Comparative study: emergence of the legal profession

COMPARATIVE STUDY: EMERGENCE OF THE LEGAL PROFESSION

Scholars' Views on the Legal Profession

The development of the legal profession has received a lot of attention from scholars. This can be seen in Paul Brand's The Origins of the English Legal Profession (1992), and J.H. Baker's The Legal Profession and The Common Law – Historical Essays (1986).  The eminent jurist Roscoe Pound also wrote The Lawyer from Antiquity to Modern Times (1953).

In Peter Coss (Ed.), Thomas Wright's Political Songs of England (1996), the following verse occurs:

"Attorneys in country, they get silver for naught;

They make men begin what they never had thought;

And when they come to the ring, they hop if they can.

All they can get that way, they think all is won for them

With skill.

No man should trust them, so false are they in the bile."

Law and its practice is a professional responsibility.  The regulation of the legal profession is supported by considerable academic research:

"Lawyers, economists and other social scientists have found occupational and professional regulation to be a provocative topic of study."[1]

Legal Profession in India

First British Court in Bombay

The history of the legal profession in India can be traced back to the establishment of the First British Court in Bombay in 1672 by Governor Aungier.[2] The admission of attorneys was placed in the hands of the Governor-in-Council and not with the Court. Prior to the establishment of the Mayor's Courts in 1726 in Madras and Calcutta, there were no legal practitioners.

Mayor's Courts

The Mayor's Courts, established in the three presidency towns, were Crown Courts with right of appeal first to the Governor-in-Council and a right of second appeal to the Privy Council.  In 1791, Judges felt the need of experience, and thus the role of an attorney to protect the rights of his client was upheld in each of the Mayor's Courts. This was done in spite of opposition from Council members or the Governor.  A second principle was also established during the period of the Mayor's Courts. This was the right to dismiss an attorney guilty of misconduct.  The first example of dismissal was recorded by the Mayor's Court at Madras which dismissed attorney Jones.

Establishment of the Supreme Court

The Supreme Court of Judicature was established by a Royal Charter in 1774. The Supreme Court was established as there was dissatisfaction with the weaknesses of the Court of the Mayor.  Similar Supreme Courts were established in Madras in 1801 and Bombay in 1823.  The first barristers appeared in India after the opening of the Supreme Court in Calcutta in 1774.  As barristers began to come into the Courts on work as advocates, the attorneys gave up pleading and worked as solicitors. The two grades of legal practice gradually became distinct and separate as they were in England.  Madras gained its first barrister in 1778 with Mr. Benjamin Sullivan.

Composition of the Supreme Court

Thus, the establishment of the Supreme Court brought recognition, wealth and prestige to the legal profession.  The charters of the Court stipulated that the Chief Justice and three puisne Judges be English barristers of at least 5 years standing.

Powers of the Supreme Court

The charters empowered the Court to approve, admit and enrol advocates and attorneys to plead and act on behalf of suitors. They also gave the Court the authority to remove lawyers from the roll of the Court on reasonable cause and to prohibit practitioners not properly admitted and enrolled from practising in the Court. The Court maintained the right to admit, discipline and dismiss attorneys and barristers.  Attorneys were not admitted without recommendation from a high official in England or a Judge in India.  Permission to practice in Court could be refused even to a barrister.

Courts in Mofussil Areas

In contrast to the Courts in the presidency towns, the legal profession in the mofussil towns was established, guided and controlled by legislation.  In the Diwani Courts, legal practice was neither recognized nor controlled, and practice was carried on by vakils and agents.  Vakils had even been appearing in the Courts of the Nawabs and there were no laws concerning their qualification, relationship to the Court, mode of procedure of ethics or practice.  There were two kinds of agents – a. untrained relatives or servants of the parties in Court and b. professional pleaders who had training in either Hindu or Muslim law.  Bengal Regulation VII of 1793 was enacted as it was felt that in order to administer justice, Courts, must have pleading of causes administered by a distinct profession Only men of character and education, well versed in the Mohamedan or Hindu law and in the Regulations passed by the British Government, would be admitted to plead in the Courts. They should be subjected to rules and restrictions in order to discharge their work diligently and faithfully by upholding the client's trust.

Establishment of the High Courts

In 1862, the High Courts started by the Crown were established at Calcutta, Bombay and Madras.  The High Court Bench was designed to combine Supreme Court and Sudder Court traditions. This was done to unite the legal learning and judicial experience of the English barristers with the intimate experience of civil servants in matters of Indian customs, usages and laws possessed by the civil servants.  Each of the High Courts was given the power to make rules for the qualifications of proper persons, advocates, vakils and attorneys at Bar.  The admission of vakils to practice before the High Courts ended the monopoly that the barristers had enjoyed in the Supreme Courts. It greatly extended the practice and prestige of the Indian laws by giving them opportunities and privileges equal to those enjoyed for many years by the English lawyers.  The learning of the best British traditions of Indian vakils began in a guru-shishya tradition:

"Men like Sir V. Bashyam Ayyangar, Sir T. Muthuswamy Ayyar and Sir S. Subramania Ayyar were quick to learn and absorb the traditions of the English Bar from their English friends and colleagues in the Madras Bar and they in turn as the originators of a long line of disciples in the Bar passed on those traditions to the disciples who continued to do the good work."[3]

Additional High Courts were established in Allahabad (1886), Patna (1916), and Lahore (1919).

Kinds of Legal Practitioners

There were six grades of legal practice in India after the founding of the High Courts – a) Advocates, b) Attorneys (Solicitors), c) Vakils of High Courts, d) Pleaders, e) Mukhtars, f) Revenue Agents.  The Legal Practitioners Act of 1879 in fact brought all the six grades of the profession into one system under the jurisdiction of the High Courts.  The Legal Practitioners Act and the Letters Patent of the High Courts formed the chief legislative governance of legal practitioners in the subordinate Courts in the country until the Advocates Act, 1961 was enacted.

