Class 1: - 15/07/2021

Prof Prerna Bijay. And Anirban

Locating your ethical responsibility:

Everything in Law is not something like Mathematics. It is subject. Law in which moral questions are
involved. There are no definite answer.

This course is to help you to identify. Whether question you are facing is a question of ethics or not.

Bar Council rules prohibits you from supporting the client at any point in time.

Are you doing right under Professional Responsibility of Bar Council?

Section 126 Indian Evidence Act – Privilege Communication.

First class citinzenship model

And Genome’s Advocacy.

Hospital X and Y.

ZEALOUS ADVOCACY. The client centred nature of advocacy comes from. My client vs. the whole
state. If ethical thing would have been to disclose thing, the criminal lawyer is going to go down in
his business. It is important to build between the client and attorney.

The In Re bulge bell – 2 alternate dead people. Compared to this case, an actual living human being
who had to be in here. In RE BELGE. CANON Ethics.

The Buried Bodies Case. (Lake Plasant Bodies case).

Class 2 – 16th July 2021

Professional Judgment: How are you delivering the service. Because you are a professional. A
professional service provider. A person who is hiring your service is dependent on your judgment.

Many people say that these judgments are related to immediate professional thing. Whether to
write a notice or not to write a judgment. Whether to negotiate with the employer or not.

Morgan’s case example or the bledge case – the lawyers too certain decisions. They are largely to a
extent of professional judgment. Should be compartmentalize or learn these things.

Hamilton vs. Ramson: One is influential person. A secretary of defense of the George bush
administration who decided to take the fight of the 9/11 incident. Invade where this organization or
terrorists groups are there. Then the action started.

The lawyer said that is not what independent advocate is supposed to do. A person is a military
defense counsel. A person

JAG Attorney

As an attorney you are not allowed to give money to a client.

Anirban – you did not listen well in his class. So try to listen to the recording again.
Class 3: 20th July 2021

Because of the times we live in, we can not rely on the ethics of one single thing. Sometimes what
the society where you live in – they have to say something. It is a choice that you make. You have to
understand this as an individual choice. This gives an individual a chance as a trusted person. It is a
very huge implication. This person is a thinking reeling human being. He/She is also driven by certain
moral implications.

Since our societies have become complex, our morality can not always be the same. Because of the
multiple identities I hold. It might be that there are a couple of people

BAHUMAN – Article. If life circumstances and experiences defines what is morality. Having a life time
understanding life in a very rainbow kind of fashion.

3-4 Class Miss

Class 27 July

Borman – previous reading that we did.

Reading by David Luhamann

DOWNLOAD THESE PAPERS.

Alone Again – Demos Papers by Zygmut Bauman

Luban Introduction Legal Ethics and Human Dignity

A theoretical excursion Hutchinsons Fihgting Fair

Wendel Legal Ethics is about the Law not morality or Justice.

McCracken et al Virtue Ethics and the Parable of the Sadhu

Module 2 – Anirban – duties to the client.

Indira Jaising case – people look upto her. Choosing not to represent a person even though
“innocent until proven guilty”. There are multiple ethical ways in which you can look into this.

Some people said that maybe writing a paper was not a good idea. She has been a person guilty in a
way. Even if she chose not to represent atleadst chosing not to write was not a good thing.

Connection between 1st and 2nd reading.

By Zygmun Bauman Alone Again – There are ideas that they are not clear with.

David Luban – has written about Legal Ethics. It should be taught from the first class itself. Prerana
agree that Ethics should be taught in a EVOLUTIONARY way (from first year progressively).

Legal Ethics is a course worth exploring. Even when designing HYPOTHETICALS (Law Firms,
Prosecutors or Defense Lawyers etc.). Initially there would have been introduction.

Ethics for a PIL – a person who is defending the state. What are the ethics of these lawyers and how
do we recaliberate? What will be the ethics of the PIL Lawyers and the state lawyer.
Anuj Bhuwania – Courting the People [PIL Litigation has transmorphed into a scenario where under
the garb of PIL – real petitioners on whose behalf these PIL has been filed. Exception to the Locus
Standi Rule – How lawyering happen in a way. How PIL Litigations happen – do you even give voice
to the petitioners? ] Because years and years are passed.

The difference between Legal Aid and Legal Resource (where the second is a two way approach – 2 nd
Year Dias Paper). – training people from the same community you are representing.

PIL Litigation is an Industry. What is the Ethics that the organization is following. Anuj Bhuwania’s
Book.. – do lawyers really understand who are the petitioners and what are there demands.

Keshvananda Bharti – who was he actually? – He happened to be someone who had a lot of land.
Head of a Muth. It is how the profession has developed. What is the SOCIAL BACKGROUND OF THE
PETITIONER – since it makes our knowledge of law very parochial. Do these people actually have a
say in the court?

How will you be making a difference as a PIL Lawyer? – Do they want any kind of intervention?

Section 126 of the IEA – Attorney Client Privilege. They came to know the ILLEGALITY they came to
know – they hid. According to Law it is Ok.

Now, if you are looking at the Book – there is an illegality of Finance. In this case, it will not because
the ILLEGALITY IS PERSISITING. Thus Attorney Cleint Privilege would not be applicable since the
Criminal illegality is Still persisting. There are nuances on how the law is applied.

Why Indira – chose not to represent Taleb Hussain.?? Was her choice right?

Maybe she would not have chosen to write that letter. Your CAB RANK RULE – Once you have said
yes to a Cleint, you cannot say no. You need not necessarily believe in the innocence of the Cleint.

