mistrust and discredit the legal profession.
 BCI Rules, framed under s. 49(1)(c) of the Advocates Act, prohibit all forms of ads or solicitation of work. Rule 36 of
BCI rules states that a lawyer cannot advertise or solicit work, directly or indirectly. His signboard must be of a decent
size and must not indicate any post he may have held or any organisation he may have been associated with for a cause.
 In Bar Council of Maharashtra v. M.V. Dabholkar, the SC held that law is not a trade or merchandise and it should not be
vulgarised by commercial competition and procurement.
 With US, Australia, Canada etc. allowing lawyer ads, there have been demands in India to appropriately modify rule 36.
Globalisation and trade liberalisation in services under GATS has given impetus to these demands.
 Lawyers’ Ads in US: Bates case recognised that lawyers have a right to advertise under the First Amendment of
commercial free speech. In 2002, ABA adopted Model Rules of Professional Conduct which give directions to states to
govern lawyers’ ads. ABA model rules place permissible limits on communication of legal services. Rules apply to
publicity and various forms of marketing, beyond ads and solicitation. Most states have adopted the rules or adapted
from them.
 Prohibition against False and Misleading Representations: ABA Model Rules contain four provisions to this effect: An
ad is misleading and false if- 1. It contains ‘a material misrep of fact or law’ (fundamental standard of consumer
protection) 2. It ‘omits a fact necessary to make the statement considered as a whole not materially misleading’. The
next two standards are strict. 3. Lawyers may not make a communication ‘likely to create an unjustified expectation
about the results the lawyer can achieve’ (each case is unique and prior cases should not be used as a standard to
determine the outcome of future cases- so statistics of cases are not allowed and testimonials by clients alluding to the
outcome of case are also not allowed). 4. A communication is false or misleading if it ‘compares the lawyer’s services
with other lawyer’s services, unless the comparison can be factually substantiated.’
 Advertising Limitations: Under ABA Model Rules, lawyers are prevented from offering anything of value to get a
recommendation of their legal service. With certain exceptions it is permissible for a lawyer to pay the reasonable costs
of advertising and to pay the usual charges of a legal organisation and non-profit lawyer referral service.
 All communication should indicate the name of at least one lawyer responsible for the content of the ad.
 Some forms of solicitation are prohibited. In-person or live telephone contract solicitation of a prospective client is
prohibited if the lawyer has no prior family or professional relationship and the aim is merely pecuniary gains. This is to
prevent ‘ambulance chasing’ that portrays lawyers as opportunists profiting from others’ misfortune. Under certain
circumstances, direct mails are permissible as these can be ignored. Under some cases, even this is not permissible, eg. If
the potential client makes it known that he does not want to be solicited.
 Advertising in UK: Historically, frowned upon. Changes since EU directives and all. Some form of ads allowed. More
strictly regulated. The rules governing right to advertise of barristers and solicitors are different.
 Rule 1 of Solicitor’s Practice Rules states that a solic can advertise provided it does not compromise his independence
and integrity, a client’s freedom to instruct a solicitor of his/her choice, the solicitor’s duty to act in or her choice, the
solic’s duty to act in the best interest of the client, the good repute of the solic or his profession and the solic’s quality of
work and duty to the court.

