A nasty joke, on the net, asked the question: ‘What is the difference between a lawyer and a leech?’ Said it had something to do with Draculan haemel-imbibing practices. Two out of three, maybe 99 out of 100, will applaud. One can almost hear sighs of happiness. Is it true? Are lawyers a law unto themselves? Is there is no code of conduct? And, if so, can it be enforced? Please refer to a statute called The Advocates Act, 1961. It is free and on the net.
Knowledge of the law will suffice, to avoid outright confrontation, if not acrimony. We try and bring you such applications of the law.
Ten years ago, freshly minted, we had a lawyer as a client in a crime matter, of the short-fuse, impatient type. The accused were octogenarians, stationed far away. Our man had wanted them brought to Mumbai. The foursome, reduced to a trio following one natural departure, had resisted the move. We now entered the fray, only to be confronted by a fearsome defence attorney. We had few cards to play.
The opposing lawyer had represented our client previously. We protested at his presence in this case. The lawyer countered that this was a different matter. We submitted that the parties were the same and so was the cause, rather similar.
You be the judge. Whom would you favour, us or the other lawyer?
The lawyer put forward two more appeals. One, that he would not get his fees and, two, his replacement would be tougher than he. Scare tactics were but water on a duck’s back. We continued to resist; especially when it came to our knowledge that the new, proposed advocate had previously played a counsellor’s role.
You be the judge.
Though the matter was resolved peacefully, we had made a point. A lawyer, having represented a person, cannot then plead for the opponent. That is the law. Whatever a client says to his advocate is privileged. It cannot be used to the detriment of his client. Point taken; but our matter did not end there, as we will see later.
The question that usually arises when lawyers are appointed after being on the other side; but in new matters involving the same litigants. Ethically, we personally believe that it must be avoided. When the stakes are high, fees astronomical, and the future rosy with well-heeled clients, elasticity becomes the key. A little bending here, a curvature there, all excuses, not explanations, may seek justification. The dividing line, between the legally correct and the morally justified, becomes blurred.
The law is more strict for judges; rightly so. As an advocate, he may have litigated, or represented, a person. As a judge he cannot take up that person’s matters. He ‘recuses’ himself. This applies not only to professional practice, but extends to family relations, even friendships. If one finds any sort of ‘bonding’, he may ask for another bench. Not on some shaky advice, like the judge not being to your advocate’s liking. Avoid ill-founded collision with the bench. If a judge is assigned a matter, he has the jurisdiction and, more importantly, he must exercise it. We are not there to compare ‘janma-patrikas’.
In our matter, the accused appointed a new counsel. He failed to turn up and we got the ‘tareek-pe-tareek’ treatment and a lot of flak from our horse-mounted client, wanting full gallop. After three months and adjournments, we put our foot down. The opposition’s junior lawyer was warned to produce the counsel ‘within one hour’. He did.
With the counsel came the first, now recused, advocate, advising him at every instance. Wrong move. No lawyer can argue with incessant prompting. We picked on just one point, crucial, and won the day, forcing the other side to settle. Yet, after all these years, one question remains unanswered. Was it correct on their part?
You be the judge. And let us know.