PROFESSIONAL ETHICS NOTES
Contents
Week 1-2- Philosophy, Morality etc............................................................................................................4
Plato’s Apology of Socrates.....................................................................................................................4
Plato’s Meno............................................................................................................................................5
‘Should Lawyers listen to Philosophers about Legal Ethics?’- MBE Smith...........................................6
‘If Philosophical Legal Ethics is the Answer, What is the Question?’, Alice Woolley..........................7
Week 3 – Legal Education...........................................................................................................................8
Week 4- Lawyer-Client Relationships.......................................................................................................13
Charles Fried, The Lawyer as a Friend..................................................................................................13
Paul Lannon, A Lawyer In Pursuit Of Truth and Unity: Mohandas Gandhi and the Private Practice of
Law........................................................................................................................................................15
Wasserstrom, “Lawyers as Professionals: Some Moral Issues”............................................................18
Wasserstrom considers two classes of criticism for the professional role of the lawyer:......................18
I. “The lawyer‐client relationship renders the lawyer at best systematically amoral and at worst more
than occasionally immoral in his or her dealings with the rest of mankind.” This is a worry about “the
lawyer’s stance toward the world at large.”...........................................................................................18
II. “The lawyer‐client relationship ... is morally objectionable because it is a relationship in which the
lawyer dominates and in which the lawyer typically, and perhaps inevitably, treats the client in both
an impersonal and a paternalistic fashion.” This is a worry about the relationship between the lawyer
and the client..........................................................................................................................................18
I. Wasserstrom characterizes the moral thorniness of the lawyer’s position to her role as a
professional: it reflects the lawyer’s peculiar “role‐differentiated behavior”:.......................................18
“It is in the nature of role‐differentiated behavior that it often makes it both appropriate and desirable
for the person in a particular role to put to one side considerations of various sorts – and especially
various moral considerations – that would otherwise be relevant if not decisive.”...............................18
“Role‐differentiated behavior often alters, if not eliminates, the significance of those moral
considerations that would obtain, were it not for the presence of the role.”..........................................18
Wasserstrom argues that the burden of proof should fall on the proponent of role differentiated
behavior to establish that such behavior is desirable.............................................................................18
Roledifferentiated behavior and the role of the lawyer.........................................................................18
Wasserstrom: When an attorney‐client relationship exists, the lawyer may often be permitted or even
required to do things which s/he would not be permitted to do were it not for that relationship, e.g.:. 18
“Once a lawyer represents a client, the lawyer has a duty to make his or her expertise fully available
in the realization of the end sought by the client, irrespective, for the most part, of the moral worth to
1
,which the end will be put or the character of the client who seeks to utilize it. Provided that the end
sought is not illegal, the lawyer is in essence an amoral technician whose peculiar skills and
knowledge in respect to the law are available to those with who the relationship of client is
established.” Examples:.........................................................................................................................18
A lawyer, once she or he agrees to represent a client charged with a crime, is obligated to do his or her
best to defend that client at trial, regardless of the lawyer’s belief in the client’s innocence................18
Two questions: if lawyers agree to take a trial, are they then obligated to provide the best defense? v.
are lawyers morally justified in taking on the defense of a person they believe to be guilty?..............18
Other examples: we may need, e.g., CBI interrogators, but should we want to become them?............18
A lawyer may be required (or permitted), in the course of defending a client, to make use of practices
and procedures that are themselves morally objectionable and that the lawyer would disapprove of
were she not charged with providing her client with the best defense she can, e.g.:.............................18
Defending a client the lawyer believes to be guilty...............................................................................18
Wasserstrom’s example: insisting the accuser in a rape case undergo a psychiatric examination (no
longer permitted by law, but was at the time Wasserstrom wrote the article).......................................18
Other examples: ruthless cross‐examination of accuser in a rape trial designed to throw doubt on her
testimony (e.g. by questioning her about her sexual history)................................................................18
Again, we should differentiate between the moral reasons a lawyer has to take a case, and the reasons
she has once she’s taken the case...........................................................................................................18
Defending the lawyer’s roledifferentiated moral obligations................................................................19
The argument from the value of the system:.........................................................................................19
Wasserstrom: “It is good ... that the lawyer’s behavior and concomitant point of view are role‐
differentiated because the lawyer qua lawyer participates in a complex institution which functions
well only if the individuals adhere to their institutional roles.”.............................................................19
This secures legal justice: the amoral role of the lawyer “guarantees every criminal defendant … his
or her day in court;” otherwise, “the private judgment of individual lawyers would in effect be
substituted for the public, institutional judgment of the judge and jury.”.............................................19
It secures the effectiveness of the system: “The adversary system … is simply a better method than
any other that has been established by which to determine the legally relevant facts in any given case.
