Ethics of Legal Profession
Friday, January 21st, 2011Synopsis:
Ethics of Legal Profession
Introduction
The profession of law is honourable, and its members are expected to act in an honest and upright manner, and any deviation from these elementary principles is liable to e dealt with severely.
An advocate practising 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. It is beyond the scope of treatise on legal ethics to describe the aims and uses of examinations of witnesses or to state the rules as to how evidence shall be recorded. In examining witnesses the advocate should not forget that he is not merely the counsel of client but also an officer of the Court to further the ends of justice. Similarly, the advocate should maintain towards his opponent utmost cordiality. Clients and not counsels are litigants. The ill-feelings between clients should not be allowed to influence the conduct of their counsel. Says Daniel Webster: “lawyers on opposite sides of a case are like the two parts of shears, they cut what comes between them, but not each other”
In the same way, Law being a fraternity, the profession is entitled to loyal support of its members in the maintenance of this tradition. There are certain duties of advocates towards his profession also; like, professional courtesy, co-operation, equal consideration to all members of the profession, encourage junior brethren, should stand up for its dignity and privileges whenever there is occasion for it, he should expose corrupt or dishonest conduct in the profession. Similarly advocates should also owe certain duties towards his colleagues which is analysed in subsequent pages.
In the words of Chief Justice Marshall has observed;
“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 the Bar in the promotion of highest standards of justice, to establish honourable 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.”
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-
Organisation of its members for the performance of their function ; Maintenance of certain standards, intellectual and ethical for the dignity of the profession; Subordination of pecuniary gains to efficient services.
The codification of the canons of the professional ethics may give impression that the code is exhaustive while in reality it cannot be exhaustive. It has been rightly stated by P.Ramanatha Aiyer and N.S. Ranganatha Aiyer that it is not possible to formulate a code of legal ethics which will provide the lawyer with a specific rule to be followed in all the varied relations of his professional life.
Therefore, my project extensively deal with certain accepted canons of legal ethics which should be followed by lawyers in their ordinary discourse.
Meaning , nature and need of Professional Ethics:
Professional ethics may be defined as a 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. Thus, ethics of legal profession means the body of rules and practise which determine the professional conduct of the members of a bar. When a person becomes an advocate his relation with men in general is governed by the general rules of law but his conduct as advocate is governed by the special rules of professional ethics of the Bar. The main object of the ethics of the legal profession is to maintain the dignity of the legal profession and the friendly relation between the Bench and the Bar.
The American Bar Association Committee has well explained the need of the code of legal ethics. It is observed that the legal profession is necessarily the keystone of the arch of Government. If it is weakened by allowing it to be increasing for subject to 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, thus, depends upon the maintenance of the shrine of the justice pure and unrolled by the advocates and it cannot be so maintained, unless the conduct and motives of the members of the legal profession are what they object to be. It, therefore, becomes the plain and simple duty of the lawyers to use their influence in every legitimate way to help and make the Bar what 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 it should be defined and measured by such 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 lawyer failing to conform thereto, should not be permitted to practise or retaining membership in particular organisation.
Stating the need for the code of conduct of lawyers Justice Sundaram Aiyer has said:-
Rules are necessary even for the best self interest is a misleading factor when you have to decide on the spur of the moment what is to be done in the circumstances. The fact that these are definite rules and that much discretion is given to the individual would itself be an additional source of temptation. Never adopt the standard of business profession. But after all whatever light we may seek to get from rules of conduct which has been prescribed in England or other countries, a great deal will have to be left to individual conscience. Nothing but a determination to err always on the safe side in cases of doubts will enable you to do your duty consciously. In this country it must be confessed that very often petitioners are guilty of questionable conduct owing to ignorance. They do not really know what is proper to be done in any particular case and as there are no rules to guide there, no settled tradition to serve as an aspiration, each one is a law unto himself. He has further observed that it is not desirable that the lawyer guidance should be altogether under the judicial control. It would be impossible for judges to control the bar satisfactorily. To strict a discipline on the part of courts is likely to unfair the independence and self-reliance on the members of the Bar. It is all the more necessary, therefore, that there should be disciplinary bodies and that the profession should itself try and frame rules for its guidance.
Sir Sivaswamy has rightly observed that it is of course true that men are not necessarily made moral by courses of lectures on ethics but it must be remembered that lapses from the traditional standard are often due to ignorance and that the diffusion of knowledge of rules applicable to the professions must contribute to the maintenance of a high standard of integrity. The observation of the canons of legal profession will, no doubt, raise the profession in the publication estimation.
Even prior to the Advocates Act of 1961, the provision for punishment for misconduct is found. Section 10 of the Indian Bar Councils Act, 1926 contained provision for the punishment of misconduct. Besides this, Legal Practitioners Act, 1879also contained provisions for punishment of advocates for misconduct. Like section 13, which says:
“Suspension and dismissal of pleaders and mukhtars guilty of unprofessional conduct”
Section 14 . “Procedure when charge of unprofessional conduct is brought in subordinate court or revenue office”
Section 15. “Power to call for record in case of acquittal under section 14”
Professional Ethics
Section 49(1)(c) of The Advocates Act of 1961,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. It has been made clear that such rules shall have effect only when they are approved by the Chief Justice of India. It has also been made clear that any rules made in relation to the standard of professional conduct and etiquette to be observed by the advocates and in force before the commencement of the Advocates (Amendment) Act, 1973, shall continue in force, until altered or repealed or amended in accordance with the provision of the Act.[1]
Rules of conduct
The Bar Council of India has framed standard of conduct and etiquette of the Bar. They are called rules, and have been made is exercise of its rule making power under secs. 49(1)(c) of 1961. These are statutory rules, binding and enforceable. These rules have been printed in full in the Appendix 2 and may be seen, and read there.
The following rules, however, sum up the standard of conduct of the Bar and are in no way inconsistent with the Rules of conduct referred to above. In so far as they are covered by the Rules of the Bar Council, they are statutory; the rest are traditional, and have their sanction is hoary past.
In no circumstances may a lawyer be a party to a breach of the law. A lawyer may advise a client how to avoid a legal burden or restriction but is not bound to lend his services to an attempt to evade the policy of the law. No lawyer owes a duty to the court