15 Judicial Process: Role of Legal Profession and Ethics

Mr Alok Shukla

1.  INTRODUCTION

In this module of ‘Judicial Process: Role of Legal Profession and Ethics’ we would study the significance of Legal profession in the judicial process and how ethics is an essential determinant in realizing the objectives of this process. In order to undertake this study the module will briefly discuss the history of legal profession and the significant developments that have taken place over the years, followed by a study of the present institutions which constitute and manage the legal profession in the country. The module will reflect upon the judicial pronouncements which have sculpted the functioning of legal profession. In the course of the study the module will highlight the role played by legal profession and its position in the judicial process. The module will also put forth the ethical dimensions in realizing the objectives of legal profession.

2. Learning Outcomes:

(i) After studying this module, the students shall have an understanding about the history and development of legal profession in the country.

(ii) The students will develop fair conception about the significance and role played by the legal profession in the judicial process.

(iii) The paper will also help in understanding the importance of Ethics in a professional activity.

SIGNIFICANCE OF LEGAL PROFESSION

A well-organized system of judicial administration postulates a properly equipped and efficient Bar.1 Legal Profession has played a significant role in safeguarding the life, liberty and property of the citizens. It has been instrumental in upholding the values which are very essential for the growth of a free and democratic society and that the Constitution also recognizes the important role that is played by the legal profession. A well-knit structure of legal profession plays a pivotal role of strengthening the system of administrative justice in the country. It is axiomatic that a properly equipped and efficient Bar can play a pre-eminent role not only in the system of justice but also in the constitutional government and rule of law.Henry S. Drinker in his book Legal Ethics 3 observes that legal profession is distinguished from other profession by four features viz. (i) a duty of public service in which one may attain the highest eminence without making much money, (ii) a relation as an “officer of Court” to administration of justice involving thorough sincerity, integrity and reliability, (iii) a relation to clients in the highest degree fiduciary, and (iv) a relation to colleagues at the bar characterized by candor, fairness and unwillingness to resort to current business methods of advert practising and encroachment on their practice, or dealing directly with their clients.

Thus, legal profession is a profession of great honor. It has been created for public good and maintaining peace and order in the society. The Supreme Court has rightly observed that the legal profession is a partner with the judiciary in the administration of justice.4

3. HISTORICAL DEVELOPMENT OF LEGAL PROFESSION

The legal profession as it exists today was created and developed during the British Period5. It is worthy to note that in the initial days of the British Period the legal profession was not properly organized, neither did the Britishers paid much attention in organizing it. The history can be traced back to the establishment of the First British Court in Bombay in 1672. The admission of Attorneys was placed in the hands of the Governor-in-Council and not with the Court. Prior to the establishment of the Mayor’s Courts in 1726, in Madras and Calcutta, there were no legal practitioners or lawyers.

3.1 Legal Profession during British Period

3.1.1 Charters of 1726 and 1753

The Mayor’s Courts were established in 1726 by the Charter of 1726 in each of the three presidency towns, with right of appeal first to the Governor-in-Council and a right of second appeal to the Privy Council. There was no specific provision in the charter laying down any particular qualifications for the persons who would be entitled to act or plead as legal practitioners in these courts. Presumably, it was left to these courts to regulate this matter by rules of practice which these courts were authorized to frame. In 1791, Judges felt the need of experience, and thus the role of an attorney to protect the rights of his client was upheld in each of the Mayor’s Courts. The second principle of right to dismiss an attorney guilty of misconduct was also established during the period of the Mayor’s Courts. Despite recognition of the role of attorneys for proper administration of Justice those who practised law in the Mayor Courts were devoid of any legal training or any knowledge of law.

The Charter of 1753 was issued to modify the Charter of 1726 but even this charter did not contain any significant provisions for legal training and legal education of legal practitioners.

