S.N.D.T.
Women’s University Law School
Project Topic:- Ethics of Legal Profession
Subject:- Practical Training (semester II)
Submitted by:
Name :- Pratiksha Tripal Bhagat
Class :- LLB 1st Year
ROLL NO:-4
Submission (Month & Year):
29th May, 2020
Under the guidance of:
Mrs. Darshika Maiya
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Index
SR. No. Topic Page No
1 Introduction 3
2 Why is ethics important to the practice of law? 4
3 Law in ancient India 5-6
4 The Lawyers of high Moral Value 7-8
5 Areas of Application 9-10
6 Importance of Legal Profession 11
7 Ethics of Legal Profession 12-14
8 Need for Professional Ethics 15
9 Advantages of Having Codified Professional Ethics 16
10 The Bar Council of India Rules 17-23
11 Professional or Other Misconduct- Meaning And Ambit 24-25
12 Contempt Of Court 26-31
13 The Body Or Authority Empowered To Punish For 32-33
Professional Or Other Misconduct
14 Advocacy 34
15 Cases Of Misconduct 35-37
16 Critical Analysis 38-39
17 Conclusion 40
18 References 41
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Introduction
The Legal Profession plays an important role in the administration of Justice.
The Lawyers are considered to be the center of the administration of justice. Lawyers
are the one who are related to the parties, they listen to the party and collect all the
relevant legal materials relating to the case and argue the case in court, thus helping
the Judge to arrive at the correct and fair judgment. Without the assistance of the
lawyers it would be a superhuman task for the Judge to come at the satisfactory
judgment. Justice P.N. Sapru1 has stated that, ‘justification for the existence to the
counsel is that each side to the controversy should be in a position to present its case
before an impartial tribunal in the best and most effective manner possible.’
Legal Ethics & Significance
The word ethics is derived from the Greek word ethos (character), and from the
Latin word mores (customs). Together they combine to define how individuals choose
to interact with one another. In philosophy, ethics defines what is good for the
individual and for society and establishes the nature of duties that people owe
themselves and one another. The following items are characteristics of ethics:
• Ethics involves learning what is right and wrong, and then doing the right
thing.
• Most ethical decisions have extended consequences.
• Most ethical decisions have multiple alternatives.
• Most ethical decisions have mixed outcomes.
• Most ethical decisions have uncertain consequences.
• Most ethical decisions have personal implications.
Legal profession is noble profession. The nobility of the legal profession is
maintained by the adherence and observance of a set of professional norms by those
who adopt this profession. It is knows as legal ethics or the ethics of the legal
profession. The fundamental of the legal ethics is to maintain the owner and dignity of
the law profession, to secure a spirit of friendly cooperation between Bench and Bar in
the promotion of highest standard of justice, to establish honourable and fair dealings
of the counsel with his client, opponent and witness, to establish a spirit of
brotherhood with bar.
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Why is ethics important to the practice of law?
First because lawyers are integral to the working-out of the law and the Rule of
Law itself is founded on principles of justice, fairness and equity. If lawyers do not
adhere and promote these ethical principles then the law will fall into disrepute and
people will resort to alternative means of resolving conflict. The Rule of Law will fail
with a rise of public discontent.
Second, lawyers are professionals. This concept conveys the notion that issues
of ethical responsibility and duty are an inherent part of the legal profession. It has
been said that a profession's most valuable asset is its collective reputation and the
confidence which that inspires. The legal profession especially must have the
confidence of the community. Justice Kirby of the Australian High Court once noted:
The challenge before the legal profession....is to resolve the basic paradoxes
which it faces....To reorganise itself in such a way as to provide more effective, real
and affordable access to legal advice and representation by ordinary citizens. To
preserve and where necessary, to defend the best of the old rules requiring honesty,
fidelity loyalty, diligence, competence and dispassion in the service of clients, above
mere self-interest and specifically above commercial self-advantage.
Third, because lawyers are admitted as officers of the court and therefore have
an obligation to serve the court and the administration of justice.
And finally because lawyers are a privileged class for only lawyers can, for
reward, take on the causes of others and bring them before the courts.
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Law in ancient India
In ancient India it was a mandate that King should decide the cases according
to law. The law which was there earlier included many facets and spectrums which
included the injunctions or mandates given in Shastras, smritis, customs, rajdarma,
rule of conduct, modes of livelihood, regulation that governs the society, elementary
backdrop of labour law, sense of morality, doctrine of proportionality, etc. The laws,
to some extent, inherently included morality from within and imposition from higher
authorities. It is said that maintenance of Rule of Law in modern society is sine qua
non for the survival of democracy. With the passage of time the law has undergone
many changes required according to the change in the society.
Long back, De Tocqueville stated that-: “The profession of law is the only
aristrocratic element which can be amalgamated without violence with the natural
elements of democracy, and which can be advantageously and permanently combined
with them”. As this profession has gained the nobility, no one on this earth can
contradict that the lawyers are responsible in the growth of law and make the courts as
protector and guarantor of the indefensible rights of the citizens. The lawyers thus
have an obligation to see that the rule of law is maintained and all its objectives are
secured. The objectives thus include prevention of growth of deviant behavior in
civilized society, detection of corrupt and corruptible behavioral pattern, valuation of
extent of deviance and deviancy, etc. One of the Advocates in the earlier times who
appeared as Amicus Curiae on his own was none other than Vibhishan who pleaded
before his brother, King Ravana, as regards the concept of proportionality which has
gained ground in modern jurisprudence in almost every field.
Vibhishan counseled his brother that the messenger is not to be killed and it is
the duty of the King to know the difference between right and the wrong. Before
stating so the younger brother had asked for the forgiveness and stated the law as:-
“Kshama Rosham Tayaj Rakshendra
Praseed Me Vakyamidam Shurunshav
Vadham Na Kurvanti Paravargya Dutasya
Santo Vasudhadhipendra.”
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“O mighty King of all demons! Forgive me! Discard your rage. Be pleased!
Hearken to this counsel of mine. O knower of right and wrong, O king of all kings!
One does not kill messengers, for messengers are under another’s orders.” And again
he solicited.
“Asanshayam Shatruyam Pravdhah Krutum
Hanenapriyamprameyam
Na Dutavadhyaam Pravdanti Santoo Dutasya
Drashta Bahavo Hi Dandha.”
“Without doubt this monkey is a deadly foe (and) has done incalculable harm.
Do not kill messengers, rather, weigh the (the nature of the) messenger’s (offence).
Multiple punishments exist for various offences. Wise men profess thus.
These shlokas were referred by the Deepak Misra in his speech delivered at
High Court Bar Association, Jabalpur with the purpose to show that there were certain
persons in our myths and puranas who advocated the cause of justice. They were not
only the lawyers and advocates but the better upholders of law.
