NATIONAL LAW UNIVERSITY ODISHA

BATCH OF 2016-2021

X SEMESTER

PROFESSIONAL ETHICS PROJECT

ON

DUTY OF THE ADVOCATE IN DEFENSE OF THE GUILTY

Submitted To:

Ms. Pragnya Parimita Ray

(Visiting Faculty of Law)

Submitted By:

Mohit Brar (2016/BALLB/061)

Pranjal Shrivastava (2016/BALLB/076)

 TABLE OF CONTENTS

INTRODUCTION......................................................................................................................3

HISTORICAL BACKGROUND...............................................................................................6
Justice Markandey Katju’s View............................................................................................9

DUTY OF AN ADVOCATE TOWARDS HIS CLIENT.......................................................11

Legal Provisions Establishing the Duty of an Advocate Towards a Client.........................12
An Advocate’s Duty to a Client [Bar Council of India, Rules]............................................13

DUTY OF A LAWYER: CONFLICT BETWEEN INTERESTS AND DUTIES..................15

Scope of Conflict..................................................................................................................15
Test to Determine Conflict of Duties...................................................................................15
Duty Towards the Court: General Principles.......................................................................16
Conflicts of Interest Between Claimholders, Lawyers And Litigation Entrepreneurs.........17
Resolving Conflict: An Advocates Duty Towards the Court [Bar Council Of India, Rules]
..............................................................................................................................................18

DEFENDING THE ACCUSED/GUILTY – THE RAM JETHMALANI CODE OF ETHICS

..................................................................................................................................................19

CONCLUSION........................................................................................................................22

BIBLIOGRAPHY....................................................................................................................24

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 INTRODUCTION

There is probably no aspect of the legal profession which engenders more misunderstanding
than the attorney's role as defence counsel in a criminal action. The attorney is often-times
subject to the most severe criticism for undertaking the defence of an accused who is
"obviously" guilty or who has already confessed his guilt. Such criticism is most vehement,
of course, when the attorney is successful in his defence and the accused is set free. It would
appear that the obvious way to avoid the greater majority of such criticism would be an
intensified educational program to make the public aware of the rights of any accused person
and the duties of his defence counsel. This too glib answer, however, offers no solution to the
dilemma of the attorney who is informed by his client, the accused, of facts, which if put into
evidence would be sure to result in a conviction. Here again, of course, there is another
obvious answer, that is, that the attorney may simply drop the case. But to offer such a
solution in the present discussion, is merely to evade the basic problem ever present in the
practice of criminal law.

MORAL VIEW

There appears to be little dispute as to the moral principles governing the defence of one
accused of crime. The attorney may defend the accused by all lawful means. This general
principle is best stated as follows:

“The general principle governing criminal trials is that the accused has a right to be free
from punishment until he is proved with moral certainty to be guilty. Accordingly, the lawyer
for the defendant, even though he knows that his client committed the crime with which he is
charged, can lawfully utilize all objectively honest means to avert the verdict of guilty... Of
course, he may not employ perjury, or induce witnesses to lie on the stand. But, so long as he
confines himself to facts that are objectively true, he may present them in such a manner that
the jury will be inclined to render a verdict of not guilty.”1

This is so because the attorney stands in the place of the client and may do and act in his
defence as the accused may morally do himself. It is basic that the accused has a moral right
not to accuse himself. Thus, although the accused may divulge to the attorney information of
1
Father Francis J. Connell, C.S.S.R., S.T.D., MORALS IN POLITICS AND PROFESSIONS, at III (Newman
Bookship, Westminister, Md. 1946).

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a highly incriminating nature, the attorney is under no obligation to come forth with such
information. Note that this is a right in a negative sense, i.e., the attorney has a right not to
furnish the information. This cannot be extended to give the attorney a right to restrain a
witness from testifying to incriminating matters or in any other way to suppress valid legal
evidence.
The attorney not only may defend his client by all lawful means but it would appear that he is
duty bound to do so. For when the attorney undertakes the defence he has entered into a
contract with the client by which he pledges himself to devote his skill and knowledge as best
he can, to defend the client against the charge.2

Thus, in the concrete situation where the attorney undertakes to defend one who has admitted
his guilt to the attorney, the attorney may, nevertheless proceed to defend the accused by all
lawful means, and do so with the knowledge that such defence is moral and right. Nor need
the attorney have any qualms of conscience if his accused client is found not guilty and set
free, for:

“Nothing seems plainer than the proposition, that a person accused of a crime is to be tried
and convicted, if convicted at all, upon evidence, and whether guilty or not guilty, if the
evidence is insufficient to convict him, he has a legal right to be acquitted.”3

The validity of this statement is so plain that no further comment is needed thereon. To this
position the argument is raised that the objective of a judicial proceeding is truth and thus the
attorney, as an officer of the court, has a duty to come forth with any and all facts which will
aid the tribunal in arriving at its ultimate goal, viz., truth. This argument, while plausible on
its face, does not stand up to a careful analysis.

Such an argument shows a basic misunderstanding of the nature of a criminal proceeding and
what it purports to judge. The state, in the valid exercise of its police powers, has prohibited
the commission of certain acts, ranging from the prohibition of parking an auto in certain
designated zones to the prohibition of murder. The law forbids the act and imposes penalties
on those who violate the law.

2
Father Henry Davis, S.J., MORAL AND PASTORAL THEOLOGY at 382 (Sheed and Ward, New York,
N.Y. 1943).
3
George Sharswood, L.L.D., PROFESSIONAL ETHIcs, at 105 (The Goe. T. Bisel Co., Philadelphia, Pa.,
1907).

