This article is written by Ms Sankalpita Pal , who is currently pursuing BBA.LL.B (Hons) from Symbiosis Law School, Pune. This article will attempt a detailed overview of the standards laid down with regard to Indian Courts and professional ethics.
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Ethics and the legal profession are closely related. The practice of law is a noble profession. Therefore, conforming one’s conduct and behaviours to a certain set of professional norms is an important aspect of this profession. Legal ethics can be simply defined as a code of conduct which may be written or unwritten. Such a code of conduct is meant to regulate the behaviour of a practising legal professional towards the court, the presiding judge, his client and his adversaries in the courtrooms.
It can be agreed that ethics is a fundamental prerequisite in any profession and not just the legal profession. Thus on a general note Ethics basically denotes human behaviour and their standard of moralities. A lawyer or an advocate must obey certain professional codes with regard to the standards of fair dealing with the client and also includes the standard of confidentiality required between them and uphold the self-possession. The Government of India established The Bar council of India which is a statutory body under the Advocate Act, 1961 .
This article attempts to provide an exhaustive outlook of the standards of legal ethics to be met with, in the Indian courts and in advocate-client relationships.
The primary object of ethics in advocacy is to maintain the dignity and integrity of the legal profession. Legal ethics ensure that the legal fraternity serves the society honestly and present each case in the most formal way possible so that the litigants have faith on not only their legal representative or lawyer but also on the justice system. Not only the lawyer but also the judge needs to have a sense and understanding of legal ethics in order to maintain the functionality of Indian Courts. One of the fundamental aims of legal ethics is to seek a spirit of friendly cooperation amongst the bar, bench and the clients. Standards of ethics exist between the lawyer and his client, opponent and the witness being questioned and of course between the Judge and the lawyer.
The legal profession has been created by the state to serve the litigatory needs of the public. Thus, it is not a business it’s a profession. Consequently, there is 3 fundamental basis of legal ethics that gives an insight into the essence of the legal profession:
The All India Bar Committee had come up with a few recommendations based on the Law Commission’s recommendations relating to the legal ethics and legal profession. Thus, under the auspices of these recommendations, the Legislature implemented the Advocate Act, 1961. Subsequently, the Bar Council of India was established by the Parliament under Section 4 of the 1961 Act. This Act lays down the functions of the Bar Council of India (BCI) under Section 7 . The Bare Council of India thus lays down standards of professional Code of conduct and etiquettes to be followed by advocates under Section 7(1)(b) . Interestingly, this very function of the Bar is also laid down under Section 49(1)(c) . According to Section 49(1)(c), the Bar is empowered to make rules for the standard of professional ethics that needs to be observed by advocates.
Bar Council of India Rules is framed by the BCI under Part VI of Chapter 2. This chapter deals with the standard of professional ethics and conduct of lawyers. It is important to go through the rules briefly to understand the importance of professional ethics of a lawyer towards the Court and the Client.
The Bar Council of India prescribes certain duties that an advocate must fulfil.
However, an advocate can appear as an ‘amicus curiae’ on behalf of a Bar Council.
Just as an advocate owes duty towards the court he/she is also obligated to follow Rule 11 to Rule 33 that prescribes an advocate’s duties towards his client. They are as follows:
In S.J. Chaudhary v. State (1984), the Supreme Court held that if an advocate doesn’t attend a case day to day he would be liable for breach of professional duty. This observation was based on the fact that a lot of advocates don’t appear at the court and then his client has to bear the brunt of it.
In Kokkanda B. Poondacha v. K.D. Ganpathi (1995) the Court has upheld this rule as the parties could be disadvantaged.
On a general note, a fiduciary relationship is that of trust and confidence. Any client expects their lawyer to maintain a high degree of fidelity and good faith as their confidential information rests with the lawyer as they need to know the details of the case in order to find out the best way to pull their clients out of the legal trouble or query. In the case of V.C. Rangadurai v. D. Gopalan (1979 ), the Court observed that the relation between the advocate and his client involves the highest personal trust and confidence. Thus, their relationship cannot be completely treated as purely professional owing to the confidential nature of the information that the client gives to his lawyer. Thus, the lawyer-client relationship is purely fiduciary in nature.
