“Lawyers throughout the world are specialised professionals who place the interests of their clients above their own, and strive to obtain 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 aspiration to maintain a reasonable standard of living.” -International Bar Association’s International Principles on Conduct for the Legal Profession
SYNOPSIS
The above excerpt sums up the important role that lawyers play in society and the demanding responsibilities they have. This paper aims to highlight the importance of ethics in legal profession and to set out the key principles that apply to the legal profession. It is not intended to serve as a complete code of conduct. Instead, it is a brief practical guide for those in legal profession so that they may understand the importance of maintaining high professional standards and are aware of their main duties.
INTRODUCTION
The Legal Profession plays an important role in the administration of Justice. The Lawyers are considered to be the centre of the administration of justice. Lawyers are the one who are related to the parties, they listen to the party and collect all the relevant legal materials relating to the case and argue the case in court, thus helping the Judge to arrive at the correct and fair judgment. Without the assistance of the lawyers it would be a superhuman task for the Judge to come at the satisfactory judgment. Justice P.N. Sapru has stated that, ‘justification for the existence to the counsel is that each side to the controversy should be in a position to present its case before an impartial tribunal in the best and most effective manner possible.’[1]
The Lawyers play important role in the maintenance of peace and order in the society. Learned C.L. Anand has rightly stated that the advocates share with the judges the responsibility for maintaining order in the community. They do not promote stripes but settle them. They stand for legal order which is one of the noblest functions in the society. The order which the advocates seek is not of grave but based on justice. It is the foremost function of the advocates to fulfil the desire of their clients by providing them Justice. It is the desire of every human on the earth.
The Lawyers also play a very important role in law reform also. “By reason of the experience gained in daily application and interpretation of laws, lawyers are best aware of the imperfection, of the legal system and constitute the most competent class of men to advise on law reform and to promote popular enthusiasm and support for it. The most difficult part of the process of legislation is drafting of its provisions and no one is better fitted to give guidance on this than the lawyers.”
Thus, it can be said that the legal profession is a profession of great honour. This is made for public welfare, for public good. This is not for making money but to provide Justice to the right person. An advocate is an officer of the Court and is required to maintain towards the Court a respectful attitude bearing in mind that the dignity of the judicial office. The Supreme Court has rightly observed that the legal profession is a partner with the judiciary in the administration of justice.[2]
WHAT ARE ETHICS?
Ethics are principles and values, which together with rules of conduct and laws, regulate a profession, such as the legal profession. They act as an important guide to ensure right and proper conduct in the daily practise of the law. Areas covered by ethical standards include:
- Independence, honesty and integrity.
- The lawyer and client relationship, in particular, the duties owed by the lawyer to his or her client. This includes matters such as client care, conflict of interest, confidentiality, dealing with client money, and fees.
- The lawyer as an advocate, in particular, a lawyer’s duties to the court.
- Competence, which encompasses academic qualifications and training, and meeting other practising requirements such as holding a valid practising certificate or licence.
- A lawyer’s duties to persons other than a client.
- A lawyer’s duties to other lawyers.
- Advertising of legal services.
- Human rights and access to justice
NEED FOR PROFESSIONAL ETHICS
The legal profession is necessarily the keystone of the arch of Government. If it is weakened, and allowed to be a subject of the corroding and demoralising influence of those, who are controlled by craft, greed or gain or other unworthy motive, sooner or later the arch must fall. The future of the country depends upon the maintenance of the shrine of the justice, pure and unrolled by the advocates. It cannot be so maintained, unless the conduct and motives of the members of the legal profession are what they object to be.
Therefore, it 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 is ought to be. The committee has further observed that members of Bar, like Judges, are officers of the court and like judges, they should hold office only during good behaviour and this good behaviour should be defined and measured by ethical standards, however high, as necessary to keep the administration of justice, pure and unsullied. Such standard may be crystallized into a written code of professional ethics and the lawyer failing to conform thereto, should not be permitted to practise or retain membership in the particular organisation.
IMPORTANCE OF PROFESSIONAL ETHICS IN LEGAL PROFESSION
First, because lawyers and judges are integral to the working-out of the law and the Rule of Law itself is founded on principles of justice, fairness and equity. If they do not adhere and promote these ethical principles then the law will fall into disrepute and people will resort to alternative means of resolving conflict. The Rule of Law will fail with a rise of public discontent.
Second, lawyers are professionals. This concept conveys the notion that issues of ethical responsibility and duty are an inherent part of the legal profession. It has been said that a profession's most valuable asset is its collective reputation and the confidence which that inspires. The legal profession especially must have the confidence of the community. Justice Kirby of the Australian High Court once noted:
The challenge before the legal profession....is to resolve the basic paradoxes which it faces....To reorganise itself in such a way as to provide more effective, real and affordable access to legal advice and representation by ordinary citizens. To preserve and where necessary, to defend the best of the old rules requiring honesty, fidelity loyalty, diligence, competence and dispassion in the service of clients, above mere self-interest and specifically above commercial self-advantage.