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A court composed of mere men is in no position to judge the moral guilt or innocence of
another man. Whether or not there is moral guilt, and if so, to what degree, cannot be
determined by the overt acts of an individual. Moral guilt can be determined only by looking
at the conscience of the accused, and this is something which no court has yet been able to
do. Rather, the court judges whether or not the individual has done those certain overt acts
constituting a crime. Even the elusive concept of mens rea is determined by means of the
overt acts. Thus the proper object of a judicial proceeding is to render a decision consonant
with justice, upon the evidentiary facts set forth. Were the criminal courts of this country to
attempt to punish one for his moral guilt, it would, in effect, be an attempt to control thought.
For one may be morally guilty of a wrong without ever having committed an overt act.4

The court, in its attempt to arrive at the truth as to whether or not the prohibited act has been
committed, has laid down certain rules to be followed. Chief among these is that the state has
the burden of proving its allegations and that such proof must be made in accordance with the
rules of evidence. It is the duty of the prosecutor to make this proof and the function of the
defence counsel, as regards this particular phase of the trial, to see that the rules of evidence
are complied with.

Thus the defence counsel fulfills his role as an officer of the court by seeing that the proof of
the prosecution is made accordingly. It is not within his province to assume the role of the
prosecutor and come forth with affirmative evidence of the commission of the overt acts
alleged. There is a school of thought which holds that an attorney should decline to undertake
the defence of one whom he knows to be guilty. It would appear that any attorney espousing
such a view is in a position which contradicts itself. Witness the following statement:

“It is only when a lawyer really believes his client is innocent that he should undertake to
defend him. All our democratic safeguards are thrown about a person accused of a crime so
that no innocent men may suffer. Guilty defendants, though they are entitled to be defended
sincerely and hopefully, should not be entitled to the presentation of false testimony and
insecure statements by counsel.”5

The contradiction is readily apparent. If an attorney should defend only those whom he
believes to be innocent, how then are the "guilty" defendants to obtain counsel, the right to

4
MATT. 5. 28.
5
Cutler, “Is a Lawyer Bound to Support an Unjust Cause? A problem of Ethics”, 38 A.B.A.J. 300, at 301.

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which is admitted. Further, is not the attorney usurping the function of the judge and jury by
pre-judging the guilt or innocence of the client?

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 HISTORICAL BACKGROUND

When the great revolutionary writer Thomas Paine was jailed and tried for treason in England
in 1792 for writing his famous pamphlet ‘The Rights of Man’ in defence of the French
Revolution the great advocate Thomas Erskine (1750-1823) was briefed to defend him.
Erskine was at that time the Attorney General for the Prince of Wales and he was warned that
if he accepts the brief, he would be dismissed from office. Undeterred, Erskine accepted the
brief and was dismissed from office.

However, his immortal words in this connection stand out as a shining light even today:
“From the moment that any advocate can be permitted to say that he will or will not stand
between the Crown and the subject arraigned in court where he daily sits to practice, from
that moment the liberties of England are at an end. If the advocate refuses to defend from
what he may think of the charge or of the defence, he assumes the character of the Judge; nay
he assumes it before the hour of the judgment; and in proportion to his rank and reputation
puts the heavy influence of perhaps a mistaken opinion into the scale against the accused in
whose favour the benevolent principles of English law make all assumptions, and which
commands the very Judge to be his Counsel”

Indian lawyers have followed this great tradition. The revolutionaries in Bengal during
British rule were defended by our lawyers, the Indian communists were defended in the
Meerut conspiracy case, Razakars of Hyderabad were defended by our lawyers, Sheikh
Abdullah and his co-accused were defended by them, and so were some of the alleged
assassins of Mahatma Gandhi and Indira Gandhi. In recent times, Dr. Binayak Sen has been
defended and so was 26/11 terrorist Ajmal Kasab. No Indian lawyer of repute has ever
shirked responsibility on the ground that it will make him unpopular or that it is personally
dangerous for him to do so. It was in this great tradition that the eminent Bombay High Court
lawyer Bhulabhai Desai defended the accused in the I.N.A. trials in the Red Fort at Delhi
(November 1945 - May 1946).

The Sixth Amendment to the US Constitution states “In all criminal prosecutions the accused
shall enjoy the right .......to have the assistance of counsel for his defence.”

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In Powell v. Alabama, 287 US 45 1932 the facts were that nine illiterate young black men,
aged 13 to 21, were charged with the rape of two white girls on a freight train passing
through Tennessee and Alabama. Their trial was held in Scottsboro, Alabama, where
community hostility to blacks was intense. The trial judge appointed all members of the local
bar to serve as defense counsel. When the trial began, no attorney from the local bar appeared
to represent the defendants. The judge, on the morning of the trial, appointed a local lawyer
who undertook the task with reluctance. The defendants were convicted. They challenged
their convictions, arguing that they were effectively denied aid of counsel because they did
not have the opportunity to consult with their lawyer and prepare a defense. The U.S.
Supreme Court agreed. Writing for the court, Mr. Justice George Sutherland explained :
“It is hardly necessary to say that the right to counsel being conceded, a defendant should be
afforded a fair opportunity to secure counsel of his own choice. Not only was that not done
here, but such designation of counsel as was attempted was either so indefinite or so close
upon the trial as to amount to a denial of effective and substantial aid.....”

In the same decision Justice Sutherland observed: “What, then, does a hearing include?
Historically and in practice, in our own country at least, it has always included the right to the
aid of counsel when desired and provided by the party asserting the right. The right to be
heard would be, in many cases, of little avail if it did not comprehend the right to be heard by
counsel. Even the intelligent and educated layman has small and sometimes no skill in the
science of law. If charged with crime, he is incapable, generally, of determining for himself
whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left
without the aid of counsel he may be put on trial without a proper charge, and convicted upon
incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks
both the skill and knowledge adequately to prepare his defense, even though he have a perfect
one. He requires the guiding hand of counsel at every step in the proceedings against him.
Without it, though he be not guilty, he faces the danger of conviction because he does not
know how to establish his innocence. If that be true of men of intelligence, how much more
true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or
criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel,
employed by and appearing for him, it reasonably may not be doubted that such a refusal
would be a denial of a hearing, and, therefore, of due process in the constitutional sense.”

