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Conduct/Duties of Advocate

This paper mainly focuses on conduct of advocates. Every advocate has rights and duties. This paper will discuss about the duties of advocate towards various parties such as client, opponent, colleagues, public etc. Professional Ethics is a subject which has to be followed by everyone irrespective of their profession and it is not just limited to legal profession. In legal profession, it is all about the behaviour of a person at the time of taking decisions or making judgements which are not biased.

There are Bar Council Rules and Advocate's Act which are to be followed by every member who is working as a legal professional. If there is any notice of misconduct or breach of rules then that particular advocate has to face disciplinary consequences. It also deals with the main objective of the legal profession, the canons of professional ethics to be pursued by a lawyer in the discharge of his professional duties. This paper further focuses on provisions and case laws which deal with the duties/conduct of advocate, Why is it important to follow ethical principles and the relationship between advocate and client.

Objective Of The Study:
The main objective of the study is to discuss the conduct and duties of advocate. What is the relationship between advocates and other persons such as clients, colleagues, opponent public etc. why ethical principles are to be followed by every person in the legal profession and their importance Also to study about various examples, case laws, provisions or rules and regulations related to professional ethics and conduct of advocates.

Research Methodology:
The methodology adopted is largely analytical and descriptive. Reliance has been placed largely on secondary sources like books and articles. The lectures and classroom discussion have been rich with valuable pointers and gave direction to the research.

Research Questions:
  • What is relationship between an advocate and his client?
  • An Advocate advances money to a client for the purpose of a litigation in which he is engaged. Is it considered as a professional misconduct?
  • What are the rules to be observed by an advocate during the cross - examination?
  • Whether the bar council of India can review an order passed by the disciplinary committee? If has, under what circumstances?
  • Can an advocate appear for a party in a case in which the presiding judge of that court is his wife?

Mode Of Citation:
A uniform system of citation is followed throughout the contents.

Introduction
The profession of advocacy had its seed in Europe as well as in the east. Since 12th century, this profession came into existence in England, in the reign of Henry – II. In 1883 bar committee representing the barristers was set up in England for the first time. Before it was known as Benchers. Supreme Court of Calcutta was established and allowed legal practicing according to the Regulating Act, 1773.

Later in the year of 1793 the Bengal Regulation Act, 1793 was formed and the main objective of which was to regularise and to control both recruitment and conduct of legal practitioners in the company's courts. In those days, there were different kinds of legal practitioners i.e., Barristers, Mukhtars, Vakils etc. After 1850, the education in the graduation level was started, Act of 1853 stopped recruitment of pleaders, mukhtars who did not possess graduation, as the number of graduates was sufficient.

Thereafter, “The Legal Practitioners Act, 1879” was enacted, which enlarged the rights of advocates, vakils and attorneys of High Courts. In 1923, the British government appointed an Indian Bar Committee. This committee has made several recommendations for the establishment of Indian bar and to remove several defects in legal professions.

As a result of the recommendations of Indian Bar Committee, the new act named The Bar Councils Act, 1926 has been passed. But it adopted only some of the recommendations of the committee. It did not establish an all India Bar Council. It did not extend to entire India. In the same year another act names “The Legal Practitioners Act, 1879” was passed regulating the rights and liabilities of legal practitioners. But yet again this act also had flaws[1].

After Independence, the Indian Government appointed “All India Bar Committee” in the year of 1953. This committee has observed various suggestions and after thorough examination it has made some recommendations to the Government of India. As a result of the report submitted by “All India Bar Committee” Parliament has passed “The Advocates Act, 1961”. Now Professional ethics is governed by “The Advocates Act, 1961” and “Bar Council of India”.

The Act provides for the constitution of Bar Councils and All India Bar for regularization of legal profession, whereas Bar Council of India is an autonomous and independent body. It is a legal person and body corporate. It shall have perpetual succession and a common seal with power to acquire and hold property, both movable and immovable and to contract, and may by the name by which it is known, sue and be sued. Section 7 of the Advocate's Act, 1961 states the functions of Bar Council of India. The first and foremost function is that it has to lay down the professional conduct and etiquette for advocates throughout India[2].

