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Professional Ethics for Lawyers
Legal Ethics And Professional Practice
Chhatrapati Shahu Ji Maharaj University
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Professional Ethics
Bar Bench Relation
And
Accountancy for Lawyers
CONTENTS
- I PROFESSIONAL ETHICS 1-
- Origin and Development of Legal Profession
- Advocates Act
- State Bar Council
- Bar Council of India
- Qualification for Enrolment
- Disqualification for Enrolment
- Senior Advocate
- Advocate on Record
- Advocates on Roll
- Amicus curiae
- Lawyers Privilege
- Seven Lamps of Advocacy
- Panchasheel of the Bar
- Ten commandments of Advocates
- Darwin=s Therory in Legal Profession
- Meaning of Professional Ethics
- Meaning of the term Etiquette
- Duty to Court
- Duty to Clients
- Duty to Opponent
- Duty to Profession
- Duty to Render Legal Aid
- Restriction on other Employment
- Duty to Self
- Duty to Colleagues
- Restriction on Advertisement
- Refusing to Accept a Case
- Professional Misconduct
- Punishment for Misconduct
- Remedies Against the Order of Punishment
- Review of its Own Order
- Disciplinary Committee of the State Bar Council
- Disciplinary Committee of the Bar Council of India
- Transfer of Proceedings
- Advocates Welfare fund
- Tamil Nadu Advocates Welfare Fund
CHAPTER 3 I
PROFESSIONAL ETHICS
Origin and Development of Legal Profession
Origin : In India, the Legal profession originated dring the British Rule. There is no evidence of the existence of legal Profession before that ie. During the Hindu Rule and Mughal Dynasty period. During that period, the administration of justice was in the hands of the King and the Kings court was treated as the highest court of the country.
There is no appeal against the order of the King. Persons disobeyed the King9s order was charged with sedition that period the King was respected as the representative of God who was sent by the God to render justice to the people.
In the King9s court the plaintiff has to represent his case personally and thereafter the King will hear the other side. To assist and advice and the King in the administration of justice there was a council of ministers and a group of educationalists.
During Britisher9s Period : The East India Company which started its business in India, during 16th century slowly started capturing important cities in India and they started administering those areas under their control. They have created company courts and those courts were headed by persons having no legal knowledge. And persons having no legal knowledge were allowed to practice in the court.
The first time in India, the legal profession was recognized and regulated by the Charter Act of 1774 Act has permitted the English lawyers to practice in the Supreme Court of Calcutta.
Later on in 1801, the English lawyers were allowed to practice in the Madras Supreme Court and in the year 1823 they were allowed to practice in the Bombay Supreme Court, but Indian Lawyers were not allowed to Practice in those courts. (In 1826 these 3 Supreme Courts were abolished and in that place High Courts were Created).
In 1865, the Special Rights Act has conferred the right to the Madras, Bombay and Calcutta High Courts to frame rules for the recognition of Advocates and for preparing the Advocates roll.
In 1879, the legal practioner9s Act has conferred the similar power to the other High court Were allowed to practice in that high court. As per this Act Persons studied Law in England Were called as Advocates and persons studied Law in India were called as <Vakils= <Vakils= were not allowed to practice before the High Courts.
In 1923,an Advocates Committee was constituted under the leadership of Sir. Edward to study the legal profession and to make suitable recommendations to improve the legal profession. This committee has recommended for the creation of Bar Councils in each High Court and allowing the <Vakils= to practice before the High Court.
Accepting the recommendation Bar Council Act was passed in 1926. This Act was paved the way for the creation of Bar Councils in each High Courts. But the Bar Council was not empowered to enrole Advocates, that power was retained with the High Courts. The function of the Bar Council was only advisery and the rules and regulations made by the Bar Council shall be brought into force only after the concurence from the High Court.
After Independence : After Independence in the year 1951 an Advocates Committee was constituted under the chairmanship of Justice C. Das to study the problems in the legal profession and make suitable suggestions to remedy such problems committee has made the following recommendations.
- All India level, one Bar Council namely Bar Council of India and in each state, State Bar Council should be created.
- Power to enrole Advocates and disciplinery power against the Advocates should be entrusted with the Bar Council.
- Advocates should be allowed to practice throughout India without any discrimination.
The fifth Law Commission also scrutinized these recommendations and recommended for the implementation of these
Members are elected by the Advocates whose names are there in the state roll by a single transferrable vote. The members hold office for a period of 5 years. The Advocate General of the Concerned State is an ex-officio member of the State Bar Council. So long as he is holding the office as Advocate General he can act as the member of the Bar Council. Powers: The State Bar Council is empowered with the following powers.
