PROFESSIONAL ETHICS AND ETIQUETTE

Sasi K.G.

01. Introduction

Professional Ethics of an advocate is legal ethics. Legal Ethics is that branch of moral science which deals with the duties which a member of the legal profession owes to the public, the Court, to his professional brethren and to his clients. Ethics is a study of the meaning and application of judgments of Good, bad, right, wrong, etc. and every evaluation of law involves an ethical Judgment. Etiquette is a word of French origin which means a code of behavior that delineates expectations for social behavior according to contemporary conventional norms within a society, social class, or group. Thus professional ethics and etiquette of advocates cover the moral, legal and behavioral standards of an advocate expected by the Court, Governments, Client and the society as a whole. Among the above the Seven lamps of advocacy, Panchsheel of the Bar, Ten Commandments of Advocates etc form part of Moral Standards, Bar Council of India Rules, 1975 Part V, Chapter II Standards of Professional Conduct and Etiquette form Legal and Court Room Etiquettes form Behavioral Standards.

02. Seven Lamps of Advocacy

Justice ‘Abbot Parry’ qualifies the following qualities as “Seven Lamps of Advocacy.”

1. Honesty: An advocate’s thoughts words and deeds should have sincere co-relation to each other with genuineness. An Advocate should be dependable and reliable to everyone who seeks his advice and services. The uprightness, integrity and honesty of the Advocate will increase his reputations and respect in the society.

2. Courage: An Advocate should fearlessly uphold the interest of his client by all fair means without fear of any unpleasant consequences to himself or any other person. It is the knowledge and the skill of the Advocate that gives him the necessary courage and confidence to present the case fearlessly and to uphold the interest of the client.

3. Industry: Hard works is inevitable for an Advocate. His knowledge of law should be up to date and conversant with current law in force. If one ignores the law, the law will also ignore him.

4. Wit: Constant clash between Judges and Advocates is common. Anxiety for a favourable verdict on the part of the lawyers; and perpetual worry for the pursuit of the truth on the part of the judges generate strain and tension. Occasional wit and humour, or provoking a smile or laughter will help them to ease the tension.

5. Eloquence: Eloquence means the fluency, force and style of using the language. Strong vocabulary is one of the powerful weapon which an Advocate should possess. Words must be employed with eloquence. The art of persuasive and impressive speaking will give the desired result in his favour.

6. Judgement : Judgment means the ability to come to a sensible conclusion and make wise decisions at the relevant time in the proper way. This quality is necessary from the beginning of filing the case till its final disposal. An Advocate must always anticipate all the possible moves of the other side and must develop the necessary presence of mind, alertness and tact to cope with any awkward situation of difficulty that may arise in the case.

7. Fellowship: In legal profession, one Advocate fights with another Advocate for justice before the learned judge. There may be controversies and contradictions in their contention relating to the case, but that shall never affect the fellowship. The Advocates should refer the opposite party’s Advocate as “Learned Friend” and the judge should be referred as   “Learned Judge”. In order to maintain the fellowship, the Bar Council of India has laid down certain rules to be observed as the duty to colleagues.

03. Panchsheel of the Bar

Panchsheel refers to the following five qualities.

1. Honesty:  An Advocate should be dependable and reliable to everyone who seeks his advice and services.

2. Industry: An advocate should be hard working.

3. Justice: An Advocate is as an Officer of the High Court. He should help the Judge in finding out the truth in the dispute, and help him to arrive the right decision. He shall never resort to unfair the practices. His efforts should be always to advance the cause of the justice.

4. Service: Legal profession is concerned with the promotion of administration of justice and the establishment of the welfare society. Therefore, Lawyers shall be willing to protect the right of the oppressed and the downtrodden. They shall render their service to the general public without any discrimination.

5. Philosophy: Lawyers should have the required mental fitness to adjust and accommodate  with success and failiure alike. It is therefore necessary that lawyers should be guided by some philosophical principles suitable to the profession.