Every profession has its own code of ethics. The legal profession in India is highly competitive and dynamic. As it has been thoroughly discussed above that the standard of ethics of the legal profession is codified under Indian law.
The nature of professional ethics is such that it is the essence of the legal profession. It encourages a Lawyer to act in a dignified manner that is befitting of such a noble profession. Thus, in order to maintain its dignity and integrity, professional ethics were codified. It brings upon accountability upon the legal professionals for dishonest, irresponsible and unprofessional behaviour. Furthermore, advocates can lose their license (to practice at court/firm) if they resort to unethical practices that endanger and tarnish the dignity of the legal profession.
Even in general not only the legal profession but also various other professions like the medical profession in India have codified standards of ethics. The Advocates Act, 1961 and Bar Councils Act, 1926 lay down the professional ethics that need to be followed by lawyers. On the other hand the Indian Medical Councils Act, 1956 and the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 governs the standard of professional ethics that needs to be followed by medical professionals.
The main intent behind these legislations is to prevent the exploitation of clients and patients or anyone at the receiving end of their services and of course to maintain the integrity of the profession. Just like every other provision and statute these rules and codes are not absolute in nature and can be amended or repealed as and when need be felt.
The need for codified legal ethics was well explained by the American Bar Association Committee. Law is a keystone to the arch of Government. Thus, a proper code is needed in order to prevent control of the judicial system by craft, greed or unworthy motives. Ethics is a way by which an advocate owes a duty to the Bar, a judge to the Bench of justice. It shall be noted that litigants or clients whom advocates represent don’t exactly owe the same standard of ethics as an advocate or a judge in a Court. The duty to prevent the client from resorting to unfair practices is also shouldered by the Bar and the Bench.
The committee also observed that a high standard of legal ethics must be codified in order to further the administration of justice in a pure and unsullied manner. Every lawyer must follow the prescribed legal ethics in order to retain membership in a professional organisation.
There lies a necessary distinction between professional ethics and professional conduct. The primary difference is between the obligation to be followed by a member of the profession. In professional conduct, refers to acts or steps taken under some statutory obligation or contractual powers. Such an obligation could be a legal obligation. On the other hand, in professional ethics, one is expected to follow a moral obligation.
The traditional approach to legal education is that of the application of established legal rules and principles to a certain set of facts in a case. However, with the commencement of law over time it was realised that the mere existence of laws cannot bring justice due to a number of reasons. Firstly, legal services are not as affordable as it should be for the whole economic spectrum of citizens to be able to avail them. Especially in a poverty-stricken country like India, the rights of the poor take a backseat due to lack of affordability. Secondly, legal aid services are also limited. Thirdly, laws are not completely comprehensive and coherent and judges are not consistent with their reasoning. Lastly, one of the biggest concerns is the lack of ethics portrayed not only by the police but also the lawyers.
Thus, to bridge the gap between ethics and the legal profession, the codification of the standard of ethics was a way to prevent the above-stated concern. However, the question raised is how far is it successful in protecting the dignity of the profession?
It shall be noted that the institutions providing legal education often neglect the concept of ethical lawyering. Therefore, it is argued that in order to produce good ethical lawyers who would serve the interest of the country, it can only be possible if institutions providing legal education educate the young lawyers to be ethical. The legal curriculum must give importance to socio-legal issues and contemporary problems of society that can be solved through an ethical and realistic perspective of everything. Law schools are somehow uncharacteristically silent on the subject of duties to court and client and general responsibilities towards justice.
On the other hand, it is also argued that ethics cannot be taught and it is up to every. Lawyer’s personal experience that will help them develop such ethics. The problem with this statement is that it ignores the fact that before one enters a profession, one can be misguided. Later on, the Bar is accused of lowering standards of professional ethics and discipline for failing to provide moral and legal leadership when an advocate or a judge misbehaves or uses unfair means to get by their respective cases.