3.1.2 The Regulating Act, 1773 and Charter of 1774

The Regulating Act, 1773 and the Charter of 1774 contributed much to the development of legal profession in India. The Regulating Act empowered the British Crown to establish a Supreme Court at Calcutta by issuing a Charter. Consequently, the Supreme Courts of Judicature was established by Royal Charters at Calcutta (1774), Madras (1781) and Bombay (1823).

The Charter of 1774 empowered the Supreme Court to approve and enroll advocates and attorneys-at-law7. They were referred as Attorneys of Record and were authorized to appear and plead and act for the suitors in the Supreme Court. This clause made it clear that no other person but advocates or attorneys so admitted and enrolled could appear and plead or act in the Supreme Court. The clause also gave the Court the authority to remove lawyers from the roll of the Court on reasonable cause and to prohibit practitioners not properly admitted and enrolled from practising in the Court. The term ‘Advocate’ then extended only to English and Irish Barristers and members of the Faculty of advocates in Scotland and the term ‘Attorneys’ then meant only the British attorneys or solicitor. Thus, the Indian legal practitioners were not authorized to appear before the Supreme Court.

As Barristers began to come into the Courts to work as advocates, the attorneys gave up pleading and worked as solicitors. The two grades of legal practice gradually became distinct and separate as they were in England. Madras gained its first barrister in 1778 with Mr. Benjamin Sullivan. Thus, the establishment of the Supreme Court brought recognition, wealth and prestige to the legal profession.

In contrast to the Courts in the presidency towns, the legal profession in the mofussil towns was established, guided and controlled by legislation. In the Diwani Courts, legal practice was neither recognized nor controlled, and the legal practice was carried on by vakils and agents. Vakils had even been appearing in the Courts of the Nawabs and there were no laws concerning their qualification, relationship to the Court, mode of procedure or ethics of practice. Two kinds of agents existed: (a) untrained relatives or servants of the parties in Court and (b) professional pleaders who were training in either Hindu or Muslim law. The Bengal Regulation VII, of 1793 created for the first time a regular legal profession for the Company’s Courts. It was enacted as it was felt that in order to administer justice, courts must have pleading of cases administered by a distinct profession and only men of character and education, well versed in the Mohamedan or Hindu law and in the Regulations passed by the British Government, would be admitted to plead in the Courts. Further, they should be subjected to rules and restrictions in order to discharge their work diligently and faithfully by upholding the client’s trust.

The Bengal Regulation XXVII, of 1814 also made provisions relating to the legal profession. Bengal Regulation XII, of 1833 modified the provisions of the earlier Regulations regarding the appointment of the pleaders. It permitted any qualified person of whatever nationality or religion to be enrolled as a pleader of the Sadar Diwani Adalat. The Legal Practitioners Act, 1846 authorized the attorneys and Barristers of the Supreme Court to plead in any of the Company’s Courts subordinate to the Sadar Courts subject to rules in the said subordinate Courts.

3.1.3 The Indian High Courts Act, 1861

The Indian High Courts Act, 1861, occupies an important place in the development of the judicial administration in India. It empowered the British Crown to establish one High Court in each Presidency Town. In the exercise of this power the British Crown issued the Charters to establish High Courts. In 1862, the High Courts were established at Calcutta, Bombay and Madras. The High Court were designed to combine Supreme Court and Sadar Court traditions. This was done to unite the legal learning and judicial experience of the English barristers with the intimate experience of civil servants in matters of Indian customs, usages and laws possessed by them. Each of the High Courts was given the power to make rules for the qualifications of proper persons, advocates, vakils and attorneys at Bar. The admission of vakils to practice before the High Courts ended the monopoly that the barristers had enjoyed in the Supreme Courts. It greatly extended the practice and prestige to the Indian lawyers by giving them opportunities and privileges equal to those enjoyed for many years by the English lawyers. Additional High Courts were established in Allahabad (1886), Patna (1916), and Lahore (1919).

