role of lawyers in legal education

8/2/2019 Role of Lawyers in Legal Education

1/13

Dr.ram Manohar Lohiya

National law university

Lucknow

Language of law

Project:Role of lawyers and judges inlegal education system

Submitted by Under the guidance of

Animesh Singh Ms. Deepika Urmaliya

Second Semester Faculty of law

Roll no- 19

1


2/13

ROLE OF LAWYERS

IN LEGAL EDUCATION

A lawyer according to Blacks 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 clients 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 haveDe 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 courts

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 lawyers 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 clients case, clarifies what the clientwants to accomplish, shapes the clients 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


3/13

Legal Advice

Legal advice is the application of abstract principles of law to the concrete facts of the

clients 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 clients 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 solicitors 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

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

3


4/13

clients 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 clients legal affairs. The fourth

function that the lawyer perform is that of a counselloror 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 clients 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 lawyers 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 attorneys 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.

4


5/13

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 clients action.

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

doesnt 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:

5


6/13

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 productsto 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.

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

6


7/13

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.

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 protectionof 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, ithas also expanded the scope of various rights like right to life, etc.

7


8/13

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 andvibrant 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 therights 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 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 executiveauthority. 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.

8


9/13

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 travestyof 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 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 sexualharassment implicit therein and for the formulation of guidelines to achieve this purpose. This is

9


10/13

done in exercise of the poweravailable under Article 32 for enforcement of the fundamentalrights and it is further emphasizedthat this would be treated as the law declared by the SupremeCourt 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 readthe 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.

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 whilevoting. 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

10


11/13

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.

JUDICIARY AND THE POLICE

The Police and other investigating agencies are insulated and protected from any kind externalpressures 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 andevolution 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.

11


12/13

12


13/13

13

role of lawyers in legal education

Documents