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 confidence reposed in him by the client. He should avoid business with his client not only in regard to Matters in suit but also in relation to other matters. He should, for instance, neither lend nor borrow.
b) The advocate must keep clear and accurate account of all moneys received from and on behalf of his clients. Money collected by the counsel on behalf of the client should be promptly paid over to him. it was held in G. Naranswamy V. Challapalli, 4 IC 398: advocates has no lien on clients money.
c) The counsel should return papers and documents to the client the moment the case has terminated. No paper should be retained without the client’s consent. But it was held in Raja Muthukishna V. Nurse, 44 M 978; the counsel has no doubt a lien on the papers for money due to him. For an advocate to retain the judgment of the Trial Court with the intention of getting himself engage in appeal amounts to professional misconduct.
d) Counsel also cannot delegate his duties without the client’s consent. The following rules in this connection occurs in the canons of The American Bar Association:
“it is not permissible or in accordance with professional etiquette for a counsel to hand over his brief to another counsel to represent him in court and conduct the cases as if the latter counsel has himself been briefed, unless the client consent to this course being taken.”
e) The counsel while accepting the retainer should disclose to his client any matter which might affect the relation or the client’s direction in choosing him as his counsel. He should inform him of any interest in which he may have in a matter concerning which he is employed; any adverse retainer; or anything which may, in any degree interfere with his exclusive devotion to the cause confided to him.
f) After engagement the counsel must not revise agreement regarding his remuneration, or, while the business in which he had been employed is unfinished, except present and gifts from the clients.
g) It is the duty of the advocate not to use information which has been confided to him as advocate to the detriment of the client, and this duty continues even after the relation of advocate and client has ceased.
h) It is the duty of advocate not to appear for two clients whose interest are in conflict.
i) It is the right of the client to discharge any time his advocate whom he no longer trusts or on whose skill and ability he no longer relies.
J) The advocate must not divulge his client’s secrets or confidences as these communications are privileged and protected under section 126 of the Indian Evidence Act.
2. Advocate’s duty to his clients:
A special responsibility rests on the members of the Bar to see that the parties do not misled the courts by false and reckless statements on material matters. As was observed in[13]that an advocate stands as a loco parentis towards litigants. A member of a Bar undoubtedly owes a duty to his clients and must place before a court all that can be fairly and reasonably be submitted on behalf of his clients. Advocate is not a mere a mouthpiece of client but he is an officer of the court[14]. It is the duty of the court to help bringing down arrears and to prevent the abuse of the process of the abuse of the court. Their duty to client should persuade them to advise their clients not to go in futile litigation.[15]
It is expected that an advocate for a party would conduct a case with all its sense of responsibility which he is expected to have in discharge of his duty to his client. It is the duty of every advocate who accepts the brief in a criminal case to attend the trial from day to day. He would be committing the breach of his professional duty if he fails to attend.[16]
A client is entitled to be protected from an advocate who is likely to betray them; the profession cannot afford to have a member who fails in keeping to the required standard of conduct. It is the duty of an advocate who has accepted the vakalatnama and filed it in the court to go to court on the day fixed for the hearing of the case even if he has not received his fees unless the client terminates the contract. Moreover, the payment of commission to procure client is unprofessional.
3. What the counsel owes to his client:
(a) The first obligation which the advocate owes to his client is to prepare his brief with care, skill and thoroughness:
In India, not only presents his client’s case in court, but also prepares it. For this purpose he should make a thorough grasp of facts of the case. In order to get acquaintance with facts, he should thoroughly listen to the client’s story. It is the duty of advocate to examine him to get all relevant and material facts. A thorough cross examination of witnesses is necessary, to enable the counsel to get at all real facts and to chalk out his line of defence. If after investigation, the counsel thinks that his client’s case is weak and untenable, he should tell him so. One of the special dangers which threaten the professional ideals in the present life is the tendency to assimilate the practise of law to the conduct of business and commercial standards. Once the advocate has accepted the brief, the etiquette requires that he should be grudge no time or toil, however great, needful to the thorough mystery of his case in its facts and legal rules irrespective of the amount of fees paid to him.
