Gandhi: Truth in Practice, and Professional Ethics
Chapter Fifty
Syllabus topic 2.3, "Some Reminiscences of the Bar - M.K Gandhi"
Pages 244 to 248 of 406
In one line
Gandhi's three working rules were that he would not take a false case, would not coach a witness, and would not let his fee depend on winning, and the incident of the award shows what happens when the first of those collides with a client's interest.
The three rules, and what each one is doing
Rule one: no false case. He warned every new client at the outset that he should not expect him to take up a false case. The result he reports is that no false cases came to him, and that some clients kept their clean cases for him and took the doubtful ones elsewhere.
What the rule is not. It is not a refusal to defend a person who may be guilty. Gandhi is talking about a client who wants a false story told, not about a weak case. That distinction matters, because the objection to his rule is that everyone is entitled to representation, and the answer is that being represented is not the same as having lies told for you.
Rule two: no coaching of witnesses. He says his opponents in South Africa often had their witnesses tutored, and that if he had encouraged his own client or witnesses to lie he could have won. Coaching here means telling a witness what to say rather than helping him say what he saw.
Rule three: no fee conditional on the result. In fixing his fees he does not recall ever making them conditional on winning, and expected neither more nor less whether the client won or lost.
Why a law student should notice rule three. A lawyer paid only if he wins has a personal financial interest in the outcome of the case he is presenting. That is precisely the arrangement Dickens attacks in The Pickwick Papers, where Dodson and Fogg take the action on speculation and charge nothing unless they recover from Pickwick, and where Sam Weller's evidence about it is the most damaging thing said at the trial. The two texts are two topics apart on this syllabus and they are about the same problem.
The conflict the incident exposes
Set it out as a lawyer would, because that is what makes it an examination answer rather than a story.
| The duty | What it required here |
|---|---|
| To the client | To obtain the best result available, which meant saying nothing about an error nobody had noticed |
| To the court | Not to allow a tribunal to act on a document known to be wrong |
| To the other side | Not to take advantage of a mistake made by the court's own arbitrators |
| To himself | Not to do what he had told every client he would not do |
Gandhi: Truth in Practice, and Professional Ethics
The senior counsel resolved it one way. No counsel is bound to admit anything against his client's interest, and the risk to the client of an admission is real and large.
Gandhi resolved it the other way, and gave a practical reason as well as a moral one. The moral reason is that he would not be party to a wrong award. The practical reason is the one that persuades: there is no certainty that the court will uphold a wrong award simply because nobody mentions it, and no surety that the court or the opponent will not find the error themselves.
The point to make about that. Gandhi does not present honesty as a sacrifice of the client's interest. He argues that concealment was also the riskier course, and the outcome bore him out. An answer that treats him as choosing principle over prudence has missed half his argument.
Where this stands in Indian professional ethics today
One paragraph, no more.
An advocate in India is enrolled and governed under the Advocates Act 1961. Section 49(1)(c) of that Act empowers the Bar Council of India to make rules prescribing the standards of professional conduct and etiquette to be observed by advocates, and those rules are contained in Part VI, Chapter II of the Bar Council of India Rules. The first section of that chapter is headed as the advocate's duty to the court, and the rules that follow deal in turn with duties to the client, to the opponent and to colleagues.
What a student may safely say. That the three rules Gandhi set himself, before any of this machinery existed, correspond to duties an Indian advocate now owes as a matter of professional obligation rather than of private conscience, and that the duty to the court is placed first in the modern rules just as Gandhi placed it first in practice.
Do not cite rule numbers in an English paper unless you are certain of them. Naming the Act and the rule-making power is enough, and the detailed rules are the subject of the Professional Ethics paper later in this course.
The line about the profession, and how to handle it
Gandhi ends the sequence with a caution.
Let the reader, however, remember that even truthfulness in the practice of the profession cannot cure it of the fundamental defect that vitiates it.
What is the defect he means? He does not say in this chapter. Elsewhere in his writing he is critical of a profession that lives on other people's quarrels, prospers when litigation multiplies, and can be afforded only by those with money. A candidate may say this much and should mark it as inference, not quotation.
Gandhi: Truth in Practice, and Professional Ethics
Why an answer should include the line. Because it stops the piece being a comfortable story. Gandhi is not saying that a good lawyer redeems the bar. He is saying that he found it possible to practise honestly, and that this does not settle the larger question.