In order to be a vakil, the candidate had to study at a college or university, master the use of English and pass a vakil's examination.  By 1940, a vakil was required to be a graduate with an LL.B. from a university in India in addition to three other certified requirements. The certificate should be proof that a. he had passed in the examination b. read in the chamber of a qualified lawyer and was of a good character.  In fact, Sir Sunder Lal, Jogendra Nath Chaudhary, Ram Prasad and Moti Lal Nehru were all vakils who were raised to the rank of an Advocate.

Original and appellate jurisdiction of the High Court

The High Courts of the three presidency towns had an original side.  The original side included major civil and criminal matters which had been earlier heard by predecessor Supreme Courts. On the original side in the High Courts, the solicitor and barrister remained distinct i.e. attorney and advocate. On the appellate side every lawyer practiced as his own attorney.

However, in Madras the vakils started practice since 1866. In 1874, the barristers challenged their right to do original side work. However, in 1916, this right was firmly established in favour of the vakils.  Similarly, vakils in Bombay and Calcutta could be promoted as advocates and become qualified to work on the original side.  By attending the appellate side and original side Courts each for one year, a vakil of 10 years service in the Court was permitted to sit for the advocates' examination.

Indian Bar Councils Act, 1926

The Indian Bar Councils Act, 1926 was passed to unify the various grades of legal practice and to provide self-government to the Bars attached to various Courts.  The Act required that each High Court must constitute a Bar Council made up of the Advocate General, four men nominated by the High Court of whom two should be Judges and ten elected from among the advocates of the Bar. The duties of the Bar Council were to decide all matters concerning legal education, qualification for enrolment, discipline and control of the profession. It was favourable to the advocates as it gave them authority previously held by the judiciary to regulate the membership and discipline of their profession.

The Advocates Act, 1961

The Advocates Act, 1961 was a step to further this very initiative.  As a result of the Advocates Act, admission, practice, ethics, privileges, regulations, discipline and improvement of the profession as well as law reform are now significantly in the hands of the profession itself.

Lawyers and the freedom struggle

There were many lawyers who gave great strength to the Indian freedom struggle. Great men such as Mahatma Gandhi, Jinnah, Sardar Patel. K.M. Munshi, Motilal Nehru, C.R. Das and Vithal Bhai Patel were all lawyers.  Lawyers preached nationalism and worked for equality and rights.  They were responsible for drafting the Indian Constitution.  The earliest barristers who participated in the freedom movement included W.C. Banerjee, a barrister of Calcutta and Pherozeshah Mehta, Kashinath Telang, Narayan Chandavarkar and Mahadeo Ranade.  Legal training was regarded as vital for a political career.  Tilak and Lala Lajpat Rai were also trained as lawyers.  In a gathering of vakils at Patna, Gandhiji said:

"I shall have little use of your legal knowledge.  I want clerical assistance, and help in interpretation.  It may be necessary to face imprisonment, but much as I would love you to run that risk you would go only so far as you feel yourselves capable of going.  Even turning yourselves into clerks and giving up your profession for an indefinite period is no small thing …. we cannot afford to pay for this work ….. It should all be done for love and out of a spirit of service."[4]

Gandhiji commanded the respect of the profession.  After the Rowlatt Bills were passed, when Gandhiji established the Satyagraha Sabha following the Rowlatt Bills, some of the lawyers of the Bombay High Court, including barristers Varajrai Desai and Vallabhai Patel, signed the satyagraha pledge.  They were warned by Justice Macleod, but no definite action was taken against them.

In a fairly detailed narrative, Schmitthener records the role of lawyers both at the Jallianwalla Bagh as well as when titles had to be boycotted:

"The massacre at Jallianwalla Bagh at Amritsar in 1919 brought the leading lawyers of the country to the forefront of the struggle for independence.  Motilal immediately went out to defend those who had been arrested under martial law and who were in danger of receiving the death penalty.  When refused permission to enter the Punjab he cabled directly to Lord Montague, Secretary to India and to Lord Sinha who was residing in London, and received permission to go to Amritsar over the head of General O'Dwyer and the Viceroy Chelmsford.  He was able to save the Congress leader Harkishenlal and was instrumental in shortening the period of martial law.  Motilal neglected his own practice and used all of his influence and the facilities of his own solicitors to the Privy Council.  Gandhi, C.R. Das, M.R. Jayakar, Abbas Tayabji (Tyabjee), and Motilal Nehru were chosen by the Congress to be a committee of inquiry into the Amritsar situation.  By working in close association with Gandhi these leading lawyers of the day came to respect him and regard him as their leader.

Finally the time came when Gandhi called for a boycott of titles, honorary offices, law courts, legislatures, foreign goods, and Government owned or aided schools and colleges.  Motilal Nehru, C.R. Das, Rajagopalachari and many other lawyers gave up their princely incomes, resigned from their respective legislative assemblies, and began to live simple, austere lives."[5]

Thomas Erskine in the trial of Thomas Paine observed that:-

"I will for ever, at all hazards, assert the dignity, independence and integrity of the English bar; without which impartial justice, the most valuable part of the English Constitution, can have no existence."[6]

Benjamin Cardozo observed that membership in the Bar is "a privilege burdened with conditions".[7] Oliver Wendell Holmes in his seminal work, The Law, said that "Shall I ask what a Court would be unaided, the law is made by the Bar even more than the Bench".[8]

Legal enactments and regulations

At a more contemporary level, it may be relevant to note certain regulatory provisions that exist with respect to lawyers.

Standards of Professional Conduct and Etiquette

In the ‘Standards of Professional Conduct and Etiquette to be Observed by Advocates', as adopted by the Bar Council of India under Section 49(1)(c) of the Advocates Act, 1961, Rule 3 provides as follows:

"3. An advocate shall not influence the decision of a court by any illegal or improper means. Private communications with a judge relating to a pending case are forbidden."