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In this connection we may also refer to the legendry American lawyer Clarence Darrow
(1857-1930) who was strongly of the view that every accused, no matter how wicked,
loathsome, vile or repulsive he may be regarded by society has the right to be defended in
court. Most lawyers in America refused to accept the briefs of such apparently wicked and
loathsome persons, e.g. brutal killers, terrorists, etc. but Clarence Darrow would accept their
briefs and defend them, because he was firmly of the view that every persons has the right to
be defended in court, and correspondingly it was the duty of the lawyer to defend. His
defences in various trials of such vicious, repulsive and loathsome persons became historical,
and made him known in America as the ‘Attorney for the Damned’, (because he took up the
cases of persons who were regarded so vile, depraved and despicable by society that they had
already been condemned by public opinion) and he became a legend in America.

In Re Anastaplo, 366 US 82 (1961), Mr. Justice Hugo Black of the US Supreme Court in his
dissenting judgment praised Darrow and said:
“Men like Lord Erskine, James Otis, Clarence Darrow, and a multitude of others have dared
to speak in defense of causes and clients without regard to personal danger to themselves.
The legal profession will lose much of its nobility and its glory if it is not constantly
replenished with lawyers like these. To force the Bar to become a group of thoroughly
orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.”

At the Nuremberg trials, the Nazi war criminals responsible for killing millions of people
were yet defended by lawyers.

We may also refer to the fictional American lawyer Atticus Finch in Harper Lee’s famous
novel ‘To Kill a Mocking Bird’. In this novel Atticus Finch courageously defended a black
man who was falsely charged in the State of Alabama for raping a white woman, which was a
capital offence in that State. Despite the threats of violence to him and his family by the racist
white population in town, and despite social ostracism by the predominant while community,
Atticus Finch bravely defended that black man (though he was ultimately convicted and
hanged because the jury was racist and biased), since he believed that everyone has a right to
be defended. This novel inspired many young Americans to take up law as a profession in
America.  

The following words of Atticus Finch will ring throughout in history:

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“Courage is not a man with a gun in his hand. It is knowing you are licked before you begin,
but you begin anyway and you see it through no matter what. You rarely win, but sometimes
you do.”

Article 22(1) of the Indian Constitution states: “No person who is arrested shall be detained
in custody without being informed, as soon as may be, of the grounds for which arrest nor
shall he be denied the right to consult, and to be defended by, a legal practitioner of his
choice.”

Chapter II of the Rules framed by the Bar Council of India states about `Standards of
Professional Conduct and Etiquette', as follows: “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.”

JUSTICE MARKANDEY KATJU’S VIEW

The Bar Association of Saket’s resolution that none of its lawyers will defend the accused in
the Delhi gangrape case is not only illegal but also against all traditions of the bar and
professional ethics.
As observed in AS Mohammed Rafi v. State of Tamil Nadu, AIR 2011 SC 308.
“Every person, however wicked, depraved, or repulsive he may be regarded by society has a
right to be defended in a court of law, and correspondingly it is the duty of the lawyer to
defend him.”
Several Bar Association all over India, whether High Court Bar Associations or District
Court Bar Associations have passed resolutions that they will not defend a particular person
or persons in a particular criminal case. Sometimes there are clashes between policemen and
lawyers, and the Bar Association passes a resolution that no one will defend the policemen in
the criminal case in court. Similarly, sometimes the Bar Association passes a resolution that
they will not defend a person who is alleged to be a terrorist or a person accused of a brutal or
heinous crime or involved in a rape case.
In our opinion, such resolutions are wholly illegal, against all traditions of the bar, and
against professional ethics. Every person, however, wicked, depraved, vile, degenerate,
perverted, loathsome, execrable, vicious or repulsive he may be regarded by society has a

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right to be defended in a court of law and correspondingly it is the duty of the lawyer to
defend him.
Professional Ethics requires that a lawyer cannot refuse a brief, provided a client is willing to
pay his fee, and the lawyer is not otherwise engaged. Hence, the action of any Bar
Association in passing such a resolution that none of its members will appear for a particular
accused, whether on the ground that he is a policeman or on the ground that he is a suspected
terrorist, rapist, mass murderer, etc. is against all norms of the Constitution, the Statute and
professional ethics. It is against the great traditions of the Bar which has always stood up for
defending persons accused for a crime. Such a resolution is, in fact, a disgrace to the legal
community. We declare that all such resolutions of Bar Associations in India are null and
void and the right minded lawyers should ignore and defy such resolutions if they want
democracy and rule of law to be upheld in this case. It is the duty of a lawyer to defend no
matter what the consequences, and a lawyer who refuses to do so is not following the
message of the Gita.

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 DUTY OF AN ADVOCATE TOWARDS HIS CLIENT

“A lawyer will be constantly confronted with conflicting loyalties which he may have to
reconcile. He is answerable not only to his client whose interests it is his primary duty to
serve and promote, but also to the Court of which he is an officer and further to his
colleagues at the Bar and to the traditions of the Profession.”6

Our Constitution enshrines that the right to consult and to be defended by a lawyer of one’s
choice is a fundamental right of a person accused of an offence; and so, it is the duty of a
lawyer to defend such person. Because of this constitutional injunction, there is absolutely no
conflict between interest and duty in criminal cases. However, some difficult may arise in
case where the accused confesses his guilt to the lawyer.

