Dr.

ram Manohar Lohiya

National law university
Lucknow

Law and Education

Project: Role of lawyers and judges in legal
education system

Submitted by Under the guidance of

Anurag Chaudhari Dr. Shasank Shekhar

Xth Semester Faculty of law

Roll no- 150101024

1
 ROLE OF LAWYERS
IN LEGAL EDUCATION

A lawyer according to Black’s Law Dictionary, is “a person learned in the law; as an

attorney, counsel or solicitor; a person licensed to practice law.” Law is the system of rules
of conduct established by the sovereign government of a society to correct wrongs,
maintain the stability of political and social authority, and deliver justice. Working as a
lawyer involves the practical application of abstract legal theories and knowledge to solve
specific individualized problems, or to advance the interests of those who retain lawyers to
perform legal services.

Some of the tasks of lawyers are as follows:

Oral Arguments in courts

Arguing a client’s case before a judge or the jury in a court of law is the traditional
province of Advocates in some civil law jurisdictions. In countries like the United States,
that have fused legal professions, there are trial lawyers that who specialize in trying cases
in courts but trial lawyers do not have De jure monopoly like barristers. In some countries,
litigants have the option of arguing pro se, or on their own behalf. It is common for litigants
to appear unrepresented in certain courts like small claims courts indeed, many such courts
do not allow lawyers to speak for their clients in an effort to save money. In Venezuela, no
one may appear before a judge except the lawyer because the lawyers are familiar with the
court’s customs and procedures and make the legal system more efficient as unrepresented
parties always damage their own credibility or slow the court down as a result of their
inexperience.

Client intake and counselling

An important aspect of a lawyer’s job is developing and managing relationships with

clients. The client- lawyer relationship often begins with an intake interview where the
lawyer gets to know the client personally, discovers the facts of the client’s case, clarifies
what the client wants to accomplish, shapes the client’s expectations as to what actually can
be accomplished, begins to develop various claims and defences, and explains his or her
fees to the client.

In England, only solicitors were traditionally in direct contact with the client. The solicitor
retained a barrister if one was necessary and acted as an intermediary between the barrister
and the client. In most cases a barrister would be obliged, under what is known as the “cab
rank rule,” to accept instructions for a case in an area in which they held themselves out as
practising at a court in which they normally appeared and in the normal rates.

2
Legal Advice

Legal advice is the application of abstract principles of law to the concrete facts of the
client’s case in order to advise the client as to what should they do next. In many countries,
only a properly licensed lawyer may provide legal advice to client’s for good consideration,
even if no lawsuit is contemplated or is in progress. Therefore, conveyancers and corporate
in – house counsel must first get a license to practice, though they may actually spend very
little of their careers in court.

In other countries, jurists who hold law degrees are allowed to provide legal advice to
individuals and to corporations, and it is irrelevant if they lack a license and do not appear
in court. In many countries non-jurist accountants may provide what is technically legal
advice in tax and accounting matters.

Conveyancing

It is the drafting of the documents necessary for the transfer of the real property, such as
deeds and mortgages. In some jurisdictions all real estate transactions must be carried out
by a lawyer. Such a monopoly is quite valuable from the lawyers point of view;
historically, conveyancing accounted for about half of Englich solicitor’s income and a
1978 study showed that conveyancing “accounts for as much as 80 percent of solicitor-
client contact in New South Wales. In some civil law jurisdictions, real estate transactions
are handled by civil law notaries. In England and Wales, a special class of legal
professional- the licensed connveyancer is also allowed to carry out conveyancing services
for reward.

Prosecution and defense of criminal suspects

In many civil law countries, prosecutors are trained and employed as part of the Judiciary ;
they are law trained jurists, but may not necessarily be lawyers in the sense that the word is
used in the common law world. In common law countries, prosecutors are usually lawyers
holding regular licenses who simply happen to work for the government office that files
criminal charges against the suspects. Criminal defense lawyers specialize in the defense of
those charged with any crimes.

ROLE OF LAWYER AS AN ADVISOR AND COUNSELOR

3
The Preamble to the Minnesota Rules of Professional Conduct (MRPC) identifies four main
functions performed by attorneys. Most people understand that lawyers act as advocates for
their client’s interests and negotiators on their behalf, and indeed these are two of the major
roles set out in the Preamble. Lawyers also act as evaluators of their client’s legal affairs. The
fourth function that the lawyer perform is that of a counsellor or advise to their clients.

