Professional Ethics in Legal Profession

PROFESSIONAL ETHICS IN LEGAL PROFESSION - A STUDY INTRODUCTION The administration of justice is the process and structure which allows conflicts between parties to be settled by a body dedicated to that purpose. According to Learned C.L. Anand 1 a sound system of the administration of justice should possess three ingredients, namely a well planned body of laws based on wise concepts of social justice, a judicial hierarchy comprised of the Bench and the Bar, learned in the law and inspired by high principles of professional conduct and existence of suitable generation to ensure fair trial. Thus, the legal profession is one of the three ingredients that play an important role in the administration of justice. The Lawyers assist the court in arriving at a correct judgment. Without the assistance of the lawyers it would be a super human task for the judge to arrive at a satisfactory judgment. Thus, an advocate renders assistance to the courts in the administration of justice and also gives professional advice to members of the public who require their services. . Legal profession has been created by the state for the public good and not for private gain. An advocate is an officer of the court. The court acts on his statements. Consequently, the essence of the profession lies in the three things:1. Organization of its members for the performance of their function; 2. Maintenance of certain standards, intellectual and ethical, for the dignity of the profession; 3. Subordination of pecuniary gains to efficient service2. An Advocate practicing law is under a triple obligation. An obligation to his clients to be faithful to them till the last, an obligation to the profession not to besmirch its name by anything done by him, and an obligation to the court to be and to remain a dependable part of the machinery through which justice is administered. For fulfillment of these obligations legal ethics have been enacted. 1 C.L. Anand, General Principles of Legal Ethics, 39 (Law Book Co., Allahabad, 1965). 2 C.L. Anand, General Principles of Legal Ethics, 30 (Law Book Co., Allahabad, 1965). 1

Legal ethics may be taken to mean the body of rules and practice which determine the professional conduct of the members of bar. The main object of legal ethics has well been explained by the Chief Justice Marshall:- “The fundamental aim of Legal Ethics is to maintain the honor and dignity of the Law Profession, to secure a spirit of friendly co-operation between the Bench and the Bar in the promotion of highest standards of justice, to establish honorable and fair dealings of the counsel with his client, opponent and witnesses, to establish a spirit of brotherhood in the Bar itself and to secure that lawyers discharge their responsibilities to the community generally.”3 HISTORICAL PRESPECTIVE During Hindu Period, the legal profession as it exists today was not in existence. During this period, the courts derived their authority from the King who was considered the fountain head of justice. The King’s Court was superior to all other courts. The King was advised by his Councillor in hearing and deciding the case but he was not bound by their advice. The plaintiff was required to present plaint before the Court and thereafter the Court could direct the defendant to submit his reply. Thereafter the Court was required to investigate the matter and deliver its judgment. The Courts delivered judgment on the basis of evidence gathered from various sources, e.g., witnesses, documents, etc. Ordeal was also recognized as means of proof.4 During the Muslim Period, the litigants were represented by a body of persons known as vakils. 5 The vakil was paid a percentage of the amount in the suit. 6 The Court of the native administrations concerned determined who should be allowed to appear as Vakil in a Zilla

3 C.L.Anand, General Principles of Legal Ethics, 63 (Law Book Co., Allahabad, 1965). 4 Dr Kailash Rai, Legal Ethics- Accountability for Lawyers & Bench-Bar Relations 15 (Central Law Publications, Allahabad, 9th edn., 2010). 5 Namberumal Chetty v. M.P. Narasimhachari, (1916) 37 IC 699. 6 ibid 2

Court.7 Even during this period, the legal profession was not organized. The Vakils acted more as agents for principals than as lawyer.8 The legal profession as it exists in India today had its beginnings in the first year of British rule. The Hindu pundits, Muslim Muftis and Portuguese lawyers who served under earlier regimes had little effect upon the system of law and legal practice that developed under British administration. The Charter Act, 1726 contained no provision whatsoever regarding the qualification for the persons desirous of practicing law. The courts were the sole judges in this regard. This position continued up to 1774. The first real step in the direction of organizing a legal profession was taken in 1774 when the Supreme Court was established in Calcutta pursuant to the Regulating Act of 1773. Clause 11 of the Supreme Court Charter empowered the court “to approve, admit and enroll such and so many advocates and attorneys at law” as the court “shall seem fit”. They were to be attorneys of record and were authorized “to appear and plead and act for the suitors” of the court. The court could remove the said advocates and attorneys “on reasonable cause”. No other person whatsoever, but such advocates and attorneys so admitted and enrolled were to be “allowed to appear and plead or act” in the court, for or on behalf of such suitors. The “advocates” entitled, thus, to appear were only the English and Irish barristers and members of the Faculty of advocates of Scotland; the attorneys referred to were the British attorneys and solicitors. The same powers of enrolment were later conferred on the Supreme Court established at Bombay and Madras. An Indian lawyer had no right to appear before the courts.9 The Bengal Regulation VII of 1793 created, for the first time a regular legal profession for the Company’s Courts. Thereafter, The Legal Practitioners Acts of the years 1846, 1863 and 1879 made important innovations. Such as- (1) the office of pleaders was thrown open to all persons of whatever nationality or religion duly certified by the Sadar Courts; (2) attorneys and barristers of 7 ibid 8 Dr Kailash Rai, Legal Ethics- Accountability for Lawyers & Bench-Bar Relations 15 (Central Law Publications, Allahabad, 9th edn., 2010).