04. Ten Commandments of Advocates

The various duties of an Advocate like duties to the client, duties to the court, duties to the colleagues and duties to the public shall be put into the following ten rules popularly known as the ten Commandments of Advocates.

1. Protection of the interest of the client: An Advocate must be loyal to the interests of the client and fight for his cause without the fear of any unpleasant consequence to him or any other person (see duty to the client).

2. Proper Estimation of the value of the Legal Advice: An Advocate shall not over estimate or under estimate the value of his advice. He must always give proper legal advice to the client.

3. Honesty and Respect: He must be always honest and respectful to the court.

4. Preparation of the case: He must prepare the case thoroughly before presenting it to the court.

5. Service: He must be willing to protect the rights of the oppressed and the poor.

6. Loyalty to Law and Justice: He must always give advice to enhance loyalty to law and justice.

7. Fellowship: He must be always friendly with the fellow-members of the Bar and more friendly with the young lawyers and encourage them.

8. Fairness: He must be fair in his dealings with the client, with the court and with the public

9. Systematic Study: He must develop the habit of systematic study of the law and acquainted with the latest developments in Law.

10. Prudence and Diligence: He must always vigilant and active. He must avoid the easy come and easy-go method.

05. Legal Duties

Bar Council of India Rules, 1975 Part V, Chapter II Standards of Professional Conduct and Etiquette imposes many duties on the Advocates, a few among which are reproduced below.

06. Duty to the Court (Rule 1-10)

In the administration of the justice, the role of the advocate is to help the court to take a right decision in the dispute.

1. An Advocate shall show the due respect to the court and shall never act in any manner to undermine the confidence in the judiciary.

2. He shall not exert or attempt to exert any personal influence on the decision of the court, nor shall give any impression that he possesses personal influence with the judge before whom he normally practices.

3. He shall be always punctual in attending courts in the prescribed dress.

4. He shall be fair and frank in the court proceedings.

5. He shall not include any fact which he knows to be false in the pleadings, petitions or affidavits.

6. He shall not ask for any adjournment of a case without genuine reasons.

7. He shall not communicate privately with the judges to influence them relating to any pending case.

8. He shall not speak ill of judges or use abusive remarks about them. But, if the judge behaves improperly, it is not only the right but also his duty to report it to the proper authorities.

9. He shall not interrupt when the counsel for the otherside or the judge is speaking.

10. He shall appear in the court in the prescribed dress and his appearances shall always be presentable. He shall not wear bands or gown in the public places.

11. He shall not practice before a judge if he is related to him.

12. He shall not act or plead in any matter in which he is pecuniarily(monetary) interested.

13. He shall not appear for any organization, institution, society or corporation if he is the member of the executive committee of such organization, institution, society or corporation.

07. Duty to the Clients (Rule 11-33)

A client is entrusting a case with an Advocate because of his trust and confidence on him. The Bar Council of India rules 11-33 prescribes the following duties as duty to the client.

1. An Advocate is bound to accept a case in the courts or tribunals where he is normally practicing.

2. He shall not withdraw from a case which he has already accepted without sufficient reasons. He shall not withdraw from the case merely because his fees has not been paid in full. He shall withdraw from the case only after giving a reasonable notice to his client. After his withdrawal he must refund such part of the fees which is in excess in his hand.

3. He shall not accept a case in which he has reason to believe that he will be called as witness. If he already engaged in a case in which he is called as a witness then he should return the case. But, if his retirement will cause irreparable loss to the client then he can continue to appear as a lawyer.

4. He must make full and frank disclosures to his client relating to his connection with the parties and his interest in the controversy which may likely to affect his client’s interest.

5. He should fearlessly uphold the interest of his client by fair and honourable means without the fear of any pleasant consequences to himself or to any other person. He shall not refuse to appear for an accused person merely because in his personal opinion the accused has committed the offence.

6. An Advocate appearing as a prosecution counsel shall be fair and shall not conduct the prosecution with hostility to the accused to secure conviction. He should not obstruct the defence counsel in placing the relevant material evidence to prove the innocence of the accused.