It has been held by the High Courts of India that a pleader is guilty of misconduct if after receipt of full fees he neglects to appear and conduct the case.[17]
(b) Secondly, in giving advice to his client for or against litigation, he should give his candid opinion. On this point Sharswood says in his Legal Ethics:
“It is nothing but selfishness that can operate upon a lawyer when consulted, to conceal from the party his candid opinion of the merits, and the probable results. It is fair that he should know it; for he may not choose to employ a man whose views may operate to check his resorting to all lawful means to effect success. Besides, most men when they consult attorney, wish a candid opinion; it is what they ask and pay for.”[18]
Counsel also owes duty of continuous service to his clients. When the counsel after he has begun the case leaves the court to attend another case, it amounts to professional misconduct.[19]
Advocate’s fee- fixation of fees
In an ancient book called Mirror des justices, written by Andrew Horne, laid down that a lawyer in fixing his fees should take four things into consideration:
a) The value of the cause
b) The pains of the serjeant
c) The worth of pleader on point of skill
d) The usage of the court.
By the present day usages of the Bar, the following elements usually enter into consideration in fixing the amount of fee:
a) The qualifications and standing of advocates who is asked to render professional service. It is evident that service rendered by the person of superior education and rich experience is likely to be more valuable and of better quality than the advice given by a person who is less qualified.
b) The difficulty in the problem involve in the case. The more intricate the case the greater will be the degree of skill and amount of labour required.
c) The amount of time required to render professional service.
d) The amount involved in the suit.
e) The result expected to be accomplished as a consequence of the lawyer’s exertion.
f) The customary charges of the Bar for such services.
Contingent fee and right of lien:
The fee depending upon the success of the suit or proceeding is regarded as against the public policy. The agreement for Contingent fee is hit by section 23 of the Indian Contract Act. Rule 9 framed by the Bar council of India expressly provide that an advocate should not act or plead in any matter in which he is himself be pecuniary interested. The agreement for the contingent fee is looked upon with disfavour, and later as inconsistent with the high ideals of the Bar.[20]
In the case of R.D. Saxena V. Balram Prasad Sharma; AIR 2000 SC 2912;
The Supreme Court has held that an advocate cannot claim a lien over a litigation file entrusted to him for his fees. The court has held that no professional can be given the right to withhold the returnable records relating to the work done by him with his clients matter on the strength of any claim for unpaid remuneration. The alternative is the professional concerned can resort to other legal remedies for such unpaid remuneration.
The same ruling is given by Apex Court in the matter of,
New India Insurance Company Ltd V. A.K. Saxena; AIR 2004 SC 311.[21]
Is it permissible for an advocate to sue for his fees?
In India, law allows it. However, according to general practise of the profession, it is dignified that the counsel should sue for his fee. The rule exists to maintain prestige of the profession and the public confidence in the Bar. His fee should therefore, be both fixed and paid beforehand.