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 The Solicitor’s Publicity Code imposes certain restrictions. Ads cannot be misleading. All ads must mention the solic’s
name. They can refer to area of specialisation but not success rate. Can mention past clients after their consent is
obtained and if this does not prejudicially affect the client. Direct comparison with services of another solic or firm
cannot be made. Costs of services can be mentioned, provided a clear explanation of services within the fee and the
likely additional charges are given. Unsolicited visits or telephone calls to potential clients cannot be made unless they
are current or former clients.
 Ads by barristers in Englad and Wales: addressed by the Code of Conduct of the Bar of England and Wales. Can
advertise so long as it is not inaccurate or likely to mislead, to diminish public confidence in the legal profession and is
not based on direct comparisons with or criticism of other barristers. Permitted ads: rates, nature of service, info on past
cases (where cases are already in the public domain or if client consents).
 Do we need a fresh look at our code?: Primary arguments against ads is the effect on professionalism. Commercialisation
erodes a lawyer’s sense of dignity and public trust in the profession. It is argued that ads would affect service orientation
of the profession, proliferate misleading ads, increase costs and legal fees, result in unhealthy competition and also
encourage litigation.
 Chairman of Law Commission of India and former SC Judge, Jagannadha Rao, recently said that “it will be a sad day if
ads are permitted in our print media. Nor can brochures be allowed. Please note that as of now, the Rules do not permit
even putting up a big board.”
 Arguments in favour of ads: fundamental purpose of providing info to public, would help lawyers in reaching out to
public and serving the community, gives info about fees and all to people who don’t have contacts and thus link them to
a competent lawyer.
 It is suggests that increased access to courts would enable vindication of rights for the oppressed classes on whom wrogs
are committed. Prohibition on ads cannot be sustained as it restricts availability of legal services. Regulatory control can
check ads that may be misleading. Ads would improve the quality of services. R 36 of BCI rules violates Art 19(1)(a) of
the Consti- Right to commercial free speech+right to information. Art 21- If right to free legal aid is a part of this, so
must be the right to paid legal services. Art 32- Right to move SC for enforcement of a FR, is itself a FR. These rights
would be meaningful only if people can make an informed choice in the matter of legal services.
 In 1999, a BCI circular directed lawyers and firms to withdraw ads from the internet. There were consequences in case
of non-compliance. Some websites are still functional though.
 Recently, other professionals like CAs were recently given the right to advertise. Lawyers are resorting to surrogate
advertising. Instead of having a rule that is prone to violation, it is preferable to modify the rule.
 Society of Indian Law Firms (SILF) has made a representation to the BCI to permit ‘informative’ advertising as opposed
to competitive or comparative ads. It is also lobbying for suitable amendments to the BCI rules to permit lawyers and
firms to have their own websites and to permit the publication of names of advocates and firms in country specific or
region specific or global legal directories published by private agencies for circulation amongst lawyers, law firms and
business organisations. It is argued that this would benefit Indian lawyers as foreign business houses are permitted to do
business in India. As of now foreign lawyers have an advantage as they can advertise.
 What is suggests is ‘informative’ asd only. Only relevant info should be provided. An economically resourceful lawyer
should not have an unfair advantage.

Bar Council of Maharashtra v. MC Dabholkar (BCI r 36, Advocates Act s. 35)

 Facts: advocates positioning themselves at the entrance to the Magistrate’s courts and rushing towards potential litigants,
often leading to an ugly scrimmage to snatch briefs and undercutting of fees.

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 SC: Rule 36, fairly construed, sets out wholesome rules of professional conduct although the canons of ethics existed
even prior to R 36. R 36 is not the only nidus of professional ethics. They were born with the organised Bar, even as
moral norms arose with civilised society.
 The advocates’ behaviour is dishonourable, disgraceful and unbecoming to be approved. The canons of ethics and
propriety for the legal profession totally taboo conduct by way of soliciting, advertising, scrambling and other obnoxious
practices, subtle or clumsy, for the betterment of legal business.
 Law is no trade, briefs, no merchandise and so the leaven of commercial competition or procurement should not
vulgarise the legal profession.
 BCI disciplinary committee absolved them of responsibility as they thought the requirement of ‘reason to believe’ that
the advocates were guilty of professional misconduct was not fulfilled.
 SC reprimanded this stand. It said that ‘reason to believe’ is meant to prevent frivolous cases and cannot be made into a
procedural roadblock. It is implicit in the resolution of the Bar Council, when it says that it has considered the complaint
and decided to refer the matter to the DC, that it has reason to believe, as prescribed by the statute.

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