Professional ethics is a code of conduct which lawyers have to observe primarily with public at large, with their associates with their clients and in the court during the course of their profession and in the court during the proceedings. These ethics are legal ethics which lawyers have to follow in the legal profession.
What is Ethics?
Ethics are principles and values, which together with rules of conduct and laws, regulate a profession, such as the legal profession. Ethical standards in legal ethics include:
- Independence, honesty and integrity.
- The lawyer and client relationship.
- The lawyer as an advocate
- A lawyer’s duties to persons other than a client.
- A lawyer’s duties to other lawyers.
What is Professional Ethics?
The professional ethics is a code of conduct is necessary for maintaining dignity of the profession. It is a written code of conduct for lawyers. It is a set of rules which determine the professional conduct of lawyers.
Chief Justice Marshall of American Supreme Court has also echoed on Legal Ethics in the same spirit, as follows:
“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 the highest standard of justice, to establish honourable and fair dealings of the Counsel with his clients, opponent and witnesses; to establish a spirit of brotherhood in the Bar itself; and to secure that lawyer discharge their responsibilities to the community generally.”
Edmund Burke has combined the element of learning and nobility in the legal profession. He states:
“The law is one of the first and noblest of human sciences, a science, which does more to quicken and invigorate the understanding, than all the parts of learning put together.”
Lawyer’s duty to the Court
Under section 1 of the Bar Council of India Rules provide for advocate’s duties to the court.
1. An advocate should present his case with dignity and self-respect.
2. An advocate should maintain respectful attitude towards the courts.
3. An advocate should not influence the decision of the court by an illegal or improper means.
4. An advocate should appear in proper dress in the court.
5. An advocate should not wear bands or gown in public places other than courts.
6. An advocate should not act in any matter in which he is himself pecuniarily interested.
In D.C Saxena v. Chief Justice of India (1), the Supreme court has held that a party or counsel appearing before the court should not use in his pleadings, the scurrilous allegations against the judge or the court in order to maintain the dignity and decorum of the court, otherwise, the reputation and dignity of the judge would disappear and the independence of the judiciary would be badly affected.
Lawyer’s duty to the client
Under section 2 of the Bar Council of India Rules provide the duties of advocate toward their clients.
1. An advocate behaviour towards his client should be kind and polite.
2. An advocate should never manipulate a client and give proper advice to the client.
3. An advocate should try his best to get justice for his client.
4. An advocate appearing for the prosecution in a criminal trial shall so conduct the prosecution that it does not lead to conviction of the innocent.
5. It is the duty of an advocate fearlessly to uphold the interests of his client by all the fair and honourable means.
6. An advocate should not come close with the opposite party.
7. An advocate should not give any improper advice to his client that will affect negatively.
8. An advocate should keep accounts of the clients’ money entrusted to him.
9. Proper accounting of everything is important in the case and for the client.
10. An advocate should not disclose any weaknesses of his client and should not reveal any material or document to the opposite party.
11. An advocate should not accept any bribe, gifts, and fees from the opposition party.
In State of Orissa v. Nalini Kanta Muduli (2), the Supreme Court has held that as the members of Bar are officers of the court, that have bounden duty to assist the court, and not to mislead it. The court further held that citing the judgement of account which has been over-ruled by a larger bench of High Court and Supreme Court without disclosing the fact that it has been over-ruled, is a matter of serious concern, and amounts to professional misconduct.
The lawyer or and advocate has fiduciary relationship with his client. It means an advocate protecting his client in the litigation. He protect the interest of his client in the litigation and in the proceeding. The relationship of an advocate with his client is of contractual nature still it involves the highest order of trust and confidence. It is essentially a relationship of faith and fidelity.
In Bar Council of India v. Kurapati Satya Narayana (3), the Supreme Court has held that delinquent advocate’s failure to pay to the client the decretal money which he had received on behalf of his client, amounted to breach of trust and grave professional misconduct. Bar council of India had erred, in taking the view that the delinquent had utilised the money for his treatment and had no intension and had no intension to take the money. Hence, punishment of removal of his name from State Roll was imposed, which was appropriate.
Lawyer’s duty to the Opponent
Section 3 of Bar Council of India rules provide for the duties of an advocate to the opponent party.
1. An advocate should not negotiations with party directly.
2. An advocate should do his best to carry out all legitimate promises made to the opposite party.
3. An advocate should be fair to his opponent.
4. An advocate should give due importance to his opponent Advocate and never mislead the facts of the case to the opponent Advocate.
In Chandra Sekhar Soni v. Bar Council of Rajasthan & others (4), The Supreme Court held that an advocate may change side if express consent is given by all concerned after a full disclosure of facts. But it is not in accordance with professional etiquette for an advocate while retaining the brief of one party to accept the brief of another party.
