ETHICS AND MORALITY OF LEGAL PROFESSION
-Written by Khushi Sheikh
1. Introduction
In contemplating lawyers, judges, and other legal practitioners, a distinct portrayal often surfaces: individuals adorned in robes, engaging in legal debates, and rendering decisions that wield transformative power over lives.
Yet beneath this facade lies a bedrock that sustains the legal systemethics. Rooted in the Greek term "ethos," signifying "way of living," ethics is a branch of philosophy concerned with human conduct, particularly individual behavior in society. It scrutinizes the reasoned justification for our moral judgments, exploring what is morally right or wrong, just or unjust.[1] In simpler terms, ethics encapsulates the moral principles and standards guiding our actions. Within the legal profession, these principles assume heightened importance.
2. Significance of ethics in legal profession
The legal system, the cornerstone of any government, is upheld through the administration of justice. A robust and effective justice system is crucial for maintaining the rule of law, as mandated by the Constitution, and for fostering peace and stability within the nation. Courts, judges, and lawyers are entrusted as the torchbearers and true upholders of this process. As courts rely on the pleadings presented by lawyers, the responsibility rests on their shoulders. If lawyers fail to uphold ethics in their professional conduct, the confidence of the people may be shaken, and access to justice could be hindered. While an exhaustive list of desirable qualities is challenging, honesty, fairness, equity, and integrity are key in the pursuit of justice. The code of professional responsibility outlines conduct that is "rational," "judicious," and aligns with the "norms of the profession and the rule of law."
The relationship between lawyers and clients is rooted in the uberrima fides principle, emphasizing utmost honesty. Violating this trust not only obstructs the administration of justice but also contributes to the decline of the noble legal profession. Any such incident casts a dark shadow on the entire fraternity, making professional ethics indispensable. The well-known maxim, "Not only must justice be done; it must also be seen to be done," applies not only to judges but also to lawyers in fulfilling their duties as officers of the court.
3. The Advocates Act 1961
The All India Bar Committee proposed recommendations aligned with the Law Commissions suggestions on legal ethics and the legal profession. These recommendations led to the enactment of the Advocate Act, 1961, by the Legislature. Subsequently, the Bar Council of India was established by Parliament as per Section 4 of the 1961 Act. Section 7 of this Act outlines the functions of the Bar Council of India (BCI). Notably, the BCI sets forth standards of professional code of conduct and etiquettes for advocates under Section 7(1)(b). Interestingly, the same function is reiterated under Section 49(1)(c), granting the Bar the authority to establish rules for the standards of professional ethics to be adhered to by advocates.
4. Rules on Advocates Duty towards Court
The Bar Council of India imposes a set of comprehensive duties on advocates, reflecting the high standards expected in the legal profession:
1. Actin a dignified manner: Advocates are entrusted to present their cases before the court with not only legal acumen but also with a sense of self-respect and dignity. This duty, as established in the case of In re D.C. Saxena v. Honble The Chief Justice of India[2], not only empowers advocates to uphold their own standing but also allows them to file complaints against judicial officers if necessary.
2. Maintain a respectful attitude in court: The survival of a free community is deemed precarious if advocates fail to show due respect and recognize the dignity of the judicial office. The case of U.P. Sales Tax Service Association v Taxation Bar Association [3], emphasizes the pivotal role of advocates in upholding the spirit of the court.
3. Avoid private communication: Advocates are expressly prohibited from engaging in private communication with judges, especially concerning pending cases. The case of Rizwan-Ul-Hassan v. State of U.P. [4] clarifies that any attempt to influence the court's decision through illicit means, including bribery or private communication, is considered a grave form of professional misconduct.
4. Refuse to act unlawfully towards the opposition: Advocates are not mere conduits for their clients; they are obligated to prevent clients from resorting to unjust practices related to the court. This duty extends to explaining the implications of such practices, and advocates are empowered to refuse representation if clients persist in pursuing unlawful means.
5. Exercise judgment and refrain from using strong language: Advocates are expected to exercise their own judgment in presenting cases and not merely echo their clients' positions. The case of M.Y. Shareef Anothers. V. Honble Judges of Nagpur High Court Ors. [5] underscores that advocates must avoid scurrilous remarks during pleadings, showcasing their own judgment in the process.
