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Ethics of Legal Profession
Synopsis:
Ethics of Legal Profession
Introduction
The profession of law is honourable, and its members are expected to act in an honest and upright manner, and any deviation from these elementary principles is liable to e dealt with severely.
An advocate practising law is under a triple obligation:
An obligation to his clients to be faithful to them till the last, an obligation to the profession not to besmirch its name by anything done by him, and an obligation to the court to be and to remain a dependable part of the machinery through which justice is administered. It is beyond the scope of treatise on legal ethics to describe the aims and uses of examinations of witnesses or to state the rules as to how evidence shall be recorded. In examining witnesses the advocate should not forget that he is not merely the counsel of client but also an officer of the Court to further the ends of justice. Similarly, the advocate should maintain towards his opponent utmost cordiality. Clients and not counsels are litigants. The ill-feelings between clients should not be allowed to influence the conduct of their counsel. Says Daniel Webster: “lawyers on opposite sides of a case are like the two parts of shears, they cut what comes between them, but not each other”
In the same way, Law being a fraternity, the profession is entitled to loyal support of its members in the maintenance of this tradition. There are certain duties of advocates towards his profession also; like, professional courtesy, co-operation, equal consideration to all members of the profession, encourage junior brethren, should stand up for its dignity and privileges whenever there is occasion for it, he should expose corrupt or dishonest conduct in the profession. Similarly advocates should also owe certain duties towards his colleagues which is analysed in subsequent pages.
In the words of Chief Justice Marshall has observed;
“the fundamental aim of Legal Ethics is to maintain the honour and dignity of the Law Profession, to secure a spirit of friendly co-operation between the Bench and the Bar in the promotion of highest standards of justice, to establish honourable and fair dealings of the counsel with his client opponent and witnesses ; to establish a spirit of brotherhood in the Bar itself ; and to secure that lawyers discharge their responsibilities to the community generally.”
Legal profession is not a business but a profession. It has been created by the state for the public good. Consequently, the essence of the profession lies in the three things-
- Organisation of its members for the performance of their function ;
- Maintenance of certain standards, intellectual and ethical for the dignity of the profession;
- Subordination of pecuniary gains to efficient services.
The codification of the canons of the professional ethics may give impression that the code is exhaustive while in reality it cannot be exhaustive. It has been rightly stated by P.Ramanatha Aiyer and N.S. Ranganatha Aiyer that it is not possible to formulate a code of legal ethics which will provide the lawyer with a specific rule to be followed in all the varied relations of his professional life.
Therefore, my project extensively deal with certain accepted canons of legal ethics which should be followed by lawyers in their ordinary discourse.
Meaning , nature and need of Professional Ethics:
Professional ethics may be defined as a code of conduct written or unwritten for regulating the behaviour of a practising lawyer towards himself, his client, his adversary in law and towards the court. Thus, ethics of legal profession means the body of rules and practise which determine the professional conduct of the members of a bar. When a person becomes an advocate his relation with men in general is governed by the general rules of law but his conduct as advocate is governed by the special rules of professional ethics of the Bar. The main object of the ethics of the legal profession is to maintain the dignity of the legal profession and the friendly relation between the Bench and the Bar.
The American Bar Association Committee has well explained the need of the code of legal ethics. It is observed that the legal profession is necessarily the keystone of the arch of Government. If it is weakened by allowing it to be increasing for subject to the corroding and demoralising influence of those who are controlled by craft, greed or gain or other unworthy motive, sooner or later the arch must fall. The future of the country, thus, depends upon the maintenance of the shrine of the justice pure and unrolled by the advocates and it cannot be so maintained, unless the conduct and motives of the members of the legal profession are what they object to be. It, therefore, becomes the plain and simple duty of the lawyers to use their influence in every legitimate way to help and make the Bar what is ought to be. A code of ethics is one method of furtherance of this end. The committee has further observed that members of Bar, like Judges, are officers of the court and like judges they should hold office only during good behaviour and it should be defined and measured by such ethical standards, however high, as necessary to keep the administration of justice, pure and unsullied. Such standard may be crystallized into a written code of professional ethics and lawyer failing to conform thereto, should not be permitted to practise or retaining membership in particular organisation.
