This article is written by Shashank Shekar Ojha of Banaras Hindu University, an intern under Legal Vidhiya
Ethics is knowing the difference between what you have a right to do and what is right to do.
-POTTER STEWART
HISTORICAL ASPECTS:-
The legal profession constitutes an important part of the society for administration of justice. To quote the Law Commission Report (1958) “A well-organized system of judicial administration postulates a properly equipped and efficient Bar”. A well organised profession of law is pre requisite for administration of justice.
The advocates of the Mayors courts in 1726 in the presidency towns were not subject to provision of code of conduct. Therefore, those who practiced law at that time arc devoid of any legal training or the knowledge of law. The first step in the organization of legal profession in India was the establishment of the Supreme Court at Calcutta in 1774. The Supreme Court is empowered to admit and enrol the advocates and attorneys-at law. The term advocate at that time meant English,Scottish,etc .. The expression ‘Attorney’ then meant only the British attorneys or solicitors. The Supreme Court,of Calcutta, or courts of Bombay or Madras was only for the british advocate. In 1861, legislation is passed to establish High Courts at Calcutta, Bombay and Madras. The High courts were empowered to admit and enrol advocates, Vakils and attorneys to appear for the suits in High Court. In 1879, the Legal Practitioners Act made law relating to legal practitioners. This Act empowered the High Court to make rules for persons to be pleaders and mukhtars of the High Court. There are basically three classes of lawyers namely attorneys, advocates and Vaklls. Vakils are the persons who had taken their LLB degree from an Indian University and had the same standing as those of attorneys. In the non-chartered High courts, were the advocates, pleaders and mukhtars. Pleaders were enrolled to practise before the subordinate courts after passing the pleader ship examination conducted by the High courts. After certain years of practise, they enrolled themselves as High Court Vakils. Besides the pleaders, there are mukhtars, who after completion of Matriculation passed the mukhtarship examination held by the High courts and mainly pleaded before the criminal courts. Thus the legal profession in India had a chaotic scene of several categories of legal professionals. The Government of India appointed the Indian Bar committee popularly known as Chamier Committee in 1923 to report on the proposal of the legal professionals to constitute an Indian Bar. The committee recommended for the unification of different categories of legal practitioners and for the establishment of a Bar Council for each High court. In tune with the recommendations of the Chamier committee to establish Bar councils, the Central legislature enacted the Indian Bar Councils Act in 1926. The establishment of the Supreme Court of India in 1950 gave a new stimulus to the demands of the Indian legal profession. As a result, the All India Bar Committee recommended national bar.It recommended all india bar council and state bar council. It also emphasized the principle of autonomy of the Bar consisting wholly of the members of the profession. In 1961, the Parliament enacted the Advocates Act to amend and consolidate the law relating to legal practitioners and to provide for the constitution of the Bar Councils and an All India Bar. An advocate on the common rolls has a right to practise in any part of India and in any court, including the Supreme Court .
The Bar has been integrated into a single class of legal practitioners known as advocates. The act creates State Bar Council and Bar Council of India. The State Bar Council is empowered:
* to admit persons as advocates on its rolls,
* to entertain and determine cases of misconduct against advocates on its rolls; and
* to safeguard the rights, privileges and interests of advocates on its rolls. The Bar Council of India prepares and maintains a common roll of advocates, lays down standards of Professional conduct and legal education.[1]
Under the provision of Advocates Act 1961, a set of Section 49(c) a set of rules governing standard of professional conduct and etiquette were prepared by the Bar Council of India – the highest organization of Indian Legal Professionals. These rules were adopted by a resolution passed in 1965. These rule provide a guide line to the practising lawyers in their professional conduct.
RULES ON AN ADVOCATE’S DUTY TOWARDS THE COURT[2]
1. Act in a dignified manner The Advocate is expected to act in a dignified manner during the presentation of case and before the court .Self respect and dignified way of working are the prerequisites of advocacy. The advocate has a right and duty to complaint against a judicial officer to the authorities, provided there are proper ground.
2. Respect the court Proper respect must be bestowed in professional conduct of advocate towards the court. This is important for the immortality of a free community.
3. Not communicate in private There should not be any hidden communication between judge and advocate outside court for the existence of possibility of decision being affected, sometimes through illegal means like bribe, coercion, etc.