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The Lawyers of high Moral Value
The Bar is a public institution and is under legal obligation to impart
wholehearted cooperation for the development of law. History has said with grace and
appreciation that how the eminent lawyers after independence started making law a
legal science. When we talk about lawyers in pre-independence era, last part of 18th
century the eminent lawyers helped in the development of enacted laws as well as
customary laws. These lawyers were the one who had their morals and worked on the
principle of ethics. The lawyers who were eminent in their own field got intrinsically
involved in freedom struggle where their reasoning, rationality and logical factors
helped them to solve many acute problems. Many of them played very important role
in the formation and shaping of our constitution which eventually turned out to be one
of the best constitutions of the world. One of the great examples of such personality is
the Father of the Nation, Gandhiji, who was a lawyer. He started his practice in India
and went to South Africa. It is noteworthy to state that Gandhiji was an excellent
draftsman and his representations to the authorities used to be very logical, straight,
unambiguous, and succinct and based on natural and ethical legal paradigm. He
believed in truth while practicing as lawyer and acted as a conciliator. In his
autobiography “My Experiments With Truth” he has narrated how he required a
prosperous businessman to confess his guilt and after the Court sentenced him, to keep
judgment in a frame for posterity to see and realize.
Sir Alladi Krishna Swami Aiyer is another example, a lawyer who was also a
freedom fighter. He was the acknowledged leader of the Madras Bar. After
Independence he became a member of drafting committee of the Indian Constitution.
Dr. B.R. Ambedkar started practice at Bombay in 1924 and at the same time
started his career as a social worker, writer, politician and socialist. His image as a
jurist gained widespread recognition and emerged as the leader of depressed class. He
was the Chairman of the Drafting Committee which framed the Constitution of India.
Gandhiji laid emphasis on moral fabric of the society, preached religious
pluralism, anticipated ecological crisis of our time, accentuated on disciplined life, laid
stress on personal efforts to rise in life and postulated prescriptions for constructive
work. While talking about this brand of lawyers it is worth noting that Bhulabhai
Desai had played a main role in the INA trial where his main contention was that a
member of the subject country has a right to wage war for securing the freedom.
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Another great lawyer in the post independent era is Viswanath Shastri. At one
point of the time he was the leading practitioner in the Supreme Court. He was an
authority in taxation law and remembered Privy Council Judgments on his finger tips.
He was a simple men and in fact in his office there was no chair and fan.
Another illustrious lawyer who became a household name in India is Nani
Palkhiwala. He had started without any ladder but his incomparable energy,
phenomenal brilliance, prodigious memory, enormous ability to work hard, profound
analytical skill and unsurpassable humility took him to great heights.
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Areas of Application
1) Conflict of interest
A lawyer is at times faced with the question of whether to represent
two or more clients whose interest’s conflict. Quite aside from his ethical
obligations, the legal systems of the world generally prohibit a lawyer from
representing a client whose interest’s conflict with those of another, unless
both consent.
2) Confidential Communication
In Anglo-American countries judicial decisions, legislation, and legal
ethics generally forbid a lawyer to testify about confidential communications
between himself and his client unless the client consents. Provisions regarding
confidentiality are also found in such diverse legal systems as those of Japan,
Germany, and Russia. In countries in which the attorney’s obligation to protect
state interests is given relatively greater emphasis, there may be a duty to
disclose information when it is deemed to be to the state’s advantage
3) Advertising and solicitation
Traditionally, advertising by lawyers was forbidden almost
everywhere. It was a long-standing principle of legal ethics in Anglo-
American countries that an attorney must not seek professional employment
through advertising or solicitation, direct or indirect. The reasons commonly
given were that seeking employment through these means lowers the tone of
the profession, that it leads to extravagant claims by attorneys and to
unrealistic expectations on the part of clients, and that it is inconsistent with
the professional relationship that should exist between attorney and client. A
more basic reason appears to have been the social necessity of restraining the
motive of personal gain and of stressing the objective of service.
4) Fees
In principle, attorneys are ethically enjoined to keep their fees
reasonable, neither too high nor too low. Attempts to control fees have
included the passage of general statutes designed to regulate compensation for
legal services of all sorts, as in Germany; the imposition of fees by courts in
contentious matters, as in England and Wales; and the establishment of
advisory fee schedules by the legal profession, as in Canada, France, Spain,
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and Japan. In the United States, local bar associations sometimes enforced
minimum fee schedules through disciplinary proceedings; however, the U.S.
Supreme Court held in 1975 that such practices violated antitrustlaws.
5) Criminal cases
Both the prosecution and the defence of criminal cases raise special
ethical issues. The prosecutor represents the state, and the state has an interest
not only in convicting the guilty but also in acquitting the innocent. The
prosecutor also has an ethical and, inconsiderable measure, a legal duty to
disclose to the defence any information known to him and unknown to the
defence that might exonerate the defendant or mitigate the punishment. He
must not employ trial tactics that may lead to unfair convictions, nor should he
prosecute merely to enhance his political prospects.
6) Globalization
Although economic globalization has contributed in important ways to
the worldwide growth of the legal profession, it has also created the potential
for conflict between different ethical traditions. In Europe, for example,
standards of confidentiality for in-house counsel differ from those observed by
independent attorneys, a fact that has created difficulties for some U.S.-trained
lawyers working for European firms. In China the rapidly increasing market
for legal services has attracted legal professionals from democratic countries,
which generally do not share the Chinese conception of an attorney’s public
obligations. It is likely that these kinds of challenges will be intensified by the
continuing liberalization of the international legal market and by the
development of technologies that enable lawyers to give advice from their
offices to clients in distant and very different jurisdictions.
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Importance of Legal Profession
The Lawyers play important role in the maintenance of peace and order in the
society. Learned C.L. Anand has rightly stated that the advocates share with the judges
the responsibility for maintaining order in the community. They do not promote stripes
but settle them. They stand for legal order which is one of the noblest functions in the
society. The order which the advocates seek is not of grave but based on justice. It is
the foremost function of the advocates to fulfill the desire of their clients by providing
them Justice. It is the desire of every human on the earth.
The Lawyers also play a very important role in law reform also. “By reason of
the experience gained in daily application and interpretation of laws, lawyers are best
aware of the imperfection, of the legal system and constitute the most competent class
of men to advise on law reform and to promote popular enthusiasm and support for it.
The most difficult part of the process of legislation is drafting of its provisions and no
one is better fitted to give guidance on this than the lawyers.”
Thus, it can be said that the legal profession is a profession of great honour.
This is made for public welfare, for public good. This is not for making money but to
provide Justice to the right person. An advocate is an officer of the Court and is
required to maintain towards the Court a respectful attitude bearing in mind that the
dignity of the judicial office. The Supreme Court has rightly observed that the legal
profession is a partner with the judiciary in the administration of justice.