There were six grades of legal practice in India after the establishment of the High Courts: (a) Advocates; (b) Attorneys (Solicitors); (c) Vakils of High Courts; (d) Pleaders; (e) Mukhtars; and (f) Revenue Agents. The Legal Practitioners Act, of 1879 in fact brought all the six grades of the profession into one system under the jurisdiction of the High Courts. The Legal Practitioners Act and the Letters Patent of the High Courts formed the chief legislative governance of legal practitioners in the subordinate Courts in the country until the Advocates Act, 1961 was enacted.

3.1.4 Legal Practitioners Act, 1879

In 1879, the Legal Practitioners Act was passed to consolidate and amend the law relating to the legal practitioners. It empowered an advocate or vakil on the role of any High Court or a pleader of the Chief court of the Punjab to practice in all the Courts subordinate to the court on the rolls of which he was entered. The Act authorized the High Court not established under a Royal Charter to make rules with the previous sanction of the Provincial Government as to the qualification and admission of proper persons to be pleaders and Mukhtars of the High Court. Section 6 of the Act empowered the High Court to make rules consistent with this Act as to suspension and dismissal of pleaders and mukhtars. Section 7 of the Act made provisions in respect of issue of certificates to the pleaders and mukhtars. Section 12 of the Act empowered the High court to suspend or dismiss any pleader or mukhtar, if he was convicted of any criminal offence implying a defect of character which unfit him to be pleader or mukhtar, as the case may be. Section 13 of the Act empowered the High Court to suspend or dismiss pleader or mukhtar guilty of unprofessional conduct.

3.1.5 Indian Bar Committee, 1923

In 1923 a Committee called the Indian Bar Committee was constituted under the Chairmanship of Sir Edward Chamier. The Committee was to consider the issue as to the organization of the Bar on all India basis and establishment of an all-India Bar Council for the High Court. The Committee was not in favour of organizing the Bar on all India basis and establishing an all India Bar Council. The Committee suggested that in all High Courts a single grade of practitioners should be established and they should be called advocates. On the fulfillment of certain conditions vakils should be allowed to plead on the original side of the three High Courts. A Bar Council should be constituted for each High Court. It should have power to enquire into matters calling for disciplinary action against a lawyer.

3.1.6 Indian Bar Councils Act, 1926

The Indian Bar Councils Act, 1926 was enacted to unify the various grades of legal practice and to provide self-government to the Bars attached to various Courts. The main object of the Act was to provide for the constitution and incorporation of Bar Council for certain courts, to confer powers and impose duties on such Councils and also to consolidate and amend the law relating to the legal practitioners of such courts. The Act required that each High Court must constitute a Bar Council made up of the Advocate General, four men nominated by the High Court of whom two should be Judges and ten elected from among the advocates of the Bar.11 The duties of the Bar Council were to decide all matters concerning legal education, qualification for enrolment, discipline and control of the profession. It was favourable to the advocates as it gave them authority previously held by the judiciary to regulate the membership and discipline of their profession.

3.2  Legal Profession after Independence

3.2.1 All India Bar Committee, 1951

The Indian Bar Council Act, 1926 failed to satisfy the Bar. The Bar Councils were not given any significant power, they were mere advisory bodies under the Act. In 1951 a committee known as the All India Bar Committee was appointed under the Chairmanship of Justice S.R. Das. The Committee recommended the establishment of an All India Bar Council and State Bar Councils. Subject to certain safeguards the committee suggested that the powers of enrolment, suspension and removal of advocates should be vested in the Bar Councils. It recommended that there should be no further recruitment of non-graduate pleaders or mukhtars. It also recommended that there should be a common role of Advocates who should be authorized to practice in all Courts in the country. The Fifth Law Commission in its fourteenth report submitted in 1958, recommended for establishment of a united All India Bar. It also recommended for the division of Bar in to Senior Advocates and Advocates.

3.2.2 Advocates Act, 1961

The Advocates Act, 1961 was enacted for the purpose of amending and consolidating the law relating to legal practitioners and also for providing the constitution of Bar Council and an All India Bar. The Act lays down process of admission12, practice13, ethics14, privileges, regulations, discipline15 and improvement of the profession as well as law reform16 are now significantly in the hands of the profession itself. Under the Act, the Bar Council of India is the supreme regulatory body to regulate the legal profession in India and also to ensure the compliance of the laws and maintenance of professional standards by the legal profession in the country.

