Ethical Duty of a Lawyer to Defend His Client in a Criminal Case: Issues and Challenges in India
| DOI | 10.1177/23220058211060714 |
| Date | 01 January 2022 |
| Published date | 01 January 2022 |
| Subject Matter | Articles |
Article
Ethical Duty of a Lawyer to Defend
His Client in a Criminal Case:
Issues and Challenges in India
Pravin Mishra1 and Vijay Pratap Tiwari2
Abstract
The fate of a criminal case to a large extent depends upon choosing the right lawyer. But the choice of
a right lawyer requires some amount of experience and expertise, which a layman intending to hire a
lawyer may not be equipped with. Even if the client has made a smart choice in identifying a right lawyer
for him, the lawyer so identified might not be willing to accept a brief for the reasons best known to the
lawyer. At times a peculiar situation may arise before the lawyer where the lawyer seeks to withdraw
from representing the accused. There are various pitfalls to the client’s right from the stage of making
a choice of a competent lawyer to defend the accused up to the end of the legal battle. The article
deals with the professional ethics involved when a counsel accepts a brief or seeks to withdraw from
representing an accused and terminate the advocate–client relationship.
Introduction
Various ethical considerations are involved in a decision to accept a criminal case or withdraw the same
from representing the client. Whether it is a decision to accept a criminal case or a withdrawal of a
lawyer from a criminal case, it presents peculiar problem and involves considerations which are different
from a lawyer dealing with a case of civil nature. The Bar Council of India (BCI) Rules provide that an
advocate is bound to accept any brief in the Courts or Tribunals or before any other authorities before
which he proposes to practice at a fee consistent with his standing at the Bar and the nature of the case.3
Special circumstances may justify his refusal to accept a particular brief.4 Having said this, the
practitioners of law have been perplexed by questions such as whether to accept a criminal case which
the society considers to be heinous or he personally considers the accused to be guilty of the charges
levelled against them. Article 22(1) of the Constitution of India has recognized a very valuable right of
3 Part VI (Rule Governing Advocates), Chapter II, Section II (Duty to the Client), Bar Council of India Rules, available at http://
www.barcouncilofindia.org/wp-content/uploads/2010/05/BCIRulesPartVonwards.pdf
4 Id. See also V. Muraleedharan Nair v. N. J. Antony, CriLJ 633 (1985; The court observed that if an advocate has personal
knowledge, knowledge which would enable him to be a witness, though he may not be cited as one. The advocate should not accept
such a case).
Asian Journal of Legal Education
9(1) 54–63, 2022
© 2021 The West Bengal National
University of Juridical Sciences
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DOI: 10.1177/23220058211060714
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Corresponding author:
Vijay Pratap Tiwari, Professor, Maharashtra National Law University, Nagpur 441108, Maharashtra, India.
E-mail: vpt@nlunagpur.ac.in
1 Associate Professor of Law, Department of Law, Sikkim University, Gangtok, Sikkim, India.
2 Professor of Law, Maharashtra National Law University, Nagpur, Maharashtra, India.
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