Conduct/ Duties Of Advocate:

Advocacy is a noble profession. It cannot be compared with any other profession like trade, business etc. because it is a part and parcel of judiciary and administration of justice. Bar and bench are two eyes of the ‘Justice'. There are judicial ethics and etiquette for judges. There are professional ethics and etiquette for advocates. Every advocate should follow them in his profession. An advocate is also a key person in conducting a proceeding before the court. While conducting a proceeding the advocate should function intelligently. There are several functions entrusted to the advocate. There are five most important functions. They are[3]:
  • Briefing
  • Counseling
  • Pleadings, drafting and Conveyancing
  • Examination, Cross – examination, chief examination of witness and
  • Arguments.
Beside them, an advocate has to do several functions which are necessary in conducting proceedings. While carrying out these functions an advocate must act prudently, legally and cautiously. There are several ethics and etiquette controlling the conduct of the advocates. These ethics and etiquette impose certain duties upon the advocates. Ethics and etiquette means ethics are morals, a moral philosophy or moral science. It is the first stage of society.

Etiquette is the second stage, which formulates the rules of behaviour standard in polite society. Humans have experienced ethics in their life. They are inherent in every religion. Along with the civilization of humans there were Ethics. Every religion preached morals and ethics. Etiquette is restricted to particular kind of profession. It is nothing but regularization of ethics. In simple words ethics are bundle of habits whereas etiquette is bundle of rules of ethics. These rules have statutory force[4].

Every advocate must follow these duties because they are part and parcel of the professional ethics and etiquette. Whoever fails to oblige them, such an advocate is said to have committed professional misconduct and be punished accordingly.

As stated above, the important duties that have to be followed by the advocate are[5]:
  1. Advocate's Duty to the Court
  2. Advocate's Duty to the Client
  3. Advocate's Duty to the Opponent Advocate.
  4. Advocate's Duty to the Cross Examination
  5. Advocate's Duty to the Colleagues

Advocate's Duty To The Court:

An advocate is considered as an officer of the court, honoured member of the community, and a gentleman, thinking that to become a member of the bar he has to be lawful and moral not only in his professional capacity but also in his non – professional capacity. An advocate has to courageously support the interest of his client and also have to follow the principles of ethics and etiquette both in correspondence. The bar council of India rules, State Bar Council rules mention certain canons of conduct and etiquette as general guides. Section I of Chapter – II of Part – IV OF THE Bar Council of India Rules explaining the rules pertaining to “Advocate's Duty to the Court”.

Following Are The Duties Of Advocate Towards To Court[6]:

  1. An advocate while presenting his case should conduct himself with dignity and self respect
     
  2. Respectful attitude must be maintained by the advocate. He has to keep in mind the dignity of the judge.
     
  3. An advocate should not, by any improper means should influence the decision given by the court.
     
  4. It is the duty of the advocate to prevent his client from resorting to unfair practices and also the advocate himself should not do any of such acts.
     
  5. Dress code has to be maintained by the advocate while appearing before the court.
     
  6. An advocate should not take up any case of his family members and relatives.
     
  7. No bands or gowns had to be worn by the advocate in the public places. It is only limited to the court premises.
     
  8. An advocate cannot be as a surety for his client.
     
  9. It is the duty of the advocate to cooperate with the bench in the court.
     
  10. It is the duty of the advocate to perform his functions in such a manner that due to his acts the honor, dignity and integrity of the courts shall not be affected.
     
  11. An advocate should not laugh or speak loudly in the court room especially when the proceedings are going on.
     
  12. When an advocate accepts a brief, he should attend all adjournments properly. If he has any other work in another court, he should first obtain the permission from the court concerned. Particularly in criminal cases, it is the first and foremost duty of an advocate to attend.
     
  13. While the case is going on, the advocate cannot leave the court without court's permission and without putting another man in charge, preferably his colleague or junior or friend advocate.

The Bar Council can review the order given by the disciplinary committee under Section 44 of the Advocate's Act, 1961. V.C. Rangadurai vs D. Gopalan, In this case V. C. Rangadurai was an advocate and Devasenapathy was an old deaf man, aged 70 years and Smt. D. Kamalammal was also aged. They had given two promissory notes to rangadurai and also paid the fees as was asked to the advocate. Nevertheless, the advocate did not file the case in time. The limitation was over.

After a long time of wandering around the office of the advocate, the old man came to know that the advocate deceived him by not filing the cases within the time even after receiving the fees. He filed a complaint before disciplinary committee of the Tamilnadu state bar council which after enquiry punished the advocate suspending him for 6 years[7].

