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CHAPTER I INTRODUCTION
With the development of the law, the legal profession has evolved to include and encumber many more fields than they were originally viewed as. This noble profession of lawyers, viz., the system of engaging trained persons by litigants for arguing the case on his behalf before a Court of law is an institution of ancient origin. In earlier days, the duty of the legal profession was twofold first, to bend the power to justice in the service of the society and second, to help all social, political and economic transactions within the legal framework.1 If we were to trace the genesis of advocacy, it can be seen that originally it was a free service for others.2 Like in most other ancient civilizations, in India too, persons who were well versed in law plead for others as their private agents without any fees. So much so that it was considered dishonourable to charge fees for giving out advice and defending cases.3

Legal profession unlike other professions was considered to be honourable and prestigious. The advocates were the pioneers of service to the people in protection of their personal liberty and right to property. It was considered to be an honourable profession because it was not a business but only a service. The greatness, dignity and honour of the legal profession lies in the code of its ethics governing the relations of the lawyers between themselves and with others in their professional matters and dealings.

Today the legal profession has progressed as a branch of education attracting the best minds in the country. Socio economic development has lead to an awareness of rights and an increase in social and commercial litigation. In this environment, the failure to observe the rules of advocacy will degenerate the legal profession into a trade or a means for accumulation of wealth. It was never meant to be a vocation for private gain.4 1.1) Research Methodology

The doctrinal method of research was used to complete the research project. Books, articles authored by eminent person available in the National Law University Library were used to extensively.

1 2

A. Jayagovind, The GATS and the Indian Legal Profession, 31 (3 & 4) (2004) Indian Bar Review 34. M.S. Rahi, Challenges Before the Bar & Bench in the 21st Century, AIR 2000 Journal 122. 3 Sunil Deshta, Legal Profession in India: Retrospect and Prospect, 28 (1) 2001 Indian Bar Review 115. 4 Indira Jaisingh, Do I Really Want to Continue in the Legal Profession?, 18 (12) 2003 Lawyers Collective 3.

1.2)

Research Scheme

The research project has been divided into four chapters. Chapter- I introduces the research project. Chapter- II discusses in depth the expected professional conduct and standards which a lawyer is expected to strictly abide by. It furthers analyses the freedoms and limitations a lawyer inherits once he/she begins the practice of law. Chapter- III examines the penalties imposed on lawyers if they engage in prohibited activities. Chapter- IV concludes the reseatch project and comprises of views opined by the researchers. 1.3) Research Question

Whether the rules governing varied aspects of a lawyers professional behavior are adequate? 1.4) Research Hypothesis

The hypothesis to the above stated research question is yes.

CHAPTER- II ADVOCAY, PROFESSIONAL ETHICS AND PROFESSIONAL CONDUCT OF AN ADVOCATE

A lawyer is a professional. He is also a part of justice system and has the responsibility to represent the client before the court and other parties. However, he does not owe his obligations to merely his client who appoints him and pays fee for his services. Due to historical development of the profession, he owes duties to a larger group of people. 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. 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.

The obligations of a lawyer towards various parties have been detailed in the Bar Council of India Rules, 1975 (Rules) as well. Chapter II of the Rules deals with the obligations of the lawyers and divides them in four parts1. Duty to Clients, 2. Duty to Courts, 3. Duty to Colleagues, and 4. Duty to Opponents.

A lawyer has first and foremost obligations towards his client. As was held by the Supreme Court in V. C. Rangadurai v. D. Gopalan5 a lawyer has to first of all look at the interests of his client. He must not act in a manner which can endanger the interests of the client. This is because he is a fiduciary of his client as the client reposes his trust and confidence in the lawyer. Therefore, he has a duty to fulfill all his obligations towards his client with care and act in good faith. Since the client entrusts the whole obligation of handling legal
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MANU/SC/0029/1978.

proceedings to the advocate, he has to act according to the principles of uberrima fides, i.e., the utmost good faith, integrity, fairness and loyalty. He must not enter into any transaction in a manner that is prejudicial to his client and if there is a conflict between his and his clients interest, he should not take advantage of it.6 In order to avoid a conflict of interest between the lawyer and his client, the Rules provide that the lawyer should not take a brief in which he may need to appear in the court as a witness. He must also make full and frank disclosure of all possible conflicts of interests to the client throughout the process of justice. The lawyer also has an obligation to not charge a fee contingent on the outcome of the suit and must never aid in conviction of an innocent.