Lord Cozens-Hardy MR in Moody v Cox7 said that: A solicitor may have a duty on one side
and a duty on the other, namely, a duty to his client as solicitor on the one side and a duty to
his beneficiaries on the other; but if he chooses to put himself in that position it does not lie in
his mouth to say to the client “I have not discharged that which the law says is my duty
towards you, my client, because I owe a duty to the beneficiaries on the other side.” The
answer is that if a solicitor involves himself in that dilemma it is his own fault.8

A lawyer wishes to promote his client's interests and it is his duty to do so by all legitimate
means. But he also has an interest in the proper administration of justice to which his
profession is dedicated and he owes a duty to the court to assist in ensuring that this is
achieved.9 The potential for conflict between these interests and duties is very considerable
yet the public interest in the administration of justice requires that they be resolved in
accordance with established professional rules and conventions and that the judges shall be in
a position to assume that they are being so resolved. There is thus an overriding public
interest in the maintenance amongst advocates not only of a general standard of probity, but
of a high professional standard, involving a skilled appreciation of how conflicts of duty are
to be resolved.10

6
Henry S. Drinker. LEGAL ETHICS, (New York: Columbia University Press, 1953) pp. xxii, 448.
7
Moody v Cox, [1917] 2 Ch 71.
8
 Hilton v. Barker, [2005] 1 All ER 651.
9
Mohd. Hussian @ Julfikar Ali v. The State(Govt. of NCT) Delhi, AIR 2013 SC 3860.
10
Abse and Others v Smith and Another, [1986] CA.

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Here’s a frame that may be helpful in thinking about the lawyer’s dilemmas: strong vs. weak
adversarialism. The concept of strong adversarialism prefers the objective of zealous
representation and protection of client confidences above other values. Weak adversarialism
allows the lawyer to conduct a defence on reasonable doubt grounds while doing less than the
lawyer’s best. Weak adversarialism in this situation promotes the truth-discovery function of
criminal justice without severely undermining the adversary system and it diminishes the
moral difficulties of criminal defence lawyers.11

With regards to perjury and cross-examining truthful witnesses, either of the above-
mentioned adversarialism can be used, based on the facts and circumstances of each case.

A criminal defence lawyer is hired to defend both individuals and corporations, called

defendants in legal settings, who have been arrested as suspects for unlawful activities. This
type of lawyer may also be known as a defence attorney or simply as a criminal lawyer. In
the United States, they are responsible for representing those who have been accused of
criminal activities in court, where a judge and jury will then decide if the defendant is either
guilty or innocent. A criminal defence lawyer works with the defendant to develop the best
way to minimize the consequences of any unlawful activity the client may have been
involved in. If the client is innocent, it is the job of the criminal defence lawyer to prove that.

LEGAL PROVISIONS ESTABLISHING THE DUTY OF AN ADVOCATE TOWARDS A CLIENT

The adversary system of criminal trial, which we have adopted, states that the state using its
investigate resources and employing a competent prosecutor to prosecute the accused, will
employ an equally competent defence counsel to challenge the prosecution.12

Both the Constitution of India and the Code of Criminal Procedure confer on the accused a
right to consult and to be defended by a legal practitioner of his choice. 13 The accused’s right
to have a lawyer of his choice is also a constitutional right under Article 22. Section 303
provides that after initiating any proceeding against the accused, the accused should be
defended by a lawyer of his choice. On the other hand S.304 requires the court under certain
circumstances to arrange lawyer for his defence at the state’s expenses. 14 Article 39-A also
provides free legal aid under the directive principles of state policy.
11
Michael Asimow, When the Lawyer Knows the Client is Guilty: Legal Ethics, and Popular Culture, March
2006 available at http://www.lsuc.on.ca/media/sith_colloquium_asimow_michael.pdf , last visited on 5 May,
2021.
12
Chandrasekharan Pillai, R.V. KELKAR’S ON CRIMINAL LAW, (4th Edition, Eastern Book Company, 2007).
13
See Art. 22(1) of the Constitution of India and S.303 & 304 of the Code of Criminal Procedure.
14
 Khatri-ii v. State of Bihar (1981) 1 SCC 635.

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 The Supreme Court in case of Suk Das v. State of Arunachal Pradesh,15 held that conviction
of the accused in a trial in which he was not provided any defence lawyer would be set aside
as being violative of Article 21 of the Constitution. Similarly, in D.K. Basu v. State of West
Bengal,16 certain guidelines were given which have now been included in the Code of
Criminal Procedure. Further, sections 41(A) to 41(D) have been inserted by the
recommendation of Mali math Committee.

The defence attorney's purpose is to represent his client's best interests. The responsibilities
this might include range from gathering evidence and presenting it in court, to negotiating
bail, to managing media attention through press releases or conferences, to plea bargaining.
Ideally, the defence attorney gets the client acquitted or has the charges against her dropped,
but this is simply not realistic in the majority of criminal cases.

AN ADVOCATE’S DUTY TO A CLIENT [BAR COUNCIL OF INDIA, RULES]

In pursuance of Section 49(1)(c) of the Advocates Act, 1961, the Bar Council of India is
empowered to make rules so as to prescribe the standards of professional conduct and
etiquette to be observed by the advocates. Rules 11 to 33 deal with the duties of an advocate
towards his client.17 The most relevant among them, for our purposes are mentioned below:

1. It shall be the duty of an advocate to fearlessly uphold the interests of his/her client by
all fair and honorable means without regard to any unpleasant consequences to himself
or any other. He/she shall defend a person accused of a crime regardless of his/her
personal opinion as to the guilt of the accused; bearing in mind that his/her loyalty is to
the law which requires that no man should be convicted without adequate evidence.

2. An advocate must seek to assist the client to understand the issues in the case and the
client’s possible rights and obligations, if the advocate is instructed to give advice on
any such matter, sufficiently to permit the client to give proper instructions, particularly
in connection with any compromise of the case.

3. An Advocate shall not make any compromise or concession without the proper and
specific instructions of his/her client.

4. An advocate briefed to appear in criminal proceedings, whose client confesses guilt to

him, but maintains a plea of not guilty:
15
Suk Das v. State of Arunachal Pradesh (1986) 2 SCC 401.
16
D.K. Basu v. State of West Bengal, AIR 1997 SC 610.
17
Available at http://www.barcouncilofindia.org/wp-content/uploads/2010/05/BCIRulesPartVonwards.pdf , last
visited on 5 May, 2021.

