ETHICS NOTES

Week 1-2- Philosophy, Morality etc.

PLATO’S APOLOGY OF SOCRATES

Context

 This text is Socrates’ defense 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 defense is that he was not
apologizing 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.

 For the most part, Socrates speaks in a very plain, conversational manner. He explains
that he has no experience with the law courts and that he will instead speak in the manner
to which he is accustomed: with honesty and directness. He explains that his behaviour
stems from a prophecy by the oracle at Delphi which claimed that he was the wisest of all

1
 men. Recognizing his ignorance in most worldly affairs, Socrates concluded that he must
be wiser than other men only in that he knows that he knows nothing. In order to spread
this peculiar wisdom, Socrates explains that he considered it his duty to question
supposed "wise" men and to expose their false wisdom as ignorance. These activities
earned him much admiration amongst the youth of Athens, but much hatred and anger
from the people he embarrassed. He cites their contempt as the reason for his being put on
trial.
 Socrates then proceeds to interrogate Meletus, the man primarily responsible for bringing
Socrates before the jury. This is the only instance in The Apology of the elenchus,or
cross-examination, which is so central to most Platonic dialogues. His conversation with
Meletus, however, is a poor example of this method, as it seems more directed toward
embarrassing Meletus than toward arriving at the truth.

 In a famous passage, Socrates likens himself to a gadfly stinging the lazy horse which is
the Athenian state. Without him, Socrates claims, the state is liable to drift into a deep
sleep, but through his influence--irritating as it may be to some--it can be wakened into
productive and virtuous action.

 Socrates is found guilty by a narrow margin and is asked to propose a penalty. Socrates
jokingly suggests that if he were to get what he deserves, he should be honored with a
great meal for being of such service to the state. On a more serious note, he rejects prison
and exile, offering perhaps instead to pay a fine. When the jury rejects his suggestion and
sentences him to death, Socrates stoically accepts the verdict with the observation that no
one but the gods know what happens after death and so it would be foolish to fear what
one does not know. He also warns the jurymen who voted against him that in silencing
their critic rather than listening to him, they have harmed themselves much more than
they have harmed him.

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

2
 is exercised in a just fashion. But justice is only a kind of 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 behavior.
 Socrates argues that virtue can be taught because for anything to be good, it must be accompanied
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 in people as a gift from the Gods. It is innate, and not
definable, teachable or comprehensible as a body of knowledge.
Part One: The Search for a Definition of Virtue
Meno's first definition: Virtue is relative to the sort of person in question. For example, the
virtue of a woman is to be good at managing a household and to be submissive to her
husband. The virtue of a soldier is to be skilled at fighting and brave in battle.
Socrates' response: Given the meaning of arete, Meno's answer is quite understandable. But
Socrates rejects it. He argues that when Meno points to several things as instances of virtue,
there must be something they all have in common, which is why they are all called virtues. A
good definition of a concept should identify this common core or essence.
Meno's second definition: Virtue is the ability to rule men. This may strike a modern reader
as rather odd, but the thinking behind it is probably something like this: Virtue is what makes
possible the fulfilment of one's purpose. For men, the ultimate purpose is happiness;
happiness consists of lots of pleasure; pleasure is the satisfaction of desire; and the key to
satisfying one's desires is to wield power—in other words, to rule over men. This sort of
reasoning would have been associated with the sophists.
Socrates' response: The ability to rule men is only good if the rule is just. But justice is only
one of the virtues. So Meno has defined the general concept of virtue by identifying it with
one specific kind of virtue. Socrates then clarifies what he wants with an analogy. The
concept of 'shape' can't be defined by describing squares, circles or triangles. 'Shape' is what
all these figures share. A general definition would be something like this: shape is that which
is bounded by color.
Meno's third definition: Virtue is the desire to have and the ability to acquire fine and
beautiful things.
Socrates' response: Everyone desires what they think is good (an idea one encounters in
many of Plato's dialogues). So if people differ in virtue, as they do, this must be because they
differ in their ability to acquire the fine things they consider good. But acquiring these
things–satisfying one's desires–can be done in a good way or a bad way. Meno concedes that
this ability is only a virtue if is exercised in a good way–in other words, virtuously. So once
again, Meno has built into his definition the very notion he's trying to define.