Stating the need for the code of conduct of lawyers Justice Sundaram Aiyer has said:-
Rules are necessary even for the best self interest is a misleading factor when you have to decide on the spur of the moment what is to be done in the circumstances. The fact that these are definite rules and that much discretion is given to the individual would itself be an additional source of temptation. Never adopt the standard of business profession. But after all whatever light we may seek to get from rules of conduct which has been prescribed in England or other countries, a great deal will have to be left to individual conscience. Nothing but a determination to err always on the safe side in cases of doubts will enable you to do your duty consciously. In this country it must be confessed that very often petitioners are guilty of questionable conduct owing to ignorance. They do not really know what is proper to be done in any particular case and as there are no rules to guide there, no settled tradition to serve as an aspiration, each one is a law unto himself. He has further observed that it is not desirable that the lawyer guidance should be altogether under the judicial control. It would be impossible for judges to control the bar satisfactorily. To strict a discipline on the part of courts is likely to unfair the independence and self-reliance on the members of the Bar. It is all the more necessary, therefore, that there should be disciplinary bodies and that the profession should itself try and frame rules for its guidance.
Sir Sivaswamy has rightly observed that it is of course true that men are not necessarily made moral by courses of lectures on ethics but it must be remembered that lapses from the traditional standard are often due to ignorance and that the diffusion of knowledge of rules applicable to the professions must contribute to the maintenance of a high standard of integrity. The observation of the canons of legal profession will, no doubt, raise the profession in the publication estimation.
Even prior to the Advocates Act of 1961, the provision for punishment for misconduct is found. Section 10 of the Indian Bar Councils Act, 1926 contained provision for the punishment of misconduct. Besides this, Legal Practitioners Act, 1879also contained provisions for punishment of advocates for misconduct. Like section 13, which says:
“Suspension and dismissal of pleaders and mukhtars guilty of unprofessional conduct”
Section 14 . “Procedure when charge of unprofessional conduct is brought in subordinate court or revenue office”
Section 15. “Power to call for record in case of acquittal under section 14”
Professional Ethics
Section 49(1)(c) of The Advocates Act of 1961,empowers the Bar council of India to make rules so as to prescribe the standards of professional conduct and etiquette to be observed by the advocates. It has been made clear that such rules shall have effect only when they are approved by the Chief Justice of India. It has also been made clear that any rules made in relation to the standard of professional conduct and etiquette to be observed by the advocates and in force before the commencement of the Advocates (Amendment) Act, 1973, shall continue in force, until altered or repealed or amended in accordance with the provision of the Act.[1]
Rules of conduct
The Bar Council of India has framed standard of conduct and etiquette of the Bar. They are called rules, and have been made is exercise of its rule making power under secs. 49(1)(c) of 1961. These are statutory rules, binding and enforceable. These rules have been printed in full in the Appendix 2 and may be seen, and read there.
The following rules, however, sum up the standard of conduct of the Bar and are in no way inconsistent with the Rules of conduct referred to above. In so far as they are covered by the Rules of the Bar Council, they are statutory; the rest are traditional, and have their sanction is hoary past.
- In no circumstances may a lawyer be a party to a breach of the law.
- A lawyer may advise a client how to avoid a legal burden or restriction but is not bound to lend his services to an attempt to evade the policy of the law.
- No lawyer owes a duty to the court to assist it in the administration of justice, and with respect to certain matters this duty overrides his duty to his clients. Accordingly---
- He must not be a party to the fabrication of false evidence. If he knows that his client has given false oral evidence, he should withdraw from the case if the client refuses to correct it. If the client insists on a false affidavits being filed, he should refuse to continue to act for him.
- He should take care not to say anything to a client of whose honesty he is not sure, that may show the client how to improve his case by false evidence.
