In all civilized societies ,the legal profession occupies a unique and responsible position. Sir Owen Dixon,the great Australian Lawyer and later Chief Justice of his country, said in his address on the eve of taking oath of office:
“It is the duty of the barrister to stand between the subject and the Crown, and between the rich and the poor, the powerful and the weak . It is necessary that while the Bar occupies an essential part in the administration of Justice, the barrister would be completely independent and work entirely as an individual drawing his own resources of learning, ability and intelligence.”
Legal profession is not a business but a profession. It has been formed by the state for public good. Consequently, the essence of the profession lies in the following:
- Maintenance of certain standards, intellectual and ethical for the dignity of the profession.
- Organization of its members for the performance of its functions.
- Subordinate of pecuniary gains to efficient services.
Rules of conduct for an Advocate
The Bar Council of India has framed standard of conduct and etiquette of the Bar. They are called rules, and have been made is exercise of its rule making power under secs. 49(1)(c) of Advocates Act 1961. In so far as they are covered by the Rules of the Bar Council, they are statutory; the rest are traditional, and have their sanction is hoary past.
- In no circumstances may a lawyer be a party to a breach of the law.
- A lawyer may advise a client how to avoid a legal burden or restriction but is not bound to lend his services to an attempt to evade the policy of the law.
- No lawyer owes a duty to the court to assist it in the administration of justice, and with respect to certain matters this duty overrides his duty to his clients.
- He must not be a party to the fabrication of false evidence. If he knows that his client has given false oral evidence, he should withdraw from the case if the client refuses to correct it. If the client insists on a false affidavits being filed, he should refuse to continue to act for him.
- He should take care not to say anything to a client of whose honesty he is not sure, that may show the client how to improve his case by false evidence.
- He must not present to the court on behalf of his client a dishonest claim or defence; but a defence that does not more than put the plaintiff to proof is proper.
- Where the laws lays on a litigant a duty to disclose facts, it is the duty of the legal advisor to see that true disclosure is made, and if the client refuses to retire from the case.
- He must not abuse the process of the court in order to injure the opponent or to benefit himself.
- When appearing as an advocate, he must disclose to the court any relevant legislation or cases of which he is aware.
- A solicitor must deal honestly and carefully, and in accordance with instructions, with money or other property held on behalf of his client. He must keep proper books and a separate account for the moneys of his client.
- A solicitor must not allow his business to be conducted by unqualified persons.
- An Advocate is bound, except in special cases, to accept any brief offered to him, provided it is to appear in court in which he profess to practice and a suitable fee is offered.
- When the client can pay, a lawyer should not charge less than the fees allowable on taxation. But where the client is poor, there is no objection of charging a low fee or no fee at all.
- A lawyer must not vary his fees according to the success or failure of the cause. However, in a case of poor client with a bonafide case, a solicitor may proceed on the basis that his costs will be met in the event of success, out of what is recovered. In the case of barristers this relaxation of the rule is not recognized.
- A lawyer must not solicit business, (except to a strictly limited extent in the case of solicitors) advertise himself either directly or indirectly.
- A lawyer must devote himself entirely to his client’s interest. He must disclose any personal interest inconsistent with the client’s interest, and he cannot represent two or more clients whose interest conflict.
- A lawyer must not, except with the clients consent, at any time disclose confidential information or use it otherwise than on behalf of the client.
- A lawyer must make every legitimate effort to win his client’s case, and must not exercise a private judgment as to the soundness of any reasonable arguments or the propriety of any client or defense allowed by the law.
- A lawyer should not allow a client to entertain false hopes of success in litigation, and where success is doubtful, should make the position clear to him.
- In the conduct of a case it is lawyer’s duty to do for his client all that the client may legitimately do for himself. More, particularly, in criminal cases, he may defend a prisoner whom he knows to be guilty provided he does not make a false case or attempt to place the guilt on another person.
- A lawyer must not express to the Tribunal his personal opinion in the matter arising in the case.
- A lawyer owes a duty to the opponent not to use unfair methods against him. More especially, he must not deliberately convey to the jury information not admissible in evidence, nor makes needless attacks on the reputation of the opponent or his witnesses, or otherwise harass them unduly.
- A lawyer may make concessions to the convenience of the opponent and his legal advisors, and he is not bound to take advantage of errors that can be cured, where the only ultimate result is delay or increased costs to the opponent. But he may not overlook, without the clients consent, an error that is fatal to the opponent or even one that will assist his own client’s case.
- In contentious business a barrister may not accept instructions from any person but a solicitor.