It is certainly a better method than the exercise of private judgment by any particular individual.”....19
These arguments can only work if people believe in the legal institution and have more confidence in
them than they do in their individual capacity.......................................................................................19
Any other system would be undemocratic: “If lawyers were to substitute their own private views of
what ought to be legally permissible and impermissible for those of the legislature, this would
constitute a surreptitious and undesirable shift from a democracy to an oligarchy of lawyers.”..........19
These are the considerations that the author finds sufficient to justify the behavior of criminal defense
lawyer in different roles: “Because a deprivation of liberty is so serious, because the prosecutorial
resources of the state are so vast, and because, perhaps, of a serious skepticism about the rightness of
2
, punishment even where wrongdoing has occurred, it is easy to accept the view that it makes sense to
charge the defense counsel with the job of making the best possible case for the accused— without
regard, so to speak, for the merits. This coupled with the fact that it is an adversarial proceeding
succeeds, I think, in justifying the amorality of the criminal defense counsel.”...................................19
Other difficulties presented by the role‐differentiated behavior of lawyers:.........................................19
“It is clear that there are definite character traits that the professional such as the lawyer must take on
if the system is to work. What is less clear is that they are admirable ones.” He mentions
competitiveness, aggressiveness, pragmatism, and ruthlessness...........................................................19
That is, even if it’s best that we have such lawyers, because of the value of the system, can lawyers
occupying these roles still be virtuous?.................................................................................................19
Wasserstrom clearly also worries about the possible corrupting effects of the legal profession (the
Watergate example): a gradual wearing down of sensitivity to moral boundaries................................19
Wasserstrom also argues that the role‐differentiated behavior of lawyers puts their “integrity” into
question in a way that the role‐differentiated behavior of most other professions does not. That’s
because a lawyer acts as an agent and spokesman for his clients in a way that a doctor, for example,
does not act as an agent. A doctor must put her patient’s interests first, but she needn’t act as an
extension of her patient’s will, as a lawyer does:..................................................................................19
The lawyer must aim to explain, persuade and convince others that the client’s cause should prevail,
whether or not she believes this. This arguably involves the lawyer in hypocrisy................................20
She also becomes an active part in a project she may not believe in – this may compromise her
integrity..................................................................................................................................................20
II. Wasserstrom’s second concern: moral problems in the lawyerclient relationship...........................20
Wasserstrom also argues that the professional role of lawyers puts them in danger of forming morally
problematic relations with their clients: paternalistic relations in which they take themselves to be the
best judges of their clients interests even beyond the area of their expertise, and in which they prevent
their clients from making informed judgments about their own cases..................................................20
This is familiar also from our dealings with professionals of other sorts (e.g., doctors).......................20
Week 5- Statutory Provisions....................................................................................................................20
Legal Ethics in an Adversary System: The Persistent Questions (Deborah L. Rhode).........................20
Professional Responsibility of the Criminal Defense Lawyer: Three Hardest Questions (Monroe
Freedman)..............................................................................................................................................22
Week 6- Institutions and Structural Framework – Consumer Protection..................................................27
The Myth of Self-Regulation- Fred Zacharias.......................................................................................27
Can a Reasonable Doubt Have an Unreasonable Price? Limitations on Attorneys’ Fee in Criminal
Cases Gabriel J. Chin & Scott C. Wells.................................................................................................30
Fees and Retainers from Raju Ramachandran’s Professional Ethics for Lawyers (Lexis Nexis), 2nd
Edition, pp. 37 – 53................................................................................................................................33
3
, Indian Medical Association v. VP Shanta 1996 AIR 550 SC................................................................35
Jacob Mathew v. State of Punjab and Anr.............................................................................................37
DK Gandhi v. M Mathias.......................................................................................................................39
B Sunitha v. State of Telangana.............................................................................................................39
Week 8- Contempt of Court.......................................................................................................................40
E.M.S Namboodiripad v. T. Narayanan Nambiyar AIR 1970 SC 2015................................................40
In Re. V. C. Mishra AIR 1995 SC 2348................................................................................................42
Supreme Court Bar Association v. Union of India AIR 1998 SC 1895................................................44
What Constitutes Scandalising the Court? V. Venkatesan, Frontline (May, 2001)..............................46
Contempt of Court- Need for a Second Look, Katju, Hindu (Jan, 2007)..............................................46
Week 9- Adjournments..............................................................................................................................48
Shiv Cotex v. Tirgun Auto Plast Pvt. Ltd..............................................................................................48
Ramrameshwari Devi v. Nirmala Devi..................................................................................................48
240th Law Commission Report on Costs of Civil Litigation................................................................50
Week 10- Right to Strike by Lawyers........................................................................................................51
Week 11- Advertising................................................................................................................................55
Hazard, Pearce and Stempel- Why Lawyers Should be allowed to Advertise: A Market Analysis of
Legal Services........................................................................................................................................55
Right to Advertise, Raju Ramachandran...................................................................................................57
Bar Council of Maharashtra v. MC Dabholkar (BCI r 36, Advocates Act s. 35)..................................59
Week 1-2- Philosophy, Morality etc.