- He must not present to the court on behalf of his client a dishonest claim or defence; but a defence that does not more than put the plaintiff to proof is proper.
- Where the laws lays on a litigant a duty to disclose facts, it is the duty of the legal advisor to see that true disclosure is made, and if the client refuses to retire from the case.
- He must not abuse the process of the court in order to injure the opponent or to benefit himself.
- When appearing as an advocate, he must disclose to the court any relevant legislation or cases of which he is aware.
4. A solicitor must deal honestly and carefully, and in accordance with instructions, with money or other property held on behalf of his client. He must keep proper books and a separate account for the moneys of his client.
5. A solicitor must not allow his business to be conducted by unqualified persons.
6. An Advocate is bound, except in special cases, to accept any bribe offered to him, provided it is to appear in court in which he profess to practise and a suitable fee is offered.
7. When the client can pay, a lawyer should not charge less than the fees allowable on taxation. But where the client is poor, there is no objection of charging a low fee or no fee at all.
8. A lawyer must not vary his fees according to the success or failure of the cause. However, in a case of poor client with a bonafide case, a solicitor may proceed on the basis that his costs will be met in the event of success, out of what is recovered. In the case of barristers this relaxation of the rule is not recognised.
9. A lawyer must not solicit business, (except to a strictly limited extent in the case of solicitors) advertise himself either directly or indirectly.
10. A lawyer must devote himself entirely to his client’s interest. He must disclose any personal interest inconsistent with the client’s interest, and he cannot represent two or more clients whose interest conflict.
11. A lawyer must not, except with the clients consent, at any time disclose confidential information or use it otherwise than on behalf of the client.
12. A lawyer must make every legitimate effort to win his client’s case, and must not exercise a private judgment as to the soundness of any reasonable arguments or the propriety of any client or defence allowed by the law.
13. A lawyer should not allow a client to entertain false hopes of success in litigation, and where success is doubtful, should make the position clear to him.
14. In the conduct of a case it is lawyer’s duty to do for his client all that the client may legitimately do for himself. More, particularly, in criminal cases, he may defend a prisoner whom he knows to be guilty provided he does not make a false case or attempt to place the guilt on another person.
15. A lawyer must not express to the Tribunal his personal opinion in the matter arising in the case.
16. A lawyer owes a duty to the opponent not to use unfair methods against him. More especially, he must not deliberately convey to the jury information not admissible in evidence, nor makes needless attacks on the reputation of the opponent or his witnesses, or otherwise harass them unduly.
17. A lawyer may make concessions to the convenience of the opponent and his legal advisors, and he is not bound to take advantage of errors that can be cured, where the only ultimate result is delay or increased costs to the opponent. But he may not overlook, without the clients consent, an error that is fatal to the opponent or even one that will assist his own client’s case.
18. In contentious business a barrister may not accept instructions from any person but a solicitor.
19. As a general rule, witness should not be interviewed in one another’s presence.
20. A barrister fees should be marked on the brief, either by the solicitor or by himself before the commencement of the hearing. It is improper to alter the fees marked on the brief after the case is finished.
