Meaning and Need of Professional Ethics

LEGAL ETHICS

Introduction:

The word ethics is derived from the Greek word ‘ethos’ (character) and from the Latin word
‘mores’ (customs). Together they combine to define how individuals choose to interact with one
another. In philosophy, ethics defines what is good for the individual and for society and
establishes the nature of duties that people owe to themselves and to one another. Ethics and legal
profession often work hand in hand. Legal profession is a noble profession. The nobility of the
legal profession is maintained by the adherence and observance of a set of professional norms by
those who adopt this profession. It is known as legal ethics or the ethics of the legal profession.
The fundamentals of the legal ethics, may be defined as code of conduct written or unwritten for
regulating the behaviour of a practising lawyer towards himself, his client his adversary in law and
towards the court. Object of the Professional Ethics: The main object of the professional ethics of
advocacy is to maintain the dignity of the legal profession. Chief Justice Marshall has observed in
this respect, “The fundamental aim of legal ethics is to maintain the honour and dignity of the law
profession to secure a spirit of friendly co-operation between the bench and bar in the promotion
of higher standard of justice, to establish honourable and fair dealings of the counsel with his client,
opponent and witness, to establish a spirit of brotherhood with bar itself and to secure that lawyers
discharge their responsibilities to the community generally”.

Legal profession is not a business but a profession. It has been created by the state for the public
good. Consequently, the essence of the profession lies in the three things:

1. Organisation 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 services

Need for Professional Ethics:

The American Bar Association Committee has well explained the need of the code of legal ethics.
It has observed that the legal profession is necessarily the keystone of the arch of Government. If
it is weakened, and allowed to be a subject of the corroding and demoralising influence of those,
who are controlled by craft, greed or gain or other unworthy motive, sooner or later the arch, must
fall. The future of the country depends upon the maintenance of the shrine of the justice, pure and
unrolled by the advocates. Thus, it cannot be so maintained, unless the conduct and motives of the
members of the legal profession are what they object to be. Therefore, it becomes the plain and
simple duty of the lawyers to use their influence in every legitimate way to help and make the Bar
what it is ought to be. A code of ethics is one method of furtherance of this end. The committee
has further observed that members of Bar, like Judges, are officers of the court and like judges,
they should hold office only during good behaviour and this good behaviour should be defined and
measured by ethical standards, however high, as necessary to keep the administration of justice,
pure and unsullied. Such standard may be crystallized into a written code of professional ethics
and the lawyer failing to conform thereto, should not be permitted to practise or retain membership
in professional organisation.
Chapter II of part VI of the Rules framed by the Bar Council of India deals with the standards of
professional Conduct and Etiquette. These rules specify the duties of an advocate to the Court,
client, opponent and colleagues, etc.
 Professional Ethics And Duties Of Advocates

Duties of Advocates:-
The Bar Council of India is a statutory body established under the section 4 of advocates Act 1961 that regulates
the legal practice and legal education in India. It prescribes standards of professional conduct, etiquettes and
exercises disciplinary jurisdiction over the bar. It also sets standards for legal education and grants recognition
to Universities whose degree in law will serve as a qualification for students to enroll themselves as advocates
upon graduation.
Advocates, in addition to being professionals, are also officers of the courts and play a vital role
in the administration of justice.
Accordingly, the set of rules that govern their professional conduct arise out of the duty that they
owe the court, the client, their opponents and other advocates. Rules on the professional standards
that an advocate needs to maintain are mentioned in Chapter II, Part VI of the Bar Council of India
Rules. These rules have been placed there under section 49(1)(c) of the Advocates Act, 1961.

Rules on an advocate’s duty towards the court

1. Act in a dignified manner

During the presentation of his case and also while acting before a court, an advocate should act
in a dignified manner. He should at all times conduct himself with self-respect. However,
whenever there is proper ground for serious complaint against a judicial officer, the advocate has
a right and duty to submit his grievance to proper authorities.

2. Respect the court

An advocate should always show respect towards the court. An advocate has to bear in mind that
the dignity and respect maintained towards judicial office is essential for the survival of a free
community.

3. Not communicate in private

An advocate should not communicate in private to a judge with regard to any matter pending
before the judge or any other judge. An advocate should not influence the decision of a court in
any matter using illegal or improper means such as coercion, bribe etc.