Plato’s Apology of Socrates
Context
This text is Socrates’ defence before a jury for two crimes for which he was being prosecuted. The context in which this
monologue is based is that Socrates lived in a society which gave us the first model of democracy (Athens, Greece).
However, the State did not like that Socrates was teaching the public, especially the youth, to question authority. The
irony in this defence is that he was not apologising at all.
The way in which Socrates taught his students was directly in contradiction to the Sophist tradition. The Sophists taught
their students the art of rhetoric, and were an established institution where young people went to learn. They were
accepted as the wisest members of society. Meletus, a Sophist, went to the Oracle of Delphi to ask her who the wisest
man is. She said that the wisest man is Socrates.
However, Socrates did not agree with this and made it his mission to prove the Oracle wrong. As a result, he goes around
quizzing the many members of society (Sophists, poets, artisans, etc.) on their craft to show that they are wiser than he is.
4
Contents
Week 1-2- Philosophy, Morality etc............................................................................................................4
Plato’s Apology of Socrates.....................................................................................................................4
Plato’s Meno............................................................................................................................................5
‘Should Lawyers listen to Philosophers about Legal Ethics?’- MBE Smith...........................................6
‘If Philosophical Legal Ethics is the Answer, What is the Question?’, Alice Woolley..........................7
Week 3 – Legal Education...........................................................................................................................8
Week 4- Lawyer-Client Relationships.......................................................................................................13
Charles Fried, The Lawyer as a Friend..................................................................................................13
Paul Lannon, A Lawyer In Pursuit Of Truth and Unity: Mohandas Gandhi and the Private Practice of
Law........................................................................................................................................................15
Wasserstrom, “Lawyers as Professionals: Some Moral Issues”............................................................18
Wasserstrom considers two classes of criticism for the professional role of the lawyer:......................18
I. “The lawyer‐client relationship renders the lawyer at best systematically amoral and at worst more
than occasionally immoral in his or her dealings with the rest of mankind.” This is a worry about “the
lawyer’s stance toward the world at large.”...........................................................................................18
II. “The lawyer‐client relationship ... is morally objectionable because it is a relationship in which the
lawyer dominates and in which the lawyer typically, and perhaps inevitably, treats the client in both
an impersonal and a paternalistic fashion.” This is a worry about the relationship between the lawyer
and the client..........................................................................................................................................18
I. Wasserstrom characterizes the moral thorniness of the lawyer’s position to her role as a
professional: it reflects the lawyer’s peculiar “role‐differentiated behavior”:.......................................18
“It is in the nature of role‐differentiated behavior that it often makes it both appropriate and desirable
for the person in a particular role to put to one side considerations of various sorts – and especially
various moral considerations – that would otherwise be relevant if not decisive.”...............................18
“Role‐differentiated behavior often alters, if not eliminates, the significance of those moral
considerations that would obtain, were it not for the presence of the role.”..........................................18
Wasserstrom argues that the burden of proof should fall on the proponent of role differentiated
behavior to establish that such behavior is desirable.............................................................................18
Roledifferentiated behavior and the role of the lawyer.........................................................................18
Wasserstrom: When an attorney‐client relationship exists, the lawyer may often be permitted or even
required to do things which s/he would not be permitted to do were it not for that relationship, e.g.:. 18
“Once a lawyer represents a client, the lawyer has a duty to make his or her expertise fully available
in the realization of the end sought by the client, irrespective, for the most part, of the moral worth to
1
,which the end will be put or the character of the client who seeks to utilize it. Provided that the end
sought is not illegal, the lawyer is in essence an amoral technician whose peculiar skills and
knowledge in respect to the law are available to those with who the relationship of client is
established.” Examples:.........................................................................................................................18
A lawyer, once she or he agrees to represent a client charged with a crime, is obligated to do his or her
best to defend that client at trial, regardless of the lawyer’s belief in the client’s innocence................18
Two questions: if lawyers agree to take a trial, are they then obligated to provide the best defense? v.