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 (a) may return the brief, if there is enough time for another legal practitioner to take over
the case properly before the hearing, and the client does not insist on the advocate
continuing to appear for the client;
(b) in cases where the Advocate keeps the brief for the client:
(i) must not falsely suggest that some other person committed the
offence charged;
(ii) must not set up an affirmative case inconsistent with the
confession; but
(iii) may argue that the evidence as a whole does not prove that the
client is guilty of the offence charged; and
(iv) may argue that for some reason of law the client is not guilty of
the offence charged, or
(v) may argue that for any other reason not prohibited by (i) or (ii) the
client should not be convicted of the offence charged.

5. An advocate whose client informs the advocate that the client intends to disobey a
court’s order must:
(a) advise the client against that course and warn the client of its dangers;
(b) not advise the client how to carry out or conceal that course; but
(c) not inform the court or the opponent of the client’s intention unless -
(i) the client has authorised the advocate to do so beforehand; or
(ii) the advocate believes on reasonable grounds that the client’s
conduct constitutes a threat to any person’s safety.

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 DUTY OF A LAWYER: CONFLICT BETWEEN INTERESTS AND
DUTIES

Common Law provides that it is the duty of a lawyer to preserve his client's confidences,
which duty outlasts the lawyer's employment. When the rule first appeared, it was apparently
based on a consideration for the oath and honor of the lawyer rather than for the apprehension
of the client, but later and in more modern times it was based on the principle that "in order to
promote freedom of consultation of legal advisers by clients, the apprehension of compelled
disclosure by the legal advisers must be removed. 18 The confidence must be preserved
because worse mischief might result from permitting disclosure than from rejecting evidence
of it.19

SCOPE OF CONFLICT
Understanding the ethical principles of the defense advocate enables a lawyer to be true to
himself and yet ably represent one accused of even the most outrageous acts. If a lawyer
cannot accept these ancient principles he should avoid the vital, living excitement of the
criminal trial.20 Further, because of this constitutional injunction, there is absolutely no
conflict between interest and duty in criminal cases. However, some difficult may arise in
case where the accused confesses his guilt to the lawyer.

In Oceanic Life Ltd v HIH Casualty & General Insurance Ltd21 , Austin J said the following:

“In the realm of conflicts of interest and conflicts of duty, the lawyer's duty to the
court may not be much different from his or her fiduciary duties to former and
present clients. However, the duty to the court tends to be expressed in such a way as
to emphasise the public interest in preserving confidence in the administration of
justice and therefore in the appearance as well as the reality of independence, and
the court's practical approach to its supervisory discretions...”

18
Greenough v. Gaskell, 1 Myl. § K. 98, 103 (1833).
19
Williston, Law and Life 272 (1940), (quoting from Lecky, The Map of Life).
20
Buckner, The Trial of Cases, 15 A.BA.J. 271 (1929).
21
Oceanic Life Ltd v HIH Casualty & General Insurance Ltd, [2003] UKHL 6.

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TEST TO DETERMINE CONFLICT OF DUTIES
In Holborow v Macdonald Rudder22 , Heenan J held that if there are circumstances which are
likely to imperil the discharge of duties to a court by a lawyer acting in a cause, whether
because of some prior association with one or more of the parties against whom the lawyer is
then to act, or because of some conduct by the lawyer, whether arising from associations with
the client or a close interest which gives rise to the fair and reasonable perception that the
lawyer may not exercise the necessary independent judgment, a court may conclude that the
lawyer should be restrained from acting.

In R. v. Chen,23 it was stated that the conflict should, of course, be raised at the earliest
practicable stage. If the trial is concluded, the conflict of interest may still be raised at the
appellate level as a ground to set aside the trial judgment, but the test is more onerous
because it is no longer a matter of taking protective steps but of asking for the reversal of a
court judgment. Also, in R. v. Graff, the Alberta Court of Appeal held that in a post-
conviction situation, if an accused is to challenge a conviction or sentence on appeal, he or
she must show more than a possibility of conflict of interest; while actual prejudice need not
be shown, the appellant must demonstrate the conflict of interest and that the conflict
adversely affected the lawyer's performance on behalf of the appellant.

DUTY TOWARDS THE COURT: GENERAL PRINCIPLES

The lawyer's duty to the court is paramount. It is acknowledged that there may be situations
in which this duty is inconsistent with the lawyer’s duty to their client. However, as Mason
CJ observed in Giannerelli v Wraith24 that the duty to the court is paramount and must be
performed, even if the client gives instructions to the contrary. Recognition of the lawyer's
duty to the court does not imply that the duty is owed to a particular judge. The duty is
actually owed to the community in general as a matter of the public interest in the
administration of justice. When it enforces the duty a court will act as a guardian of the due
administration of justice. A breach of the lawyer's duty to the court constitutes unlawful
conduct. Such conduct may not necessarily be unethical. Furthermore, unethical conduct may
not necessarily be unlawful.25

22
Holborow v Macdonald Rudder, [2002] WASC 265.
23
R. v Chen, [2010] EWCA Crim 466.
24
Giannerelli v Wraith (1988) 165 CLR 543, 556.
25
Stovall, Aspects of the Advocate's Dual Responsibility, 22 Ala. Law. 62.

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 Further, a breach of a lawyer's duty to the court is generally the subject of sanction
imposed by summary procedure. A court's jurisdiction to proceed summarily against a lawyer
who has breached his or her duty to the court is punitive, as well as compensatory. Where a
compensatory order is sought against the lawyer, some degree of causal connection needs to
be demonstrated as between the lawyer's conduct complained of and the amount of financial
loss sought to be recovered.