Further, under Rule 4, an advocate has the duty to use his best efforts to restrain and prevent his client from resorting to sharp or unfair practices. The Rule states that an advocate shall refuse to represent the client who engages in such improper conduct.  He shall not consider himself a mere mouth-piece of the client. He shall exercise his own judgment by using restrained language in correspondence, avoiding outrageous attacks in pleadings, and using severe language during arguments in court.

Analogous provisions in the UK

Similar regulatory provisions exist in the United Kingdom as well.

Solicitors' Code of Conduct

In the Solicitors' Code of Conduct, 2007, as adopted by the Solicitors Regulation Authority, Rule 1 provides for the following core duties of a solicitor: (i) upholding the rule of law and proper administration of justice, (ii) acting with integrity, (iii) not allowing independence to be compromised, (iv) acting in the best interests of each client, (v) providing a good standard of service to clients, and (vi) not behaving in a way likely to diminish public trust.

Further, it is provided under clause (1) of Rule 11.01 of the Code that a solicitor must never deceive or knowingly or recklessly mislead the Court. Particularly, with respect to witnesses, Rule 11.07 provides as follows:

"11.07 Payments to witnesses

You must not make, or offer to make, payments to a witness dependent upon the nature of the evidence given or upon the outcome of the case."

Code of Conduct with regard to barristers

A separate Code of Conduct governs barristers in the United Kingdom. This code is administered by the Bar Standards Board, an independent regulatory board of the Bar Council of U.K. Paragraph 301 of the Code provides that a barrister must not (a) engage in conduct whether in pursuit of his profession or otherwise which is (i) dishonest or otherwise discreditable to a barrister; (ii) prejudicial to the administration of justice; or (iii) likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute; and (b) engage directly or indirectly in any occupation if his association with that occupation may adversely affect the reputation of the Bar or in the case of a practicing barrister prejudice his ability to attend properly to his practice.

Further, with respect to practising barristers, Rule 307 incorporates certain additional restrictions. It is provided that a barrister must not, inter alia:

  1. Compromise his absolute independence, integrity and freedom because of external pressures
  2. Do anything (for example accept a present) in such circumstances that may lead to any inference might compromise his independence;
  3. Compromise his professional standards in order to please his client the Court or a third party, including any mediator.

Bar Council Examination

Despite being passed in December 2009, a Supreme Court judgment with tremendous ramifications for the practice of law came to our notice only recently.

In Bar Council of India v. Bonnie Foi Law College, Justice Dalveer Bhandari and Justice H. L. Dattu mandated the Center to conduct bar examinations to test candidates for their suitability or otherwise for entry into the legal profession.

You heard right: current law students who expect to graduate may not be able to don the robes of an advocate without first clearing a bar exam.

The Supreme Court order dated on 14 December 2009, came in the light of recommendations by a special committee constituted by the court and headed by the Solicitor General, Gopal Subramanium. This committee was primarily tasked with making recommendations concerning the manner of affiliation and recognition of law colleges by the Bar Council of India. 

Upon receipt of the Committee report, the Supreme Court mandated the Centre to implement the recommendations, explicitly referring to the introduction of a Bar Examination:

"The most significant achievement of this entire exercise has been the introduction of the Bar Examination. Learned Solicitor General submits that the first Bar Examination shall be conducted in July-August, 2010 by a specially constituted independent body, consisting of experts of various disciplines of national stature. In the facts and circumstances of this case, we deem it appropriate to direct the Central Government to ensure that the entire programme framed by the three-member Committee is operationalized forthwith. We further direct the concerned institutions to fully cooperate with the Bar Council of India."

India is not new to bar exams. The Indian Advocates Act, 1961 required holders of law degrees who wished to enter practice to complete a course in practical training and also pass an examination. But, in 1973, this provision was deleted by way of amendment, and since then, a law graduate from a BCI-recognized university could directly enroll as a lawyer. The BCI attempted to introduce an apprenticeship or practical training course in 1998, whereby recently graduated law students would have to work for a year with a counsel before they could enrol as advocates. However, the Supreme Court struck it down on grounds of lack of competence in the case of  V. Sudeer v. BCI, AIR 1999 SC 1167.

The Court held that under the prevailing statutory framework, the BCI did not have the authority to prescribe conditions for training and examinations after graduation; it would first have to amend the Advocates Act to confer such powers unto itself. Notwithstanding this, the court still went on to explicitly endorse the need for an apprenticeship and a Bar examination, albeit after appropriate statutory amendments in this regard.

In the light of the V Sudeer case, one is forced to contend with the legality of the current Supreme Court mandate in favour of bar exams. Needless to state, the Supremes are well within their right to reverse Sudeer or distinguish it, but neither of it happened in the present case.

In effect, the Supreme Court has directed the Center to implement the Committee report and permit the holding of a bar exam by a certain date. But if such bar exam can only be legally instituted after legislative amendment, one might argue that the court has effectively directed the center to move such legislative amendment.

In fact, the report by the SG committee clearly recognizes the need for legislative amendment in this regard: 

"A Bar Examination should be introduced for the purpose of admitting law graduates to the Bar: As discussed supra, the introduction of a bar examination would ensure maintenance of standards in the legal profession, as well as standardization and constant innovation in the standards of curriculum, teaching methodology etc. The Committee is, therefore, of the opinion that qualifying a bar examination should be made a requirement prior to admission to the Bar by all State Bar Councils across the country. In light of the decision of the Supreme Court in the V. Sudeer case, such a requirement may be introduced in the Advocates Act, 1961 by means of a statutory amendment."

Prior to framing his report, the Solicitor General had solicited comments from a few of us involved in legal education. Pursuant to his request, we sent him a rather lengthy note, strongly recommending a bar exam as a potential "quality" control measure. It then goes on to recommend reforms, most of which can be effectuated within the corners of the existing regulatory framework, without the need for statutory reform. Others may require statutory amendments.