CLIENT COUNSELLOR

Just what does it mean to be an advisor consistent with the ethic rules? In representing a client,
a lawyer shall exercise independent professional judgment and render candid advice. In
rendering advice a lawyer must not only look to the law but also to other considerations such as
moral, economic, social and political factors that may be relevant to the client’s situation. Of
special note is that the role of advisor is not in fact mandatory, but once advice is requested then
independent and candid advice is mandatory. There are some rules in favour of this point which
are as follows:

1. In general a lawyer is not expected to give advice until asked by the

client.
2. A lawyer should not be deterred from giving candid advice by the
prospect that the advice will be unpalatable to the client.
3. When a request is made by the client inexperienced in legal matters,
the lawyer’s responsibility as advisor may include indicating that
more may be involved than strictly legal considerations.
4. When a matter is likely to involve litigation, it may be necessary to
inform the client of forms of dispute resolution that might constitute
reasonable alternatives to litigation.
5. Where consultation with a professional in another field is something
a competent lawyer would recommend , the lawyer should make
such a recommendation.

There are some limitations in the rules on an attorney’s ability to provide advice. The rule states
that a lawyer shall not counsel a client to engage , or assist a client, in conduct that a lawyer
knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any
proposed course of conduct with a client and may counsel or assist a client to make a good faith
effort to determine the scope, validity, meaning or application of the law.

The Restatement Third, The Law Governing Lawyers, section 94, defines “ counselling” for the
purposes of the rule as meaning to provide advice to the client about the legality of
contemplated activities with the intent of facilitating or encouraging the client’s action.

4
ROLE OF LAWYERS IN SOCIAL NORM CHANGE
MOVEMENT- TOBACCO TO CHILDHOOD OBESITY
PREVENTION

Lawyers have played a role in many public health campaigns- from gun control to
environmental justice to vehicle, workplace, and product safety. The California Tobacco
Control Programme recognized that legal expertise is vital to sound policy development, so it
carved out a special role for lawyers in California tobacco control movement: providing access
to legal resources that support the development of legally viable, enforceable, and defensible
state and local laws.

In 1997, the CTCP founded the Technical Assistance Legal Center (TALC) as a legal resource
for the tobacco control movement in California. TALC does not represent clients, bring
lawsuits or negotiate deals. Instead TALC provides legal assistance to community
organisations, local and state health department employees, government attorneys, elected
officials and their staff, and others working to denormalize tobacco use through state and local
legislation. TALC doesn’t drive the agenda. Rather it follows the lead of grassroots
stakeholders and statewide opinion leaders- identifying and addressing legal issues that arise
from their policy goals and their experience developing and implementing these goals.

TALC developed a legal technical assistance model that it has tested and refined for more than
a decade. This model breaks down into 5 parts: conducting legal research and writing,
developing model ordinances and policies, creating user friendly tools, providing training, and
providing one- on- one technical assistance.

MODEL ORDINANCES:

Firstly, TALC develops model ordinances for local governments to adopt (and model
policies for institutions to adopt) to supplement existing state law and help advocates push
the tobacco control agenda forward from the grassroots level. A classic example is TALC's
model local tobacco retailer licensing ordinance. Tobacco control advocates notified TALC
that retailers were disregarding California state laws prohibiting the sale of tobacco
products to youth. State and local law enforcement officials were not prioritizing sales-to-
youth laws because of budget limitations and competing responsibilities. In response to this
problem, TALC developed a model local ordinance requiring every tobacco retailer to
obtain a license to sell tobacco. The license can be revoked if the retailer violates state
sales-to-youth or other tobacco control laws.

5
USER FRIENDLY TOOLS:

TALC lawyers realized early on that although government attorneys appreciate the depth
and technicality of TALC's model ordinances, non lawyer stakeholders want concise and
accessible print resources that highlight available legal and policy options. The third part of
TALC's legal technical assistance model involves creating practical tools — including fact
sheets on specific legal topics, checklists representing the key components of TALC model
ordinances, how-to memos, and a booklet summarizing the tobacco-related laws that affect
California; examples are available at http://talc.phi.org. TALC produces these tools with
the assistance of graphic designers so that they are visually appealing and memorable to
readers.

TRAINING:

The fourth part of TALC's legal technical assistance model entails offering group training
for its model ordinances and tools. TALC hosts its own teleconference and in-person
trainings, and TALC attorneys speak at dozens of conferences each year. In a typical TALC
presentation, the speaker walks the audience through a given model ordinance and its
accompanying tools and shares lessons learned about what has been effective in the field.