Some other important duties which an advocate owes to his clients are:
section 13(a) of The Legal Practitioners Act specifically forbids taking of instruction by a pleader or mukhtar from an unauthorised person. An advocate may receive instruction either from the part on whose behalf he has been retained, someone who is recognised agent of such party, servant, relation, friends authorise by the party to give instruction. An attorney who as trustee of a descendent estate, purchased from himself individually a third mortgage was guilty of misconduct warranting suspension from practise.[22] An advocate when he himself accepts the brief becomes subject to certain obligations towards his client in respect of the suit and the proceedings entrusted to his care and pending in the court and he cannot absent himself from the court on the hearing without first obtaining his client’s consent. If a client comes to them with proper instructions and prepared to pay a fair and proper fee and invites them to undertake a case of a kind which they are accustomed to do, and they refuse, each refusal amounts to misconduct. According to well recognised practise, a counsel should never file an affidavit in a case in which he is appearing in his professional capacity.[23] It is extremely objectionable on the part of legal practitioner to take his client signature on the blank sheet of paper. The giving of certificates by the counsel in support of petitions by condemned prisoners for special leave to appeal in forma pauper is in circumstances not warranting the grant of such certificates shows an utter disregard of the solemn and serious responsibilities of counsel who is called upon to certify and the counsel so certifying is guilty of gross unprofessional misconduct.[24] It is very serious matter for legal practitioner knowingly to make false statement in a pleading drafted by him. Where an advocate commits perjury and displays great moral turpitude in instituting a false case and in having it supported by false evidence, he is guilty of grossly improper conduct in the discharge of his professional duty.[25] It is highly improper on the part of the legal practitioner to issue a false notice knowing it to be false even though he does it under instructions from his clients. A legal practitioner paying or offering to pay money to witness inducing him to speak the truth or to prevent from giving false evidence or pressing his client to pay money to a witness in order to induce him to keep back unfavourable evidence is not allowed. All agreements that obstruct and affect the administration of justice would be treated as invalid under section 23 of the Indian Contract Act. An undertaking on the part of practitioner to bear expenses of litigation on the promise of litigants that a certain portion of the net profits of the litigation will be allowed to the former in case of success is grossly improper under this section. Giving deliberately improper advice to a client may bring a lawyer within the clutches of law. Improper legal advice may amount to professional misconduct but not wrong legal advice.[26] The relationship of advocate and client rest upon a very high standard of mutual confidence and trust and is expected that after a member of the Bar is engaged on behalf of the particular client, he will always keep him fully informed of the progress of the case.[27] It is a professional misconduct on the part of the legal practitioner to identify a person whom he does not know, and a lawyer practising a professional business of identification must be removed from the roll.[28]
Advocate and Witnesses:
General:
1 .Counsel’s obligation in respect of witnesses:
In examining witnesses 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. He must not disregard the feeling of witnesses, or embarrass or bully them. He should not be sarcastic. He should not assume that all witnesses are liars to be treated alike. Advocate should not recognise these limitations and the result is that witnesses in this country have seldom a good word to put in for box.
2. The advocate must not misuse the privilege of cross examination:
This privilege like any other privileges, should only be used for the purpose intended, and should not be abused from sinister motives. A party may impeach the credit of a witness called by him only if he turns hostile and that too with the leave of the court.
a) Aimless heckling of witness is not honourable.
b) The advocate has no right to disgrace and bully a witness by putting offensive questions.
c) The privilege of cross examination should not be misused by an examination which is unnecessarily too long.
d) There is general complaint that the privilege of cross examination as to credit is frequently abused.
3. He must not tutor his witnesses:
A witness is required by law to testify facts which are within his knowledge and which he considers as true. So jealous is the law about purity of testimony that it does not permit even a leading question to be put to witness. This is not so because the answer cannot be true, but because the answer to a leading question is not regarded as free act of witness, but as regarded as suggestion to the counsel. This does not mean that the counsel should not confer with his witnesses in advance. In fact there is certain amount of the guidance to witness and dealing with them in relation to their testimony which are permissible to advocate by his Code of Professional Ethics.
4. The advocate must not tamper with witnesses:
Bribing a witness for the purpose of influencing his testimony is unprofessional. So long as witness is called to tell the truth and not to bolster up a falsehood and so long as payment is not made to corrupt him, the fact that he is paid or promised more than the statutory fee cannot be described as bribery.
5. Counsel as witness:
A dual capacity of witness and advocate is not approved by professional ethics. If it becomes necessary for the counsel to appear as witness in the case, he should withdraw from the case. Counsel is an advocate to the client but cannot be a witness, for or against the client in the case which he is conducting.