Legal Profession in England

Early regulations with regard to admission of lawyers

In England, the admission of lawyers has been regulated since the middle of the 13th century.  In the late 13th century, three critical regulations were adopted – a. the Statute of Westminster I, chapter 29 (1275); b. The London Ordinance of 1280; and c. the Ordinance of 1292, de Attornatis et Apprenticiis.  During the medieval period, further regulations were enacted, called the Statute, 4 Henry IV, chapter 18 (1402) and the Ordinance, 33 Henry VI, chapter 7 (1455).  In addition, judges have always used their inherent power to control the admission of lawyers and check their misconduct.

Legal profession during Edward I's period (1272-1307)

Serjeants and Attorneys

The legal profession first seems to have emerged in the reign of Edward I (1272-1307). At that point of time, it included two types of lawyers - the serjeants and attorneys.  Serjeants were pleaders who spoke for the clients while attorneys handled procedural matters.  Later, attorneys also appeared on behalf of litigants.

Initially, both the pleaders and attorneys assisting the litigants were amateurs. However, over time, these individuals began to appear repeatedly to assist litigants.  Thus these individuals developed expertise as a result of their experience and were sought out by litigants and they charged for their services.

In the middle of the 12th century, and particularly through the 13th century, famous legal figures such as Ranulf Glanvill and Ralph de Hengham emerged. Thus, identifiable precursors or predecessors of professional lawyers emerged in the early 13th century.

Appointment and functions of an attorney

The appointment of an attorney was called "responsalis". The writ for an attorney to act in Court, in place of his principal was called "ad lucrandum vel perdendum".  Individual attorneys could appear in Court either as a special attorney, or as a general attorney on behalf of a client for numerous matters over a period of time.  However, by the end of the 13th century, restrictions limiting the use of the serjeants were removed and litigants commonly used professional serjeants to plead their cases.  Now statutes granted litigants the right to appoint and use attorneys.  In 1268, a Charter of the city of London recognized a similar right for its citizens.  Thus professional lawyers were practising on a full time basis created a budding English legal profession.

Serjeants sole determining authority for judicial appointments

There were major changes in the Court system. New Royal Courts and expert Judges came into being. Thus, a legal environment was created for the existence of a professional lawyer.  Since serjeants were the aristocrats of medieval lawyers, appointment as a serjeant was a significant honour. Serjeants were the sole determining authority in case of judicial appointments. Hence, Chaucer called a serjeant a "man of law".  The term itself was derived from a French expression serviens, meaning "one who serves".  By the last quarter of the 13th century, the number of serjeants increased. They then became primary pleaders in the Court of Common Pleas and to a lesser extent in the other Royal Courts.

Apprentices and the legal profession

In 1280s, a group called Apprentices of the Common Bench emerged.  Initially, apprentices were individuals studying to become serjeants.  They functioned under the supervision of serjeants or senior apprentices.  By the end of the 13th century, the apprentices were also representing clients and practising law. However, they were essentially practising as attorneys and not pleaders.

Legal Enactments and Regulations

In this period ending with the reign of Edward I, three enactments were critical.

Statute Of Westminster I, chapter 29 (1975)

The first was the Statute of Westminster I, chapter 29 (1275). This statute prohibited conduct by ‘any serjeant-counter or other' in the King's Court that deceived the Court or a party.  A serjeant who committed this violation was to be punished with imprisonment for a year and a day, and prohibition on further pleading.

Chapter 29 prohibited misconduct which occurred in a judicial proceeding because of its negative impact on the justice system.  Chapter 29 was applied to attorneys and pleaders with the same punishment being awarded to them.  Conduct such as false pleading, misfeasance, common law fraud, false recitals in a writ, false statements in a pleading and various forms of defective or unjustified litigation were covered under the punishment.

The sanctions imposed were being disbarred, imprisonment for a year and a day, to imprisonment only, a shorter imprisonment, temporary suspensions of different lengths or a fine.  The cases involved lawyers committing a wide range of misconduct, such as forgery of writs, altering, damaging or removing official documents. Various other offences were punished. These offences were: a. conflict of interest and other breaches of client loyalty  b. making false statements in Court, to the client, the opponent, and in pleadings and other documents c. acting as an attorney without proper authority d. failing to act – an early termination of representation e. offending judges by unconvincing arguments, over enthusiasm, or not speaking in good faith.

London Ordinance of 1280

The London Ordinance of 1280 was a long and a detailed enactment. This enactment regulated both admission to practice and lawyer conduct in the courts of London.  The function of a countor was to stand and plead, and count counts and make propositions at the Bar, which prohibited unprofessional pleading.  The penalties for violations included short suspensions and fines.  The penalty for violating the simultaneous conflict of interest prohibition was suspension for three years.

Ordinance of 1292

The Ordinance of 1292 dealt with the admission of attorneys and apprentices to the Common Bench.  It directed the Chief Justice and other Justices to regulate the number of attorneys admitted to practice before the Common Bench. They were also directed to establish quotas for each county. According to Holdsworth, these Ordinances were issue as there were large complaints against lawyers by members of the general public. It was believed that the number of lawyers should be reduced in order to reduce lawyer misconduct.

Most legal historians have accepted that the Ordinance of 1292 was a major stage in the development of the legal profession in England.  In fact, this was the beginning of the long-standing belief that attorneys were officers of the Court.  This was attributed because Judges directly admitted attorneys.  Integrity and competence were both required for admission. This was because the standard of admission resembled the good moral criterion to modern admission controls. Statutes like the Statute of Conspirators, 1292, and the 1305 Ordinance of Conspirators prohibiting false litigation were also steps in that direction.

