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Ethics and Morality of Legal Profession

“Lawyers throughout the world are particular specialised professionals who place the interests of their clients above their own, and try to obtain the respect for the Rule of Law. They have to combine a continuous update on legal developments with service to their clients, respect for the courts, and the legitimate objective and aspiration to maintain a reasonable standard of living”, as mentioned in the International Bar Association's International Principles on Conduct for the Legal Profession.

The above few lines very nicely sums up the important role that the lawyers play in our society and all the responsibilities they have. The word 'ethics' is derived from the Greek word 'ethos' which basically means character. Ethics in philosophy involves the right and wrong behavior. Ethics and Legal Profession go hand in hand. Legal Ethics involves the certain standards of good or an appropriate conduct within the legal profession.

The Legal Profession plays a very significant role in the administration of justice. It is rightly observed by C.L. Anand that:
“a comprehensive structure of the administration of justice must possess three vital elements, precisely; a well-organized body of laws and acts built upon wise concepts and notions of social justice, a judicial hierarchy containing of the Bar and the Bench, learned in the law and stimulated by high values of professional conduct and existence of appropriate generation to ensure fair trial”.

What actually are Professional Ethics?

Ethics denotes human behavior to make decisions between what is truthful and what is not. Professional ethics are those set code or moral principles that govern a person's behavior in a professional workplace or work life. In the legal profession, an advocate must obey professional codes for fair dealing with the client and maintain and uphold the self-possession.

Importance of Ethics for Advocates

The code of conduct in any profession is important, and perhaps the most pressing in the legal profession where lawyers are particularly viewed with suspicion. Compulsory conduct is therefore essential in ensuring the integrity of employees and the legal system as a whole.

Lawyers and other legal practitioners are often confronted with conflicting interests from the clients they represent, in the community for larger and more independent purposes. Legal principles are therefore important in helping an attorney to navigate the critical balance of these interests and work for the best promotion.

The code of conduct also protects the interests of the injured client and ensures that they receive the service without discrimination. If advocates do not follow, and promote, the principles of justice, fairness and equality, the law itself will be violated and public confidence in the law will be undermined, thus preventing access to justice. Therefore, the legal profession has a great responsibility to the community as sponsors of the rule of law, as well as defenders of individual rights in the fight against abuse of power.

The Supreme Court in Hamraj L. Chulani v. Bar Council of Maharashtra and Goa, AIR 1996 SC 1708, has rightly observed that the legal profession is a companion with the judiciary in the administration of justice.

Changes in Law over the times

In Ancient India it was the mandate that the King should decide cases legally. The pre-existing law covered many aspects and spectrums including orders or authority given to Shastras, smritis, customs, rajdarma, moral law, livelihoods, social regulation, employment background law, moral sense, doctrine of equality, etc. Laws, to some extent, naturally include internal moral discipline and coercion by higher authorities. It is called that the observance of the Rule of Law in modern society is a sine qua non for the survival of democracy.

Over time the law has made many necessary changes according to social change.

Now that this work has gained the nobility, no one in this world can argue that lawyers are responsible for the rule of law and make the courts more protective guarantee of intangible citizens' rights. Lawyers are therefore responsible to see that the Rule of law is maintained and all its purposes are protected.

The objectives thus include preventing the growth of deviant behavior in a civilized society, acquisition of a pattern of corrupt and depraved behavior, etc. A common legal system - a legal system based on recorded judicial precedents - came to India with the British East India Company. The company was granted a document by King George I in 1726 to establish Mayoral Courts in Madras, Bombay and Calcutta (now Chennai, Mumbai and Kolkata respectively).

The company's judicial activities increased significantly after its victory in the Battle of Plassey and with 1772 corporate courts increased from three major cities. In doing so, the company replaced the existing Mughal system in those parts. The coding of the law also began vigorously with the formation of the first Law Commission. Under the direction of its Chairman, Thomas Babington Macaulay, the Indian Penal Code was drafted, established and implemented in 1862. The commission also drafted The Code of Criminal Procedure. Management of other laws and codes such as the Evidence Act (1872) and the Contracts Act (1872).

At the time of the beginning of independence, India's independent parliament was the site of a draft document that would lead to a new nation. It will fall into the official mind of B. R. Ambedkar to frame a constitution for a new independent nation. The Constitution of India is a guiding light in all administrative, legal and judicial matters in the country. It is broad and intended to be sensitive.

The Constitution changed the direction of the program introduced earlier to further the interests of the colonial and state states in India, firmly on the social side. The Constitution also stipulates that legal interpretation seeks to empower vulnerable members of society.

Need for Professional Ethics

The American Bar Association Committee has well explained the necessity of the code of legal ethics. It is evident that the legal profession is actually the keystone of the arch of Government. If it is weak, then it is allowed to be the subject of corruption again the destructive influence of those, who are controlled by art, greed or profit or otherwise wrong motive, sooner or later the arch should collapse.