9 B.M. Gandhi, V.D. Kulshrestha’s Landmarks in Indian Legal and Constitutional History (Eastern Book Company, Lucknow, 9th edn., 2009). 3

any of Her Majesty’s courts in India were made eligible to plead in any of the Sadar courts; (3) the pleaders were permitted to enter into agreements with their clients for their fees for professional services. Later on, the Indian Bar Councils Act, 1926, was enacted that provided for constitution and incorporation of Bar Councils for certain courts for the purpose of consolidating and amending the law relating to legal practitioners entitled to practice in such courts. But this act did not satisfy the bar. As Bar Council was only an advisory body in matter of the disciplinary action against the erring advocate. High courts retained the controlling power both in matters of framing rules and punishing the advocates for profession or the misconduct. With independence a new stimulus to the demand of legal profession led to the appointment of all India Bar Committee in 1951. The report of the All India Bar Committee marked a landmark march towards unification and autonomy of Bar. The chief recommendations of the committee consisted of- i) there should be a unified Bar consisting of a single type of practitioners to be called advocates, with prescribed minimum qualifications, and equal rights and privileges. ii) to constitute an All India Bar Council in addition to the State Bar Councils. iii) that the Bar should be given an all India recognition for the purposes of legal practice. The Committee recommended that there should be common register of advocates for the whole of India to be maintained by the All India Bar Council and every advocate on the common roll should have right to practice in all courts of the Indian union from top to the bottom i.e. from Supreme Court to the District Courts. iv) that the Bar should be made autonomous and independent. v) that the lawyers should have a common code of professional ethics to be determined and prescribed by a single authority, the All India Bar Council.10

MODREN PERSPECTIVE In 1961, the Advocates Act was passed. This act marked the beginning of a new era in the history of the legal profession by vesting largely in the Bar Councils the power and the jurisdiction which the courts till then exercised, by fulfilling the aspirations of those who had been demanding an All India Bar and effecting a unification of the Bar in India, by the creation of a single class of practioners with power to practice in all the courts and bound by rules made and a 10 Prof. Anirudh Prasad, Principles of The Ethics of Legal Profession in India, (University Book House Pvt Ltd., Nagpur, 3rd edn., 2010).

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code of conduct laid down by their own bodies to which the member could resort to for the protection of their rights, interests and privileges.11 The Advocates Act makes provision for the establishment of the State Bar Council and Bar Council of India. The main functions of the Bar Council of India are to lay down the standards of professional conduct and etiquette for advocates, to lay down the procedure to be followed by its disciplinary committee, to safeguard the rights, privileges and interest of advocates, to promote and support law reform, to promote legal education, to recognize universities from which degree in law shall be a qualification for enrolment as an advocate, to conduct seminars, etc. It provides for two classes of advocates, senior advocates and other advocates. The State Bar Councils are required to maintain role of advocates and to send copies of rolls of advocates to the Bar Council of India. The Act contains exhaustive provisions relating to enrolment and admission of advocates, rights of advocates, punishment for professional and other misconduct, etc. Section 49(1)(c) of the act empowers the Bar Council of India to make rules so as to prescribe the standards of professional conduct and etiquette to be observed by the advocates. In the exercise of this rule making power the Bar Council of India has made several rules so as to specify the duties of an advocate towards the court, client, opponent and colleagues, etc.12 The duties towards the court include the following:An advocate is required to maintain towards the court a respectful attitude, however an advocate is not servile and in case of proper ground for serious complaint against a judicial officer, it is his right and duty to submit his grievance to the proper authorities. It is the duty of an advocate not to influence the decision of the court by any illegal or improper means. The rule requires an advocate to use his best efforts to restrain and prevent his client from resorting to sharp or unfair practice or from doing anything in relation to the court, opposing counsel or parties which the advocate himself ought not to do. An advocate has been prevented from acting or pleading in any matter in which he is himself pecuniarily interested. The rule requires an advocate to appear in court in the prescribed dress. It also requires an advocate not to wear bands or gowns in public 11 ibid 12 Dr Kailash Rai, Legal Ethics- Accountability for Lawyers & Bench-Bar Relations (Central Law Publications, Allahabad, 9th edn., 2010). 5

places other than in court except on such ceremonial occasions and at such places as the Bar Council of India or Court may prescribe.13 The duties of an advocate towards his client include the following: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. However, in exceptional circumstances he may refuse to accept a particular brief. The rule also provides hat an advocate shall not ordinarily withdraw from engagements once accepted without sufficient cause and unless reasonable and sufficient notice is given to the client. It has also been provided that 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. An advocate shall, at the commencement of his engagement and during the continuance thereof, make all such full and frank disclouser 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 judgments in either engaging him or continuing the engagement. The advocate shall not do anything whereby he abuses or takes advantage of the confidence reposed in him by his client. Several rules have been made so as to provide duties with respect to the money of the client in possession of the advocate.14 The duties of an advocate to opponent include the following:The rule makes it clear that an advocate shall not, in any way, communicate or negotiate upon the subject matter of controversy with any party represented by an advocate except through that advocate.15 The duties of an advocate to the colleagues include the following:An advocate shall not solicit work or advertise whether by circulars, advertisements, touts, personal communications etc. However, this rule will not stand in the way of the advocates furnishing website information as approved by the Bar Council of India. An advocate shall not entre appearance in any case in which there is already a vakalatnama or memo of appearance 13 ibid 14 Dr Kailash Rai, Legal Ethics- Accountability for Lawyers & Bench-Bar Relations (Central Law Publications, Allahabad, 9th edn., 2010). 15 ibid 6

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 should not be produced and he shall appear only after obtaining the permission of the court.16 In addition to above, the following duties are also notable:Every advocate on the rolls of the State Bar Council is required to pay a certain sum to the State Bar Council. Every advocate shall, in the practice of the profession of law, shall bear in mind that any one genuinely in need of a lawyer is entitled to legal assistance even though he cannot pay for it fully or adequately and that within the limits of an advocate’s economic condition, free legal assistance to the indigent and oppressed is one of the highest obligations, as an advocate owes to the society.17 The lawyers are supposed to follow ethics of legal profession to maintain the dignity of the profession and any deviation from these elementary principles amounts to professional or other misconduct as per section 35 of The Advocates Act, 1961. The breach of these duties has been made punishable. The order of the disciplinary committee of the State Bar Council may be challenged in appeal before the Bar Council of India and the order of the disciplinary committee of the Bar council of India may be challenged in appeal before the Supreme Court.