2.1) Advocacy: Advocacy touches and asserts the primary value of freedom of expression. It is a practical manifestation of the principle of freedom of speech. Freedom of expression in arguments encourages the development of judicial dignity, forensic skills of advocacy and enables protection of fraternity, equality and justice. It plays its part in helping to secure the protection or other fundamental human rights, freedom of expression, therefore, is one of the basic conditions for the progress of advocacy and for the development of every man including legal fraternity practising the profession of law.

Freedom of expression, therefore, is vital to the maintenance of free society. It is essential to the rule of law and liberty of the citizens. The advocate or the party appearing in person, therefore, is given liberty of expression. But they equally owe countervailing duty to maintain dignity, decorum and order in the court proceedings or judicial processes. Any adverse opinion about the judiciary should only be expressed in a detached manner and respectful language. The liberty of free expression is not to be confounded or confused with licence to make unfounded allegations against any institution, much less the judiciary. 7

2.2) A lawyer also owes a duty to the court

The obligation of a lawyer towards the court and the legal profession has been often noted by the courts. In Onkar Singh v. Angrez Singh8 it was noted that while a lawyer has an obligation towards his client, it is limited by his obligation towards the court. He has a moral obligation
6 7

Amrit Lal C. Shah v. Ram Kumar, AIR 1962 Pun 325. D.C. Saxena v. The Honble Chief Justice of India, (1996) 5 SCC 216. 8 MANU/PH/0039/1993.

to aid the court in dispensing justice. The obligation of the lawyer towards the court arises from the fact that he is an officer of the court and thus has an obligation to the court to be and to remain a dependable part of the machinery through which justice is administered.9

The cardinal principle, which determines the privileges and responsibilities of advocate in relation to the court, is that he is an officer to justice and friend of the court. This is the primary position. A conduct therefore which is unworthy of him as an officer of justice cannot be justified by stating that he did it as the agent of his client. His status as an officer of justice does not mean he is subordinate to the judge. It only means that he is an integral part of the machinery for the administration of justice.10 It is difficult to lay down any hard and fast rule as to what expressions a lawyer can use, with impunity, while addressing a court and what should ordinarily be tolerated by the court. Where an advocate receive an application or petition for correction or for removing objections, it is the duty of the advocate to return it and he has no authority to retain it. It is misconduct on his part if he retains it.11

According to the Rules, the lawyer owes a duty to the courts to act with dignity and selfrespect, to maintain a respectful behaviour towards the court and to refrain from indulging in any unfair practice. He must not try to influence the court by using unlawful means and must also make sure that the client does not do the same. He must also not act as an advocate in any matter in which he is personally interested. This is to make sure that he does not face conflict of interest. The Rules also lay down the obligation towards the opponent which state that the advocate shall not enter into a compromise with the opponent unless the opponent is represented by an advocate. The advocate must also carry out all his promises to the opponent whether made in writing or otherwise. He must also not advertise or accept brief in matters in which brief has already been accepted by another advocate.

