PROFESSION ETHICS AND ADVOCACY

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This article is written by Adity Kumari of 3^rd Semester of Bangalore Institute of Legal Studies, an intern under Legal Vidhiya

ABSTRACT

The principles and standards that guide individuals in a specific profession in their conduct, decision-making, and interconnections with others are regarded as “professional ethics and advocacy.” Advocacy strives to make positive changes, identify shortcomings, and guard the well-being and rights of those engaged in the field. Professional ethics sets out a framework for ethical conduct within a specific profession, whereas advocacy involves actively supporting and advancing the interests of groups or individuals. The crossing of these ideas implies responsible and ethical competent advocacy, considering the impact on both the profession and the public at large. Professional ethics in the courtroom in India are essential for protecting the legal system’s integrity and guaranteeing that justice has been served. “Lawyers and judges must adhere to ethical standards, including honesty, integrity, confidentiality, impartiality, and competence[1].”

As a matter of fact, an advocate practicing in India must be conscious of all the professional standards established by the BCI in the form of Rules. These professional ethics may assist advocates in continuing to act in its most righteous way as the Pillars of Justice. The Advocate Act is important for establishing the rules and guidelines that all advocates must carry. It also serves as a foundation for any actions taken against them if they commit an unlawful act. It keeps the advocates under check and balance, which assist in the smooth functioning of the law system. Abide by the Rules, an advocate must strive to incorporate the seven lamps of advocacy into his legal practice.

Keywords: professional ethics, legal ethics, advocacy, Advocate Act 1961, Bar Council of India, duty of an Advocate, Professional ethics in Indian Courts

INTRODUCTION

The term ethics is derived from the Greek word ethos, which indicates “character,” and the Latin word “mores”, which indicates “customs.” When both concepts are being used together, they describe how people want to communicate with one another. In philosophy, ethics symbolizes what is good for the individual, for society overall, and the defined nature of the responsibilities people owe oneself and one another. When mentioning ethics in general, numerous essential properties are also included in what people refer to as ethical behaviors. Integrity in a man’s personality all through their life is one such quality. A good integral behaviour shows that the person would choose the ‘appropriate’ option even if the mistaken one looked to be more pleasurable and enticing.

Ethical norms and legal principles are intrinsically tied, but an ethical duty typically outpaces legal responsibilities. This is true to an extent where the law requires unethical conduct, especially when the law is unjust, but the law has made the decision that ethical responsibilities take priority over legal obligations. The Legal Profession is a noble career, and its nobility is retained by those who practice it examining and complying with a set of professional norms. It is termed to as legal ethics. Legal ethics is basically a code of conduct which can be published or unpublished. A code of practice is aimed to regulate a practicing legal practitioner’s conduct in courtrooms toward the court, the presiding judge, his client, and his challengers. A lawyer or an advocate must obey certain professional codes in aspects of fair dealing with clients, and the standard of nondisclosure needed between them and honouring self-possession.

PROFESSIONAL ETHICS OF ADVOCACY

The Supreme Court of India’s observation on profession of advocacy is given below:

“Advocacy is not a craft but a calling; a profession wherein devotion to duty constitutes the hallmark. Sincerity of performance and the earnestness of endeavour are the two wings that will bare aloft the advocate to the tower of success. Given these virtues, other qualifications will follow of their own account. This is the reason why the legal profession is regarded as a noble one[2].”
The aim of advocacy professional ethics is to retain the integrity of the legal profession, which can be achieved by instilling ethical principles in the profession. The concept of ethics incorporates many other morals and qualities that one must acquire in their professional career, which is why it is termed to as professional ethics. The definition of legal ethics, as given by Chief Justice Marshal, is produced as under:

“The fundamental aim of legal ethics is to maintain the honour and dignity of law profession, to secure the sprite of friendly cooperation between bar and bench in the promotion of highest standards of justice, to establish honourable and fair dealing of the council with his client, opponent and witnesses, to establish a sprite of brotherhood in the bar itself and to secure lawyers discharge their responsibility to the community generally”[3].

Legal ethics guarantees that the legal profession serves society sincerely and presents each case in its most formal way possible, letting litigants to have belief in not only their legal representative or lawyer, but also in the justice system. In order for Indian courts to function correctly, not just the lawyer but also the judge should have a sense of and knowledge of legal ethics. One of the main aims of legal ethics is to encourage a spirit of pleasant collaboration among the bar, bench, and clients. There are codes of conduct between both the lawyer and his client, between the competitor and the interrogated witness, and, of course, between the Judge and the lawyer. In India, the legal profession is controlled by a legislated code of conduct in the form of the Advocates Act and the Bar Councils Act, which influence the behavior and professional conduct of advocates. The Bar Council of India, a statutory body codified under the Advocates Act of 1961, governs and represents Indian Bar members, recommends professional decorum and behavior standards, and has disciplinary jurisdiction.