For this purpose, the Bar Council of India is authorized to pass regulations and make orders in individual cases and also generally. Further, under the Act there is only one category of practitioners known as Advocates.

4. ROLE OF LEGAL PROFESSION IN JUDICIAL PROCESS

Advocacy touches and asserts the primary value of freedom of expression and it is a practical manifestation of the principle of freedom of speech.17

The continuous growth of the institution of Advocacy and the importance attached to it by the Judiciary has made it an indispensable part of the Judicial Process.18 There has been a sea change in the institution since the need of attorney was first recognized by the Mayor Courts. The role of legal profession in the Judicial Process is eminent as lawyers bring the law to non-lawyers by advising clients and by drafting documents that make clients’ transactions or works to serve their interests within legal constraints. Lawyers make the system of justice work, they play an active role in the litigation process, shepherding cases through the system and law making as well. Many lawyers serve in legislatures and parliaments and often lawyers are called upon to advise parliaments on the details of new laws. Further, in democratic societies, lawyers surely fill an important role that no other professional fills: the lawyer is the guardian of the rule of law, the ideal that all people stand equally before the law and neither expect nor receive special treatment from it. In emerging democracies, this role is especially important for lawyers, who have the potential to become the great levelers between the powerful and the less so.19

The importance attached to the role assigned to the lawyer in the judicial process have made it necessary that the lawyers conduct themselves with utmost dignity and fairness to uphold the faith posed by the litigants and Courts in their capacity as officers of the court in the discharge of their duties and help establishing rule of law in the country. In this direction the Advocates Act, 1961 is a legislative milestone which has revolutionized the legal profession in the Country. The Act has created institutions as the guardian of the profession, and has laid down rights and duties of the lawyers and the mechanisms to take punitive measures in case of dereliction of duty.

• The salient features of the Act are as follows:
• The establishment of an All India Bar viz. The Bar Council of India.20
• Creation of autonomous State Bar Councils for each state.21
• Integration of the Bar as a single class of legal practitioners known as Advocates.22
• Right of the Advocate on roll to practice throughout India.23
• Requirement of a uniform qualification for the admission of persons to be advocates.24
• Division of Advocates into Senior Advocates and other Advocates. Power given to the High Courts and Supreme Court to designate Seniority on the basis of advocate’s ability, experiences, standing and eminence at the Bar.25
• Promote and determine standards of legal education and recognition of degrees in law for the purpose of enrolment as advocate and inspection of Universities for recognizing its degree in law.26

4.1 Bar Council of India

The most significant achievement of the Advocates Act, 1961 is the creation of a united national Bar in India called the Bar Council of India, with multifarious functions and wide powers. 27 The Act transfers the powers of the High Court to discipline and reprimand the advocates for professional or other misconduct to the State Bar Council, or the Bar Council of India as the case may be. Prior to this Act High Court alone was competent to punish the deviant lawyers. The functions of the Bar Council of India are laid down under Section 7 of the Act:

To lay down standards of professional conduct and etiquette for Advocates;

To lay down the procedure to be followed by its disciplinary committee and the disciplinary committee of each state Bar Council;

To safe guard the rights, privileges and interest of advocates;

To support and promote law reforms;

To deal with and dispose of any matter arising under this Act, which may be referred to it by a State Bar Council;

To promote legal education and to lay down standards of such education in consultation with the Universities in India imparting such education and the State Bar Councils;

To recognize Universities whose degree in law shall be a qualification for enrolment as an advocate and for that purpose to visit and inspect Universities (or cause the State Bar Councils to visit and inspect Universities in accordance with such directions as it may give in this behalf);

To exercise general supervision and control over the State Bar Councils;

To conduct seminars and organize talks on legal topics by eminent jurists and publish journals and papers of legal interest;

To organize legal aid to the poor in the prescribed manner;