ONE ON ONE TECHNICAL ASSISTANCE:

Finally, TALC attorneys are available to provide direct technical assistance to stakeholders
who write or call. Requests for technical assistance from advocates and others range from
basic questions about, for example, the legality of an ordinance banning tobacco billboards
in a locality to more in-depth requests for help tailoring a model ordinance to the needs of a
given community.
Through TALC's 5-part model of legal technical assistance, public health attorneys have
strengthened the capacity of stakeholders in the California tobacco control movement to
use the law to create social norm change in their communities.

Thus these are the role of lawyers in educating people and passing laws regarding tools that
are harmful for the society. Thus lawyers role is not limited to only fighting cases on behalf
of their clients but also educating people and protecting them from disastrous material and
things.

6
 JUDICIARY AND ITS ROLE

Law is a mean to achieve an end, and that is justice. If this end is to be achieved law cannot
remain stagnant. It has to be dynamic and must change according to the transition of the
society.
Constitutional Law cannot be an exception of this general Law of Change. It must replace the
outdated norms and must baptize the new ones to protect human rights.

The task of interpreting the constitution has been assigned to the judiciary. The Judiciary
in India enjoys a very significant position since it has been made the guardian and the
custodian of the Constitution. It is not only a watchdog against the violations of fundamental
rights, guaranteed under the Constitution and insulates all persons, Indians and aliens alike,
against discrimination, abuse of State power, arbitrariness etc. rather, as James Medison, one
of the founding fathers of the American Constitution once said, the Judiciary in India is truly
the only defensive armour of the country and its constitution and laws. If this armour were to
be stripped of its onerous functions it would mean, the door is wide open for nullification,
anarchy and convulsion. Liberty and Equality have well survived and thrived in India due to
the pro-active role played by the Indian judiciary.  One of the most important principles of just
democratic governance is the presence of an independent judiciary, which allows citizens to
seek protection of their rights and redress, against the government actions. These limits help
make the three branches of the government accountable to each other and to the people. An
independent judiciary is important for preserving the rule of law and is, therefore, the most
important facet of good governance.

In recent times the judicial attitude has changed with the signs of time. To analyse the present
system, it becomes imperative to consider the role of judges in the present system too as
neither of the two can be analysed in isolation sans the other. It is the role played by the judges
that has given rise to the present judicial system. We see that the judiciary has now come
forward with a new look by giving an introduction of its pro-activeness through judicial
activism, it has started giving primacy to public interest over private interest by encouraging
public interest litigation, it has also expanded the scope of various rights like right to life, etc.

The rule of law, one of the most significant characteristics of good governance prevails
because India has an independent judiciary that has been sustained, amongst others, because of
support and assistance from an independent bar which has been fearless in advocating the
cause of the underprivileged, the cause of deprived, the cause of such sections of society as are
ignorant or unable to secure their rights owing to various handicaps, an enlightened public
opinion and vibrant media that keeps all the agencies of the State on their respective toes.

 Indian Judiciary has been pro-active and has scrupulously and with immense zeal guarded the
rights which are fundamentally necessary for the human life and existence. The scope of right
to life has been enlarged so as to read within its compass the right to live with dignity, right to
a clean and healthy environment, right to humane conditions of work, right to education, right
to shelter and social security, right to know, right to adequate nutrition and clothing and so on.

The Supreme Court has, down the years, elaborated the scope of fundamental rights
consistently, strenuously opposing intrusions into them by agents of the State, thereby

7
upholding the rights and the dignity of an individual, in true spirit of the concept of good
governance. In various cases, the Court has issued a range of commands for law enforcement,
dealing with an array of aspects of executive action and of the police.

Judicial Activism is the rising of the judiciary to the pressing demands of the time and
occasions under circumstances adversely and almost irreparably affecting the social and
political fabric of our society. Judicial Activism is now a central feature of every political
system wherein adjuratory powers rest in a free and independent judiciary, in order to evolve
law in consonance with the changing needs and aspirations of the society and to serve the
cause of natural justice.

The Supreme Court was generally very cautious upto 1960s in limiting the executive
authority. But after the nightmarish experience of the emergency, the judiciary has become
more aware of the dangers of executive tyranny in India. It is under such circumstances that
the courts have to assume the responsibility of stepping into the domain of Legislature and
executive in order to correct them either by taking sue motto cognizance of the matter or
through the instrument of Public Interest Litigation.
 