CONFLICTS OF INTEREST BETWEEN CLAIMHOLDERS, LAWYERS AND LITIGATION

ENTREPRENEURS
All agreements that obstruct or affect administration of justice would be treated as invalid
under Section 23 of the Indian Contract Act, 1872. The agreement between a lawyer and his
client is directly concerned with the administration of justice. It is an agreement between a
lawyer, who is an officer of the Court and who is given privilege of audience by the Court,
and his client, who is a suitor in the Court and has a cause to be tried by the Court. If such an
agreement tends either directly or indirectly to affect the administration of justice or sully its
course it would always be declared to be invalid.26

Detachment and objectivity, which are the basis of the strength of the Bar, cannot be retained
when a lawyer agrees to share in the profits of litigation. An agreement between lawyer and
client making the payment of the lawyer’s fees conditional upon the success of the suit and
giving the lawyer an interest in the subject matter of the suit itself, would necessarily tend to
undermine the status of lawyer as a lawyer. Such an agreement has always been condemned
as unworthy of the legal profession and is opposed to a fundamental rule of professional
ethics as was held in the case of In Re K. L. Gauba27 .

An undertaking on the part of the practitioner to bear expenses of litigation on the promise of
the litigant that a certain portion of the net profits of the litigation will be allowed to the
former in case of success is grossly improper under this section. It is grossly improper
professional duty on the part of a practitioner to enter into an a agreement with his client to
give him money and legal aid in consideration of his assigning over to him a part of the
property, the subject matter of the suit, in the event of success. 28 The same view was
expressed by a full bench of the Calcutta High Court in the matter of an advocate. Chief

26
P Ramanatha Aiyer; “Legal and Professional Ethics”; 3rd edition, 2003.
27
In Re, K. L. Gauba, AIR 1954 Bom 478.
28
Solutions to the City Attorney’s Charter: Imposed Conflict of Interest Problem, 66 Ohio State Law Journal
1075.

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Justice Maclean, who delivered the principal judgment of the full bench, observed that it is
professional misconduct for an advocate to agree with his client to accept as his fee for share
of the property, fund or other matter in the litigation for his services as an Advocate in such
litigation upon the successful issue thereof.

RESOLVING CONFLICT: AN ADVOCATES DUTY TOWARDS THE COURT [BAR COUNCIL OF

INDIA, RULES]
Under Section 49(1) (c) of the Advocates Act, 196, the following rules are made by the BCA
enlisting a Lawyers duty towards the court.

1. An advocate shall, during the presentation of his case and while otherwise acting
before a Court, conduct himself with dignity and self-respect. He shall not be servile
and whenever there is proper ground for serious complaint against a judicial officer, it
shall be his right and duty to submit his grievance to proper authorities.
2. An advocate shall not influence the decision of a Court by any illegal or improper
means. Private communications with Judge relating to a pending case are forbidden.
3. An advocate shall use his best efforts to restrain and prevent his client from restoring
to sharp or unfair practices or from doing anything in relation to the Court, opposing
counsel or parties which the advocate himself ought not to do. An advocate shall
refuse to represent the client who persists in such improper conduct.
4. An Advocate shall not appear in or before any Court or Tribunal or any other
authority for or against an organisation or an institution, society or corporation, if he
is a member of the Executive Committee of such organisation or institution or society
or corporation. "Executive Committee," by whatever name it may be called, shall
include any Committee or body of persons which, for the time being, is vested with
the general management of the affairs of the organisation or institution, society or
corporation.
Provided that this Rule shall not apply to such a member appearing as 'amicus
curiae' or without fees in a matter affecting the affairs or a Bar Council.
5. An Advocate should not act or plead in any matter in which he himself is pecuniarily
interested

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 DEFENDING THE ACCUSED/GUILTY – THE RAM JETHMALANI
CODE OF ETHICS

“No tyrannical regime can curtail or destroy the

right of an accused to the services of a lawyer”29
The concept of defending the accused has been a largely debated issue in the light of pre-
existing professional ethics and moral standards that have passed the test of time. However,
the dawn of the new century has given rise to a new set of standards with regard to the ethical
and moral correctness of arguing on behalf of the guilty. This new set of standards came from
the legal fraternity itself. To be more specific, it came from the roaring lion of the Bar itself.
Senior Advocate Ram Jethmalani was never a name that was restricted to the legal fraternity.
This advocate’s profoundness and professional strategies are well known worldwide.

When lawyers, both eminent and upcoming, hesitated ethically and for social reasons from
defending the accused in various high end criminal cases, this Doyen of the Bar, as suggested
by the title, created the new ‘Ram Jethmalani Code of Ethics’ that governs a lawyer’s duty
towards defending the accused.

He has represented a sweep of cases from the high-profile to the controversial for which he
has often faced severe criticism. The major criminal cases in which Mr.Jethmalani appeared
for the accused are as follows: L.K Advani in Hawala Scam, Manu Sharma in the Jessica
Lall murder case, Lalit Modi former IPL Chairman and Commissioner in the IPL scam,
Defence of Rajiv Gandhi's killers in Madras High Court in year 2011, Harshad Mehta in
stock market scam, Ketan Parekh in stock market scam and Amit Shah (Gujarat's former
Minister of State for Home) in Sohrabuddin fake encounter case.

Let us now analyse the ‘Ram Jethmalani Code of Ethics’. According to him, “I decide
according to my conscience who to defend. A lawyer who refuses to defend a person on the
grounds that people believe him to be guilty is himself guilty of professional misconduct." He

29
Ram Jethmalani.

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also said: "There is the express rule of the Bar Council of India that no lawyer shall refuse to
defend a person on the grounds that it will make him unpopular”.30

It is pertinent to note that Jethamalani firmly believed that a lawyer should advise his client
on the basis of facts alone and not just because he is the accused. I wonder how Ram
Jethmalani would have reacted to the Mumbai 26/11 attacks case. It was perhaps the call of
conscience that prevented Dinesh Mota from taking up the case of arrested Mumbai attacker
Ajmal Kasab. Not just him, even lawyers who have defended other terror accused in Mumbai
feel it would be immoral to defend this case. Jethamlani’s reply was that according to the law,
Ajmal had the legal right to defence and hence one of the lawyers would have had to take up
the case.

