This article is written by Ms Sankalpita Pal, who is currently pursuing BBA.LL.B (Hons) from Symbiosis Law School, Pune. This article will attempt a detailed overview of the standards laid down with regard to Indian Courts and professional ethics.
Ethics and the legal profession are closely related. The practice of law is a noble profession. Therefore, conforming one’s conduct and behaviours to a certain set of professional norms is an important aspect of this profession. Legal ethics can be simply defined as a code of conduct which may be written or unwritten. Such a code of conduct is meant to regulate the behaviour of a practising legal professional towards the court, the presiding judge, his client and his adversaries in the courtrooms.
It can be agreed that ethics is a fundamental prerequisite in any profession and not just the legal profession. Thus on a general note Ethics basically denotes human behaviour and their standard of moralities. A lawyer or an advocate must obey certain professional codes with regard to the standards of fair dealing with the client and also includes the standard of confidentiality required between them and uphold the self-possession. The Government of India established The Bar council of India which is a statutory body under the Advocate Act, 1961.
This article attempts to provide an exhaustive outlook of the standards of legal ethics to be met with, in the Indian courts and in advocate-client relationships.
The primary object of ethics in advocacy is to maintain the dignity and integrity of the legal profession. Legal ethics ensure that the legal fraternity serves the society honestly and present each case in the most formal way possible so that the litigants have faith on not only their legal representative or lawyer but also on the justice system. Not only the lawyer but also the judge needs to have a sense and understanding of legal ethics in order to maintain the functionality of Indian Courts. One of the fundamental aims of legal ethics is to seek a spirit of friendly cooperation amongst the bar, bench and the clients. Standards of ethics exist between the lawyer and his client, opponent and the witness being questioned and of course between the Judge and the lawyer.
The legal profession has been created by the state to serve the litigatory needs of the public. Thus, it is not a business it’s a profession. Consequently, there is 3 fundamental basis of legal ethics that gives an insight into the essence of the legal profession:
- The organisation of its members in order for the performance of their function;
- Maintain certain standards at both the intellectual and ethical level to preserve the dignity of the profession;
- Pecuniary gains must be subordinate to the client’s interest.
The Advocate Act, 1961
The All India Bar Committee had come up with a few recommendations based on the Law Commission’s recommendations relating to the legal ethics and legal profession. Thus, under the auspices of these recommendations, the Legislature implemented the Advocate Act, 1961. Subsequently, the Bar Council of India was established by the Parliament under Section 4 of the 1961 Act. This Act lays down the functions of the Bar Council of India (BCI) under Section 7. The Bare Council of India thus lays down standards of professional Code of conduct and etiquettes to be followed by advocates under Section 7(1)(b). Interestingly, this very function of the Bar is also laid down under Section 49(1)(c). According to Section 49(1)(c), the Bar is empowered to make rules for the standard of professional ethics that needs to be observed by advocates.
Bar Council of India Rules
Bar Council of India Rules is framed by the BCI under Part VI of Chapter 2. This chapter deals with the standard of professional ethics and conduct of lawyers. It is important to go through the rules briefly to understand the importance of professional ethics of a lawyer towards the Court and the Client.
Rules on Advocates Duty towards Court
The Bar Council of India prescribes certain duties that an advocate must fulfil.
- Act in a dignified manner: any advocate before the court (while presenting his case) is required to have self-respect and conduct himself with dignity. In re D.C. Saxena, AIR (1966)- This rule actually empowers an advocate to submit a complaint against a judicial officer. However, such a complaint shall be submitted to the proper authority.
- An advocate must maintain a respectful attitude while at court and shall respect the dignity of the judicial office: In the case of U.P. Sales Tax Service Association v Taxation Bar Association (1995) it was stated that the survival of a free community is endangered if an advocate doesn’t show respect or recognises the dignity of the judicial officer. It potentially lowers the spirit of the court.
- Not to communicate in private: this rule was well explained in the case of Rizwan-Ul-Hassan v. State of U.P. (1953) It was observed that an advocate shall not try to seek favourable decisions by any illegal means including bribing the court or communicating any favour in private. Thus, this rule prohibits any private communication with the judge which would be specifically regarding a pending case. It is considered as a gross form of professional misconduct if at all an advocate tries to influence the decision of the court by having private communication with the judge.
- Refuse to act in an illegal manner towards the opposition: An advocate is also required to prevent his client from resorting to unfair practices relating to the court, opposing counsel or opposite parties or even co-parties. The advocate must earnestly restrain and explain the implications and the consequences of such unfair practices. This rule also empowers an advocate to refuse to represent a client if he/she insists on such improper conduct.