Due to these obligations towards multiple parties, the conduct of an advocate is always governed by professional ethics which aim to maintain the dignity of the legal profession and the friendly relationship between the advocates and the judges.12 The lawyers have the obligation to maintain confidence in justice system and to further the cause of justice in every
9

C. Rama. Rao et. al, PROFESSIONAL ETHICS AND ADVOCACY, 2nd ed. 1991, p. 39. D.V. Subbarao, THE ADVOCATES ACT, 1961, 7th ed. 2005, p. 56. 11 Punjab National Bank v. FM Gold Head Ltd., AIR 1993 HP 79. 12 Kailash Rai, LEGAL ETHICS, ACCOUNTACY FOR LAWYERS & BENCH-BAR RELATIONS, 6th ed. 2005, p. 49.
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manner possible. He is also an officer of the court and has the obligation of assisting the court in dispensing justice.13 Therefore, as discussed above he cannot work with the mere intention of benefiting his clients. A lawyer generally does not have an obligation to assist the court against the interests of his client. However, he cannot defeat the court procedure in order to benefit his client. Therefore, a lawyer cannot delay the process of the court or act in a manner as to hurt the opposite party or obstruct the administration of justice even if his client is going to benefit from it. He must not misguide the court by suppressing relevant facts. He must also maintain the dignity of the court.14

It is true that a lawyer should always conduct himself properly in court of law, and exert his best at all times to maintain dignity of the court, but court has also a reciprocal duty to perform and should not only be discourteous to the lawyer but should also try to maintain his respect in the eyes of his clients and the general public with whom he has to deal in professional capacity. By accepting the brief of his client, the advocate does not cease to be an officer of justice. In Lalit Mohan Das v. Advocate General, Orissa & Another 15, the Supreme Court observed that a member of the Bar undoubtedly owes a duty to his client and must place before the Court all that can fairly and reasonably be submitted on behalf of his client. He may even submit that a particular order is not correct and may ask for a review of that order. At the same time, a member of the Bar is an officer of the Court and owes a duty to the Court in which he is appearing. He must uphold the dignity and decorum of the Court and must not do anything to bring the Court itself into disrepute.

If that were so, the high and honourable office of counsel would be degraded to that of mercenary. It is the function of advocate not merely to speak for the client, whom he represents but also to act officer of justice and friend of the court. As friend or amicus curiae he has a privilege to offer suggestions to the court, with its consent, as aids to justice in a controversy that he does not appear for either side. This concept has been used a lot in environmental protection cases like the Rural Entitlement Litigation Kendra v. State of Uttar Pradesh,16 and in the whole M.C. Mehta v. Union of India series of cases and Vellore Citizens Society case

13 14

Ibid, p. 56-58 Supra, n. 23, pp. 56-58. 15 AIR 1957 SC 250. 16 1985 AIR 652

2.3) A lawyer owes a duty to his client(s)

The lawyer has to protect the interests of his client but it is ethically wrong on his part to encourage the client to do anything illegal like giving false evidence or suppressing evidence. In fact, he should oppose the idea and refuse to represent the client if the client insists on doing anything like that.17 Further, professional ethics state that a lawyer is bound to take up cases even if he has not received the payment from the client. This is because legal profession is supposed to be a noble profession.18

Therefore an advocate is bound by his professional ethics and cannot act in violation of them. His obligations to various parties, as mentioned in the Bar Council of India Rules, 1975 are a part of his ethical obligations and he must fulfill them.

The first duty is the duty of care towards his client. This requires him to make every effort to protect and preserve his clients interests, even to the detriment of his own personal interests or feelings. Thus, an advocate must take every possible step to defend his client in a criminal case regardless of his personal opinion as to his guilt or innocence and of the opinion of anyone else regarding the case. An advocate should ensure that the interests of the client are not in any manner hurt by his acts or omissions and must not abuse or take advantage of the confidence reposed in him by the client.19 When counsel does not inform the client of the subsequent proceeding in the case, or fails to act when an opportunity to improve the situation of his client arises, or fails to note the next date of the proceedings and hence misses the proceedings, he commits a breach of this duty and is therefore liable for professional negligence.20

Second, an advocate owes a duty to charge reasonable fees to his client. An advocate must charge a fee consistent with his standing at the bar and the nature of the case. An advocate must not stipulate a fee contingent on the results of litigation, or agree to share the proceeds of litigation. This is because giving the lawyer an interest in the subject matter of the suit is against professional ethics and violates public policy. If he withdraws from a case, the
17 18

