Advocates, in addition to being professionals, are also officers of the courts and play a vital role in the administration of justice. Advocate’s duty towards the court is a fundamental obligation within the adversarial system.
In order to fulfill the heavy responsibilities imposed on lawyers as officers of the court, a meaningful and practical environment of independence is essential. It is always within the framework of this relationship that the commercial interest of the client and the lawyer's interests must give way to the overriding duty to the court. —David W Scott
Our society depends on a strong independent legal profession. While the courts sit at the top of the profession, they depend on an efficient and effective functioning of lawyers playing their role in the administration of the law. That is not confined to litigious work, but extends to all forms of legal work. So, when you get admitted to practice, you become subject to rules of professional conduct and a disciplinary system all of which are designed to ensure that lawyers play their proper role in the administration of law, the public is protected from inadequate legal representation, and public confidence in the legal profession is maintained.
All that may seem trite, but it is important that it be borne in mind in everything you do as a lawyer. If you remain mindful that you enjoy a privileged position in the community by reason of your admission to practice law, and your primary duties are to the court and to the administration of law, most of the questions or dilemmas that confront you in your practice can be answered relatively easily. Justice John Chaney
If the judiciary is to perform its duties and functions effectively and true to the spirit with which they are sacredly entrusted to it, the dignity and authority of the courts have to be respected and protected at all costs. Otherwise, the very cornerstone of our constitutional scheme will gave way and with it will disappear the rule of law and the civilized life in the society. It is for this purpose that the courts are entrusted with the extraordinary power of punishing those who indulge in acts whether inside or outside the courts, which tend to undermine their authority and bring them in disrepute and disrespect by scandalising them and obstructing them from discharging their duties without fear or favour. When the court exercise this power, it does not do so to vindicate the dignity and honour of the individual judge who is personally attacked or scandalised, but to uphold the majesty of the law and of the administration of justice. The foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice. When the foundation itself is shaken by acts which tend to create disaffection and disrespect for the authority of the court by creating distrust in its working, the edifice of the judicial system gets eroded.
We must all remember that a judge is the greatest need of democracy. By keeping him strong and respected, we are making the working of democracy assured. If we belittle the judge or rob him of the honour and dignity due to his position, we are sapping the moral, political and social bases of our Constitution.
There is the need of harmony existing between the members of the Bench and the Bar. If the judiciary is to perform its duties and functions effectually and true to the spirit with which they are sacredly entrusted to it, the dignity and authority of the courts have to be respected and protected at all costs. Otherwise, the very corner-stone of our constitutional scheme will give way and with it will disappear the rule of law and the civilized life in the society.
DANIEL WEBSTER says that justice is the ligament which holds civilized nations together and that wherever her temple stands and so long as it is duly honoured, there is a foundation for social security, general happiness and progress of the people. We, the members of the bar and bench should move heaven and earth to see that our courts of law should be Temples of Justice. This averment may sound somewhat imaginary, visionary, and utopian, but experience shows that when honest and sincere efforts are made in the proper direction, today’s imagination becomes tomorrow’s realism, today’s vision becomes tomorrow’s truism and today’s utopia tomorrow’s platitude.
Discussing the behaviour of the members of the Bar towards the Bench, Justice Nageshwar Prasad writes that, “A judge is the presiding deity in the Temple of Justice. He may be formed of stone or clay, but he is the image of justice installed to offer the much needed prasad to deserving votaries. He has to be maintained in dignity and strength so that the role assigned to him for the benefit of the people may be effectively discharged. He has to discharge his functions with your assistance and cooperation. You are to assist him with your marshalling and exposition of facts and interposition of law. In his judgment, he is bound to disagree with some contending party. This should not cause any rancour. No loose talks attributing motives to him should be uttered by lawyers.”
