Submitted by Aadesh Agarkar
Professional ethics may be defined as a code of conduct written or unwritten for regulating the behavior of practicing lawyer towards himself, his client, his adversary in law and towards the court. The ethics of legal profession means the body of the rules and practice which determine the professional conduct of the members of Bar. The conduct of the advocate is governed by special rules of professional ethics of the bar.
Meaning, Nature and Need
Professional ethics is a set of rules and laws which govern the rights and duties, etiquettes, duties towards the court, client, opponent, colleague etc.
The fundamental aim of legal ethics is to maintain the honour and dignity of the law profession, to secure a 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. It has been created by the state for the public good. Consequently, the essence of profession lies in 3 things.
1) Organisation of its member for the performance of their functions.
2) Maintenance of site and standard, intellectual and ethical, for the dignity of the profession.
3) Subordination of pecuniary gain to efficient service.
Section 49(1)(c) of the Advocates Act, 1961 empowers the bar council of India to make rules so as to prescribe the standard of professional conduct and etiquette to be observed by the Advocates. It has been made clear that such rule shall have effect only when they are approved by Chief Justice of India. Chapter 2 of RPart 6 of the ules framed by the Bar Council of India deals with the standard of professional conduct and etiquette.
The rules mentioned in Chapter 2 of Part 6 of the rules of the Bar Council of India may be discussed as follows-
Duty to the court
1) During the presentation of the case and while acting otherwise before the court an advocate is required to conduct himself with dignity and self-respect.
2) An advocate is required to maintain towards the court a respectful attitude bearing in mind that the dignity of judicial office is essential to the survival of the free community.
3) The rule has made it clear that no advocate shall influence the decision of the Court by any illegal or improper mean. It prohibited the private communication with the judge relating to a pending case.
4) The rule requires the advocate to use his best effort to prevent his client, from resorting to sharp or unfair practice or from doing anything in relation to the court, opposing counsel or party which the advocate himself ought not to do.
5) An advocate shall appear in court at all times only in prescribed dress and his appearance shall be presentable.
6) An advocate shall not enter appearance, act, plead or practice in any way before a court, tribunal or authority mentioned in Section 30 of the advocates act.
7) Not to wear band or gowns in public places other than in court except on search ceremonial occasions and as such places as a bar council of India or the court may prescribe.
8) An advocate shall not act or plead in any matter in which he is himself having pecuniary interested.
Duty to the client
Rules 11 to 13 deals with the duties of advocates to his client. These rules may be explained as follows:
1) Rule 11 provides that an advocate is bound to accept any brief in the court or Tribunal or before any other authority in or before which he proposes to practice at fee consistent with his standing at the bar and also the nature of the case.
2)Rule 12 provides that advocates shall not ordinarily withdraw from engagement once accepted without sufficient cause and unless reasonable and sufficient notice is given to the client. 3) Rule 13 makes it clear that an advocate should not accept a brief or appear in any case in which he has a reason to believe that he will be a witness.
4) Rule 14 provides that an advocate shall, at the commencement of his engagement and during the continuance thereof make such full and frank disclosure to his client relating to his connection with the parties and any interest in or about the controversy as likely to affect his client judgment either engaging him or continuing the engagement.
5) Rule 15 provides that it is the duty of an advocate to uphold the interest of his client fearlessly by fair and honorable means.
6) Rule 16 provides that an advocate appearing for the prosecution of a criminal trial shall so conduct the prosecution that it does not lead to conviction of the innocent. The suppression of material capable of establishment the innocence of the accused shall be scrupulously avoided.
7) Rule 17 provides that an advocate shall not commit a breach of obligations imposed by Section 126 Indian Evidence Act.
8) Rule 18 provides that an advocate shall not, at any time, be a party to instigate the litigation.
9) Rule 19 makes it clear that it is the duty of an advocate not to act on instructions of any person other than his client or his authorised agent.
10) Rule 24 provides that an advocate shall not do anything whereby he abuses or takes advantage of the confidence reposed in him by his client.
The relation between advocate and his client is fiduciary. It is of confidential nature requiring the high degree of fidelity and good faith. In V.C. RANGADURAI V. D. GOPALAN Justice Sen has observed that the relation between the advocate and his client is purely personal involving highest personal trust and confidence.
Right of lien:
In the case of R.D. Saxena V. Balram Prasad Sharma The Supreme Court has held that an advocate cannot claim a lien over the litigation files entrusted to him for his fees.
Duty to opponent-
Rule 34 and 35 framed by the Bar Council of India contains a provision as to the duties of an advocate to the opponent. Rule 34 provides that an advocate shall not in any way communicate or negotiate upon the subject-matter of any controversy with any party represented by an advocate except through that advocate. Rule 35 provided that an advocate shall do his best to carry out all legitimate promises to the opposite party even though not reduced to writing or enforceable under the rule of the court.
Duty to the colleagues-
Rule 36, 37, 38, and 39 framed by Bar Council of India deals with the duties of an advocate to the colleagues. Rule 36 provides that an advocate shall not solicit work or advertise whether by curricular, advertisements, touts, personal Communications, interviews not unwarranted by personal relations, furnishing or inspiring newspaper, comments or producing his photograph to be published in connection with the case in which he has been engaged or concerned. Rule 37 provides that an advocate shall not permit his name to be used in aid of or to make possible the unauthorised practice of law by any agency. Rule 38 makes it clear that an advocate shall not accept fee less than the fee taxable under the rules when the client is able to pay the same. In rule 39 . An advocate shall not enter appearance in any case in which there is already a vakalat or memo of appearance filed by an advocate engaged for a party except with his consent; in case such consent is not produced he shall apply to the Court stating reasons why the said consent could not be produced and he shall appear only after obtaining the permission of the Court
Rule 40 provides that an advocate on the role of State Bar Council to pay a sum of money to the State Bar Council. Rule 42 provides that if an advocate fails to pay the sum of money mentioned in rule 40, the secretary of state bar council shall issue to him a notice to show cause within a month why his right to practice be not suspended. Rules 44 provides that an appeal shall lie to the Bar Council of India at the instance of an aggrieved advocate within the period of 30 days date of the order passed under rule 42 and 43.
Submitted by Aadesh Agarkar