In another instance where Jethmalani was defending Manu Sharma in the Jessica Lal Murder
case, the media was behind his back all the time until he openly critics the media by saying
that: “Who the hell is the Press to decide who is indefensible? Please don’t talk of this
bullshit to me”. In this case Jethmalani had received immense criticism from his brothers and
sisters in the Bar. For example Senior Counsel Kamini Jaiswal stated that there was no reason
for a lawyer of Jethmalani’s to have taken up such a case that had attracted public wrath. 31
Her point was stressed on the fact that why take a matter like this, especially where the public
perception is that there has been a travesty of justice? I am certain that the Ram Jethmalani
Code of Ethics would not even be affected by these aspects! 32 However, Attorney General
Mr. Mukul Rohatgi had then praised Jethmalani for his actions in the following words: "I
entirely agree with him. It is for a  lawyer to decide as to which case he will take. It is not
anybody’s job to either influence that decision or go brouhaha and say that on TV. Every
accused whether in a murder case, a case of terrorism, in a case of sedition or in a case of a
crime against the nation, is entitled to the defence that he wants.”

In such cases one is left to think about the moral dilemma of a lawyer. According to
Jethmalanai there cannot be any kind of dilemma. It is simple professional duty when a
lawyer defends a client when he is asked to, be it any client. “That’s the ethics by which we
are governed and that’s how we should take up the cases", says the Ram Jethmalani Code of

30
NO LAWYER CAN REFUSE TO DEFEND AN ACCUSED: JETHMALANI, 2008, IBN LIVE.
31
Devil’s Advocate, Mr. Ram Jethmalani, 2006, To Each its Own, available at
http://sakshijuneja.com/blog/2006/11/03/devil%E2%80%99s-advocate-mr-ram-jethmalani/
32
Defence of the Despised in Conscience of a Maverick, Ram Jethmalani (2006, UBS Publications).

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Ethics. Even we agree that the neither public nor media has the right to decide whether a
public person is guilty or not. No one knows for sure unless the final court decides who’s
guilty.
It has to be concluded that defending the accused is not a morally low duty of a lawyer. It has
to be understood that under law, such accused are not convicted for the crime until they have
been convicted by the Court. Therefore, lawyers in India cannot refuse to take up a client. It's
unconstitutional and against their professional code of conduct.

It is significant to note that Article 22(1) of the Constitution states that no person who is
arrested shall be detained in custody without being informed, as soon as may be, of the
grounds for which arrest nor shall he be denied the right to consult, and to be defended by, a
legal practitioner of his choice.

This issue was dealt with in the matter of A. S. Mohammed Rafi v State of Tamil Nadu &
Ors.33 In this case, the Court made the following observations: “Professional ethics requires
that a lawyer cannot refuse a brief, provided a client is willing to pay his fee, and the lawyer
is not otherwise engaged. Hence, the action of any Bar Association in passing such a
resolution that none of its members will appear for a particular accused, whether on the
ground that he is a policeman or on the ground that he is a suspected terrorist, rapist, mass
murderer, etc. is against all norms of the Constitution, the Statute and professional ethics. It
is against the great traditions of the Bar which has always stood up for defending persons
accused for a crime.”

The society has to understand that in a country like India which is governed by the Rule of
Law, a person’s guilt is for the courts alone to decide. Until the judicial process is over, no
accused can be said to be not innocent. The law presumes such a situation. In that light, the
Ram Jethmalani Code of the Ethics is a sacred text for the upcoming lawyers and
practitioners to promote their professional values and duties without any moral fear.

33
Judgment passed on December 6th, 2010.

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 CONCLUSION

From a legal viewpoint there appears to be little doubt that an attorney may defend one whom
he knows to be guilty of the offense charged. In fact, it may be even said that in certain
circumstances there is a duty to defend one accused of crime, regardless of the attorney’s
personal opinion of the guilt. Both the Federal 34 and numerous state constitutions35 give one
accused of crime the right to the assistance of counsel. Perhaps the basic principle of such
constitutional provisions may be summed up as follows:

“Every man, accused of an offense, has a constitutional right to a trial according to law;
even if guilty, he ought not to be convicted and undergo punishment unless upon legal
evidence; and with all the forms which have been devised for the security of life and
liberty.”36

Without the assistance of counsel, many, if not all, of the rights guaranteed to an accused
would be mere paper rights, lacking substance and meaning. The right to assistance of
counsel is itself a substantial right,37 the denial of which is grounds for reversal of a
conviction. Nor can it be said that the right to counsel is only the right of an innocent man;
there would appear to be little doubt that even a guilty defendant is entitled to a fair trial. 38
This being so, it is the duty of the defence counsel to assure that the accused is given a fair
trial,39 be he guilty or innocent in the eyes of the attorney or the public. 40 There is no duty
upon the defence counsel to aid the prosecution in its case, for the accused has the right to
have his guilt, if any, determined by the court and jury.41

The state having the burden of proof,42 the defence is under no duty to come forth with
incriminating evidence. The prosecution, however, has a double duty; the District Attorney
must not only attempt to make the case for the State, but he must also come forth with any

34
U.S. CONSTITUTION, Art. 6.
35
WIS. CONSTITUTION, Art. I, Sec. 7; CONSTITUTION OF MICHIGAN of 1908, Art. II, Sec. 19;
ILLINOIS CONSTITUTION, Art. II, Sec. 8.
36
See Note 3 supra.
37
State ex rel. Traister v. M1ahoney, 196 Wis. 113, 219 N.W. 380 (1928).
38
Fischer v. State, 226 Wis. 390, 276 N.W. 640 (1937).
39
State v. Barto, 202 Wis. 329, 232 N.W. 553 (1930).
40
State ex re. Drankovich v. Murphy, 248 Wis. 433.
41
Lonergan v. State, 111 Wis. 453, 87 N.W. 455 (1901) ; 'Melli v. State, 220 Wis. 419, 265 N.V. 79 (1936);
Parke v. State, 204 Wis. 443, 235 N.W. 775 (1931).
42
Fraccaro v. State, 189 Wis. 428, 207 N.W. 687 (1926).