PROBLEM PROFILE Legal Profession is a learned noble and dignified profession. It is regarded as a learned profession because it’s two components-the judges and the lawyers have always to engage themselves in the process of learning. It’s a noble and dignified profession because lawyers enforce Justice. The dignity and nobility of the legal profession is also based on its self regulatory or in house correction norms. It lies in code of ethics governing relationship between Bench and the Bar, Bar and the clients and bar and the people at large. With the passage of time, there is deterioration in the image of legal profession in independent India. The Law Commission of India, in its 14th report noted the general loss of moral prestige for the legal profession. It noted, “the evidence given before us reveals a general consensus that 16 ibid 17 ibid 7

there is a fall in efficiency and standards at the Bar. The rescent recruit to the profession is said to be inferior legal equipment, less painstaking and in a hurry to find work.”18 There is a general feeling that post independence India has not been able to keep up the tempo of honourable legal profession generated by Britishers in pre independence period. In pre independence period the country had the benefit of stalwart lawyers with healthy tradition of bar like Justices Ranade, Bhashyam Iyangar, Gurudas Banerjee, Sir Ashutosh Mukherjea, Mohmood etc. and practitioners like Pt. Motilal Nehru and C.R.Das, Dr Kailash Nath Katju really laments that unfortunately in our country while this profession was considered to be the profession of brave, the dauntless, the independent minded, and the pure, a tendency is being noted now to denounce it and to depreciate its value and utility.19 Some of the reasons for all round deterioration in legal profession consisting of Law Teaching and Law Practice that includes both advocates and Judicial officers are dealt below20:1) Ill equipped Law Colleges- The condition of legal education is deteriorating day by day. There has been tremendous and enormous increase in number of colleges imparting legal education. Most of these colleges are without law reports and journals, without adequate teaching and library facilities and always flouting the admission, teaching and examination norms. Moreover, availability of eligible faculty in these institutions is the biggest issue. 2) Over crowded Bar: - With introduction of semester system the result of law examination has enormously raised. There is flood of lawyers. During eighties the number of enrolled lawyers was over 3,00,000 and during 1990 it went over4,00,000 and at present it might be above 5,00,000. The trend shows more than 15000 increase every year. Quantity has relegated quality of the Bar to the periphery.

18Prof. Anirudh Prasad, Principles of The Ethics of Legal Profession in India 67 (University Book House Pvt Ltd., Nagpur, 3rd edn., 2010).

19 ibid 20 Prof. Anirudh Prasad, Principles of The Ethics of Legal Profession in India 68-74 (University Book House Pvt Ltd., Nagpur, 3rd edn., 2010).

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3) Lack of training of new entrants: - Lack of training of new entrants in the profession is another reason for deterioration of image of the profession. 4) Tendency in some of lawyers to convert Legal Profession into a Trade: - The march of Bar from learning to earning has turned the profession into a bread and butter supply industry or into a commercial organization. In M.P.Sinha v. State of Bihar21it was observed that the time has come to examine the quality of the product or service, control of price, enforce commitment to the people and practice internal distributive justice so that the profession may flourish without wholly hitching the calling to the star of material amassment immunized by law from the liabilities of other occupations-Law reform includes Lawyer reform. 5) Prevalence of Misuse within the Profession: - By misusing confidence reposed in robe, some lawyers indulged themselves in such activities which brought disrepute to the profession. Therefore, he is not supposed to misuse the confidence reposed in him by his client. In Harish Chander Singh V. S. N. Tripathi22 the appellant-advocate was engaged by the complainant as a counsel to represent him in the consolidation proceedings. On the appellant’s persuasion the complainant executed a Mukhtarnama in favour of his junior (respondent-2). By the Mukhtarnama the complainant gave full power to respondent-2 to dispose of his property. On that basis respondent-2 executed a sale deed in respect of the complainant’s land in favour of the appellant’s father. The kutumb register showed that the appellant and his father were living in the same house. The complainant alleged that he never intended to authorize the appellant’s junior to execute any such sale deed. It was held that the Disciplinary Committee was justified in taking the view that the complainant was duped by his advocates namely, the appellant who had misused the confidence reposed by the complainant in him and had tried to dispose of the complainant’s property in favour of his own father. 6) Inappropriate Behavior of Lawyers: - Inappropriate Behaviour of Lawyers also adds fuel to the fire of deteriorating confidence in the legal profession. Some instances are as follows the practice of bench fixing 21 Special Leave Petition No.6056 of 1979 decided on 30.9.79. 22 (1997) 9 SCC 694. 9

   

hot discussions with Bench, lawyers of the opposite parties the practice of suppressing inconvenient precedents, unfavorable to the case the practice of asking for repeated adjournments the practice of prolix argumentation with an eye to the maximization of fees per



appearance the practice of charging unconscionable fees regardless of the paying capacity of

