What They Didn’t teach you at the Law School
Law School prepares you to think, write and research like a lawyer, but once you’re at the door of a law firm or a courtroom, there’s a whole new set of skills you need. The present series of articles aims to enrich a new lawyer with all these skills in order for him/her to excel.
An advocate, in addition to being a professional, is also an officer of the court and plays a vital role in the administration of justice. Accordingly, you should conduct yourself in such a way so as to maintain the integrity of the profession.
As much as you owe a professional duty towards the court and your client, you are also required to conduct yourself in a courteous and civilised manner towards your opposing counsel.
Civil behaviour is a prime duty of a lawyer, not merely an optional course of conduct. Failure to adhere to this duty to be courteous, civil and to act in good faith will bring consequences for both you as a lawyer and your client. A consistent pattern of rude, provocative, or disruptive conduct by a lawyer, even though unpunished as contempt, might well merit discipline.
Even on those occasions when the opposing counsel has been rude to you despite your best efforts and you need to take a tougher stand with him in order to protect your and your client’s interests, keep it civil.
In addition to acting courteously, you are required to extend professional courtesies to the opposing counsel.
Rules on the professional standards that an advocate needs to maintain are mentioned in Chapter II, Part VI of the Bar Council of India Rules. These Rules have been placed there under section 49(1)(c) of the Advocates Act, 1961.
“Rules on Advocate’s Duty to Opponents
- Not to negotiate directly with opposing party.- An advocate shall not in any way communicate or negotiate or call for settlement upon the subject matter of controversy with any party represented by an advocate except through the advocate representing the parties.
- Carry out legitimate promises made.- An advocate shall do his best to carry out all legitimate promises made to the opposite party even though not reduced to writing or enforceable under the rules of the Court.”
Professional courtesies may though be considered professional fairness, but they may also be used as a tool to persuade others, including the court and the clients, that you act with professional integrity. Such professional integrity is more likely to yield results when asking for what you want, whether from the opposing counsel or the court.
As an advocate, you must raise fearlessly every issue, advance every argument, and ask every question in the best interest of your client. But it is equally important to remember that you have obligations to others as well. It is for this reason that the so called inordinate use of trial tactics that go beyond the vigorous representation of a client’s case and enter into sharp practice should not be resorted to. Even when advocating on behalf of a client, a lawyer remains bound by his duty to the court, the administration of justice and the opposing counsel. It is your duty as a lawyer to advocate passionately while maintaining professional integrity. Passionate advocacy need not be at the cost of civility, fairness and reasoned compromise.
Engaging in civil and courteous behaviour with the other side can cause some problems. Clients may see such behaviour as a breach of duty to them or worse a betrayal. You should explain the rules which obligate you to act in such a manner; you may also explain that there is a potential cost savings benefit to co-operation and that ultimately, acting professional and courteous with the other side will help the client’s case and not hinder it.