The future of the country depends on the maintenance of the temple of justice, which is clean and which cannot be opened by lawyers. It cannot be maintained so, unless the operation and motives of lawful members work is what they argue to be. Therefore, it becomes an obvious and simple task of advocates to exercise their influence in every legal way to assist and form the Bar it has to be.

The committee also noted that members of the Bar, such as judges, they are judges of the court and as judges, they should hold positions only at a reasonable time, this behavior and ethics should be defined and measured by standards of conduct, no matter how high, as needed to keep the administration of justice, clean and undefined. Such standards can be included in the written code of ethics and lawyer failure to comply with that, should not be allowed to practice or retain membership in a particular organization.

The Bar Council of India Rules

Section 49 (1) (c) of the Advocates Act, 1961 empowers the Bar Council of India to enact laws to determine standards of professional ethics and ethics to be maintained by attorneys. It is clarified that those rules will only apply when approved by the Chief Justice of India. It happened again to make it clear that any rules made in relation to the standards of professional ethics and conduct to be maintained by attorneys as well operating before the enactment of the Representation Act (Amendment), 1973, will continue to apply, until amended or deleted or amended in accordance with the provisions of this Act.

The rules made by Bar Council of India is given in Chapter II of Part IV of the Bar Council of India Rules that tells the duty of an Advocate towards the Court, towards the client, towards opponent, towards colleagues etc.

The rules mentioned in chapter II of part VI of the rules of Bar Council of India may be discussed as follow:

Advocate's Duty Towards the Court:

  1. Act in a dignified manner:
    At the time of his trial and while he was serving in court, an advocate must act in a dignified manner. However, whenever there is a valid reason for a serious complaint against a judicial officer, an advocate has the right and duty to bring his or her complaint to the appropriate authorities. This was held in the case of Dr. D.C Saxena v. Hon'ble The Chief Justice of India, (1996) 7 SCC 216.
     
  2. Respect the court:
    An Advocate must always show respect in court. In U.P. Sales Tax Service Association v. Taxation Bar Association, AIR 1996 SC 1384, it was held that an Advocate must remember that the dignity and respect reserved for the office of justice is essential to the survival of a free society.
     
  3. Not communicate in private:
    An Advocate should not speak privately with a judge in relation to any matter pending before a judge or another judge. An Advocate should not interfere with the court's decision in any matter using unlawful or improper means such as coercion, bribery etc, it was held in the case of Rizwan-Ul-Hassan v. State of U.P., AIR 1953 SC 250.
     
  4. Refuse to act in an illegal manner towards the opposition:
    In M.Y. Shareef & Anr. v. Hon'ble Judges of Nagpur High Court & Ors., (1955) 1 SCR 757, it was held that an advocate must refuse to act in an illegal or improper manner against the opposition lawyers or opposition parties. He will also use his best efforts to prevent and prevent his client from committing any unlawful, inappropriate or unfair practices against any person concerned with justice, opposition lawyers or opposition parties.
     
  5. Refuse to represent clients who insist on unfair means:
    An Advocate shall refuse to represent any client who demands to use improper or improper means.
     
  6. Appear in proper dress code:
    An advocate must appear in court at all times only in a suit imposed by the Bar Council of India and his or her appearance must be maintained.
     
  7. Refuse to appear in front of relations:
    An advocate should not enter into a view, do anything, plead or act in any way before the judicial authorities if one person or any member of the bench is related to the advocate.
     
  8. Not to wear bands or gowns in public places:
    An advocate should not wear bands or gowns in public places outside the courts, except during such observances and at other places such as the Bar Council of India or as ordered by the court.
     
  9. Not represent institutions of which he is a member:
    An advocate must not appear in or before any judicial authority, or in any institution if he or she is a member of the administration of the institution.
     
  10. Not appear in matters of pecuniary interest:
    An advocate should not make or plead in any matter where he or she prefers finances.
     
  11. Not stand as surety for client:
    An advocate must not stand as collateral, or guarantee the security of the collateral required by his client for the purpose of following any legal procedures.

Advocate's Duty Towards the Client:

  1. Bound to accept briefs:
    An advocate is obliged to accept any complaint in the courts or courts or before any other authority that he or she has proposed to exercise. He must pay the amount corresponding to the fees collected by other attorneys for his position in the Bar and the nature of the case. Special circumstances may permit him to refuse for a time, it was held in the case of S.J. Chaudhary v. State, AIR 1884 SC 1755.
     
  2. Not withdraw from service:
    An advocate should not normally withdraw from working for a client once he or she has agreed to work for it.
     
  3. Not appear in matters where he himself is a witness:
    An advocate must not accept a summary or appear in the case where he or she is a witness.
     