Third, because lawyers are admitted as officers of the court and therefore have an obligation to serve the court and the administration of justice.
Thus, fundamental aim of legal ethics is to maintain the honour and dignity of the law profession, to secure the spirit of friendly cooperation between the Bench and the Bar in the promotion of higher standard of justice. The legal profession is not a business but a profession created by state for public good.
THE BAR COUNCIL OF INDIA RULES
The Advocates Act, 1961 empowers the Bar Council of India to frame certain rules. Section 49 (1) (c) of the Act grants general power to The Bar Council of India to make rules relating to the standards of professional conduct and etiquette to be observed by advocates. The rules formed by Bar Council of India is given in Chapter – II of Part IV of the Bar Council of India Rules tells the duty of an Advocate to the Court, to the client, to opponent, to colleagues etc.
Preamble of Part IV, Chapter II reads and makes the following points clear.
- An advocate shall, at all times, comport himself in a manner befitting his status as an officer of the court, a privileged member of the community and a gentleman;
- He should bear in mind that what may be lawful and moral for a person who is not a member of Bar, or for a member of the Bar in his non- professional capacity may still be improper for an Advocate;
- Without prejudice to the generality of the foregoing obligation, an Advocate shall fearlessly uphold the interests of his client, and in his conduct conform to the rules hereinafter mentioned both in letter and in spirit.
- The rules hereinafter mentioned contain canons of conduct and etiquette adopted as general guides; yet the specific mention there of shall not be construed as a denial of existence of other equally imperative though not specifically mentioned.
Section 1 (of chapter II of Part IV of the Bar Council of India Rules) frames code of conduct and etiquette of Advocates and prescribes certain duties of an Advocate of the Court.
In view of the above, following duties have been briefly explained:
LAWYERS TO COURT
- Respecting the court
- Follow appropriate dress code
- Don’t take up cases of clients who insist on use of unfair means
- Have a dignified behaviour
LAWYERS TO LAWYERS
- Do not promote unauthorized practice
- Avoid advertisement and solicitation of work
- Appear after consent of fellow advocate
LAWYERS TO CLIENT
- Don’t take cases where the lawyer has to be a witness
- Never withdraw service halfway
- Don’t refuse a brief
- Give client top priority
- Don’t try to tamper with the evidence or suppress it
- Act according to the client’s instructions
- Fees adjustment as per liability is a strict no
- Bidding for purchasing property arising of legal proceeding is a strict no
- Don’t take undue advantage of the client’s trust
- Variation in charges depending upon the success of the case is a strict no
- Proper accounting of everything is important
- Absolute clarity about things with the client is necessary
LAWYERS TO OPPONENT
- Fulfill the promises made
- No negotiations with party directly
The bar association has also stated that the license of the lawyers who do not abide by the code of ethics would be confiscated besides facing trial and imprisonment if found guilty.
FIDUCIARY DUTIES
The relation between advocate and his client is fiduciary. It is of confidential nature requiring the high degree of fidelity and good faith. Justice Sen has observed that relation between an advocate and his client is purely personal involving highest personal trust and confidence.[3]
RIGHT OF LIEN
In case of R.D. Saxena v. Balram Prasad Sharma[4], SC has held that an advocate cannot claim a lien over the litigation files entrusted to him for his fees.
CODE OF CONDUCT FOR JUDGES
An independent and honourable judiciary is indispensable to justice in our society. A judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.
A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
A judge should not allow family, social, political, financial, or other relationships to influencejudicialconduct or judgment.
A judge should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.
A Judge should perform the duties of the office fairly, impartially and diligently and can engaged in extrajudicial activities that are within obligations of judicial office.
A judge should be faithful to, and maintain professional competence in, the law and should not be swayed by partisan interests, public calmer, or fear of criticism.
A judge should not act as a leader or hold any office in a political organization;
Should not make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office; solicit funds for, pay an assessment to, or make a contribution to a political organization or candidate, or attend or purchase a ticket for a dinner or other event sponsored by a political organization or candidate.
A judge should resign the judicial office if the judge becomes a candidate in a primary or general election for any office.
CONFLICT OF INTEREST
It is well settled that a solicitor has a fiduciary duty to his or her client. That duty carries with it two presently relevant responsibilities. The first is the obligation to avoid any conflict between his duty to his client and his own interests - he must not make a profit or secure a benefit, at the expense of his client's expense. The second arises when he endeavours to serve two masters and requires.... full disclosure to both.
Conflicts of interest have given rise to a number of legal and disciplinary actions. It is an area that is commonly identified by lawyers as a problem in legal practice. Conflicts of interest are not all that easy to resolve because some interests will require that the lawyer not act for the person while other conflicts may still allow for the lawyer to act for both parties.