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Ethics of Legal Profession
Meaning, Nature and Need
Professional ethics are a set of norms or codes of conduct, set by people in a
specific profession. A code of ethics is developed for each profession. Suppose you
write articles in a newspaper. Professional ethics require that you verify facts before
you
Write that article, isn’t it? Simply put, professional ethics for lawyers in India
lay down a set of guidelines, which defines their conduct in the profession that is
highly competitive and dynamic. Indian law requires lawyers to observe professional
ethics to uphold the dignity of the profession.
People are surprised when they hear that lawyers are expected to follow
professional ethics and that they are accountable for dishonest, irresponsible and
unprofessional behaviour. Further, most people do not know that lawyers in India can
lose the license to practice if they are found guilty of unethical practices that tarnish
the dignity of their profession. A lawyer must adhere to the professional norms, for
fair dealing with his client and to maintain the dignity of the profession.
The Bar Council of India is a statutory body that regulates and represents the
Indian bar. It was created by Parliament under the Advocates Act, 1961. It prescribes
standards of professional conduct and etiquette and exercises disciplinary jurisdiction.
It sets standards for legal education and grants recognition to Universities whose
degree in will serve as a qualification for students to enrol themselves as advocates
upon graduation.
A legal practitioner is under 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. The scope of legal ethics is beyond the treatise of evidence or
witnesses to be presented before the court. In examining these witnesses the advocate
should not forget that he is not mere the counsel of the client but also the officer of the
court. In this way there are some of the duties thereinafter which the advocate should
follow, 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.
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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.”
Professional Ethics may be defined as a code of conduct written or unwritten
for regulating the behavior of a practicing lawyer towards himself, his client, his
adversary in law and towards the court. Thus, ethics of legal profession means the
body of rules and practice which determine the professional conduct of the members
of a bar. When the person joins the legal profession and starts practicing, his relation
with men in general is governed by general rules of law but his conduct as advocate is
governed by the especial rules of profession 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.
Professional Ethics is also known as legal ethics. “Legal Ethics is that branch
of moral science which deals with the duties which a member of the legal profession
owes to the public, the Court, to his professional brethren and to his clients. [Ethics] is
a study of the meaning and application of judgments of Good, bad, right, wrong, etc.
and every evaluation of law involves an ethical Judgment.”
The description of Legal Ethics already clarifies that legal ethics is one of the
branch of moral science. Etymological origin of the words moral and ethics appear to
be same. The word moral comes from Latin Word mos (plural mores) meaning
thereby “Custom or way of life.” The related term Ethics is derived from the Greek
word ethos meaning “Custom” or “Character”. Thus both the words moral and ethics
are mostly synonymous and refer to a type of behavior practices by a group which
tends to become customary. But there is a slight difference in the two that moral or
morality ordinarily refers to the conduct itself, while ethics or ethical suggests the
study of moral conduct or the system of code which is to be followed.
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The Oxford Companion to Law explains the professional ethics as “the
standards of right and honourable conducts which should be observed by members of
learned professions in their dealings one with another and in protecting the interests
and handling the affairs of their clients.”
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Need for Professional Ethics
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, and allowed to be a subject of 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 depends upon the maintenance of the shrine of the justice, pure and unrolled
by the advocates. It cannot be so maintained, unless the conduct and motives of the
members of the legal profession are what they object to be. Therefore, it becomes the
plain and simple duty of the lawyers to use their influence in every legitimate way to
help and make the Bar what it is ought to be. 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 this good behaviour should be defined and
measured by 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 the lawyer failing to conform thereto, should not be permitted
to practise or retain membership in the particular organisation.
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Advantages of Having Codified Professional Ethics
Firstly, codes of ethics are important means of social control. It will keep new
corner to the profession aware and old members in line according to the social
requirement and expectations. The dignity of the profession will be required to be
maintained by maintaining the public confidence in it.
Secondly, Professional ethical codes prevent control or interference by the
government or by society though some one of its agencies. If a degree of
standardization is needed and that is done by the profession itself, it will keep outside
interference away. Governmental regulations through law tend to be negative while
ethics points to the goal desired.
Third, ethical codes are important, in developing higher standards of conduct.
The codes crystallize best Judgment about the profession. Robert D. Kohn, Felloe of
the American Institute narrates five stages of development.
Fourthly, the existence of code will have great educative, corrective and
appreciable value for both the lawyers and the laymen.
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The Bar Council of India Rules
The Advocates Act, 1961 empowers the Bar Council of India to frame certain
rules. Section 49 (1) (c) of the Act grants general power to The Bar Council of India to
make rules relating to the standards of professional conduct and etiquette to be
observed by advocates. The rules formed by Bar Council of India is given in Chapter –
II of Part IV of the Bar Council of India Rules tells the duty of an Advocate to the
Court, to the client, to opponent, to colleagues etc.
Preamble of Part IV, Chapter II reads and makes the following points clear.
1. An advocate shall, at all times, comport himself in a manner befitting his status
as an officer of the court, a privileged member of the community and a
gentleman;
2. He should bear in mind that what may be lawful and moral for a person who is
not a member of Bar, or for a member of the Bar in his non- professional
capacity may still be improper for an Advocate;
3. Without prejudice to the generality of the foregoing obligation, an Advocate
shall fearlessly uphold the interests of his client, and in his conduct conform to
the rules hereinafter mentioned both in letter and in spirit.
4. The rules hereinafter mentioned contain canons of conduct and etiquette
adopted as general guides; yet the specific mention there of shall not be
construed as a denial of existence of other equally imperative though not
specifically mentioned.
Section 1 (of chapter II of Part IV of the Bar Council of India Rules) frames
code of conduct and etiquette of Advocates and prescribes certain duties of an
Advocate of the Court.
Duty to the Court
1. An Advocate shall, during the presentation of his case and while otherwise
acting before a Court, conduct himself with dignity and self- respect. He shall
not be servile and whenever there is proper ground for serious complaint
against a judicial officer, it shall be his rights and duties to submit his
grievance to proper authorities.
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2. An Advocate shall maintain towards the Courts a respectful attitude, bearing in
mind that the dignity of the judicial office is essential for the survival of free
community.
3. An Advocate shall not influence the decision of a Court by any illegal or
improper means. Private communications with a Judge relating to a pending
case are forbidden.
4. An Advocate shall use his best efforts to restrain and prevent his client from
resorting to sharp or unfair practices or from doing anything in relation to the
Court, opposing counsel or parties which the Advocates himself ought not to
do. An Advocate shall refuse to represent the client who persists in such
improper conduct.
5. An Advocate shall appear in Court at all times only in the prescribed dates, and
his appearance shall always be presentable.