Even if she had the choice to turn down the client, the way she made it – was it fair? Since, she made
it difficult for her cleeint to get a FREE AND FAIR representation in court because of her following.

The ethical choice she made to be made in public – maybe said to be a Ethical Choice she made.

The Bar Council Associations go with the statement – that No representation can be made if that
person. Indira did not explicitly said it – but people taking her as a role model. The broader question
was that WHY she chose to write a paper.

Class 28th July: Luban Reading.

Legal Ethics per se. From a Legal Ethics Standpoint.

The first reading was more like a generalist understanding. What ethics entails what is the problem
of Modern day world – what are the implications of it.

David Luban – Introduction to Legal Ethics and Human Dignity – structure from what to expect from
this course. How to structure our practice. Divided the chapters into 5 parts.

Who the Lawyers in question – Luban is not a lawyer. He got interested in this area because him
closely working with Lawyers. So he has a Outsider perspective.

Because of the fact that he has never Practiced – FRIENDS SITTING SETUP –
Insider outsider can go the does not.

Talks about divide 5 parts. Rule of Law and Human Dignity connection. How RoL is in connection with
Human Dignity.

Third part – Organizational Evils

Bauman – What is the Post Modernistic understanding of evils?

4th Part – Adversarial System and Moral Accountability. How Adversarial Legal system are structured
enables the LAWYERS to put in any means possible. All of it has an Imbelished understanding of
what it wanted to entail. At the very heart of Legal Institutions. Plato’s Understadning – Adversarial
System – rather than talking about the Teleological end. Adversarial system – MY Client interest
should be better served. – Kind of a Paternalistic Outlook – whatsoever damage it does to the
society.

5. Messages of Moral Life.

A. Who are the Lawyers in questions?

Who will enhance human dignity. How many of you see yourself as Human Rights Lawyer? – Is it only
the HR Lawyer who is taking care of Big Ticket case. Indira Jaising – Taleb Hussain case – the nature
of the case was some that big ticket ques were involved.

CAB RANK RULE.

It involved broader ques of ethics. It is not something in these huge cases only – but also in the
Mundane Hum Drum cases – ethical ques are involved. Regular work.

Abstract Notion of RoL and the day to day life. The lawyers ensures that there is some kind of
regularity. There is smooth functioning of Contractual Obligation.

Regularity in this setting apart from Fulfilment of contractual obligation, example of Russian Women,
for paying to Mafia they will work not the case with govt. Lawyers ensure REGULARITY. Other party
is going to give you XYZ because you can demand it.

Regularity smoothness in business transaction. Even in case of breach, the lawyer would be telling
how to go about it. Abide by the transaction you can enter into. There is a breach of contract. So the
lawyer will give the recourses. This is regular thing that happens. So the lawyer tries to give
regularity by fixing this irregularity.

Fuller’s Argument : use it. What is Morality of Law? What is good law? – Responding to Hart. Her
says Fullers wrote it to give lawyers the understanding of how a law is made. Understadning what
the needs of party and putting it in Legal terms. If the other party breaches it in someway. This is
precisely the role of lawyer – They are the ARCHITECCT OF SOCIAL STRUCTURE. In there day to day
life, they work on how the structure is going to work.

In some jurisdiction, it is said that during deposition you can consult your lawyer. However, it is not
practiced within the legal community. (Breaking me consultation denge, like if you pause this will be
interpreted this way).

Lawyers are architectures of social structure. How we understand ethics and how we under moral
dignity.
When he talks about RoL and HD. RoL is a abstract concept. Like the Russian Women dealing with
the Russian Society. RoL is a tangible exposition. There is lvel of arbitrariness who will answer the
call, their mood.

Putting the flag down because being offensive to the litigant. AShows Bias if not put down.

It was a question of RoL that the litigants have trust in the institution of Judiciary.

It shows how RoL works. Institutional Advisory bas nhi hai. That is RoL.

Former Chief Justice – Sexual Harassment – Gogoi – Comm – she did not agree with the comm. – CJ
presiding in his own case. Ramanna was also a close friend. This women was also snooped upon.
After the enquiry commission was setup – If we take this case, entire fact was that she did not trust
the INDEPENDENCE OF THE JUDICIARY. There was one judge who was neutral in listening to me.

Was it Prasad or was it Mithai? – Like these questions that were asked.

Ethics 29 July

Luban – How see the connection between RoL and everyday life in the Human Rights lawyer.

Regularity of Practice: How the lawyers maintain that regularity. It is in the regularity that we get to
know about the Outrages. Larger implication of how RoL can be interpreted.

Connection between RoL and HD. – John Fuller work (Inner Morality of Law). Connection is a broad
one and understand it in – Her says it is a bad system. 8 ways in which Rex fails all of it actually
makes a bad system.

What about the System that is Bad. 8 features that Fuller talks about checkmarks the BAD LAW
coming from a BAD System – so will it be ok?

Fuller – Why Nazi Law was bad. Because it lacked the Inner Content. Nazi failed because the inner
criteria was not passed.

CAA – NRC – Process was passed. Rule of Law – it makes the life of the dictator difficult. Rule of Law
and Dignity – It is a connection that is FORCED and FRAGILE (acc to Prerna).

Bauman – Organizational Evil.