clients and the nature of the case  the practice, during lawyer’s strike, of picketing even the homes of judges  the practice which help the growth of administrative corruption in the court staff  the practice of resorting to strikes All the above factors result in the loss of credibility of the Legal Profession. 7) Delay in justice: - Delay is not only, defeating justice it is bound to loose faith in process of justice. Due to shortage of courts, judges and practice of seeking unnecessary adjournments justice gets delayed. Inordinate delay defeats the very purpose of litigation. 8) Misconduct by lawyers: - The term ‘misconduct’ is not defined in the Advocates Act. Section 35 of the Act simply provides that where on receipt of a complaint or otherwise a State Bar Council has a 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 Supreme Court23 has observed that the term ‘misconduct’ may involve moral turpitude, it must be improper or wrong behavior, unlawful behavior, willful in character forbidden act, a transgression of established and definite rule of action or code of conduct, but not mere error of judgment, carelessness or negligence in performance of duty; the act complained of bears forbidden quality or character. The Court has further made it clear that its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. The Supreme Court has, in some of its decisions, elucidated on the concept of ‘misconduct’, and its application. In Sambhu Ram Yadav v. Hanuman Das Khatry, a complaint was filed by the appellant against an advocate to the Bar Council of Rajasthan, that while appearing in a suit as a counsel, he wrote a letter stating that the concerned judge, before whom the suit is pending accepts bribes, and asked for Rs. 10,000 to bribe and influence the judge to obtain a favourable order. The Disciplinary Committee, holding that the advocate was guilty if “misconduct”, stated that 23 State of Punjab v. Ram Singh, AIR 1992 SC 2188. 10

such an act made the advocate “totally unfit to be a lawyer.” The Supreme Court, upholding the finding of the Rajasthan Bar Council held that the legal profession is not a trade or business. Members belonging to the profession have a particular duty to uphold the integrity of the profession and to discourage corruption in order to ensure that justice is secured in a legal manner. The act of the advocate was misconduct of the highest degree as it not only obstructed the administration of justice, but eroded the reputation of the profession in the opinion of the public. In B. R. Mahalkari V. Y. B. Zurenge24, in pursuance of a decree passed in a maintenance suit, the husband deposited the arrears of maintenance into court in favour of his wife (complainant). The appellant advocate, representing the complainant in the suit, withdrew the amount from the court but failed to pay the same to the complainant. On that finding the State Bar Council held the appellant guilty of professional misconduct and ordered his suspension from practice for a period of three years. Both the Bar Council of India and the Supreme Court confirmed the same. In Gian Chand V. Bar Council of India25 an advocate withdrawing the case filed on behalf of his client and instituting other legal proceedings without instructions, by obtaining signatures of the client on blank papers under a false pretext is guilty of professional misconduct. Suspension from practice only for one year was affirmed. The list of instances of professional misconduct is not exhaustive, the Supreme court has widened the scope and ambit of the term misconduct in numerous instances, only few cases has been elaborated above. Table No.126 Sl no

Instance of misconduct

Held in Case

Citation

24 (1997)11 SCC 109. 25 (1997)11 SCC 108. 26Professional Misconduct of Lawyers in India, available at: http://www.legalservicesindia.com/article/article/professional-misconduct-of-lawyersin-india-1665-1.html (accessed on august 18, 2015) 11

1

Retention of money deposited

Prahlad Saran Gupta V Bar council

with advocate for the decree

of India

AIR 1997.SC.1338

holder even after execution proceedings 2

Misguiding Junior Advocate

Harish Chander Singh V SN Tripathi AIR. 1997 SC 879

3

Assaulting opponent with Knife Hikmat AliKhan v Ishwar Prasad

AIR 1997. SC 864

in Court room

Arya

4

Scandalisation against Judge

In re DC Saxena

AIR 1996 SC 2481

5

Attending court with fire arm

UP Sales tax service association v

AIR 1996.SC 98

taxation Bar Association, Agra 6

Discussion of the conduct of

C Ravichandran Iyer v Justice AM

judge and pass resolution by bar Bhattacharjee

1995. (2) KLT, SN 56 case no 77.

council, bar association or group of practicing advocates 7

Failure to return will executed

John D Souza v edward Ani

1994. SC 975

Onkar Singh V Angrez Singh

1993, (1) KLT 650,

and kept in safe custody 8

Constant abstention from conducting of cases

9

P&HHigh Court.