C. Rama. Rao et. al, PROFESSIONAL ETHICS AND ADVOCACY, 2nd Edition, 1991, p. 33. Supra, n. 14, p. 34. 19 S. Gillers & N. Dorsen, REGULATION OF LAWYERS: PROBLEMS OF LAW AND ETHICS, 2nd ed. 1989, p. 411. 20 P.C. Pant, SANJIVA ROWS THE ADVOCATES ACT 1961, 6th ed. 1997, p. 167.

advocate must refund any part of the fee that was not earned. However, once an advocate has accepted a case, he must under no circumstances withdraw from the same without sufficient cause and without giving reasonable and sufficient notice to the client.21

Third, a lawyer owes a duty to make full and frank disclosures to his client about all matters pertaining to the clients case, and must, at the commencement of his engagement and during its continuation, give complete and forthright information to his client relating to his connection with the parties, and of any interest he may have in and, or about the controversy, as is likely to affect his clients judgment in engaging him on continuing the engagement. 22 He is duty-bound not to withhold relevant information in the hopes of personal gain.

Fourth, a lawyer owes a duty to act only on the instructions of his client or his authorised agent and no other person. An advocate acting on the instructions of another, and not the instructions of the client, commits professional misconduct.23 Thus, the lawyers loyalty to his client is all-important.

Fifth, an advocate owes, as already mentioned, a duty to maintain confidentiality. The relation between a lawyer and a client involves the highest degree of personal trust and confidence. Any information given to a lawyer in the course of seeking representation or after engaging his services comes under the protection of confidentiality requirements.24 The requirement that a lawyer must keep confidential and private any and all information that is disclosed to him in his capacity as an advocate extends not only to clients whose cases he agrees to take on, but also to those persons whose cases he declines to accept for whatever reason. This duty is perhaps the only one that operates even when the client has not yet engaged the services of the advocate. The other duties usually become operational upon the engagement of the advocate by the client.

The last and one of the most important duty that a lawyer has towards his client is the duty to ensure that no conflicts of interest exist or arise. In most cases of a conflict of interest, the advocate must inform the client that he is unable to take up his brief, and recommend that he approach another advocate. the only exception to the ethical ineligibility of a lawyer to
21 22

Supra, n. 20, pp. 165-166. Supra, n. 19. 23 Supra, n. 20, p. 118. 24 Supra, n. 19.

represent clients due to conflicts of interest is created when the client(s) himself/themselves grant their express consent to their continued representation by the concerned advocate. However, the client must necessarily be informed of all aspects of the conflict that can be disclosed without breaching confidentiality requirements.25

25

Canadian Bar Association Task Force on Conflicts of Interests, Conflicts of Interest Toolkit (available at www.cba.org/CBA/groups/doc/conflicts_toolkit.doc) (May 2012) at 44.

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CHAPTER III PENALTIES/RESTRICTIONS IMPOSED ON LAWYERS

A lawyer is liable to be punished if his professional conduct is deplorable: Under Section 35 of the Advocates Act, the State Bar Council is empowered to initiate proceedings against an advocate for misconduct, either on a complaint or on its own. The Bar Council of India under Section 36 can likewise initiate such proceeding and also has the power to withdraw such proceedings pending before any State Bar Council and inquire into such cases on its own. If misconduct is proved in such case before the Bar Council such action may be taken, such as suspension of practice for a period, or in grave cases striking the name of such advocates of the roll. In such cases the advocate can prefer an appeal to the Bar Council of India, and further to the Supreme Court. It is noteworthy that the Act does not provide for withdrawal of complaint. A complaint once filed cannot be withdrawn and the process of inquiry once set in motion cannot be stopped.

Lawyers are prohibited from advertising or publically promoting themselves: Rule 36 of the Bar Council Rules provides that an advocate shall not solicit work or advertise, either directly or indirectly, whether by circulars, advertisements, touts, personal communications, interviews not warranted by 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. His 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 worker or that he has been a Judge or an Advocate General.

