Professional Ethics & Bar - Bench Relations: BA, LL.B. 2013-18 BBA LLB 2013-2018 LL.B 2015 - 18
Professional Ethics & Bar - Bench Relations: BA, LL.B. 2013-18 BBA LLB 2013-2018 LL.B 2015 - 18
Professional Ethics & Bar - Bench Relations: BA, LL.B. 2013-18 BBA LLB 2013-2018 LL.B 2015 - 18
The information herein is provided by the Course Coordinator. This syllabus should be viewed as
a general guide and may be revised during the course of the semester.
Part I
Course Code:
Level: BA LL.B.
Pre-requisites: Nil
Pre-cursors: Nil
A. Course description
This course will analyse the professional ethics as prescribed by the Bar Council of India, in
addition to covering critical readings in the area. The Course shall introduce (a) the regulation
of the legal profession as per the Advocates Act, 1961 and other statutes, and (b) the ethical
underpinning of legal rules. One module of the syllabus will also focus on Indian case laws as
well as global debates in the field of legal ethics so as to make the course comparative and
engaging.
B. Aims
(a) Have developed a critical understanding of issues inherent in the area of lawyers’
professional ethics and common scenarios in which they typically arise.
(b) Understand and apply the legal rights and duties of an advocate, judge or any participant
in legal profession.
(c) Developed an understanding of the practical issues in application of ethical obligations of
an advocate.
(d) Intelligently and constructively critique the legal and ethical rules.
(e) Negotiate the wider concept of ethics and lawyers’ role in the community in speech and
action.
To pass this course, students must obtain at least of 50% of the marks assigned for the coursework.
Coursework for this purpose means those ways in which students are assessed as outlined above.
Forty percent of the marks shall be assigned on the basis of a mid-semester examination. Both the
end-semester and the mid-semester examinations will be open book examinations whereby the
students will be tested more on their conceptual clarity rather than retention.
Ten percent of the course assessment shall be based on the student’s participation in the class
discussions. They shall be asked to do specific tasks like make case presentations, presentations
on specific topics etc.
The details of the grades as well as the criteria for awarding such grades are provided below.
E. Plagiarism Policy
(b) Unless otherwise instructed by the course instructor, any evidence of substantial copying
from internet, books, course materials, any other material or from any other student, or
reproduction without proper reference, in any form or manner in any the assignment,
examination or research paper shall immediately disqualify the work from evaluation.
(c) The course instructor retains the right to take further disciplinary action against the student
including debarring him/her from evaluation and reporting the matter to the Academic
Disciplinary Committee.
JGU endeavors to make all its courses accessible to students. All students with a known
disability needing academic accommodations are required to register with the Disability
Support Committee dsc@jgu.edu.in. The Committee has so far identified the following
conditions that could possibly hinder student’s overall well-being. These include: physical and
mobility related difficulties; visual impairment; hearing impairment; medical conditions;
specific learning difficulties e.g. dyslexia; mental health.
The Disability Support Committee maintains strict confidentiality in its discussions. The students
should preferably register with the Committee in the month of June/January as disability
accommodation requires early planning. DSC will approve and coordinate all the disability related
services such as appointment of academic mentors, specialized interventions and course related
requirements such as accessible classrooms for lectures, tutorials and examinations.
Part III
1. KEYWORD SYLLABUS
Introduction to the area of legal ethics, adversarial system, lawyers and dignity, law and social
service and pro bono work, law and popular culture and literature, duty to defend and legal ethics,
defending the guilty, badgering of witnesses and introduction of evidence by lawyers, Regulation
of lawyers, Lawyers and fee structures, Amicus Curiae, Strikes by lawyers, Adjournments, Draft
professional ethics analysis, Analysing Indian Supreme Court case laws on professional
misconduct
2. SEMINAR/LECTURE PROGRAM
This has been outlined in the weekly teaching outline which clearly mentions the topics to be
covered in light of the readings provided. The following programme is intended to be only a guide
and is subject to variation as and when circumstances may render necessary. Additional readings
on contemporary topics will be provided in class.