- As a general rule, witness should not be interviewed in one another’s presence.
- A barrister fees should be marked on the brief, either by the solicitor or by himself before the commencement of the hearing. It is improper to alter the fees marked on the brief after the case is finished.
- A solicitor is bound to pay a barrister’s fees whether or not he has received his money from the client.
- An advocate should not agree to refund part of his fees in case they are not allowed on full on taxation, nor should he give a receipt for fees not actually paid nor accept a post dates cheque.
Advocate and Court: Duty towards Court
- Advocate is an officer of justice and friend of the Court:
The cardinal principle which determines the privileges and responsibilities of advocate in relation to the court is that he is an officer to justice and friend of the court. This is the primary position. A conduct therefore which is unworthy of him as an officer of justice cannot be justified by stating that he did it as the agent of his client. His status as an officer of justice does not mean he is subordinate to the judge. It only means that he is an integral part of the machinery for the administration of justice.
- Co-operation between the bench and the Bar is a necessity:
The first duty which advocates and judges owe to each other is of co-operation. Co-operation between the bench and the Bar is not a mere conventional statement. It is a fundamental necessity. Without it, there can be no orderly administration of justice. Says Sir Cecil Walsh in his book called
“Nothing is more calculated to promote the smooth and satisfactorily administration of justice than complete confidence and sympathy between Bench and the Bar”.
- What the counsel owes to the court:
- The first duty which the counsel owes to the court is to maintain its honour and dignity—this is the cardinal principle determining the advocate relation in court. The advocate owes courtesy and respect to the court for the following reasons:
- Because he is the like judge himself, an officer of the court and an integral part of the judicial machine. The legal position consists of the Bar as well as Bench, and both have common aims and ideals.
- In theory, it is the King or Sovereign who presides in the court of justice, and judge is merely the mouthpiece and representative of the Sovereign. Respect shown to the court is, therefore, respect shown to the sovereign whose representative the judge is.
- Because not only litigants and witnesses but the general public will get their inspiration in this respect from the examples of advocates. It is necessary for the administration of justice that judges should have esteem of the people.
- Because it is good manners, and advocates before anything else are “gentleman of the Bar.”
- Even from the purely practical standpoint, there is nothing to be gained but there is much too loose by antagonising the Court. Conflict with the judge renders the trial disagreeable to all and generally an injurious effect on the interests of clients.
- Because the usual practise in modern times is to appoint judges from among the members of the Bars, and even where this rule is not strictly observed the bench is fairly representative of the Bar.
- Because it is necessary for dignified and honourable administration of justice that the court should be regarded with respect by the suitors and people.
- The advocate should not display temper in court. He will not indulge in any kind of insinuation in the court against the judge. He should convince the judge by argument and reason and not by appeal to his sentiments. While the case is going on, the advocate cannot leave the court without the court’s permission, and without putting another man in charge.
- The advocate must not do anything which lowers public confidence in the administration of justice:
- It is the duty of the bar to support judges in their independence because in the integrity of judges lies the greatest safeguard of a nation’s law and liberties. Judicial independence is the only protection against tyranny and whims of the executive.
- The advocate must not do anything which is calculated to obstruct, divert or corrupt the stream of j ustice, for instance, he must not advise disobedience to the courts order and decrees.
- Another duty which the advocate owes to the court is that of fidelity, he must be honest in his representation of the case. He must not deceive the court.
- The counsel is under an obligation to present everything to the judge openly and in the court, and nothing privately. He must not attempt to influence private influence upon the judge: seek opportunities for the purpose; or take opportunities of social gatherings to make ex parte statements or to endeavour to impress his views upon him.
- The advocate must not place himself in a position which he cannot effectively discharge his obligations to the Court as minister of justice. He should not have any personal interest in the litigation he is conducting. It will be misconduct on his part to stipulate with his client to share in the results of litigation.
- Relations of advocates and judges outside the court:
- Advocates and judges are members of same fraternity. They are both officers of state engaged and united in the common ideal of promoting legal justice. Judges are generally selected from lawyer’s rank and, have therefore the same lineage.
- Lawyers are not subordinate officers of the Court:
- Advocate’s Duties toward court:
- It is difficult to lay down any hard and fast rule as to what expression a lawyer can use with impunity while addressing the court and what should ordinarily be tolerated by it.
A pleader who asks for adjournments on different occasions to move the High Court for the transfer of a case and takes no steps at all, on these occasions in either himself or by means of his clients to move the High Court and it appears that the adjournments were asked for merely to delay the course of justice with deliberate intention renders himself liable to be punished for grossly improper conduct in the discharge of his professional duty.