3
Part Two: Is Some of Our Knowledge Innate?
Meno's description of how he feels gives us some idea of the effect Socrates must have had
on many people. The Greek term for the situation he finds himself in is aporia, which is often
translated as "impasse" but also denotes perplexity. He then presents Socrates with a famous
paradox.
Meno's paradox: Either we know something or we don't. If we know it, we don't need to
inquire any further. But if we don't know it we can't inquire since we don't know what we're
looking for and won't recognize it if we found it.
He appeals to the testimony of priests and priestesses who say that the soul is immortal,
entering and leaving one body after another, that in the process it acquires a comprehensive
knowledge of all there is to know, and that what we call "learning" is actually just a process
of recollecting what we already know. This is a doctrine that Plato may have learned from
the Pythagoreans.
The slave boy demonstration: Meno asks Socrates if he can prove that "all learning is
recollection." Socrates responds by calling over a slave boy, who he establishes has had no
mathematical training, and setting him a geometry problem. Drawing a square in the dirt,
Socrates asks the boy how to double the area of the square. The boy's first guess is that one
should double the length of the square's sides. Socrates shows that this is incorrect. The slave
boy tries again, this time suggesting that one increase the length of the sides by 50
percent. He is shown that this is also wrong. The boy then declares himself to be at a
loss. Socrates points out that the boy's situation now is similar to that of Meno. They both
believed they knew something; they now realize their belief was mistaken; but this new
awareness of their own ignorance, this feeling of perplexity, is, in fact, an improvement.

Socrates then proceeds to guide the boy to the right answer: you double the area of a square
by using its diagonal as the basis for the larger square. He claims at the end to have
demonstrated that the boy in some sense already had this knowledge within himself: all that
was needed was someone to stir it up

Part Three: Can Virtue Be Taught?

Meno asks Socrates to return to their original question: Can virtue be taught? Socrates
reluctantly agrees and constructs the following argument:

 Virtue is something beneficial; it's a good thing to have

 All good things are only good if they are accompanied by knowledge or wisdom (for
example, courage is good in a wise person, but in a fool it is mere recklessness)
 Therefore, virtue is a kind of knowledge.
 Therefore, virtue can be taught.

The argument is not especially convincing. The fact that all good things, in order to be
beneficial, must be accompanied by wisdom doesn't really show that this wisdom is the same
thing as virtue. The idea that virtue is a kind of knowledge, however, does seem to have been
a central tenet of Plato's moral philosophy. Ultimately, the knowledge in question is the

4
knowledge of what truly is in one's best long-term interests. Anyone who knows this will be
virtuous since they know that living a good life is the surest path to happiness. And anyone
who fails to be virtuous reveals that they don't understand this. Hence the flip side of "virtue
is knowledge" is "all wrongdoing is ignorance," a claim that Plato spells out and seeks to
justify in dialogues such as the Gorgias.
Part Four: Why Are There No Teachers of Virtue?

Meno is content to conclude that virtue can be taught, but Socrates, to Meno's surprise, turns
on his own argument and starts criticizing it. His objection is simple. If virtue could be taught
there would be teachers of virtue. But there aren't any. Therefore it can't be teachable after all.

Most of the time in practical life, we get by perfectly well if we simply have correct beliefs
about something. For example, if you want to grow tomatoes and you correctly believe that
planting them on the south side of the garden will produce a good crop, then if you do this
you'll get the outcome you're aiming at. But to really be able to teach someone how to grow
tomatoes, you need more than a bit of practical experience and a few rules of thumb; you
need a genuine knowledge of horticulture, which includes an understanding of soils, climate,
hydration, germination, and so on. The good men who fail to teach their sons virtue are like
practical gardeners without theoretical knowledge. They do well enough themselves most of
the time, but their opinions are not always reliable, and they aren't equipped to teach others.

How do these good men acquire virtue? Socrates suggests it is a gift from the gods, similar to
the gift of poetic inspiration enjoyed by those who are able to write poetry but are unable to
explain how they do it.