  4. Full and frank disclosure to client:
    An advocate must, at the beginning of his or her engagement and in the process, make all full and transparent disclosures to his or her client about his or her interactions with the parties and any interest or disputes that may affect his or her client's judgment.
     
  5. Uphold interest of the client:
    It will be the advocate's duty to fearlessly consider the interests of his or her client in all appropriate and dignified manner.
     
  6. Not suppress material or evidence:
    An advocate from a criminal prosecution must conduct the trial in a manner that does not lead to the conviction of the innocent.
     
  7. Not disclose the communications between his client and himself:
    An advocate should not in any way, directly or indirectly, disclose the communications made by his client to him. Nor will he disclose the advice given by the process. However, he or she is responsible for disclosure in contravention of Section 126 of the Indian Evidence Act, 1872.
     
  8. An advocate should not be a party to stir up or instigate litigation:
    An advocate shall not at any time be a party to the stimulating litigation.
     
  9. An advocate should not act on the directions of any person other than his client or the client's authorised agent.
     
  10. Not charge depending on success of matters:
    An advocate does not have to pay for his or her services depending on how successful the case is. Nor will he charge for his services as a percentage of the value or assets acquired after the success of the matter.
     
  11. Not receive interest in actionable claim:
    An advocate should not trade or agree to receive any share or interest on any claim that may be made.
     
  12. Not bid or purchase property arising from legal proceeding:
    An advocate should not in any way call, or buy, either in his own name or in any other way, for the benefit of himself or for any other person, any property sold in any legal process in which he has been operating properly.
     
  13. Not bid or transfer property arising from legal proceeding:
    An advocate must not in any way apply for a court auction or purchase in the form of a sale, gift, exchange or other means of transfer any asset subject to any claim, complaint which way professionally.
     
  14. Not adjust fees against personal liability:
    An advocate must not adjust the amount paid by his client against his or her obligation to the client, which does not arise when he or she is employed as an attorney.
     
  15. An advocate should not misuse or take benefit of the confidence rested in him by his client.
     
  16. Keep proper accounts:
    An advocate must always keep the financial accounts of the clients entrusted to him. Accounts must show the amount received from the client or in his or her name.
     
  17. Divert money from accounts:
    An advocate must state in his / her accounts what funds he / she has received from the client for the money or expenses during the proceedings or opinion.
     
  18. Intimate the client on amounts:
    In P.J. Ratnam, AIR 1962 AP 201, the court held that when any value is obtained on behalf of his client, the fact that the receipt should be communicated to the client as soon as possible. If the client demands payment of that fee and in spite of that need, an advocate does not pay him, you will be guilty of misconduct at work.
     
  19. Adjust fees after termination of proceedings:
    An advocate after the completion of the proceedings, will be free to adjust his payment from the client's account.
     
  20. Provide copy of accounts:
    An advocate must provide the client with a copy of the client's account which he or she has kept on request, provided that the required copying fee is paid.
     
  21. An advocate shall not enter into activities or arrangements whereby funds in his hands are converted into loans.
  22. Not lend money to his client.
  23. Not appear for opposite parties.

Advocate's Duty to Opponent:

  1. Not to negotiate directly with the opposite party.
  2. Carry out legitimate promises made.

Advocate's Duty Towards Fellow Advocates:

  1. Not advertise or solicit work.
  2. An advocate's sign-board or name-plate should be of a reasonable size.
  3. Not promote unauthorized practice of law.
  4. An advocate shall not accept a fee less than the fee, which may be taxed under rules when the client is in a position to pay more.
  5. Consent of fellow advocates to appear.

Professional Misconduct

There is no such definition given for the term 'misconduct' in the Advocates Act, 1961, but the term 'unprofessional conduct' is being used in the Act.
'Professional Misconduct' means any act which is done willfully with a wrong intention and which is unlawful in nature even though they are not inherently wrongful.
In State of Punjab v. Ram Singh, AIR 1992 SC 2188, The Hon'ble Supreme Court held that the term 'misconduct' may involve:
  • moral turpitude,
  • improper or wrongful behavior,
  • unlawful behavior,
  • willful in character,
  • a forbidden act,
  • transgression,
  • carelessness or negligence in performance of duty,
  • or the act complained of illegal or forbidden quality or character.

Punishment For Misconduct

Section 35 of The Advocates Act, 1961 provides punishment for professional or other misconduct by an advocate. The disciplinary committee looks into the punishment. The disciplinary committee shall fix a date of hearing and issue a show cause notice to the Advocate and the Advocate General of the State. The disciplinary committee of the State Bar Council, after hearing both the parties, may:
  1. Dismiss the complaint;
  2. Reprimand the advocate (giving warning);
  3. Suspend the advocate from practice for a period as long as it deems fit;
  4. Remove the name of the advocate from the bar (state roll of advocates).