10. Adjournment
11. Strike by the lawyers and constitutional position on it.
Week 1
This week shall begin with developing an understanding of ‘virtue’ and questioning, if such an
understanding is possible. We shall be exploring the ‘content’ of ‘virtue’ in this week.
Compulsory Readings:
In this week, we’ll attempt to explore if lawyers should pay any heed to the advice rendered by the
philosophers. It is the moral claims prescribed by the philosophers, which when taken as a central
premise, lead to a conception of ‘wrong-doing’ by lawyers. An attempt shall also be made to
assess, if philosophers are well placed to berate lawyers on moral grounds.
In the latter part of this week, we’ll attempt to explore the ‘institutional virtue’ for a lawyer rather
than focusing on the ‘individual virtue’. We’ll attempt to take the debate forward from a claim
exploring, ‘Can a good lawyer be a good person?’ to ‘Can a society with good lawyers be a good
society?’
Compulsory Readings:
1. M.B.E. Smith, ‘Should lawyers listen to Philosophers about Legal Ethics’, (1990), Law &
Philosophy, Vol. 9. No. 1, pp. 67 – 93
2. Alice Woolley, ‘If Philosophical Legal Ethics is the Answer, What is the Question’,
(2010), The University of Toronto Law Journal, Vol. 60, No. 4, pp. 983 – 1001
Week 3
In this week, we will look at the Law School Education critically, to appreciate possible linkages
between the structure and content of this education to the professional & moral forming of the
lawyers today.
Compulsory Readings:
1. Duncan Kennedy, ‘Legal Education as Training for Hierarchy’, in The Politics of Law (David
Kairys ed., Pantheon, 1998), (1st ed. 1982, 2nd ed. 1990, 3d. 1998), available at
http://duncankennedy.net/documents/Legal%20Education%20as%20Training%20for%20Hie
rarchy_Politics%20of%20Law.pdf
2. Lorie M. Graham, ‘Aristotle’s Ethics & Virtuous Lawyer’, (1996) 20 J. Legal Prof. 5, available
at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=991661
Optional Reading:
Week 4
The fundamental theoretical premise for the lawyer-client relationship shall be laid down in this
week. Gandhi’s take on lawyer-client relationship shall be discussed in this week.
Compulsory Readings:
1. Charles Fried, ‘The Lawyer as a Friend: The Moral Foundations of the Lawyer-Client
Relation’, (1976), The Yale Law Journal, Vol. 85, No. 8, pp. 1060 -1089
2. Paul Lannon, ‘A Lawyer In Pursuit Of Truth and Unity: Mohandas Gandhi and the
Private Practice of Law’, (2011) 44 Suffolk U. L. Rev. 665.
Optional Readings:
Duties of lawyers towards the Clients, Courts, Opponents and Colleagues shall be explored during
these two weeks. Most of the competing values, including loyalty to the client, public interest,
access to justice, accountability, upholding the interest of justice, amongst others have been
crystallized into clear cut rules. In these two weeks, these competing values shall be assessed and
in view of it, rules laid down by the Bar Council of India shall be discussed and critiqued. Building
on the criticism, draft model rules drafted by the Bar Council of India shall also be taken up during
these two weeks.
Compulsory Reading:
1. Deborah L. Rhode, ‘Legal Ethics in an Adversary System: The Persistent Questions’,
(2006), Hofstra Law Review, Vol. 34, pp. 641 – 671 (Could be retrieved from
http://www.hofstra.edu/pdf/law_lawrev_vol34no3_02.pdf )
2. Monroe Freedman, ‘Criminal responsibility of the Criminal Defense lawyer- three
hardest questions’ (1966) 64 Mich. L. Rev. 1469.
3. Bar Council of India Rules on Professional Standards and Etiquettes.
4. Draft Code of Ethics drafted by the Bar Council of India
5. Marc Galanter and Nick Robinson India's Grand Advocates: A Legal Elite Flourishing in
the Era of Globalization International Journal of the Legal Profession, Vol. 20, No. 3
(2013)
Optional Reading:
1. Barbara Babcock, ‘Duty to defend’ (2005) 114 Yale Law Journal 1489.
2. Bradley Wendel, ‘Should Law Schools Teach Professional Duties, Professional Virtues,
or Something Else? A Critique of the Carnegie Report on Educating Lawyers,’
University of St. Thomas Law Journal, Cornell Legal Studies Research Paper No. 11-32
(Could be retrieved from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1963838 )
There is a growing mistrust in the society regarding the functioning of lawyers. This debate is not
restricted to any particular area but spills over to multiple fronts. The myth of self-regulation –
which was promoted with a view to creating an ethically driven legal institution, has led to
stagnation. The external regulators have always asserted on the importance of self-regulation and
self-regulation has, so far, never worked in case of India.