4. Refuse to act in an illegal manner towards the opposition

An advocate should refuse to act in an illegal or improper manner towards the opposing counsel
or the opposing parties. He shall also use his best efforts to restrain and prevent his client from
acting in any illegal, improper manner or use unfair practices in any mater towards the judiciary,
opposing counsel or the opposing parties.

5. Refuse to represent clients who insist on unfair means

An advocate shall refuse to represent any client who insists on using unfair or improper means.
An advocate shall excise his own judgment in such matters. He shall not blindly follow the
instructions of the client. He shall be dignified in use of his language in correspondence and
during arguments in court. He shall not scandalously damage the reputation of the parties on
false grounds during pleadings. He shall not use unparliamentary language during arguments in
the court.

6. Appear in proper dress code

An advocate should appear in court at all times only in the dress prescribed under the Bar
Council of India Rules and his appearance should always be presentable.

7. Refuse to appear in front of relations

An advocate should not enter appearance, act, plead or practice in any way before a judicial
authority if the sole or any member of the bench is related to the advocate as father, grandfather,
son, grandson, uncle, brother, nephew, first cousin, husband, wife, mother, daughter, sister, aunt,
niece, father-in-law, mother-in-law, son-in-law, brother-in-law daughter-in-law or sister-in-law.

8. Not to wear bands or gowns in public places

An advocate should not wear bands or gowns in public places other than in courts, except on
such ceremonial occasions and at such places as the Bar Council of India or as the court may
prescribe.

9. Not represent establishments of which he is a member

An advocate should not appear in or before any judicial authority, for or against any
establishment if he is a member of the management of the establishment. This rule does not
apply to a member appearing as “amicus curiae” or without a fee on behalf of the Bar Council,
Incorporated Law Society or a Bar Association.

10. Not appear in matters of pecuniary interest

An advocate should not act or plead in any matter in which he has financial interests. For
instance, he should not act in a bankruptcy petition when he is also a creditor of the bankrupt. He
should also not accept a brief from a company of which he is a Director.

11. Not stand as surety for client

An advocate should not stand as a surety, or certify the soundness of a surety that his client
requires for the purpose of any legal proceedings.

Rules on an advocate’s duty towards the client

1. Bound to accept briefs

An advocate is bound to accept any brief in the courts or tribunals or before any other authority
in or before which he proposes to practise. He should levy fees which is at par with the fees
collected by fellow advocates of his standing at the Bar and the nature of the case. Special
circumstances may justify his refusal to accept a particular brief.

2. Not withdraw from service

An advocate should not ordinarily withdraw from serving a client once he has agreed to serve
them. He can withdraw only if he has a sufficient cause and by giving reasonable and sufficient
notice to the client. Upon withdrawal, he shall refund such part of the fee that has not accrued to
the client.

3. Not appear in matters where he himself is a witness

An advocate should not accept a brief or appear in a case in which he himself is a witness. If he
has a reason to believe that in due course of events he will be a witness, then he should not
continue to appear for the client. He should retire from the case without jeopardising his client’s
interests.

4. Full and frank disclosure to client

An advocate should, 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 judgement
in either engaging him or continuing the engagement.

5. Uphold interest of the client

It shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair and
honourable means. An advocate shall do so without regard to any unpleasant consequences to
himself or any other. He shall defend a person accused of a crime regardless of his personal
opinion as to the guilt of the accused. An advocate should always remember that his loyalty is to
the law, which requires that no man should be punished without adequate evidence.
6. Not suppress material or evidence
An advocate appearing for the prosecution of a criminal trial should conduct the proceedings in a
manner that it does not lead to conviction of the innocent. An advocate shall by no means
suppress any material or evidence, which shall prove the innocence of the accused.

7. Not disclose the communications between client and himself

An advocate should not by any means, directly or indirectly, disclose the communications made
by his client to him. He also shall not disclose the advice given by him in the proceedings.
However, he is liable to disclose if it violates Section 126 of the Indian Evidence Act, 1872.

8. An advocate should not be a party to stir up or instigate litigation.

9. An advocate should not act on the instructions of any person other than his client or the
client’s authorised agent.

10. Not charge depending on success of matters

An advocate should not charge for his services depending on the success of the matter
undertaken. He also shall not charge for his services as a percentage of the amount or property
received after the success of the matter.

11. Not receive interest in actionable claim

An advocate should not trade or agree to receive any share or interest in any actionable claim.
Nothing in this rule shall apply to stock, shares and debentures of government securities, or to
any instruments, which are, for the time being, by law or custom, negotiable or to any mercantile
document of title to goods.