Disciplinary Committee of State - Bar Council of India - Disciplinary Committee of Bar Council of India - Supreme Court


Contempt Of Court

Contempt of Court refers to the offence of disrupting the dignity or authority of a court. The objective for contempt is stated to be to safeguard the interests of the public if the authority of the Court is degraded and public confidence in the administration of justice is deteriorated or eroded. The Supreme Court and High Courts originate their contempt powers from the Constitution under Article 129 and Article 215 respectively.

The Contempt of Court Act, 1971, outlays the procedure in relation to investigation and punishment for contempt.

There are two kinds of Contempt:

  • Civil contempt: According to Section 2(b) of the Contempt of Courts Act, 1971 'civil contempt' means willful disobedience to any order or other process of a court or willful breach of an undertaking given to a court.
  • Criminal contempt: According to Section 2(c) of The Contempt of Courts Act, 1971, 'criminal contempt' means the publication of any matter, whether by word, spoken or written, or by signs, or by visible representation, or otherwise, or the doing of any other act which includes:
    • Scandalizing or tends to scandalize, or lowers or tends to lower the authority of the court, or
    • Prejudice or interference with the due course of any judicial proceeding, or
    • Interference or tends to interfere with, or obstruction or tends to obstruct the administration of justice in any other manner, etc.

Punishment:

Section 12 of the Contempt of Court Act, 1971 deals with the punishment for contempt of court which is simple imprisonment for a term up to six months and/or a fine of up to ₹2,000 or both.

In Supreme Court Bar Association v. Union of India & Anr., AIR 1998 SC 1895, the Judge held that procedural aspect for Contempt of Court may still be prescribed by the Parliament so that it could be applicable in the Supreme Court and the High Court which means that Section 12(1) of the Contempt of Court Act, 1971, which prescribed a maximum fine of Rs. 5000 and simple imprisonment for a term of six months shall be applicable in this case.

In Zahira Habibullah Sheikh & Anr. v. State of Gujarat & Ors., (2004) 4 SCC 158, it was held that the punishment that is given for contempt in the Contempt of Court Act, 1971 shall only be applicable to the High Court only but for the Supreme Court, it acts as a guide. The judgment that was given was not accompanied by rationality; this was bothersome because the Supreme Court has been given great powers that the drafters of the Indian Constitution has also not given.

Sudhakar Prasad v. Govt. of A.P. and Ors., (2001) 1 SCC 516, this case is also very similar to the Supreme Court Bar Association Case. In this case also once again the Supreme Court declared that the powers to punish for contempt are inherent in nature and the provision of the Constitution only recognised the said pre-existing situation and the provision of the Contempt of Court cannot be used to limit the exercise of jurisdiction given in Article 129 and Article 215 of the Constitution.

Conclusion
Professional Ethics are key to ensuring that an individual is independent, competent, efficient and responsive legal work. Where there are broad rules of conduct or ethics, they should ensure that the advocates are required to follow client care procedures, doing their best the interest of the client, and to fulfil their duties as advocates. Ethics may continue to impose principles impartiality, honesty and integrity in the way lawyers behave and strengthen public confidence in the administration of justice.

The main purpose of legal conduct is to maintain the honor and dignity of the legal profession, to protect the spirit of friendly cooperation, to establish respectful and impartial co-operation with his client, opponent and witness, to establish a spirit of brotherhood in the Bar itself; and ensuring that advocates perform their duties to the general public. The legal profession is the mainstay of government. Legal work is not a business but a profession. Created by the government for the advantage of the community.

The important role of advocates as the finalists of the law means the legal profession you have a great responsibility to ensure that the code of conduct is developed, that the advocates as well the public is educated about ethics and that ethics are enforced through disciplinary action methods. Without morals, rely on the legal profession, and as a result, the justice system itself, looked down upon.

References:
  • The Advocates Act, 1961
  • The Contempt of Court Act, 1971
  • Legal Ethics by Kailash Rai
  • History of Courts by Kailash Rai
  • C.L. Anand, General Principles of Legal Ethics, 39 (Law Book Co., Allahabad, 1965).
  • http://www.barcouncilofindia.org/about/professional-standards/rules-on-professional-standards/
  • http://www.barcouncilofindia.org/
  • https://en.wikipedia.org/wiki/Bar_Council_of_India
  • http://law.uok.edu.in/Files/5ce6c765-c013-446c-b6ac-b9de496f8751/Custom/P.E.%20unit_4.pdf
  • http://www.scielo.org.za/pdf/pelj/v19n1/15.pdf
  • https://www.thehorizoninstitute.org/usr/library/documents/main/booklet-on-ethics-for-lawyers.pdf
  • https://www.ramauniversity.ac.in/online-study-material/law/bballb/viisemester/proffessionalethicsandprofessionalaccountingsystem/lecture-23.pdf

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