On appeal, it was confirmed by the Bar council of India and also by Supreme Court. Rule 6 of Chapter II of Part- VI of the Bar Council Rules states that an advocate shall not appear, act, plead or practice before the court if any member is related to the advocate as father, son, wife etc. the main object is to avoid personal bias between an advocate and presiding officer related to such advocate. Due to natural love and affection, the judge may incline towards the advocate, thus to favour the client of the advocate related to him or her.

In case of Satyendra Nararain Singh and Others vs Ram Nath Singh and Others[8], wife is the judge and husband is the advocate. Court held that the advocate should not appear before his wife, who is the judge of the court. If he appears before the court, to which his wife is presiding officer, it becomes his professional misconduct. If he appears before the wife- judge. It is the duty of the judge to raise the objection. If she fails to object and accepts his appearance, then it becomes her judicial misconduct[9].

The advocate must always possess duty consciousness. The clients like the advocate, who devotes his entire time and energy to his clients. The duty conscious lawyer, once his engagement is final, sticks to the preparation of that case on facts and laws with such tenacity that he leaves no efforts from his side to win the case of his clients on merits by all legal means[10].

Advocate's Duty To The Client[11]:

Chapter – II of Part IV of Bar Council of India Rules (Rule 11 to 33) provides the provisions relating to advocate's duty to client. Advocate's profession is a noble and honorable profession in the society. It is a public service. But at the same time it should be kept in mind that it is not a bed of roses especially for the new entrants. An advocate has several duties to his clients. The clients generally prefer an advocate who is hard working.

They mostly trust on the workmanship of the advocate, whom they can easily reach and explain their difficulties. Most of the clients prefer an advocate who dedicates his entire time to the clients and especially who is polite with the clients. The duty- consciousness lawyer, once his engagement is final, sticks to the preparation of that case in facts and laws with such tenacity that he leaves no efforts from his side to win the case of his clients on merits by all legal means.

It is the duty of the lawyer to take up the particular file and has to start making preparation even if the client is present or not. Such preparation of the file has to take place with the views that are already shared by his clients. The duty of the advocate is to never shrikes from devoting time, not only in the interest of his client, but also to satisfy his own duty- conscious nature which singles him out from his profession. The relationship between the advocate and client is of two types. They are:
  1. Contractual Relationship: It basically arises and ends only till the period of contract exist. In India, the relationship between the advocate and his client arises primarily from contractual obligations. A client chooses an advocate for his case depending upon his professional success, with strong desire that he is the fit person to defend his cause. After hearing the cause, the advocate decides whether to take the case or not. If he wants to take up the case, he will offer the client with certain amount of fee.

    If the client agrees to pay the sum, the advocate takes up the case. Thus a matter of contract shall be reached between an advocate and a client. If a client fails to pay the remuneration, the advocate can sue him or has a right of lien on the documents of his client.

    In Kothi Jairam vs Vishwanath[12], the Supreme Court has held that an agreement made by his client to pay his lawyer according to the result of the case is against public policy. The Supreme Court observes that it is professional misconduct for an advocate to stipulate for or agree with his client to accept as his fee or remuneration as share of the property sued or other matter in litigation upon the successful issue thereof. In England, a lawyer cannot sue for his fee. If a lawyer behaves negligently, he can be sued for his negligence, in India whereas in England, he cannot be sued.
     
  2.  Fiduciary Relationship: Fiduciary relationship is the relationship which never ends. If a client approaches the advocate and discloses the confidential information of his life then this kind of information comes under fiduciary relationship which the advocate has to keep it as a secret and not disclose it all his life.

    An advocate shall not change the parties. Rule 33 of the bar council of India rules provides for the same. It is also professional ethics. For example, if there are two rival parties A and B. A approaches X- an advocate, and seeks his advice after explaining all the facts of the case, weaknesses and strengths. After obtaining his opinion, A gives his case to Z – another advocate. If B approaches X asking him to defend on his behalf, it is professional ethics of X to refuse the brief of B, being fully informed about the case by A.

    It is the duty of the advocate to give proper advice to his client. Rule 32 of the bar council of India provides that an advocate is not supposed to lend his money to his client for any kind of legal proceedings. But there is an explanation which says that and advocate cannot be pronounced as guilty if he does something that breaches the above said rule. It is more like an exception but given as explanation.