Brazenness is not outspokenness and arrogance is not fearlessness. Use of intemperate language is not assertion of right nor is a threat an argument. Humility is not servility and courtesy and politeness are not lack of dignity. Self-restraint and respectful attitude towards the court, presentation of correct facts and law with a balanced mind and without overstatement, suppression, distortion or embellishment are requisites of good advocacy. A lawyer has to be a gentleman first. His most valuable asset is the respect and goodwill he enjoys among his colleagues and in the court. An advocate does not enjoy absolute privilege when acting in the course of his professional duties. The dignity of the court is required to be maintained in all situations. Howsoever, far-reaching implications the case may have, but a lawyer is not justified in making personal attack upon the complainant or witnesses on matters not borne out by the record nor in using language which is abusive or obscene or in making vulgar gestures in court. An advocate in no circumstances is expected to descend to the level of appearing to support his view in a vulgar brawl.
The conduct of the lawyer should, at all time be characterized by candour and fairness. He should maintain towards the judges of the courts, a courteous and respectful attitude and insist on similar conduct on the part of his clients, at the same time maintaining a self-respecting independence in the discharge of his professional duties towards his clients.
He should never seek to privately influence, directly or indirectly, the judges of the court in his favour or in that of his client, nor should he attempt to curry favour with juries by fawning or flattery etc.
A sentiment of profound respect for the sanctity of the courts of justice is one of the most deeply implanted traditions of the Bar and seldom is there any occasion for the interposition of judges.
No one expects a lawyer to be subservient to the court while presenting his case and putting forward his arguments 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. If, in spite of it, the lawyer finds that the court is against him, he is not expected to be discourteous to the court or to fling hot words or epithets or use disrespectful, derogatory or threatening language or exhibit temper which has the effect of overbearing the court. Cases are won and lost in the court every day. One or the other side is bound to be defeated. The remedy of losing for the lawyer or the litigant is to prefer an appeal against the decision and not to indulge in a running battle of words with the court. That is the least that is expected of a lawyer. Silence on some occasions is also an argument. The lawyer is not entitled to indulge in unbecoming conduct either by showing his temper or using unbecoming language.
In the words of ROBERTSON, “An advocate is at liberty, when addressing the court in regular course, to combat and contest strongly any adverse view of the judge or judges expressed on the case during the course of argument; to object to and protest against any course which the judge may take and which the advocate thinks irregular or detrimental to the interest of his client and to caution juries against any interference by the judge with their functions, or with the advocate when addressing them, or against any strong view adverse to his client expressed by the presiding judge upon the facts of a case before the verdict of the jury thereon. An advocate ought to be allowed freedom and latitude both in speech and in the conduct of his client’s case.”
An advocate while discharging duty to his client has a right to do everything fearlessly and boldly that would advance the cause of his client. After all, he has been engaged by his client to secure justice for him. A counsel need not make a concession merely because it would please the judge. Yet a counsel, in his zeal to earn success for a client, need not step over the well-defined limits of propriety, repute and justness. Independence and fearlessness are not licences of liberty to do anything in the court and to earn success to a client whatever be the cost and whatever be the sacrifice of professional norms. A lawyer must not hesitate in telling the court, the correct position of law when it is undisputed and admits of no exception. A view of the law settled by the ruling of a superior court or a binding precedent, even if it does not serve the cause of his client, must be brought to the notice of court unhesitatingly. This obligation of a counsel flows from the confidence reposed by the court in the counsel appearing for any of the two sides. A counsel being an officer of the court, shall apprise the judge with the correct position of law whether for or against the party.
The advocate is a representative but not a delegate. He gives to his client the benefit of his learning, his talents and his judgment, but all through he never forgets what he owes to himself and to others. He will not knowingly mis-state the facts, though it be to gain the case for his client. He will ever bear in mind that, if he be an advocate of an individual and retained and remunerated often inadequately, for valuable services, yet he has a prior and perpetual retainer on behalf of truth and justice and there is no Crown or other license which in any case or for any party or purpose can discharge him from that primary and paramount retainer.
Adv. Sunil Sharma is a writer for about 25 years and has authored more than 40 books on Law.