Is the Counsel Innocent or Guilty?: The Lawyer’s Conundrum

Can we ever ascertain whether a lawyer defending someone who is guilty is a greedy, cold criminal or just another person doing their job? If it seems impossible to do so, that’s probably because it is.

You can never truly anticipate what seemingly mundane events of a regular Wednesday will end up leaving a profound impact on you,which is why it feels strange to write this piece knowing that it’s inspired by a fight I had with my father. He was just making conversation while
getting ready to leave for work when he mentioned that he had been offered the case of a man accused of foul, inappropriate behaviour.To his surprise and mine, this sent me into an existential frenzy. Suddenly, I was living a life where my father (a criminal lawyer) was defending, well, criminals. I could not reconcile myself to the duality of his existence, as my father and as a person who (sometimes) defends bad people. An argument followed, and peace was only restored to our household when the client in question backed out.

However, this moment of doubt about whether or not my father’s job was morally unobjectionable made me take a rather hard look at the field of law in its entirety. Are
lawyers good people? Is law ethical?

After quite a bit of research, I have still not arrived at a conclusive answer. Ethics are principles that distinguish the good, the bad and the ugly. Laws are, supposedly, enforced to maintain goodwill.Violating a law will land you in jail,which indicates a slender grasp on the whole concept of ethics and good moral values, etc. And yet, in their day-to-day execution and application, law practitioners end up at odds with what is ethical and right. As a person on the outside looking in, anyone who is knowingly and willingly defending the honour of a guilty person seems to clearly
be in the wrong.

And yet, as the famous, legal maxim goes, every individual must be presumed innocent until proven guilty.

This is where all the lines start to blur, because, the undeniable fault of anyone defending someone against being punished for a crime they did, in fact, commit, and the right to counsel being a fundamental tenet of a democracy are both simultaneously true. Without a trial, neither innocence nor guilt can be proved and this requires lawyers to rely more on detached pragmatism and professionalism and less on moral codes. But does that make them bad people?

The whole foundation of our legal structure is based on the maxim that ‘innocent until proven guilty.’ An advocate, as an officer of the court is bound not only by this but also by the Advocates Act whichstates that without justifiable cause a counsel shall not refuse brief of any client/litigants/accused on the presumption of him being guilty. Even article 21 of our constitution provides that no person shall be denied right to life or personal freedom with due procedure of law.

explained Advocate Naman Mishra, a practicing criminal lawyer in Delhi

To counter the actions of a criminal defendant, we have public prosecutors. According to the
Constitution, these lawyers are supposed to be impartial agents of the state who place all the
facts of a case before the court. In practise, however, their main role is often seeking the conviction of the accused. Once again, from an outsider’s point of view, someone
fighting to prove the guilt of someone who could very well be guilty, seems to be the bigger, better
person. But this scenario, too, flips, in the case of someone who turns out to have been wrongly accused.Here, our good ol’ criminal lawyer emerges a hero. Neither party, it seems, can stick to being the agentof good or of evil for very long, and they end up oscillating between the

A public prosecutor from Patiala House Court, Delhi provided a personal yet nuanced perspective
on the two roles, on condition of anonymity.

As an agent of the judicial process, ensuring that those deserving punishment don’t go scot-free definitely makes you feel empowered and on a higher moral plank.But in reality, both me and the defence lawyer are just following what is right and clearly defined in the Advocates’ Act as to what is the role and responsibility of a counsel. This image that a defence lawyer is attempting to prove innocence of the guilty strips away a lot of depth and dynamic from the situation and should be avoided.

A public prosecutor from Patiala House Court, Delhi

While criminal lawyers make the most appearances whenever this topic is discussed, the legal players of the corporate world should not be overlooked. More often than not, a crime involves two parties. On the other hand, the sheer magnitude of the ramifications of a financial
misdemeanour involves so many parties, it is almost impossible to keep count. The verdicts of such cases tend to put into effect a cycle of betterment or ruination. And
again, the character of any lawyer involved comes into question.

It is natural to be curious of whether people like me feel guilty at times while defending corporate moneybags who have been accused of crimes like tax evasion, bank loan default, which essentially is public money, and other scams. Well, a corporate client is just like any other client, be it from a civil dispute or a criminal charge or even family discord. Like all other accused he/she deserves able representing in court of law and all other attributes of a fair trial. To presume that somebody is guilty by virtue of being rich is turning the essence of
law upside down and doing grave injustice to this hallowed institution of justice. Yes, as lawyers, we do need to see that we don’t become an instrument in the hands of an
accused and an accomplice in any injustice committed but then our education and our training has equipped us with the necessary weaponry to negotiation our way without compromising on professional ethics.

Sanjay Batra, corporate lawyer, High Court of Delhi

Being a good lawyer demands detachment from any emotive motivations. It also mandates that unless you cannot objectively devote yourself fully to the matter at hand, you may not refuse someone who approaches. So, being a good lawyer demands that you sometimes defend bad people. Theonly inference that can be derived from this is that for there to be an overlap between good lawyers and good people, the parameters need to be slightly altered.

The primary context of whatever has been said so far is an outsider’s perspective, people for whom incidents like these are mere headlines. When you stand to lose or gain from the verdict of a trial, who is the underdog you root for? Is the person on the stand an innocent victim of circumstance? Or is it someone for whom ‘consequence’ has been interchangeable with
‘money’? Is the public prosecutor truly representing the everyday man, attempting to correct the
imbalance caused by skewed resources? Is the criminal lawyer a vigilante of sorts, striving to protect the innocence of an innocent?

To find out what other laypeople’s thoughts on these, I spoke to a DU student who gave their opinion on the issue, anonymously.

While we do know that it is a lawyer’s job to provide the right counsel to their client and do their best to prove their innocence, would it be wise for a lawyer to represent a client who they know might be guilty? I am not saying that lawyers shouldn’t provide representation to people who “seem guilty”, because there might be a chance that they are in fact innocent. Our constitution works on the presumption of innocence, “innocent until proven guilty”, so it is up to the prosecution to prove the defendant’s crime and the defence to prove their client’s innocence. (Something about the burden of proof.) There is a very fine line that the lawyer has to tread in this case, and whatever they choose to do, in my opinion, does not say anything about them as an individual as they are just doing their job.

anonymous, DU student

So far, it seems, any lawyer who is true to the codes of his profession cannot remain true
to his moral values. Then, ideally, the second-best option is to be an ethical lawyer—not person, lawyer. For once, we can consult the conventional mandates of right and wrong without ending up in an eternal conundrum. The only way someone fighting against the very fundamentals of right and wrong can strive for redemption is to be honest in the process. Deal with witnesses fairly, do not tamper with evidence, and ensure in every way you can that the integrity of the trial and the investigation isn’t compromised.

While all this would certainly exempt a person from any ethical misdeed on paper, the question of
whether lawyers are, in essence, truly good people or instruments of crime and societal menace
is something we will continue to wrestle with, at least for the foreseeable future.

Read Also: The Sedition Law: an Ugly Heirloom from the Colonial Era

Featured Image Credits: The Daily Reality

Naina Priyadarshi Mishra

[email protected]


Naina is, at any given moment, a little bit disorganized. In her spare time, she obsesses over books, music (especially Taylor Swift) and teen dramas. A One Direction enthusiast, somewhat consistent keeper of journals and she can play guitar (still working on that one).