The traditional way of teaching professional ethics in Indian law schools is not doing enough. Young lawyers need more insight into the fact as to why legal ethics is more important than subject knowledge. Legal knowledge can be gained (much more than the knowledge gained in law schools) through practice and experience. However, a sense of ethics should be developed earlier than that so that an intellectual legitimacy is created.
Traditional legal education must take up a humanistic approach and shall try to impart values into young budding lawyers as their contribution to the future is going to become of great consequence. There must exist a more holistic and humanising outlook towards the teaching and studying of law. Even after legal ethics are codified in India, lawyers still practice unfair means to seek favourable outcomes for their cases. The Code cannot bring about a sense of ethics unless it is imparted to the law students at the very earliest. There are a few positive examples, where some progressive law teachers have recognised the need for law students to gain a deeper understanding of ethics and its needs in the legal forefront.
The present stance is that with changing times the existing methods used to impart legal knowledge need to change. As stated above there is a gap between legal ethics and the legal profession. Thus, the ‘vectors’ need to converge. The law schools need to understand that along with the different disciplines in law, such as collaborative law, preventive law, problem-solving, holistic justice, restorative justice etc. are all meaningless if the knowledge is not implemented with morals, values, and ethics.
A sea change in the traditional methods of legal education can bring about an integration of personal and professional values along with the assimilation of analytical thinking/application of legal principles and emotional intelligence. A mere codification of legal ethics will not make the young lawyers realise the nobility of the legal profession or the dignity of the Bar.
There are 4 important advantages of having a code for professional ethics to be followed in Indian Courts:
Firstly , a Code of Professional ethics provides a sense of social control. Every now and then each profession and industry (here the legal profession) a newcomer enters it. Thus, codified professional ethics makes the newcomer aware of the standards that need to be met with, in the profession. A Codified form of ethics also keeps the old members of a professional fraternity in line according to the standard of social requirement and expectations.
Secondly , without a code of professional ethics the government or by society may try to control the standards through its agencies. Thus to prevent such control and interference, a code is required. Therefore, it is believed and practised that in order to standardise a certain set of rules, protocols and ethics, it should be done by the profession itself so that governmental interference is kept away.
Thirdly , higher standards of conduct can only be developed by codifying it. The codes bring about a sense of permanence and crystallize the standard of best ethics about the profession.
Fourthly , the existence of code will have great educative, corrective and appreciable value for both the lawyers and the laymen.
It is abundantly clear that legal ethics and the legal profession are closely related. It is evident from the existence of codified professional ethics for the legal profession that ethics holds an important position in the legal profession. The Bar Council ensures that advocates conform to the rules laid down with regard to legal ethics and dress code (professional attire of lawyers).
The nature of the legal ethics reveals that it is an absolute mandate however the language of the Code (under Advocate Act, 1961) makes it evident that advocates owe a duty towards the Bar, bench, their clients along with opposing counsels at the court. The whole point of having codified legal ethics is to mandate advocates to maintain the dignity of the court. Also, it prevents the exploitation of clients. The need for legal ethics was also briefly explained along with rules that need to be followed by advocates. The basic difference between professional ethics and professional conduct is that the former is a moral obligation while the latter is a legal or statutory obligation.
Another important aspect captured was whether codified professional ethics is making any difference or not? The implications of the code were explained and why it still remains relatively ineffective due to the lack of understanding of ethics before one starts practising in the profession. Mere codification of professional ethics will not fulfil the legislative intent behind the Advocates Act, 1961 and the Bar Council Rules until the traditional method of legal education is slightly changed. The Code cannot bring about a sense of ethics unless it is imparted to the law students at the very earliest.
In the changing world of legal practice, a high standard of ethics and professional conduct is the only tool that can ensure a stimulant justice system and it would also restore the faith of clients on it. Considering the lawyer-client relationship is a fiduciary one, a breach of confidentiality can be punished.
