Solicitor General of India, Tushar Mehta
Solicitor General of India, Tushar Mehta
Columns

Lawyer’s attire – much ado about nothing ?

The article analyse instances relating to a lawyer’s dress in past and whether courts have had an occasion to consider the legality or propriety of lawyers appearing in a clothing other than their uniform.

Tushar Mehta

Recently, a news article appeared depicting a 'learned member' of the Bar from Rajasthan appearing before the Court through video conference wearing a baniyan or a vest (thankfully at least that).

This was followed by news in Florida, where Judge Dennis Bailey was conducting hearings through Zoom App. The Judge visibly appears to have been pained regarding the inappropriateness of the dress of some of the attorneys when he mentioned “one male lawyer appeared shirtless and one female attorney appeared still in bed, still under the covers”.

Judge Bailey conducting hearing on Zoom App.
Judge Bailey conducting hearing on Zoom App.

Following suit immediately thereafter, a news item appeared where Brazilian Judge Carmo Antonio de Souza appeared in Video Conference (of course with his brother and sister Judges from State Court in Amapa) sipping his drink and more astonishingly, bare-chested. The video is also available depicting this historic moment. It however appears that the Judge inadvertently appeared bare-chested without any idea that the camera was on, immediately after which he reappeared in formals.

Judge shirtless and sipping Margherita
Judge shirtless and sipping Margherita

These are very interesting events which lead one to think about the significance of a lawyers’ uniform while they are discharging their functions in the adjudicatory process (whether inside court room or otherwise).

Once again, while consciously avoiding a scholarly approach or any intellectual exercise, I attempted to go through the pages of history to analyse whether such instances relating to a lawyer’s dress (or lack of it) have happened in the past, and as to whether courts ever had an occasion to judicially consider either the legality or propriety of lawyers appearing in clothing other than the prescribed uniform.

It is noticed that such fanciful claims and grotesque instances are found more in American Courts, may be because Americans are more imaginative or because of the time and inclination at the disposal of American Courts to go into such claims.

A landmark case is of one maverick attorney Todd C. Bank practising in New York. It is a landmark incident because the case reached for judicial adjudication at the level of US Court of Appeals, 2nd Circuit. Todd C. Bank appeared in Civil Court in Queens wearing blue jeans and a button-down shirt and a baseball hat with the words “Operation Desert Storm” written on it. Judge Anne Katz admonished him for his inappropriate dress. Though Bank was appearing “pro se” (equivalent to party-in-person), the case assumes importance since he decided to challenge the act of Judge Anne Katz, claiming that this violated his constitutional right under 1st and 14th Amendments to the US constitution. He insisted that his choice of attire constitutes a form of “protected symbolic speech”. Todd C. Bank initially approached District Court on, inter alia, the following specious ground :

“In this case, the judge’s role is to adjudicate legal disputes, which should not be affected by whether I wear a tuxedo or a ripped pair of sweatpants..”
Todd C Bank

But on September 24, 2009, US District Judge Nichola G. Garufis disagreed with the attorney’s constitutional claim and dismissed his suit. The District Judge wrote in Bank V. Katz that “a court room is not a public forum for the expression of ideas” but rather a non-public forum where “rules need only be reasonable and view-point neutral”.

The District Judge held that prescription of dress in the court room was “reasonably related to the maintenance of court room civility and respect for the judicial process.” The challenge of this attorney on the ground of the US Constitution’s 1st amendment and 14th amendment violation was clearly and unequivocally turned down.

The attorney thereafter approached the US Court of Appeals, 2nd Circuit reiterating violation of his 1st and 14th Amendment Rights.

The US Court of Appeal, 2nd Circuit vide judgment dated 16.6.2011 dismissed the appeal filed by Todd C. Bank rejecting both his arguments based upon infringement of 1st and 14th Amendment Rights and held, inter alia as under-

We conclude that the defendants’ instructions that Bank remove his baseball hat when appearing in court were rationally related to the legitimate governmental purpose of maintaining order and decorum in the courtroom. The district court thereafter correctly dismissed Bank’s claim for violation of his Fourteenth Amendment rights.”

So far as the argument based upon the 1st Amendment right was concerned, the Court held that “assuming arguendo that Bank’s choice of attire constituted a form of protected expression, a restriction on speech in such a forum will be upheld so long as the restriction is reasonable and view point neutral.”

Interestingly, in Bank v. Katz (dress of a lawyer), the Court referred to certain previous American decisions which are of a tremendous academic interest for every student of law (which expression should include lawyers also). The leading case relied upon by the Court was the judgment of US Supreme Court in Kelly vs Johnson [425 U.S. 238 (1976)], which pertained to a challenge to the hair code for policemen.

The question posed before the Supreme Court of US was to what extent a person has a constitutionally cognizable liberty interest in his or her personal appearance.
Kelly vs Johnson [425 U.S. 238 (1976)]

The Court upheld the hair code for policemen and emphasised the employment status of a police officer and the unquestioned “need for discipline, esprit de corps and uniformity” in a police force. I do not think that the case of either a lawyer or a Judge can stand on any different footing as at least discipline and uniformity is required in both.

A similar case arose in 2003 concerning the choice of attire as a constitutional right arose when a lady working as a driver in county of Sullivan, New York challenged a dress code which mandated that all drivers wear pants as a part of their uniform. The lady named Zalewska challenged this code on the ground that it infringed her 1st Amendment and 14th Amendment Rights. The matter reached up to the US Court of Appeals, 2nd Circuit.

The said Court, in case of Zalewska v. County of Sullivan, New York vide judgment dated 10.01.2003 rejected the contention of the petitioner that “wearing of skirt constitutes an expression of deeply held cultural value”.