- It is body corporate.
- It is a legal body having the autonomous status.
- It has a common seal and perpetual succession.
- It can do the following things in its own name. Buying and selling properties, Entering into agreements, Filing cases.
- It can constitute executive committee etc.
- It can frame rules and regulations relating to day to day administration. Functions: Advocates Act empowers the State Bar Council to
do the following functions.
Enroll the qualified persons as Advocates.
Prepare the Advocates roll.
Take disciplinary action for professional misconduct.
Protect the rights and privileges of the Advocates.
Encourage law reforms. For this purpose it organize seminars, talks and publish journals.
Constitute executive committee, enrolment committee, disciplinary committee, legal aid committee etc.
Manage the funds of the Bar Council.
Conduct the election for electing the members of the State Bar Council.
Prepare legal aid programmers and allot separate funds for the implementation of such schemes.
Prepare Schemes for helping the poor Advocates and allot separate funds for the implementation of such schemes.
Grant recognition to the law colleges.
Do all other acts which are necessary for the effective implementation of the above said functions. Bar Council of India
Constitution: The following persons are the members of the Bar Council of India.
One member from each State Bar Councils. He will be elected by the members of the respective State Bar Councils.
Attorney General of India-Ex Officio member.
Solicitor General of India-Ex officio member. Ex-officio members will continue as members so long as they hold the offices of Attorney General and Solicitor General posts. The other members will continue as members so long they are continuing as members of the State Bar Council. Powers: Bar Council of India is empowered with the following powers.
It is a body corporate.
It is legal persons having the autonomus status.
It has a common seal and perpetual succession.
It can do the following things in its own name. Buying and selling properties, Entering into agreements, Filing cases etc.
Transfer the name of the Advocate from one state roll to another state roll on his application.
It can constitute executive committee, disciplinary committee, legal aid committee etc.
To hear and decide appeal, review and revision against the orders of the disciplinary committee of the State Bar Council.
He must have passed 3 years law course (regular study from the university after graduation) or 5 years integrated Law course after 10 +2. If the law degree is from any Foreign University then it must be a recognized degree, for the Advocates Act by the Bar Council of India.
He should pay an enrolment fee as may be prescribed by the State Bar Council.
He must fulfill such other conditions as may be prescribed by the State Bar Council for the purpose of enrolment.
No upper age limit for enrolment is fixed in the Advocates Act. So, after 21 years at any age one can enroll as an Advocate.
Disqualification of enrolment
The following persons are disqualified to enroll as an Advocate (S).
A person convicted for an offence involving moral turpitude.
A person convicted for an offence under untouchability (offences) Act, 1955.
A person dismissed or removed from government service on any charge involving moral turpitude. The disqualification ceases to have effect after the period of two years of his release from jail or dismissal from service.
There is no disqualification for a person found guilty in the above said cases and who has been given benefit under the provisions of the Probation of Offenders Act, 1958.
If an application for the enrolment is refused on any one of the above grounds of disqualification, the State bar Council has intimate that fact stating the name, address, reasons for refusal to all other State Bar Councils, thereby he shall be prevented from applying to the other State Bar Councils for Enrolment.
A person cannot be permitted to carry on other profession along with legal profession. So, a person with a law degree is carrying on the other profession is disqualified to enroll as an Advocate (see Hani Raj L V. Bar council of Maharashtra at P 66).
A full time salaried law officer is not entitled to enrole as an Advocate (Sathish Kumar Sharma V. Bar Council of Himachal Pradesh (AIR 2001 SC 509).
Senior Advocate S of the Advocates Act classifies the Advocates into two types namely, Senior Advocates and other Advocates.
The Supreme Court or a High Court shall designate an Advocate with his consent, as Senior Advocate, if the court is of the opinion that by virtue of his ability, standing at the Bar or special knowledge or
When an Advocate is designated as a Senior Advocate, the registrar of the Supreme court or the High court, as the case may be, shall communicate it to all the High courts and the secretary to the State Bar Council and the Bar Council of India. In the communication, the Name of the Advocate and the date on which he was designated as the Senior Advocate should be mentioned.
Advocate on Record The Supreme Court rules of practice classifies the Advocates into three categories. They are (i)Ordinary Advocates (ii) Senior Advocates (iii) Advocates on Record.
An Advocate should have the following qualifications to become as an Advocate on Record.
- He must have completed 4 years of service as Advocate.
- In addition to the four years of Service as Advocate he should work for one year with an Advocate On Record, who has more than 10 years of service.