6. An Advocate shall not enter appearance, act, plead or practice in any way
before a Court, Tribunal or Authority mentioned in Section 30 of the Act, if the
sole or any member thereof is related to the Advocate as father, grandfather,
son , grandson, uncle, brother, nephew, first cousin, uncle, aunt, husband, wife,
mother, daughter, sister, niece, father-in-law, mother-in-law, son-in-law,
brother-in-law, daughter- in-law or sister-in-law.
7. An Advocate shall not wear band or gown in public places other than in Courts
except on such ceremonial occasions and at such places as the Bar Council of
India or the Court may prescribe.
8. An Advocate shall not appear in or before any Court or Tribunal or any other
authority for or against an organization or an institution, society or corporation,
if he is a member of the Executive Committee of such organization or
institution or society or corporation.
Provided that this rule shall not supply to such a member appearing as
“amicus curiae” or without a fee on behalf of a Bar Council, Incorporated Law
Society or a Bar Association.
9. An Advocate should not act or plead in the any matter in which he himself is
peculiarly interested.
ILLUSTRATIONS-: I. He should not act in a bankruptcy petition when he
himself is also a creditor of the bankrupt.
II. He should not accept a brief from any company of which he is a Director.
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10. An Advocate shall not stand as a surety, or certify the soundness of the surety
for his client required for the purpose of any legal proceedings Learned C.L.
Anand has observed that the advocates owe respect and courtesy to the Court
for the following reason-:
• An Advocate is like a Judge, himself, an officer of the Court and an integral
part of the judicial machine. The legal profession consists of the Bar as well as
the Bench and both have common aims and ideals.
• 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
• Not only litigants and witnesses but the general public will get their inspiration
from the example of advocates. It is necessary for the administration of justice
that Judges should have esteem of the people. If judges are not respected it
tends to impair public confidence in the administration of justice.
• It is the good manners and advocates before anything else are gentleman of the
Bar.
• Even from a purely practical standpoint, there is nothing to be gained but there
is much to lose by antagonizing the Court. Conflict with the Judge renders the
trial disagreeable to all and has generally an injurious effect on the interests of
the client.
• The usual practice in modern times is to appoint Judges from among the
members of even the Bar and even where this rule is not strictly observed the
Bench is fairly representative of the Bar.
• It is necessary for dignified and honourable administration of justice that the
Court should be regarded with respect to the suitors and people.
Section II- Duty to the Client
11 An Advocate is bound to accept any brief in the Courts or Tribunals or before
any other authority in or before which he proposes to practice at a fee consistent
with his standing at the Bar and the nature of the case. Special circumstances
may justify his refusal to accept a particular brief.
12 An Advocate shall not ordinarily withdraw from engagements, once accepted,
without sufficient cause and unless reasonable and sufficient notice is given to
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the client. Upon his withdrawal from a case, he shall refund such part of the fee
as has not been earned.
13 An Advocate should not accept a brief or appear in a case in which he has reason
to believe that he will be a witness, and if being engaged in a case, it becomes
apparent that he is a witness on a material question of fact, he should not
continue to appear as an Advocate if he can retire without jeopardizing his
client’s interests.
14 An Advocate shall, at the commencement of his engagement and during the
continuance thereof, make all such full and frank disclosures to his client
relating to his connection with the parties and any interest in or about the
controversy as are likely to affect his client’s judgment in either engaging him or
continuing the engagement.
15 It shall be the duty of an Advocate, fearlessly to uphold the interests of his client
by all fair and honourable means without regard to any unpleasant consequences
to himself or any other. He shall defend a person accused of a crime regardless
of his personal opinion as to the guilt of the accused, bearing in mind that his
loyalty is to the law which requires that no man should be convicted without
adequate evidence.
16 An Advocate appearing for the prosecution of a criminal trial shall so conduct
the prosecution that it does not lead to conviction of the innocent. The
suppression of material capable of establishing the innocence of the accused
shall be scrupulously avoided.
17 An Advocate shall not, directly or indirectly, commit a breach of the obligations
imposed by Section 126 of Indian Evidence Act.
18 An Advocate shall not at any time, be a party to fomenting of litigation.
19 An Advocate shall not act on the instructions of any person other than his client
or his authorized agent.
20 An Advocate shall not stipulate for a fee contingent on the results of litigation
or agree to share the proceeds thereof.
21 An Advocate shall not buy or traffic in or stipulate for or agree to receive any
share or interest in any actionable claim. Nothing in this rule shall apply to
stock, shares and debentures or governmental securities, or to any instruments
which are, for the time being, by law or custom, negotiable or to any mercantile
document of title to goods.
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22 An Advocate shall not, directly or indirectly, bid for or purchase, either in his
own name or in any name, for his own benefit or for the benefit of any other
person, any property sold in the execution of a decree or order in any suit, appeal
or other proceeding in which he has I any way professionally engaged.
23 An Advocate shall not adjust fee payable to him by his clients against his own
personal liability to the client, which liability does not arise in the course of his
employment as an Advocate.
24 An Advocate shall not do anything whereby he abuses or takes advantages of the
confidence reposed in him by his client.
25 An Advocate should keep account of his clients money entrusted to him, and the
accounts should show the amounts received from the client or on his behalf, the
expenses incurred for him and the debits made on account of fees with
respective dates and all other necessary particulars.
26 Where moneys are received from or on account of a client, the entries in the
accounts should contain a reference as to whether the amounts have been
received for fees or expenses, and during the course of the proceedings, no
Advocate shall, except with the consent in writing of the client concerned, be at
liberty to divert any portion of expenses toward fees.
27 Where any amount is received or given to him on behalf of his client, the fact of
such receipt must be intimated to the client as early as possible.
28 After the termination of the proceeding, the Advocate shall be at liberty to
appropriate toward the settled fee due to him any sum remaining unexpended out
of the normal paid or sent to him for expenses, or any amount that has come into
his hands in that proceedings.
29 Where the fees has been left unsettled, the Advocate shall be entitled to deduct,
out of any moneys of the client remaining in his hands, at the termination of the
proceedings for which he has been engaged, the fee payable under the rules of
the Court, in force for the time being, or by then settled and the balance, if any,
shall be refunded to the client.
30 A copy of the client’s account shall be furnished to him on demand provided the
necessary copying charge is paid.
31 An Advocate shall not enter into arrangements whereby funds in his hands are
converted into loans.
21
32 An Advocate shall not lend money to his client for the purpose of any action or
legal proceedings in which he is engaged by such clients.
Explanations-: An Advocate shall not be held guilty for the breach of this rule, if in the
course a pending suit or proceeding, and without any arrangement with the client in
respect for the same, the Advocate feels compelled by reason of the rule of the court to
make the payment to the Court on account of the client for the progress of the suit or
proceeding.
33 An Advocate who has, at any time, advised in connection with the institution of
the suit, appeal or other matter or has drawn pleadings or acted for a party, shall
not act, appear or plead for the opposite party.