Legal Profession post Edward I's period (after the 13th century)

Attorney not allowed to plead

In the early 17th century, the influence of serjeants as a professional group declined. As a result of this, apprentices became the more important group of pleaders and were the predecessors of today's barristers.  By the middle of the 14th century, they created the Inns of Court.  Although an attorney was a lawyer who represented the client in Court on the client's behalf, he was not allowed to plead.  An attorney appeared on behalf of his client. This would be clear from the French verb attorner, which means ‘to assign or depute for a particular purpose'.  The attorneys' primary function was to appear in Court to manage the litigation of the clients.

Separation between attorneys and serjeants model for solicitor-barrister separation

The formal division of the English legal profession into solicitors and barristers can be traced back to the separation between the attorneys and the serjeants.  Attorneys were the predecessors of the serjeants.

Canon and Ecclesiastical Lawyers

It may be pointed out that canon and ecclesiastical lawyers (dealing with laws with regard to the Church) existed both in England and in Continental Europe.  Canon lawyers appeared in the English ecclesiastical Courts.  The canon lawyers were also divided like common law lawyers.  The pleader was called the ecclesiastical advocatus while the attorney was called the ecclesiastical procurator.  According to Pollock and Maitland, professional canons for advocates served set an example for professional common law pleaders.  In England, the ancient universities of Oxford and Cambridge imparted legal education based on canon and Roman law. They did not include any instruction in English common law.

The instruction in English common law appeared only in the 18th century with Blackstone's famous Vinerian lectures.  However, in Continental Europe, legal instruction was much older. The oldest were the lectures at the celebrated law school of the University of Bologna in which Roman and civil law was taught.

Educating Pleaders and the Inns of Court

The education of pleaders through apprentices who were studying to become serjeants was the backbone of legal education.  They were taught to regularly attend Court and judicially encouraged to observe the working of Courts as well as serjeants.  That is how the Inns of Court were established.

The regulation of the legal profession incorporated principles of discipline, definition of malpractice and other civil liability to injured clients, judicial and institutional controls, and legislative approaches.  In England, solely the Judges imposed discipline. Hence, there did not exist any separate disciplinary authorities and regulatory agencies. Moreover, judicial sanctions were commonly imposed. These sanctions were imposed to give effect to statutes and ordinances, as well as inherent judicial power.

Between the end of the reign of Edwards I and the end of 15th century, there was less regulatory activity.  The assault on champerty and maintenance continued. Statutes imposing additional prohibitions and remedies were passed in 1327, 1331, 1347, 1377 and 1383.  By the end of 14th century, serjeants had a monopoly on pleading in the Common Bench.  Thus, the serjeants were considered to be a guild.

With the development of petitions to Parliament in the early 14th century, petitions became a vehicle for complaints about lawyers.

Legal Enactments and Regulations Post Edward I's period

Statute 4 Henry IV, Chapter 18 (1402)

Statute 4 Henry IV, Chapter 18 (1402) aimed at regulating admission of regulating attorneys and misconduct. The statute required that the justices were to examine all attorneys including those already in practice. The justices were to apply their discretion and enroll only those who were ‘good and virtuous and of good fame…'  It was believed that this statute stressed upon the notion that attorneys were officers of the Court and that judicial control of admission was important to limit numbers, ensure competence and eliminate misconduct.

Ordinance 33 Henry VI, Chapter 7 (1455)

Ordinance 33 Henry VI, Chapter 7 (1455) was aimed at controlling attorney admission in the counties of Norfolk and Suffolk and the city of Norwich.  Thus the previous instances of modern regulation of lawyers were evident in the medieval regulation of the profession.

The importance of oaths in the legal profession

The standards in the legal profession, in a certain sense, originated due to the ecclesiastical Courts (Courts dealing with matters of the Church) – both in England and Europe.  Oaths were a part of ancient tradition.  The Roman oath required that an advocate should avoid deception and circumlocution. An advocate should speak only that which he believed to be true. He was to avoid the use of injurious language or malicious statements against his adversary.  The ecclesiastical Courts in England set an oath for advocates, and the Council in St. Paul's in 1237 issued an oath for ecclesiastical advocates that addressed their litigation conduct.  The obligation of a lawyer was to defend his client both according to law and reason.  But the decree warned that advocates who "persuade witnesses, or instruct the parties to give false evidence or suppress the truth" would be suspended from office and subjected to additional punishment for repeated violations.

In fact, the oath for advocates in the Court of Arches in London introduced by Archbishop Kilwardy provided that a lawyer would reject unjust causes, not seek unjust delays and not knowingly infringe on ecclesiastical liberties.  This included the duty of ‘not to charge excessive fees'.  It was in the mid-19th century that the ecclesiastical jurisdiction came to be abolished.  Incidentally, the original speeches from the early 15th century encouraged serjeants to serve the poor.

The following exhortation of Lord Whitlocke is noteworthy:[9]

"For your duty to particular clients you may consider, that some are rich, yet with such there must be endeavour to lengthen causes, to continue fees.  Some are poor, yet their business must not be neglected if their cause be honest; they are not the worst clients, though they fill not your purses, they will fill the ears of God with prayers for you and he who is the defender of the poor will repay your charity".

Thus the apprentices who had long trained at the Inns of Court became barristers and received ethical instruction as part of their training. The special wisdom of decorum and ethics came from the serjeants.  Barristers were governed and disciplined by Courts and the Inns.  The barristers through educational dialogue passed on ethical traditions and developed new ones. Barristers unquestionably developed new standards.  The bias against advertisement started as etiquette handed down in the Inns by barristers. These barristers believed that they were superior to the mere trade work of attorneys and solicitors.  Likewise, barristers developed standards demanding that they separate themselves from the lay client and not sue lay clients to collect fees.

Oaths and Legal Enactments

An attorney was required to take the following oath:

"You shall do no falsehood nor consent to any to be done in the Office of Pleas of this court wherein you are admitted as an attorney"[10].

English Courts used their inherent power as well as the 1275 Statute to impose a duty of loyalty and confidentiality on attorneys.  In fact the history of the attorney-client privilege began with the reign of Elizabeth I.