Adversarial System and Moral Accountability: Major thrust of argument. 26 Years in prison case
client of 2 lawyer – client attorney principle – this idea we are living and breathing with. We cannot
go by the normal idea of moral. Going with the interest of the client. He talks about the limintation
of adversairial system. He says it is an INSTITUTIONAL Excuse. Taking the role of Neutral
Partisanship. As lawyer, Neutral Partisan to my client first. This is how a lawyer holdas it – may be I
know that the lawyer is guilty – We need to UNDERSTAND THE PURPOSE OF ADVERSAIRL SYSTEM –
LOOK ARISTOTLALIAN SYSTEM. WE KIND OF ASSUME THAT BOTH PARTIES ARE WORKING FOR THEIR
OWN PARTY. GLADIATOR LIKE THING. TRUTH WILL COME OUT. BEST CASE FORWARD jo put krega
will win.

HE COMPLICATES THIS IDEA. UNRAVELLING THE ASSUMPTION – MOST TIMES AS ACTUALLY

OPERATES IN A WAY WHERE WE MAKE DIFFICULT OFR THE OTHER PERSON TO ACTUALLY PRESENT
THEIR BEST CASE. TACTIC of Counter-Cases. Dumping the cases. Resources dum[p. INTIMATION
TACTIC. How it is employed in the modern day society. How it is used as a Double Edged sword.
Case of Dalcon She – Intra Uterine Dervice to be used as Contraceptive – but women who used got
pregnant. There were abortion too and long term illeness. They argued that it was not a FDA
approved material used to make this device.

But the lawyers of the Company – they prepared the DIRTY QUESTION LIST. – what they did was that
they asked very dirty question. They asked these question to understand the Sexual Health of Person
(cunningly). But they wanted to make them Relive those traumatic experiences – So many of the
people backed down.

How Adversarial System ENABLED the laweyers to uise such Tactic.

MJ Akbar Case – these people are powerful man. The political clout that this man holds. – Delhi
Karanjwala – used tactic against Priya Ramani – there were almost 97 lawyers used against her. A
team of lawyer. It is an INTIMIDATION Tactic. Karanjawala thing. It was not something that is usually
done. You espourse the Adversatial system so Justice could prevail and trust can come out.

Reply by some student– the response should come from the system itself rather than asking the
lawyers to change themselves.

Anther student – the lawyer would face some kind of boycott and the system who wants to hold
power would subjugate them.

Pressing the hardline adversarial role – the best deal possible. Opportunity of course connection
should come from the structure itself.

When he unravels adversarialism – when we talk about Zealous Litigation. A moral thing to be doing
something – zealous advocacy requires you to go outside of it. I don’t see that every time a lawyer
places himself or herself.

Inner Morality and Outer Morality part. It distinguishes how he understand – He maintains the
distinction. Adversariallism does have a Legit Teleological end. He wants to appreciate in a criminal
matter – taking the adversarial route – for ex. A deporation case. By very nature it is Individual vs.
State. The might of the state. It is to be reckoned with. Our liberty is not curtailed in a way. Our
understanding of criminal justice system.

Balton Field case – Criminal Justice system favoring the Corporation. When you are asking for
discovery of material and you dump them with paperworks. What is the Legitimate purpose of
Adversarilism. – When against the State, it is important as Hardline Adversarialism – it makes a just
thing to do. However, in a Civil case using such Hardlining does it make sense? .

He says Adversarial System is better in a Criminal System as you are against the MIGHT OF THE
STATE. It is not that the world is going to suffer. The good aspect of adversarilism comes in a Criminal
Trial. Maintaining some level of dignity to the other side.

Luban – Crim Justice how it looks in criminal is different from civil. It not really matters – when you
look at criminal offence – the fact that whether he went scott free – what justice actually mean.
Death Penalty Project. Criminal Justice Syastem – if we go with the thing that Criminal has
committed –
30th July

Legal ethics we want to be establishing, Luban – the standard conception of lawyering in adversarial
setup is that YOU are for YOUR CLIENT ONLY. TAKE CARE OF THE CLIENT and do what the client
wishes.

It is basically because we do not understand the purpose of adversarialism. Adversarial Hardliners

position is more for the criminal justice system. A collaborative affair for both the defense and the
prosecuting lawyer.

Jag Attorney – Military commission took upon himself to argue the matter. When the counsel finds it
out, I am not going to be bound by the rule – He was going against the bosses costing him
proomition. Military Commission Counsel – the entire process happens in an administrative setting.

It is an Inquisitorial Affair. On the face of it – it looks Inquisitorial. It is the idea that truth will come
out – from the accused person lawyer.

How Inquisitorial may be a good idea ? Manjri ques. -- -- Trust repo with his own client . He used to
Meet with him in Civil Cloth and not Military cloth. In criminal proceedings, there are certain
advantage to it as well.

Because things are not going to be changing as hard as they could. Mainstream practice is to
understand. Practice Adversarilism in a way – Outer edge of legality. If you push to the legality part,
you will find yourself there. It becomes like a norm in its own system.

= what happens to the aspiration of me as a lawyer. But should I be caring of the other side’s lawyers
need?=

Jonathan Glover reading – High Moral – Let evil come in the world and I will do nothing or atleast
something that I can change.

Despite its origin – despite probably the fact that we will have very little consequences. We are
trying to sustain moral practice of law. Growing-Going very fast. Growth doesn’t need to look only in
financial terms. There is an outlook that might not be shown to you.

You can be shown that outlook. It might sit well with you. Adversarilism and Moral Accountability

Organizational Evil in both Bauman and Luban

Bureaucracy and Business enterprise – it limits our choice inside a business setup – it reduces our
choices. If there are ethical ques. Involved – asking the ethical ques is not really asked about us.
Ways in which Bureaucracy and Business setup kind of limits our thinking.