21. A solicitor is bound to pay a barrister’s fees whether or not he has received his money from the client.
22. An advocate should not agree to refund part of his fees in case they are not allowed on full on taxation, nor should he give a receipt for fees not actually paid nor accept a post dates cheque.[2]
Advocate and Court: Duty towards Court
1. Advocate is an officer of justice and friend of the Court:
The cardinal principle which determines the privileges and responsibilities of advocate in relation to the court is that he is an officer to justice and friend of the court. This is the primary position. A conduct therefore which is unworthy of him as an officer of justice cannot be justified by stating that he did it as the agent of his client. His status as an officer of justice does not mean he is subordinate to the judge. It only means that he is an integral part of the machinery for the administration of justice.[3]
It is difficult to lay down any hard and fast rule as to what expressions a lawyer can use, with impunity, while addressing a court and what should ordinarily be tolerated by the court. Where an advocate receive an application or petition for correction or for removing objections, it is the duty of the advocate to return it and he has no authority to retain it. It is misconduct on his part if he retains it as held in;
Punjab National Bank v. FM Gold Head Ltd. AIR 1993 HP 79
It is true that lawyer should always conduct himself properly in court of law, and exert his best at all times to maintain dignity of the court, but court has also a reciprocal duty to perform and should not only be discourteous to the lawyer but should also try to maintain his respect in the eyes of his clients and the general public with whom he has to deal in professional capacity.[4]
By accepting the brief of his client, the advocate does not cease to be an officer of justice. If that were so, the high and honourable office of counsel would be degraded to that of mercenary. It is the function of advocate not merely to speak for the client, whom he represents but also to act officer of justice and friend of the court. As friend or amicus curiae he has a privilege to offer suggestion to the court, with its consent, as aids to justice in a controversy that he does not appear for either side.
A famous case on the point is the trial of Algernon Sidney, for high treason in 1683. By the law of England, as it then stood, a man accused of high Treason could not have the aid of counsel. There was a technical defect in the indictment. A barrister rose, as an amicus curiae, and brought it to the attention of the court. Chief Justice Jeffreys remarked at this, “We thank you for your friendship”. The Court itself sometime appoints an advocate as amicus curiae if there is a question of law to be considered and his court thinks it advisable that someone should help it in arriving at a just decision.
2. Co-operation between the bench and the Bar is a necessity:
The first duty which advocates and judges owe to each other is of co-operation. Co-operation between the bench and the Bar is not a mere conventional statement. It is a fundamental necessity. Without it, there can be no orderly administration of justice. Says Sir Cecil Walsh in his book called
The Advocate:
“Nothing is more calculated to promote the smooth and satisfactorily administration of justice than complete confidence and sympathy between Bench and the Bar”.[5]
An intelligent knowledge of their respective positions should make both advocates and judges realise that though their functions may be different, their aims are identical. Both are equipments of the same machinery designs for administration of justice. Both are equally necessary in a free country.
3. What the counsel owes to the court:
i. The first duty which the counsel owes to the court is to maintain its honour and dignity—this is the cardinal principle determining the advocate relation in court. One of Hoffman’s Resolutions for Guidance of lawyers was this :
“To all judges when in court I will ever be respectful; they are the Law’s Vicegerents, and whatever may be their character and department, the individual should be lost in the majesty of the office”.
“Should judges, while on the Bench, forget that as an officer of this Court, I have rights and treat me even with disrespect, I shall value myself too highly to deal with them in like manner. A firm and temperate remonstrate is all that I will ever allow myself”.
“To the various officers of the court, I will studiously respectful, and specially regardful of their rights and privileges.”
The advocate owes courtesy and respect to the court for the following reasons:
a) Because he is the like judge himself, an officer of the court and an integral part of the judicial machine. The legal position consists of the Bar as well as Bench, and both have common aims and ideals.
b) In theory, it is the King or Sovereign who presides in the court of justice, and judge is merely the mouthpiece and representative of the Sovereign. Respect shown to the court is, therefore, respect shown to the sovereign whose representative the judge is.
c) Because not only litigants and witnesses but the general public will get their inspiration in this respect from the examples of advocates. It is necessary for the administration of justice that judges should have esteem of the people.
d) Because it is good manners, and advocates before anything else are “gentleman of the Bar.”
e) Even from the purely practical standpoint, there is nothing to be gained but there is much too loose by antagonising the Court. Conflict with the judge renders the trial disagreeable to all and generally an injurious effect on the interests of clients.
f) Because the usual practise in modern times is to appoint judges from among the members of the Bars, and even where this rule is not strictly observed the bench is fairly representative of the Bar.
g) Because it is necessary for dignified and honourable administration of justice that the court should be regarded with respect by the suitors and people.