6. Appear in a legitimate dress code: Recognizing the solemnity of the legal profession, advocates are required to adhere to a proper dress code while appearing in court. Instances have occurred where cases faced delays or rejections due to advocates not complying with the prescribed dress code, emphasizing the importance of this rule.
7. Refuse to appear before relations: Section 30 of the Advocates Act, 1961, introduces a vital ethical guideline prohibiting advocates from appearing in cases where a family tie exists between the legal officer and the advocate. This rule aims to prevent conflicts of interest and biases that may compromise the fairness of legal proceedings.
8. Avoid wearing bands or gowns in public places: Advocates are directed to refrain from using their distinctive attire, such as bands or gowns, in public places unless specifically prescribed by ceremonial occasions sanctioned by the Bar Council of India and the court. This underscores the reserved and ceremonial nature of legal attire outside of formal legal proceedings.
5. Rules on Advocates Obligation towards Client
An advocate, in addition to owing an obligation to the court, is also bound by Rule 11 to Rule 33, delineating an advocates duties towards the client:
1. Bound to accept briefs: Rule 11 stipulates that an advocate is obliged to accept any brief within the court, provided he intends to take it up without any charge at the Bar chamber. In the case of S.J. Chaudhary v. State [6], the Supreme Court emphasized that failure to attend a case daily could lead to a breach of professional duty, underscoring the impact on clients when advocates neglect their courtroom responsibilities.
2. Not to withdraw from service: Rule 12 mandates that an advocate must give the client reasonable and sufficient notice before withdrawing from an engagement. Withdrawal without reasonable grounds is prohibited, and if done with valid cause, the advocate is obligated to refund the fee, even if partially earned.
3. Not to appear in matters where he himself is a witness: Rule 13 addresses potential conflicts of interest, prohibiting an advocate from representing a party if he is also a witness for that party. In Kokkanda B. Poondacha v. K.D. Ganpathi[7] , the Court upheld this rule, recognizing the potential disadvantage to the parties involved.
4. Full and frank disclosure to the client: Rule 14 requires an advocate to be forthright with the client before commencing an engagement. Honest disclosure of any connections with the opposing parties or interests in the case is necessary to avoid controversies and maintain the client's judgment.
5. Uphold interest of the client: Rule 15 asserts that an advocate's loyalty lies with the client, and he must fearlessly and honestly uphold the client's interests through fair means, irrespective of potential unpleasant consequences.
6. Not to suppress material or evidence: Rule 16 explicitly condemns the suppression of material evidence in a court of law. Such an act is deemed a gross breach of professional conduct, especially in criminal trials where it may affect the innocence of the accused or the justice of the victim.
7. Not to disclose communications between the client and himself: Rule 17 highlights the vital obligation of an advocate to maintain confidentiality. The fiduciary relationship between the client and the advocate underscores the seriousness of breaching confidentiality, a principle reinforced in Section 126 of the Indian Evidence Act, 1872.
8. Not charge depending on the victory of cases: Rule 20 prohibits advocates from charging fees contingent upon the success of a claim. Such a practice is deemed contrary to public policy and runs afoul of Section 23 of the Indian Contract Act.
9. An advocate must not loan money to his client: Rule 32 warns against advocates lending money to clients, as it creates a conflict of interest that may compromise the advocate's judgment and hinder the client's ability to make decisions before entering into an engagement.
10. Not appear for opposite parties: Rule 33 mandates that an advocate may not represent the opposing party after withdrawing from a case on behalf of the former party. This rule aims to preserve ethical boundaries and avoid potential conflicts of interest.
6. Professional misconduct
While the Advocates Act, 1961, does not explicitly define 'misconduct,' it employs the term 'unprofessional conduct.' 'Professional Misconduct' is construed as any willful act with improper intent, characterized by its unlawfulness, even if not inherently wrongful. In the case of State of Punjab v. Ram Singh,[8] the Hon'ble Supreme Court elucidated that 'misconduct' encompasses elements such as moral turpitude, improper or wrongful behavior, unlawful actions, willfulness, forbidden acts, transgressions, carelessness or negligence in duty performance, or engagement in acts of illegal or forbidden quality. This comprehensive interpretation underscores the varied nature of behaviors that can be deemed as professional misconduct within the legal profession.
