Ethics of Legal Representation

 “A man without ethics is a wild beast loosed upon this world”- Albert Camus[1].This article sheds light on topic of importance and the role of ethics in legal representation. There are certain criteria which a field of study needs to fulfill in order to achieve the status of a profession and ‘ethics is one of the quintessential of that criteria’. So, ethics play a very crucial role in the legal profession and are as important as any act or legislation. Advocates Act, 1961, Bar Council of India Rules are legislations that cover the area of ethics in this noble profession.

In this article I tried to throw light on questions like:-

  1. What actually are ethics and its role in legal representation?
  2.  A brief discussion related to role of legislation in legal ethics is discussed followed by naming certain crucial ethical guidelines which are must for an advocate.
  3. What are advocates ethical duties towards courts and competent authorities?
  4. What are advocates duty towards their clients and ethical representation?

All these questions are briefly answered and are illustrated with the help of the case of Chandra Shekhar Soni v. Bar Council of Rajasthan and Ors[2] and emphasize on how important are legal ethics to this profession is made by the author.

Introduction

Legal Profession is believed to be one of the prestigious and respectful professions since time immemorial. This profession makes an individual aware of their rights, and when it comes to development of self-confidence, no other profession is as pleasing as this profession. But when it comes to ethics and honesty, according to surveys and reports, legal profession is still lacking and it is fundamentally believed that dishonesty is the flagship feature of this profession. During the process of legal representation the client sees the lawyer as his means to justice, so if he loses a case whether civil or criminal, lawyers and systems are easy targets to blame.

Lawyers usually have duplicity of duties i.e.  Owing a duty to the client as well as owing a duty towards courts. It is easily evident that usually these duties are in conflict. Sometimes the client does not understand the duties and obligations which a lawyer owes to the court and is completely focused on getting justice or rid of the proceeding, whereas sometimes the lawyers, who carry the interests of clients too far, engage in the practices that are unethical or unwelcomed by the court. For example deliberately delaying proceedings or using writs without any proper legal or factual foundation. All these activities are against the process of justice delivering system.

So, in order to study this matter of concern and to know the reason and validity of this argument one must be well versed with the concept of “ethics” or “ethics of legal representation” to be precise.

Ethics and Legal Representation

The word ethics is derived from the Greek word ‘ethos’ (character) and from the Latin word ‘mores’ (customs). Together they combine to define that how individuals choose to interact with one another. In philosophy, ethics is defined as behavior of an individual which is good for them and for society and the nature of duty that an individual owes to themselves and one another.

Ethics and legal profession is like two sides of a coin, they are inseparable from of one another. Legal profession is a Nobel profession. Adherence and acceptance of legal ethics by the individuals related to this profession is of utmost importance and that is what makes this profession a noble profession. Legal ethics is defined as code of conduct or responsibilities written or unwritten a lawyer is expected to follow towards himself, his client and towards the court.

Nature of Professional Ethics

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”[3].

There are certain codes of practice that a professional belonging to a particular profession must follow. For advocates in India it is Advocates and Bar Council Act. The Bar Council of India (BCI) is a statutory body that regulates and represents the Indian Bar. It was created by Parliament under the Advocates Act, 1961. It prescribes standards of professional conduct and etiquette and exercises disciplinary jurisdiction. Section 49(1)(c) of the Advocates Act, 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.

The rules mentioned in chapter II of Part VI of the rules of Bar Council of India maybe discussed as follow:-

Rules on Advocate’s duty towards Court

  1. Act in a dignified manner– while presenting the case or otherwise an advocate is obliged to conduct himself with dignity and respect in front of competent authorities. In re D.C. Saxena[4], – according to this case an advocate can file a complaint against judicial officer but by approaching to proper authorities.
  2. No Communication in private– An advocate shall not influence the decision of the court by any illegal or improper means. It prohibits the private communication between a judge and advocate regarding a pending case. If an advocate does so it amounts to professional misconduct – Rizwan-Ul-Hassan v. State of U.P.[5]
  3. Appear in proper dress code- it is very important for an advocate to always look presentable and adhere to the dress code. He should be present in prescribed dress code and appearance shall always be presentable.
  4. Not to represent establishments of which he is a member– the rule provides that an advocate shall not represent or appear before any court or tribunal for or against the organization, committee, institution, society etc… which he is a member of executive committee of that organization, institution, etc.

However, it has been made clear that this rule shall not apply to such a member appearing         as ‘amicus curiae’ or without a fee on behalf of a Bar Council, Incorporated Law Society or a Bar Association.

