There exists, within the courtroom, a relationship unlike any other in the institutional landscape: that between the judge and the lawyer. It is neither friendship nor outright hostility; neither complete harmony nor irreparable estrangement. Rather, it is a relationship defined by constant tension—an intricate balance of attraction and resistance, respect and suspicion, mutual dependence and reciprocal rivalry. It closely resembles those complex love affairs that popular culture has often portrayed more convincingly than many treatises on psychology: “I can’t live with you, yet I can’t live without you.”
The judge depends on the lawyer to give meaning and substance to the judicial process, while the lawyer depends on the judge to ensure that advocacy produces a legal effect. Yet neither is readily inclined to acknowledge this mutual dependence.
TABLE OF CONTENTS
I. Two Functions Born of the Same Womb
II. Attraction
III. Resistance
IV. Pathological Deviations
V. The Conditions for a Productive Institutional Partnership
INTRODUCTION
There is something almost theatrical about the relationship between the judge and the lawyer. The moment one enters a courtroom, one senses the distinctive tension that permeates the atmosphere—at once subtle and palpable, like the stillness that precedes a storm. The judge sits elevated upon the bench, invested with the authority conferred by the Republic. The lawyer stands, or is about to rise, dressed in the traditional black robe with its white collar, armed only with legal submissions, documentary evidence, and the power of advocacy. Between them lies a physical space—the bar—which eloquently symbolizes the nature of their relationship: a boundary that may be approached and even brushed against, but never crossed.
Yet beneath this seemingly rigid protocol, beyond the ritual expressions—“Counsel, you may proceed” and “May it please the Court”—there unfolds a relationship far more complex and profoundly human than a mere exchange of institutional roles. It is a relationship shaped by respect and irritation, admiration and condescension, silent complicity and public confrontation. It is a relationship in which each depends upon the other, even if neither is always willing to acknowledge that dependence.
This relationship deserves to be examined in all its richness and inherent contradictions. To understand its true nature is to grasp something fundamental about the administration of justice—not as an abstract construct embodied in statutes and legal principles, but as a living process forged in the reality of courtroom proceedings, in the unpredictability of oral argument, and in the dynamic interaction of two legal minds that confront one another and, on occasion, come to admire one another.
This study is organized into five parts. It first examines the common origins and institutional distinctions between the two professions (Part I). It then explores the mutual dependence that binds judges and lawyers (Part II), before considering the sources of tension that define their relationship (Part III). The analysis next addresses the pathological excesses to which this relationship may give rise (Part IV), and concludes by identifying the conditions necessary for a constructive and enduring institutional partnership (Part V).
I. Two Functions Born of the Same Womb
A. A Common Origin
Judges and lawyers are, first and foremost, members of the legal profession. In many cases, they have attended the same law schools, studied the same textbooks, and followed the same courses in civil law, procedural law, and criminal law. Across many Francophone African jurisdictions, they have even trained at the same professional institutions—such as the National School for the Judiciary (École Nationale de la Magistrature) or its national equivalent—before their careers diverged through separate competitive examinations leading respectively to the Bench and the Bar.[1]
This shared background is far from insignificant. It creates between them a common legal culture, a shared intellectual framework, and a common legal language—what Anglo-American jurists often refer to as the legal mind—which forms the foundation of their mutual understanding.
They also share a common vocation: the service of justice. The judge administers justice; the lawyer contributes to its administration. The judge declares and applies the law; the lawyer interprets, argues, and advocates its application. Yet, in both cases, assuming that each exercises the profession with integrity and fidelity to its ethical obligations, the ultimate objective remains the same: to ensure that justice prevails through a decision that is not only legally sound but also equitable.[2]
B. A Structural Divergence
It is precisely at this point that the paths of the judge and the lawyer diverge—and they do so fundamentally. Although both are committed to the service of justice, they pursue that mission from institutional positions that are inherently distinct.