Section III- Duty to Opponent
34 An Advocate shall not in any way communicate or negotiate upon the subject
matter of controversy with any party represented by an Advocate except through
that Advocate.
35 An Advocate shall do his best to carry out all legitimate promises made to the
opposite party even though not reduced to writing or enforceable under the rules
of the Court.
Section IV- Duty of Colleagues
36 An Advocate shall not solicit work or advertise, either directly or indirectly,
whether by circulars, advertisements, touts, personal communications,
interviews not warranted by personal relations, furnishing or inspiring
newspaper comments or producing his photograph to be published in connection
with cases in which he has been engaged or concerned.
37 An Advocate shall not permit his professional services or his name to be used in
aid of, or to make possible, the unauthorized practice of law by any agency.
38 An Advocate shall not accept a fee less than the fee taxable under the rules when
the client is able to pay the same.
39 An Advocate shall not enter appearance in any case in which there is already a
vakalat or memo of appearance filed by an Advocate engaged for a party except
with his consent; in case such consent is not produced, he shall apply to Court
22
stating reasons why they said consent should not be produced and he shall
appear only after obtaining the permission of the Court.
23
Professional or Other Misconduct- Meaning And Ambit
Section 35 of the Advocates Act provides in respect of punishment for
professional or other misconduct. It provides that where on receipt of the complaint or
otherwise, a State Bar Council has reason to believe that any advocate on its roll, has
been guilty of professional or other misconduct, it shall refer the case for disposal to
its disciplinary committee. Section 35 empowers the disciplinary committee to
reprimand the advocate and suspend the advocate from practice for such period as it
may deem fit or remove the name of the advocate from the State roll of advocates.
However, an appeal against the order of the disciplinary committee may be preferred,
to the Bar council of India and thereafter to the Supreme Court against the order of the
Bar Council of India. Section 35 of the Advocates Act specifically mentions that an
Advocate can be punished not only for professional misconduct but also other
misconduct.
In case of Ram Singh the Supreme Court has explained the term “misconduct”
in connection with the misconduct of the personnel in the Police Department but may
be applied in determining whether or not conduct implies to misconduct. The Supreme
Court has observed that the term ‘misconduct’ may involve moral turpitude, it must be
improper or wrong behavior, willful in character forbidden act, a transgression of
established or definite rule of action or code of conduct, but not mere error of
judgment, carelessness or negligence in performance of duty.
According to Black’s Dictionary the term “misconduct” is defined as a
transgression of some established and definite rule of action, a forbidden act, a
dereliction of duty, unlawful behavior.
In Nortanmal Chauaisia v. M. R. Murli enough to include wrongful omission
or commission, whether done or omitted to be done intentionally or unintentionally. It
means improper behavior, intentional wrong doing or deliberate violation of a rule of
standard of behavior’.
24
In the matter of P1, the Court has held that an advocate may be punished not
only when he is guilty of professional misconduct but also if he is guilty of other
misconduct which may not be directly concerned with the professional activity as
such, may nevertheless be of such dishonourable or infamous character as to invite the
punishment due to professional misconduct.
25
CONTEMPT OF COURT
Meaning and Nature
The Contempt of Court Act, 1971 defines contempt of court for the first time.
There is no statutory definition of contempt of court. Whatever definition provided
under this act is not a definition but only classification of the term contempt of court.
Contempt of court in general means to offend the dignity of the court and lower the
prestige of the court.
Halsbury defines as follow “any act done or writing publish which is calculated
to bring a pole or judge into content or lower his authority or to interfere with the due
course of justice or the lawful process of the court is contempt of court.”
Contempt of court is disobedience to court by acting in opposition to the
authority, justice and dignity thereof. It signifies a wilful disregard or disobedience of
courts order. Section 2(a) of the Contempt of Court Act, 1971 defines contempt of
court as civil contempt or criminal contempt.
Contempt by Lawyers
On account of nature of duty to be discharged by the lawyers and the judges
they may get into heated by law which may result in contempt of court. There are
several instances of the misconduct such as using insulting language against the judge,
suppressing the facts to obtain favourable order, imputation of partiality and unfairness
against the judge. A council who advices his client to disobey the order of court is also
held liable for contempt of court. Attacking the judiciary in the bar council election is
taken as contempt of court. If the council refuses to answer the question of the court is
also liable for contempt of court.
In Re Ajaykumar Pandey case the Supreme Court held that advocate using
intemperate language against various judicial officers and attributing motives to them
while discharging there judicial function would be held guilty of contempt of court. In
this case such advocate was sentenced or punished to 4 months simple imprisonment
and fine of rupees 1000/-.
26
Contempt by judges, magistrates or other person acting judicially
Section 16 of Contempt of Court Act, 1971 makes judges, magistrates and
other person liable for contempt of court. This section provides that subject to the
provision of any law for time being in force a judge, magistrate or other person acting
judicially shall also be held liable for contempt of his own court or any other court in
same manner as any individual is liable and provision of this act shall also be applied
accordingly. This provision is not applicable to any reward or expression delivered
bya judge in a matter which came before him in appeal or revision.
Contempt liability of state, corporate bodies and there officers
As state becomes welfare state, now it is well settled that state shall not
immune from contempt liability and therefore it will be held liable for contempt of
court. In Mohammad Aslam v. Union of India the chief minister of Uttar Pradesh
Kalyan Singhhad given the undertaking to the court for protecting the Babri Masjid in
his personal capacity as well as in his official capacity. He was found guilty of wilfully
committing breach of undertaking and therefore the court sentenced him to one day
token imprisonment and fine of rupees 2000/-. The minister or officer of governments
also either in his official capacity or if there is personal element contributing to
contempt in his personal capacity, is liable in contempt.
CONTEMPT PROCEEDING – NATURE AND MAIN FEATURES
Contempt jurisdiction is a special jurisdiction. Summary procedure is a special
feature of the contempt proceeding. In England the common law has power to deal
summarily with contempt committed in their presence. However, in the early days the
distinction was made between the acts in and out of the presence of the judge. The
summary procedure was adopted in case of the contempt committed in presence of
court and not in the case committed outside the court, except the contempt by the
officer of the court. In India also the courts of record which are provided under article
229 of the constitution can deal with summary of all types of contempt. It was held in
Re Abdul Hassan Jauhar 1926, that there is uniformity in the judicial opinion that the
power to punish summarily for contempt is not a creature of statute but inherent
incident of every court of record i.e. it is a power available to every court of record
because being court of record. The high court and federal court were recognized as
courts of records even under the government of Indian Act, 1935. The existing
27
constitution of India contents specific provision for recognizing the high court and
Supreme Court as court of record. Article 129 provides that the Supreme Court shall
be court of record and shall have all the powers including the power to punish for
contempt itself. Similarly article 215 provides that every high court shall have power
which includes power to punish for contempt of itself and such high court considers
court of record as like article 129.