- He should pass the Advocate On Record test conducted by the Supreme Court. The test will be conducted on the following four subjects for hundred marks each namely (i)Supreme Court Rules of practice and procedures, (ii) Drafting and Pleading (iii0 Accountancy for the lawyers and (v) Leading cases. To pass this test one should get minimum 50% in each subjects and in aggregate minimum 60%. ie. Totally 240 marks.
The Successful Advocates will be recognized as Advocate On Record by the Supreme Court and their name will be entered in a separate register maintained for this purpose. Only Advocates on Record alone is entitled to file cases in the Supreme Court. Every year they should submit their annual income and expenditure account to the Supreme Court.
If an Advocate on Record is selected as the Senior Advocate then his name will be removed from the register of the Advocate on Record and will be put in the register of the Senior Advocate.
Advocates Roll
According to S of the Advocates Act, every State Bar Council shall prepare and maintain a roll of Advocates. It shall contain two parts. First part containing the list of Senior Advocates and the second part containing the other Advocates.
When more than one Advocate is enrolled in a single day, based on their seniority in age their name will be entered in order.
In the Advocates roll the following details should be mentioned. The name, Date of Birth, Permanent address, details about his education, The place where he is interested to practice etc.
A person cannot enroll himself as an Advocate in more than one Bar Council. A person whose name is registered in one state Roll can transfer his name in other State Roll on genuine grounds by an application to the Bar Council of India. If there is no genuine reason for transfer or any disciplinary proceedings are pendings against him then transfer application will be rejected.
The State Bar Council should send an authenticated copy of the Advocates Roll whenever the new Advocates are included or names are removed from the roll.
Amicus Curiae Amicus Curiae means 8friend of the court9. He is the person who is voluntarily or on an invitation of the court gives his opinion to the Court on a question of law in which the court is doubtful.
Amicus Curiae is not an Advocate retained by any of the parties to the dispute. He is altogether a stranger to the case. By virtue of his standing in the profession and the Experience in the particular field of law the court may request to give his opinion on a particular issue .His views are only an information or a suggestion to the court. An amicus curiae can express his views only with the leave of the court. Normally he is not entitled to any remuneration of such work.
Lawyers Privileges Privilege means special kind of right. An Advocate being the officer of the court and belonging to the noble profession enjoys certain privileges inside and outside the court. The practice of law itself is a privilege confered on lawyers. It is not open to anyone who wishes to
part of the lawyers; and perpetual worry for the pursuit of the truth on the part of the judges generate strain and tension. Occasional wit and humour, provoking a smile or laughter will help them to ease the tension, and refresh themselves to sharpen their brain for the effective discharges of the duties.
5: Eloquence means the fluency, force and style of using the language. Strong vocabulary is one of the powerful weapon which an Advocate should posses. Words are his keys of thoughts. Strong vocabulary gives him assurance, build his self confidence and build his personality. Words must be employed with eloquence. The art of persuasive and impressive speaking will give the desired result in his favour.
6 : It means the ability to come to a sensible conclusion and make wise decisions at the relevant time in the proper way. It is on the basis of these conclusions he should employ the necessary facts and the techniques in the case which he is engaged. This quality is necessary from the beginning of filing the case till its final disposal. An Advocate must always anticipate all the possible moves of the other side and must develop the necessary presence of mind , alertness and tact to cope with any awkward situation of difficulty that may arise in the case.
7: In legal profession, one Advocate fights with another Advocate for justice before the learned judge. There may be controversies and contradictions in their contention relating to the case, but that shall never affect the fellowship. The Advocates should refer the opposite party9s Advocate as <Learned Friend= and the judge should be referred as <Learned Judge=. In order to maintain the fellowship, the Bar Council of India has laid down certain rules to be observed as the duty to colleagues.
Panchsheel of the Bar Panchsheel refers to the following five qualities. They are (i) Honesty (ii) industry (iii) justice (iv) Service and (v) Philosophy.
1. Honesty: (see P). 2. Industry: (see P). 3. Justice: An Advocate is as an Officer of the High Court. He should help the Judge in finding out the truth in the dispute, and help him to arrive the right decision. For this purpose he shall submit the proper position of the law, facts and evidence related to the case. An Advocate has to protect the interest of the client, but at the same time he must
Realize that he is not the mere mouth piece of the client. Therefore, he shall never resort to unfair the practices. His efforts should be always to advance the cause of the justice.
4. Service: Legal profession mainly concerned with the promotion of administration of justice and the establishment of the welfare society. Therefore, Lawyers shall be willing to protect the right of the oppressed and the poor. They shall render their service to the general public without any discrimination.