4. Refuse to act in an illegal manner towards the opposition Advocate is having obligation to prevent any illegal practice through him and his client which affects spirit of law. He should not act contrary to law while dealing with judiciary, opposing parties and opposing parties.
5. Refuse to represent clients who insist on unfair means Advocate shall refrain from illegal practices. He should not get swayed by the opinion of the clients who consistently insist on illegal practices. Proper use of conscience is expected from advocate. Use of proper reputed language is the gesture of advocate. He shall not use scandalous derogatory or unparliamentary language .
6. Appear in proper dress code An Advocate must adhere to the prescribed code of uniform in Bar Council of India rules, and must look presentable.
7. Refuse to appear in front of relations An advocate should not enter appearance, act, plead or practice in any way before a judicial authority if the sole or any member of the bench is related to the advocate as father, grandfather, son, grandson, uncle, brother, nephew, first cousin, husband, wife, mother, daughter, sister, aunt, niece, father-in-law, mother-in-law, son-in-law, brother-in-law daughter-in-law or sister-in-law.
8. Not to wear bands or gowns in public places The band and gown of advocates must be worn at courts and at prescribed occasion by Bar Council of India .
9. Not represent establishments of which he is a member if advocate is a member of establishment should not appear before judicial authority .exception: amicus curiae, Bar council law society or bar association.
10. Not appear in matters of pecuniary interest if he has bestowed financial interests the he should not plead in court. e.g. in bankruptcy where he is a creditor , company in which advocate is director.
11. Not stand as surety for client An advocate should not aid his client by certifying surety or soundness of surety.
RULES ON AN ADVOCATE’S DUTY TOWARDS THE CLIENT
- Bound to accept briefs: An advocate has obligation to accept brief in the court or tribunal in which he is practising. He should levy fee which is in accordance with fees of the advocate of his standing in the court. In special circumstances exemption is there.
- Not withdraw from service: Service of an advocate should be withdrawn only after giving justified reason and notice to the client and the fee not accrued to the client should be returned.
- Not appear in matters where he himself is a witness: The advocate should withdraw himself from taking brief or appearing in a case where he has sufficient reason to believe that he might be a witness in the case and this is going to jeopardize the interest of the client.
- Full and frank disclosure to client: from the inception of representation the advocate should fully bring to knowledge of the client all information in connection of the relationship between parties and him or his levied interests.
- Advocate free from prejudice should defend his accused client and protect him without considering consequences. He should be loyal to the law .
- Advocate should always ensure the his act should ensure that no innocence should be held guilty .He should not hide material or evidence that prove innocence of the accused.
- Advocate should not disclose the communication between him and his client . exception S.126 ,THE INDIAN EVIDENCE ACT,1872.
- Advocate should not incite litigation.
9. An advocate should not act on the instructions of any person other than his client or the client’s authorised age
10. The charge of the advocate should not be determined by the verdict or the proportionate to the value of property received in litigation.
11. Advocate should refrain from share or interest in actionable claim. Nothing in this rule shall apply to stock, shares and debentures of government securities, or to any instruments, which are, for the time being, by law or custom, negotiable or to any mercantile document of title to goods.
12. Not bid or purchase property arising of legal proceeding An advocate should not by any means bid for, or purchase, either in his own name or in any other name, for his own benefit or for the benefit of any other person, any property sold in any legal proceeding in which he was in any way professionally engaged. However, it does not prevent an advocate from bidding for or purchasing for his client any property on behalf of the client provided the Advocate is expressly authorised in writing in this behalf.
13.Advocate should not bid in auction, acquire by sale , gift,etc property which is in suit in which he is professionally advocating .
14.Advocate should not settle the fee of client in some other liability apart from course of employment as advocate.
15.An advocate should not misuse or takes advantage of the confidence reposed in him by his client.
16.Advocate should keep proper account of money transaction of client.
17. Advocate should have prior permission of the client to take the money by client as fee of advocate.
18. Advocate should inform the client about receipt of money in the role of representative of client .
19. Adjust fees after termination of proceedings An advocate shall after the termination of proceedings, be at liberty to adjust the fees due to him from the account of the client. The balance in the account can be the amount paid by the client or an amount that has come in that proceeding. Any amount left after the deduction of the fees and expenses from the account must be returned to the client.