The judge is required to be impartial. This is the very essence of the judicial office and the indispensable condition of its legitimacy. A judge must approach every case without prejudice, refrain from favoring either party before hearing all arguments, and ensure that personal beliefs, sympathies, or antipathies never influence judicial reasoning. Impartiality is not merely an ethical ideal; it is a professional obligation, the breach of which may constitute serious judicial misconduct warranting disciplinary sanctions.[3]
The lawyer, by contrast, is inherently partisan. Such partisanship is neither concealed nor regretted; it is openly acknowledged and institutionally embedded. The lawyer’s duty is to represent and defend the interests of the client—and only those interests—with the utmost commitment, creativity, and professional conviction. Unlike the judge, the lawyer is not expected to be impartial. Rather, the lawyer’s responsibility is to advocate as effectively as possible on behalf of the client. This partisanship is not a flaw in the system; it is the driving force behind the adversarial process, whereby two competing positions are presented before an impartial decision-maker, enabling the court to reach the most informed and just decision possible.
It is from this fundamental opposition—impartiality versus advocacy, neutrality versus commitment—that the complexity of the relationship between judges and lawyers arises. This structural tension makes their coexistence both indispensable to the administration of justice and, at times, inherently uncomfortable.
C. The Asymmetry of Power
The relationship between the judge and the lawyer is also characterized by a profound asymmetry of power, which shapes their interactions and often gives rise to frustration. The judge decides. The lawyer proposes, argues, advocates, and sometimes even pleads with great passion, but in the end, it is the judge who renders the decision. It is the judge who determines liability or innocence, grants or denies relief, and ultimately signs the judgment. A lawyer may deliver the most eloquent oral argument or construct the most compelling legal reasoning; yet if the judge remains unconvinced—or, worse still, has not genuinely listened—those efforts may prove entirely ineffective.
This imbalance constitutes one of the defining features of their relationship. It explains the recurring frustration experienced by lawyers who feel that their submissions have been overlooked, as well as the disappointment of those whose most carefully crafted arguments appear to slide off the judicial robe like water off a duck’s back. Conversely, it also helps explain the temptation, to which some judges may succumb, to believe that because the final decision rests with them, they are somehow relieved of the obligation to listen attentively or to engage fully with the arguments presented. Such an attitude, however, is fundamentally incompatible with the ideals of procedural fairness and the sound administration of justice.
II. Mutual Dependence
A. What the Judge Owes the Lawyer
No matter how learned or experienced a judge may be, no judge can possess exhaustive expertise in every area of the law. A judge may hear a commercial dispute in the morning, a land case in the afternoon, and a criminal matter before the close of the day, without necessarily having acquired, in each field, the level of technical specialization that a lawyer develops through daily practice.
It is often the lawyer who brings the relevant case law before the court, draws attention to a recent judicial departure from established precedent, or advances a doctrinal argument that the judge might not otherwise have identified. In this respect, the lawyer constitutes an indispensable intellectual resource for the court.
The most compelling judicial decisions are frequently those informed by outstanding advocacy—advocacy that identifies the real issues, opens new perspectives, and challenges superficial or misleading assumptions. An intellectually honest judge will often acknowledge, at least in private, that a well-reasoned submission has, on occasion, led to a reassessment of the case or even a change of mind during the hearing. Through the lawyer’s analytical rigor and persuasive reasoning, the court may come to perceive dimensions of the dispute that had previously escaped its attention.
B. What the Lawyer Owes the Judge
Conversely, the lawyer owes almost everything to the judge. Without the judge, the lawyer’s advocacy is little more than persuasive speech devoid of legal effect. Without the authority of the court, written submissions are merely documents without coercive force, and negotiated settlements derive their effectiveness solely from the parties’ willingness to comply voluntarily.
It is the judge—through judicial impartiality, institutional authority, and the enforceability of judicial decisions—who transforms legal advocacy into tangible legal consequences. The authority of the court gives practical and binding effect to the lawyer’s work.
There is, however, an even deeper dimension to this relationship. The judge confers upon the lawyer’s advocacy a legitimacy that the lawyer could never bestow upon it alone. When a lawyer secures a favorable judgment, it is not the lawyer who ultimately declares that the client’s position is legally justified; it is the judge, acting as an independent and impartial adjudicator, who reaches that conclusion. That judicial recognition possesses a legal and moral authority that no other institution can confer. It is this authoritative validation that transforms advocacy into justice and makes the lawyer’s efforts meaningful within the rule of law.
