We lawyers pride ourselves on special knowledge, skills and abilities, on uncommon competence. That requires us to excise from the vocabulary of the law we profess to practice all violent action.
The Practice of Law :: Bangalore, India. Image courtesy Deccan Herald
Law, medicine and theology are said to be the three “learned” professions. Of their practitioners, lawyers have always been singularly unloved. They arouse public suspicion — they are, after all, defenders of criminals and the corrupt and, therefore, believed to be tainted by association. They invite derision and contempt: from popular lawyer jokes to real and imaginary accounts of bizarre courtroom exchanges portraying lawyers as people of limitless stupidity.
Theology and law collide in Sir Walter Raleigh’s The Passionate Man’s Pilgrimage:
“Be Thou my speaker, taintless pleader
Unblotted lawyer, true proceeder
Thou movest salvation even for alms
Not with a bribed lawyer’s palms.”
Speaker, pleader, proceeder and bribed lawyers: these are the ungodly. Jonathan Swift was equally merciless when he spoke of “a society of men bred up from their youth in the art of proving by words multiplied for that purpose that white is black and black is white, according as they are paid.” Jeremy Bentham was even sharper: “what the non-advocate is hanged for, the advocate is paid for, and admired.” Even outside court, a lawyer engaging in any sort of debate is always accused of sophistry, of “twisting words”, of chicanery.
By definition, a litigation practice — far more than non-adversarial work — comes with a very great deal of baggage. In court, lawyers enjoy all kinds of privileges and immunity in the things they say and do, stuff that might well be actionable outside court. At the same time, lawyers have very real problems within their own community. Very few have any resemblance to the popular image of a rich, crafty and dangerous individual. Many struggle very hard on a daily basis and work in the most appalling conditions, and are honest, decent people; and some are truly men and women of great distinction.
Lawyers also have another constraint, one of very long historical standing, imposed by tradition and sometimes by statute, and that is the limit on how they must conduct themselves in the public domain as a community. They do not have all the avenues of redress and methods of protest available to craftsmen’s guilds and workers’ unions. Technically, they are not permitted to strike work. The right to form associations and the right to peaceful, unarmed assembly are constitutional guarantees; but for lawyers, and often for doctors, these rights, when they result in stoppage of work, are said to be unjustifiable. The obvious reason is that the result of a lawyers’ or doctors’ strike affects a large number of innocent third parties — litigants and patients — though they bear no responsibility for the issue being agitated. Lawyers have another, even stronger argument against them, and that is that of all professionals they are uniquely placed to access the justice delivery system to address their grievances. Indeed, there is a statutory prohibition against street-level protests: the Bar Council of India’s Rules on Professional Conduct, framed under the Advocates’ Act, 1961 — which govern all lawyers in India — open with this:
An advocate shall, at all times, comport himself in a manner befitting his status as an officer of the Court, a privileged member of the community, and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may still be improper for an advocate. (emphasis mine)
In August 2007, the Bombay High Court introduced an amendment to the rules that govern its daily business.1 This amendment introduced three new rules. The first, Rule 23A, says that any strike by advocates (and that includes an individual and an advocates’ association) in court or abstention from work in protest is an interference with “the administration of justice”. That’s serious stuff. It implies that lawyers who strike can be hauled up for contempt and that in turn might well result in disbarment (the second Rule says that such advocates will be dealt with “in accordance with law”). The most interesting is the third Rule which deals with “exceptional cases where the dignity, integrity and independence of the bar and/or judiciary are at stake”. In that situation, the association heads are to consult with the head of the judicial institution (the Chief Justice or the Principal Judge), whose say is final. At best, a token strike of one day may be permitted. Correctly read, this exception is limited to situations where the judiciary as a whole is under assault; and it is an exceedingly narrow exception.
The Practice of Law :: Nice bowling action, but is it the justice delivery system? Image courtesy IndiaTVNews.com
The recent violent conflicts between lawyers, police and the media in Bangalore are therefore unfortunate, and for any number of reasons. The causes that precipitated these clashes (there appear to be two separate ones) are entirely irrelevant.2 What matters is the way the causes were addressed, and the result; and the result is that we have alienated the police, the media and even our fellow lawyers elsewhere.3 The judiciary — and that includes lawyers — is the intelligence that keeps the machinery of government running as it should. It is critical to governance, social stability and economic balance. By taking to the streets, especially when other recourse is readily at hand, striking and protesting lawyers do everyone an enormous disservice; most of all themselves. As a breed, our stock has never been very high. Nothing is achieved by lowering it even further.
We lawyers pride ourselves on special knowledge, skills and abilities, on uncommon competence. That requires us to excise from the vocabulary of the law we profess to practice all violent action. We must hold to this: law is discourse; discourse demands civility; and the practice of law is the practice of civility. Else, apart from all the many nasty things already said about us, Isaac Asimov’s famous observation might be used too: “Violence is the last refuge of the incompetent”.
G.N. No. G/Amend/12387, dated 30 August 2007. Maharashtra Government Gazette Pt. IV-C, Pg.334 ↩
The two causes are the one in January 2012, when a lawyer was arrested for triple-riding on a two-wheeler in violation of traffic regulations; and the subsequent one in March, which related to the appearance of the mining baron and politician Janardhan Reddy in court. At least one article suggests that the two are linked. The January incident disrupted traffic for seven hours; and, on the face of it, seems to be completely unjustified. There is no exemption from traffic regulations for lawyers; and if the police action was excessive or wrong, there is a legal remedy available. The violent reaction to Reddy’s appearance is altogether murkier and it seems incomprehensible why a particular litigant’s presence in court for a case that involves him should require taking to the streets, or why, given his prominence in public life, the media should not cover it. ↩
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 practise 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.
Law, medicine and theology are said to be the three "learned" professions. Of their practitioners, lawyers have always been singularly unloved. They arouse public suspicion -- they are, after all, defenders of criminals and the corrupt and, therefore, believed to be tainted by association. They invite derision and contempt: from popular lawyer jokes to real and imaginary accounts of bizarre courtroom exchanges portraying lawyers as people of limitless stupidity.