The Significance of the Meno

Virtue hasn't been defined. It has been identified with a kind of knowledge or wisdom, but
exactly what this knowledge consists in hasn't been specified. It seems it can be taught, at
least in principle, but there are no teachers of virtue since no one has an adequate theoretical
understanding of its essential nature. Socrates implicitly includes himself among those who
cannot teach virtue since he candidly admits at the outset that he doesn't know how to define
it.
Framed by all this uncertainty, however, is the episode with the slave boy where Socrates
asserts the doctrine of reincarnation and demonstrates the existence of innate
knowledge. Here he seems more confident about the truth of his claims. It is likely that these
ideas about reincarnation and inborn knowledge represent the views of Plato rather than
Socrates.

5
KANT’S MORAL PHILOSOPHY
Kant’s most influential positions in moral philosophy are found in The Groundwork of the
Metaphysics of Morals (hereafter, “Groundwork”) but he developed, enriched, and in some cases
modified those views in later works such as The Critique of Practical Reason, The Metaphysics of
Morals.

- Kant’s theory is an example of a deontological moral theory–according to these theories, the

rightness or wrongness of actions does not depend on their consequences but on whether they
fulfill our duty.
- Kant believed that there was a supreme principle of morality, and he referred to it
as The Categorical Imperative. The CI determines what our moral duties are.
- Morality must be based on the categorical imperative because morality is such that you are
commanded by it, and is such that you cannot opt out of it or claim that it does not apply to you.

How does the categorical imperative work? The categorical imperative has three different
formulations. That is to say, there are three different ways of saying what it is. Kant claims that
all three do in fact say the same thing, but it is currently disputed whether this is true. The second
formulation is the easiest to understand, but the first one is most clearly a categorical imperative.
Here is the first formulation.

First formulation (The Formula of Universal Law):

"Act only on that maxim through which you can at the same time will that it should become a
universal law [of nature]."

a) What is a maxim? A maxim is the rule or principle on which you act. For example, I
might make it my maxim to give at least as much to charity each year as I spend on eating
out, or I might make it my maxim only to do what will benefit some member of my family.

b) Basic idea: The command states, crudely, that you are not allowed to do anything yourself
that you would not be willing to allow everyone else to do as well. You are not allowed to
make exceptions for yourself. For example, if you expect other people to keep their
promises, then you are obligated to keep your own promises.

c) More detail: More accurately, it commands that every maxim you act on must be such that
you are willing to make it the case that everyone always act on that maxim when in a similar
situation. For example, if I wanted to lie to get something I wanted, I would have to be
willing to make it the case that everyone always lied to get what they wanted - but if this
were to happen no one would ever believe you, so the lie would not work and you would not
get what you wanted. So, if you willed that such a maxim (of lying) should become a
universal law, then you would thwart your goal - thus, it is impermissible to lie, according to
the categorical imperative. It is impermissible because the only way to lie is to make an
exception for yourself.

6
The Moral Worth of Persons: Kant also has something to say about what makes someone a
good person. Keep in mind that Kant intends this to go along with the rest of his theory, and
what one's duty is would be determined by the categorical imperative. However, one can
treat this as a separate theory to some extent, and consider that one's duty is determined by
some other standard. Keep in mind that what is said below has to do with how one evaluates
people, not actions. A person's actions are right or wrong, a person is morally worthy or
lacks moral worth (i.e., is morally base). A person's actions determine her moral worth, but
there is more to this than merely seeing if the actions are right or wrong.

The basic idea: Kant argues that a person is good or bad depending on the motivation of
their actions and not on the goodness of the consequences of those actions. By "motivation" I
mean what caused you to do the action (i.e., your reason for doing it). Kant argues that one
can have moral worth (i.e., be a good person) only if one is motivated by morality. In other
words, if a person's emotions or desires cause them to do something, then that action cannot
give them moral worth. This may sound odd, but there is good reason to agree with Kant.

Why motivation is what matters: Imagine that I win the lottery and I'm wondering what to
do with the money. I look around for what would be the most fun to do with it: buy a yacht,
travel in first class around the world, get that knee operation, etc.. I decide that what would
be really fun is to give the money to charity and to enjoy that special feeling you get from
making people happy, so I give all my lottery money away. According to Kant, I am not a
morally worthy person because I did this, after all I just did whatever I thought would be the
most fun and there is nothing admirable about such a selfish pursuit. It was just lucky for
those charities that I thought giving away money was fun. Moral worth only comes when
you do something because you know that it is your duty and you would do it regardless of
whether you liked it.