The Supreme Court in the matter Ex Captain, Harish Uppal v Union of India and Another28 while declaring strike call by lawyers as ex facie bad in law observed that Section 7 of the Advocates Act provides for the functions of the Bar Council of India. None of the functions mentioned therein authorize paralyzing of the working of Courts in any manner. On the contrary, Bar Council of India is enjoined with the duty of laying down standards of professional conduct and etiquette for advocates. This would mean that the Bar Council of India ensures that Advocates do not behave in unprofessional and unbecoming manner. Section 48A gives a right to Bar Council of India to give directions to State Bar Councils. The Bar Associations may be separate bodies but all Advocates who are members of such Association are under disciplinary jurisdiction of the Bar Councils and thus the Bar Councils can always control their conduct.The State Bar Council under the Advocate Act have also been entrusted with numerous functions and duties, Section 6 of the Act lays down the functions of State Bar Councils, some of which are cited below:

• To admit persons as Advocates on its rolls and to prepare and maintain such rolls;
• To entertain and determine cases of professional or other misconduct against advocates on its roll;
• To punish advocates found guilty of professional or other misconduct;
• To promote the growth of Bar Associations for the purposes of effective implementation of the welfare schemes referred to in clause (a) of sub-section (2) of this section clause (a) of sub-section (2) of section 7;
• To promote and support law reform;
• To conduct seminars and organize talks on legal topics by eminent jurists and publish journals and paper of legal interest;
• To safeguard the rights, privileges and interests of Advocates on its roll;
• To provide legal aid to the poor.

Sections 16 to 28 of the Advocates Act deal with admission and enrolment of advocates. Section 16 provides that there shall be two classes of advocates, namely, senior advocates and other advocates. 29 An advocate may with his consent be designated as senior advocate if the Supreme Court or a High Court is of opinion that by virtue of his ability, standing at the Bar or special knowledge in law, deserves such distinction.30

Section 35 of the Advocates Act provide in respect of punishment for professional or other misconduct. It 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 has the power to reprimand the advocate or suspend the advocate from practice for such period as it may deem fit or remove the name of the advocate from the State roll of advocates. In Noratanmal Chouraria v M R Murli & Anr31, the Supreme Court has observed that misconduct has not been defined in the Advocates Act, 1961. Misconduct, inter alia, envisages breach of discipline, although it would not be possible to lay down exhaustively as to what would constitute misconduct and indiscipline, which, however, is wide enough to include wrongful omission or commission whether done or omitted to be done intentionally or unintentionally. It means, “improper behavior, intentional wrong doing or deliberate violation of a rule of standard or behaviour”. Misconduct is said to be a transgression of some established and definite rule of action, where no discretion is left except what necessity may demand; it is a violation of definite law.

The Supreme Court has also commented on the role of lawyers in judicial process on a number of occasions. In Rameshwar Prasad Goyal, In Re the Supreme Court observed:

‘Lawyers play an important part in the administration of justice. The profession itself requires the safeguarding of high moral standards. As an officer of the court the overriding duty of a lawyer is to the court, the standards of his profession and to the public. Since the main job of a lawyer is to assist the court in dispensing justice, the members of the Bar cannot behave with doubtful scruples or strive to thrive on litigation. Lawyers must remember that they are equal partners with judges in the administration of justice. If lawyers do not perform their function properly, it would be destructive of democracy and the rule of law.’32

In Sudha v President, Advocate Association Chennai & Othersthe court observed:

The legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to it are its honourable members. Although the entry to the profession can be had by acquiring merely the qualification prescribed by different universities, the honour as a professional has to be maintained by its members by their exemplary conduct both in and outside the court. The legal profession is different from other professions in that what the lawyers do, affects not only an individual but the administration of justice which is the foundation of the civilized society. Both as a leading member of the intelligentsia of the society and as an intelligent citizen, the lawyer has to conduct himself as a model for others both in his professional and in his private and public life. 33

The United Nations has also asserted the role of lawyers in judicial process by enacting the Basic Principles on the Role of Lawyers34which have been formulated to assist Member States in their task of promoting and ensuring the proper role of lawyers, should be respected and taken into account by Governments within the framework of their national legislation and practice and should be brought to the attention of lawyers as well as other persons, such as judges, prosecutors, members of the executive and the legislature, and the public in general. These principles shall also apply, as appropriate, to persons who exercise the functions of lawyers without having the formal status of lawyers.