7. He shall not disclose any matter communicated to him in his professional capacity to any other person without the consent of his client.

8. He shall not be a party to fomenting of litigation.

9. He should act at the instructions of his client and not at the instruction of any other person.

10. He shall not stipulate a fee depending on the success of the case or agree to share the proceeds of the litigation.

11. He shall not buy or agree to share the interest of the litigation.

12. He shall not directly or indirectly bid or purchase in his own name or in any other name any property sold in execution of a decree in which he was engaged as a lawyer.

13. He shall not adjust fees payable to him by his client against his own personal liability to the client.

14. He shall not do anything whereby he abuses or takes advantage of the confidence reposed in him by the client.

15. He should keep regular accounts of the clients’ money entrusted to him. The account should show the particulars of the amount received from the client and the expenses incurred for him.

16. He should maintain separate accounts for the amount received for the fees and for the expenses. The amount received for the expenses shall not be converted for fees without the consent of the client.

17. Where any amount received on behalf of the client (either from the court or from any other person) it should be intimated to the client as early as possible.

18. After the proceedings are over, he shall take the settled fee from the client’s money in his hand and the balance, if any should be returned to the client.

19. If the Advocates fee is left unsettled, he shall take a reasonable fee from the client’s money in his hand, after the proceedings are over.

20. A copy of the clients account shall be furnished to him on demand.

21. He shall not convert the client’s money in his hand as loan given to him by the client.

22. He shall not lend money to his client for the purpose of any legal proceeding in which he is engaged as the lawyer. But, any amount given to his client in an unanticipated emergency shall not be treated as beach of this duty.

23. An Advocate who has advised or prepared the pleadings or appeared for a party in any suit or appeal shall not act, appear or plead for the opposite party.

In addition to the above duties prescribed by the Bar Council of India an Advocate is expected to perform the following duties also to his client.

1. He shall give advice to his client honestly and in good faith.

2. He shall prepare the case with due care and skill.

3. He shall submit all relevant documents before the court in support of the claim of his client.

4. He should attend the court on every day fixed for hearing of his client’s case.

5. He should return the whole fees received from his client, if he is not in a position to conduct the case.

08. Lawyers Duty to Opponent Party (Rule34 & 35)

Rule 34 & 35 deals with the duties of an Advocate to the opponent party. They are as follows.

1. Rule 34 provides that an Advocate shall not in any way communicate or negotiate upon the subject matter of dispute with the opposite party directly. For any reasons, if he wants to communicate anything then it should be done through his Advocate.

2. Rule 35 provides that an Advocate shall do his best to carry out all legitimate promises made to the opposite party. Even if such promises are not in writing or not enforceable under the rules of the court, he must try his level best to perform his promises.

3. He shall not use unfair and malicious tactics against the opponents.

4. He shall not abuse the rules of evidence and the process of the court in order to injure the opponent.

5. He shall not make baseless attacks on the reputation of the opponent or his witness or unduly harass them.

6. He may make concessions to the convenience of the opponent and his lawyer in fixing the date of trial.

09. Duty to profession (rule 36-40)

Every Advocate owes an obligation to uplift the profession to which he belongs. He must avoid, any conduct that may lead to lower the standards of the profession. He shall never forget that he belongs to the noble profession. Following are some of his important duties to the profession. These duties are incorporated with the intention of raising the standards of the profession.

1. An Advocate shall not speak ill of the profession. He should conduct himself in such a way to enhance respect, sympathy and good feeling between the members of the profession and strive to maintain the honour and dignity of the profession.

2. He shall not discuss in the newspapers any pending case or appeal.

3. He shall not in any way solicit cases by advertisement or otherwise.

4. He shall not act or plead in his professional capacity before any officer of the state not exercising judicial or quasi-judicial powers.

5. He shall not appoint intermediaries for procuring cases and divide the fees between them or pay commission to them for such work.