Why consequences don't matter: A reason why Kant is not concerned with consequences
can be seen in the following example. Imagine two people out together drinking at a bar late
one night, and each of them decides to drive home very drunk. They drive in different
directions through the middle of nowhere. One of them encounters no one on the road, and
so gets home without incident regardless of totally reckless driving. The other drunk is not so
lucky and encounters someone walking at night, and kills the pedestrian with the car. Kant
would argue that based on these actions both drunks are equally bad, and the fact that one
person got lucky does not make them any better than the other drunk. After all, they both
made the same choices, and nothing within either one's control had anything to do with the
difference in their actions. The same reasoning applies to people who act for the right
reasons. If both people act for the right reasons, then both are morally worthy, even if the
actions of one of them happen to lead to bad consequences by bad luck.

The wrong interpretation: Consider the case described above about the lottery winner
giving to charity. Imagine that he gives to a charity and he intends to save hundreds of
starving children in a remote village. The food arrives in the village but a group of rebels
finds out that they have food, and they come to steal the food and end up killing all the

7
children in the village and the adults too. The intended consequence of feeding starving
children was good, and the actual consequences were bad. Kant is not saying that we should
look at the intended consequences in order to make a moral evaluation. Kant is claiming that
regardless of intended or actual consequences, moral worth is properly assessed by looking at
the motivation of the action, which may be selfish even if the intended consequences are
good.

Kant does not forbid happiness: A careful reader may notice that in the example above one
of the selfish person's intended consequences is to make himself happy, and so it might seem
to be that intended consequences do matter. One might think Kant is claiming that if one of
my intentions is to make myself happy, that my action is not worthy. This is a mistake. The
consequence of making myself happy is a good consequence, even according to Kant. Kant
clearly thinks that people being happy is a good thing. There is nothing wrong with doing
something with an intended consequence of making yourself happy, that is not selfishness.
You can get moral worth doing things that you enjoy, but the reason you are doing them
cannot be that you enjoy them, the reason must be that they are required by duty. Also, there
is a tendency to think that Kant says it is always wrong to do something that just causes your
own happiness, like buying an ice cream cone. This is not the case. Kant thinks that you
ought to do things to make yourself happy as long as you make sure that they are not immoral
(i.e., contrary to duty), and that you would refrain from doing them if they were immoral.
Getting ice cream is not immoral, and so you can go ahead and do it. Doing it will not make
you a morally worthy person, but it won't make you a bad person either. Many actions which
are permissible but not required by duty are neutral in this way.

Summary: According to Kant a good person is someone who always does their duty
because it is their duty. It is fine if they enjoy doing it, but it must be the case that they would
do it even if they did not enjoy it. The overall theme is that to be a good person you must be
good for goodness sake.

Duty: According to Kant, what is singular about motivation by duty is that it consists of bare
respect for the moral law. What naturally comes to mind is this: Duties are rules or laws of
some sort combined with some sort of felt constraint or incentive on our choices, whether
from external coercion by others or from our own powers of reason.

A Problem for Kant’s Theory

Kant’s view is that lying is always wrong. His argument for this is summarized by James
Rachels as follows:
(1) We should do only those actions that conform to rules that we could will be adopted
universally.
(2) If we were to lie, we would be following the rule “It is permissible to lie.”
(3) This rule could not be adopted universally, because it would be self-defeating: people
would stop believing one another, and then it would do no good to lie.
(4) Therefore, we should not lie.