Advice from Court:
It is not proper on the part of the counsel to take advice from the court as to the kind or amount of evidence which is required to be adduced in support of his client’s case.
It is highly objectionable on the part of advocate to attend the court in such a drunken state as to enable to conduct the case properly and keep the decorum of the court. In the above cited case a pleader for an accused appear in the court of a magistrate in a drunken state and was unable to conduct the case of his client, as he ought to have done.
Attempt to influence judge:
Where a pleader tried to influence judge before whom he was arguing the case, through a relation of the latter, it was held that the pleaders act was highly reprehensible and it was in the interest of the legal profession that serious notice should be taken of such an act.
Conduct in bail matters:
A legal practitioner standing surety to a man arrested under section 420 of the IPC, and convicted under that section and keeping in possession on behalf of the accused properties held later on to have been involved in the offence is not guilty of professional misconduct. But advocate who receives money in furtherance of a contract of indemnity of bail is guilty of grave misconduct and only suitable punishment for retention by him of the money on pretence that it was his fees is the removal of his name from the roll as held in.
Apart from these some other ethical conduct requires on the part of advocates are:
- He should not disobey the order requiring payment to the client.
- It is the duty of legal practitioner to assist the court. If he appears in the court and makes the demonstration which has the effect of interfering with the work of the court and the administration of justice, then it amounts to misconduct.
- It is the duty of the pleader to bring to court’s notice death of any party.
- An attorney is bound to honour his undertaking in his capacity as a solicitor.
- Lastly, it is the counsel’s right to insist on getting what is truth in the matter.
Advocate and his clients: Duty towards clients
- Sources of relations between counsel and client:
In India, the counsel’s relations with his client are 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.
The relationship is personal and fiduciary:
It is a relation of trust and confidence. It is confidential requiring a high degree of fidelity and good faith.
- It is a relationship of trust and confidence. All transactions between the advocate and his client will be watched by the Court with jealousy and suspicion. Even though the transaction is not illegal, the court will scrutinize it most closely and requires strict proof that no undue advantage has taken by the counsel of the confidence reposed in him by the client. He should avoid business with his client not only in regard to Matters in suit but also in relation to other matters. He should, for instance, neither lend nor borrow.
- The advocate must keep clear and accurate account of all moneys received from and on behalf of his clients. Money collected by the counsel on behalf of the client should be promptly paid over to him.
- The counsel should return papers and documents to the client the moment the case has terminated. No paper should be retained without the client’s consent.
- Counsel also cannot delegate his duties without the client’s consent.
- The counsel while accepting the retainer should disclose to his client any matter which might affect the relation or the client’s direction in choosing him as his counsel. He should inform him of any interest in which he may have in a matter concerning which he is employed; any adverse retainer; or anything which may, in any degree interfere with his exclusive devotion to the cause confided to him.
- After engagement the counsel must not revise agreement regarding his remuneration, or, while the business in which he had been employed is unfinished, except present and gifts from the clients.
- It is the duty of the advocate not to use information which has been confided to him as advocate to the detriment of the client, and this duty continues even after the relation of advocate and client has ceased.
- It is the duty of advocate not to appear for two clients whose interest are in conflict.
- It is the right of the client to discharge any time his advocate whom he no longer trusts or on whose skill and ability he no longer relies.
- The advocate must not divulge his client’s secrets or confidences as these communications are privileged and protected under section 126 of the Indian Evidence Act.
- Advocate’s duty to his clients:
A special responsibility rests on the members of the Bar to see that the parties do not misled the courts by false and reckless statements on material matters. As was observed in that an advocate stands as a loco parentis towards litigants. A member of a Bar undoubtedly owes a duty to his clients and must place before a court all that can be fairly and reasonably be submitted on behalf of his clients. Advocate is not a mere a mouthpiece of client but he is an officer of the court. It is the duty of the court to help bringing down arrears and to prevent the abuse of the process of the abuse of the court. Their duty to client should persuade them to advise their clients not to go in futile litigation.
It is expected that an advocate for a party would conduct a case with all its sense of responsibility which he is expected to have in discharge of his duty to his client. It is the duty of every advocate who accepts the brief in a criminal case to attend the trial from day to day. He would be committing the breach of his professional duty if he fails to attend.
