The duty of the advocate lies in the exposition of the facts on behalf of the party he represents. Likewise, there is opposing counsel who has to reveal all that is factual for the side he represents. Then there are the judges to carefully weigh as to which side the reasoning goes and pronounce the verdict accordingly.
Forsyth says that, “The business of the advocate is to supply materials out of which the decision is to be formed by other; but not all the materials—only those which relate to one side and view of the question, for he does not stand before the tribunal to array conflicting probabilities, and weigh minute differences, as though to him were committed the task of adjudicating between opposing claims. He is to urge as forcibly as he can all the arguments which may be suggested in favour of one particular side and present them to the understanding of those whose duty and vocation it is to weigh everything that may be advanced on both sides and carefully ascertain the validity of the reasoning by which they are respectively supported.”
All that an advocate undertakes to perform, in the point of view in which we are now considering his duty is this—“I will bring before the notice of the judge, all that can be maintained in favour of one side of the question. The same will be done by my opponent and the court will decide between us. He stands wholly separate and distinct from the tribunal, which pronounces its judgment upon the value it attaches to his arguments and which recognizes their cogency by adopting them, or shows its sense of their insufficiency by rejecting them.”
Justice Valliant, while addressing the students of the Benton College of Law has propounded his views as,
“In a certain sense there is a right and a wrong side to every case and the lawyer seldom knows until the trial is ended and often is not then convinced, which is the right side. A lawyer has no right no prejudge his client’s case. If a man comes to you and tells you the facts of his case, as he understands them, it is your duty, if you know nothing to the contrary, to accept his statement as truth and assist him with all your skill and learning to present that side of the case to the court. It may turn out that the facts were not as your client thought they were, or as he told you they were, but as long as you have only presented the case to the court fairly and honestly, you have nothing with which to reproach yourself. We, lawyers, are the only people in the world who realize that there are two sides to every question. Other men accept the statement as a theory, but men learn it as a reality only by experience.”
Lawyer does not act merely in the guise of his client’s agent, he, at the same time, is also an officer of the court. It is well within the right of his party that his case is decided on the basis of existing law of the land and the evidence. It is the duty of the counsel to place every possible view relating to the case before the judge who has to pronounce his verdict thereupon.
It has been laid down by numerous authorities on the subject that it would be highly improper for the prosecution counsel concerned as to pronounce his personal belief, or for that matter, his personal conviction as to the guilt of the accused where that belief or personal conviction is predicted upon anything other than the evidence in the case.
Simultaneously, it may as well be asserted that such prosecution officer has certain right to urge that the evidence as is there existing in the case convinces his mind as to the innocence of the accused. It would be nothing but utter absurdity that the prosecuting officer is raising the contention that though the evidence could not convince his mind, it should convince the mind of the jury. It may, therefore be said that the prosecution officer has no absolute right to state his belief and his conviction on the basis of what the evidence establishes.
Sharswood in his book on Legal Ethics says, “No counsel can with propriety and good conscience express to court or jury his belief in the justice of his client’s cause, contrary to the fact. Indeed, the occasions are very rare in which he ought to throw the weight of his own private opinion into the scale in favour of the side he has espoused. If that opinion has been formed on a statement of facts not in evidence, it ought not to be heard—it would be illegal and improper in the tribunal to allow any force whatsoever to it.”
It is an inflexible rule that the advocate should not cast his personal opinion or belief in his client’s case. That is different thing that he is acting in the guise of a private adviser, in which eventuality, he is duty bound to express his honest opinion pertaining to the matter. But while appearing in the court, the counsel should evade such expression, no matter saying so favours his client or goes against him. Whatever the personal opinion, it bears no relevancy to any issue, as every case is to be decided on the basis of what the evidence suggests.
It is now generally perceived, says Sir John, that there is no duty cast upon the lawyer to assert his belief in the truth of his client’s case, even if he does believe him in the right, and to make such an assertion where he doubts or has no faith in the right or justice or the claim is to violate truth for the purpose of leading the tribunal astray. If such declarations were to be made a part of each address, the jury would take their omission to be a confession that the client’s cause was unworthy. Therefore, as no conscientious man could make such assertion in all cases, and the declarations of an unconscientious man would soon carry no weight, it is best that no counsel should indulge in such expression of personal belief.
Hoffman says that, “my client’s conscience and my own are distinct entities, and though my vocation may sometimes justify my maintaining as facts or principles, in doubtful cases, what may be neither one nor the other, I shall ever claim the privilege of solely judging to what extent to go. In civil cases, if I am satisfied from the evidence that the fact is against the client, he must excuse me if I do not see as he does, and do not press it and should the principle also be wholly at variance with sound law, it would be dishonourable folly in me to endeavour to incorporate it into the jurisprudence of the country, when if successful, it would be a gangrene that might bring death to my cause of the succeeding day.”
Hoffman further asserts that, “when employed to defend those charged with crimes of the deepest dye, and the evidence against them, whether legal or moral, be such as to leave no just doubt of their guilt, I shall not hold myself privileged, much less obliged, to use my endeavours to arrest or to impede the course of justice, by special resorts to ingenuity, to the artifices of eloquence, to appeals to the morbid and fleeting sympathies of weak juries or of temporizing courts to my own personal weight or character, nor finally, to any of the overweening influences in may possess from popular manners, eminent talents, exalted learning etc. Persons of atrocious character, who have violated the laws of God and man, are entitled to no such special exertions from any member of our pure and honourable profession; and indeed, to no intervention beyond securing to them fair and dispassionate investigation of facts of their cause and the due application of law; all that goes beyond this, either in manner or substance, is unprofessional and proceeds either from a mistaken view of the relation of the clients and counsel, or from some unworthy and selfish motive which sets a higher value on professional display and success than on truth and justice and the substantial interest of the community. Such an inordinate ambition I shall ever regard as a most dangerous perversion of talents and a shameful abuse of an exalted station. The parricide or the gratuitous murderer or other perpetrator or like revolting crimes has surely no such claim on the commanding talents of a profession whose object and pride should be the suppression of all vice by the vindication and enforcement of the laws. Those, therefore, who wrest their proud knowledge from its legitimate purposes to pollute the streams of justice and to screen such foul offenders from merited penalties should be regarded by all, and certainly shall by me, as ministers at a holy altar full of high pretension and apparent sanctity, but inwardly base, unworthy and hypocritical, dangerous in the precise ratio of their commanding talents and exalted learning.”
It is not in accordance with the professional etiquette for one advocate to hand over his brief to another to take his place at a hearing either for the whole or part of the hearing and conduct the case as if the latter had himself been briefed, unless the client consents to this course being taken.
There is hardly an inborn moral sense, says Dr. Radha Binod Pal, which always tells each man what is right and what is wrong. In any event, the innate moral sense, if at all exists, is difficult today; for never were ethical notions more confused. It is notorious that now-a-days the principles which we apply in our actual living are largely opposite to those which we preach. It is difficult to believe that in thus behaving, we are always guided in our action by enlightened self-interests.
He further says that, it may, no doubt, be contended that, the science which has the most direct and immediate bearing upon questions of conduct, is the science of society in general. We are, however, predominantly concerned herewith the ethical science. The moral nature of man, though undoubtedly in every close connection with other aspects of his nature will always remain a distinct aspect of it and an aspect quite as much worthy of separate study as the physical or the economic aspects of individual or society.
Adv. Sunil Sharma is a writer for about 25 years and has authored more than 40 books on various subjects including Jurisprudence, Hindu Law and Environmental Laws.