8
The problem with this argument is that we can lie without simply following the rule “It is
permissible to lie.” Instead, we might be following a rule that pertains only to specific
circumstances, like “It is permissible to lie when doing so will save a life.” This rule can be
made a universal law without contradiction. After all, it is not as though people would stop
believing each other simply because it is known that people lie when doing so will save
lives. For one thing, that situation rarely comes up—people could still be telling the truth
almost all of the time. Even the taking of human life could be justified under certain
circumstances. Take self-defense, for example. There appears to be nothing problematic
with the rule “It is permissible to kill when doing so is the only available means of defense
against an attacker”.
It is not necessary to interpret Kant’s theory as prohibiting lying in all circumstances (as Kant
did). Maxims (and the universal laws that result from them) can be specified in a way that
reflects all of the relevant features of the situation. Consider the case of the Inquiring
Murderer (as described in the text). Suppose that you are in that situation and you lie to the
murderer. Instead of understanding the universalized maxim as “Everyone Always lies” we
can understand it as “Everyone always lies in order to protect innocents from stalkers”.
This maxim seems to pass the test of the categorical imperative. Unfortunately, complicated
maxims make Kant’s theory becomes more difficult to understand and apply.

9
 ‘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 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.

10
 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.

11
 ‘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. Friend believed 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 use 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 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

12
 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.

13
 Week-3 Law School Education
DUNCAN KENNEDY, ‘LEGAL EDUCATION AS TRAINING FOR HIERARCHY’, IN
THE POLITICS OF LAW

Lorie M. Graham, ‘Aristotle’s Ethics & Virtuous Lawyer’

Ipshita Sengupta, ‘Nurturing Caring Lawyers: Rethinking Professional Ethics &

Responsibility in India’
Re: Regina Guha vs Unknown 1916 35 Ind Cas 925

14
 Week 4- 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.”
 Fried starts with this theory that lawyer is conventionally seen as devoted to his client’s interest and
is authorised by the profession itself to do some things for the client’s benefit which he would not
otherwise do for himself.
Ex- Tell a lie fully being aware of the truth in a criminal trial.
 Question then he puts is whether the lawyer whose conduct and choices are governed by
what his profession requires which these positive rules reflect, lead a professional life
worthy of moral approbation, worthy of respect-ours and his own? – hampers his social
moral reputation?
 Say Ram Jethmalani was renowned to get reliefs to his high profile criminal clients –
though he is justified by profession to do so and is famous by that – Is he worthy of
respect under general good public conscience?

 The two criticisms of the traditional concept (targeting both the means and the end):

- First, where critics argue that some of the finest talent in the legal profession is devoted
to say, corporate finance or elaborate estate plans, sexual offenders, murderers while
important public and private needs for legal services go unmet. The immorality is that the
clients who are the beneficiaries of this lavish attention use it to avoid their obligations in
justice

Example - The lawyer who advises a client how to avoid the effects of a tax which is though
legally permissible but lead to loss in revenue. So does the public defender who accedes to
his client's demands and takes a "losing" case to trial, thereby wasting court’s time and
depleting the limited resources of his organization.
Social critique on wrongful allocation of resources.

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, real estate and the like. This immortality amplifies when the

15
 clients (corporates) use it to avoid obligations, in justice if not in law, towards society and
perpetuate inequality and injustice.

- Second criticism applies particularly to the lawyer. It addresses to tactics and loyalty
which procure advantages for the client at wrong at the direct expense of opposing
party i.e. not just and bringing worry to society at large.

Examples are discrediting a nervous but probably truthful complaining witness or defence
lawyer who cross-examining a complaining rape victim (whom he knows to be telling the
truth) but attempts to discredit her accusing testimony.

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.
- The first criticism focuses on a social harm: the waste of scarce resources implicit in a
doctor caring for the hearts of the sedentary managerial classes or a lawyer tending to
the estates and marital difficulties of the rich
- By the second criticism the lawyer is accused of harming his identified adversary and
harming the society at large.

1st Response to silent these criticisms – that Lawyer solely by his professional acts can be
termed as a good person.
- In light of these criticisms he says that such immoral acts stands validated solely because
the lawyer does that in his professional realm and under the ambit of law.
- He says that once the lawyer is engaged, he acts solely to further his client’s interest
under the law – professionally he puts his client’s interest over and above the collective
interest of the society – He stands justified

2nd Response- Special Purpose Friendship

o He justifies this by saying that a lawyer is right and permitted professionally to lie
and such will is morally justified, like friends and families are justified lying for
one other.
o Author contends that like a father is justified to prioritise interest of his children
over others, he cannot be morally wrong if he provides an expensive education to
his children and surely cannot be blamed for not allocating this scarce resource to
eradicate famine.
o Being selfish won’t make us say that he is immoral, it is his autonomy of choice to
allocate his resources way he wants.
o Before there is morality there must be the person. He says that the picture of the
moral universe in which personal interests disappear and are merged into the
interests of the totality of humanity is somewhat incompatible.