A client is entitled to be protected from an advocate who is likely to betray them; the profession cannot afford to have a member who fails in keeping to the required standard of conduct. It is the duty of an advocate who has accepted the vakalatnama and filed it in the court to go to court on the day fixed for the hearing of the case even if he has not received his fees unless the client terminates the contract. Moreover, the payment of commission to procure client is unprofessional.
What the counsel owes to his client:
- The first obligation which the advocate owes to his client is to prepare his brief with care, skill and thoroughness:
- Secondly, in giving advice to his client for or against litigation, he should give his candid opinion.
Counsel also owes duty of continuous service to his clients. When the counsel after he has begun the case leaves the court to attend another case, it amounts to professional misconduct.
Advocate and Witnesses:
Counsel’s obligation in respect of witnesses:
In examining witnesses advocate should not forget that he is not merely the counsel of client but also an officer of the court to further the ends of justice. He must not disregard the feeling of witnesses, or embarrass or bully them. He should not be sarcastic. He should not assume that all witnesses are liars to be treated alike. Advocate should not recognise these limitations and the result is that witnesses in this country have seldom a good word to put in for box.
The advocate must not misuse the privilege of cross examination:
This privilege like any other privileges, should only be used for the purpose intended, and should not be abused from sinister motives. A party may impeach the credit of a witness called by him only if he turns hostile and that too with the leave of the court.
- Aimless heckling of witness is not honourable.
- The advocate has no right to disgrace and bully a witness by putting offensive questions.
- The privilege of cross examination should not be misused by an examination which is unnecessarily too long.
- There is general complaint that the privilege of cross examination as to credit is frequently abused.
- He must not tutor his witnesses:
A witness is required by law to testify facts which are within his knowledge and which he considers as true. So jealous is the law about purity of testimony that it does not permit even a leading question to be put to witness. This is not so because the answer cannot be true, but because the answer to a leading question is not regarded as free act of witness, but as regarded as suggestion to the counsel. This does not mean that the counsel should not confer with his witnesses in advance. In fact there is certain amount of the guidance to witness and dealing with them in relation to their testimony which are permissible to advocate by his Code of Professional Ethics.
The advocate must not tamper with witnesses:
Bribing a witness for the purpose of influencing his testimony is unprofessional. So long as witness is called to tell the truth and not to bolster up a falsehood and so long as payment is not made to corrupt him, the fact that he is paid or promised more than the statutory fee cannot be described as bribery.
Counsel as witness:
A dual capacity of witness and advocate is not approved by professional ethics. If it becomes necessary for the counsel to appear as witness in the case, he should withdraw from the case. Counsel is an advocate to the client but cannot be a witness, for or against the client in the case which he is conducting.
A counsel for a party should not also be his witness in the case without retiring from the case as counsel. It is a sound principle that a person who is appearing as counsel should not give evidence as witness. It is against the etiquette of the Bar that the member of the profession should give evidence in the case in which he is engaged as counsel and no self respecting counsel would be prepared to conduct a case for the defence after having been called as a witness for the prosecution.
Abuse of privilege:
A gross abuse of the right of cross examination by legal practitioner is grossly improper conduct in the discharge of his duties.
Perjury and false statement:
It is hardly necessary to say that it is not part of the etiquette of the members of the profession to tell lies in court or give perjured evidence on behalf of their client, members of the legal profession are expected to maintain not only a high standard of professional morality and ethics but they are also expected as men of education and culture and as members of an Honourable profession to act in an honest and straight forward and upright manner.
Harassing tactics by counsel:
It is important to protect the courts from the harassing tactics on the part of the counsel. Where a counsel resorts to attempting to provoke the magistrate trying the case into same unguarded expression and then applies to transfer, the method adopted is neither in the interest of his client nor in the interest of justice.
Citing advocate for accused as witness:
There is nothing necessarily unprofessional in counsel giving evidence in a case in which he appears as such.
Advocate and his Opponent:
The advocate should maintain towards his opponent utmost cordiality. Clients and not the counsel are litigants. Just as it is the right of the advocate not to be interrupted by the court ,so it his duty not to interrupt his opponent. Interruption of the opponent is improper for several reasons:
- Each party has a right to impress on the court, its point of view as it considers best, and there should be no improper interference with this right.
- If proper interruption is allowed, it would result in constant wrangling between the advocates and consequent confusion in the court. This will destroy the dignity of the court and the parties will not be able to state their cases.
- No counsel has the right to prevent a judge from following the course of argument of the opposite side.
- By improper interruption your opponent may lose the thread of his argument, or it may spoil the effect of his cross examination on a vital point.