Page | 23
facts tending to show the innocence of the accused. 43 This is just one example of the
numerous safeguards set up to protect the innocent. However, such safeguards are available
to the guilty as well. For it must be remembered that guilt is a legal concept, and not a
subjective determination made by a lawyer or the public at large, and until an accused is
found guilty by a court, he is entitled to all the safeguards and protections afforded by law.

SUMMARY

Thus, a lawyer in undertaking the defence of a “guilty” accused is merely acting in

accordance with his oath as an attorney to uphold the constitution and laws of the land. It is
the unique role of an attorney as defence counsel to be engaged not only in the defence of the
rights of his individual client, but in the defence of the rights of each and every citizen of the
land. If the courts can deprive even the most despised accused of his rights as a citizen then
may it also deprive the bulk of the citizenry of the rights afforded them under the
constitution. For such rights are worthless unless the courts will enforce them and the lawyers
protect them.

There is little question, if any, as to the right of an accused to a fair trial and assistance of
counsel. The difficulty arises in the moral issues involved in the defence of one who has
admitted his guilt. However, personally repugnant the particular case may be to the individual
attorney, it must always be remembered that even the most wayward of citizens have rights
which must be protected. Chief among which are the right to a fair trial and "due process" of
law. The protection of such rights is a moral act the accomplishment of which is an art
peculiar to attorneys. It is not only the attorney's singular ability to protect such rights but
also his duty as a member of a profession dedicated to justice. The attorney need feel no
reluctance, on moral grounds, to undertake the defence of an accused; rather, he should
undertake such a task in a spirit of service to his profession, his fellow citizens and his
country.

43
O'Neil v. State, 189 Wis. 259, 207 N.W. 280 (1926).

Page | 24
Page | 25
 BIBLIOGRAPHY

Cases

Melli v. State, 220 Wis. 419, 265 N.V. 79 (1936);...................................................................24

Abse and Others v Smith and Another, [1986] CA..................................................................13
D.K. Basu v. State of West Bengal, AIR 1997 SC 610............................................................14
Fischer v. State, 226 Wis. 390, 276 N.W. 640 (1937).............................................................24
Fraccaro v. State, 189 Wis. 428, 207 N.W. 687 (1926)..........................................................24
Giannerelli v Wraith (1988) 165 CLR 543, 556......................................................................17
Greenough v. Gaskell, 1 Myl. § K. 98, 103 (1833)..................................................................16
Hilton v. Barker, [2005] 1 All ER 651.....................................................................................12
Holborow v Macdonald Rudder, [2002] WASC 265...............................................................16
In Re, K. L. Gauba, AIR 1954 Bom 478..................................................................................18
Khatri-ii v. State of Bihar (1981) 1 SCC 635...........................................................................14
Lonergan v. State, 111 Wis. 453, 87 N.W. 455 (1901)............................................................24
Mohd. Hussian @ Julfikar Ali v. The State(Govt. of NCT) Delhi, AIR 2013 SC 3860...........12
Moody v Cox, [1917] 2 Ch 71..................................................................................................12
O'Neil v. State, 189 Wis. 259, 207 N.W. 280 (1926)...............................................................24
Oceanic Life Ltd v HIH Casualty & General Insurance Ltd, [2003] UKHL 6........................16
Parke v. State, 204 Wis. 443, 235 N.W. 775 (1931)................................................................24
R. v Chen, [2010] EWCA Crim 466........................................................................................17
State ex re. Drankovich v. Murphy, 248 Wis. 433...................................................................24
State ex rel. Traister v. M1ahoney, 196 Wis. 113, 219 N.W. 380 (1928)...............................24
State v. Barto, 202 Wis. 329, 232 N.W. 553 (1930)................................................................24
Suk Das v. State of Arunachal Pradesh (1986) 2 SCC 401.....................................................14

Articles

Buckner, The Trial of Cases, 15 A.BA.J. 271 (1929)..............................................................16

Cutler, “Is a Lawyer Bound to Support an Unjust Cause? A problem of Ethics”, 38 A.B.A.J.
300, at 301..............................................................................................................................6
Defence of the Despised in Conscience of a Maverick, Ram Jethmalani...............................21
Devil’s Advocate, Mr. Ram Jethmalani, 2006, To Each its Own,...........................................21

Page | 26
Michael Asimow, When the Lawyer Knows the Client is Guilty: Legal Ethics, and Popular
Culture, March 2006............................................................................................................13
Stovall, Aspects of the Advocate's Dual Responsibility, 22 Ala. Law. 62..............................17

Books

Chandrasekharan Pillai, R.V. KELKAR’S ON CRIMINAL LAW, (4th Edition, Eastern Book

Company, 2007)...................................................................................................................13
Father Henry Davis, S.J., MORAL AND PASTORAL THEOLOGY at 382 (Sheed and
Ward, New York, N.Y. 1943)................................................................................................5
George Sharswood, L.L.D., PROFESSIONAL ETHIcs, at 105 (The Goe. T. Bisel Co.,
Philadelphia, Pa., 1907)..........................................................................................................5
Henry S. Drinker. LEGAL ETHICS, (New York: Columbia University Press, 1953) pp. xxii,
448........................................................................................................................................12
P Ramanatha Aiyer; “Legal and Professional Ethics”; 3rd edition, 2003................................18
Williston, Law and Life 272 (1940),........................................................................................16

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