16
 o He interestingly argues that any concern for others which is a human concern must
presuppose a concern for ourselves.

3rd Response - he gives is an Utilitarian Explanation –

- That if everyone is mainly concerned with those closest to him, the distribution of social
energies will be most efficient and the greatest good of the greatest number will be
achieved.
- We can do that better for our closed ones since we would know their problems and
preferences.
- In other words he says there is no point to achieve general good by compromising
obligations to your own friends and family
- Relation between a Lawyer and Client he terms as a Special Purpose Friend

Special-Purpose Friends
- How does a professional fit into the concept of personal relations at all? Author suggests
that it is possible as client is a limited-purpose friend.
- A lawyer is a friend in regard to the legal system.
- That means that like a friend he acts in your interests, not his own; or rather he adopts
your interests as his own.
- Primary critique to this on the face is that conventionally friendship is not based on
quid pro quo i.e. it is not working in each other best interest for a sum or
consideration.

Fried explains: “When I say the lawyer is his client's legal friend, I mean the lawyer makes
his client's interests his own insofar as this is necessary to preserve and foster the client's
autonomy within the law.”

- To Fried, however it does not matter that such legal friendship, unlike natural friendship,
is non-reciprocal, and that it is bought and paid for."

He justifies that by arguing -

- The lawyer and doctor have obligations to the client or patient beyond those of other
economic agents.
- A grocer may refuse to give food to a customer when it becomes apparent that the
customer does not have the money to pay for it. But the lawyer and doctor may not refuse
to give additional care to an individual who cannot pay for it, if such would be prejudicial
to that individual.
- lawyers and doctors are different from others who charge money - thus would be special
purpose friends?
- The doctor does not minister just to any need, but to health. He helps maintain the very
physical integrity which is the concrete substrate of individuality. Illness wears a special
guise: it appears as a critical assault on one's person
- It is because the law must respect the rights of individuals that the law must also create
and support the specific role of legal friend. For the social nexus-the web of perhaps

17
 entirely just institutions-has become so complex that without the assistance of an expert
adviser an ordinary layman cannot exercise that autonomy which the system must allow
him. Without such an adviser, the law would impose constraints on the lay citizen
(unequally at that) which it is not entitled to impose explicitly. Thus, the need which the
lawyer serves in his special-purpose friendship may not be, as in the case of the doctor,
natural, pre-social. Yet it is a need which has a moral grounding analogous to the need
which the physician serves: the need to maintain one's integrity as a person. When I say
the lawyer is his client's legal friend, I mean the lawyer makes his client's interests his
own insofar as this is necessary to preserve and foster the client's autonomy within the
law

 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

18
 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.”
 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.

19
 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 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?”

20
Professional Responsibility Of Criminal Defense Lawyer Freedman
- There has been this Lawyer-Person debate by the American adversarial systems. What I
mean is the distinction between professional morality and personal morality.

- There are basically 3 ways to treat this problem of split moral personality.
1. The first to professionalize & de-personalize – Lawyer as professional is governed by
the ABA Model Rules of Professional Conduct or where prior readings suggest that
lawyers need not concerned about ethical morality at personal sphere at all.

2. Second to personalize & de-professionalize - Kantian philosophers manifest this as

the very idea of an organized professional ethics is an absurdity, an intellectual and
moral confusion - Richard Wasserstrom (who advocates some degree of de-
professionalization).

3. The third is to deny the conflict altogether, by arguing that a good lawyer is ipso
facto a good person. – This is what is expressed by Charles Fried's conception of “the
lawyer as friend”.

- Charles Fried argues that there is no fundamental incompatibility between professional

morality and personal morality, that a good lawyer is ipso facto a good person.

To try to bridge the discontinuity between professional and personal morality, by developing
a conception of integrated moral personality and professional responsibility.