- An advocate shall have his own sense of judgement and mustn’t use strong language in the court of law: This is another important Rule laid down that the advocate is expected to have his own sense of judgment regarding the cause or the case he/she is representing. In the case of M.Y. Shareef & Anothers. V. Hon’ble Judges of Nagpur High Court & Ors. (1954), it was observed that an advocate is not a mere mouthpiece of the client. Legal counsel must exercise his/her own judgement. An advocate must also restrain oneself from the use of scurrilous remarks while in pleadings. They shall use intemperate language during pleadings in court.
- Appear in proper dress code: Legal profession is one of the few professions that have a designated uniform. The court demands that an advocate must necessarily show up inappropriate dress code. There have been instances in court where cases have either been postponed or dismissed for that matter due to the lack of proper dress code that should have been followed by the representing legal counsel. Thus, if an advocate is improperly or inadequately dressed, he is not only looked down upon but also his appearance is a breach of the prescribed dress code.
- Refuse to appear in front of relations: this rule is laid down in Section 30 of the Advocates Act, 1961. This rule was laid down in order to avoid conflict of interest and bias in judgment. If there is a family tie existing between the presiding judicial officer and an advocate, then the advocate shall not appear in such cases and shall request for the change in bench.
- Not to wear bands or gowns in public places: the advocate cannot utilise his/her gown or band in other public places unless in any ceremonial occasions that the Bar Council of India and the court may prescribe.
- Not to represent establishments of which he is a member: The rule simply provides that an advocate is not allowed to represent, defend or even stand against an organization, institution, society, corporation etc. if he is a part of the executive committee of such institutions.
However, an advocate can appear as an ‘amicus curiae’ on behalf of a Bar Council.
- Not appear in matters of pecuniary interest: An advocate shall not act or plead in any matter in which he himself has some pecuniary interest.
- Not stand as surety for the client: sometimes parties at court or litigants are required to give surety to the court. An advocate shall not stand as a surety for his client in any legal proceedings.
Rules on Advocates Duty towards Client
Just as an advocate owes duty towards the court he/she is also obligated to follow Rule 11 to Rule 33 that prescribes an advocate’s duties towards his client. They are as follows:
- Bound to accept briefs: Rule 11 lays down that an advocate is bound to accept any brief in the court that is if he proposes to take up without any fee at the Bar council.
In S.J. Chaudhary v. State (1984), the Supreme Court held that if an advocate doesn’t attend a case day to day he would be liable for breach of professional duty. This observation was based on the fact that a lot of advocates don’t appear at the court and then his client has to bear the brunt of it.
- Not to withdraw from service: Rule 12 provides that an advocate shall give the client reasonable and sufficient notice before withdrawing from an engagement. He shall not withdraw without any reasonable grounds. If he withdraws himself with sufficient cause he is bound to refund the fee (even a part of it if not earned).
- Not to appear in matters where he himself is a witness: Rule 13 provides this rule as it can give rise to a conflict of interest. It must be noted that if an advocate is a witness of a party and he is asked to represent the other side then only such an advocate shall refrain from taking up such matters
In Kokkanda B. Poondacha v. K.D. Ganpathi (1995) the Court has upheld this rule as the parties could be disadvantaged.
- Full and frank disclosure to the client: Rule 14 provides that an advocate is expected to be honest with his client before the commencement of his engagement. He is obligated to reveal whether he has any connection with the other side of parties and any interest in their case. Otherwise, this creates controversies and also affects his client’s judgment to carry forward such an engagement.
- Uphold interest of the client: Rule 15 provides that an advocate owes his loyalty to his client and must uphold the interest of his client fearlessly and honestly by all fair means. He shall not give regard to unpleasant consequences that he may bear.
- Not to suppress material or evidence: suppressing material evidence is absolutely disregarded in the court of law. This rule is provided under Rule 16. It basically provides that if a prosecutor in a criminal trial tries to suppress material evidence that may lead to the innocence of the accused or taint the justice of the victim if shall be considered a gross breach of professional conduct and can also invite legal trouble for themselves. Thus, such an act or omission shall be scrupulously avoided.
- Not to disclose the communications between the client and himself: Rule 17 is also one of the most important obligations followed by an advocate. A non-disclosure agreement is always signed between the client and the advocate. Since there exists a fiduciary relationship between the client and the advocate, breach of confidentiality is taken seriously even at the court of law. This rule is also incorporated in Section 126 of the Indian Evidence Act, 1872.