are lawyers morally justified in taking on the defense of a person they believe to be guilty?..............18
Other examples: we may need, e.g., CBI interrogators, but should we want to become them?............18
A lawyer may be required (or permitted), in the course of defending a client, to make use of practices
and procedures that are themselves morally objectionable and that the lawyer would disapprove of
were she not charged with providing her client with the best defense she can, e.g.:.............................18
Defending a client the lawyer believes to be guilty...............................................................................18
Wasserstrom’s example: insisting the accuser in a rape case undergo a psychiatric examination (no
longer permitted by law, but was at the time Wasserstrom wrote the article).......................................18
Other examples: ruthless cross‐examination of accuser in a rape trial designed to throw doubt on her
testimony (e.g. by questioning her about her sexual history)................................................................18
Again, we should differentiate between the moral reasons a lawyer has to take a case, and the reasons
she has once she’s taken the case...........................................................................................................18
Defending the lawyer’s roledifferentiated moral obligations................................................................19
The argument from the value of the system:.........................................................................................19
Wasserstrom: “It is good ... that the lawyer’s behavior and concomitant point of view are role‐
differentiated because the lawyer qua lawyer participates in a complex institution which functions
well only if the individuals adhere to their institutional roles.”.............................................................19
This secures legal justice: the amoral role of the lawyer “guarantees every criminal defendant … his
or her day in court;” otherwise, “the private judgment of individual lawyers would in effect be
substituted for the public, institutional judgment of the judge and jury.”.............................................19
It secures the effectiveness of the system: “The adversary system … is simply a better method than
any other that has been established by which to determine the legally relevant facts in any given case.
It is certainly a better method than the exercise of private judgment by any particular individual.”....19
These arguments can only work if people believe in the legal institution and have more confidence in
them than they do in their individual capacity.......................................................................................19
Any other system would be undemocratic: “If lawyers were to substitute their own private views of
what ought to be legally permissible and impermissible for those of the legislature, this would
constitute a surreptitious and undesirable shift from a democracy to an oligarchy of lawyers.”..........19
These are the considerations that the author finds sufficient to justify the behavior of criminal defense
lawyer in different roles: “Because a deprivation of liberty is so serious, because the prosecutorial
resources of the state are so vast, and because, perhaps, of a serious skepticism about the rightness of
2
, punishment even where wrongdoing has occurred, it is easy to accept the view that it makes sense to
charge the defense counsel with the job of making the best possible case for the accused— without
regard, so to speak, for the merits. This coupled with the fact that it is an adversarial proceeding
succeeds, I think, in justifying the amorality of the criminal defense counsel.”...................................19
Other difficulties presented by the role‐differentiated behavior of lawyers:.........................................19
“It is clear that there are definite character traits that the professional such as the lawyer must take on
if the system is to work. What is less clear is that they are admirable ones.” He mentions
competitiveness, aggressiveness, pragmatism, and ruthlessness...........................................................19
That is, even if it’s best that we have such lawyers, because of the value of the system, can lawyers
occupying these roles still be virtuous?.................................................................................................19
Wasserstrom clearly also worries about the possible corrupting effects of the legal profession (the
Watergate example): a gradual wearing down of sensitivity to moral boundaries................................19
Wasserstrom also argues that the role‐differentiated behavior of lawyers puts their “integrity” into
question in a way that the role‐differentiated behavior of most other professions does not. That’s
because a lawyer acts as an agent and spokesman for his clients in a way that a doctor, for example,
does not act as an agent. A doctor must put her patient’s interests first, but she needn’t act as an
extension of her patient’s will, as a lawyer does:..................................................................................19
The lawyer must aim to explain, persuade and convince others that the client’s cause should prevail,
whether or not she believes this. This arguably involves the lawyer in hypocrisy................................20
She also becomes an active part in a project she may not believe in – this may compromise her
integrity..................................................................................................................................................20