Ideas in which Bauman and Luban kind of agrees – an associate might be taking – you do not really
tell the part. A choice a Partner makes. If in that role, if an associate ends up doing some outher
thing, the partner waive off the responsibility.

Certain A0 ends up doing something Illegal. Whther the moral responsibility – where will it fall. It is
deliberately made that way SO WORK PASSING BECOMES EASIER.

Whether an Organization is a Legal Thinkking Entity (Piercing the Corporate Veil).

When we are expected to be doing our job – when we are put in such a perspective – how evil is
organized – if I find myself in an organization itself – Like NALSAR – it is like RULES GOVERNING YOU.
Community of people governing you – Commonality of Experience that we face.

Situation Alternative – Comoraderie comes in place – why we continuously keep on doing it. This
COGNITIVE DISSONANCE HAPPENS. It makes me uncomfortable but I still do it – we STOP
QUESTIONING IT – Seeing it as a Conflict – we STOP Seeing it as a Conflict ALTOGETHER. Because our
expectations are there – we dissociate that discomfort.

These decisions are taken very quickly. However, the structures are such that we are asked to give
and take decision fast. We are not given the time to think and process. So we go up to our
IMMEDIATE AUTHORITY FIGURE. This gives WILFUL OBEDIENCE in the Organization.

MelaGram Experiment (Discussed in the book). – People AGREE what they are asked to do. This case
is an Outlier. Majority people would agree.

Ethics is not something – YOUR ETHICAL THOUGHT IS NOT GOING TO COME UP ONLY FROM THE
RULE, BUT IT ALSO COME FROM THE EXPERIENCES AND THE GROUNDING FROM WHERE I COME
FROM.

Moral Ethics of Life – Ethics has to be grounded in the community. An individual works on those
principles. The way in which we navigate those part is going to be different. There might be
additional circumstances that we may see. I might be a Lawyer who can be a Criminal Defense
Attorney – But what is the INNER MORALITY of this Lawyer? – So they have to appear to be hard.
There are different expectation. Sometimes they try to run hard, or they try to MOULD THEMSELVES.
If we take these choices, how is it going to affect us.

DON’T LOSE A SENSE OF YOUR OWN SELF.

Dignity and Rule of Law – How in his book he has LOOSELY CONNECTED THE TWO TERMS.

Ethics of Lawyers – More focused.

Wendell Reading –

3 August 2021

Luban reading done.

W. Bradley Wendel – How ethics are understood. People were writing from a US Point of view. Most
literature is coming from there.

Dual Responsibiliy – Lawyer Responsibility as a Lawyer and the responsibility as a Human. There can
be confllciting responsibility. This can be like a riverbank – Responsibility as a Citizen (Normal
Human) and Morality as a Lawyer.

If I am feeling a sense of Cognitive Dissonance – How I am going to reconcile it – is by IDEA

EXCHANGE. Agaain, Indira Jaising Case according to Cab Rank Rule, she should not have done it.

In India generally it is not the rule in practice – ki Cab ask and cab say and cab can’t deny it.

However, IJ decision to not represent was in violation of Cab Rank Rule. Legally Speaking, it was a
wrong thing to do.

Wendel – A lawyer’s ethics would be DETERMINED BY HOW GOOD A LAWYER IS IN HIS CRAFT.
There would be some level of Self reflection in voled in the Luban and Bauman reading. However, for
Wendel – he says we are not negating that there is a Moral Aspect – but the choices that a Lawyer
should be – WHAT IS THE SOCIAL GOOD OF LAWYERING SAY A RULE LIKE A CAB RANK RULE. He says
it is FIDILITY TO LAW OR FRATERNITY TO LAW – He says the Lawyer’s rule should preside over the
Moral thing.

You see Law as something that binds you as well as your client. It is enhancing = you are taking the
CARE OF THE ENTITLEMENT OF THE LAWYER AND NOT JUST INTEREST OF THE CLIENT. Both the
Lawyer and the client are bound by the obligationsunder law.

Prerna – Primer on Philosophy of Ethics.

Balkan Seeds case – Intrauterine case – Cancer – some initial petitioner – the petitioner were asked
very traumatic ques.

In context of Adversarilism (Luban) – what is the harm it can happen.

AH Robert BALKIN Case – there is no Legal Discovery of Law. It is a tiring process just to Delay the
proceeding. There is NO Restriction to ask such question. A lawyer like Wendel (Positivist – FIDILITY
TO POSITIVE LAW) – It is purely a question of how you view the other side. Wendelian Idea – how a
Lawyer would be affected by it. He is not giving us a clear understanding of whether the lawyer
should be asking such questions or not….

Entire debate is that he look at it from a VERY POSITIVIASTIC LENS.

What is Wnedel’s Idea and Luban.

WHAT IS LEGAL ETHICS AND HOW DO YOU SHOULD UNDERSTAND IT IN PROFESSIONAL CONDUCT.

SOME say it should be morality and some say it should just be positivist law. Wendels is on the
later side. He says Ethics is Law. However, Luban says ONE NEEDS TO HAVE THAT
UNDERSTANDING TOO – WHAT ARE THE LARGER IMPLICATION OF THE DECISION UNDER THE
ORDINARY MORLAITY OF A PERSON.

Is it OK to take a Hardline Adversarial In criminal. Yes, since State Might on the other side.

Positivist Law and Morality – we should SELF REFLECT. Luabn was taliing about dignity and Fuller
(Natural Law theory0 – looking at ethics from a Moral Perspective.