20. On being paid the copying charge the advocate should give copy of accounts of client which is maintained by the advocate, on demand.
21. An advocate shall not enter into arrangements whereby funds in his hands are converted into loans.
22.Advocate should not lend money to the client for action in suit or proceeding . exception:it is specified by court to pay the amount on behalf of the client .
23.Advocate who has appeared for a party should not act , plead ,or represent the opposite party.
RULES ON ADVOCATE’S DUTY TO OPPONENTS
1. Not to negotiate directly with opposing party Advocate should represent the party and communicate with the other party only through their representative advocate as communication with parties for the negotiation or settlement is not conduct of advocates.
2. Carry out legitimate promises made Advocate should carry all legitimate promises to the opposite party oral or in writing.
RULES ON AN ADVOCATE’S DUTY TOWARDS FELLOW ADVOCATES
1. Not advertise or solicit work :Advocate should not adopt practices of tout , newspaper comments , circulars ,personal communications other than personal relations ,publishing photos in cases which he has represented.
2. Sign-board and Name-plate Advocate’s name plate should be of reasonable size excluding membership of bar , presidency, or relation with person or association or his historical appointment as advocate general,etc.
3. Not promote unauthorized practice of law An advocate shall not permit his professional services or his name to be used for promoting or starting any unauthorised practice of law.
4. An advocate shall not accept a fee less than the fee, which can be taxed under rules when the client is able to pay more.
5. Consent of fellow advocate to appear An advocate should not appear in any matter where another advocate has filed a vakalt or memo for the same party. However, the advocate can take the consent of the other advocate for appearing. In case, an advocate is not able to present the consent of the advocate who has filed the matter for the same party, then he should apply to the court for appearance. He shall in such application mention the reason as to why he could not obtain such consent. He shall appear only after obtaining the permission of the Court.
ETHICALITY OF THE CODE OF CONDUCT
For the above purpose ten situations, reflecting unethical behaviour patterns were framed. It would not be inappropriate to explain here why these situations are considered as unethical.The ten unethical situation are as:
- Showing disrespect to the Judges: Since the judiciary is a prime organ of Governmental social control and in figurative language the courts are called ‘temples of justice’ and the judges are the ‘lords’, their position and authority certainly demand respect and the members of bar are expected to display high regard towards the judges . It is an ethical expectation expressed by their code of conduct .Hence showing disrespect to the Judge is an unethical practice.
2. Paying marked attention, offering unusual hospitality to the Judges: It is expected of the lawyers as professional to conduct litigant on behalf of their client by using professional acumen skills and knowledge,. In fact, lawyers must try to win the cases for their clients on merit of the case. Therefore, deviant means such as winning favour of Judges and the officers of the court by showing hypocritical respect, and sometimes by using corrupt means to please the Court, in return for an illegal gratification amounts to a breach of professional ethics
3. Reading out the client’s confidential matters: Among the professional’s privileges, one of the most important is that is that of confidentiality. The professional encourages the client to volunteer information. Community regards this as the priviledged communication, shared only between client and advocate. This is moral binding on the advocate not to share this information.
4. Accepting a case only after an advance payment of fees: A professional is expected to be loyal to the interests of his client, and in his cause be guided by highest moral principles. the The amount of his fees is not expected to determine the amount of his industry. Thus, accepting a case, only after an advance payment of fees , is breach of the lawyers’ ethical code
5. Accepting commission, compensation and share in the fruits of litigation: Sometimes, besides normal and exorbitant fees advocates expect part in compensation, or price or some part of a land, or the share in the produce. This the lawyer can do . But this is considered undue advantage and is unethical.
6. Taking away other’s clients :The professional ethics governing colleague relationships demands behaviour that is cooperative, equalitarian, and, supportive. Members of a profession are not expected to further their own interest at the cost of others . Professional must refrain from practices which jeopardise the authority of colleagues. Thus it is natural that taking away the clients of others should be looked upon as unethical behaviour.
7. Indulgence in self-advertisement: Propaganda and advertisement –genuine or counterfeit – are the pillars of success in business or and industry. The legal profession is not a business. It is on a higher plane, where the lawyer is expected to earn his livelihood by method for the applying his intellect to the matter of law, and help the Judiciary to fight for people at large. Hence dubious methods of self- propaganda are deemed to be unethical in this profession.