In recent years, the Judicial Activism in its true form started when Justice J.S. Verma was
the Chief Justice who galvanized the process and Justice Kuldeep Singh delivered some
landmark judgments in irregularity in petrol pump allotment case and allotment of
government premises in Delhi.

Judicial Activism has also helped in protecting our environment and preserving the rich
heritage of our country. In M.C. Mehta vs Union of India. The Apex Court ordered the
closure of tanneries at Jajinan near Kanpur which were polluting the Ganga. An another case
of M.C. Mehta v. Union of India (pollution of Taj Mahal Case). Justice Kuldeep Singh,
known as Green Judge for his decision on pollution held that 292 polluting industries locally
operating in the area are the main source of pollution and directed them to change over
within fixed time schedule to natural gas as industrial fuel. This was done so because the
industries were causing degradation of Taj Mahal due to the atmosphere pollution caused by
chemically hazardous industries, established and functioning around Taj Mahal.

JUDICIARY AND PRISONER PROTECTION

(i) Reiterating the view taken in Motiram and ors v. State of M.P. the Supreme Court in
Hussainara Khatoon and ors v. Home Secretary State of Bihar, expressed anguish at the
travesty of justice on account of under-trial prisoners spending extended time in custody due
to unrealistically excessive conditions of bail imposed by the magistracy or the police and
issued requisite corrective guidelines, holding that the procedure established by law for
depriving a person of life or personal liberty (Article 21) also should be reasonable, fair and
just.
 
(ii) In Prem Shankar Shukla v. Delhi Administration, the Supreme Court found the
practice of using handcuffs and fetters on prisoners violating the guarantee of basic human
dignity, which is part of the constitutional culture in India and thus not standing the test of

8
equality before law (Article 14), fundamental freedoms (Article 19) and the right to life and
personal liberty (Article 21). It is observed that to bind a man hand and foot fetter his limbs
with hoops of steel; shuffle him along in the streets, and to stand him for hours in the courts, is
to torture him, defile his dignity, vulgarise society, and foul the soul of our constitutional
culture. Strongly denouncing handcuffing of prisoners as a matter of routine, the Supreme
Court said that to manacle a man is more than to mortify him, it is to dehumanise him, and
therefore to violate his personhood.

(iii) In Nilabati Behera Alias Lalita Behera v. State of Orissa, the Supreme Court asserted
the jurisdiction of the judiciary as the protector of civil liberties under the obligation to repair
the damage caused by officers of the State to fundamental rights of the citizens, holding the
State responsible to pay compensation to the near and dear ones of a person who has been
deprived of life by their wrongful action, reading into Article 21 the duty of care which could
not be denied to anyone.
 
(iv) In Delhi Domestic Working Women v. Union of India & Others, the Court asserted
that speedy trial is one of the essential requisites of law and that expeditious investigations and
trial only could give meaning to the guarantee of equal protection of law under Article 21 of
the Constitution.

(v) In D.K. Basu vs State of West Bengal the Court found custodial torture a naked violation
of human dignity and ruled that law does not permit the use of third degree methods or torture
on an accused person since actions of the State must be right, just and fair, torture for
extracting any kind of confession would neither be right nor just nor fair.

JUDICIARY AND WOMEN

In Vishaka & ors. v. State of Rajasthan & ors., our Supreme Court said, that, gender equality
includes protection from sexual harassment and right to work with dignity, which is a
universally recognized basic human right. In the absence of domestic law in the field, to
formulate effective measures to check the evil of sexual harassment of working women at all
workplaces, the contents of international conventions and norms are significant for the
purpose of interpretation of the guarantee of gender equality, right to work with human dignity
in Articles 14, 15, 19(1)(g) and 21 of the Constitution and the safeguards against sexual
harassment implicit therein and for the formulation of guidelines to achieve this purpose. This
is done in exercise of the power available under Article 32 for enforcement of the fundamental
rights and it is further emphasized that this would be treated as the law declared by the
Supreme Court under Article 141 of the Constitution.

The aforesaid cases are only few examples from numerous judgments concerning human
rights. Playing a pro-active role in the matters involving environment, the judiciary in India
has read the right to life enshrined in Article 21 as inclusive of right to clean environment. It
has mandated to protect and improve the environment as found in a series of legislative
enactments and held it to be a State duty to ensure sustainable development, where, common
natural resources were properties held by the Government in trusteeship for the free and
unimpeded use of the general public as also for the future generation.

9
 Judiciary and Environment
The Court has, time and again, expressed concern about the impact of pollution on our
ecology in present and in the times to come and the obligation of the State to anticipate and
prevent the causes of environmental degradation and to secure the health of the people,
improve public health and protect and improve the environment.