Misappropriation of amount

DS Dalai V State Bank of India

AIR 1993 SC 1608 /

paid

JS Jadhav v Mustafa Haji Mohamed AIR 1993. SC 1535 Yusuf

10

Attesting forged affidavit

M Veerendra Rao v Tek Chand

AIR 1985 SC 28

11

Failure to attend trial after

SJ Choudhary v State

AIR 1984 SC 618

PD Khandekar v Bar Council of

AIR 1984 SC 110

accepting the brief 12

Improper legal advice

Maharastra 12

13

Misappropriation of Decretal

KV Umre v Venubai

AIR 1983 SC 1154

Taking money from client for

Chandra Sekhar Soni v Bar Council

AIR 1983 SC 1012

the purpose of giving bribe

of Rajastan

Rushing towards potential

The bar Council of Maharastra v MV AIR 1976 SC 242

clients and snatching briefs

Dabholkar

Taking advantage of the

NA Mirzan V the disciplinary

ignorance and illiteracy of the

committee of the Bar council of

clients

Maharastra

amount 14

15

16

17

Appearing with out authority on In re advocate

AIR 1972 SC 46

AIR 1971 Ker 161

a forged vakalath 18

Advertising profession

CD Sekkizhar v Secretary, Bar

AIR 1967 Mad. 35

Council, Madras. 19

Gross negligence involving

In the matter of P an Advocate and

AIR 1963. SC 1313 /

moral turpitude

VP Kumaravelu v the Bar council of AIR 1997 SC 1014 India

20

Coercing Colleagues

In re Badri Narin

AIR 1960 Pt. 307

21

Appearing for both sides

Rambharosa Kalar v Surendra nath

AIR 1960 MP 81

Thakur 22

23

False identification of

Brahma din and others v

AIR 1958 AP 116

Deponents

Chandrasekhar Shukla

Indecent cross examination

Shri Narain Jafa V The Hon. Judges AIR 1953 SC 368 of the High Court, Allahabad

24

Shouting political slogans and

In the matter of a pleader, Ottapalam AIR 1943, Mad. 130

holding demonstrations in court

13

25

Attending court in drunken state In the matter of a lower grade

AIR 1934 Rang. 423

pleader 26

Breach of trust

Bapurao Pakhiddey v Suman

1999 (2) SCC 442

Dondey 27

Bribe

Purushottam Eknath Nemade v DN

1999 (20 SCC 215

Mahajun 28

Fraud and forgery

LC Goyal v Nawal Kishore

1997 (2) SCC 258 /

and

AIR 1996 SC 2022

Devender Bhai Shanker Mehta v Ramesh Chandra Vithal Dass Seth

9) The “Sonstroke” phenomenon: - Rule 6 of the Code prescribes that an advocate shall not practice before a court or any other judicial forum “sitting alone or otherwise, if the sole or any member thereof is related to the advocate as husband, father, grandfather, son, grandson, brother, father in law, son in law, uncle, nephew, first cousin, wife, mother, daughter, sister, mother in law, daughter in law, aunt or niece.” Therefore it is a professional misconduct for a relative to appear before such a judge. This rule is violated very often these days. 10) Settlements in professional appointment: - Red tapism, favoritism are necessary evils in the noble profession. Talent usually gets ignored in professional appointments. 11) Corruption in Judiciary: - An effective judiciary guarantees fairness in legal processes. It’s a powerful weapon against corruption. But experiences in courts are far from fair. Most people in contact with the courts face demands for bribes. A backlog of cases creates opportunities for demanding bribes to fast track a case. Court personnel can be paid to slow down or speed up a trail, or dismiss a complaint. 12) Lack of spirit to follow Legal Ethics in Legal fraternity: - The reasons are code of conduct is not mandatory.  the act has not defined the term misconduct, instead it has included professional and other misconduct and definition is left to the Bar Councils and Supreme Court to decide as per discretion 14



denial of the principle of natural justice to an ordinary litigant who is aggrieved with the misconduct of the advocate, as the body of their association i.e. Bar



Council is deciding the case in which their own member is the respondent. the Advocates Act 1961, created Bar Council of India and Bar Council of States with a view to ensure dignity and proper functioning of the courts. The Bar Councils till date have not been able to achieve discipline among the advocates



through the disciplinary committees. the deviance pattern and its handling finds a tendency of low complaint filling by clients due to ignorance of disciplinary orocedure on part of the client or duress or

inability to hire lawyers to file a complaint  lastly, lawyers are not punished proportionate to their guilt. 13) Overall Disgusting image: - The learned and noble profession on which progress of the country is dependent is drifting away from its commitment to social service and is fast becoming exploitative, money making occupation devoid of humanism, nobility and devotion to human welfare. After analysising the deteriorating position of the legal profession it becomes clear that the legal fraternity is deviating from its intended and revered path and this is becoming the great concern of society and therefore is leading to the following objectives.

OBJECT OF STUDY The objectives of this study are as follows:1. To analyze the nature of Code of Conduct in Legal Profession such as in courts and teaching institutions. 2. To measure the professional deviance and its impact upon the value of justice. 3. To compare the position of Legal Profession at national and international level.

RESEARCH HYPOTHESIS 1. The present study rests on the assumption that the Legal fraternity in court and in teaching institutions seems to be deficient in execution of Professional Ethics. 2. The agencies of legal profession disobey the rules and policies of present law.

RESEARCH METHODOLOGY The method of the research adopted for this study will be both empirical and doctrinal. For the first objective empirical survey would be conducted to seek the opinion of judicial officers, 15

advocates, academicians, members of Bar Councils and clients about reasons of professional deviance and its impact. Separate Questionnaires will be prepared for the respective category of subjects. For the second objective, a comparative study of legal ethics of different countries will be conducted. The researcher shall base the research on the primary and secondary sources available in various libraries and shall closely evaluate and analyze the work of different scholars from different eras who have contributed to the similar field of study.

SUMMARY OF REVIEW OF LITERATURE In the process of review of literature the following books were reviewed:The first book reviewed by the researcher is “Principles of the Ethics of Legal Profession in India”.

27

The author Prof. Anirudh Prasad has made the study on the subject of professional

ethics in proper perspective with full information-statutory, decisional and practices of the bench and bar. Relevant and up to date decisions of the Disciplinary Committees of the Bar Council of India and the Supreme Court of India have been cited, illustrated and critically examined at appropriate places. The author has divided the study of the different aspects of professional ethics into seven parts. Part one deals with the basic postulate of the administration of justice. Part two of the book deals with the historical evolution and professionalization of legal profession. Part three of the book deals with the position of legal profession and necessity of professional ethics. Part four, Part five and six deal with different aspects of issues relating to professional ethics. Part seven presents discussion on professional or other misconduct, authorities and procedure to deal with such misconduct, standard and proof and quantum of punishment. In the last, chapter XV presents a critical appraisal of the provisions relating to professional ethics. The second book reviewed by the researcher is “Inside Lawyers’ Ethics”.28 In this book, the authors, Christine Parker & Adrian Evans refers to the rules of conduct as being one of the sources of information that lawyers can and should use to make ethical judgments about what is 27 Prof. Anirudh Prasad, Principles of The Ethics of Legal Profession in India, (University Book House Pvt Ltd., Nagpur, 3rd edn., 2010).