The Law Commission of India while studying the role of legal profession in the administration of justice has observed that legal profession enjoys on the one hand uninhibited eulogy and on the other hand no holds barred condemnation. The criticism against the profession being that lawyers are always looking for technical and sometimes dubious means for bending the law to their advantage. This criticism against the profession is as old as the profession itself. However, abjuring this criticism the role of legal profession has to be assessed in the context of the Constitutional mandate as set out in Article 39A of the Constitution. The role of the legal profession thus would be to ensure equal opportunity to all litigants in search of justice. Legal profession is expected to ensure that anyone who has not the economic wherewithal to seek justice must not turn away from the law courts on the only ground that he is unable to incur necessary expenditure to secure justice.35

In another dimension lawyers are seen as influential agents of change, there is prominence of lawyers as organizers and spokesmen of civic and reform groups. They are not only instrumental in the formation of “modern” groups like labor unions, but also in the reorganization of traditional groups along modern lines. Whether the interests and concerns are traditional or modern, lawyers seem to be instrumental in devising modern organizational forms articulated to action in the national world of government policies and plans.36

5. LEGAL PROFESSION AND PROFESSIONAL ETHICS

‘Some standards can be prescribed by law, but the spirit and the quality of service rendered by a profession depends far more on its observance of ethical standards.’37

The word ethics means a science of morals, or it is that branch of the philosophy which is only concerned with human character and conduct and so it is purely a moral science. The standards of morals which are applied to an ordinary citizen in any other walk of life shall be the standard of morals for an advocate too. The norms of morals fixed for an advocate is in consonance with its high office, intellectual learning and social responsibility.

Legal Ethics is that branch of moral science which lays down certain duties for the observance of its member which he owes to the society, to the court, to the profession, to his opponent, to his client and to self.38 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. Professional Ethics thus is properly a matter of positive law of the same character as laws governing a regulated business. While the requirement of such a positive law are not the only normative considerations by which a lawyer might guide his conduct, they are minimum standards in that a lawyer should in all event comply with them.39

5.1 Restatement of Values of Judicial Life

Roscoe Pound, while touching on the subject observes that along with training and experience, in order to be a help to the courts and an aid to the administration of justice, advocacy demands the professional spirit. In order to further justice, in order to ensure that the machinery of justice is not perverted, those who operate the machinery must not merely know how to operate it, they must have a deep sense of things that are done and things that are not done.40

The Judiciary has recognized the importance of Ethics in raising the standards of Judicial Process in the Country and in this respect on May 7, 1997 Supreme Court of India in its Full Court adopted a Charter called the “Restatement of Values of Judicial Life” to serve as a guide to be observed by Judges, essential for independent, strong and respected judiciary, indispensable in the impartial administration of justice.

The Supreme Court in the matter O P Sharma and others v High Court of Punjab and Haryana41 has observed that an advocate’s duty is as important as that of a Judge. Advocates have a large responsibility towards the society. A client’s relationship with his/her advocate is underlined by utmost trust. An advocate is expected to act with utmost sincerity and respect. He is under an obligation to uphold the rule of law and ensure that the public justice system is enabled to function at its full potential. Any violation of the principles of professional ethics by an advocate is unfortunate and unacceptable. An ideal advocate should believe that the legal profession has an element of service also and associates with legal service activities. Most importantly, he should faithfully abide by the standards of professional conduct and etiquette prescribed by the Bar Council of India in Chapter II, Part VI of the Bar Council of India Rules.

The High Court of Delhi upholding the importance of ethics in judicial life in Secretary General, Supreme Court of India v Subhash Chandra Agarwa,l42 held that all persons possessing a portion of power ought to be strongly and awfully impressed with an idea that they act in trust and that they are to account for their conduct in that trust.