(I) The advocate should not display temper in court. He will not indulge in any kind of insinuation in the court against the judge. He should convince the judge by argument and reason and not by appeal to his sentiments. While the case is going on, the advocate cannot leave the court without the court’s permission, and without putting another man in charge. While in court any expression of approbation and disapprobation of an order of the judge, e.g., that it is unjust or that it should be accepted with gratitude is against the etiquette of the profession. An advocate may, for the personal reasons, refuse to practise in a particular court or before any particular judge but if he joins the movement of boycott of courts it is disrespect to the courts. Such a conduct on the part of officer of court is reprehensible.[6] It is his duty to co-operate with the court in the administration of justice. The advocate should not criticize judicial conduct while the case is pending. After, however, the case is decided, a fair comment will be justified. The Advocate should submit to the ruling of the judge whether he considers it right or wrong. He must not lose temper at an unfavourable ruling. In the words of Lord Bacon:
“Into the handling of the cause anew after a judge has declared his sentence.”
It is disrespectful to read newspaper in court, or to engage in private conversation in court, or not to wear proper dress, or to laugh at the argument of the opposite party.
Respect for dignity of the court has behind it not merely moral support but also the sanction of law. The court is empowered to punish conduct which undermines its authority or impairs its dignity. Such conduct amounts to “contempt of Court”.
(ii) The advocate must not do anything which lowers public confidence in the administration of justice:
For instance, he must not make unfounded allegations of corruption and partially against the judicial officers. He must not allege in a transfer application scandalous charges against the judge which cannot be proved. Lord Heward L.C.J. said:
“It is important that justice should be done, it is hardly less important that it should manifestly appear to be done.”
(iii) It is the duty of the bar to support judges in their independence because in the integrity of judges lies the greatest safeguard of a nation’s law and liberties. Judicial independence is the only protection against tyranny and whims of the executive.
(iv) The advocate must not do anything which is calculated to obstruct, divert or corrupt the stream of justice, for instance, he must not advise disobedience to the courts order and decrees.
(v). Another duty which the advocate owes to the court is that of fidelity, he must be honest in his representation of the case. He must not deceive the court. Sir John E. Singleton says;
“The whole foundation and structure of the administration of justice in this country depends on the confidence of the bench and the bar...it is the duty of the counsel to draw the attention of the court to any case which is contrary to his contention if he knows of that case. And it is scarcely necessary to point out that the duty of the counsel in this regard is in complete accord in the interest of his client and with his own interest.”
(vi). The counsel is under an obligation to present everything to the judge openly and in the court, and nothing privately. He must not attempt to influence private influence upon the judge: seek opportunities for the purpose; or take opportunities of social gatherings to make ex parte statements or to endeavour to impress his views upon him.
(vii). The advocate must not place himself in a position which he cannot effectively discharge his obligations to the Court as minister of justice. He should not have any personal interest in the litigation he is conducting. It will be misconduct on his part to stipulate with his client to share in the results of litigation.
In, Manjeri S.K. Ayyar V. Secy. Urban Bank Ltd, Calicut; 56 mad 1970:AIR 1933 Mad 682
Merely because a legal practitioner is a member of a corporate society is not sufficient to prevent him from accepting instructions from the society of which he is a member. But it is improper for a legal practitioner who is a director to appear for remuneration for the society in its legal business.
(viii) Relations of advocates and judges outside the court:
Advocates and judges are members of same fraternity. They are both officers of state engaged and united in the common ideal of promoting legal justice. Judges are generally selected from lawyer’s rank and, have therefore the same lineage.
(ix) Lawyers are not subordinate officers of the Court:
In, Mahant Hakumat Rai V. Emperor; AIR 1943 lah 14: ILR 1943 Lah 791
To call such a responsible person a subordinate officer of the Court and thus degrade him to the level of the other ministerial officers working in the court is an entirely erroneous conception of the position he acquires.
(x). Advocate’s Duties toward court:
It is difficult to lay down any hard and fast rule as to what expression a lawyer can use with impunity while addressing the court and what should ordinarily be tolerated by it. As remarked in Oswald on Contempt Of Court, Ed. 3 at page 54:
“An over subservient Bar would be one of the greatest misfortunes that could happen to the administration of justice”.