How to use it in an essay. As the final paragraph. State what he proved, that law can be practised without compromising truth, and then state what he refused to claim, that practising it honestly makes the profession itself sound.
Comparison worth making
| Bacon | Gandhi | |
|---|---|---|
| Position | A judge writing about judges | A practitioner writing about practice |
| Form | Aphorisms, addressed to the office | Narrative, addressed to a conflict |
| Standard set | Integrity above all things | No false case, no coached witness, no conditional fee |
| Whether he kept it | No; impeached in 1621 for taking gifts from suitors | Yes, on his own account, and at the cost of his senior counsel withdrawing |
| Value to a student | The vocabulary of judicial duty | A worked example of a duty in conflict |
The sentence that uses the table. These two topics, set side by side by MU, give a student both halves of professional ethics: the rules stated by a man who broke them, and a rule tested by a man who kept it.
A worked answer
Question. "What does Some Reminiscences of the Bar teach a student of law?"
Paragraph one, the position. It teaches that the duties of an advocate can conflict, that the conflict is real rather than academic, and that the resolution Gandhi chose was defensible on prudential as well as on moral grounds.
Paragraph two, the rules. Gandhi set himself three: he would not take a false case, would not coach a witness, and would not make his fee conditional on winning. He told every new client the first of these at the outset, and reports that as a result no false cases came to him, some clients keeping their clean cases for him and taking the doubtful ones elsewhere.
Paragraph three, the conflict. In the case of the arbitration award his duty to the client pointed one way and his duty to the court another. His senior counsel took the orthodox view that no counsel is bound to admit what goes against his client, and warned that an admission might cause the whole award to be cancelled at heavy cost. Gandhi said the error must be admitted, and would have withdrawn from the case rather than conceal it.
Paragraph four, the argument that persuades. He did not rest on conscience alone. He asked where the certainty was that a court would uphold a wrong award simply because nobody mentioned it, and where the surety was that the court or the opponent would not discover it. Concealment carried its own risk, and the court in the event accepted that the error was inadvertent and upheld the award with it corrected.
Gandhi: Truth in Practice, and Professional Ethics
Paragraph five, the modern frame. What Gandhi set himself as private rules are today professional obligations: an advocate in India is governed by the Advocates Act 1961, under which the Bar Council of India prescribes standards of professional conduct and etiquette, and those rules place the duty to the court first, as Gandhi did in practice.
Paragraph six, the honest ending. He closes by warning that truthfulness in practice cannot cure the profession of the fundamental defect that vitiates it. The lesson is therefore not that an honest lawyer vindicates the bar, but that honesty is possible in it, which is a smaller and more useful claim.
Quick revision
Three rules: no false case, no coaching of witnesses, no fee conditional on the result.
The conflict: duty to the client against duty to the court, with the senior counsel taking the orthodox view.
Gandhi's two reasons: the moral one, that he would not be party to a wrong award; and the practical one, that there was no surety the error would stay hidden.
The link to Pickwick: a fee that depends on winning gives the lawyer a personal stake, which is what Dodson and Fogg have.
Modern India: the Advocates Act 1961, under which the Bar Council of India prescribes standards of professional conduct and etiquette; duty to the court comes first.
The closing caution: truthfulness cannot cure the profession of its fundamental defect.
Test yourself
1. State Gandhi's three rules. That he would not take up a false case; that he would not coach witnesses; and that he would not make his fee conditional on winning, expecting neither more nor less whether his client won or lost.
2. Is refusing a false case the same as refusing to defend a guilty person? No. Gandhi is refusing to have a false story told, not refusing representation to a person whose case is weak or who may have done what is alleged. The distinction is essential, because everyone is entitled to be represented and nobody is entitled to have lies told for them.
3. Give Gandhi's practical argument for admitting the error. That there was no certainty the court would uphold a wrong award merely because the error was not mentioned, and no surety that the court itself or the opponent would fail to discover it, so that concealment carried its own and possibly greater risk.
4. How do Gandhi's rules relate to Indian professional ethics today? They correspond to duties that are now imposed rather than self-imposed. An advocate is governed by the Advocates Act 1961, under which the Bar Council of India prescribes the standards of professional conduct and etiquette, and the duty to the court is placed first among them.
Gandhi: Truth in Practice, and Professional Ethics
5. Why should an answer include his final caution? Because without it the piece reads as a defence of the profession, which Gandhi expressly declines to give. He says that even truthfulness in practice cannot cure the profession of the fundamental defect that vitiates it, so his claim is only that honest practice is possible.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.