Legal ethics by kailash rai PDF

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1: INTRODUCTION Legal ethics, accountability of lawyers and bench-bar relations is one of the four practical training papers included in the new syllabus for the LL.B degree. It requires the students to study thoroughly the various concepts like court, contempt of court, court of record, legal ethics, professional or other misconduct, etc. It requires the students to study the provisions of the Advocates Act, Contempt of court Act and also of the Constitution relating to the contempt of court.

1.1 Legal Ethics

Legal ethics may be taken to mean the body of rules and practice which determine the professional conduct of the members of bar. The main object of legal ethics has well been explained by the Chief Justice Marshall – “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 brain the promotion of the highest standards of justice, to establish honorable and fair dealing of the counsel with his client, opponent and witness, to establish a spirit of brother-hood in the bar itself and to secure that lawyers discharge their responsibilities to the community generally.”

Actually the legal profession is a profession of great honour. It has been created not for private gain but

for public good. It is a partner with the judiciary in the

administration of justice. An advocate is an officer of the court. The court acts on his statements. To maintain the honour of the legal profession, the Advocate Act has been passed and the Bar Councils have been established. The State Bar Councils and the Bar Council of India can punish the advocate for the professional or other misconduct. From the preamble of the rules made by the Bar Council of India it becomes clear that these rules contain canons of conduct and etiquette adopted as general guides and the specific mentioned thereof should not be construed as a denial of the existence of other equally imperative, though not specifically mentioned.

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The expression ‘professional or other misconduct’ under section 35 of the Advocates Act is not confined to the acts committed in professional misconduct in capacity other than professional capacity

capacity.

Even

the

is included within the

meaning of the expression ‘professional or other misconduct’. The Bar Council of India has made several rules so as to specify the duties of an advocate towards the court, client, opponent and colleagues, etc.

1.2 Accountancy

The rule provides that an advocate should keep accounts of the

client’s

money

entrusted to him and the account 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 particular. 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 proceeding. No advocate shall expect with the consent in writing of the client concerned, be at liberty to divert any portion of the expenses towards fees. The liberty to appropriate towards the settled fee due to him. Where the fee 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 proceeding 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. A copy of the client’s account shall be furnished to him on demand provided the necessary copying charge is paid. Rule makes it clear that an advocate shall not enter into arrangements whereby funds in his hands are converted into loans.

1.3 Accountability

The advocate has been made accountable. Section 35 of the Advocates Act provides that 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 to its disciplinary committee. The disciplinary committee can punish the advocate for the professional or other

misconduct. Where on receipt of complaint or otherwise the Bar Council of India has reason to believe that any advocate whose name is not entered on any State Roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee. This committee can punish the advocate

for

such

misconduct the professional or other misconduct includes the

of

duties

breach

specified by the rules made by the Bar Council of India. The breach of duty has thus been made punishable.

1.4 Contempt of Court

Contempt of court is a serious challenge to the majesty of law. Sometimes it is committed in ignorance i.e, the contemnor has no knowledge as to the meaning of the contempt. Consequently, a definition of the expression ‘contempt of c ourt’ is of much utility, but unfortunately there is no clear and definite definition of this expression. The Contempt of Court Act, 1971 defines it as a civil contempt or criminal contempt. Actually, it is not definition but classification of contempt o f

court. Actually,

contempt of court cannot be defined exhaustively but a workable definition is possible. It is an act or omission which interferes or tends to interfere with the administration of justice, provided that if the interference with the administration of justice is in the form of disobedience to the order of the court or breach of undertaking given to the court, it will amount to contempt o court only when the obedience or breach is willful.

Civil contempt has been defined as willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court. Criminal contempt of court means the publication of any matter or doing of any other act which has resulted or likely to result in any one of the following consequences(1) Scandalizes or tend to scandalize or lowers or tends to lower the authority of any court; (2) Prejudices or interferes or tends to interfere with, the due course of any judicial proceeding; or

(3) Interferes or tends to interfere with or obstruct or tends to obstruct the administration of justice in any manner e.g. interference with the court’s officers including the advocate discharging the professional function, interference with the parties, interference with the witness, abuse of the process of the court, etc. The contempt of court act makes provision in respect of the punishment for the contempt of court. Section 12 of the act provides that save or otherwise expressly provided in this act or in any other law, a contempt of court may be punished with simple imprisonment for a term which may extend to six months or with fine which may extend to 2000 rupees or with both.