5.2 Professional Ethics under Advocates Act, 1961

A lawyer’s function therefore lays on him a variety of legal and moral obligations toward: the client; the courts and other authorities before whom the lawyer pleads the client’s cause or acts on his behalf; the legal profession in general and each fellow member of it in particular; the public for whom the existence of a free and independent profession itself is an essential means of safeguarding human rights in face of the power of the state and other interests in society.

Chapter – II, Standards of Professional Conduct and Etiquette of the Bar Council of India Rules43 specifies the duties of an advocate. It states that an advocate shall, at all times, conduct himself in a manner befitting his status as an officer of the Court, a privileged member of the community, and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may still be improper for an advocate.

The Rules envisages that the duty of an Advocate is four fold i.e. Duty to the Court, Duty to the Client, Duty to Opponent and Duty to Colleagues. The Rules elaborate these duties as follows:

5.2.1 Duty to the Court

There are ten rules under Section I of this Chapter, enlisting the duties of an advocate to the court. Advocate is described as an officer of court. He is the minister of Justice and a friend of court. It is the duty of an advocate to maintain the honour and dignity of the court as this is necessary for the survival of free community. He should not abuse the judicial process and abstain from showing disrespect to Judiciary.44

The advocate should not do anything which lowers the public confidence in the administration of Justice. It is the duty of the Bar to support judges in their independence. The advocate should not do anything which is calculated to obstruct, divert or corrupt the stream of justice. Another duty which the advocate owes to the court is of fidelity i.e. he must be honest in his presentation and citation of law and authority which is over-ruled or repealed. The counsel is to present everything to the judge openly and in court and nothing privately. The advocate must not place himself in a position in which he cannot effectively discharge his obligations to the court as minister of justice, for instance, he should not have any personal interest in a litigation he is conducting.

5.2.2 Duty to the Client

The bulk of rules under Section II enlist the different duties an advocate owes to the client. Commenting on this duty, the Supreme Court, in the case of P.D. Khandekar v Bar Council of Maharashtra45observed that for an advocate to act towards his client otherwise than with utmost good faith is unprofessional. When an advocate is entrusted with a brief, he is expected to follow norms of professional ethics and try to protect the interests of his client in relation to whom he occupies a relation of trust. Counsel’s paramount duty is to the client. When a person consults a lawyer for his advice, he relies upon his requisite experience, skill and knowledge as a lawyer and the lawyer is expected to give proper and dispassionate legal advice to the client for the protection of his interests. An advocate stands in a loco parentis position towards the litigants and it therefore follows that the client is entitled to receive disinterested, sincere and honest treatment specially where the client approaches the advocate for succor in times of need.

Some of the duties enlisted in this Section are such as, an advocate is bound to accept any brief in the Courts or Tribunals or before any other authorities in or before which he proposes to practice at a fee consistent with his standing at the Bar and the nature of the case. 46 An advocate shall not ordinarily withdraw from engagements, once accepted, without sufficient cause and unless reasonable and sufficient notice is given to the client.47 An advocate should not accept a brief or appear in a case in which he has reason to believe that he will be a witness. 48 An advocate shall at the commencement of his engagement and during the continuance thereof, make all such full and frank disclosure to his 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.49 An advocate shall not, at any time, be a party to fomenting of litigation.50 An advocate shall not act on the instructions of any person other than his client or his authorized agent. An advocate shall not stipulate for a fee contingent of litigation or agree to share the proceeds thereof.

In Lalit Mohan Das v Advocate General, Orissa & Another, the Hon’ble Supreme Court emphasizing of the dual obligations of an advocate and observed:

“A member of the Bar undoubtedly owes a duty to his client and must place before the Court all that can fairly and reasonably be submitted on behalf of his client. He may even submit that a particular order is not correct and may ask for a review of that order. At the same time, a member of the Bar is an officer of the Court and owes a duty to the Court in which he is appearing.” 51

5.2.3 Duty to Opponent and Duty to Colleagues

The Code of Conduct also contains rules regarding other duties of the advocates including the duties to the opponent52and colleagues53 and duty to render legal aid to the indigent and oppressed.54 Rule 47-52 under Section VII impose restriction on the advocates on other employments.