However, Wendels say Ethics is not morality but just Positivist Law. He says Ethics is just law and not
morality.

Response to Critics:

He has mentioned the criticism but prerna feels that actual criticism has not been addressed in his
paper. Hutchinkson is doing a Critique of Wendel work which Wendel has not even registered in his
book. Wendel did not write about it.

Why Wendel sees ethics only as rule.

1. Law is something – like a Rubber and Shoemaker – they can have multiple interpretation –
setting it in Stone positivist approach – he SAYS dismissing it – indeterminacy of it do it in a
RHEOTORICAL WAY – when it comes – both parties will argue and all of this happens if we
engage in Legal Argumentation and cannot happen from just outside. If you look at the first
criticism – they are just giving a rhetorical response. If lawyers actually evaluated how legal
 arguments are made – they would not come up with such argument. (Page 5 of Wendel
Legal Ethics paper – 16 page paer. ). The way he concludes his criticism – He kinds of draws a
Distinction between Theorists and the Acadmicians. – Academicians how they theorize. Thus
it is so Rhetorical. It is actually the Craft of lawyering. Prerna – It is smart way of FLATTENING
THE DISCOUSE. Academic circle me Ivory Tower wala argument ho skta hai. Prena says she
feels it is a incidious thing to say. Does Assuming that the PRACTICE FLOURISHING IN THE
COMMUNITY WHICH THE PRACTITIONERS do not have problem with 9which the acadmic
circle have – does it make sense to say because they don’t have priiblem it is Ok? \\
2. Second
3. Exclusion of Politics – criticism – Al Feri ca Go – he is not blaming the community lawyer who
are actually engaging in Activist kind of lawyering.

When you say the System is not trying to look into my needs. Should I just negate the system or try
to make a place in it? How employer’s and employee asked to do something. Because employees are
like this is the mandate of law. According to Wendel, it requires you to be within the System.

Alchemy’ how a person has a very RIGHT kind of life. Owever, for a person who has to FIGHT for
everything will view Right from a very different point of view. Manhatten – white male colleague.
However, for Black Women she goes through the entire process of making contract etc. etc.

Apologist critique – he did not see it as a Civil Disobedience of Law. He is saying that as long as there
is back and forth between different actors – as long ads people are participating – they are getting
some of their demands being fulfilled. Wendel suggested that LAW POINTED outcomes would be
beneficial. Thus, it is important for articulating it in Legal Point. Because when they are trying to take
means Civil Disobedience – Authority ko dikhao that we want our demands – articulating THE
DEMAND IN RIGHT’S DISCOURSE WOULD BE MORE BENEFICIAL.

4th August:

How Jurisprudential understanding – placing Lawyers in our practice. Basic nuggets of wisdom.

Wendel has written a paper in a way that he is responding to the criticism. Wendelian Notion of
Legal Ethcis says that there is VALUE IN LAW PER SE and how Law helps the society and how it has
social purpose. It has a Politcal Economy perspective to it too. Wendel says that there is MORAL
VALLUE IN LAWYERING. There is some sense of Certainty that comes with Law. This serves a
Functional Purpose.

Justice in his term – is obeying to the Positive rule of BAR COUNCIL. There is some value in positivism
too especially when we are dealing with Authoritarian govt. Because they would not be wanted to
bound by Rule of Law. As long as Lawyer is taking care of the LEGAL ENTITLEMENT of the Cleiint,
they are good. This takes care of their Moral Responsibility too. There should be no responsibility of
Moral Choices that the client is taking as it is his/her prerogative. It is he who choses to do it.

FUNCTIONAL UTILITY understanding yahi hai – I was bound with legal thing – I cleared it. Bas itna hi
responsibility that meri.

What means as Lawyer performing ethical duty?

Enabling your Legal Craft. The nuances you make in your argument.

Hypothetical: Business and Commercial Nature pr hai. He will go with Plan B. in Wendelian terms.
It will leave the moral conviction to the client. Critics say that it is an Easy checkout.

People actually look to you for advice. As a lawyer, you give a very business like advice. People would
be losing on the Jobs. One can look at it, say I understand the criticism. Giving Moral Advice to client,
the kind of legal arguments I make. This is where the craft of legal lawyering is.

Focus on the Craft.

BEST INTEREST OF A CORPORATION –

There was possibility of constructing the wall. For a person who has not even constructed the wall.
You are not being reasonable. Relevance on how Legal Craft is understood. A ball is hit so hard that it
went out the ground. So should we increase the height so high? – Cost wagera. Lawyer ke opinion pr
gye – He chose to go to this idea of REASONABLE CARE. He looked at how reasonbale care has been
understood. Even though the investment wasn’t much and the board could afford to increase the
wall. He advised the board against it following precedent saying as long as IT IS REASONBALE IT IS
FINE.

If you are trained to do – what you are paid for – what you have COMPETENCE in – you should give
only that – not make Moral Choices. You should do by PRIVILEGING THE CRAFT OF LAWYERING. He
says it is a TECHNOCRATIC ENTERPRISE. – It is what the CLIENT IS EXPECTING YOU TO DO. NO OTHER
PROFESSION IS GOING TO GIVE YOU THAT. IT IS NOT THAT YOU ARE MAKING ONLY FORMAL
ARGUMENTS – training of lawyering is not devoid of morality, equity but it has that element – law
has that element. Thus you cite good conscience of court etc etc. Go for these practices.

Focus on the LAWYERING CRAFT.