The contempt of court Act provides remedies to the person charged with the contempt of court against the order of punishment. According to section 12 of the act the contemnor may tender apology to the court and if the court is satisfied that it has been made with real feeling of repentance it may remit the punishment awarded for the contempt. Section 19 provides that an appeal shall lie as of right form any order or decision of the high court in the exercise of its jurisdiction to punish for contempt (a) Where the order or decision is that of a single judge, to a Bench of not less than two judges of the Court; (b) Where the order or decision is that of a bench, to the Supreme Court: Provided that where the order or decision is that of a judicial commission in any union territory, such appeal shall lie to the Supreme Court.

1.5 Art of Advocacy

Justice Abbot Parry has mentioned several lamps of advocacy – honesty, courage, industry, wit, eloquence, judgment and fellowship. An advocate should be honest and man of integrity and character. An advocate who is straightforward and possesses these three jewels is appreciated by the court and the client alike. Mannerism also plays important role in getting success in the legal profession. He should be respectful to the court and try to win the confidence of the judge. He should not interrupt the principles of natural justice. The principle of natural justice is part of the guarantee of equality.

At present the court gives much emphasis on the concept of fairness. The concept of fairness requires fairness in action of the administration whether the action is judicial, quasi-judicial or administrative.

The administrative inquiry and judicial or quasi-

judicial inquiry both intend to arrive at a just decision and, therefore, both are required to observe the principle of fair play or fairness in action. It is now well established rule that every power should be exercised reasonably and not arbitrarily. Consequently, the administrative and judicial or quasi-judicial power both are required to be exercised justly and fairly and not arbitrarily and capriciously. However, the doctrine of fairness cannot be invoked to alter express terms of contract of statutory nature.

The term “fairness” and “natural justice” are used inter

changeably. The idea of natural justice is fair play of action. However, the concept of fairness is a term having the import wider than that of natural justice.

Fairness

includes the natural justice. The doctrine of fairness requires the observance of the principles of natural justice as well in addition to the principle of natural justice the doctrine of fairness provides certain procedural safeguards where none of the principles of the natural justice is applicable.

The doctrine of fairness also has some weakness. According to jain and jain if “natural justice” is vague and flexible, the concept of fairness is still more. Though “natural justice” is a flexible concept, yet it does embody a minimal content, absence of bias, right to know the other party’s case, duty to give reasons, and to arrive at findings on the basis of records etc.

2 : ETHICS OF LEGAL PROFESSION

2.1 Meaning, Nature and Need 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 law profession means the body of the rules and practice which determine the professional conduct of

the

members of bar. When a person becomes an advocate his relation with men in general is governed by the general rules of law but his conduct as advocate is governed by the general rules of law but his conduct as advocate is governed by the special rules of professional ethics of the bar. The main object of the ethics of the law profession is to maintain the dignity of the legal profession and the friendly relation between bench and bar. Chief justice Marshall has observed that “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 honorable and fair dealing of the counsel with his client opponent and witness, to establish a spirit of brotherhood in the bar itself, and to secure that lawyers discharge their responsibilities to the community generally.”

The American Bar Association Committee has well explained the need of the code of legal ethics. It has observed that the legal profession is necessarily the keystone of the arch of government. The future of the country depends upon the maintenance of the Shrine of Justice pure and unrolled by the advocates and it cannot be so maintained, unless the conduct and motive of the members of the legal profession are what they object to be.

It, therefore 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 ought to be. It should be defined and measure by such ethical standards, however high as

are

necessary to keep the administration of justice, pure and unsullied. Such standards may be crystallized into written code of professional ethics and lawyers failing to

conform thereto should not be permitted to practice or retain membership in professional organization. Legal profession is not a business but a profession. It has been created by the state for the public good. Consequently, the essence of the profession lies in three things(1) Organization of its members for the performance of their function; (2) Maintenance of certain standards, intellectual and ethical, for the dignity of The profession; and (3) Subordination of pecuniary gains to efficient service.

The lawyers and the judges are considered the protector of justice; because of such an important role of the lawyers nothing should be done by them to lessen the people’s faith in honesty and integrity of the legal profession. Initially a written code of conduct did not find favor in England but later on the general council of the bar published a book containing a complete code for the guidance of the lawyers. In India the exhaustive code of conduct for lawyers has been provided by the Bar Council of India in the exercise of its rule-making power under section 49(1)(c) of the Advocates Act, 1961.

