CONFLICT BETWEEN INTERESTS AND DUTY, DUTY TO COURT, DUTY TO CLIENT, DUTY TO OPPONENT

Advertisements

Spread the love

Post Views: 791

This article is written by Purvika Kirmire of 5^th Semester of GLC Mumbai, an intern under Legal Vidhiya

Abstract

This article lays down various duties of an advocate towards his client, towards court, towards his opponent. How he/she has to present themselves with dignity, respect the courts dignity, show right path to the client, neither they should use illegal, unfair means to win case nor should support clients in doing so and many other duties have been discussed in this article. Author has tried to explain the conflict between duty and interests, and why should duty prevail and how everything stays in order when one performs his/he duty, but there are situations where to make duty prevail is not an option due to such situations, conditions which are not in their hands, but this won’t apply to the situations where he/she has an option, they do have a choice of keeping their duty as priority.

Keywords

Dignity, justice, case, voice, client, unethical, management, rights. interests, rationality

Introduction

When we hear the word advocate first thing which comes to our mind is a person with a law degree who pleads, acts in court and for common people someone who is related to court or whose work is related to court. So, we can say that his profession revolves around court, so he also owes some duties to court. His/ her duties towards court are various there’s no determinate list for it, the list is self-evolutionary with time, new circumstances, new cases and their judgements.

Duty of an advocate to court:

He/she is a person who studies law, which at every point makes him understand and follow rules, a righteous path, so if he is working at courts, he has to follow certain rules which comes under the umbrella of his duties towards court.

An Advocate should conduct himself with dignity when he his presenting a case in front of court, when he is making arguments.

When we say that he should conduct himself with dignity when he his presenting a case in front of court, we mean he is presenting it in front of a judge, so an advocate should always keep in mind that judge is the justice giver, he is a person of great authority and dignity therefore it is his duty to respect this figure of justice, fairness, because he is the one who delivers judgement. An advocate must treat a judge with due respect. When arguing an advocate must follow what judge is directing him/her, must not unnecessarily raise voice in front of judge.

It is the obligation on the advocate to carry out his roles in such a way that because of his demonstrations the honour, poise, and honesty of the courts will not be impacted.

An advocate should not create any kind of disturbance in the courtroom so that any interruption in proceedings is avoided. Especially when the proceedings are in progress, an advocate should refrain from laughing or speaking loudly in the courtroom, this is considered to be dishonour of court.

Ex-Capt. Harish Uppal vs Union of India & Anr on 17 December, 2002[1]

In a landmark ruling, the court ruled that advocates had no authority to strike or call our for boycott of court. It was decided that advocates do not have any reserved rights to strike or issue a boycott call, not even for a purely symbolic strike. Every Advocate has a responsibility to resolutely reject any call for a strike or boycott.

An advocate always has the right and obligation to bring his/her complaint or grievance to the appropriate authorities where there is a legitimate basis for a serious complaint against a judicial officer.

An advocate being a learned person with a law degree should as a duty to the court must assist court to maintain its decorum and administration of justice and must also cooperate with the honourable bench so that the delivery of justice becomes efficient.

This profession of advocacy is all about justice, fair play so being an advocate one must never use any unfair, improper, illegal practices and must refrain from acting improperly or illegally towards the lawyer representing the other side or those who are in opposition. And when he/she should not by themselves indulge in such practices so it becomes their duty to court that they must stop/ prevent/ restrict their clients from doing anything in any way that is illegal, improper, or unjust against the court, the opposing counsel, or those in opposition.

Regarding any case that is currently before the judge or another judge, an advocate shouldn’t speak privately to that judge. A court’s decision should not be influenced by an advocate utilizing unethical or criminal tactics, such as threats, bribes, or coercion

He/she will be honourable in the utilization of his language in correspondence and during contentions in court. Any words which demean the authority of the court and judge must not be used. He will not involve unparliamentary language during contentions in court.

Any client who insists on using unfair or improper methods must be refused representation by an advocate and must make every attempt to stop his client from engaging in shady or unfair tactics or from acting in a way that the advocate himself wouldn’t be expected to act toward the court, the opposing counsel, or the parties. He will not aimlessly adhere to the guidelines of the client. When a client suggests the advocate for example in a case of redevelopment of a building where tenants in mid of the construction are creating obstructions and are willing to appoint a new developer, to threaten these tenants and to use coercion to get their consent to start work, it is the duty of the advocate to stop the client from doing and must suggest what can be done by using lawful means to restart the construction.

If an advocate is a member of the establishment’s management, he or she should not testify in front of any judicial authority for or against the establishment.

After receiving a brief, an advocate should appropriately attend all adjournments. He should first get authorization from the court in question if he has any other job in other court. An advocate’s first and main responsibility is to appear, especially in criminal matters. In the case of Lt. Col. S. J. Chaudhary vs. State (Delhi Administration)[2], the High Court had directed that a criminal trial go on from day to day. It was argued before this Court the fact that Advocates were unwilling to attend every day since the trial was anticipated to last a lengthy time. It was decided that any advocate who has accepted a brief in a criminal case is required to show up every day for trial. It was decided that failing to appear would constitute a professional duty breach for a lawyer.

If the judge is related to the advocate as the dad, granddad, child, grandson, uncle, sibling, nephew, first cousin, spouse, wife, mother, girl, sister, auntie, niece, father by marriage, mother by marriage, child in-regulation, brother by marriage, little girl in-regulation, or sister by marriage, then an advocate shouldn’t plead or act in front of them because these relations can influence judgement. An advocate should never take on a case involving his own family.

