The role of advocates in a legal system hinges on their duty to uphold justice and maintain the highest standards of integrity. This duty becomes particularly challenging when an advocate represents both a government department and private litigants in cases involving the same government entities. A recent Kerala High Court judgment has highlighted the complexities that can arise from such dual representation and underscored the need for clarity in the roles and responsibilities of advocates engaged in government service. Illustrative case study
In a recent hypothetical scenario, a senior citizen observed a potential conflict of interest during the course of writ petition proceedings. A private individual had engaged an advocate to challenge the findings of a statutory appellate tribunal constituted under municipal laws. In the same case, the advocate representing the private litigant had a documented history of appearing for the respondent—a municipal council and its chief officer—in numerous other cases before the same court.
The advocate in question had represented the municipal council in matters ranging from land disputes to administrative appeals and writ petitions, serving the interests of the local authority. However, the same advocate now appeared against the municipal council on behalf of a private litigant seeking to overturn a tribunal’s decision.
The overlap in representation raised critical questions about the advocate’s ability to maintain impartiality and adhere to professional ethics. Specifically, it posed the risk of undermining public confidence in the impartiality of the judicial process, as the dual roles could lead to an appearance of preferential bias towards the government entity or a conflict in loyalties. Judicial perspective
The Kerala High Court’s decision in Sheba Sam Benjamin v. State of Kerala (2024:KER:87983) provides valuable insight into related concerns. The case revolved around the designation of government pleaders as gazetted officers, and while it did not directly address conflicts of interest, it highlighted the blurred lines that can arise when the roles and capacities of government advocates are not clearly defined (2024:KER:87983). The court’s directive to the state government to clarify the status of government pleaders through a formal notification underscores the importance of establishing clear guidelines to prevent ambiguity and potential ethical lapses. In the mind of a common man of general prudence
The dual representation of government entities and private litigants by the same advocate may give rise to reasonable apprehensions of bias and conflict of interest. A common man of general prudence might question whether an advocate could fairly and independently represent a private citizen while simultaneously serving as counsel for the very government entity being challenged. Such apprehensions are not unfounded, as they strike at the heart of the principle of impartial justice.
A potential conflict of interest in such scenarios could lead to decisions that favour the government entity over the private litigant, except in cases where the judiciary’s constitutional oversight prevails to protect fundamental rights. The existence of such conflicts not only undermines public confidence but also poses a risk to the fair administration of justice. Analysis of national laws, guidelines, and notificationsBar Council of India rules
The Bar Council of India Rules emphasise the importance of avoiding conflicts of interest in legal practice. Rule 33 of the Standards of Professional Conduct and Etiquette under Section II - Duty to the Client mandates that an advocate should not act or plead in a matter where they have previously advised the opposite party. This rule extends to situations where an advocate’s representation of conflicting interests may compromise their duty to maintain client confidentiality and undivided loyalty. Office memoranda and guidelines
Office memoranda issued by the Department of Legal Affairs, Government of India, provide additional guidance on the roles of government counsel. These documents often specify that government advocates, including pleaders and special counsel, may engage in private practice but must refrain from taking up matters that conflict with their official duties or involve the same government department. For instance, a 2018 memorandum explicitly barred government pleaders from representing private parties in matters adverse to the interests of the state. Constitutional and ethical obligations
Article 12 of the Constitution of India defines the state to include municipal councils and other local authorities. Advocates representing these entities hold a quasi-public office, which obliges them to act in the best interest of the state while maintaining professional ethics. Representing a private litigant against the same municipal council creates a direct conflict with this obligation. The way forward for Goa
The absence of clear, state-specific guidelines addressing dual representation by advocates highlights the need for immediate regulatory intervention. The Government of Goa should consider drafting and notifying comprehensive guidelines to regulate the practice of advocates who represent government entities. These guidelines should:
1. Prohibit advocates representing the state from taking up private cases against the same government department or entity.
2. Mandate transparency through disclosures of past and ongoing representations to avoid any appearance of bias.
3. Establish mechanisms for monitoring compliance, with penalties for violations to ensure adherence to ethical standards.
4. Provide for regular training and awareness programs to sensitise advocates to the importance of avoiding conflicts of interest. Conclusion
The dual role of advocates in representing government entities and private litigants presents a unique challenge that requires a balanced approach. By instituting clear guidelines and robust ethical safeguards, the Government of Goa can eliminate the risk of preferential bias and reinforce public confidence in the judicial process. Such measures are essential not only to uphold the integrity of the legal profession but also to ensure that justice remains impartial and accessible to all.