6. He shall not entertain or show any undue hospitality to any particular judge.

7. He shall not place himself in the situation which may be unbecoming of a member of the bar.

8. He shall not oppose the desire of his client for additional professional help or assistance from other lawyers also.

9. He must appear in robes in the court proceedings. He shall not wear robes or gown in public places except on ceremonial occasion.

10. He shall not act as a managing Director or a secretary of a company without the leave of the Bar Council.

11. He shall not work as a full time salaried employee.

12. He shall not do any other business. An advocate who inherits any family business may continue it, but he should not personally participate in the management of the business.

10. Legal aid programs

The lawyers must actively participate in the legal and aid programs and give free legal services to the poor and the needy people. This is one of the important duties of an Advocate to the society.

If a lawyer personally knows that his client is unable to pay because of poverty then he must represent the case without demanding any fees from him. Similarly, when the court appoints a lawyer to defend an accused, it is his moral obligation to accept such order and discharge his duties towards the court and the accused by the best use of his knowledge and ability. Lawyers shall co-operate and actively participate in joining hands with the local area legal services Authorities in organizing Lok Adalats and Legal Aid programs and conciliation proceedings.

11. Restriction on other Employments

Bar council of India Rule-40 restricts the Advocates not to personally engage in any other business other than the legal profession. If he joins as a full time salaried employee either in the Government or in the private sector he must request the Bar Council to remove his name from the Advocates Roll.

But there are some exceptions.

1. He can be a Sleeping partner in a business, if in the opinion of the State Bar Council that business is not inconsistent with the profession.

2. An Advocate who has inherited a family business shall continue it, but he shall not personally participate in the management of the business.

3. He shall engage himself in writing Law Books.

4. He shall join as a part-time Law Teacher or any other part –time job not exceeding 3 hours in a day and which may not be inconsistent with the legal profession.

5. He shall prepare question papers for the Exams.

6. He shall review parliamentary Bill for a remuneration.

7. He shall act as a member of the parliament or Member of the State Assembly.

8. He shall study Post Graduate course in Law without suspending his practice.

An Advocate who is engaged in other business shall be punished for professional misconduct (See Dr.Kaniraj L. Sulani v. Bar Council of Maharashtra, Babulal v. Subash Jain and Sharma v. Gurdial Singh).

12. Duty to Self

Legal profession is a noble profession. An Advocate should follow the following duties as duty to self.

1. An Advocate must develop the habit of systematic study of law and acquire up-to-date knowledge in law.

2. He shall exercise prudence, deligience and judiciousness in all his activities.

3. He shall never be a party to anything which he knows to be wrong.

4. He shall not stir up litigations.

5. He should discourage vexations (groundless)litigation.

6. He shall encourage compromise between the parties.

7. He shall not indulge in any act which amounts to professional misconduct.

8. He should not do any act which amounts to contempt of the court.

9. He must be fair and honest in his dealings.

13. Duty to colleagues

In order to maintain good relation among the members of the Bar, an Advocate has to perform the following duties to colleagues.

1. An Advocate shall not enter appearance in any case in which there is already an Advocate.

2. He shall not in any way solicit cases by advertisement or otherwise.

3. He shall not allow his name to be used by some other person for unauthorized practice of law.

4. He shall not accept a fee less than the fee chargeable under law.

14. Restriction on Advertisement

Rule 36 of Bar Council of India restricts the Advocates not to advertise about the profession. Due to this restriction Advocates are banned to do the following things.

1. Directly or indirectly advertise about their profession.

2. Publishing his photo along the news regarding his appearance in a case.

3. Circulation of pamphlets or giving advertisement with a view of soliciting case.

4. His name board should be small and in prescribed size. In the name board the following matters should not be mentioned.

1.      Information relating to his membership in Bar Council or post in the Bar Association.

2.      Information about the specialization in a particular branch of law.

3.      Information about Ex-Judicial Officer or Ex-Government Advocate.

4.      Information about his membership in other associations.

Making advertisement against the above said restrictions will be treated as professional misconduct.