- I would label as "the lawyer as a citizen at first, this lays emphasis upon the lawyer's
responsibility not just to the client or to himself, but also to the laws themselves.
- This I believe not in a positivist approach but in a constructivist model – that law is a
confluence of what we know as shared morality (both public morality and individual
morality). So the basic norm which concerns a lawyer is the constitutional morality (the
grund norm).
- As understood on a Rawlsian/Dworkinian model of law as integrity. In short, it
emphasizes not only professional integrity and personal integrity, but also what Dworkin
calls the integrity of the law itself.

21
 - I want all of you to have this thought at the back of your mind as in the first part of my
analysis, we will be drawing the idea and do and comparative analysis.

Freedman in his Article Responsibility of a Criminal Defense Lawyer proposed a criminal

defense lawyer’s trilemma- 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.

1. 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?
2. Is it proper to put a witness on the stand when you know he will commit perjury?
3. 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?

 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 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.

 He starts with the proposition that

1. The attorney is indeed an officer of the court, and he does participate in a search for
truth. As an officer of the court, participating in a search for truth, what is the
attorney's special responsibility, and how does that responsibility affect his relation
between him and his client

22
 Answering the 1st Question i.e. 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?

 First we must note that this exact question was dealt by Fried in his Article Good Lawyer ipso
facto is a good person-
Where answering to this same question he says -that-
o First that Lawyer acts in the domain of the law as law mandates him to safeguard interest of
client when he says that “Once the lawyer is engaged, he acts solely to further his client’s
interest under the law”.
o Second that he and the client have a special purpose friendship – wherein he helps maintain
the integrity of the client similar to that of a doctor – which he calls a self-less service
(though he is not bothered that it is for a consideration paid).

Freedman in this article explains--

 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.

- First, Lawyer as an officer of the court - lawyers have a duty of candour to the court
that may require them to reveal a client’s confidential information in order to prevent
or correct fraud on the court (which perjury would be).

- Second, lawyers have a duty of confidentiality that generally forbids them to use a
client’s information except for the client’s benefit.

- Third, competence requires lawyers to seek all information that can aid a client’s
matter.

 In a logical and deontological derivative, it is quite natural to agree with the author that these three
obligations cannot co-exist, and that is certainly true. Sometimes, a lawyer will have to sacrifice one
obligation to fulfil another obligation.
 The upshot is that if a defence lawyer cannot dissuade a client from giving false testimony and
cannot prevent the perjury by getting the court to let him withdraw from the matter or telling the

23
 court about the perjury, ethics rules should at least allow the lawyer to introduce the client’s false
testimony in the usual way and to argue it in summation to the jury.

 Freedman defends his argument by citing the Policy.

- His Policy Argument is that it is the duty of the Defence Attorney to forbid the client
to testify when the lawyer knows that he is going to lie.
- From policy point of view such would require the defence lawyer to reveal the client’s
perjury when the lawyer comes to know of the client’s lie.

Policy Principle being – that the lawyer serves as an officer of court and it is the underlined
duty of him to be faithful to the court or institution – he calls a duty of candour to the court

What then follows as an inference-

- Naturally it is that first clients will not be forthcoming with their lawyers, who may
then remain ignorant of information that can aid their clients’ cause. As by this there is
likelihood that clients will withheld information from lawyers
- Second a duty of candour will encourage lawyers to maintain intentional ignorance.
- In either event, the duty of competent representation suffers.
- Further, where the lawyer, in compliance with a duty of candour, is required to inform
the court that his client will lie or has lied, the duty of confidentiality is compromised
as well.

Conclusion - All in all, then, Freedman argues, one of the duties in the trilemma will
sometimes have to yield to another duty in the trilemma.

 2nd 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 3rd question that the author puts forth is whether it is proper to give your client legal advice
when you have reason to believe that the knowledge you give him will tempt him to commit

24
 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 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.

- Assume in a criminal case, a lawyer may be representing a client who protests his
innocence, and whom the lawyer believes to be innocent. However advises that an
alibi can save him – or if client could plea bargain to have a lesser punishment.
- In first case the lawyer is provoking the client to take a route that might not be true but
which would save the client and in the second he is advising to confess to something
which the client (say when he is not guilty at all) to plead guilty for a lesser
punishment.