Values of Common Law, Equity – the Lawyers are also seeing at this when putting legal point and not
only formalistic point.

In Wendel’s Notion – there is nothing wrong in Cleint asking for Moral Advice. And even if you give if
asked, then it is only the CLEINT that has to take the decision.

Aren Hutchikson – reading critique of Wendel.

Wendel says Law cannot completely get the complexity and the comprehensibility of life. It can only
make it stable and certain. By taking this approach, we only look at the LEGAL ENTITLEMENT thing,
which can result in DEHUMANISING of the CLIENT. You can do more harm since we need to
understand THAT HUMANS LEAD A VERY COMPLEX LIFE.

What adversarialism should look like? – should you ask ques of Promiscuity etc etc.

Critique is you do not want to change the Things there. Status Quo – there is Potential for change if
you think about it.

5th August

Wendel – there is larger POLITICAL MORALITY on how things are/. And How Lawyers function. He
should not be concerned with the ordinary morality. You being an ethical lawyer – that why he
stresses on the craft of lawyering.

How the actual practitioners went about it. Real practitioners and academics were on the opposite
end. He tries to make sense of what is happening in reality. You try to see best value in client.
By trying to focus on the craft – instead of delving into the legal question – sit comfortably with the
fact – Plan B gave you 2 million dollar thus making an entire population unemployed. By doing this I
may be a Morally Unworthy person but according to Wendel you do not need to thing about it but
only about your Legal Craft because you are not equipped to deal with Moral Question.

When we calls it Lawyer Craft – What exactly is the Lawyer craft and how creative is your
interpretation – it is not something – a very thin line between – for a person who is making such an
argument – you might be making a claim which other might not be making.

Hutchinkson – he is not looking at the COMPLEXITY involved in the Legal Craft. Same Sex Marriage
was not conceived. Frivolity of Today can become Law of tomorrow. – Thus you CANNOT JUST
FOCUS ONLY ON THE CRAFT.

Interpretation – even if you are making a Novel kind of interpretation – how will you test it? If you
make an argument in front of a lawyer friend – then that is something that is worth pursuing. Owen
Fiss, Page 11 of 17 page Hutchinkson Fighting Fair Paper. As long as the legal fraternity – legal
comminioty – by putting the faith on the community – what one does is that you are PRIVELGING
THE INFORMATION or the KNOWLEDGE BASE that is already present in the community.

It has a Paternalistic way of looking at thing. It is like a Bonzai Plant. It is tailored in a way that it
grows in a certain way. Your community might not be a legal community. You are priveling a legal
community idea. I see the problem in Privileging of the legal community.

This sense of Privileging that happens of one’s own knowledge is problematic. It will have drastic
consequences. Critical Legal Studies. Economics of Law – that has come. Privileging one set of
knowledge. Law never survives in VACUUM. You needed to have that graduation. You cannot do a
Specialized course like Law without looking into the society.

There is also an OUTSIDER’s perspective which Wendel is not focusing on.

There are few challenges. It is a question in Jurisprudence. In the eyes of legal community – this is
the question of Jurisprudence – He uses two example – a person borrows money after the statute of
limitation (you can chose not to pay) – they can get away on Technical legal ground – now Wendel
proponents say it is not an ETHICAL DUTY to give client advice. Furthere, the ultimate choice lies
with the client. Ultimately, moral choice is with client.

Thus, Moral Accountability is on Client according to Wendel.

2nd Challenge – Hutchinson –

Faulding vs. Xenomen Spaulding vs. Zimmerman – Because of the base – he contradistinguish his
position where he kind of deviates from his position – it is the practical dimension of it. He doesn’t
gives an ethical theory. It is the real crime it commits. For ex., statute of limitation case in this case,
you are not aligned because your Personal Morality thing (Zimmerman case). – Medical Report hai
wo deni hai – kya doosre lawyer ko deni chahiye. If not asked for the Medical Report. Because this
person will die if Medical Surgery does not happen.

It was a Minor person who was hit and SPAULDING is the father.

It is an ETHICAL problem. I cannot let my client. Because of the Motor Accident claim. What should I
be doing?- they don’t really have a suspicion – what exactly Wendel would do?

A situation that if Zimmerman ask for the advice, then the Lawyer should give it.
The lawyer did not even give the advice. Wendel ends up giving a personal opinion – I find – you
need to give a list of things. Because Wendel is deviating from his earlier instance. So his ethics his
pedals – Wendels idea is not giving a structed thing.

Not a structure on how you will make difficult ethical choices – Wendel is not giving this.

Just because how things are doesn’t mean we should not change it. Privileging of the traditional
notions of legal knowledge. Even the fact that interpretation is a very POL:ITCAL EXERCISE.
Technocratic way of evading responsibility. It is much more political. Being a positivist. Even if you
chose to be positivistic in outlook.

6th August 2021

Bauman – talking about more general idea of ethics. Be it family or a community. Because your
values may not align with it. The point was to ring back the discussion. What exactly have we done
so far.

Bauman – POST MODERN ETHICS IN BAUMAN:S Work – How to lead life in a Community. What to do
in such a situation.

Bauman Wendel and Hutchinson – How do you think about the three readings.