It is also an area that requires the balancing of two public interests; namely the interest in clients having full confidence in their lawyers, including the protecting of their confidences, and on the other hand, the interest in the freedom of a lawyer to take instructions and for the client to be represented by the lawyer of his or her choice.
Also, there is the case that the lawyer has divided loyalties - owing a duty to the court while at the same time owing a duty to the client. On occasions, these duties will be in conflict. In these cases, the lawyer is obliged to fulfil his or her obligations to the court. This is not generally understood by clients, or by some lawyers who carry the notion of the duty to the client too far and engage in practices that are unethical and that go to defeat the interests of justice. Making an allegation of fraud in circumstances where there is no evidence to support the claim is an example. Other examples include deliberately delaying proceedings, perhaps in order to force a settlement from the opposing client who is concerned about increasing costs; or issuing writs without their being any proper legal or factual foundation.
This is where legal ethics comes in. A commitment to legal ethics involves a commitment to the introduction of Codes of Ethics or Standards of Professional Practice. An example is the standards reflected in the International Bar Association General Principles of Ethics. However, not all jurisdictions have Professional Codes and not all of those that do give sufficient attention to their enforcement. In any case, the lawyer who acts in accordance with a professional code of ethics may still be engaging in unethical practice.
In Chandra Shekhar Soni v. Bar Council of Rajasthan and Ors.,an advocate who was representing one party in a criminal case switched sides and began representing the opposite party. It was held by the Supreme Court that “…it is not in accordance with professional etiquette for an advocate while retained by one party to accept the brief of the other. It is unprofessional to represent conflicting interests except by express consent given by all concerned after a full disclosure of the facts…. Counsel’s paramount duty is to the client, and where he finds that there is conflict of interests, he should refrain from doing anything which would harm any interests of his client. A lawyer when entrusted with a brief is expected to follow the norms of professional ethics and try to protect the interests of his client in relation to whom he occupies a position of trust.” The Supreme Court upheld his being found guilty of malpractice by the Bar Council of India in disciplinary proceedings, and he was suspended from practise for the period of one year.
The consequences of a conflict of interest situation for the lawyer can be severe and costly. For example, acting with a conflict of interest can result in civil liability for professional malpractice as well as disciplinary action. Some very serious consequences also flow from a proven claim in contract, tort or equity, including: Ø
- disqualification from representation of one or more clients;
- forfeiture of fees charged; the inability to charge for work in progress and other time invested;
- embarrassment, inconvenience and aggravation of defending a malpractice claim or investigation;
- lost time spent on defending a malpractice claim or investigation.
Thus, it is clear that lawyers have to be very careful while dealing with potential and current clients, so as to ensure that a conflict of interest situation does not arise. When such a situation does arise, the best plan of action is to request the new client to seek other representation so that the interests of the current client are not adversely affected. However, if a lawyer is already representing two different clients, and a potential conflict of interest situation arises, he may choose to disclose the relevant non-confidential aspects of the potential conflict to both of them and seek their express written consent to his continued representation of them, provided that it is clear that he can represent the interests of one client without adversely affecting the interests of the other. If, however, the two interests are directly conflicting ones, the advocate will have to remove himself from the matter rather than face action for professional negligence or malpractice, the consequences of which have already been outlined above.
In India, the counsel's relation with his client is primarily a matter of contract. The relation is in the nature of agent and principal. The agreement determines to what extent the counsel can bind his clients by his acts and statements; what shall be its remuneration, whether he will have a lien on his client's property, etc. It is evident, however, that as counsel is also conform to the ethical code prescribed for him by law and usage, he cannot be a mere agent or mouthpiece of his clients to carry out his biddings.
CONCLUSION
To conclude the above, the professional ethics are also termed as the duties to be followed, these are the morals and the basic courtesy which every person in this profession should know. These are not only the duties to be performed because the Bar Council has made the rule but these are the basic manners which one should incorporate within them. These are the duties towards the Court, Client, Colleague or Opponent.
The performance of the duty by the Advocate defines the determination, dedication and loyalty towards the profession. The profession of law is honourable and it is expected from every person who are in this profession to be honest and work in upright manner. And any deviation in their performance of duty should be taken seriously. An Advocate in this profession has many obligations towards court, client, judge, opponent, colleagues, etc. The Advocate who does not work with sincerity, who does not follow the rules of conduct is said to have misconducted in his profession. He is guilty of the misconduct of duty for which he is punished. In order to avoid misconduct, one should work in proper and appropriate manner not for the sake of getting punished but for being loyal towards them, their profession.
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, to establish honourable and fair dealings of the counsel with his client, opponent and witnesses, to establish the spirit of brotherhood in the Bar itself; and to secure that lawyers discharge their responsibilities to the community generally. Legal profession is necessarily the keystone of the arch of government. It has been created by the state for the public good. Consequently, the essence of profession lies in two things:
Organisation of its members for the performance of their function.
Maintenance of certain standards, intellectual and ethical, for the dignity of the profession.
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