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.
Critique
1st Critique – Why the problem of trilemma only is limited to Defence Attorney in criminal
cases Does that suggest that there is no ethical problem under Freedman when a fraudulent
document is introduced by lawyer to safeguard client’s interest in a civil case.

2nd Critique - Freedman fails to consider that a client has a constitutional right to testify
falsely- right not to self-incriminate (The 5 th Amendment of US Constitution & Article 20(3)
of Indian Constitution).
His solution to the trilemma in the case of anticipated perjury is based on the policy
arguments identified above i.e. the lawyer is a officer of court and in adversarial system is to
help the court finding the truth.

3rd Critique – Freedman makes no reference or suggestion to the right to counsel (6 th

Amendment), or due process (5th and 14th Amendment) which are inherent constitutional right
This would be compromised if a state adopted an ethics rule that said simply: A lawyer must
not knowingly elicit false testimony from any witness.

25
 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 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

26
 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.”

27
 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.
Wasserstrom
 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.

LEGAL ETHICS IN AN ADVERSARIAL 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.

28
 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 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,

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.

29
 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 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

30
 incentivize them to pursue research in this direction.
 In addition, they also need to strengthen their pro-bono and legal aid program.

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.

31
 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.
 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

32
 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.

33
 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.

34
 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 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

35
 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 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,

36
 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 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)

37
 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 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.

38
 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
 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,

39
 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 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?

40
 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 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

41
 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:
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.

42
 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 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.”

B. Sunitha vs State of Telangana

This was in regard to a MACT claim case wherein MACT awarded compensation. The appellant
paid a sum of Rs.10 lakhs towards fee on various dates. However, the respondent forced the
appellant to sign another cheque of Rs.3 lakh.
The claim was in violation of Advocates Fee Rules and Ethics as fee could not be demanded on
percentage of amount awarded as compensation to the appellant. Her signatures were taken when
she was under distress.

 Made a significant observation calling upon the government and the authorities to look into the
issue of introducing requisite legislative changes for an effective regulatory mechanism to check
violation of professional ethics and also to ensure access to legal services.
 Observed while quashing a complaint filed by a lawyer against his client based on a share in the
decretal amount, wherein it observed that the said claim made by lawyer is a professional

43
 misconduct and the proceedings in the complaint filed by him have to be held to be abuse of the
process of law and have to be quashed.
 After the hearing of the appeal concluded, the counsel for the lawyer sought to withdraw the
complaint. But the bench did not permit observing that he has committed a serious professional
misconduct, and could not be allowed to avoid the adverse consequences which he may suffer for
his professional misconduct. The court, however, ordered that the issue of professional misconduct
is left to be dealt with at the appropriate forum.
 This act of the lawyer seems to have prompted the bench to express its concern on the falling
professional norms in the legal profession. “Significance of the profession is on account of its role
in providing access to justice and assisting the citizens in securing their fundamental and other
rights. Can justice be secured with the legal professionals failing to uphold the professional
ethics,” the bench asked.
 Commercialization to the extent of exploiting the litigant and misbehavior to the extent of
browbeating the Court, breach of professional duties to the court and the litigant on the part of some
members of the legal profession, affecting the right of the litigants to speedy and inexpensive
justice, need to be checked, the bench remarked.
 The court has also referred to Law Commission’s 131st report wherein it was observed that it was
the duty of the Parliament to prescribe floor and ceiling in fees for services rendered by lawyers.
The court said though the Law Commission submitted its report in 1988, no effective law appears to
have enacted to regularize the fee or for providing the public sector services to utmost needy
litigants without any fee or at standardized fee. “Mechanism to deal with violation of professional
ethics also does not appear to have been strengthened,” the bench said.

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), +

44
  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
 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.

45
 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.

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

46
 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?
 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.

47
 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:
 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:

48
 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 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.

49
 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 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.

50
 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?
 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.

51
52
 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."
 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.

53
 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 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

54
 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.

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 discussed 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

55
 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.

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.

56
* 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 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

57
 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.

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.

58
 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 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.]

59
 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 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,

60
 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 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

61
 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.
 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.

62
 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.
 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.

63