(xi). General Duties of Advocates: Absence of appearance in murder cases
In the matter of F.K. Byrne, Bar at Law, Lahore. AIR 1928 Lah 448
It has been authoritatively laid that where a counsel at having received his fees from his client for arguing a murder appeal, hands over the case to another counsel at the eleventh hour giving only the small portion of his fees, on the ground that he was engaged elsewhere, is guilty of grave impropriety in the discharge of his duties.
Adjournments:
A pleader who asks for adjournments on different occasions to move the High Court for the transfer of a case and takes no steps at all, on these occasions in either himself or by means of his clients to move the High Court and it appears that the adjournments were asked for merely to delay the course of justice with deliberate intention renders himself liable to be punished for grossly improper conduct in the discharge of his professional duty.
Advice from Court:
It is not proper on the part of the counsel to take advice from the court as to the kind or amount of evidence which is required to be adduced in support of his client’s case.[7]
Drunkenness:
It is highly objectionable on the part of advocate to attend the court in such a drunken state as to enable to conduct the case properly and keep the decorum of the court.[8] In the above cited case a pleader for an accused appear in the court of a magistrate in a drunken state and was unable to conduct the case of his client, as he ought to have done.
Attempt to influence judge:
Where a pleader tried to influence judge before whom he was arguing the case, through a relation of the latter, it was held that the pleaders act was highly reprehensible and it was in the interest of the legal profession that serious notice should be taken of such an act.[9]
Conduct in bail matters:
A legal practitioner standing surety to a man arrested under section 420 of the IPC, and convicted under that section and keeping in possession on behalf of the accused properties held later on to have been involved in the offence is not guilty of professional misconduct.[10] But advocate who receives money in furtherance of a contract of indemnity of bail is guilty of grave misconduct and only suitable punishment for retention by him of the money on pretence that it was his fees is the removal of his name from the roll as held in;
Lambaji Motiji V. Kewal Gopaldas, 3 IC 897: 19 CrLJ 412
Bribery:
Corruption cannot be eradicated unless the public refuse to pay bribe. Of all the public, lawyer is a privileged position and he should be the first to oppose payment of bribe. Instead of that if a lawyer collects money from his clients for the purpose of having to pay them as a bribe to get his client’s work done, it is highly unprofessional.[11]
Apart from these some other ethical conduct requires on the part of advocates are:
- He should not disobey the order requiring payment to the client.
- It is the duty of legal practitioner to assist the court. If he appears in the court and makes the demonstration which has the effect of interfering with the work of the court and the administration of justice, then it amounts to misconduct.
- It is the duty of the pleader to bring to court’s notice death of any party.
- An attorney is bound to honour his undertaking in his capacity as a solicitor.
- Lastly, it is the counsel’s right to insist on gettig what is truth in the matter.
- Advocate and his clients: Duty towards clients
1. Sources of relations between counsel and client:
In India, the counsel’s relations with his client are primarily a matter of contract. The relation is in the nature of agent and principal. The agreement determines to what extent the counsel can bind his clients by his acts and statements; what shall be its remuneration, whether he will have a lien on his client’s property, etc. It is evident, however, that as counsel is also conform to the ethical code prescribed for him by law and usage, he cannot be a mere agent or mouthpiece of his clients to carry out his biddings.
(i). The relationship is personal and fiduciary:
It is a relation of trust and confidence. It is confidential requiring a high degree of fidelity and good faith. In V.C. Rangadurai V. D. Gopalan, AIR 1979 SC 281;
Justice Sen has observed that the relation between the advocate and his client is purely personal involving a highest personal trust and confidence.[12]
a) It is a relationship of trust and confidence. All transactions between the advocate and his client will be watched by the Court with jealousy and suspicion. Even though the transaction is not illegal, the court will scrutinize it most closely and requires strict proof that no undue advantage has taken by the counsel of the confi