- Not charge depending on the success of matters: Rule 20 provides that an advocate shall not charge depending upon the success of the lawsuit. Such a practice is opposed to public policy. Anu such contract for a contingent nature of fee against Section 23 of the Indian Contract Act.
- An advocate must not lend money to his client: Rule 32 provides that when an advocate lends money to his client then interest is created. Such a creation of interest if not allowed as it affects the advocate’s sense of judgment and also disallows the client to think upon before commencing with engagement.
- Not appear for opposite parties: Rule 33 provides that an advocate shall not represent the opposite party after withdrawing from the case on behalf of the previous party.
The fiduciary relationship between Lawyer and Client
On a general note, a fiduciary relationship is that of trust and confidence. Any client expects their lawyer to maintain a high degree of fidelity and good faith as their confidential information rests with the lawyer as they need to know the details of the case in order to find out the best way to pull their clients out of the legal trouble or query. In the case of V.C. Rangadurai v. D. Gopalan (1979), the Court observed that the relation between the advocate and his client involves the highest personal trust and confidence. Thus, their relationship cannot be completely treated as purely professional owing to the confidential nature of the information that the client gives to his lawyer. Thus, the lawyer-client relationship is purely fiduciary in nature.
Every profession has its own code of ethics. The legal profession in India is highly competitive and dynamic. As it has been thoroughly discussed above that the standard of ethics of the legal profession is codified under Indian law.
The nature of professional ethics is such that it is the essence of the legal profession. It encourages a Lawyer to act in a dignified manner that is befitting of such a noble profession. Thus, in order to maintain its dignity and integrity, professional ethics were codified. It brings upon accountability upon the legal professionals for dishonest, irresponsible and unprofessional behaviour. Furthermore, advocates can lose their license (to practice at court/firm) if they resort to unethical practices that endanger and tarnish the dignity of the legal profession.
Even in general not only the legal profession but also various other professions like the medical profession in India have codified standards of ethics. The Advocates Act, 1961 and Bar Councils Act, 1926 lay down the professional ethics that need to be followed by lawyers. On the other hand the Indian Medical Councils Act, 1956 and the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 governs the standard of professional ethics that needs to be followed by medical professionals.
The main intent behind these legislations is to prevent the exploitation of clients and patients or anyone at the receiving end of their services and of course to maintain the integrity of the profession. Just like every other provision and statute these rules and codes are not absolute in nature and can be amended or repealed as and when need be felt.
The need for codified legal ethics was well explained by the American Bar Association Committee. Law is a keystone to the arch of Government. Thus, a proper code is needed in order to prevent control of the judicial system by craft, greed or unworthy motives. Ethics is a way by which an advocate owes a duty to the Bar, a judge to the Bench of justice. It shall be noted that litigants or clients whom advocates represent don’t exactly owe the same standard of ethics as an advocate or a judge in a Court. The duty to prevent the client from resorting to unfair practices is also shouldered by the Bar and the Bench.
The committee also observed that a high standard of legal ethics must be codified in order to further the administration of justice in a pure and unsullied manner. Every lawyer must follow the prescribed legal ethics in order to retain membership in a professional organisation.
There lies a necessary distinction between professional ethics and professional conduct. The primary difference is between the obligation to be followed by a member of the profession. In professional conduct, refers to acts or steps taken under some statutory obligation or contractual powers. Such an obligation could be a legal obligation. On the other hand, in professional ethics, one is expected to follow a moral obligation.
The traditional approach to legal education is that of the application of established legal rules and principles to a certain set of facts in a case. However, with the commencement of law over time it was realised that the mere existence of laws cannot bring justice due to a number of reasons. Firstly, legal services are not as affordable as it should be for the whole economic spectrum of citizens to be able to avail them. Especially in a poverty-stricken country like India, the rights of the poor take a backseat due to lack of affordability. Secondly, legal aid services are also limited. Thirdly, laws are not completely comprehensive and coherent and judges are not consistent with their reasoning. Lastly, one of the biggest concerns is the lack of ethics portrayed not only by the police but also the lawyers.
Thus, to bridge the gap between ethics and the legal profession, the codification of the standard of ethics was a way to prevent the above-stated concern. However, the question raised is how far is it successful in protecting the dignity of the profession?