Rules on Advocates Duty towards Client

 Rule 11 to 33 deals with the duties of an advocate to his client. These rules may be explained as follows:-

  1. Bound to accept briefs– rule 11 provides that it is necessary for an advocate to accept a brief in the court or tribunal or before any competent authority. S.J. Chaudhary v. State[6]– according to this case supreme court clearly stated that if an advocate accepts the brief of a particular case he is bound to attend the case on day to day basis and if he does not do so, he will be liable  for breach of professional duty.
  1. Not to withdraw from service- according to rule 12 an advocate cannot ordinarily withdraw his services towards his client once accepted without sufficient cause or reasonable and sufficient notice given to the client.
  1. Not to appear in matters where he himself is a witness: according to this rule an advocate shall not accept the brief of the case in which he believes he will be witness. In Kokkanda B. Poondacha v. K.D. Ganpathi[7].
  1. Not to suppress material or evidence- this rule provides that a public prosecutor shall conduct prosecution in such a manner that it does not lead to the conviction of an innocent and any evidence  in favor of the accused should not be avoided or buried.
  • Not to disclose the communications between client and himself: according to this rule an advocate must preserve the client lawyer relationship and all the communication between the two must be exclusive between them. Without this rule a client will not be openly able to discuss the facts of a case and therefore an advocate would not be able to represent his client to his best capabilities.

There are many other rules and regulations which are discussed under the advocates act and breach of the same are against the ethics and morals of Legal profession.

Case Study

In Chandra Shekhar Soni v. Bar Council of Rajasthan and Ors.an advocate who was representing one party  in a criminal case, switched sides and accepted the brief of the other party and began representing the other party. It was held by the Supreme Court that it is against the ethics of the legal profession and not in accordance with the professional etiquette of this profession to represent opposing party while retained by one party. As soon as an advocate accepts the brief of his client he is bound to perform his duties keeping in mind the professional ethics and these ethics are expected both by the court as well as the client. Client- Lawyer relationship is a relationship based on trust and a lawyer breaking that trust or performs his duty unethically shall be punished. So, in this case advocate was found guilty by Supreme Court and was suspended to practice for period of one year.

Conclusion

Law is a profession and lawyers are expected to abide by the code of conduct and should firmly believe on the importance of ethics. If the intermediaries between individuals and justice delivering statutory bodies i.e. lawyers are not a fan of ethics than it would be difficult for individuals to trust this system. Usually in contemporary times the unethical behavior of an advocate goes unnoticed in the eyes of clients and he may blindly believe his legal representative. In other cases, without clear Rules or guidelines, misconduct, unless gross and obvious will go unnoticed and unpunished. Professional code of ethics is one of the most important characteristics of a profession.

Professional ethics are often articulated in Codes of Conduct or Rules of Professional Practice which demonstrates the high standards on which professionalism reputations are founded. Professional codes or laws are partially intended to help educate the public on two terms. Such criteria mean that every particular set of professional services is not only offered by adequately trained or technically competent persons but also persons whose professional standards are worthy of the high degree of public confidence usually expected by professionals.

Finally, there is growing concern about service and expertise being subordinated to income, personal interests and aspirations. The noble essence of the profession must be considered otherwise there is no point in thinking about ethics. What matters here are the material, and not the shapes. Comprehensive codes of ethics do not guarantee ethical practice; rather, it lies in the fundamental essence of being called to the bar. In the case of In re John Cameron Foster (1950)[8] fifty years ago noted: It should be remembered that all barristers are members of a profession, as distinct from engaging in a trade. A trade or business is an occupation or calling in which achievement of pecuniary benefit is the primary focus. Of course, every man needs integrity and ethical conduct, whether he is engaged in private practice or in some other lucrative occupation. But pecuniary success is not the primary goal in a career. Service is the goal, and remuneration earnings must always be subordinate to the main reason.

Frequently Asked Questions

  1. What actually are ethics and their role in legal representation?
  2. What are crucial ethical guidelines which are must for an advocate?
  3. What are advocates ethical duties towards courts and competent authorities?
  4. What are advocates duty towards their clients and ethical representation?
  5. What all includes the ethical representation of the client?

 References

  1. http://www.legalserviceindia.com/
  2. https://indconlawphil.wordpress.com/
  3. www.manupatrafast.com
  4. www.scconline.com

[1] Freeman (421)

[2] AIR 1983 SC 1012

[3] https://shodhganga.inflibnet.ac.in/jspui/bitstream/10603/257064/8/14.%20chapter%206.pdf

[4] AIR 1966 SC 2481

[5][5] AIR 1953 SC 250

[6] AIR 1884 SC 1755

[7] AIR 2011 SC 1353

[8] Journal of south pacific law

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