7. Punishment for misconduct
Section 35 of The Advocates Act, 1961 deals with professional misconduct by advocates, placing the responsibility on the disciplinary committee. This committee, following a hearing, has the authority to dismiss a complaint, issue a warning, suspend the advocate from practice, or even remove the advocate's name from the state roll of advocates. These measures are crucial for maintaining professional standards and safeguarding the integrity of the legal profession.
8. Contempt of court
Contempt of Court is the offense of undermining the dignity or authority of a court, aimed at protecting public interests by preserving the authority of the court and upholding public confidence in the administration of justice. The Supreme Court and High Courts derive their contempt powers from the Constitution under Article 129 and Article 215, respectively.
The Contempt of Court Act, 1971, outlines the procedure for investigating and punishing contempt. There are two types of contempt:
1. Civil contempt: Defined by Section 2(b) of the Contempt of Courts Act, 1971, it involves willful disobedience to a court order or the willful breach of an undertaking given to a court.
2. Criminal contempt: As per Section 2(c) of The Contempt of Courts Act, 1971, it encompasses the publication of any matter, whether spoken or written, or through signs, visible representation, or other means. Criminal contempt includes acts such as scandalizing or lowering the authority of the court, prejudicing or interfering with judicial proceedings, or obstructing the administration of justice in any manner.
These distinctions in contempt serve to maintain the sanctity of the legal system by addressing both willful disobedience to court orders (civil contempt) and actions that may undermine the authority and due process of the court (criminal contempt).
9. Punishment for contempt of court
Section 12 of the Contempt of Court Act, 1971 stipulates the punishment for contempt, involving simple imprisonment for up to six months and/or a fine of up to ?2,000, or both.
In the case of Supreme Court Bar Association v. Union of India Anr[9], the Judge asserted that Parliament could prescribe procedural aspects for Contempt of Court, making Section 12(1) of the Contempt of Court Act, 1971, applicable in the Supreme Court and High Courts, allowing a maximum fine of ?5,000 and a term of six months.
However, in Zahira Habibullah Sheikh Anr. v. State of Gujarat Ors.,[10] it was held that the punishment outlined in the Contempt of Court Act, 1971, applies only to the High Court, serving as a guide for the Supreme Court. The judgment's lack of rationality raised concerns given the extensive powers vested in the Supreme Court by the Indian Constitution.
A similar stance was taken in Sudhakar Prasad v. Govt. of A.P. and Ors.[11], where the Supreme Court reaffirmed the inherent nature of contempt powers, emphasizing that the Contempt of Court Act provisions cannot restrict the exercise of jurisdiction under Article 129 and Article 215 of the Constitution.
10. CONCLUSION
Professional ethics play a pivotal role in ensuring the independence, competence, efficiency, and responsiveness of legal professionals. In the presence of broad ethical guidelines, advocates should adhere to client care procedures, prioritize the client's interests, and fulfill their duties with integrity. Ethical principles, such as impartiality and honesty, reinforce public confidence in the administration of justice.
The primary objective of legal conduct is to uphold the honor and dignity of the legal profession, fostering a spirit of cooperative interaction with clients, opponents, and witnesses. Establishing respectful and impartial cooperation within the legal community itself contributes to a sense of brotherhood. It is crucial for advocates to fulfill their duties to the general public, recognizing that the legal profession serves as a cornerstone of government and exists for the benefit of the community.
As the ultimate representatives of the law, advocates bear significant responsibility in developing a robust code of conduct, educating both advocates and the public about ethics, and ensuring ethical standards through disciplinary actions. Without a moral foundation, the legal profession, and consequently, the justice system, may be disparaged.
- The adocates Act,1961.
- The Contempt of Court Act, 1971.
[1] What is ethics?, available at: https://www.canada.ca/en/treasury-board-secretariat/services/values-ethics/code/what-is-ethics.html (last visited on Dec 10, 2023).
[2] 1996 SCC (7) 216.
[3] 1996 AIR 98.
[4] 1953 AIR 185.
[5] 1955 AIR 19.
[6] 1985 CriLJ 622.
[7] (2011) 12 SCC.
[8] 1992 AIR 2188.
[9] (1998) SCC 225.
[10] 2004 (5) SCC 353.
[11]( 2001) 1 SCC 516.