It shall be noted that the institutions providing legal education often neglect the concept of ethical lawyering. Therefore, it is argued that in order to produce good ethical lawyers who would serve the interest of the country, it can only be possible if institutions providing legal education educate the young lawyers to be ethical. The legal curriculum must give importance to socio-legal issues and contemporary problems of society that can be solved through an ethical and realistic perspective of everything. Law schools are somehow uncharacteristically silent on the subject of duties to court and client and general responsibilities towards justice.
On the other hand, it is also argued that ethics cannot be taught and it is up to every. Lawyer’s personal experience that will help them develop such ethics. The problem with this statement is that it ignores the fact that before one enters a profession, one can be misguided. Later on, the Bar is accused of lowering standards of professional ethics and discipline for failing to provide moral and legal leadership when an advocate or a judge misbehaves or uses unfair means to get by their respective cases.
The traditional way of teaching professional ethics in Indian law schools is not doing enough. Young lawyers need more insight into the fact as to why legal ethics is more important than subject knowledge. Legal knowledge can be gained (much more than the knowledge gained in law schools) through practice and experience. However, a sense of ethics should be developed earlier than that so that an intellectual legitimacy is created.
Traditional legal education must take up a humanistic approach and shall try to impart values into young budding lawyers as their contribution to the future is going to become of great consequence. There must exist a more holistic and humanising outlook towards the teaching and studying of law. Even after legal ethics are codified in India, lawyers still practice unfair means to seek favourable outcomes for their cases. The Code cannot bring about a sense of ethics unless it is imparted to the law students at the very earliest. There are a few positive examples, where some progressive law teachers have recognised the need for law students to gain a deeper understanding of ethics and its needs in the legal forefront.
The present stance is that with changing times the existing methods used to impart legal knowledge need to change. As stated above there is a gap between legal ethics and the legal profession. Thus, the ‘vectors’ need to converge. The law schools need to understand that along with the different disciplines in law, such as collaborative law, preventive law, problem-solving, holistic justice, restorative justice etc. are all meaningless if the knowledge is not implemented with morals, values, and ethics.
A sea change in the traditional methods of legal education can bring about an integration of personal and professional values along with the assimilation of analytical thinking/application of legal principles and emotional intelligence. A mere codification of legal ethics will not make the young lawyers realise the nobility of the legal profession or the dignity of the Bar.
There are 4 important advantages of having a code for professional ethics to be followed in Indian Courts:
Firstly, a Code of Professional ethics provides a sense of social control. Every now and then each profession and industry (here the legal profession) a newcomer enters it. Thus, codified professional ethics makes the newcomer aware of the standards that need to be met with, in the profession. A Codified form of ethics also keeps the old members of a professional fraternity in line according to the standard of social requirement and expectations.
Secondly, without a code of professional ethics the government or by society may try to control the standards through its agencies. Thus to prevent such control and interference, a code is required. Therefore, it is believed and practised that in order to standardise a certain set of rules, protocols and ethics, it should be done by the profession itself so that governmental interference is kept away.
Thirdly, higher standards of conduct can only be developed by codifying it. The codes bring about a sense of permanence and crystallize the standard of best ethics about the profession.
Fourthly, the existence of code will have great educative, corrective and appreciable value for both the lawyers and the laymen.
It is abundantly clear that legal ethics and the legal profession are closely related. It is evident from the existence of codified professional ethics for the legal profession that ethics holds an important position in the legal profession. The Bar Council ensures that advocates conform to the rules laid down with regard to legal ethics and dress code (professional attire of lawyers).
The nature of the legal ethics reveals that it is an absolute mandate however the language of the Code (under Advocate Act, 1961) makes it evident that advocates owe a duty towards the Bar, bench, their clients along with opposing counsels at the court. The whole point of having codified legal ethics is to mandate advocates to maintain the dignity of the court. Also, it prevents the exploitation of clients. The need for legal ethics was also briefly explained along with rules that need to be followed by advocates. The basic difference between professional ethics and professional conduct is that the former is a moral obligation while the latter is a legal or statutory obligation.
Another important aspect captured was whether codified professional ethics is making any difference or not? The implications of the code were explained and why it still remains relatively ineffective due to the lack of understanding of ethics before one starts practising in the profession. Mere codification of professional ethics will not fulfil the legislative intent behind the Advocates Act, 1961 and the Bar Council Rules until the traditional method of legal education is slightly changed. The Code cannot bring about a sense of ethics unless it is imparted to the law students at the very earliest.
In the changing world of legal practice, a high standard of ethics and professional conduct is the only tool that can ensure a stimulant justice system and it would also restore the faith of clients on it. Considering the lawyer-client relationship is a fiduciary one, a breach of confidentiality can be punished.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: