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    Study Material - Mr. R.venkataramani, Senior Advocate- Supreme Court

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    219 views29 pages

    Study Material - Mr. R.venkataramani, Senior Advocate - Supreme Court

    Uploaded by

    Aarav Anand
    ghuiiooo

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
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    of 29
    Lawyers’ Ethics and Professional Responsibility Andrew Boon LEGAL ROLES 21 ‘The Lawyers Lawyers and the Rule of Lav Arguably, the adversarial system is the system that best supports the rule of law based on formal legality, It embodies the institutional separation of powers® and the rule of law. Most importantly, within the framework of an adversarial trial, lnwyers have the platform to hold the liberal state to its promises of liberty and equality. From this position, the judiciary and legal profession are strongly placed to control government powers and restrict gov- ‘emment immunities." Values of Lawyers in an Adversarial System ‘The adversarial system dictates the values of lawyers working within it, The adversarial trial of the common Iaw system demands that advocates do their ‘utmost for their clients. This emphasises the value of loyalty. However, while Jawyers are advocates for their clients they owe balancing duties to the court. ‘This emphasises the value of independence, Weber thought thatthe rational values of lawyers dominated the intelectual system of the law. Once the law is formulated, lawyers develop and pass on the skills and ways of thinking nevessary to maintain it, Weber perceived that the independence of lawyers from political and other influence were essential to the autonomy, generality and universality of law as a system, Hazard and Dondi, US legal academics, argue that the effectiveness of the rule of law depends on ‘a legal profession sufficiently autonomous to invoke the authority ‘of an independent judiciary’. Lawyers working in different kinds of legal systems have different degrees ‘of independence. Civil law systems allow lawyers less scope to control proceedings than common law systems do. Communist regimes are often char- acterised as allowing lawyers very litle independence, Adversarial systems place a premium on the lawyer’s separation from all influences outside the framework of professional values. ® See generally TC Haley and L Karpik, Lawyers and the Rise of Western Political Liber ‘la (Oxford, Clarendon Press, 1997) STC Hallidoy and L Kap “Poliies Mater: A Comparative They of Lawyers in the Making of Plial Liberals in Halls and Kapil fn 15,21 and 30. IN MacComick, The Els of Legals’ (1989) 2(2) Ral Juris 184, © Hazan and Donal (3) 1. 22. ROLES AND VALUES ‘The lawyer's social role tends to reflect the social system in which it evolved. Consider the following example: As expressed by law professors at the University of Havana, ‘the fist job of 8 revolutionary lawyer is not {0 argue that his client is innocent, but rather to ‘etermine if his cient is guily and, if 0, to seek the sanctions that will best, rehabilitate him,” Similarly, a Bulgarian attorney began his defence in a treason | teal by noting tat in a Socialist state there is no division of duty between the | judge, prosecutor, and defence counsel... The defence must assist the prosecution fo find the objective trth ina case.” In that ease, the defence attorney ridiculed his client's defence, and the client wis convicted and executed, Sometime the verdict was found to be erroneous, and the defendant was “rehabilitated! QI.16 Which formal version ofthe rule of aw does the example illustrate? Q1.17 What point about the lawyers” role is the author seeking to make? The Ideology of Advocacy ‘The dominant belief system of legal professionals in an adversarial setting has ben called the ideology of advocacy.” It is traceable to foundations laid by ‘Thomas Hobbes in positivist legal theory. In a society of exoistic individuals, pursuing their own ends the state provides order. It commands loyalty and provides each individual withthe prescribed space to pursue their own ends. This space is govemed by rules that, according to William Simon, are “artifi-

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