The Court inter alia held as under-

Appellant’s First Amendment argument rests on her claim that wearing a skirt is for her “an expression of a deeply held cultural value”. So strongly held is her desire to express her cultural values that she declares she has never worn pants. We realize that for Zalewska – as for most people- clothing and personal appearance are important forms of self-expression. For many, clothing communicates an array of ideas and information about the wearer. It can indicate cultural background and values, religious or moral disposition, creativity or its lack, awareness of current style or adherence to earlier styles, flamboyancy, gender identity, and social status. From the nun’s habit to the judge’s robes, clothing may often tell something about the person so garbed.

Yet the fact that something is in some way communicative does not automatically afford it constitutional protection.”

Another case arose in 1997 when an Attorney Seth Berner claimed that as a lawyer he has an absolute right, protected by the 1st Amendment, to wear political buttons on his dress in the court rooms. The United States Court of Appeals, First circuit, in Berner v. Delahanty, vide judgment dated 10th September, 1997, rejected the claim by holding that:

“an Attorney is free, like all Americans, to hold political sentiments. In a courtroom setting, however, lawyers have no absolute right to wear such feelings on their sleeves (or lapels, for that matter)”
Berner v. Delahanty

Interestingly, a strange and a bizarre case of clothing of a lawyer (or in fact the lack of it) arose raising a question as to whether a lawyer may get naked in public. Yet another maverick French-Israeli lawyer Arno KLarsfeld once posed naked on motorcycle for a magazine called Paris Match. He was not fined for bringing the legal profession into disrepute [though he ought to have been] since he was not holding himself out as a lawyer in the photo.

The most dramatic stunt to gain the enrapt attention of the Court came from yet another Florida lawyer called David Burns. In a major trial which he had successfully delayed couple of times, he did not arrive to the Court in time keeping everyone waiting. The doors swung open suddenly and Burns entered the Court. He was not wearing his formal lawyer’s attire but was carried on a stretcher, while wearing his pyjamas. The Supreme Court of Florida did not take this behaviour kindly and provided for a 30-day ban from practice and held that

“appearing in court room on a stretcher and dressed in bed clothing constitutes conduct which is prejudicial to administration of justice and adversely reflects on ones fitness to practice law.”

In the Indian context, one notable case had arisen from Allahabad High Court in case of Prayag Das v. Civil Judge, Bulandshaher (AIR 1974 All. 133) in which the prayer of an Advocate to appear in court wearing Dhoti and Kurta was turned down by a detailed judgment.

Prayer of an Advocate to appear in court wearing Dhoti and Kurta was turned down by a detailed judgment in Prayag Das v. Civil Judge, Bulandshaher
Prayer of an Advocate to appear in court wearing Dhoti and Kurta was turned down by a detailed judgment in Prayag Das v. Civil Judge, Bulandshaher

The question is what is the significance and sanctity attached to a dress which is merely an attire ? Substantive creative efforts of mankind have been devoted to the matter of dress, from the robes of the ancient Egyptians to King Henry VIII’s armour. Dress has often conveyed a message, whether it be one of martyrdom in the sackcloth and ashes of the early Christians, respect for God in skullcaps worn by many Jews or achievement and calling in the regalia worn in academic processions.

A uniform is to make a designated group of people dignified and more importantly impersonal; to give it the singleness and tautness of upstanding men of character. It acts as an equaliser. Once in uniform, rich and poor, successful or beginners, every lawyer is on the same visual pedestal.

Rich seniors cannot attempt to overawe the others with their Ermenegildo Zenga, Tom Ford, Brioni, William Fioravanti, Stefano Ricci or Georgio Armani suits. But for the mandatory dress Code, many of us would like to attempt this as one more mode to make us feel self-important and prestigious, which so far, our fraternity has been doing by throwing around jargon, legalese, gobbledygook, gibberish or at least avoidable flowery language.

The question still remains why black and white is the dress code and what on earth is the significance of a white neck band ? Historically, it is believed that black is considered colour of authority and dominance. It’s more impactful. Traditionally colours have always represented submission to something. As priests in Rome used to wear black cloak to show their submission to God, lawyers wear the black dress to show their submission to justice. This is notwithstanding the saying that “ninety nine per cent of lawyers give the rest a bad name”.

Biblical history traces the white neck band symbolising innocence. The two pieces of white cloth joined together to form the Advocate’s band represent the “tablets of laws” and “tablets of stone”. These are the tablets which, according to the biblical history, were used by Moses for inscribing the Ten Commandments, which he is supposed to have received from a burning bush on Mount Sinai. The Ten Commandments are believed to be the first example of a uniform coded law. Thus white advocate’s bands represent the upholding of the laws of God and men.

And yes! uniform do matter. A lawyer’s attire, whether in the court room or in a video conference is not “much ado about nothing”. It has its own majesty, solemnity, splendour and grandeur giving a distinct personality to the wearer. I can’t visualise army men on the border wearing jeans and t-shirt even if the climate requires them to. I won't feel safe being operated by a surgeon in his bermuda and a sleeveless jacket.

And yes! just visualise the great Nani Palkhiwala arguing Keshavananda Bharti case in a kurta-payjama (even if neatly washed and meticulously ironed and pressed). All scholarly, intellectual and erudite arguments of living legends like K. Parasaran, Fali Nariman, K.K.Venugopal and Soli Sorabjee may perhaps lose part of its shine if they chose to argue before the court in a Safari suit.

A lawyer’s attire of a coat, silk gown and neck band is not just a bagatelle. It’s where our distinctive oneness, professional dignity and grandeur lie.

After all insistence for a lawyer’s uniform is not much ado about nothing.

The author is a Senior Advocate who is presently serving as the Solicitor General of India.

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