In 1605, Parliament enacted the 1605 Act which was "an Act to reform the multitudes and misdemeanours of attorneys and solicitors of law, and to avoid unnecessary suits and charges at law".  In 1654, the Court of Common Pleas directed that a jury of able and credible officers, clerks and attorneys be empanelled every three years to oversee discipline of attorneys.  This panel was also to set a table of "due and just fees".

In 1729, Parliament enacted an Act for the better regulation of attorneys and solicitors, providing for strict admission procedures.  The 1729 Act required lawyers to swear to a shorter oath.  The new oath provided that "That I will truly and honestly demean[11] myself in the practice of an attorney, according to the best of my knowledge and ability".

In England the position of Serjeant-at-Law was discontinued and was replaced by the King's Counsel (or Queen's Counsel, as the case may be).  They were appointed by Royal patent, were admitted only upon taking an oath, and had a monopoly of all practices. They were directly answerable to the King as parts of his judicial system.

The earliest form of an attorney's oath on record is found in the Red Book of the Exchequer.

"The Oath of Attorneys in the Office of Pleas:  You shall doe noe Falshood nor consent to anie to be done in the office of Pleas of this Courte wherein you are admitted an Attorney.  And if you shall knowe of anie to be done you shall give Knowledge thereof to the Lord Chiefe Baron or other his Brethren that it may be reformed you shall Delay noe Man for Lucre Gaine or Malice you shall increase noe Fee but you shall be contended with the old Fee accustomed.  And further you shall use your selfe in the Office of Attorney in the said office of Pleas in this Courte according to your best Learninge and Discrecion.  So helpe you God."[12]

Professional Conduct and the Law Society

The attorneys were expelled from the principal Inns of Court in the 16th century and in 1739 they formed a professional group called "Society of Gentleman-Practicers in the Courts of Law and Equity".  Thus the Law Society was born, though it was not until 1986 that the Law Society formed a committee to collect and draft principles of professional conduct.  Now there exists the Guide to Professional Conduct of Solicitors reflecting the ideals of modern solicitors as well.  Both branches of the English legal profession had the same core duties over the centuries of litigation: fairness, competence, loyalty, confidentiality, reasonable fees and service to the poor.

Legal Profession in Rome and Continental Europe

Nicholas in Introduction to Roman Law stated that the Roman jurists were not paid for their work, but were supposed to function due to a keen sense of public service.  In Europe, lawyers were under an oath, which was an essence, a condensed code of legal ethics.

In France, lawyers had to take an oath which included a pledge of care, diligence and an agreement to support only just causes.  In France, the oaths were taken by ecclesiastical lawyers and the French legal tradition had a lasting influence even outside France in Switzerland and other parts of Europe.

The concept of a lawyer as an officer of the Court is arises from the Roman idea of a lawyer being an advocatus, who when called upon by the praetor to assist in the cause of a client, was solemnly reprimanded to "avoid artifice and circumlocution".[13]

The concept of oath was common to Europe.  Fredrick the Second of Germany, prescribed the oath as follows:

"We will that the advocates to be appointed, as well in our court as before the justices and bailiffs of the provinces, before entering upon their offices, shall take their corporal oath on the Gospels, that the parties whose cause they have undertaken they will, with all good faith and truth, without any tergiversation, succour; nor will they allege anything against their sound conscience; nor will they undertake desperate causes; and, should they have been induced, by misrepresentation and the colouring of the party to undertake a cause which, in the progress of the suit, shall appear to them, in fact or law, unjust, they will forthwith abandon it.  Liberty is not to be granted to the abandoned party to have recourse to another advocate.  They shall also swear that, in the progress of the suit, they will not require an additional fee, nor on the part of the suit enter into any compact; which oath it shall not be sufficient for them to swear to once only, but they shall renew it every year before the officer of justice.  And if any advocate shall attempt to contravene the aforesaid form of oath in any cause, great or small, he shall be removed from his office, with the brand of perpetual infamy, and pay three pounds of the purest gold into our treasury." [14]

The French recognized the role of a lawyer in the Capitularies of Charlemagne as a professional lawyer. Nobody should be admitted to the profession except for men, "mild, pacific, fearing God and loving justice, upon pain of elimination."

In Denmark and Norway, the Code of Christian V provided as follows:

"Lawyers who are allowed to plead Causes, shall be Men of Probity, Character, and known Repute.

In Cities shall be appointed such a Number of Lawyers as are really requisite.

No one shall be admitted as a Lawyer to act, who does not take an oath before the Mayor and Aldermen, that he will undertake no Cause he knows to be bad, or iniquitous; that he will avoid all Fraud in pleading, bringing Evidence, and the like: That he will abstain from all Cavils, Querks and Chicanery; and never seek by Absence, Delays, or superfluous Exceptions, to procrastinate a Suit: That he will use all possible Brevity in transcribing Processes, Deeds, Sentences, etc.  That he will never encourage Discord, or be the least Hindrance to Reconciliation:  That he will exact no exorbitant Fees from the Poor, or others: And that he will act honestly, and to the best of his Power, for all his Clients.  Of this Oath the Judges shall admonish the Lawyers in dubious Cases, and if they think proper, require a Renewal of it in the Court: And moreover, command them to abstain from all Manner of Scurrility, and Abuse, in their Pleadings, especially where the process does not concern the Fame of the Defendant.

A Lawyer defective in this his Duty shall be discarded, rendered incapable of ever after pleading, and moreover punished in Proportion to his Offense."[15]

Legal Profession in America

In the United States as well, a lawyer is regarded as an officer of the Court and is admitted to the Bar only upon taking of an official oath.  In America, until 1875, there were no formal academic requirements to be a lawyer, because there was neither required schooling nor tests.