C. Mutual Respect as the Unspoken Foundation
Beneath the surface tensions that inevitably characterize their interactions, there exists between judges and lawyers an unspoken mutual respect that serves as the invisible foundation of their relationship. Judges respect lawyers who prepare their cases diligently, master the relevant facts and law, avoid wasting valuable court time with frivolous arguments, and possess the courage to advance positions that others might hesitate to defend. Lawyers, in turn, respect judges who genuinely listen, ask thoughtful and probing questions, provide carefully reasoned judgments, and demonstrate through their conduct that the adversarial debate has been given meaningful consideration.
When it exists, this mutual respect is among the finest expressions of the administration of justice. It is discreet—almost imperceptible to the untrained observer. It reveals itself in a courteous expression slightly warmer than protocol requires, in a glance that lingers for a moment longer than expected, or in a question from the bench that unmistakably shows the judge has carefully read the parties’ written submissions. These gestures may appear insignificant, yet they speak volumes. They reflect the professional esteem that sustains the proper functioning of the judicial process.
III. Resistance
A. Time
If judges and lawyers share a common adversary, it is time. Yet they experience and perceive it in fundamentally different ways, and this divergence lies at the heart of many of their recurring tensions.
Judges are burdened by overcrowded dockets, successive hearings, and an ever-growing volume of cases awaiting determination. They therefore require court proceedings to be efficient, focused, and disciplined. They expect lawyers to address the essential issues, to avoid merely repeating orally what has already been set out in written submissions, and to refrain from turning every case into an exhaustive judicial marathon. Judicial patience is necessarily limited, and few experiences are more discouraging for an advocate than seeing the judge glance repeatedly at the clock in the midst of a carefully prepared oral argument.
Lawyers, however, perceive time through a different lens. Their clients have entrusted them with causes that may involve their liberty, the fruits of many years of work, or even their personal honour and reputation. From the lawyer’s perspective, such matters deserve to be presented fully and meticulously. Every relevant argument ought to be heard, and justice delivered in haste risks becoming justice imperfectly administered. Consequently, lawyers argue, elaborate, and insist where necessary. They often perceive judicial impatience as a sign of indifference, insufficient attention, or an unfortunate concession to overwhelming caseloads at the expense of the quality of justice.
Both perspectives are entirely legitimate. It is precisely because each is grounded in a genuine institutional necessity that their collision is so frequent—and, at times, so profoundly frustrating.
B. The Lawyer’s Independence
One of the deepest sources of tension between judges and lawyers lies in the lawyer’s professional independence. A lawyer is not subordinate to the judge. The lawyer is neither a compliant assistant nor the court’s spokesperson. Rather, lawyers exercise their profession according to their own professional judgment, strategic choices, and ethical convictions regarding the conduct of the client’s defence. This independence, which enjoys institutional and legal protection,[8] may nevertheless be perceived by some judges as a form of insubordination.
A lawyer who vigorously challenges a judicial order, raises successive procedural objections, questions the impartiality of the court, or systematically appeals adverse decisions is acting entirely within the scope of the rights of the defence. Yet some judges may react unfavourably, interpreting such advocacy as a personal challenge to their authority rather than as the legitimate exercise of a lawyer’s professional duties in an adversarial system.
C. Advocacy as an Uncomfortable Mirror
One aspect of courtroom advocacy is seldom discussed, yet it sheds considerable light on the inherent tension between judges and lawyers: oral advocacy acts as a mirror for the judge. It reflects back to the court the manner in which proceedings have been conducted, the way the case has been managed, and the treatment afforded to the parties.
When a lawyer raises a procedural irregularity, it is often the judicial process itself that is being called into question. When counsel denounces an excessive period of pre-trial detention, the criticism may be directed—implicitly or explicitly—at the investigating judge. When counsel reminds the appellate court of established judicial precedents that were overlooked by the trial court, the argument necessarily entails a public critique of the legal reasoning adopted by a fellow judge.