12. Not bid or purchase property arising of legal proceeding

An advocate should not by any means bid for, or purchase, either in his own name or in any
other name, for his own benefit or for the benefit of any other person, any property sold in any
legal proceeding in which he was in any way professionally engaged. However, it does not
prevent an advocate from bidding for or purchasing for his client any property on behalf of the
client provided the Advocate is expressly authorised in writing in this behalf.

13. Not bid or transfer property arising of legal proceeding

An advocate should not by any means bid in court auction or acquire by way of sale, gift,
exchange or any other mode of transfer (either in his own name or in any other name for his own
benefit or for the benefit of any other person), any property which is the subject matter of any
suit, appeal or other proceedings in which he is in any way professionally engaged.
14. Not adjust fees against personal liability
An advocate should not adjust fee payable to him by his client against his own personal liability
to the client, which does not arise in the course of his employment as an advocate.

15.An advocate should not misuse or takes advantage of the confidence reposed in him by his
client.

16.Keep proper accounts

An advocate should always keep accounts of the clients’ money entrusted to him. The accounts
should show the amounts received from the client or on his behalf. The account should show
along with the expenses incurred for him and the deductions made on account of fees with
respective dates and all other necessary particulars.

17. Divert money from accounts

An advocate should mention in his accounts whether any monies received by him from the client
are on account of fees or expenses during the course of any proceeding or opinion. He shall not
divert any part of the amounts received for expenses as fees without written instruction from the
client.

18. Intimate the client on amounts

Where any amount is received or given to him on behalf of his client, the advocate must without
any delay intimate the client of the fact of such receipt.

19. Adjust fees after termination of proceedings

An advocate shall after the termination of proceedings, be at liberty to adjust the fees due to him
from the account of the client. The balance in the account can be the amount paid by the client or
an amount that has come in that proceeding. Any amount left after the deduction of the fees and
expenses from the account must be returned to the client.

20. Provide copy of accounts

An advocate must provide the client with the copy of the client’s account maintained by him on
demand, provided that the necessary copying charge is paid.

21. An advocate shall not enter into arrangements whereby funds in his hands are converted into
loans.

22. Not lend money to his client

An advocate shall not lend money to his client for the purpose of any action or legal proceedings
in which he is engaged by such client. An advocate cannot be held guilty for a breach of this
rule, if in the course of a pending suit or proceeding, and without any arrangement with the client
in respect of the same, the advocate feels compelled by reason of the rule of the Court to make a
payment to the Court on account of the client for the progress of the suit or proceeding.

23. Not appear for opposite parties

An advocate who has advised a party in connection with the institution of a suit, appeal or other
matter or has drawn pleadings, or acted for a party, shall not act, appear or plead for the opposite
party in the same matter.

Rules on advocate’s duty to opponents

1. Not to negotiate directly with opposing party

An advocate shall not in any way communicate or negotiate or call for settlement upon the
subject matter of controversy with any party represented by an advocate except through the
advocate representing the parties.

2. Carry out legitimate promises made

An advocate shall do his best to carry out all legitimate promises made to the opposite party even
though not reduced to writing or enforceable under the rules of the Court.

Rules on an advocate’s duty towards fellow advocates

1. Not advertise or solicit work

An advocate shall not solicit work or advertise in any manner. He shall not promote himself by
circulars, advertisements, touts, personal communications, interviews other than through
personal relations, furnishing or inspiring newspaper comments or producing his photographs to
be published in connection with cases in which he has been engaged or concerned.

2. Sign-board and Name-plate

An advocate’s sign-board or name-plate should be of a reasonable size. The sign-board or name-
plate or stationery should not indicate that he is or has been President or Member of a Bar
Council or of any Association or that he has been associated with any person or organisation or
with any particular cause or matter or that he specialises in any particular type of work or that he
has been a Judge or an Advocate General.

3. Not promote unauthorized practice of law

An advocate shall not permit his professional services or his name to be used for promoting or
starting any unauthorised practice of law.

4. An advocate shall not accept a fee less than the fee, which can be taxed under rules when the
client is able to pay more.
5. Consent of fellow advocate to appear
An advocate should not appear in any matter where another advocate has filed a vakalt or memo
for the same party. However, the advocate can take the consent of the other advocate for
appearing.

In case, an advocate is not able to present the consent of the advocate who has filed the matter
for the same party, then he should apply to the court for appearance. He shall in such application
mention the reason as to why he could not obtain such consent. He shall appear only after
obtaining the permission of the Court.