Contempt in face of subordinate court
Provisions of section 14 apply only to the contempt in face of Supreme Court
and high court. They do not apply to the subordinate court. In case of subordinate
court it can take immediate action under section 228, 345 and 346 of Indian penal code
and criminal procedure code. Section 345 of criminal procedure code lays down the
procedure or investigation and punishment for the offences specified in section
175,178, 179, 180 or 228 of Indian penal code. 20
Contempt outside court which is known as constructive contempt
Section 15 of the act deals with criminal contempt other than those covered by
section14. Section 15 of contempt of court act, 1991 read as cognizance of criminal
contempt in other cases. In case of criminal contempt other than referred under section
14 the Supreme Court or high court maintain action on its own or motion made by a.
Advocate general b. Any other person with the comment in writing of advocate
general c. In relation to any high court of the union territory of Delhi, such law officer
as the central government may specify in the official gazette or any other person on
behalf of such law officer.
CASE LAWS RELATING TO CONTEMPT OF COURT
Case No: Criminal Appeal No(s). 1108 of 2002)
Roy Fernandes Appellant(s) versus State of Goa & Others
Respondent(s)Date of Decision(mm/dd/yy): 2/1/2012.
Judge(s): Honble Mr. Justice Asok Kumar Ganguly and Honble Mr. Justice
[Link].
Subject Index: Indian Penal Code, 1860 — sections 143m 18, 323, 325 and 302
r/wsection 149 — conviction and sentence of the appellant under — appeal against —
28
the incident took place on account of a sudden dispute arising out of the proposed
fencing of the Chapel property which act was seen as an obstruction to the use of the
passage/pathway — whether the commission of murder by a member of an unlawful
assembly that does not have murder as its common object would attract the provisions
of Section 149 IPC — whether the appellant as a member of the unlawful assembly
knew that the murder of the deceased was also a likely event in prosecution of the
object of preventing him from putting up the fence —whether the sudden action of one
of the members of the unlawful assembly constitutes an act in prosecution of the
common object of the unlawful assembly and whether the members of the unlawful
assembly knew that such an offence was likely to be committed by any member of the
assembly — to consider — evidence on record proved that even when commission of
murder was not the common object of the accused persons, they certainly had come to
the spot with a view to overawe and prevent the deceased by use of criminal force
from putting up the fence in question. However, no evidence to show that the appellant
knew that in prosecution of the common object of preventing the putting up of the
fence around the Chapel the members of the assembly or any one of them was likely to
commit the murder of the deceased — the conviction of the appellant for offences
punishable under Sections 323 and 325 of the IPC affirmed and the appellants
sentenced to the period of imprisonment already undergone by him while, his
conviction under section 302 r/w section 149 of IPC set aside — appeal disposed —
sentence modified.
(Case No: Criminal Appeal No(s). 263 of 2012 with Crl. A.
Nos.264,265,266,267,268,269,270,271,272,273,274,275-294,295-303 of 2012) JIK
Industries Limited & Others Appellant(s) versus Amarlal V. Jumani andAnother
Respondent
(s)Date of Decision(mm/dd/yy): 2/1/2012.
Judge(s): Honble Mr. Justice Asok Kumar Ganguly and Honble Mr. Justice
JagdishSingh Khehar.
Subject Index: Negotiable Instruments Act, 1881 — section 138 r/w section
141 —processes issued for the commission of the offences under — several Criminal
Writ Petitions filed challenging the processes — the High Court after dismissing the
writ petitions held that sanction of a scheme under Section 391 of the Companies
Act,1956 does not amount to compounding of an offence under Section 138 read with
Section 141 of the N.I. Act — hence, the appeals — a scheme under Section 391 of
29
the Companies Act does not have the effect of creating new debt. Therefore, the
offence which has already been committed prior to the scheme does not get
automatically compounded only as a result of the said scheme — the Supreme Court
held that Section 147 of the N.I. Act must be reasonably construed to mean that as a
result of the said Section the offences under N.I. Act are made compoundable, but the
main principle of such compounding, namely, the consent of the person aggrieved or
the person injured or the complainant cannot be wished away nor can the same be
substituted by virtue of Section 147 of N.I. Act — impugned judgment of the High
Court affirmed — appeals dismissed.
(Case No: Civil Appeal No(s). 1191 of 2012)Joshna Gouda Appellant(s)
versus Brundaban Gouda & Another Responden
t(s)Date of Decision(mm/dd/yy): 1/31/2012.
Judge(s): Honble Mr. Justice Altamas Kabir and Honble Mr. Justice J.
Chelameswar.
Subject Index: Gram Panchayat Act, 1964 — section 31 r/w section 34 —
election petition under — on the ground that the appellant was not eligible to contest
the election in view of Section 11(b) of the Act which declares that no member of
`Gram Sasan shall be eligible to contest for the post of Sarpanch if he has not attained
the age of 21 years — allowed — hence, the appeal — the Supreme Court held that
the burden to proof the fact that the appellant was born on 20.6.1986 and thus, he was
not eligible to contest the election on the ground that the appellant was not 21 years of
age. on the relevant date rests squarely on the first respondent and since the first
respondent failed to discharge the burden cast upon him, the election petition mustfail
— impugned judgment under appeal set aside — appeal allowed.
(Case No: Civil Appeal No(s). 1193 of 2012) Dr. Subramanian Swamy
Appellant(s) versus Dr. Manmohan Singh & AnotherRespondent(s)
Date of Decision(mm/dd/yy): 1/31/2012.
Judge(s): Honble Mr. Justice G.S. Singhvi and Honble Mr. Justice Asok
Kumar Ganguly.
Subject Index: Prevention of Corruption Act, 1988 — whether a complaint can
be filed by a citizen for prosecuting a public servant for an offence under the
Prevention of Corruption Act, 1988 — whether the High Court was justified in
refusing to entertain the writ petition filed by the appellant — to consider — illegal
grant of licences at the behest of Mr. A. Raja - respondent No. 2 — the appellant filed
30
Civil Writ Petition for issue of a mandamus to respondent No.1 to pass an order for
grant of sanction for prosecution of respondent No. 2 — the High Court dismissed the
petition holding that when the matter is being investigated by the CBI, and the
investigation is in progress, it would not be in fitness of things to issue a mandamus to
the first respondent to take a decision on the application of the petitioner — hence, the
appeal— no provision either in the 1988 Act or the Code of Criminal Procedure, 1973
which bars a citizen from filing a complaint for prosecution of a public servant who is
alleged to have committed an offence — the Supreme Court held that while
considering the issue regarding grant or refusal of sanction, the only thing which the
Competent Authority is required to see is whether the material placed by the
complainant or the investigating agency prima facie discloses commission of an
offence — the material placed on record does not show that the CBI had registered a
case or started investigation at the instance of respondent No.1. Even though the
appellant repeatedly wrote letters to respondent No.1 highlighting the seriousness of
the allegations and supplied the facts and documents which could be made basis for
grant of sanction to prosecute respondent No.2, the concerned officers in the PMO
kept the matter pending and then took the shelter of the fact that the CBI had
registered the case and the investigation was pending — impugned order set aside
however, keeping in view the fact that the Court of Special Judge, CBI already took
Cognizance of the offences allegedly committed by respondent No.2 under the
1988Act, no other direction issued — appeal allowed.
