"If two senior advocates fight like this in the Supreme Court, I wonder what would be the plight in the lower courts," remarked a three-judge bench headed by Justice D.K. Jain, commenting on the spat between Senior Advocates Kamini Jaiswal and Ram Jethmalani.

Justices DK Jain, Justice Sathasivam and Aftab Alam in Court Hall No. 5 were hearing 8 petitions which were clubbed together, regarding the Gujarat riots. The counsel list included Senior Advocates Harish Salve and Prashant Bhushan being assisted by more than 50 junior lawyers in this matter including Litigation Partners of various firms.

The exchange started when Senior Advocate Kamini Jaiswal objected to Jethmalani taking up the brief on behalf of former Gujarat legislator Kalu Bhai Maliwal to challenge an April 2009 order. The Supreme Court had, on April 27 last year, ordered a probe to be conducted by a Special Investigation Team (SIT) to look into the 2002 Gujarat riots incidents. The Supreme Court had also directed the probe team to investigate the roles of legislator Maliwal and other politicians including Chief Minister Narendra Modi.

IANS reported verbatim the exchange between the senior counsels. “The fact that Jethmalani had earlier sought the transfer of the trial of all riot cases outside the state indicated that he was convinced with the culpability of state functionaries in fomenting the communal trouble”, she said, maintaining that advocates must observe some consistency in taking up the briefs.

Responding, the Bench commented that they “cannot decide what briefs the lawyers should take”. "Let a lawyer's conscience decide what brief he should take up." When Jaiswal responded by saying, "It's not parliament that a lawyer should change sides," an infuriated Jethmalani said, "You are too small for saying that." Jaiswal contended that in a courtroom, lawyers stood on equal footing.

Speaking to Bar & Bench Advocate Ramesh Pukhrambam, who was present in the Court asks, “By the courts records, one can see that Mr. Jethmalani had represented the victims earlier. Now, he is representing the accused in this matter. Isnt this conflict of interest?”

Ram Jethmalani had earlier represented Centre for Peace and Justice, an NGO that had filed an application to hand over the investigation of the Gujarat riots in a separate matter although connected with the larger issue of Gujarat riots.

Jethmalani had spoken to the media in 2009 and had offered his assistance to the Supreme Court on the Gujarat riots cases when the court had invited senior members of the Bar.  "Since it would have been embarrassing to come and offer my assistance, I was looking for an opportunity” he said.

This throws a larger question of the definition of conflict of interest? Whether these litigations were connected to each other for conflict to arise? The Bar Council Rules on Professional Standards only says, “An advocate who has, at any time, advised in connection with the institution of a suit, appeal or other matter or has drawn pleadings, or acted for a party, shall not act, appear or plead for the opposite party”. Going by this limited definition, one can argue that no conflict exists, on technical grounds, if the opposite party is not the same side.