Advocate's Duty To The Opponent Advocate[13]:

An advocate and his opponent are like brothers in the profession but representing the different interests of different clients. Clients are not permanent they come with the case and leave, once the case is done but advocates adhere to the court and see each other or meet each other frequently in the court. If an advocate quarrels with another, they cannot face each other or work together happily. Their difference and grudge spoil the atmosphere. It also affects their clients. If it creeps to the court it spoils the administration of justice. In the court, advocate is not the decision maker, judge is the decision maker.

An advocate must always try to convince the court by the law and precedents. He must be in a position to defeat his opponent advocate by using law and precedents. For this purpose there must always healthy competition between an advocate and his opponent. Leaving this highway, if an advocate starts fighting with his opponent as an ordinary person by using scurrilous language, it does not help his carrier. Moreover it spoils his clients, and further degrades the court.

Advocates are the part and parcel of the administration of justice. They fight for justice. They struggle for the welfare and good of their clients. It does not mean that the advocate and the opponent advocate are enemies with each other. There is a controversy and discrimination on the issue but not between them. Their conflict ends as soon as they come out of the court premises. If they quarrel with each other like ordinary persons it affects the bar- bench relations. It may lead to the groups in the bar.

Finally it badly vitiates the peaceful atmosphere of the court. Every advocate has a right to cross examination, arguments, verification of documents etc. while doing so he shall not be interrupted unnecessarily. Like him, the opponent advocate shall enjoy the same right therefore, any advocate shall not interrupt his opponent in cross examination, arguments unnecessarily. Interruption of the opponent is improper. This destroys the decorum of the court. It obstructs the ideas of the opponent. If necessary, an advocate may raise any objection with the permission of judge. No advocate has the right to prevent a judge following the course of argument of the opposite advocate.

A dispute is submitted before a judge by two parties. Each advocate will definitely work hard to get the judgement in his favour but it is not possible to a judge to give the judgement in favour of both the parties. He will give his judgement to anyone of the parties based on the facts of the case. One party is defeated and another party will win the case. Therefore, each advocate must have a spirit of a sports man. All advocates are equal before the court.

An advocate should not have contacts and engagements with the opposite party especially on the issue which is pending before the court. If necessary, an advocate may contact his opposite party with the permission or with notice to his opposite advocate. An advocate should not be stubborn on the minor matters. For example, if the opponent advocate has asked the adjournment of a case on genuine grounds. In such case, an advocate should not prolong the matter and create nuisance before the court. It is the duty of advocate to not take advantage of temporary difficulties of the opponent advocate. The combating between them must be fair and in a legitimate manner. The duty of the advocate is to show proper courtesy to the opposite counsel.

Advocate's Duty During Cross Examination[14]:

According to Sec 138 of Indian Evidence Act, 1872 the examination of witness by adverse party is known as cross examination. It is the right of an advocate to cross-examine the opponent party and his witnesses. The object of cross examination is that if cross examination is conducted effectively and efficiently, it discovers the truth. When a fact is stated in examination- in- chief and there is no cross examination on that point naturally it leads to the inference that the other party accepts the truth of the statement.

Cross examination of witnesses is a procedural matter. Cross examination is mostly done according to the provisions of the Indian Evidence Act, Civil Procedure Code, Criminal Procedural Code and other provisions of the law. Besides these procedural matters; legal ethics are also concerned with what the advocate should do or should not do, while he is performing cross – examination. It has to be done with an objective to obtain the real facts from the witnesses and the opposite party.

While cross examining and advocate must not offend the religious or personal feelings of the opposite party. He should not mis-utilise the opportunity of cross examining. He has no right to disgrace and bully a witness by putting offensive questions. Questions which affect the integrity of a witness by making aggressive comments on his character, but are not otherwise relevant to the actual enquiry, ought not to be asked unless the cross – examiner has reasonable grounds for thinking that the imputation conveyed by the question is true.

Such questions should only be asked if in the opinion of the cross – examiner, the answers would or might materially affect the credibility of the witness and if the allegation conveyed by the question relates to matters so remote in time or of such a character that it would not affect or would not materially affect the credibility of the witness, the question should not be asked.

In all cases, it is the duty of the advocate to guard against being made the channel for questions which are only intended to insult or annoy either the witness or any other person, and to exercise his own judgement both as to substance and the form of the questions asked.

