PROFESSION ETHICS AND ADVOCACY

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This article is written by Anam Siddiqui of BALLB of 3^rd Semester of Sadanlal Savaldas Khanna Girls Degree College, Prayagraj , an intern under Legal Vidhya.

Abstract:

Schools, colleges, Management, Medical Practising, Litigation, etc, in every field a particular code of conduct is mandatory to be followed by the students, staffs, etc. For the guidelines, which govern the behaviour of a person in course of his profession, is denoted by the term Professional Ethics. This article is going to deal with the concept of Professional ethics and particularly its implication in the field of advocacy. Dispensing justice, upholding to the rule of law, assuring unity are the basis of advocacy thus, the importance of professional ethics in litigation cannot be ignored.

Keywords: Professional Ethics, The Advocates Act 1961, Integrity, Rule of Law, Impartiality, Bar Council of India.

Introduction:

Professional Ethics refers to the guidelines or principles according to which the behaviour and conduct of any person or group is governed in any business environment.

Professional ethics can be understood as those standard behaviour and values of the people who are working a particular field. These principles are set up by the professional organizations. It is done so to preserve the public reputation of the particular profession and maintain a disciplined environment. It also ensures the sanctity of the relationships with the client by governing the behaviour of the professionals.[1]

Professional Ethics in law means code of conduct and set of principles which the behaviour of legal professionals. These principles must be followed by the advocates and the lawyers while practising law. These are the basic conduct of a lawyer.

Ethics are the basic conditions in every profession including law. It governs the human behaviour and their standard of moralities.

The Lawyers and Advocates must obey the guidelines of professional while dealing with their clients and their behaviour in courts in order to maintain the position of their profession.

A Statutory body, The Bar Council of India, is established under The Advocate Act. 1961.

Role of Professional Ethics in Advocacy:

Professional Ethics plays a very important role in legal profession in India. It helps in upholding the rule of law and justice.

Ethics ensures that advocates are firmly stuck to the legal principles thus, maintaining the sanctity of the system and looking after the justice and integrity.
Professional Ethics ensures fairness and impartiality. Lawyers should provide impartial services to their clients. Justice is served on an impartial base and it should be fair.
Professional Ethics maintain integrity within the legal professional. Ethics of law expects the lawyers to act with honesty in their dealings. It creates a sense of responsibility and preserves the reputation of the profession.
It helps in increasing the faith of public in legal professions. Trust is vital and ensures efficient functioning of the system. When the legal professionals act in accordance to the ethical code, people rely their trust on them.[2]

Need for Professional Ethics in Advocacy:

Law is a foundation to the vault of the Government. There is a need of a proper code of conduct to prevent the judicial system to get it influenced by the impartiality, unaccountability, greed or undeserving motives. The advocates are obliged towards the Bar, a judge to the Bench of justice by the means of ethics. Standard of ethics varies among an advocate, litigants, clients or a judge in a Court. Protecting clients from getting targeted to unfair practices is the duty of the Bar and the Bench.

Lawyers should conform to the code of conduct in order to retain their membership in the field.

Professional conduct and Professional ethics:

The difference between professional conduct and professional ethics:

Professional Conduct refers to those actions are which are performed under any legal obligations such as under any statutory or contractual obligation;

Professional Ethics are those conduct which are moral one and expected to be followed.

The Advocates Act, 1961:

This act was introduced mainly based on the recommendations made by the All-India Bar Committee and Law Commission. Indian Parliament established The Bar Council of India under Section 4 of this Act and allotted functions mentioned in Section 7 of the Act.

Section 7(1)(b) mentions standards for advocates and Section 49(1)(c) grant power to the Bar Council to make rules regarding professional conduct of advocates.[3]

Code of Conduct of Advocates:

The Act prescribes various duties and obligations of the advocates including:

Advocates cannot advertise or solicit their work.
Advocates cannot demand fee for training.
Advocates must retain the consent of an already engaged advocate before entering in the case.
Advocates cannot use their name or services for the unauthorised practices.

Bar Council of India:

Bar Council of India Rules are framed by BCI under the chapter II of part 6. 39 rules are laid down in respect of duties of lawyers towards clients, opponents and courts.

