By Muhammad Rehan Sarwar, Advocate High Court, Founder, The Nomologists Law Firm
There is a persistent assumption, both inside the profession and outside it, that a good advocate is simply one who wins. Clients measure counsel by outcomes, and it is natural that they should. But the law itself has never accepted so narrow a definition. Advocacy is not the art of obtaining a favourable result by any available means. It is a disciplined exercise of judgment, conducted within limits that exist precisely because the advocate is not merely the client's representative. He performs an independent professional function in the administration of justice and owes duties to the court that may transcend the client's immediate wishes. An advocate who forgets this distinction has not simply erred in style. He has misunderstood the office he holds.
The Canons of Professional Conduct and Etiquette of Advocates say as much directly, and in terms sharper than any commentary could improve upon. Rule 156 warns that nothing does more to foster popular prejudice against the profession, and to deprive it of the public esteem its proper conduct deserves, than the false claim, often set up by the unscrupulous in defence of questionable transactions, that it is the duty of an advocate to do whatever may enable him to succeed in winning his client's cause. The great trust of the advocate, the Rule insists, is to be discharged within the bounds of the law, and not without them. Framed nearly half a century ago, that sentence answers the assumption with which this article began, and supplies its own title.
In Pakistan, this understanding is not a matter of aspiration alone. It is written into the statutory architecture of the profession. The Legal Practitioners and Bar Councils Act, 1973, entrusts the Pakistan Bar Council under section 13 with the function of laying down standards of professional conduct and etiquette for advocates, and empowers it under section 55 to frame rules to that effect. In exercise of that power, the Pakistan Bar Council notified the Pakistan Legal Practitioners and Bar Councils Rules, 1976, of which Chapter Twelve sets out the Canons of Professional Conduct and Etiquette of Advocates. The Canons are arranged with evident deliberation: conduct with regard to other advocates, conduct with regard to clients, duty to the court, and conduct with regard to the public generally. A breach of any of these canons, by Rule 175A, is capable of amounting to professional misconduct. The structure itself carries a message. An advocate's obligations do not begin and end with the person who has retained him.
Duty to the court is not a ceremonial phrase. Rule 159 requires an advocate to maintain a respectful attitude toward the court, while Rule 161 forbids him from intentionally misquoting the testimony of a witness, the argument of opposing counsel, or the language of a statute or judgment, and from citing as authority a decision he knows to have been overruled, or a statute he knows to have been repealed, without disclosing that fact. Rule 160 forbids advising a person to evade service of process or to place his testimony beyond reach. These are not technical rules of etiquette. They are the conditions on which the court can rely on what it is told, and without that reliance, adjudication itself becomes guesswork. This is why the accurate presentation of authorities and evidence is not a professional courtesy an advocate may choose to extend. It is the foundation on which his right of audience rests.
The same principle finds expression well beyond Pakistan, because it belongs to the common law inheritance the subcontinent shares with England. In Rondel v Worsley, the House of Lords held that a barrister's duty to his client, however forcefully discharged, is always subject to an overriding duty to the court, to the standards of his profession, and to the public, a duty that may require him to withhold a document or decline a line of argument his client would prefer he pursue. Although the decision's treatment of advocates' immunity from suit belongs to a different and since superseded line of English authority, its articulation of counsel's competing professional duties remains an important expression of the common law conception of advocacy. The Indian Supreme Court, applying rules that trace to the same colonial lineage as Pakistan's own, observed in O.P. Sharma v. High Court of Punjab and Haryana that an advocate is not a mere mouthpiece of his client, and may not lend his voice to attacks on a judicial officer merely because a client is displeased with an order. The formulation differs by jurisdiction. The principle does not.