Hutchinson’s critique of Wendel:

2 Accpounts – 1

1. Jurisprudemntial - Interpretation should be put before community. – Lawyer making good faith
argument. Hutchinson says saying making a good faith argument is a very naïve way of saying it.
Frivolity of today can become law of tomorrow. So one has to look at things very critically.
Scrutinize yourself in the eyes of the legal community. We privilege one kind of knowledge over
other. Contradistinguish Wendel - w
2. Practical - Contradistinguish Wendel from the example which Wendel himself gives. Even if
allowing the critiwque in (Statute of limitation ex. And the Zimmerman example) – Wendel says
that it is not the ethical duty of the client to do it. Coming to the other problem – First case me
ethical duty nhi thi lawyer ki, however, in second case Wendel says that (according to his own
MORAL CONVICTION0 – since the result is going to be DEAD the Lawyer of Z should DISCLOSE
THIS INFORMATION. So Hutchinson says why is Wendel making a Distinction in this case.

Hutchinson says it would have made much more sense if Wnedel would have given a more
structured theory.

Much of the literature we are studying is coming from US. In US, Proseuctors have much more
power as compared to Defendant. Larger point of ethics – where you put yourself.

I will risk my suspension but I will divulge the information to the other side. Sit with the discomfort
that there are ethical problems to it.

We might make a RATIONALIZATION of Wendel’s Position. –). – Wendel’s does make a lot more
sense from a Positivist sense.

You might in the long run use Ethics in the more Business Running thing.
Prerna – If we keep on saying about fidelity to law – we will become a society of Risk Management
system and not think about the community morals (which Bauman was arguing) – this is not how
Human Being operate even if the Risk Management.

10th August 2021

Wendel is more pursuasive considering he is offering mmore certainty which is missing in other
people.. We believe that people cannot really be so indecisiveness. People who do that and keep
doing that – they forget that people can actually have different version of WHAT IS A MORAL THING
TO DO.

Considering Wendel, people can have different morality spectrum. The said book also kind of
responds. He talks about William Siamonds. How to do legal ethics. It could be very well –

Wendel says I will put my money on the Lawyering Craft.

Spaulding vs. Zimmerman –

Where the LIFE OF PERSON IS IN QUESTION. When it comes to certain baseline morality – there is no
explanation –

Plato’s republic – Aristotal understanding. It is very business ethics point of view. The way in which
these courses are run is something that I have been doing. There are dilemmas that arise in a
situation. It is a very quandry way of teaching ethics.

Critque – the way in which we teach about ETHICS – the examples – Attorney Client privilege –
although it makes is – People don’t really internalize. Quandry ethics wala model. What will we
learn. There are numerous reasons. – Indira Jaising example.

Ethical problem really arises.

Foundry ethics or Pondry Model – is that the ethics course presents us with Hypothetical Questions
– we are ROOTED in a COMMUNITY so our understanding of morality will be rooted in that. We will
be more adapt at looking at problem. You think that this is a legit question. Traditional Ethical
questions are run.

It start with Utilitarian way of thinking. A person is asked to be making. Even if it is a Hypothetical
choice. We were making a pros and cons thing. If I would have been a Lawyer of Simmerman – it is
because of their incompetence.

So even the kind of rationing the reasoning that was happening in our own mind. We make a pros
and cons list in our own mind.

Utilitarian and Deontology. – perspective se bhi – if I abide by the duty that is in line – that will
determine the moral worthiness. Business ethics class.

Contractarianism – Social Contract theory people use it to justify. Broader project – legally ethical
lawyer. To have some kind of duty if each and every one is doing one kind of duty. We impose
legitimacy in the legal system.

It is broadly speaking a good thing to do. Deontology, Utilitariainsim and Contractarianism – these
theories picture us the theory that we are ETHICAL. He says Virute ethics will not work in such
quandry of things. It is a very preventive medicine.
It is something that make that you don’t get sick. They are talking in a very business kind of a view. It
presents you with a quandry ethics wala view. Even if you can justify your decision, I can still feel
some kind of discomfiture.

Bauman – Alone Again – if you look at outside sources for guidance – there will be situation when
they will not be able to give guidance – and you haver to USE YOUR MORAL COMPASS (since your
guidance, community and everything is failing) – thus we should practice Virtue Ethics.

SADHU Story – Ahead of them were New Zealand and Japanese were ahead. Now they gave
assistance and food. They went ahead with the expedition without waiting if the person could
survive. Now this person was accounting this feature.

Whatever they did to help out the Sadhu – was there any other Moral Worthy Code? – Because it is
here – like giving Basic Minimum.

They look at the story – saying that all of these approaches – Deontological point of view – it is right.

Utilitarianism – Minimimum pain maximum pleasure.

The author says that – Organization that have such BUREAUCRATIC FUNCTION – how it is unethical.

Jonathan Glover –

11th August 2021

Essoteric Morality – we looked at it from a certain sense. There are ways of looking at a text from
different angle.

“the opinion that secrecacy would render an action right. There is an entire band of scholarship that
talks about Essoteric Morality.

Secrecy – Moral theorist – henry Sadwick – when people practice it. This is how you arrive at your
end result. Whether it should be publicly made. The decision you are making –

Even if sometimes, you are a Utilitarian –

INDIRA JAISING CASE – Legal Ethics case – Cab rank rule. Nobody talked about the fact of the letter.
She putting her point in the form of PUBLIC ANNOUNCEMENT LETTER – In representing Taleb
Hussain himself. It might end up in a scenario – it does not serve the legal community as a whole.
We need to look at the question from a very nuanced lens.

Business Ethics Model. Not all dilemmas that happen in real life will have those rules. Not all
dilemmas will have rules in a way. ETHICAL QUNADRY MODEL would not suffice.