Lawyer’s duty to Colleagues
Section 4 of the Bar Council of India rules provide for the duties of an advocate’s to the colleagues.
1. An advocate cannot appear in a case where a memo is filed by the name of the other advocate. If he having the consent then only he can appear.
2. An advocate sign-board or name-plate should be of reasonable size.
3. An advocate has keep goodwill among his fellow advocates.
4. An advocate should not promote unauthorized practice.
Punishment for misconduct of lawyers
Professional Misconduct in the simple sense means improper conduct. It means where an advocate attempt misconduct in the case, towards his clients, and in the court. Where an advocate do any illegal act with evil or selfish intension in the case, towards his clients is a professional misconduct. It simply means where an advocate commit the violation of professional ethics.
In State of Punjab v. Ram Singh (5), The Supreme Court held that the term ‘misconduct’ may involve –
- moral turpitude
- improper or wrongful behaviour
- unlawful behaviour
- a forbidden act
- carelessness or negligence in performance of duty
- or the act complained of bears forbidden quality or character
In Advocates Act, section 35 is deal with Punishment of advocates for misconduct-
(1) Where on receipt of a 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 of its disciplinary committee.
(1A) [ (Note:- Sub-section (1-A) ins. by Act 60 of 1973, sec.24) The State Bar Council may, either of its own motion or on application made to it by any person interested, withdraw a proceeding pending before its disciplinary committee and direct the inquiry to be made by any other disciplinary committee of that State Bar Council.]
(2) The disciplinary committee of a State Bar Council (Note: – Certain words omitted by Act 60 of 1973, sec.24) shall fix a date for the hearing of the case a notice thereof to be given to the advocate concerned and to the Advocate General of the State.
(3) The disciplinary committee of a State Bar Council after giving the advocate concerned and the Advocate -General an opportunity of being heard, may make any of the following orders, namely-
a. Dismiss the complaint or, where the proceedings were initiated at the instance of the State Bar Council, direct that the proceedings be filed.
b. Reprimand the advocate
c. Suspend the advocate from practice for such periods as it may deem fit.
d. Remove the name of the advocate from the State roll of advocates
(4) Where an advocate is suspended from practice under clause (c) of sub section (3) he shall, during the period of suspension, be debarred from practicing in any court or before any authority or person in India.
(5) Where any notice is issued to the Advocate-General under sub-section (2) the Advocate -General may appear before the disciplinary committee of the State Bar Council either in person or through any advocate appearing on his behalf.
It is clear with these provisions that, if an advocate commits any professional misconduct, he may be punished under this provision.
In the matter of Mahbub Ali Khan (6), it was held by Andhra Pradesh High Court that the term, “misconduct” usually implies an act done wilfully with a wrong intension and as applied to professional people, it includes unprofessional acts even though such acts are not intentionally wrongful.
In Shambhu Ram Yadav v. Hanuman Das Khatry (7) the Supreme Court made it clear that writing a letter to his client to send money to bribe the Judge is a serious misconduct. It also held that legal profession is not a trade or business.
In P.D Gupta v. Ram Murti (8), the advocate purchased property which was subject of litigation from his client at a throw away price, and sold the said property to a third party. He made profits and created more complications in the pending case. The Supreme Court declared him guilty of professional misconduct. The court further held that a lawyer owes duty to be fair not only to his client but to the court as well as to the opposite party in the conduct of his case.
In Ex-Captain Harish Uppal v. Union of India and Another (9), the Supreme Court has held that lawyers have no rights to go on strike or even token strike or to go for a call for boycott. Nor can they obtain from courts in pursuance of a call for strike or boycott while holding vakalatnama on behalf of clients.
Conclusion
Advocacy is a noble and honourable profession. As lawyer, it is a duty of a lawyer or an advocate to be fair with his Clients, with is fellow partners, and with the Courts. He must follow all the professional ethics in his profession. He must follow the code of conduct in his profession for the benefits of himself, for his clients and for the benefit of the other people. He must be fair, genuine, honest, trustworthy, unbiased towards his profession, towards his clients or towards the Courts. Not only accused is punished for his wrongful act. In the legal profession, if an advocate commits any wrong act or any misconduct in his profession, he will also be punished by the court.
Reference
1. AIR 1987 A.P 254.
2. AIR 2004 SC 283
3. (2003) 1 SSC102
4. AIR 1983 SC 1012
5. AIR 1992 SC 2188
6. AIR 1958 A.P. 116
7. AIR 2001 SC 2509
8. AIR 1998 SC 283
9. (2003) 2 SCC 45.
10.Professional Ethics, Accountancy for Lawyers and Bar Bench Relations by Dr. S.P Gupta
11.The Advocates Act,1961
12.The Bar Council of India rules
About the author –
This article is written by advocate Sherry Singh, Completed LL.B from PDM University, Bahadurgarh, Haryana