28 Christine Parker and Adrian Evans, Inside Lawyers’ Ethics, (Cambridge University Press, 2nd edn., 2014). 16

the right thing to do in different situations, but these rules do not provide a basis for considering what values should motivate a lawyers’ behavior and choices about what kind of lawyer to be. This book provides for a basis for the ethical critique of professional conduct principles. The authors have taken a practical and applied approach to examining lawyers’ ethics. The third book reviewed by the researcher is “Legal Ethics and Professional Responsibility”.29 The author Ross Cranston states that among members of the legal profession and judiciary throughout the world, there is a genuine concern with establishing and maintaining high ethical standards. The book opens with an overview chapter, followed by three chapters analyzing the ethical rules pertaining to the judiciary, the Bar, and solicitors, written by, respectively, the Master of the Rolls, Anthony Thornton, and Alison Crawley and Christopher Bramall. The following three chapters look at the specific issues of confidentiality (Michael Brindle and Guy Dehn) and the particular ethical problems in the family and criminal law jurisdictions (Sir Alan Ward and Professor Andrew Ashworth respectively). Chapter 8, by Sir Alan Paterson, discusses the teaching of legal ethics, whilst Chapters 9 and 10, by Marc Galanter, Thomas Palay, and Cyril Glasser put the subject in its wider social and professional context. The book finishes with a chapter which examines what lawyers may learn from looking at the study of medical ethics. The fourth book reviewed by the researcher is, “Professional Ethics, Accountability for Lawyers and Bench Bar Relations.”30 The author J.P.S.Sirohi provides a brief, compact and clear enunciation of the subject-matter relating to Legal Ethics, Rights and Obligations and concept of Contempt of Courts Act, Advocates Act and Bar Councils Rules, etc. The book brings forth in elaborate detail the various issues relating to ethics in legal profession. The book contains XI chapters which concern with Advocates Act, Legal Ethics and the role of the Bar Council of India, Bar Councils of States and the Courts and smooth function of the courts and improving the legal standard of the law students and lawyers. The Bench Bar relations and contempt of courts and professional and other misconduct have also been dealt with along with some important decisions. The book also contains the chapters on skills of Advocates and Public Interest and Human Rights. The important provisions of the Advocates Act, Contempt of Courts 29 Ross Cranston, Legal Ethics and Professional Responsibility, (Clarendon Press, 1995). 30 J.P.S.Sirohi, Professional Ethics, Accountability for Lawyers and Bench Bar Relations, (Allahabad Law Agency, Faridabad, 5th edn., 2010). 17

Act and Constitution of India are thoroughly discussed in the light of decisions of the courts. The book also deals with measure of punishments, and the different kinds of contempt’s and the procedure and practice of courts in contempt cases. The fifth book which is reviewed by the researcher is “Legal and Professional Ethics - Legal Ethics, Duties and Privileges of a Lawyer”.31 The author P.Ramanatha Aiyer has laid emphasis on the role played by a lawyer. The various chapters of this book throw light on definition of a lawyer, how his conduct should be, his duties towards his client, his opponent, colleagues in the profession, to the court and to the society at large. The relationship of senior junior is also discussed in this book. A chapter containing Bar Council of India Rules is also incorporated. The Cases on “Contempt of Court” and “Professional Misconduct” are given at the end of this book. The sixth book which is reviewed by the researcher is “Indian Legal and Constitutional History”.32 The author B.M. Gandhi traces the history of legal Profession in his book. It is mentioned in chapter XXI that the legal profession as it exists in India today had its beginnings in the first years of British rule. The first real step in the direction of organizing a legal profession was taken in 1774 when the Supreme Court was established in Calcutta pursuant to the Regulating Act of 1773 solicitors. The Bengal Regulation VII of 1793 created, for the first time, a regular legal profession for the Company’s Courts. The author has discussed the regulation in detail. The author has also thrown light on various enactments that have played an important role in the development of the legal profession in India. The author has also discussed in detail how The Advocates Act, 1961 has marked the beginning of a new era in the history of the legal profession. The seventh book reviewed by the researcher is “Legal Ethics –Accountability for Lawyers & Bench–Bar Relations”.33 The author Dr.Kailash Rai has discussed in details the provisions of the 31 P.Ramanatha Aiyer, Legal and Professional Ethics- Legal Ethics, Duties and Privileges of a Lawyer, (Wadhawa, Nagpur, 3rd edn., 2003). 32 B.M. Gandhi, V.D. Kulshrestha’s Landmarks in Indian Legal and Constitutional History, ((Eastern Book Company, Lucknow, 9th edn., 2009). 33 Dr Kailash Rai, Legal Ethics –Accountability for Lawyers & Bench–Bar Relations, (Central Law Publication, Allahabad, 9th edn., 2010). 18

Advocates Act, Contempt of Courts Act and also of the Constitution relating to the Contempt of Court. In chapter I, the author discusses in detail the development of legal profession in India in three phases i.e. in Pre-British India, during British Period and after Independence. In chapter II of the book the various provisions of the Advocates Act, 1961 have been discussed. Chapter III deals with the constitution of two types of Bar Council: - Bar Council of India and State Bar Councils. In chapter IV, the author has explained in detail the meaning, nature and need of professional ethics. Chapter II of Part VI of the rules framed by the Bar Council of India deals with the standards of professional conduct and etiquette. Chapter V deals with the conduct of advocate and punishment of advocates for misconduct. Chapter VIII deals with the meaning and kinds of the Contempt of Courts. Chapter XIV deals with nature and extent of the punishment and the remedies available against the order of punishment. The researcher has also reviewed the 131st report of Law Commission of India. The Law Commission of India presented its one hundred thirty first report on “Role of the Legal Profession in Administration of Justice”34 in 1988. The report concerns itself with the role of the legal profession in strengthening the system of administration of justice. Chapter I of the report throws light on historical background of the legal professionChapter II of the report provides that the present justice delivery system came under pungent criticism due to prolixity, high formality, dilatoriness and expensiveness. Chapter III of the report deals with suggestion and recommendations by the Law Commission. The law commission has given various suggestions. The Law Commission further mentions that if all the steps herein indicated are taken, the role of the legal profession in strengthening the system of administration of justice would be fully appreciated and the situation, both qualitatively and quantitatively, change for the better. The few articles reviewed by the researcher in the process of reviewing literature on the topic are:-