The prohibition has its origins in English law which has been permitting advertisement by lawyers subject to regulation from the 1980s. The rationale behind the ban is explained in a Madras High Court judgment of 1967.26 The court held that advertising in any form by a member of the profession of law is and has been considered has been for ages considered as a reprehensible conduct. This is as ought to be because of the standard which the gentlemen of the profession have jealously developed and set up for themselves as befitting the honour, dignity and high position of the noble profession.
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CD Sekkizhar v. Secretary Bar Council, AIR 1967 Mad 35.

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The other rationale was that in a country like India with its large illiterate population there is a possibility of unscrupulous lawyers exploiting the public. Law is traditionally seen as a profession whose goal is public service. In The Bar Council Of Maharashtra v. M. V. Dabholkar and Others27 the court held that Rule 36, fairly construed, sets out wholesome rules of professional conduct although the cannons of ethics existed even prior to Rule 36. Also Rule 36 is not the only mention of professional ethics. Professional ethics were born with the organized Bar even as moral norms arose with civilized society.

Contingent Fees: The Advocates Act of India, 1961, governs the advocates in India. Their professional conduct must also be in compliance with the rules prescribed by the Bar Council of India. Every advocates has a right to charge a professional fee for the services rendered by him. This right is not absolute and is subject to reasonable restrictions. One such restriction has been placed by Rule 20 of Part VI, Chapter II, Section II (Rules Governing Advocates) BCI Rules, which read thus: An Advocate shall not stipulate for a fee contingent on the results of the litigations or agree to share the proceeds thereof. Further, the fee permissible to be charged is also determined by the Rules of Practice prescribed by the Supreme Court and the High Courts as the case maybe. Hence the lawyer is not free to enter into contingent fee agreement with his client, because such an agreement adversely affects his ability to act objectively and in a detached manner as an officer of the court and hence obstructs the administration of justice. Consequently, it is invalid under S.23 of the Indian Contract Act.28 The law regarding the practice of charging a fee contingent on the outcome of the case is amply clear, it is strictly illegal in so far as the practice of the legal profession in India is concerned. One of the prominent reasons for this position is that the manner in which the legal profession is organised in India, the advocate is deemed to be an officer of the court entrusted with the sacred task of assisting the court in arriving at a just decision. In such a situation if he is interested in the outcome of the case to the extent that his own professional fees is dependant on it then it would lead to the advocate becoming unduly interested in the outcome of the case. This might lead to a situation wherein he would be interested in getting
27 28

(1976) 2 SCC 291. Under S. 23 of the Indian Contract Act, any agreement that affects the administration of justice would be treated as invalid.

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the best settlement for his client without really considering about whether justice was being done in the process or not.

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CHAPTER IV CONCLUSION
Lawyers play different roles depending on their place in the legal profession and the nature of their law practice or activity. And the role of lawyer, of course, will vary from one legal system to another. But some generalities can be drawn. Lawyers bring the law to non lawyers by advising clients and by drafting documents that make clients transactions work to serve the clients interests within legal constraints. Lawyers make the system of justice work. Lawyers play an important role in law making as well. In democratic societies, lawyers surely fill an important role that no other professional fills: the lawyer is the guardian of the rule of law, the ideal that all people stand equally before the law and neither expect nor receive special treatment from it. In emerging democracies, this role is especially important for lawyers, who have the potential to become the great levelers between the powerful and the less so.

It is important in this scenario that the sacred profession of law is not subjected to any personal agendas of the lawyer. A client reposes his trust in the lawyer and the court believes that the lawyer will make true representations and act for the benefit of his client. In order to ensure some discipline and to protect the interests of clients as well as the court, there is a need for rules to be laid down and strictly adhered to. The Bar Council of India lays down basic professional standards and etiquettes that must be maintained by any lawyer. Compliance with these rules will help increase the faith of people in the system and also protest various conflicting interests that the legal system seeks to balance. The current rules governing the conduct of lawyers is comprehensive and covers various aspects of the legal profession.