Such criticism is inherent in the exercise of the right of defence. It is neither a personal attack nor an act of disrespect; rather, it constitutes an essential safeguard of procedural fairness and the rule of law. Nevertheless, it inevitably creates a degree of institutional discomfort that the relationship between judges and lawyers must constantly absorb. The success with which that tension is managed depends largely upon the professionalism, temperament, and institutional maturity of those who participate in the administration of justice.
IV. Pathological Deviations
A. When “I Can’t Live Without You” Becomes Too Real
The first pathological manifestation of the relationship between judges and lawyers is improper familiarity—the point at which mutual esteem crosses the line and develops into illegitimate complicity. It may take many forms: the lawyer who has known the judge since law school and, by virtue of that personal connection, secures outcomes that less well-connected colleagues could never hope to obtain; the judge who consistently favours law firms with which personal or professional relationships exist; or the informal negotiations conducted in courthouse corridors, far from public scrutiny, concerning matters that ought to be resolved only in open court.
Such practices, which exist to varying degrees in every legal system, undermine the very foundation of justice: equality before the law. They transform the quality of legal representation from a function of the strength of legal arguments into one of personal influence and privileged access. The result is a two-tier system of justice—one for the well-connected advocate and another for everyone else—a reality fundamentally incompatible with the rule of law.
B. When “Nor Can I” Prevails
The opposite pathology is one of systematic hostility. It arises when a judge comes to regard every lawyer as an adversary by default, receives every oral argument with preconceived suspicion, interrupts counsel repeatedly, dismisses legal submissions through silence or sarcasm, or treats advocacy as an inconvenience rather than an indispensable component of the judicial process. Such conduct is not merely a matter of temperament; it reflects a distortion of the judicial function itself.
The consequence is a courtroom in which the right of defence becomes little more than a procedural formality—a tolerated interlude before the judge delivers a decision that had effectively been made before the hearing even commenced. This atmosphere discourages diligent and courageous advocates, many of whom seek to avoid chambers known for chronic judicial hostility. Ultimately, it also diminishes the quality of judicial decision-making, for a judge who refuses to listen deprives himself or herself of the very arguments and perspectives necessary to arrive at a sound and well-reasoned judgment.
C. The Risk of Excessive Deference
There exists a third pathology, less visible but no less troubling: the lawyer who capitulates. This is the advocate who, out of fear of offending the court, from a desire to preserve cordial relations with the bench, or simply because of habitual familiarity with the same judges and courtroom environment, refrains from advancing an argument that might displease the court, declines to challenge a questionable judicial order, or silently accepts inadequate procedural time limits or procedural inequalities.
Such submission should not be mistaken for prudence or professional wisdom. It is, rather, a betrayal—first of the client, who is entitled to vigorous and uncompromising representation; second of the legal profession, whose defining characteristic is its institutional independence; and, paradoxically, of the judge as well. A judge deprived of genuine adversarial debate is more vulnerable to error, and judicial error inevitably undermines public confidence in the administration of justice and imposes costs upon society as a whole.
As the renowned French lawyer Jacques Vergès aptly observed, “A lawyer who does not disturb is a lawyer who does not defend.”[6] This observation captures a fundamental truth of the adversarial process: effective advocacy is not intended to comfort the court, but to challenge it whenever justice so requires.
V. The Conditions for a Productive Institutional Partnership
A. Respect for Each Other’s Institutional Role
The first prerequisite for a healthy relationship between judges and lawyers is a scrupulous respect for the institutional role assigned to each. Judges must accept that lawyers are, by their very function, partisan, determined, and persistent, because these qualities are indispensable to the proper conduct of adversarial proceedings. Lawyers, in turn, must accept that judges are required to remain impartial, detached, and, at times, capable of rendering decisions that may disappoint one or both parties, because such neutrality is essential to the administration of justice. Whenever either party expects the other to assume a role that is not their own—for example, when a judge expects the obedience of a court clerk from a lawyer, or when a lawyer expects personal complicity from a judge—the relationship becomes distorted.
International legal instruments leave little room for ambiguity on this matter. The United Nations Basic Principles on the Role of Lawyers, adopted in Havana in 1990, affirm that governments and institutions must recognize and respect the independence of lawyers, while the United Nations Basic Principles on the Independence of the Judiciary, adopted in Milan in 1985, guarantee judges the freedom to decide cases free from external influence or improper pressure.[7] These two sets of guarantees are complementary; together, they establish the institutional conditions necessary for a balanced and constructive relationship between the Bench and the Bar.