34 Law Commission of India, 131st Report on Role of the Legal Profession in Administration of Justice, (1988), available at: http://www.lawcommissionofindia.nic.in/101-169/Report131.pdf, (accessed on June 8, 2014). 19

The first article reviewed by the researcher is “Liability of the Legal Practitioners for Professional Negligence: a Critical Analysis”.35 The author Jeet Singh Mann has discussed in detail the concept of professional negligence, liability of legal practitioner for professional negligence in India, impact of the liability on the behavior of the legal practitioners and amplitude of liability of the legal practitioner under the Consumer Protection Act, 1986.The author also critically analyses whether the liability of legal practitioner would fall within the ambit of the services as defined under section 2(1) (o) of the Consumer Protection Act, 1986. It is strongly believed that there is a need to redefine the liability of these professionals under the Consumer Protection Act, 1986, which is capable of providing speedy and economical justice to the aggrieved person. The second article reviewed by the researcher is “Legal Education-In Search of New Vistas”.36 The author K.N. Chandrasekharan Pillai has discussed in detail the position of legal education in India and has also given suggestions to improve it. It is mentioned in the article that the position of legal education in India during the last six decades after independence could be captured from the observations made by the bodies which have had the opportunity to examine it then and now.The commission has thus reopened the debate on the objectives of the legal education. The author has also highlighted various functions which are performed by the lawyers. The third article reviewed by the researcher is “Lawyering at the Intersection of Public Law and Legal Ethics: Government Lawyers as Custodians of the Rule of Law”.37 The author Adam M.Dodek in this article highlights the ethical duties of the government lawyers. The article throws light on role of government lawyers and their code of conduct. Government lawyers are different from other lawyers by virtue of their role in creating and upholding the rule of law. This article proceeds in three parts. First part deals with how government lawyers are different from other lawyers. Second part deals with the question of whether government lawyers owe different 35Jeet Singh Mann, “Liability of The Legal Practitioners for Professional Negligence: A Critical Analysis”, 51 JILI., 385-94 (2009). 36 K.N.Chandrasekharan Pillai, “Legal Education-In Search of New Vistas”, 50 JILI 367-74 (2009). 37 Adem M.Dodek, “Lawyering at the Intersection of Public Law and Legal Ethics: Government Lawyers as Custodians of the Rule of Law”, 33 DalhousieLJ (2010). 20

or higher ethical duties than do other lawyers. Third part deals with the question of accountability and regulation of government lawyers The fourth article reviewed by the researcher is, “Professional Legal Ethics: A Comparative Perspective”.38The author Maya Goldstein Bolocan has endeavored to trace comparison in legal ethics followed by United States and European countries. This article presents a series of commentaries on professional legal ethics of United States and the Western European countries. The article is divided into five parts. Part II of this article gives an overview of the differences existing in the organization of the legal profession in the United States and Europe. It briefly identifies the sources of professional and ethical regulation of lawyers in the United States and Europe, and indicates the main differences existing in ethical standards between civil law and common law legal systems. Part III reviews the main standards of professional legal ethics as they are regulated in the United States, and attempts comparisons with selected European countries such as France, Italy, Spain, Germany, Sweden, Norway and United Kingdom etc., especially where the approach taken is substantially different (e.g. conflict of interest, lawyers’ advertising, fees, communications and confidentiality). Part IV illustrates the lawyers’ disciplinary system in the United States, highlighting briefly the differences with the discipline of lawyers in selected European countries. Part V provides a description of the challenges posed by the increase in cross-border, transnational legal practice, and an overview of the various regulatory responses to the issues of double-deontology attempted so far. The fifth article reviewed by the researcher is, “When the Lawyer knows the Client is guilty: Client Confession in Legal Ethics, Popular Culture and Literature”.39 The authors Michael Richard and Asimow Weisberg have elaborately discussed the duty of lawyers when the client is guilty. The authors mention that Legal ethicists have spilled a great deal of ink struggling with the problem of what a defense lawyer should do when the client has confessed guilt but insists on an all-out defense. Part I tells the story of two notorious cases, Courvoisier and Westerfield. In 38 Maya Goldstein Bolocan, “ Professional Legal Ethics: A Comparative Perspective”, (CEELI) 740 15 th St., N.W., Washington, D.C. 20005-1022, available at: http://papers.ssrn.com/sol3/papers.cfm? abstract_id=321700, (accessed on June 10, 2014). 39 Michael Richard and Asimow Weisber, “When the Lawyer knows the Client is guilty: Client Confession in Legal Ethics”, Popular Culture and Literature, 18 Southern California Interdisciplinary LJ, (2009).

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both cases, the lawyers’ conduct in defending clients they knew were factually guilty touched off a firestorm of public criticism. Part II suggests a frame for analyzing ethical issues and for thinking about the lawyer’s role in an adversary system: strong vs. weak adversarialism. Part III traces the strong vs. weak distinction through four decisions that often confront criminal defense lawyers who are certain of their client’s guilt. Part IV turns to the treatment of the ethical issue in popular culture. Part V turns to adversarialism in literature and observes that literary lawyers are usually strong adversarialist rogues who win their cases or decent human beings who practice weak adversarialism and lose their cases. Part VI sums up what we have learned about strong vs. weak adversarialism in ethics, pop culture, and literature The last article reviewed by the researcher is, “Globalization of Professional Ethics?-The significance of lawyers International Codes of Conduct”.40 The authors Andrew Boon and John Flood have discussed in detail the need of having International Code of Ethics for legal profession. The key question the article considers is, given high levels of skepticism regarding the possibility of achieving “Universal Ethics”, what lies behind the development of international codes? In order to answer this question the authors have divided their study in two parts. In first part they examined the activity of CCBE and IBA, the contexts in which they function, and the codes that they produced, as case studies of the production of international codes of ethics. These two codes are among the more mature attempts in the production of international ethical codes and therefore provide sufficient material for analysis and comparison. Secondly, the authors compared the codes and examined the functions of the promulgation of ethical codes that constitute their sociological comprehensiveness: the deontological function, the legitimation function and the political function, and the extent to which these provide the momentum for globalization of lawyers’ ethics. At the end the authors have discussed the wider issues raised by exploring the interplay of ethics and globalization. The above discussed literature is thoroughly read and reviewed by the researcher in pursuance of her study.