15. Refusing to Accept a Case

An Advocate shall not refuse to accept a case, if the client asks to file or defend a case in a court or a tribunal where he normally practice. But in the following situations he can refuse to accept a case.

1. If he has reasons to believe that he may be called as witness in the case.

2. If he has already given the advice or prepared the pleadings for the opposite party.

3. If he is physically disabled from appearing.

4. When he may not be available to present the case in the court.

5. Where he confines his practice in some courts only.

16. Professional Misconduct

Misconduct means dereliction of duty. Professional misconduct means dereliction of duty relating to Legal profession. Under S.35 of the Advocates Act, An Advocate is punishable not only for professional misconduct but also for other misconduct. Other misconduct means a misconduct not directly connected with the legal profession.

The Disciplinary committee of the State Bar Council after hearing the Advocate concerned and the Advocate general comes to the conclusion that the misconduct is proved that it may pass any of the following orders, namely

(i)                 Reprimand the Advocate.

(ii)               Suspend the Advocate from the practice for such period as it thinks fit.

(iii)             Remove the name of the Advocate from the Advocates Roll.

Some important cases relating to Professional Misconduct

 Purchase of the property in dispute of the client - P.D. Gupta v. Ram Murti and Anr.

 Non filing of the case or filing of the case with nominal court fees - Allahabad Bank v. Girish Prasad Verma

Deliberate delay in filing of the suit - Prof. Krishanraj Goswami v. Vishwanath D. Mukashikar 

Suppression of material facts with intention to harass poor persons - Smt. Sudesh Rani v. Munish Chandra Goel 

Manipulation of the judgement and the decree - Surendra Nath Mittal v. Daya Nand Swaroop 

Handing over of forged documents to the opposite party - Pratap Narain v. Y.P. Raheja 

Not appearing before the court deliberately and intentionally - Smt. P. Pankajam v. B.H. Chandrashekhar 

Defrauding the client by exploiting his/her illiteracy - Vikramaditya v. Smt. Jamila Khatoon 

Advocate actively engaged in carrying other business - Babu Lal Jain v. Subhash Jain 

Advocate attending the court with fire arms - UP Sales Tax Service Association v. Taxation Bar Association, Agra 

Refusal to return the will - John D’souza v. Edward Ani 

Remedies against the order of punishment

Remedies against the punishment of Professional Misconduct are Appeal to the Bar council of India (s 37), Appeal to the Supreme Court, Stay of the order, Review of its own order by the State Bar Council etc.

17 Courtroom Etiquette for Lawyers

Regardless of a lawyer’s style or bent, there are some basic courtroom etiquette which a lawyer should always observe. Five each DOs and DONTs are given below.

1. DO: Stand when addressing the court.

2. DO: Show exhibits to opposing counsel before showing them to the judge or the witness.

3. DO: Ask permission before approaching any witness or the bench.

4. DO: Properly lay the foundation for a document before offering it into evidence.

5. DO: Build credibility by acting with civility and professionalism at all times.

6. DON’T: Object before your opponent has finished asking the question.

7. DON'T: Continue to argue once a ruling has been made after you have created a record.

8. DON'T: Address your comments to the opposing counsel instead of the court.

9. DON’T: Interrupt opposing counsel when they are asking a question or addressing the court.

10. DON'T: Badmouth opposing counsel or the opposing party

18. Conclusion

Though the profession of advocacy is noble, it is really very hazardous and restricted by constraints from everywhere. Many of the legal practitioners are facing starvation due to large scale competition. The moral, legal and behavioral expectations and the punishments for the breach of each are great. It is true that only legal practitioners can be Supreme Court Chief Justice, and that they also can become the President, Prime Minister or Speaker of the Loksabha. But the lower strata are destined to be the sacrificed for the sake of this noble professions. It is high time that the constraints regulating the practice of the advocates should be curtailed at least in terms of its multiplicity of numbers, authorities and punishments. Measures to ensure that the sole professionals are not starving may also be resorted to.