B. Joint Professional Training
One of the principal causes of misunderstanding between judges and lawyers in many African jurisdictions is the absence of joint professional training and opportunities for meaningful interaction outside the courtroom. In many instances, judges and lawyers encounter one another for the first time during judicial proceedings, within an inherently adversarial environment, without ever having had the opportunity to understand each other’s professional realities in a more collaborative setting.
Joint training initiatives—such as seminars bringing together judges and lawyers to discuss emerging legal issues, conferences jointly organized by bar associations and judicial institutions, or exchange programmes allowing newly appointed judges to observe legal practice within law firms while enabling young lawyers to attend educational judicial deliberations as observers—would contribute significantly to the development of a shared professional culture founded on mutual understanding rather than inherited mistrust.
C. Institutional Dialogue
Beyond professional training, what remains lacking in many Francophone African countries is a structured and permanent framework for institutional dialogue between the judiciary and the legal profession. Relations between bar associations and courts are too often managed informally and on an ad hoc basis, without permanent consultative mechanisms capable of addressing, in a constructive manner, recurring issues such as hearing schedules, access to investigative case files, the management of procedural incidents, or the practical conditions under which lawyers exercise their profession before geographically remote courts.
In several jurisdictions, joint committees composed of representatives of the judiciary and the bar have successfully resolved practical difficulties that had persisted for years simply because no institutional forum existed in which they could be openly discussed. Such initiatives deserve to be expanded and institutionalized, particularly in Burkina Faso, where tensions between the legal profession and certain courts have, on occasion, reached concerning proportions.
D. Professional Ethics as a Common Language
Ultimately, the strongest common ground between judges and lawyers lies in their shared commitment to professional ethics. Both professions are governed by demanding ethical obligations—including impartiality, independence, integrity, dignity, and loyalty—which, in reality, represent two complementary expressions of a single overarching objective: the fair administration of justice in full respect of human dignity.
When judges faithfully uphold the principle of adversarial proceedings, afford each party an equal opportunity to be heard, and provide carefully reasoned decisions, they create the conditions necessary for meaningful and effective legal representation. Likewise, when lawyers advocate with integrity, refraining from unfair tactics or dilatory manoeuvres, they provide judges with the factual and legal foundation required to reach well-informed decisions.
Within this virtuous circle, the relationship between the judge and the lawyer ceases to resemble the paradox of “I can’t live with you, yet I can’t live without you.” Instead, it becomes—borrowing a more restrained yet more accurate expression—a genuine institutional partnership dedicated to the common pursuit of justice.
REFERENCES
[1] In Burkina Faso, judges are recruited through a competitive examination jointly organized by the Ministry of the Civil Service and the Ministry of Justice, whereas lawyers gain admission to the legal profession through the Bar Association’s competitive examination, followed by a two-year professional traineeship. See Law No. 016-2000/AN of 23 May 2000 regulating the legal profession in Burkina Faso, arts. 25 et seq.; see also Law No. 050-2015/CNT of 25 August 2015 on the Status of the Judiciary in Burkina Faso.
[2] Antoine Garapon, Bien juger: Essai sur le rituel judiciaire (Judging Well: An Essay on Judicial Ritual), Paris: Odile Jacob, 2001; see also Paul Ricœur, Le Juste (The Just), Paris: Éditions Esprit, 1995.
[3] Law No. 050-2015/CNT of 25 August 2015 on the Status of the Judiciary in Burkina Faso, art. 110 (establishing the judicial duty of impartiality).
[5] United Nations Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August–7 September 1990, Principle 16:
“Governments shall ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference.”
[6] Jacques Vergès, De la stratégie judiciaire (On Judicial Strategy), Paris: Les Éditions de Minuit, 1968.
[7] United Nations Basic Principles on the Independence of the Judiciary, adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Milan, Italy, 26 August–6 September 1985, Principle 2; see also United Nations Basic Principles on the Role of Lawyers, Havana, 1990, Principle 16.