Even prior to the Advocates Act, 1961 the provision for punishment for misco nduct is found. Section 10 of the Indian Bar Council Act, 1926 contained provisions for the punishment for misconduct. Section 10 of the Indian Bar council Act, 1926 contained the following provision(1) The high court may in the manner hereinafter provided reprimand, suspend or remove from practice any advocate of the high court whom it finds guilty of professional or other misconduct. (2) Upon receipt of complaint made to it by any court or by the bar council or by any other person that any such advocate has been guilty of misconduct, the high court shall, if it does not summarily reject the complaint, refer the case for inquiry either to the bar council or after consultation with the bar council to the court of the district judge and may on its own motion refer any case in

which it has otherwise reason to believe that any such advocate has been so guilty. Besides this Legal Practitioners Act, 1879 also contained provisions for punishing the advocates for misconduct. The provisions of this act were as follow--Section 13 suspension

and dismissal of pleaders and mukhatars guilty of

unprofessional conduct. Section 14

procedure when charge of unprofessional conduct is brought in the

subordinate court or revenue office. Section

15 power to call for record in case of acquittal under section 14.

2.2 Professiona Ethics Section 49(1)(c) of the Advocates Act, 1961 empowers the Bar Council of India to make rules so as to prescribe the standards of professional conduct and etiquette to be observed by the advocates. It has been made clear that such rules shall have only when they are approved by the Chief Justice of India. It has been made clear that any rules made in relation to the standards of professional conduct and etiquette to be observed by the advocates and in force before the commencement of the Advocates (Amendment) Act, 1973, shall continue in force, until altered or repealed or amended in accordance with the provisions of this act.

Chapter II of part VI of the rules framed by the Bar Council of India deals with the standards of professional conduct and etiquette. It contains several rules which lay down the standards of professional conduct and etiquette. These rules specify the duties of an advocate to the Court, client, opponent and colleagues, etc. The rules mentioned in chapter II of part VI of the rules of Bar Council of India may be discussed as follow-

(A) Duty to court The Bar Council of India has made certain rules so as to prescribe duties of an advocate to the court. Such duties may be explained as follow1) During the presentation the case and while acting otherwise as an advocate before the court it is required to conduct himself with dignity and self respect. It is his duty to submit his grievances to the proper authority.

The rules

empower the advocate to make complaint against judicial officer but it should be submitted to proper authority. 2) An advocate is required to maintain towards the court respectful

attitude

bearing in mind that the dignity of judicial office is essential for survival of free community. 3) Rule has made it clear that no advocate shall influence the decision of the court by any illegal means. It prohibits the private communication with the judge relating to pending case. If any advocate attempt to influence

the

decision of court by illegal means. It prohibits the private communication with the judge relating to pending case. If any advocate attempt to influence the decision of court by illegal means then it may amount to misconduct. 4) The rule requires the advocate to use his best effort to restrain and prevent his client from resorting to sharp or unfair practice opposite from council or parties which the advocate himself ought not to do. 5) An advocate shall appear in court at all times only in the prescribe dress 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 Advocates Act, 1961 if the sole or any member thereof is related to the advocate as father, nephew, grandfather, son, grandson, uncle, brother, first cousin, husband, mother, wife, daughter, sister, niece, sister-in-law, mother-in-law.

7) The rule requires the advocate not to wear bands or gowns in public place other than in court except on such ceremonial occasions and at such places as the Bar Council of India and the court may prescribe. 8) The rule provides that an advocate shall not appear in or before any court or tribunal or any other authority for or against an organization, institution, society, or corporation if he is a member of executive committee of such organization, institution, society, or corporation. 9) An advocate shall not act or plead in any matter in which he himself has some pecuniary interest.

(B) Duty towards Client Rule 11 to 33 deal with the duties of an advocate to his client. These rules may be explained as follow1) Rule 11 provides that an advocate is bound to accept any brief in the court or tribunal or before any authority which he proposes to practice at fee consistent with his standing at bar and also nature of case. 2) Rule 12 provides that an advocate shall not withdraw from engagement once accepted without sufficient cause and unless reasonable and sufficient notice given to the client. 3) Rule 13 provides that an advocate should not accept the brief or appear in a case in which he has reason to believe that he will be a witness. 4)

Rule 14 provides that an advocate shall at the commencement of his engagement and during the 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.

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5) Rule 15 provides that it is the duty of an advocate to uphold the interest of his client fearlessly by all fair and honorable means without regard to any unp...