31
The Body Or Authority Empowered To Punish For Professional Or
Other Misconduct
1. State Bar Council And Its Disciplinary Committee Organization-
Section 35 of the Advocates Act makes it clear that on receipt of a complaint or
otherwise a State Bar Council has reason to believe that any advocate on its role has
been guilty of professional or other misconduct, it shall refer the case for its disposal
to disciplinary committee14. It is one of the functions of the State Bar Council to
entertain and determine the cases of misconduct against the advocate on its roll15.
Section 9 of the Act requires the Bar Council to constitute one or more disciplinary
committees16. Each of such committee is required to consist of three persons of whom
two shall be persons elected by the council from amongst its members and other shall
be a person co-opted by the council from amongst its member advocates who possess
the qualifications specified in the provisions to sub- section (2) of section 3 and who
are not members of council and the senior most advocate amongst the members of the
disciplinary committee shall be the chairman thereof.
Procedure- Section 35 provides that after giving the advocate concerned and the
Advocate- General an opportunity of being heard, the disciplinary committee of a
State Bar Council may make any of the following orders-:
1. dismiss the complaint or where the proceedings were initiated at the instance of
the State Bar Council, direct that the proceedings be filed;
2. reprimand the advocate;
3. suspend the advocate from practice for such period as it may deem fit;
4. remove the name of the advocate from the State roll of advocates17.
It is that when the advocate is suspended from the practice under the aforesaid
clause (3), he shall, during the period of suspension, be debarred from practicing in
any Court or before any authority or person in India18.
2. Bar Council Of India And Its Disciplinary Committee
Organization- Section 36 of the Advocates Act empowers the Bar Council of India to
refer, in certain circumstances, the case for disposal to its disciplinary committee.
Section 9 provides that the a Bar Council shall constitute one or more disciplinary
32
committees, each of which shall consist of three persons of whom two shall be persons
elected by the Council from amongst its members and the other shall be a person
elected by the council amongst advocates who possess the qualifications specified in
the provision to sub-section (2) of Section 3 and who are not members of the council
and the senior most advocate amongst the members of disciplinary committee shall be
the chairman thereof.
Powers-: Section 42 deals with the powers of the disciplinary committee of a
Bar Council. The provisions of Section 42 have already been stated in context of
powers of the disciplinary committee of the State Bar Council. Section 42-A makes it
clear that the provisions of Section 42 shall, so far as may be, apply in relation to the
disciplinary committee of the Bar Council of India.
Section 43 makes it clear that the disciplinary committee of the Bar Council of
India may make such order as to the costs of any proceedings before it as it may drew
fit and any such order shall be executable as if it were an order of the Supreme Court.
33
Advocacy
Advocacy is speaking up for, or acting on behalf of, yourself or another person.
The other person is often receiving a service from a statutory or voluntary
organization and is referred to throughout this handbook as the service user.
Advocacy can help service users to:
• Make clear their own views and wishes;
• Express and present their views effectively and faithfully;
• Obtaining independent advice and accurate information;
• Negotiate and resolve of conflict.
Some people aren’t clear about of their rights as citizens, or have difficulty in
fully understanding these rights. Others may find it hard to speak up for themselves.
Advocacy can enable people to take more responsibility and control for
thedecisions which affect their lives.
ADVOCACY MODELS
• Self advocacy
• citizen advocacy.
• crisis advocacy
• peer advocacy.
• professional advocacy
• collective advocacy
34
Cases of Misconduct
[Link] v. The Bar Council of India
In this case the Appellant was appointed as city Government pleader in all the
civil Courts other than the High Court’s constituted at Madras, in October, 1978.
The Commissioner and Secretary of Tamil Nadu filed a complaint against the
appellant before the Disciplinary Committee of the Bar Council of Tamil Nadu in
respect of suit No. 400/1978 on the file of the City Civil Court at Madras. The Govt.
Pleader was instructed to appear on behalf of the State Govt. in that case. The memo
of appearance was filed by the previous Govt. Pleader. However, when the appellant
was appointed Govt. Pleader, a fresh memo of parties was not filed on his behalf nor
the papers were put before him. As a result, the suit was decreed exparte against the
State.
In another case pertaining the appellant, a suit was filed by the Tranvancore
Textiles Ltd against the State of Tamil Nadu relating to the lease of land forming part
of a channel. Plaintiff had prayed for the declaration that the annual rent of Rs.
3609.66 as also the Municipal Taxes levied were illegal. Plaintiff had also made a
prayer of refund of Rs. 25,575.74. The complaint alleged that as a result of the gross
negligence on the part of the appellant the Govt. of Tamil Nadu had suffered the
sustainable loss.
The appellant contended that since the office staff had not put up the papers of
this case before him, it was through inadvertence that the suit was decreed exparte.
The Bar Council of India had noted that at time when an application for setting aside
the order was filed the applicant must have known the awaiting of the case and the
serious consequences that could follow, if the order for the payment for payment of
costs were not complied with.
In another complaint it was alleged that the appellant did not attend to the case
and then the exparte decree was passed. This complaint was in respect of a suit filed
by an employee of the directorate of Education of State of Tamil Nadu challenging its
date of birth. Summons was forwarded to the appellant along with a letter informing
him the date of hearing. There was an endorsement made by the office of Govt.
pleader on that letter. Another letter was received by the Govt. pleader on which an
35
endorsement was made “Remarks/ written statement to be prepared”. However, no
memorandum for appearance was filed in that suit on behalf of the state of Tamil
Nadu and an exparte decree was passed in that suit. In this respect the appellant
contended that the office had not put up these papers before him and therefore there
had been lapse in attending the case. The Bar Council of India accepted that there was
no deliberate lapse on the part of the appellant.
However, he was held guilty of constructive negligence by the Bar Council of
India and it reprimanded him for time lapse.
In appeal, the Supreme Court held that there were no findings of any mala fides
on the part of the appellant or any deliberate inaction on his part in not attending to the
two cases. There was failure on his part to discharge his duties towards his client but it
was not deliberate on account of heavy pressure of work and lack of diligence on the
part of his staff. The negligence on his part was without moral turpitude or
delinquency and therefore he was not held guilty of professional misconduct. The
Supreme Court observed that:
“Whether negligence will amount to professional misconduct will depend upon
the facts of each case. Gross negligence in the discharge of duties partakes of shades
of delinquency and would undoubtedly amount to professional misconduct. But
negligence without moral turpitude or delinquency may not amount to professional
misconduct.”