In the 6th Week, the existing Institutions and their structural framework shall be discussed, as given
under the Advocates Act of 1961. Questions such as: ‘Whether the regulators under the Advocates
Act, 1961 have effectively dealt with the problems related to regulations?’; ‘Whether self-
regulation of lawyers has worked out in India?’ shall be explored.
In the 7th Week, we’ll move ahead from ex-ante measures to ex-post measures. For other
professionals like doctors, in case of malpractices, there are multiple remedies spread out under
the penal code, the Consumer Protection Act and the law of torts. The case of lawyers shall be
taken up and contrasted with doctors, in order to ascertain if strong ex-post measures are required
in cases of malpractices.
Compulsory Readings:
1. Fred C. Zacharias, ‘The Myth of Self-Regulations’, (2009), Minnesota Law Review, Vol.
93, pp. 1147 – 1190 (Could be retrieved from http://www.minnesotalawreview.org/wp-
content/uploads/2012/01/Zacharias_MLR.pdf )
2. Advocates Act of 1961
3. Gabriel J. Chin & Scott C. Wells, ‘Can a Reasonable Doubt have an Unreasonable Price?
Limitations on Attorneys’ Fee in Criminal Cases’, (2000), Boston College Law Review,
Vol. 41, Issue. 1, pp. 1 – 70
4. Chapter 5 on Fees and Retainers from Raju Ramachandran’s Professional Ethics for
Lawyers (Lexis Nexis), 2nd Edition, pp. 37 - 53
5. Indian Medical Association v. V. P. Shanta 1996 AIR 550 (Could be retrieved from
http://indiankanoon.org/doc/723973/ )
6. Jacob Mathew v. State of Punjab (2005) (Could be retrieved from
http://indiankanoon.org/doc/871062/ )
7. D. K. Gandhi v. M. Mathias (2007) (Could be retrieved from http://ncdrc.nic.in/RP139206.htm )
8. B. Sunitha vs State of Telangana available at http://www.livelaw.in/legal-ethics-sc-asks-govt-
consider-bringing-regulatory-mechanism-check-violation-ethics-lawyers-read-judgment/
Optional Readings:
1. Lester Brickman, ‘ABA Regulations of Contingency Fees: Money Talks, Ethics Walks’,
(1996), Fordham Law Review, Vol. 65, Issue. 1, pp. 247 – 235
2. David Wilkins, ‘Who should regulate lawyers?’ (1992) Vol. 105, No. 4 Harvard Law
Review 799-887.
3. The Bar Standards Board handbook for Barristers in England and Wales (Could be
retrieved from
https://www.barstandardsboard.org.uk/media/1663630/bsb_handbook_sept_2015.pdf )
Week 8
The majesty of law and efficient administration of justice lie at the heart of the power of contempt
by the High Courts and the Supreme Court. Although, the Indian Constitution accepts contempt
of courts as an acceptable restriction on liberty of speech and expressions, this power has lost its
legitimacy in the other jurisdictions, including United Kingdome and United States of America. In
this week, Contempt of Courts Act, 1971 shall be dealt at length and the philosophy behind the
enactment of this statute.
The transgression by the Supreme Court in the domain of the Bar Councils in the name of
Contempt of Court shall also be discussed in this week. This interface shall be explored with a
view to ascertain if the Courts have the power to suspend the lawyers or that power lies within the
sacrosanct spheres of the Bar Councils.
Given its frequent misuse and vagueness in its definition, this statute shall also be critiqued.
Compulsory Readings:
Optional Readings:
Week 9
Frequent granting of adjournments has become order of the day, across courts in the country.