JUDICIARY AND ELECTION CANDIDATURE

Further, the Indian judiciary has made significant contributions through various
pronouncements to check any loopholes and any possibilities of abuse of the power by the
election candidates. The criminalisation of politics has been one smouldering issue since it has
an immediate bearing on the choice of the candidates in an election and goes to the root of
expectation of good governance through elected representatives. Treating the right to vote as
akin to freedom of speech and expression under Article 19 (1) (a) of the Constitution and
enforcing the right to get information as a natural right flowing from the concept of
democracy, in the case of Union of India vs Association for Democratic Reforms and
Another., the judiciary brought about a major electoral reform by holding that a proper
disclosure of the antecedents by candidates in election in a democratic society might influence,
intelligently, the decisions made by the voters while voting. Observing that casting of a vote
by a misinformed and non-informed voter, or a voter having a one sided information only, is
bound to affect the democracy seriously, the court gave various directions making it
obligatory on the part of candidates at the election to furnish information about their personal
profile, background, qualifications and antecedents.

JUDICIARY AND EDUCATION AND MINORITY

RIGHTS

In the field of education and the rights of minority, there are various judgments in last about
50 years which have contributed immensely in both these fields. T.M.A. Pai Foundation &
Ors. vs State of Karnataka & Ors, Islamic Acadamy of Education & Anr. vs State of
Karnataka & Ors. and P.A. Inamdar & Ors. v. State of Maharashtra & Ors. led to the
insertion of Article 15(5)]21 in the Indian Constitution. The Supreme Court has time and
again held that fundamental rights are primary rights necessary for the development of
human personality and these rights enable a man to chalk out his own life in the manner he
likes best. It has said that, fundamental rights are given a transcendental position under our
Constitution and are kept beyond the reach of the Parliament.

10
 JUDICIARY AND THE POLICE

The Police and other investigating agencies are insulated and protected from any kind
external pressures and his has been reiterated by the Supreme Court in Vineet Narain & ors.
v. Union of India & Anr and Prakash Singh & Ors. v. Union of India & Ors.

Thus we see that judiciary has become not only active but pro-active. It has brought in winds
of change in all spheres of human activity. Today judiciary is the only hope of the common
man as far as redressal of grievance and administration of justice is concerned. Looking at
the above instances of cases, we can very well conclude that now one can look upto the
judiciary for improving law and order in the country which is imperative for a democratic
country like ours. Our judiciary has, thus, played an extremely crucial role in development
and evolution of society in general and in ensuring good governance by those holding reigns
of power in particular. Hence if judiciary continues in the same vein, the day is not far when
there would be adherence to law and order by one and sundry and there would be a
reduction in the number of offences, with all the organs responsible for regulation of the
society, functioning satisfactorily for the amelioration of the society, leading to a welfare
state.

Conclusion
These are the various role of lawyers and jurists in establishment and functioning of best legal
education . Ethical aspects of legal profession must be included in the law faculty curriculum.
Interdisciplinary approach to curriculum development is necessary to make the students more concerned
about society, to make them understand the requirements of its progressive and humanistic development.

11
For the legal education to have any practical learning it is important to guide the students learn the lessons
of ethics, morals, law, justice, human rights and society in their inter relationship, so that they can better
identify their tasks in the service of the people and in progressive development of the society.

The whole idea of clinical legal education can go in vain if ethical side of legal profession is overlooked.
The objective of clinical legal education is not merely to help students master the skills of lawyering and
make them technically sound.

In representing a client's case in the court, student lawyer must not resort to any means, which is morally
condemnable and must avoid resorting to false witnesses and distortion of facts. While client's interest
must guide his actions and efforts, ethical and moral values must also be upheld, for in that lies greater
good of the society. In fact, in all the programs that are linked with clinical legal education emphasis is
always on the aspects of justice, protection of rights and progressive development of the society.

Bibliography
1. David A.Chavkin, Professor of law & Director ,Civil
Practice Clinic, American University Washington
College of law , Clinical legal Educaiton : A Textbook
for law School Clinical Programs (2002).
2. Dr. J.N. Pandey , The Constitutional law of India, 47th
edition ,Central law Agency.

12
3. Frank .S. Bloch , The Global Clinical Movement
educating lawyers for social Justice (2007)

4.N.R.Madhav Menon ,Clinical legal Education , Eastern Book Company

(2008).

13