The gown and band are identity of an advocate it differentiates them from common people or interns or staff in the court, it is their duty to court and it is an obligation on them that they should never wear a band or gown outside court, in public place.

An advocate shouldn’t act or argue in that frame of mind in which he has monetary interests.

When a client needs a surety for legal proceedings, an advocate should not act as a surety or certify its soundness

An advocate’s duty to client

Client approaches an advocate when in some trouble or wants his legitimate rights to be recovered through court.

Clients are of various categories one who is a sufferer and another one whose actions have made someone else suffer and so on. When client approaches advocate, he has a hope that his interest is safeguarded, he is trusting that advocate, he agrees to pay fees, so here emerges the scope of duty of an advocate towards such clients.

An advocate must not fool his client or take advantage of his situation. He must not misguide him.

When a client who is not financially well off approaches an advocate and if the advocate accepts and agrees to fight his case, then he should not take this client’s case lightly just because of his financial condition, it is the duty of an advocate towards a rich and financially unstable client to use his skills at his best so that judgements come in their favour.

When an advocate agrees to fight a case, he should not backout by giving some arbitrary reasons.

An advocate must make clear things which are of his interest related to the case, he should not hide it from his client. If an advocate is a member of an association who is opponent party to the suit, then it is his duty to disclose this information to his client.

An advocate must keep his client’s interest in mind and should try defend his interest, he should fight the case selflessly to protect his client by not indulging in unfair practices and neither supporting his client to use any unfair means to win the case.

An advocate should follow guidelines given by his client or a person appointed by him and not of others. A client’s communications should never be disclosed by an advocate, either directly or indirectly.

Whatever information which has been given by client to an advocate it is duty of that advocate not to divulge that information to anyone in an unfair manner, it is his duty to protect such information.

An advocate shouldn’t exchange or consent to get any offer or interest in any significant case. Stock, shares, and debentures of government securities, as well as any instruments that are currently negotiable according to law or custom, and any mercantile document of title to goods, are exempt from this rule.

The fee that a client pays an advocate should not be subtracted from the advocate’s own personal obligation to the client, which does not arise during the practice of law. If the client is an owner of a shop from where the advocate has bought something by paying one third of the sum and rest to be paid after delivery, this rest amount cannot be subtracted from the advocate’s own personal obligation to the client.

Prabodh Verma And Others, Etc vs State Of Uttar Pradesh And Others.1985[3]

An advocate has a responsibility to both his client and the court: the client expects him to put his all into the cause he has taken on in their behalf, and the court expects him to use all of his experience and ability to aid in the fair and effective administration of justice. In our system of administering justice, the courts have a right to obtain aid from the Bar, and it is the advocate’s responsibility to request the proper reliefs while drafting a writ petition or any other pleading. It is true that the petitioners in this case are poor and may not have been able to pay large fees to their lawyers, but that cannot be a reason why the client’s lawyer does not give his best to his client. A lawyer should not measure the quality of his work in a case by the amount of the payment he receives.

Duty of advocate to opponent

An advocate should try his level best to get judgement in his favour but in doing so he should not use any unfair or illegal practices towards the opposing counsel.

Even though they are opponents who are supposed to oppose each other’s contention but in doing so they should not disrespect each other’s dignity, it is their duty to fight the case with sportsman spirit which would uphold dignity and fairness and ethics.

An advocate is responsible for keeping legitimate commitments made to the opposing part, whether they are recorded in writing or not.

An advocate should not speak with or negotiate with any party that is represented by an advocate directly on a contentious issue, such negotiations should only take place through advocates.

Conflict between Interest and Duty

Ethically speaking either it be any profession, duty should prevail over interest. An advocate has duties towards court, his client, opponent which should not be breached just by putting interest above it. If a client is trusting an advocate, it is his duty that he/she protects the confidential information and maintain privacy irrespective of what offers he is getting by opponents to reveal that information. To maintain the decorum of the court an advocate must cooperate with the judges, present themselves with dignity and also respect the dignity of the judges.

There are situations in which maybe monetary requirements seems to overpower one’s duty but being a rational man, a learned person in law, he/she who plays a very important role in administration of justice should choose duty over interest.

In today’s world for every human being either it be a lawyer, doctor or a mere worker at brick kiln somehow fulfilling their interests are more important, but does this mean that they are deviating from their duty or they are fulfilling interests by placing their interests over duty. Answer to this is very uncertain it may be a yes or it may be a no. There are advocates for whom their duty prevails over interest but circumstances, his situation or choice left to him might leave him helpless, where his rationality seems to be meaningless and maybe here, he/she will choose interest over duty.

Conclusion

Duty a very simple word with a very intricate meaning, an advocate has different duties towards court, client, opponent, we have discussed about these duties above, duty to maintain dignity, secrecy of information, duty towards the opponent to maintain sportsman spirit and many more. Every profession has duties linked with it, here we might think that are duties that important, here I would like to say that the answer to this question is a very big yes. Every individual is performing their duty and this is the reason why things are in order either it be a lawyer’s duty to respect court or a doctors duty treat his patient or a mother’s duty to teach morals to her kids, when every person performs his/her duty this is when everything takes place in mannerly way.

During covid doctors choose their duty over interests, they saved many lives by selflessly treating patients, they also had an option to stay indoors and keep themselves away from this virus but what they did was phenomenal and here we cannot forget nurses whose contributions are very huge that words won’t be able to describe it. Here duty prevailed and we also got to know how important it is to perform one’s duty, this applies to every person be it a lawyer, judge, engineer, a mother and father etc.

References