The Hoffman Code and Alabama's Legal Ethics Code (Law and Morality)

The first regulatory code was written in 1836 by Judge Hoffman of Baltimore.  The Code touches on most of the problem areas confronting even modern lawyers.  Hoffman's resolution suggests that justice should be the only motivation of lawyers, including the resolution that ‘lawyers must have humility regarding their own knowledge of the law'.  The Hoffman Code states that lawyers must quote the law objectively with ‘honour'. Their reasoning should be objective and creative. This was followed by Alabama's Legal Ethics Code of 1887.  The Code stated that morality was the only safeguard to having a good professional Bar.

Code of Professional Responsibility

The canons of professional ethics was approved by the American Bar Association in 1908 and continued till 1960s.  The preamble stated that public must have confidence in the "integrity and impartiality of the legal profession".  This was replaced by the 1969 American Bar Association ("ABA") Code of Professional Responsibility.  In a project called Ethics 2000, the American Bar Association reorganized its model rules of professional conduct.  The six traditional core duties now identified by ABA are – a) litigation fairness, b) competence, c) loyalty, d) confidentiality, e) reasonable fees, and f) public service.

The Colonies and early States used oaths, statutes, judicial oversight and procedural rules to govern behaviour of attorneys.  The oath was the most expansive single listing of ethical standards for early American lawyers.  Many of the States enacted laws to regulate attorneys' fees.  The Bar Association later reflected the broader range of substantive concerns and dealt primarily with admission standards and procedures.

The New York Code (Legal conduct)

David Dudley Field was the drafter of the highly influential New York Code, popularly called the Field Code. This Code introduced a new set of uniform standards of conduct for lawyers.  One of the duties of a lawyer was to maintain the respect due to the Courts of Justice as well as judicial offices.  In fact, after the Field Code was drafted, Hoffman and Sharswood were able to use legal education to develop the standards of conduct for lawyers in the mid 19th century.  (Hoffman was a Professor of Law at the University of Maryland and Sharswood was a Professor at the University of Pennsylvania.  Most academicians believe that the works of Hoffman and Sharswood are significant in the field of American legal ethics.)

Code of Legal Ethics

Of course, by the end of the 19th century, a new form of ethical standards began to guide lawyers in their practice, called the American Bar Association Code of Legal Ethics.  It may be pointed out that although the ABA's works are merely models and are themselves not binding on any lawyer, most States have adopted the ABA models with slight local variations.  As mentioned above, the ABA again brought about comprehensive changes to the Model Rules in a project known as Ethics 2000.  There were further amendments in August 2002 and August 2003.  As of 2003, 44 States and the District of Columbia had adopted some version of the Model Rules.

Lawyer subject to Rules of Court

A lawyer being an officer of the Court enjoys a license to certain special privileges, which otherwise he would not be entitled to. The advocate is therefore an officer sui generis of the Court and subject to the rules imposed by the Court in regulation to the practice therein.  He is a quasi officer of the State. The power and responsibility for the administration of justice rests on him. The fundamental idea underlying the lawyers' profession has been expressed in a North Carolina case (In Re Application of Delingham[16]).

In a book called The Lawyer's Oath and Office, it was noted that:-

"Why is any oath required for admission to the practice of the law?  No oath is required by law for admission to practice in any other profession, even where qualifications to practice are prescribed or ascertained by examinations required by law, as in the case of physicians.  But an official oath has always been required for admission to the practice of the law.  Why is it required?  What is its significance, and what obligation does it impose?

The significance of the lawyer's oath is that it stamps the lawyer as an officer of the State, with rights, powers and duties as important as those of the Judges themselves. ……… A lawyer is not the servant of his client.  He is not the servant of the Court.  He is an officer of the Court, with all the rights and responsibilities which the character of the office gives the imposes."[17]

In Ex parte Garland,[18] it was decided that the right to practice law was neither property nor a contract but was a right of which the lawyer could not be deprived of. The lawyer can only be deprived of this right only when a good cause can be shown after judicial proceedings.  It was observed by Field, J. that:

"The attorney and counsellor being, by solemn judicial act of the court clothed with his office, does not hold it as a matter of grace.  The right which it confers upon him to appear for suitors, and to argue causes, is something more than a mere indulgence, revocable at the pleasure of the court, or at the command of the legislature.  It is a right of which he can only be deprived by the judgment of the court for moral or professional delinquency.  They hold their office during good behaviour, and can only be deprived of it for misconduct ascertained and declared by the judgment of the court after opportunity to be heard has been afforded."

A lawyer is an officer of the Court because the power of admitting a lawyer to practice law is judicial in its nature and is vested in the Courts.  It is settled law in the United States that whatever the general jurisdiction of the Courts over the subject may be, the legislature can exercise police power by prescribing reasonable rules and regulations for admission to the Bar which will be followed by the Courts.

Selden, J. in Re Cooper observed that:[19]

"Attorneys and counsellors are not only officers of the Court, but officers whose duties relate almost exclusively to proceedings of a judicial nature, and hence their appointment may with propriety be entrusted to the courts, and the latter in performing this duty may very justly be considered as engaged in the exercise of their proper judicial functions."

In America, Courts authorized to admit attorneys to the Bar have inherent jurisdiction to suspend or disbar them for sufficient cause. Such jurisdiction is not dependent upon constitutional provision or a State enactment.

In Re Lambuth, the Supreme Court of Washington observed that:[20]

"But the power to strike from the rolls is inherent in the court itself.  No statute or rule is necessary to authorize the punishment in any proper cases.  Statutes and rules may regulate the power but they do not create it.  It is necessary for the protection of the court, the proper administration of justice, the dignity and purity of the profession, and for the public good and for the protection of clients.  Attorneys may forfeit their professional franchise by abusing it, and the power to exact the forfeiture is lodged in the courts which have authority to admit attorneys to practice.  Such power is indispensable to protect the court, the administration of justice, and themselves; and attorneys themselves are vitally concerned in preventing the vocation from being sullied by the conduct of unworthy members."