Advocate's Duty To The Colleagues[15]:

Section IV of Chapter II of Part VI of Br Council of India lays down the provisions about the ‘Advocate's duty to the colleagues. Rules 36 to 39 provides for advocate's duty to the court. An Advocate cannot appear in a case where a memo is filed by the name of the other advocate. To do so he has to first take consent from the advocate and in case if such consent is not given then he has to apply to the court stating the reasons as to why he need consent.

All advocates are part and parcel of the administration of justice. They are court officers. They take the fee of the services rendered. But the fee is not the criteria its only secondary their service is basically a public service and each advocate's office is known as public office. The primary concern of the advocate should be aiming for justice for the welfare of people. There should not be any kind of unhealthy competition between the colleagues. All are equal and each of them to mutually respect each other. An advocate is not supposed to advertise himself.

If any client brings a case from another advocate to an advocate asking him to appear for the case, then this new advocate should not readily accept the case; first he has to go through the background of the case, details of the case and most importantly he must know the reasons as to why the client wants to change the previous advocate. If all the reasons stated by the client are proper then he must ask the client to bring a no objection certificate from the previous advocate; then only it is appropriate for him to take up the case. All members of the bar association are known as colleagues. An advocate has to respect all his colleagues and should not criticise co advocates.

An arrogant attitude of an advocate towards his colleagues is always observed by the clients and public present in the court. This kind of behaviour affects his profession, bar and bench relations, court proceedings and finally the whole administration of justice.

Conclusion
Professional ethics is nothing but the duties which are to be followed by the advocate. An advocate who violates these duties is considered as he has violated the principles of professional ethics. These are the moral duties which have to be followed by everyone not only in the advocate profession but other professions as well because ethics and morals are important for each and every person in the society.

The core subject of legal ethics is to maintain honour, dignity of the law profession and to create a friendly atmosphere in the court without any biasness and quarrels between advocates which eventually spoils the bar and bench relations and ultimately affects the administrative system of justice. Cooperation and fair dealing is necessary for the advocates. This kind of attitude helps them to acquire more clients and be responsible towards the society because an advocate is considered to do public service.

As every individual has a code of conduct, in the same way advocate also has conduct or duties which are to be performed towards himself, his clients, opponents, colleagues, court etc. it is the duty of the advocate to maintain the decorum of the court and act properly with his opponents or colleagues. He must always act in the best interests of his clients and should not do any kind of act that betrays their trust upon him. All these duties, ethics and morals help an advocate to be in a better position in his career and become a successful lawyer.

Bibliography
  • Advocate's Act, 1961
  • Bar Council of India Rules,
  • Legal Ethics (Accountability for lawyers and Bench – Bar Relations) – Dr. Kailash Rai
  • Lectures on Professional Ethics and Accountancy for lawyers and Bench – Bar Rekations – Dr. Rega Surya Rao
     
End-Notes:
  1. Legal Ethics ( Accountability for lawyers and Bench – Bar Relations) – Dr. Kailash Rai
  2. Legal Ethics ( Accountability for lawyers and Bench – Bar Relations) – Dr. Kailash Rai
  3. Lectures on Professional Ethics and Accountancy for lawyers and Bench – Bar Rekations – Dr. Rega Surya Rao
  4. Legal Ethics ( Accountability for lawyers and Bench – Bar Relations) – Dr. Kailash Rai
  5. Lectures on Professional Ethics and Accountancy for lawyers and Bench – Bar Rekations – Dr. Rega Surya Rao
  6. Legal Ethics ( Accountability for lawyers and Bench – Bar Relations) – Dr. Kailash Rai
  7. Lectures on Professional Ethics and Accountancy for lawyers and Bench – Bar Rekations – Dr. Rega Surya Rao
  8. AIR 1984 SC 1755
  9. Lectures on Professional Ethics and Accountancy for lawyers and Bench – Bar Rekations – Dr. Rega Surya Rao
  10. Legal Ethics ( Accountability for lawyers and Bench – Bar Relations) – Dr. Kailash Rai
  11. Lectures on Professional Ethics and Accountancy for lawyers and Bench – Bar Rekations – Dr. Rega Surya Rao
  12. AIR 1925 Bom 470
  13. Legal Ethics ( Accountability for lawyers and Bench – Bar Relations) – Dr. Kailash Rai
  14. Legal Ethics ( Accountability for lawyers and Bench – Bar Relations) – Dr. Kailash Rai
  15. Legal Ethics ( Accountability for lawyers and Bench – Bar Relations) – Dr. Kailash Rai

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