The importance of Professional ethics in legal profession and their role in judicial process is indispensible for strengthening the rule of law in the Country as it requires the Lawyers to fearlessly uphold the rule of law without any favor. The Hon’ble Supreme Court in A S Mohammed Rafi v State of Tamil Nadu Rep by Home Dept & Ors.,55 emphasizing the importance of ethics held:

“Professional ethics requires that a lawyer cannot refuse a brief, provided a client is willing to pay his fee, and the lawyer is not otherwise engaged. Hence, the action of any Bar Association in passing such a resolution that none of its members will appear for a particular accused, whether on the ground that he is a policeman or on the ground that he is a suspected terrorist, rapist, mass murderer, etc. is against all norms of the Constitution, the Statute and professional ethics. It is against the great traditions of the Bar which has always stood up for defending persons accused for a crime. Such a resolution is, in fact, a disgrace to the legal community. We declare that all such resolutions of Bar Associations in India are null and void and the right minded lawyers should ignore and defy such resolutions if they want democracy and rule of law to be upheld in this country. It is the duty of a lawyer to defend no matter what the consequences, and a lawyer who refuses to do so is not following the message of the Gita.”

Section 35 of the Advocates Act empowers the bar council to take necessary action against a lawyer if he/she is guilty of professional or any other misconduct. The disciplinary committee of a State Bar Council after giving the advocate concerned and the Advocate-General an opportunity of being heard may punish the advocate in any of the following manner:

a) reprimand the advocate;

b) suspend the advocate from practice for such period as it may deem fit;

c) remove the name of the advocate from the State roll of advocates.

Summary

The Advocate Act, 1961 was enacted to amend and consolidate the law relating to legal practitioners and to provide for the constitution of Bar Councils and All India Bar.

Though the Act has been in force for over five decades and the object stated in the Preamble of the Act has also been achieved in a sense, but the larger object of improving the standards of the legal profession has not been achieved at all. This is because of multitude of reasons, primarily being that legal profession is not the preferred choice of first brains and mostly those ventures in the legal profession who could not find place in any other profession. Then, the quality of legal education has also gone down drastically and the prime reason for this is the mushrooming of private law colleges which lack adequate resources to impart legal education and commercialization of education. Further, at the Bar, the huge gap between the income and resulting social status of the rich and poor lawyers is quite alarming. The concentration of work in the hands of few senior lawyers, the substantial influence that senior lawyers wield over the Benches and the court rooms, and the unethical practices of some members of the Bar who have been found guilty of influencing witnesses in Criminal Trial, has only weakened the legal profession. Still further, the rampant strikes by the lawyers despite the judgment56 of the Apex Court declaring strikes by lawyers as unconstitutional and resort to violence has tarnished the image of legal profession.

The Legal profession can still play a vital role in upholding individual’s rights, promoting more efficient and widespread justice and acting as an integrating force in national life. It has now to its credit a unified Bar and controls the quality of its education, requirement and ethical standards. It has extensive literature and great deal of experience to overshadow all the impediments towards completely realizing the objective of the Advocates Act.

The urgent need for the legal profession is to become people oriented and to reorient themselves towards the service of people. They must show recognition of what is meant by the service ethics of dealing with the need of a fellow human being’s need without consideration of self-interest. Lawyers must serve as healers not makers of human conflict and suffering.

Web links

1. http://www.barcouncilofindia.org/

2. http://thelawdictionary.org

3. http://indiacode.nic.in/

4. http://www.prsindia.org/

5. http://lawcommissionofindia.nic.in/

6. http://judis.nic.in/

7. http://www.law.cornell.edu/

8. http://www.worldlii.org/

9. http://liiofindia.org/