A counsel for a party should not also be his witness in the case without retiring from the case as counsel. It is a sound principle that a person who is appearing as counsel should not give evidence as witness. It is against the etiquette of the Bar that the member of the profession should give evidence in the case in which he is engaged as counsel and no self respecting counsel would be prepared to conduct a case for the defence after having been called as a witness for the prosecution.[29]
6. Abuse of privilege:
A gross abuse of the right of cross examination by legal practitioner is grossly improper conduct in the discharge of his duties.[30]
7. Perjury and false statement:
It is hardly necessary to say that it is not part of the etiquette of the members of the profession to tell lies in court or give perjured evidence on behalf of their client,[31] members of the legal profession are expected to maintain not only a high standard of professional morality and ethics but they are also expected as men of education and culture and as members of an Honourable profession to act in an honest and straight forward and upright manner.
Coutts Trotter, J. Said in his judgment:
“Perjury is an offence the gravity of which I do not seek to minimize, especially when committed by the member of the Bar who knows it full import. At the same time he has many degrees of gravity, and I think there is much to be said in extenuation of the offence committed by Mr .A”
8. Harassing tactics by counsel:
It is important to protect the courts from the harassing tactics on the part of the counsel. Where a counsel resorts to attempting to provoke the magistrate trying the case into same unguarded expression and then applies to transfer, the method adopted is neither in the interest of his client nor in the interest of justice.[32]
9. Citing advocate for accused as witness:
There is nothing necessarily unprofessional in counsel giving evidence in a case in which he appears as such. In Emperor V. Dadu Ram; AIR 1939 Bom150:
It has been observed in that case:
“On the one hand the accused person is entitled to select the advocate whom he desires to appear for him, and certainly the prosecution cannot fetter that choice merely by serving a subpoena on the advocate to appear as a witness. On the other hand, the court is bound to see that the due administration of justice is not in a way embarrassed. Generally, if an advocate is called as a witness by the other side, it can safely be left to the good sense of the advocate to determine whether he can continue to appear as an advocate, or by whether so doing he will embarrass the court or the client. If the court comes to the conclusion that a trial will be embarrassed by the appearance of the advocate who has been called as a witness by other side, and if not withstanding the court’s expression of his opinion, the advocate refuses to withdraw, in my opinion, in such a case court has inherent jurisdiction to require the advocate to withdraw.”
Advocate and his Opponent:
The advocate should maintain towards his opponent utmost cordiality. Clients and not the counsel are litigants. Says Daniel Webster:
“Lawyers on opposite sides of cases are like the two parts of shears, they cut what between them, but not each other.”[33]
The counsel should exercise his right of advocacy in a fair and legitimate manner:
He should always treat his opponent with fairness and due consideration. For instance, in drafting pleadings, he should act with care, prudence and good faith. He should not indulge in abuse and reckless charges of fraud, dishonesty and criminality. In Kedar Nath V. King Emperor[34]; and Thangavelu V. Chengalvaroya[35]:
“The satisfaction required is not that the allegation is true, or even that it is prima facie true, but only that there are grounds for making it.”
Unnecessary interruption of his opponent, by the advocate during his cross examination or address is undesirable:
Just as it is the right of the advocate not to be interrupted by the court ,so it his duty not to interrupt his opponent. Interruption of the opponent is improper for several reasons:
Each party has a right to impress on the court, its point of view as it considers best, and there should be no improper interference with this right. If proper interruption is allowed, it would result in constant wrangling between the advocates and consequent confusion in the court. This will destroy the dignity of the court and the parties will not be able to state their cases. No counsel has the right to prevent a judge from following the course of argument of the opposite side. By improper interruption your opponent may lose the thread of his argument, or it may spoil the effect of his cross examination on a vital point.