When you are a Law Practitioner, rather than being our decision informed in a rule based thing – it is
derived from a more community based thing. Taking case of Billing itself –

PRACTICE OF BILLING PRACTICE:

Similar kind of problems crops up once you specialize. Lawyering is like a Trade. The more you
practice the more efficient you become. What’s the point of being an EFFICIENT LAWYER IF I AM
NOT ALLOWED to charge more.

Rules based theory take us only so far. IT is THE CULTURE THAT INFLUENCES OUR DECISIONS. The
Schools we go to. To develop those virtues. If the doctors starts charging extra –
Our culture landscapes determine what kind of Ethical Choices that we will make. Vakaltnama – the
person who enabled the forgery – the lawyer for accused. In Allahabad High Court – it is common
practice – that of forging of Vakaltnama – to get something like this done.

Again, this kind of I will take care of only about my CLIENT. What it made them feels. It is a very
common practice.

OUR SYSTEM (LEGAL LANDSCAPES, COMMUNITY OF LAWYERS ) Determines the Ethical Choices that
we make.

The court is sending it to the Bar Council. Something that is worth noting. What is the purpose of
Ethical Quandry. It is also the landscapes. To resolve the ethical dilemmas. The practice of virtues.

Virtues can be seen as excellence.

Rule based theories – what we end of doing is – People islike we have to sustain in the Profession.
There might be some people – Satisfaction in work is equally important. Happiness is coming from
happiness. As long as we sustain practices – Why a Virtue ethics model – they don’t learn anything of
value.

13th August

Mecrecken – Parable of Sadhu

In the Parable of the Sadhu – Business Ethics point of view.

When Business – it does not really help you to learn ethics. The kind of impact you want to have –
that does not help. Since these RULE BASE DTHEORY does not really help when you encounter the
problem in real life.

Thus the author come up with the Sadhu Story.

Story – Bunch of Hikers mountain – bunch ahead bunch behind. – There were dying sadhu’s in the
middle. So the talk is about the temporary arrangement they made. They did not wait to look what
happened. Japanese were behind this. The entire article is based on the Rule Based theories will
JUSTIFY the DECISION OF THE HIKERS.

For ex – Any Quandry ethics things does that.

Even though the fact that the rule based theories – they gave Sadhu the Necessary Assistance – acc
to author’s it cannot be explained by rule based theories. Similar kind of Quandry ethics model are
taught.

This theory if apply I can justify – It MAY ENABLE MORALLY UNWORTHY ACTIONS – THE THEORY CAN
GIVE YOU RIGHT WORDS TO ACHIEVE wrong ends.

Every dilemma they face in real life may not help in them coming out of the problem.

These rule based theory are very ISOLATED from what happens in the real life. McCrakken was part
of the Hikers group.

There are certain SHARED GOALS in the group. At that time, they were working together. We pay
some kind of attention in the SHARED GOALS OF THE COMMUNITY (thus going back to Bauman) –
you have certain goals and interests but your value and aspirations may also fall in line with the
community.
What is the value that community shares. They do not really focus on the INTERSUBJECTIVE
RELATIONSHIP of community. The thing that we live in a community actually help us live a good life.

Mccrakken and his friend Steven felt. The contextual reality of the people – the thread goals of the
community. How a person can be a lawyer. A person can be holding multiple identities.

It is only when you apply the virtue ethics model – it talks about – Rule Based theory only look about
the BARE MINIMUM.

WENDELIAN theory like NO LESS NO MORE.

If you are so driven by rule based theory, it inculcates Mediocrity.

When you are looking at excellence – you achieve a level of Mediocrity – It fosters the culture of
mediocrity if you just follow the Rule Based theory.

Even your act may be PRAISEWORTHY but not PRIZEWORTHY.

Foster culture of virtue ethics model.

Johnsson and Johnsson – called back their product. It actually served them = promoting that it is an
ethical company – it brought back its powder. Johnsson and Johnsson case.study.

Virtue Ethics is a Model that you have to look at. There needs to be a Habitual Development. It all
requires practicing ethics.

The Legal Importance of it is – How can you : Rohinton Fari Nariman – retired –

Matthew case Nariman Senior and Junior. – While making his pleading on certain cases – lawyers
who have sitting judges in SC – he made a point to the sitting Judge in SC. Rule 6 of the Bar Council
Rule. This is what you take. You take it is as Personal Attack.

This entire line is of Virtue Ethics. You can’t be practicing in a court where your RELATIVES acts as
Sitting Judge. How do you interpret the “courtroom”? How will you interpret court – as the Entire
court or just the Bench?

Now following Wendelian Logic – interpret court as BENCH (this is where Rule based theory come).

Why is there a Rule in the first place.

This is a Practice in UPand Bihar – is called LAL JHANDA. – How a rule can be used in a very
fashionable way.

Bail Hearing – it is kind of preventing – does not go with that particular judge. You deliberately
approach that person.

UNCLE PRACTICE. When it comes to Judges – embargo that they can’t be practicing before the same
bench.

Krishna Iyer’s Son who left practiced after his father became Judge. Aerticles are there.

This is the Virtue Ethical Model.

I will not appear before the court of my son. People are writing so much tribute to the Junior
Nariman.
Case Law: Nariman Junior said that WHAT DO YOU EXPECT ME TO DO. Do not practice. One of the
Judge said that they had a daughter and they prevernted them from.

VIRTUE ETHICS EXPECTS US TO DO TOO MUCH.

QUANDRY ETHICS AND VIRTUE ETHICS. –

We need to sustain ourselves in the Law Practice.