- Moreover, a lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel; much less should he undertake to negotiate and compromise the matter with him, but should deal only with his counsel. It is incumbent on the lawyer most particularly to avoid anything that may tend to mislead a party not represented by counsel.
Advocates and colleagues: Duty toward colleagues
Rule 36, 37, 38, and 39 framed by the Bar council of India deal with the duties of an advocate to the colleagues. Rule 36 provides that an advocate shall not solicit work of advertise (either directly or indirectly) whether by circulars, advertisements, touts, personal communications interview not unwarranted by personal relations, furnishing or inspiring newspaper, comments or producing his photograph to be published in connection with case in which he has been engaged or concerned. The sign-board or name plate should be of reasonable size. The sign-board or stationary should not indicate that he is the President or member of the Bar council or of any Association.
The advertising is prohibited because it may lead to unhealthy competition among the advocates. Advertisement can be allowed only for proper guidance so that it may not lead to unhealthy competition and may not result in lowering dignity of the legal profession.
Rule 37 provides that an advocate shall not permit his name to be used in aid of or to make possible the unauthorized practice of law by any agency.
Rule 38 makes it clear that an advocate shall not accept a fee less than the fee taxable under the rules when the client is able to pay the same. According to rule 39 an advocate shall not enter appearance in any case in which there is already a vakalatnama or memo of appearance filed by an advocate engaged for a party except with his consent; in the case such consent is not produced he shall apply to the court stating the reasons why the consent should not be produced and he shall appear only after obtaining the permission of the court. The object of this rule is to secure goodwill among the advocates.It prevents the temptation of seducing client from counsel who have already been engaged. Besides, it is one of the professional obligations, of an advocate to dissuade client from charging his counsel unless he has a strong reason for it and to satisfy himself that the reason is proper and adequate. The ill feeling of client should not affect their cordial relations.
All lawyers are brothers at the bar. An advocate should be courteous to the other advocates.
Advocate and Profession:
Advocates in their professional capacity address each other as brothers. This spirit of fraternity at Bar is one of the noblest traditions of the legal profession and is many centuries old. Lawyers stand for common ideals of order, justice and rule of law in the community and have common rules of etiquette and professional observances. Some basic etiquette which every advocate should follow with regard to its profession are :
- Law being a fraternity, the profession is entitled to loyal support of its members in the maintenance of the tradition.
- The first duty which an advocate owes to his brethren at the Bar is professional courtesy.
- Secondly, he should not accept retainer in a case in which another counsel is already engaged without the latter consent.
- Another duty which he owes to fellow members of the Bar is of corporation.
- A fourth duty is to show equal consideration to all members of the profession.
- Fifthly, a duty rests on senior members of the Bar to help and encourage their junior brethren.
- Sixthly, junior lawyers owe respect and goodwill to their senior brethren.
- Seventhly, advocate should be jealous of honour of their profession and should stand up for its dignity and privileges whenever there is occasion for it.
- An advocate should not speak disparagingly of his profession.
- He should expose corrupt and dishonest conduct in the profession.
- All lawyers owe a debt to their profession from which they drive honour and profit.
Rules of Conduct for A Judge
“Some standards can be prescribed by law, but the spirit of, and the quality of the service rendered by: a profession depends far more on its observance of ethical standards. These are far more rigorous than legal standards….. They are learnt not by precept but by the example and influence of peers. Judicial standards are acquired, so to speak, by professional osmosis. They are enforced immediately by conscience.” These are the words of Justice J.B Thomas of Australia. The office of a Judge and respect for his judgements is based on the way a judge conducts himself in his public and private life. A Judge needs to update himself with not only the changes in law but also constantly keep abreast with judicial ethics. A judge who does not have a firm grounding in judicial ethics will fail to anticipate the ethical issues and challenges at the right point of time.
Judges should create an internal forum for themselves where they can come together and discuss new ethical developments and problems.
Judicial Standards and Accountability Bill, 2010.
Indian Government has decided to enact Judicial Standards and Accountability Bill, 2010.
The Judicial Standards and Accountability Bill, 2010 provides for setting up of a five-member Oversight Committee to be headed by a former Chief Justice of India and including the Attorney General to go into complaints against members of the higher judiciary.
Other members of the apex committee would be a Supreme Court judge, a Chief Justice of a High Court and an eminent person nominated by the President.
The bill, which seeks to replace the Judges (Inquiry) Act, 1968 while retaining its basic features, is being introduced in Parliament amid growing incidents of allegations of misconduct against judges.