8. Accepting clients through touts : The legal profession appears to have been contaminated by the presence of touts who exert considerable influence in this field. practice The touts are instrumental in procuring practices for the pleader. The lawyers in turn are required to pay a part of their fees to the touts. This gives rise to the following undesirable practices
i) the lawyer charges high fee to the client to pay the tout
ii) Secondly, as greater commission to a tout fetches more practice, it generates competition in paying money to touts .Lawyer can get lucrative practice by paying sumptuous money the touts. This, ending in touting ultimately leads towards unhealthy competition a denial of proper justice to the client. It should be considered as the most unethical practice, in this profession.
9. Exploiting the ignorance and negligence of the opposition Counsel : In any profession, as far as ethics is concerned, fair play is expected. Catching the opponent on the wrong foot is in bad taste, especially. in a noble profession like legal profession.It is not just to take advantage of the ignorance and negligence on the part of the opponent. The laws are changing, the methods and matters of law, with reference to case laws, are also undergoing a vast change. Besides, a lawyer as a human being sometimes likely to commit mistakes due to oversight or is inadvertance.
Hence, the one’s on it is definitely unprofessional to take advantage of ignorance of the opponent and exploit the situation for personal glory and succcess in the profession, merely the strength of the weakness of the other party. It definitely tantamounts to the breach of professional ethics.
10. Adopting dilatory tactics i.e. obtaining adjournment in a case only for one’s own convenience :-
It is a general observation, especially in our country, that cases Sometimes, are kept pending for years.civil suit filed by person is not adjudicated for years , and a verdict not obtained within his lifetime. This happens due to the delaying tactics of the lawyers who have , the ‘adjournment mania’. Justice delayed is justice denied . This is unethical practice .
INTERESTS V. DUTY
Important issue is the cause of the lawyers adopting unethical practices over professional conduct rules. It is due to the difference between the prescribed goals and the institutionally accepted means to achieve these goals . The lawyers contempt for the professional code of conduct rules is because of his surrounding . It includes social condition ,family , income level , their motivating forces, perception and job contentment , training resources, educational attainments, social trend. Legal profession being main source of subsistence makes money the only motivating force . Lawyer’s attitude in dealing with cases is proportional to the client’s purse. The liking for material resources if well being urge lawyers to practice unethical conduct . Touts constitute the mainstay of lawyers in the court .[3]
The advent of modern and materialistic aspect of well being and luxury ,competition , income level and urge for money are the factors that cause the lawyers to chose unethical practices.
CONCLUSION:
Professional ethics deals with many facet obligations of a professional .Professional ethics are ideals and practices which develop out of man’s professional privileges and responsibilities . It define situation which otherwise would remain uncertain . Professional ethics is brought into function by code of conduct .This code of conduct is vulnerable to the reality and need of professionals. But ,what is professionally wrong cannot be professionally right.[4]
CASES ON PROFESSIONAL MISCONDUCT OF ADVOCATES
Noratanmal Chaurasia vs. M.R. Murli (2004) 5 SCC 689
Narain Pandey vs. Pannalal Pandey (2013) 11 SCC 435
Shambhuram Yadav vs. Hanumandas Khatri AIR 2001 SC 2509
Bar Council of Andhra Pradesh vs. Kurapati Satyanarayana AIR 2003 SC 178
Harish Chandra Tiwari vs. Baiju 2002 (2) SCC 67
REFERENCES:
- Saroja, G, A critical study of the information needs of the legal profession and legal information systems with particular reference to Andhra Pradesh Sri Venkateswara University(2015)
- Sattoor, Sunalini Chinnappa, A sociological study of the legal profession in India with reference to the practising bar at Pune Savitribai Phule Pune University (1988)
- International Journal of the Legal Profession, Cambridge (Volume 29, Issue 3, 2022)
- Legal Ethics, Volume 24, Issue 2 (2021)
- ADVOCATES ACT, 1961
- https://blog.ipleaders.in/professional-misconduct/
[1] A critical study of the information needs of the legal profession and legal information systems with particular reference to Andhra Pradesh Saroja G, Sri Venkateswara University 1992
[2] RULES OF PROFESSIONAL STANDARDS , THE BAR COUNCIL OF INDIA
[3] Gandhi J.S. Lawyers and Touts, 135(1982)
[4] Hoffman (1936)
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