CONCLUSION 40 Andrew Boon and John Flood, “Globalization of Professional Ethics?-The significance of lawyers International Codes of Conduct, Legal Ethics”, Vol.2, pp.29-57, 1999, available at: http://papers.ssrn.com/sol3/papers.cfm? abstract_id=949898, (accessed on June 10, 2014).

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All in all, an advocate performs multiple functions such as an agent of his client, trustee of his client, officer of the court, etc. If his conduct is such as to make him unworthy to remain a member of the honourable legal profession and unfit to be entrusted with the responsible duties that an advocate is called upon to perform, he will be held guilty of misconduct and may be punished therefor.41 Although professional or other misconduct is punishable yet such misconduct is as frequent as is evident from the cases discussed above. Therefore, there is a need to bridge the gap between actual professional performance and the expected professional performance, in order to achieve one of the main objectives of the Constitution i.e. to secure all its citizens-Justice- Social, Economic and Political, by balancing the interests of members of the profession on one side and the interests of the society on the other.

PLAN OF STUDY TENTATIVE CHAPTERIZATION Chapter 1: Introduction Chapter 2:

Legal Ethics – Historical Background

Chapter 3:

Legal Ethics – National Perspective

Chapter 4:

Legal Ethics – International Perspective

Chapter 5:

Legal Ethics – Judicial Perspective

Chapter 6:

Empirical Study

Chapter7:

Suggestions and Conclusion

The complete study has been categorized into seven chapters.

41 In the matter of an advocate, AIR 1934 Rang 33. 23

The first chapter deals with introduction. It will discuss about image and position of legal profession in society, distinguishing features of legal profession as a learned, dignified and noble profession and deterioration in image of legal profession in independent India. The second chapter deals with historical background of Legal Profession. It will discuss in detail the historical evolution of legal profession in the world along with development of legal profession in India in three phases i.e. in Pre-British India, during British Period and after Independence. The third chapter deals with the position of Legal Ethics in India. It will discuss what legal ethics are, need and advantages of having codified legal ethics, professional or other misconduct, authorities and procedures to deal with such misconduct and critical appraisal of provisions relating to professional ethics. The fourth chapter deals with position of Legal Ethics at international level. It will discuss. This chapter will trace comparison of legal ethics that are followed in India with legal ethics that are followed in United States and European countries like United Kingdom, France etc. The fifth chapter deals with role of judiciary. For this various judgments of Supreme Court and High courts of different states will be discussed in detail. The sixth Chapter deals with empirical study and will be conducted with the help of questionnaires. The last chapter deals with Conclusion and suggestion.

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BIBLIOGRAPHY Text Books ABA Compendium of Professional Responsibility Rules and Standards, (1997), by the American Bar Association. B.M.Gandhi; V.D. Kulshrestha’s Landmarks in Indian Legal and Constitutional History, 9th Edition, Eastern Book Company, Lucknow, 2009. C.L.Anand; General Principles of Legal Ethics, Law Book Company, Allahabad, 1965. C.Rama Rao, Y.VijayalakshmiTayaru, Y.NageswaraRao; Professional Ethics and Advocacy, Visakhapatnam, Gayatri Book, 1987. Christine Parker &Andrian Evans; Inside Lawyers’ Ethics, 2nd Edition, Cambridge University Press, 2014. Dr.KailashRai; Legal Ethics –Accountability for Lawyers & Bench–Bar Relations, 9th edition, Central Law Publications, Allahabad, 2010. Dr.S.R.Myneni; Professional Ethics, Accountancy for Lawyers and Bench-Bar Relations, Asia Law House, Hydrabad, 2007. G.H.Farrar and A.M.Dugdale; Introduction to Legal Method, 3rd Edition, Sweet & Maxwell, London, 1990. 25

J.C.Callahan; Ethical Issues in a Professional Life, New York, OxfordUniversity Press,Oxford, 1988. J.P.S.Sirohi; Professional Ethics, Accountability for Lawyers and Bench Bar Relations, Allahabad Law Agency, 5th Edition, 2010. K.Chandra Cyrus Das; Judges & Judicial Accountability, Universal Law Publishing Co. Pvt. Ltd, New Delhi,2003. L.Howard; Being a Lawyer: Individual Choice and Responsibility in the Practice of Law, West Publishing Co., 1992. Michael Head and Scottman; Law inperispective: Ethics, Society and Critical Thinking,India, Universal Law Publishing Co. Pvt. Ltd.,2005. NirmalenduDuttMajumdar; Advocates Act and Professional Ethics, 2nd Edition, Eastern Law House, 1975. P.RamanathaAiyer; Legal and Professional Ethics- Legal Ethics, Duties and Privileges of a Lawyer, 3rd Edition, Wadhwa and Company, Nagpur, 2003. Prof.Anirudh Prasad; Principles of The Ethics of Legal Profession in India, 3rd Edition, University Book House(p)Ltd., Jaipur, 2010. Ross Cranston; Legal Ethics and Professional Responsibility, Clarendon Press, Oxford, 1995. Report; Law Commission of India, 131st Report, Role of the Legal Profession in Administration of Justice, 1988. Journals 

Journal of Indian Law Institute

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Frontline

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The Outlook 26

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India Today

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Law Teller

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Lawyer Update

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www.legalethics.com

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www.abajournal.com 27

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