Advocates Duty towards Courts:

Maintaining a respectful attitude and dignity of the judicial office: It was held in the case of UP Sales tax service association v. taxation bar association(1995), that if an advocate doesn’t show respect or recognises the dignity of the judicial officer their survival will be in danger. It lowers down the spirit of the court.
To appear in a proper prescribed dress code: There is a prescribed dress code for advocated. Thus, it is expected that they should follow this rule. There have been many cases where advocates matter had been postponed or dismissed, when proper dress code was not recognised by them. Thus, to maintain a sense of dignity they should appear in the prescribed presentable form.
Bands or gowns in public places: The advocate cannot wear his/her gown or band in public places unless in any ceremonial occasions that the Bar Council of India and the court may prescribe.
Refuse in case of relations: According to Section 30 of the Advocates Act,1961, the advocates shall refuse to appear or request to change the bench, if he had existing personal relations with the judicial officer.
Using own sense and not use strong language: In the case of M.Y. Shareef & Ors. V. Hon’ble judges of Nagpur high court & ors. (1954), it was held that legal counsels should use their sense of judgement and must stop themselves from making any insulting remarks and should only use immoderate language in the proceeding.[4]
Refusing to use any unlawful means: An advocate should refrain himself in indulging any unlawful activities against the court, opposing party or any party. Otherwise, he\she may be liable to face harsh consequences for the same.
Matters of financial interests: An advocate shall not litigate in any matter in which he himself his financially interested.
No private talkings: In the case of Rizwan ul hasan v. state of UP (1953), It was stated that an advocate should not use any unlawful means such as buying or any favour to impact the decision.

Advocates Duty towards Client:

Contrary party for the same matter: Rule 33 provides that, an advocate, who is representing the client in a case cannot appear for the opposing party in the same case.
Surety for the clients: Advocates shall not give any surety to the clients in the proceedings.
Withdrawing from service: According to rule 12 of the Act, an advocate shall provide notice if he/she is withdrawing from the case on a reasonable ground. The advocate is bound to refund the fee.
Advocate himself as a witness: According to Rule 13 of the Act, an advocate shall not represent such case in which he himself is a witness.
Disclosure to the clients: Under Rule 14, an advocate should disclose all facts to the clients, whether he had relations with the opposing party, before the representation of the case. He is obliged to do so.
Client’s interests: An advocate should consider the interest of his client and work for him/her with full loyalty with lawful means.It is mentioned in Rule 15.
No overpowering of evidences: Rule 16 provides that an advocate should not crush any of the material or evidence which could prove the innocence of the accused.
Communications between the client and himself: Rule 17 states that the advocate should not disclose the communications taken place between his client and himself. It will be treated as a breach of confidentiality even at the court of the law.
Lending money to the client: Rule 32 provides that the advocate should not lend money to the clients as it can affect the sense of judgement of the advocate.

Duty towards opponents:

Preventing direct communication or negotiation with the opposing party.
Fulfilling the promises made.

Punishment for the misconduct:

Section 35 of The Advocates Act, 1961, lays down that if any advocate found guilty of such violation then the matter will be referred to the disciplinary committee, and the date of hearing will be fixed by issuing a notice to the advocate.

After hearing the parties, the committee may:

1.Warn the advocate,
Dismiss the complaint,
suspend the advocate for a specific period of time,
removing name of advocate from the state roll.

Advantages of Professional Ethics:

Having Professional ethics in advocacy can have following benefits:

Professional ethics acts as a means of social control. A proper Code of conduct helps in orientation of the newly coming legal professionals in the advocacy. They can be made aware of the rules and regulations. It also makes the already existing members to work in the proper legal framework.
Rules and regulations can be made seriously followed by codifying it. A high standard of code of conduct will increase the reputation of the profession.
Such code of conduct helps in imparting values to both lawyers and newcomers.
A high standard of code of conduct prevents the government or any other agency of the society to control the profession. Thus, helping in keeping advocacy away from the interference of the government.

Conclusion:

Not only in advocacy, but also in other field of work, professional ethics is important. It increases reputation of the field in the society. Legal profession and legal ethics are directly related to each other. The nature, behaviour, language, dressing, every aspect is governed by The Advocates Act,1961.

In this dynamic environment, such a high standard of code of conduct is essential for to maintain a public trust in advocacy. As the relationship between lawyer and the client is a fiduciary, its breach is punished.

Beside such code of conduct, these provisions remains ineffective. Efforts should be made to make these provisions effective.

Violations of such provisions can made the advocate responsible for the harsh consequences.

Moral standards should be followed while working

In order to preserve the dignity and integrity, lawyers must abide by their duties and obligations.

Legal profession is aimed at preservation of law and administration of justice so, they should follow the ethical code seriously for the success of the field.

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