5. Philosophy: Lawyers should have some Philosophical outlook. An Advocate has to deal with the variety of disputes both favourable and unfavourable to his client. So, he should have the required mental fitness to adjust and accommodate with the changes. It is therefore necessary that lawyers should be guided by some philosophical principles suitable to the profession.
Ten commandments of Advocates The various duties of an Advocate like duties to the client, duties to the court, duties to the colleagues and duties to the public shall be put into the following ten rules popularly known as the ten Commandments of Advocates.
1. Protection of the interest of the client: An Advocate must be loyal to the interests of the client and fight for his cause without the fear of any unpleasant consequence to him or any other person (see duty to the client). 2. Proper Estimation of the value of the Legal Advise: An Advocate shall not over estimate or under estimate the value of his advice. He must always give proper legal advice to the client. 3. Honest and Respect: He must be always honest and respectful to the court. 4. Preparation of the case: He must prepare the case thoroughly before presenting it to the court. 5. Service: Lawyers shall be willing to protect the rights of the oppressed and the poor. 6. Loyalty to Law and Justice: He must always give advise to enhance loyalty to law and justice. 7. Fellowship: He must be always friendly with the fellow- members of the Bar and more friendly with the young lawyers and encourage them.
In exercise of this rule making power the Bar Council of India has made several rules prescribing the standards of professional conduct and etiquette for the advocates. These rules specifies the duties of an Advocate to the court, client, opponent and colleagues etc. These rules are broadly called as professional ethics.
Meaning of the term Etiquette
The term etiquette is slightly different from the term ethics. It refers to the pattern of behavior and the mode in which the person is required to conduct himself. It springs from the long habit and custom. Etiquette consists of the following elements namely, elegance, dignity and decency. The legal profession observe these things as an etiquette. In order to protect the dignity of the profession the members must observe the etiquette very strictly. The etiquette requires that an Advocate should behave himself as an officer of the court, a privileged member of the community and a gentleman.
Duty to the Court(Rule 1-10) In the administration of the justice, the role of the advocate is to help the court to take a right decision in the dispute. While performing this job, an Advocate is duty bound to perform certain duties to the court. Following are duties prescribed by the Bar Council rules as duty to the court, which should be observed by the Advocates.
An Advocate shall show the due respect to the court and shall never act in any manner to undermine the confidence in the judiciary.
He shall not exert or attempt to exert any personal influence on the decision of the court, nor shall give any impression that he possesses personal influence with the judge before whom he normally practices.
He shall be always punctual in attending courts in the prescribed dress.
He shall be fair and frank in the court proceedings.
He shall not include any fact which he knows to be false in the pleadings, petitions or affidavits.
He shall not ask for any adjournment of a case without genuine reasons.
He shall not communicate privately with the judges to influence them relating to any pending case.
He shall not speak ill of judges or use abusive remarks about them. But, if the judge behaves improperly, it is not only the right but also his duty to report it to the proper authorities.
He shall not interrupt when the counsel for the otherside or the judge is speaking.
He shall appear in the court in the prescribed dress and his appearances shall always be presentable. He shall not wear bands or gown in the public places.
He shall not practice before a judge if he is related to him.
He shall not act or plead in any matter in which he is pecuniarily(monetary) interested.
He shall not appear for any organization, institution, society or corporation if he is the member of the executive committee of such organization, institution, society or corporation. Duty to the Clients (Rule 11-33) A client is entrusting a case with an Advocate because of his trust and confidence on him. In order to honour this trust and confidence the Bar Council of India rules 11-33 prescribes the following duties as duty to the client.
An Advocate is bound to accept a case in the courts or tribunals where he is normally practicing.
He shall not withdraw from a case which he has already accepted without sufficient reasons. He shall not withdraw from the case merely because his fees has not been paid in full. He shall withdraw from the case only after giving a reasonable notice to his client. After his withdrawal he must refund such part of the fees which is in excess in his hand.
He shall not accept a case in which he has reason to believe that he will be called as witness. If he already engaged in a case in which he is called as a witness then he should return the case. But, if his retirement will cause irreparable loss to the client then he can continue to appear as a lawyer.
He must make full and frank disclosures to his client relating to his connection with the parties and his interest in the controversy which may likely to affect his clients interest.
He should fearlessly uphold the interest of his client by fair and honourable means without the fear of any pleasant consequences
Professional Ethics for Lawyers
Course: Legal Ethics And Professional Practice
University: Chhatrapati Shahu Ji Maharaj University
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