Moreover, a lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel; much less should he undertake to negotiate and compromise the matter with him, but should deal only with his counsel. It is incumbent on the lawyer most particularly to avoid anything that may tend to mislead a party not represented by counsel.[36]
Advocates and colleagues: Duty toward colleagues
Rule 36, 37, 38, and 39 framed by the Bar council of India deal with the duties of an advocate to the colleagues. Rule 36 provides that an advocate shall not solicit work of advertise (either directly or indirectly) whether by circulars, advertisements, touts, personal communications interview not unwarranted by personal relations, furnishing or inspiring newspaper, comments or producing his photograph to be published in connection with case in which he has been engaged or concerned. The sign-board or name plate should be of reasonable size. The sign-board or stationary should not indicate that he is the President or member of the Bar council or of any Association.
The advertising is prohibited because it may lead to unhealthy competition among the advocates. Advertisement can be allowed only for proper guidance so that it may not lead to unhealthy competition and may not result in lowering dignity of the legal profession.
Rule 37 provides that an advocate shall not permit his name to be used in aid of or to make possible the unauthorised practise of law by any agency.
Rule 38 makes it clear that an advocate shall not accept a fee less than the fee taxable under the rules when the client is able to pay the same.
According to rule 39 an advocate shall not enter appearance in any case in which there is already a vakalatnama or memo of appearance filed by an advocate engaged for a party except with his consent; in the case such consent is not produced he shall apply to the court stating the reasons why the consent should not be produced and he shall appear only after obtaining the permission of the court. The object of this rule is to secure goodwill among the advocates.[37]It prevents the temptation of seducing client from counsel who have already been engaged. Besides, it is one of the professional obligations, of an advocate to dissuade client from charging his counsel unless he has a strong reason for it and to satisfy himself that the reason is proper and adequate. The ill feeling of client should not affect their cordial relations.
All lawyers are brothers at the bar. An advocate should be courteous to the other advocates.
Miscellaneous Duties:
1) Rule 40 requires every advocate on the Rolls of the State Bar council to pay a certain sum to the State Bar council. Rule 41 provides that all the sums so collected shall be credited to separate fund to be known as the “Bar Council of India Advocates Welfare Fund for the State” and shall be deposited in bank.
2) Rule 42 deals with the consequences of the non payment of the said amount by the advocate. It provides that an advocate fails to pay the aforesaid sum within the prescribed time as provided under rule 40, the Secretary of the State Bar council shall issue to him a notice to show cause within a month why his right to practise be not suspended. In case the advocate pays the amount together with late fee of rupee five month, the proceeding shall be dropped. If the advocate does not pay the amount or fails to show sufficient cause, a committee of three members constituted by State Bar Council in this behalf pay pass an order of suspension.
3) Rule 43 provides that an advocate who has been convicted of an offence under section 24-A of the Advocates Act, or has been declared insolvent or has taken full time service or part time service etc, shall send a declaration to that effect within 90 days from the date of such disqualification. If he fails to do so, then his right to practise may be suspended.
4) Rule 44 provides that an appeal shall lie to the Bar Council of India at the instance of an aggrieved advocate within a period of 30 days from the date of order passed under rule 42 and 43.
5) Rule 45 framed by the Bar Council of India makes it clear that it is improper for an advocate to demand or accept fees or any premium from any person as a consideration for imparting training in law under the rules prescribed by the State Bar Council to enable such person to qualify for enrolment under the Advocates Act, 1961.
6) Rule 46 provides that every advocate shall in the practise of the profession of law bear in mind that any one genuinely in need of a lawyer is entitled to legal assistance even though he cannot pay it fully or adequately within the limits of an advocate’s economic conditions, free legal assistance to the indigent or oppressed is one of the highest obligations, as an advocate owes to the society.
7) Rule 47 provides that an advocate shall not personally engage in any in business but he may be a sleeping partner in a firm doing business provided that in the opinion of the appropriate State Bar Council the nature of the business is not inconsistent with the dignity of the profession.