ADVOCATE ACT 1961

The Advocate Act was enforced on 16^th August, 1961. It was implemented to amend and consolidate the regulations surrounding legal practitioners, as well as to provide for the formation of Bar Councils and an All-India Bar. It establishes the legal structure as well as the standards for legal professionals. It speeds up the process of having to register with state-level bar councils and acquiring the credentials considered necessary to work as a lawyer. The Indian Bar Councils Act was replaced by the Advocates Act of 1961. This Advocates Act of 1961 was instituted to implement the recommendations of the All-India Bar Committee, that were endorsed by the Law Commission’s fourteenth Report in 1955. The primary purpose of this Act is to unite and form a single class of legal practitioners recognised as “Advocates.” It also aims at establishing an All-India Bar Council and state bar councils, as well as to specify a uniform qualification for the bar. It also states clearly an advocate’s rights and obligations. The important sections that are reflected in this Act are listed below.

Section (2) (a): It states that an ‘Advocate’ is any person who has entered under any roll under the provision of the Advocates Act, 1961. In court, he presents in favour of his clients. As a matter of fact, anyone who satisfies the criteria for getting admitted as an advocate may be enrolled as an advocate by the State Bar Council. The conditions that need to be fulfilled for being enrolled as an Advocate are mentioned under Section 24 of the Advocates Act, 1961[4].

Section 7: It sets up the Bar Council’s various functions, guidelines, and mandates. Mainly it focuses on providing standards of professional conduct and etiquette for advocates. It creates the process for disciplinary committees to follow. It serves to protect the advocates’ rights, advantages, and interests. It aims at promoting legal education and establishes guidelines for legal education.

Section 24: This Section states the credentials for a person to be accepted to the Bar. It says that a person would be eligible to be admitted as an advocate subject to the provisions of this Act and the rules are made thereunder on a State roll, if he fulfils the conditions like: he must be a citizen of India, above the age of 21 years, has obtained a law degree after the 12th day of March, 1967 and has cleared Bar Council of India exam. If a person has such a certification, he or she can enrol with any State Bar Council.

Section 24 (A): It states that a person, who is convicted of an offence which involves moral turpitude, cannot be enrolled as an advocate. This applies till two years of elapsing since the expiry of the sentence. While this is a disqualification for enrolment, the Supreme Court has held that if the disqualification is incurred after enrolment, then the advocate must be disbarred for two years.

Section 30: This Section outlines an advocate’s right to practice. This Act allows an advocate, the right to practice throughout the territory, before all the courts and tribunals.

Section 35: It asserts that when a State Bar Council receives a complaint or has grounds to suppose that any advocate on its roll has committed professional or other misconduct, it shall refer the case to its Disciplinary Committee for disposition. The Disciplinary Committee of a State Bar Council would then announce a time for the hearing of the case and inform the advocate engaged as well as the State Advocate-General.

SEVEN LAMPS OF ADVOCACY

The Seven Lamps of Advocacy an admirable book written by Judge Abbot Parry refers to the essential qualities that must be possessed by an advocate for success in his legal profession and the bar[5]. The seven lamps of Advocacy are listed below.

Honesty
Courage
Industry
Wit
Eloquence
Judgement
Fellowship

RULES UNDER BAR COUNCIL OF INDIA

Advocates are not only professionals; they are also court officials who play a significant role in the law system. As a result, the set of rules governing their professional behavior originate from the duty they owe to the court, the client, their adversaries, and other advocates.

The rules governing the professional standards that an advocate must uphold are underlined in Chapter II, Part VI of the Bar Council of India Rules. These rules have been placed there under section 49(1)(c) of the Advocates Act, 1961[6]. It is essential to go over the rules briefly to gain an understanding of a lawyer’s ethical conduct toward the Court and the Client.