II. Wasserstrom’s second concern: moral problems in the lawyerclient relationship...........................20
Wasserstrom also argues that the professional role of lawyers puts them in danger of forming morally
problematic relations with their clients: paternalistic relations in which they take themselves to be the
best judges of their clients interests even beyond the area of their expertise, and in which they prevent
their clients from making informed judgments about their own cases..................................................20
This is familiar also from our dealings with professionals of other sorts (e.g., doctors).......................20
Week 5- Statutory Provisions....................................................................................................................20
Legal Ethics in an Adversary System: The Persistent Questions (Deborah L. Rhode).........................20
Professional Responsibility of the Criminal Defense Lawyer: Three Hardest Questions (Monroe
Freedman)..............................................................................................................................................22
Week 6- Institutions and Structural Framework – Consumer Protection..................................................27
The Myth of Self-Regulation- Fred Zacharias.......................................................................................27
Can a Reasonable Doubt Have an Unreasonable Price? Limitations on Attorneys’ Fee in Criminal
Cases Gabriel J. Chin & Scott C. Wells.................................................................................................30
Fees and Retainers from Raju Ramachandran’s Professional Ethics for Lawyers (Lexis Nexis), 2nd
Edition, pp. 37 – 53................................................................................................................................33
3
, Indian Medical Association v. VP Shanta 1996 AIR 550 SC................................................................35
Jacob Mathew v. State of Punjab and Anr.............................................................................................37
DK Gandhi v. M Mathias.......................................................................................................................39
B Sunitha v. State of Telangana.............................................................................................................39
Week 8- Contempt of Court.......................................................................................................................40
E.M.S Namboodiripad v. T. Narayanan Nambiyar AIR 1970 SC 2015................................................40
In Re. V. C. Mishra AIR 1995 SC 2348................................................................................................42
Supreme Court Bar Association v. Union of India AIR 1998 SC 1895................................................44
What Constitutes Scandalising the Court? V. Venkatesan, Frontline (May, 2001)..............................46
Contempt of Court- Need for a Second Look, Katju, Hindu (Jan, 2007)..............................................46
Week 9- Adjournments..............................................................................................................................48
Shiv Cotex v. Tirgun Auto Plast Pvt. Ltd..............................................................................................48
Ramrameshwari Devi v. Nirmala Devi..................................................................................................48
240th Law Commission Report on Costs of Civil Litigation................................................................50
Week 10- Right to Strike by Lawyers........................................................................................................51
Week 11- Advertising................................................................................................................................55
Hazard, Pearce and Stempel- Why Lawyers Should be allowed to Advertise: A Market Analysis of
Legal Services........................................................................................................................................55
Right to Advertise, Raju Ramachandran...................................................................................................57
Bar Council of Maharashtra v. MC Dabholkar (BCI r 36, Advocates Act s. 35)..................................59
Week 1-2- Philosophy, Morality etc.
Plato’s Apology of Socrates
Context
This text is Socrates’ defence before a jury for two crimes for which he was being prosecuted. The context in which this
monologue is based is that Socrates lived in a society which gave us the first model of democracy (Athens, Greece).
However, the State did not like that Socrates was teaching the public, especially the youth, to question authority. The
irony in this defence is that he was not apologising at all.
The way in which Socrates taught his students was directly in contradiction to the Sophist tradition. The Sophists taught
their students the art of rhetoric, and were an established institution where young people went to learn. They were
accepted as the wisest members of society. Meletus, a Sophist, went to the Oracle of Delphi to ask her who the wisest
man is. She said that the wisest man is Socrates.
However, Socrates did not agree with this and made it his mission to prove the Oracle wrong. As a result, he goes around
quizzing the many members of society (Sophists, poets, artisans, etc.) on their craft to show that they are wiser than he is.
4