Independence of judgment is the quality that makes all of this possible. A.K. Brohi, Pakistan's own eminent constitutional lawyer, famously emphasised courage, intellectual honesty and moral independence as the qualities that ought to distinguish an advocate's personality, above and beyond his learning in the law. An advocate takes instructions on facts and objectives, but he does not take instructions on how the law is to be argued, what authority is to be relied upon, or what representation is to be made to the court. The Canons reflect this distinction directly. Rule 145 forbids an advocate from acquiring an interest adverse to his client in the subject matter of a case, Rule 146 forbids him from turning confidential information gained in one engagement against a former client, and Rule 148 forbids him from representing conflicting interests altogether. These rules exist because independence, once compromised by a personal stake or a divided loyalty, cannot be restored simply by good intentions. It has to be protected structurally, before the conflict arises, not explained away after it has already coloured the advice given.
Confidentiality belongs to the same architecture of trust. A client must be able to disclose the full and often unflattering truth of his position, because an advocate who is told only what is convenient cannot properly advise, still less represent, that client before a court. This is why the obligation to protect what a client discloses survives the end of the engagement, and why it cannot be traded away for the advocate's convenience or curiosity, however interesting the matter may later become in another context.
Competence is not incidental to ethics. It is a precondition of it. An advocate who accepts a brief in a field he has not mastered, or in a matter he has no time to prepare properly, does not merely risk professional embarrassment. He exposes a client to a result shaped by ignorance rather than judgment, while creating the outward appearance that the client had the benefit of counsel. Preparation, in this sense, is itself an ethical act. It is also why the Canons preserve an advocate's right to decline a brief he is not equipped to conduct, rather than treating every offer of employment as an opportunity that must be seized.
Respect for the opposing advocate, and for witnesses on both sides, follows from the same reasoning. Rule 137 forbids an advocate from communicating about the subject matter of a dispute with a party who is represented by counsel, without that counsel's consent, precisely because the adversarial process depends on each side dealing with the other through its proper channel, and not around it. Fairness to an opponent is not a concession extracted from advocacy. It is one of the conditions that allows advocacy to remain a contest of argument rather than a contest of tactics.
Perhaps the most demanding of these duties, and the one least visible to a client, is the duty to say no. There will be occasions when a client's preferred course, whether it is a line of cross examination, a submission to the court, or a step in the conduct of a matter, cannot be pursued consistently with the advocate's professional obligations. An advocate who explains this candidly, even at the cost of the client's immediate displeasure, has served that client more faithfully than one who complies without demur. Rule 170 requires an advocate to decline the conduct of a cause once convinced that it is intended merely to harass or injure the opposite party or to work some oppression or wrong, and Rule 169 makes plain that a client cannot be made the keeper of his advocate's conscience, having no right to demand that his advocate abuse the opposing party or descend into offensive argument merely because that is what the client would say if speaking for himself. Rule 172 goes further still, forbidding an advocate from rendering any service or advice that involves disloyalty to the law, corruption, deception, or betrayal of the public, however powerful the client or however important the cause. Fearlessness, in this context, is not directed only at the opposing side. It is directed, when necessary, at the client as well.
Over more than two decades of practice before the tax authorities and the courts, I have found that these questions rarely present themselves as abstractions. They arise when a client wants a return of income defended on a position the record cannot support, when an authority relied upon at one stage is later overtaken by a superior court, or when a client's frustration with a slow or unresponsive forum tempts him toward a shortcut counsel cannot professionally endorse. In such moments, independence of judgment stops being a phrase in a rule book and becomes the discipline of saying, plainly and without evasion, what the law permits and what it does not.
None of this diminishes the advocate's duty to represent his client with vigour. The two duties are not in competition, properly understood. An advocate who is candid with the court, accurate in his citation of authority, and honest with his client about what cannot properly be done, is not a weaker advocate for it. He is one whose word the court can trust, whose opposing counsel can deal with in good faith, and whose client, in the end, is served by representation that will not later collapse under its own dishonesty. The principle embodied in Rule 156 was right nearly half a century ago, and it remains right today. The advocate's duty was never to succeed in winning his client's cause by whatever means might serve. It was, and is, to succeed within the bounds of the law, and that discipline, more than any verdict it produces, is what makes the profession worth practising.