AN ADVOCATE’S DUTY TOWARDS THE COURT

Act in a dignified manner – An advocate should be dignified during both the presentation of his case and when appearing in court. He must retain his self-respect at all times. When there is valid excuse for a serious complaint against a judicial officer, however, the advocate has the right and obligation to file his complaint with the respective personnel.
Respect the Court – An advocate should always be respectful of the court. An advocate must note that judicial respect and dignity are essential to the survival of a free public.
Not communicate in Private – An advocate should not interact with a judge in private about any matter before the judge or any other judge. An advocate should not use illegal or unethical ways to influence a court’s decision in any issue, such as coercion, bribery, etc.
Refuse to act in an illegal manner towards the opposition – An advocate should refuse to act unlawfully or incorrectly toward opposing counsel or opposing sides. He must also use his great effort to restrain and prevent his client from acting illegally or incorrectly, or from engaging in unfair practices toward the judiciary, opposing counsel, or opposing parties.
Refuse to represent clients who insist on unfair means – Any client who stresses using unjustified or inappropriate means must be denied representation by an advocate. In such cases, an advocate must ignore his own judgement. He must not blindly support the client’s instructions. He must use appropriate terminology in communication and during court proceedings.
Appear in proper dress code – An advocate should always show up in court attired according to the Bar Council of India Rules, and his look should always be presentable.
Refuse to appear in front of relation – The advocate should not enter appearance, act, plead, or practice before a judicial authority if he or she is a 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.
Not to wear band and gown in public places – An advocate should not wear bands or gowns in public venues other than courts, except for on special ceremonies and in places given a prescription by the Bar Council of India or the court.
Not represent the establishments of which he is a member – If an advocate is a part of the establishment’s management, he should not show up in or before any judicial authority, either for or against the establishment.
Not appear in matter of pecuniary interest – An advocate should not act or plead in any case in which he has a financial stake. He should not, for example, act in a bankruptcy petition if he is also a creditor of the bankrupt. He should also turn down a brief from a company whose director he is.
Not stand as surety for client – An advocate should not work as a surety or certify the soundness of a surety that his client wishes for legal proceedings.

AN ADVOCATE’S DUTY TOWARDS THE CLIENT

Bound to accept briefs – An advocate is obliged to receive any brief in the courts, tribunals, or other officials in or before which he wishes to practice. He should charge fees that are comparable to those charged by fellow advocates in his place at the Bar and given the nature of the case. Special circumstances may warrant his refusal to accept a specific brief.
Not withdraw from service – An advocate should not simply refuse to serve a client after having to agree to do so. He can only withdraw if he has a reasonable ground and gives the client satisfactory and adequate notice. Upon withdrawal, he must refund any portion of the fee that has not yet been paid by the client.
Not appear in the matters where he himself is a witness – A lawyer should not receive a brief or show up in a case where he is a witness. He should not represent a client if he has probable cause to believe he will be asked to testify as a witness in the future.
Full and frank disclosure to client – An advocate should make full and frank disclosure to his client about his relation with the parties and any involvement in or about the controversy that is likely to affect his client’s decision to engage him or proceed the engagement at the outset as well as in the engagement.
Uphold interest of client – It is an advocate’s duty to courageously safeguard his client’s interests through all fair and righteous means. An advocate must act without thinking about the consequences to himself or herself or others. He must ensure protection of person charged with a crime irrespective of his feelings or opinions about the accused’s guilt. An advocate’s devotion should always be to the law, which asserts that no one should be penalised without valid proof.
Not suppress material or evidence – An advocate chosen to represent the litigation in a criminal trial should conduct the proceedings in such a way that the innocent are not convicted. An advocate must not restrict any content or evidence that confirms the accused’s innocence.
Not disclose the communication between client and himself – An advocate should not, in any way, direct or indirect, reveal his client’s communications to him. He also needs to agree not to unveil the advice he offered during the proceedings. He is, however, duty bound to reveal if it breaches Section 126 of the Indian Evidence Act of 1872.
Not charge depending on the success of the matter – An advocate should not cost for his services depending on the success of the case. He shall also not cost a percentage of the amount or assets received after the problem is settled.
An Advocate must not lend money to his client – An advocate must not lend money to a client for the intent of any action or legal proceedings in which the client has involved him. An advocate cannot be found responsible for a violation of this rule if, during course of an awaiting suit or proceeding, and without any agreement with the client, the advocate feels compelled by a Court rule to make a payment to the Court on behalf of the client for the development of the suit or proceeding.
Not appear for opposite party – An advocate who has recommended a party in relation with the filing of a suit, appeal, or other matter, or who has drawn pleadings, or who has performed for a party, shall not act, appear, or plead for the adversary in the same matter.

DUTY OF AN ADVOCATE TOWARDS FELLOW ADVOCATES

No Advertising or soliciting work – An advocate must avoid advertising his work through circulars, advertisements, and other means at all costs.
Signboard and Nameplate – The preceding items must be of reasonable length and includes no reference of the advocate being President or Member of a Bar Council. A similar board or name tag must not include any indication of the advocate being a member of any Association or having previously represented as a judge, the advocate’s participation with a particular instance, or anything else.
Consent to appear – If a fellow advocate has already filed a vakalatnama or memo, the advocate must not represent the very same matter unless the fellow advocate has voluntarily agreed. In the absence of written approval, the advocate may apply to the court for appearance.
Miscellaneous duties – An advocate should not use his name to promote the unauthorized legal practice and must not accept a fee less than the fee (the one that is taxable under rules) when the client is capable of paying more.