Sharswood in Legal Ethics notes that:[21]

"With jurisprudence lawyers have most, nay, all to do.  The opinion of the Bar will make itself heard and respected on the Bench.  With sound views, their influence for good in this respect may well be said to be incalculable.  It is indeed the noblest faculty of the profession to counsel the ignorant, defend the weak and oppressed, and to stand forth on all occasions as the bulwark of private rights against the assaults of power, even under the guise of law; but it has still other functions.  It is its office to diffuse sound principles among the people, that they may intelligently exercise the controlling power placed in their hands, in the choice of their representatives in the legislature and of judges, in deciding, as they are often called upon to do, upon the most important changes in the Constitution, and above all, in the formation of that public opinion which may be said in these times, almost without a figure, to be the ultimate sovereign."

Duties of a Lawyer

The duties of a lawyer to the Court arise from the relationship which he has with the Court as an officer in the administration of justice.  Law is not a mere private profession but is a profession which is an integral part of the judicial system of the State. As an officer of the Court, the lawyer should uphold the dignity and integrity of the Court.  The lawyer must exercise at all times respect for the Court, in both words and actions.  He must present all matters relating to his client's case openly. He should being careful to avoid any attempt to exert private influence upon either the judge or the jury. He should be frank and candid in all dealings with the Court, ‘using no deceit, imposition evasion as by misreciting witnesses or misquoting precedents'.

It may be noted that Warvelle in Legal Ethics records:[22]

But the lawyer is not alone a gentleman, he is a sworn minister of justice.  His office imposes high moral duties and grave responsibilities, and he is held to a strict fulfillment of all that these matters imply.  Interests of vast magnitude are intrusted to him; confidence is imposed in him; life, liberty and property are committed to his care.  He must be equal to the responsibilities which they create, and if he betrays his trust, neglects his duties, practises deceit, or panders to vice, then the most severe penalty should be inflicted and his name stricken from the roll.

The obvious truth is that the lawyer owes a high duty to his profession and to his fellow members of the Bar. His profession should be his pride, and to preserve its honour should be among his chief concerns.  "Nothing should be higher in the estimation of the advocate" declares Mr. Alexander H. Robbins, "next after those sacred relations of home and country than his profession.  She should be to him the fairest of ten thousand among the institutions of the earth.  He must stand for her in all places and resent any attack on her honour – as he would if the same attack were to be made against his own fair name and reputation.  He should enthrone her in the sacred places of his heart, and to her he should offer the incense of constant devotion.  For she is a jealous mistress."[23]

As regards the Bench, Warvelle remarks that the purity of the Bench also depends upon the purity of the Bar:[24]

"The very fact, then, that one of the co-ordinate departments of the government is administered by men selected only from one profession gives to that profession a certain pre-eminence which calls for a high standard of morals as well as intellectual attainments.  The integrity of the judiciary is the safeguard of the nation, but the character of the judges is practically but the character of the lawyers.  Like begets like.  A degraded Bar will inevitably produce a degraded Bench, and just as certainly may we expect to find the highest excellence in a judiciary drawn from the ranks of a enlightened, learned and moral Bar."

[1] J. Rose, "The Legal Profession in Medieval England: A History of Regulation", (1998) 48 Syracuse Law Review 1, 3 (footnote 2).  Hereinafter, "Rose". [Amicus Curiae Compilation No. 1, pp. 1-138].

[2] Samuel Schmitthener, "A Sketch of the Development of the Legal Profession in India", (1968-69) 3 Law & Society Review 337.  Hereinafter, "Schmitthener". [Amicus Curiae Compilation No. 2, pp. 90-135]

[3] Schmitthener at 357. [Amicus Curiae Compilation No. 2 at 110]

[4] Schmitthener at 379. [Amicus Curiae Compilation No. 2 at 132]

[5] Schmitthener at 379. [Amicus Curiae Compilation No. 2 at 132]

[6] David Shrager & Elizabeth Frost (Ed.), The Quotable Lawyer, (1986), Ch. 12, p. 23.

[7] See In re Rouss, 221 N.Y. 81, at 84

[8] David Shrager & Elizabeth Frost (Ed.), The Quotable Lawyer, (1986), Ch. 12, p. 23.

[9] C.R. Andrews, "Standards of Conduct for Lawyers: An 800-Year Evolution", (2004) Southern Methodist University Law Review 1385, 1400 (footnote 123).  Hereinafter, "Andrews". [Amicus Curiae Compilation No. 2, pp. 1-74]

[10] Andrews at 1404. [Amicus Curiae Compilation No. 2, pp. 1-74 at 20]

[11] It may be noted that demean in old English simply meant "to conduct oneself in a particular manner" and did not have its current derogatory meaning!

[12] E.W. Timberlake, "The Lawyer as an Officer of the Court", (1924-25) 11 Virgina Law Review 263, 267.  Hereinafter, "Timberlake". [Amicus Curiae Compilation No. 2, pp. 75-89 at 79]

[13] Timberlake at 263. [Amicus Curiae Compilation No. 2 at 75]

[14] Timberlake at 263. [Amicus Curiae Compilation No. 2 at 75]

[15] Timberlake at 265. [Amicus Curiae Compilation No. 2 at 77]

[16] 188 N.C. 162

[17] Timberlake at 269. [Amicus Curiae Compilation No. 2 at 81]

[18] 4 Wall. 333

[19] 22 N.Y. 67

[20] 18 Wash. 478

[21] Timberlake, pp. 272-273 [Amicus Curiae Compilation No. 2 at 84-85]

[22] Timberlake, p. 274. [Amicus Curiae Compilation No. 2 at 86]

[23] Timberlake, p. 273. [Amicus Curiae Compilation No. 2 at 85]

[24] Timberlake, p. 274. [Amicus Curiae Compilation No. 2 at 86]

Source by Janhavi and Mayukh

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