The Supreme Court however observed that the appellant was rightly held guilty
of negligence, but in the absence of any moral turpitude or delinquency on his part, the
findings of the bar council of India that whose conduct in the facts and the
circumstances of the case amounted to professional misconduct.
Hikmat Ali Khan v. Ishwar Prasad Arya and OthersS:
Ishwar Prasad Arya was an advocate practicing at Badaun in U.P. he assaulted
his opponent, Radhey Shyam in the court-room of Munsif as Badaun with a knife.
After investigation he was prosecuted for offences under section 307 IPC and section
25 of the Arms Act and he was sentenced for three years imprisonment. But he
remained free on a fraudulent letter said to have come from the governor spending the
conviction. The III Additional District and Sessions Judge, Badaun sent a complaint
36
containing these facts to the Chairman, Bar Council of U.P. The disciplinary
committee of U.P Bar Council debarred him from practicing for a period of two years.
The advocate appealed to the Bar Council of India which set aside the order of the Bar
Council of U.P.
The appellant Himat Ali Khan complained against the advocate and prayed for
fresh inquiry. In the said proceedings, the advocate appeared and filed his return
statement but thereafter he did not appear. Hence, the Bar Council of U.P proceeded
ex-parte against him and the disciplinary committee of the state Bar Council of U.P
debarred for a period of three years. The advocate again appealed to the Bar Council
of India and it had set aside the punishment. Then Himat Ali filed appeal to the
Supreme Court. The Supreme Court held that his conduct was such that his name
should be removed from the state rule of advocates as he was found guilty of an
offence attempting to commit murder and convicted for it and as he was unworthy of
remaining in the profession.
37
Critical Analysis
Professional ethics is developed by way of practices and traditions. The
Advocates Act 1961, is the prime parliamentary legislation which governs the Bar
activities and works for enforcement of professional ethics by providing punishment to
the advocates who has failed to perform his duties. This act has been amended time
and again to cope up with the emerging trends and problems. The Bar Council of India
has also framed rules for conduct for the lawyers but till date they have not been able
to achieve their aim. This increase in the delinquencies among the lawyers is a threat
for administration of justice which will hamper the orderly functioning of the society.
The learned, dignified, grand and service oriented profession is being converted into
commercial enterprise, money-making business and trade-unionism is raising its ugly
faces by boycotting the courts and strikes.
The Advocates Act 1961, created all India Bar with a unified structure
providing with a Constitution of Bar Council to the State and Central Bar Council with
a view to ensure dignity and proper functioning of the courts. The Bar Council till date
has not been able to achieve discipline among the advocates through the disciplinary
committees. This deviance pattern and its handling finds a tendency of low-complaint
filing by clients due to ignorance of disciplinary procedure on part of the clients or
duress or inability to hire lawyers to file a complaint. Deviance on the part of
advocates may relate to clients, abuse of judicial process, disrespect of court and
disciplinary action following conviction of lawyers for criminal offences. In case of
Harish Chandra Tiwari v. Baiju22, the advocate who had misappropriated money of
the poor client, falsely claimed to return that money and also filed fraudulent affidavit.
The disciplinary committee of the Bar Council of India awarded the punishment of
three years suspension from practice. In appeal the Supreme Court depreciated the
attitude of the Bar Council of India to treat a very grave professional misconduct in a
comparatively lighter vein.
Secondly, in cases of misuse of judicial process, lawyers have not been
punished proportionate to their guilt. In a case an advocate had identified one person
as deceased who encashed a bond of the value of Rs.4350/- and legal representatives
of the deceased were deprived of their rightful claim. The Bar Council of India,
38
reduced his suspension from three years to one year in view of the fact that “the
appellant is a young person” with a large family to support.
Thus, the advocates act, 1961, should be suitably amended by restructuring
section 34 of the act so as to empower the Supreme Court also to make rules as to the
persons practicing before it.
The code of professional ethics were made with an assumption of legal
profession being the learned profession and best equipped to articulate code of ethics.
The working of the code has many limitations. Firstly, although the
prohibitions contained in the code are couched in mandatory terms, with the use of
“shall not” but it is not clear whether violation of each and every rule is actionable. Dr.
Bakshi has rightly observed that some rules does not seem to create obligations,
violations of which will create ground for disciplinary proceedings. For example, rule
46 of the code, describes free legal assistance by every advocate to the indignant and
oppressed as one of the highest obligations, which an advocate owes to the society.
This obligation is of the nature of directive principle of state policy. This rule remains
more or less as unenforceable.
Secondly, the code has not been able to severe connection between the legal
professional and economy. An advocate may be a sleeping partner in a firm, director
or a chair person of the company, inheritor of family business.
Thirdly. The code does not speak for the fixation of fee for the lawyers and
thereby places no obligation on lawyers not to charge high fee.
39
Conclusion
To conclude the above, the professional ethics are also termed as the duties to
be followed by the Advocate, these are the morals and the basic courtesy which every
person in this profession should know. These are not only the duties to be performed
because the Bar Council has made the rule, but these are the basic manners which one
should incorporate within them. These are the duties towards the Court, Client,
Colleague or Opponent. The performance of the duty by the Advocate defines the
determination, dedication and loyalty towards the profession. The profession of law is
honourable and it is expected from every person who are in this profession to be
honest and work in upright manner. And any deviation in their performance of duty
should be taken seriously. An Advocate in this profession has many obligations
towards court, client, judge, opponent, colleagues, etc. The Advocate who does not
work with sincerity, who does not follow the rules of conduct is said to have
misconducted in his profession. He is guilty of the misconduct of duty for which he is
punished. In order to avoid misconduct one should work in proper and appropriate
manner not for the sake of getting punished but for being loyal towards them, their
profession. 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.
40
References:
• Myneni Dr. S.R., Professional Ethics, Accountancy for Lawyers and Bench-
Bar Relation, Asia Law House, Hyderabad.
• Sirohi J.P.S, Professional Ethics, Accountancy for Lawyers& Bench Bar
Relation, Allahabad Law Agency.
• Prasad Prof. Anirudh, Principles Of The Ethics Of Legal profession in India,
University Book House, Rajasthan.
• Rai Dr. Kailash, Legal Ethics, Central Law Publications, Allahabad
• Deb Ashok Kumar, Indian Bar Review, The Bar Council of India Trust, Vol.
31
• Hugh E. wills, Legal Ethics, International Journal of Ethcis, Vol. 43, No. 3, pp.
269-278
• [Link]
• [Link] 10/10/2011/07:18,
• [Link]
• [Link],
• [Link]
[Link]
• [Link]
41