DUTY TOWARD OPPONENTS

No direct negotiation with other parties – An advocate must prevent direct negotiations with the party, instead attempting to negotiate through the advocate chosen to represent the other party.
Legitimate promise to be fulfilled or executed – An advocate must make sure that all legitimate guarantees are carried out or performed, even if they are not made in writing.

NEED FOR PROFESSIONAL ETHICS

Life in society which values and respects the well-being of others, requires some behaviour that are associated with the ethical conduct of each individual. The professional ethics consist of standard and values of society and the working environment that the person lives. Good ethics are the basic requirement of any profession. Professional ethics are needed for several reasons some of which are listed below.

Professional ethics foster trust between professionals and the public or clients they work for. People who adhere to ethical guidelines fosters trust in the profession and its professionals.
Professional ethics in any team will check that employees interact in a socially appropriate, respectful, and professional way toward others.
Ethics provide a framework for establishing and maintaining professional standards, making sure consistent performance in professional services or products.
Adhering to ethical principles can profit both people and the profession overall. It assists in the development of credibility and respect.
They act as a moral code for professionals, guiding them through tough choices when faced with ethical quandaries or conflicts of interest.
Adherence to ethical standards commonly assists professionals in surviving in compliance with legal and regulatory requirements.

Maintaining confidentiality, avoiding conflicts of interest, providing accurate and truthful information, respecting diversity and inclusivity, upholding professional boundaries, and prioritizing the well-being of clients or stakeholders are all examples of professional ethics. Adherence to professional ethics advantages not only people but also leads to a healthier and trustworthy professional environment, cultivating long-term relationships among professionals, clients, and the public at large.

PROFESSIONAL ETHICS IN INDIAN COURTS

Professional ethics in the legal profession refers to rules and values which shape the conduct of lawyers and judges. Professional ethics in Indian courts are essential for several reasons that are listed below.

They make sure that lawyers and judges abide to the highest professional standards.
This is crucial for protecting the legal system’s integrity and making sure that justice has been served.
In India, professional ethics in the court safeguards clients’ rights and guarantees that they obtain professional and safe legal representation.
Professional ethics in the courtroom are needed to hold public trust and confidence in India’s law system.
When lawyers and judges obey ethical standards, it contributes to greater public trust in the law system.
This is essential for establishing trust in the judiciary and making sure that justice is served fairly and equitably.

CODIFIED PROFESSIONAL ETHICS

A collection of written rules, principles, or standards that govern the behavior and conduct of professionals in a particular field is regarded as codified professional ethics. Professional ethical guidelines provide multiple benefits. It facilitates the maintenance of stability in decision-making processes. Codified ethics promote professional self-regulation. Professionals are held legally responsible, and strictly adhere to ethical standards aids in the maintenance of responsibility within the profession, limiting the need for external regulations. When professionals face difficult or ethically uncertain situations, ethical codes offer guidance. By establishing a framework for ethical reasoning, having a set of defined ethical principles assists individuals in navigating critical decisions. Professional ethics often necessitate continuing education and professional growth. This lifelong improvement keeps people up to date on shifting standards and practices in their line of work. Professional ethics helps in the overall public trust and illustrates a commitment to social responsibility. Consequently, there may be more societal recognition and support for the profession.

CONCLUSION

The ethical virtues and standards that govern the behavior of individuals within a particular profession are referred to as professional ethics. These ethics are intended to guarantee that the profession is practiced in an ethical and professional way. It is evident that legal ethics and the legal profession are inextricably linked. The existence of codified professional ethics for the legal industry shows the importance of ethics in the legal sector. Advocates have a professional obligation as well as a large societal commitment. They are supposed to act with the maximum honesty and sincerity, as well as to uphold the rule of law and the public justice system. An advocate should be diligent in his or her functions and obey the prescribed law, rules, and etiquettes under Chapter II, Part VI of the Bar Council of India Rules. Any infringements of advocacy’s professional ethics are both unfortunate and inexcusable. Legal ethics adherence is important for retaining client trust, honouring the integrity of the law system, and ensuring fair and just representation for all parties involved in legal matters. Legal professionals are required to navigate complicated legal situations while honouring the principles of justice and the rule of law.

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