Granting of adjournments, without genuine cause, is seen as an antithesis to speedy justice. In
principle, arguments relating to fixing a cap on granting of adjournments and imposing a
reasonable cost (as opposed to meagre costs) exists but of no avail.
In this week, a brief introduction to adjournment will be given along with the rulings of the
Supreme Court on the topic. 240th Report of the Law Commission of India shall also be discussed
with a view to develop a sense of plight which frequent adjournments cause to the opposite party
besides delaying the entire process of justice.
Compulsory Readings:
1. M/s Shiv Cotex v. Tirgun Auto Plast Pvt. Ltd. & Ors (2011) 9 SCC 678
2. Ramrameshwari Devi v/s. Nirmala Devi (2011 (8) SCC 249 : 2011 (6) Scale 677)
3. 240th Report of the Law Commission of India (2012) (Original report could be retrieved
from http://lawcommissionofindia.nic.in/reports/report240.pdf )
Week 10
Right to strike by lawyers is an oxymoronic phrase. The value of expressing dissent is not
frequently, but always, outweighed by the values of duty which lawyers have towards the clients
and the court.
It would be fallacious to call this even a ‘debate’ owing to consistency in approach of the Supreme
Court in not attributing any such right on the lawyers. On the contrary, Supreme Court has
expressed its desire to have regulations in place snubbing abuse of such practices.
In this week, a preliminary literature on ‘right to strike’ by lawyers shall be discussed. Interface of
different values at play and how their mutual interplay ensues in not having any right to strike by
lawyers, shall also be discussed.
Compulsory Readings:
Week 11
There is no right to advertisement by lawyers in India. This is governed by the Bar Council of
India Rules on Standard of Professional Conduct and Etiquette. The said rule suffers from the
infirmity of not accounting for plethora of factors and their mutual interplay, primary amongst
them being – liberty of expression, commitment not to fraud a client, offering transparent
information about services, change in positive morality about the legal profession per se.
The rules relating to advertisements have witnessed a symbolic shift in the other jurisdictions and
it is high time that Indian Bar also recognizes them.
This week, literature related to existing situation and a critical piece from Yale Law School Faculty
Scholarship Series shall be dealt, to make a positive case for right to advertisement in India.
Compulsory Readings:
Week 12
There are other contemporary debates besieging Bar and Bench relationship. These include:
1. Ensuring that the best talent from the bar is appointed to the bench. Issues related to
attracting the best minds to bar and bench.
2. Entry of foreign law firms in India.
3. Role of senior counsels in the Indian Bar. Do we need to revisit the existing system?
4. Issues relating to promoting stronger exchanges between the bar and bench on one side
and legal academics on the other. Is the time right to initiate a conversation regarding
scrapping a rule which inhibits the legal academics from practicing in the courts?
Compulsory Readings:
1. Follow up on the Supreme Court’s decision regarding permitting entry of foreign law
firms in India (A related news clip could be retrieved from
http://www.livelaw.in/supreme-court-decide-whether-foreign-law-firms-lawyers-
allowed-practice-india-final-hearing-scheduled-start-february-27-government-yet-make-
stand-clear/ )
2. Kales & Thayer, ‘Should the Law Teacher Practice Law’, (1912), Harvard Law Review,
Vol. 25, No. 3 pp. 253 – 273 (Could be retrieved from
http://www.jstor.org/stable/pdf/1324911.pdf?acceptTC=true )
3. Advocates (Right to Take up Teaching Rules), 1979 (Could be retrieved from
http://ksbc.org.in/Advocate_Act/Advocate_act_Pg-113.aspx )
4. Chapter 7 on Senior Counsel from Raju Ramachandran’s Professional Ethics for Lawyers
(Lexis Nexis), 2nd Edition, pp. 75 – 79
Week 13 & 14
The Supreme Court has decided umpteen cases related to malpractices by lawyers. In the last two
weeks, an attempt shall be made to gauge and strike a continuity in the principles enunciated by
the apex court and to look for a way ahead by interpreting these principles contextually with the
readings from the previous weeks.
A thorough understanding of the apex court’s cases shall also offer a penetrative insight into the
deficiencies in the existing regulations and mull over the prospective solutions.