8) Rule 48 makes it clear that an advocate may be a director or chairman of the Board of Directors with or without any ordinary sitting fee, provided none of his duties are of an executive character.
9) Rule 49 provides that an advocate shall not be the full time salaried employee of any person, government, firm, corporation etc, so long as he continues to practise.
10) Rule 50 provides that an advocate who has been succeeded by survivorship, to a family business may continue it, but not personally participated in the management thereof.
11) Rule 51 provides that an advocate may review parliamentary Bills for remuneration, edit legal text book at a salary, do press-vetting for newspapers, coach pupils for legal examination, set and examine question paper etc both legal and non-legal.[38]
Advocate and Profession:
Advocates in their professional capacity address each other as brothers. This spirit of fraternity at Bar is one of the noblest traditions of the legal profession and is many centuries old. Shakespeare said, “Do as adversaries do in law. Strive mightily but eat and drink as friend.”
Lawyers stand for common ideals of order, justice and rule of law in the community and have common rules of etiquette and professional observances. Some basic etiquette which every advocate should follow with regard to its profession are :
Law being a fraternity, the profession is entitled to loyal support of its members in the maintenance of the tradition. The first duty which an advocate owes to his brethren at the Bar is professional courtesy. Secondly, he should not accept retainer in a case in which another counsel is already engaged without the latter consent. Another duty which he owes to fellow members of the Bar is of corporation. A fourth duty is to show equal consideration to all members of the profession. Fifthly, a duty rests on senior members of the Bar to help and encourage their junior brethren. Sixthly, junior lawyers owe respect and goodwill to their senior brethren. Seventhly, advocate should be jealous of honour of their profession and should stand up for its dignity and privileges whenever there is occasion for it. An advocate should not speak disparagingly of his profession. He should expose corrupt and dishonest conduct in the profession. All lawyers owe a debt to their profession from which they drive honour and profit.[39]
Conclusion:
To conclude our whole discussion on the ethics of legal profession or the duties of an advocate, one can fairly summarize that basically the duties which an advocate has to follow is of moral character, what he owes to his clients or opponent or colleagues or towards court is not only determined by the rules framed by the Bar council of India in this behalf but all the more, it also depends on one etiquette manners. In what way and in what manner an advocate has to conduct himself is determined by his loyalty towards his profession. 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 be dealt with severely. An advocate practising a law is under many fold obligations like certain obligation towards court, client, witnesses, opponent, colleagues and general duties as a member legal profession. When advocate do not follow any of such obligation imposed on him by law, then he can be guilty of professional misconduct. Misconduct can be defined as dereliction of or dereliction from duty. An advocate is answerable for dereliction of duty. In order to avoid misconduct every legal practitioner should understand his duties. When lawyer is guilty of any professional misconduct, then only any action can be taken. 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, to establish honourable and fair dealings of the counsel with his client, opponent and witnesses, to establish the spirit of brotherhood in the Bar itself; and to secure that lawyers discharge their responsibilities to the community generally. Legal profession is necessarily the keystone of the arch of government. Legal profession is not a business but a profession. It has been created by the state for the public good. Consequently, the essence of profession lies in two things:
Organisation of its members for the performance of their function. Maintenance of certain standards, intellectual and ethical, for the dignity of the profession.
Bibliography:
1) The Advocates Act of 1961
Universal, Bare Acts with short notes
2009; Law Publishing Co. Pvt. Ltd
2) C L Anand
Professional Ethics of The Bar
The Law Book Co. Pvt. Ltd.
2nd Ed. 1987
3) D.V. Subbarao
The Advocates Act, 1961
Lexis Nexis, Buttersworth
7th Ed. 2005
4) Dr. Kailash Rai
Legal Ethics: Accountability for Lawyers and Bench-Bar Relations
Central law publications
8th Ed. 2008
5) Nirmalendu Dutt- Majumdar
Advocates Act and professional Ethics
Eastern Law House
2nd Ed. 1975
