Professional ethics in law, Lecture notes of Ethics

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SHRI SHIVAJI LAW COLLEGE

KANDHAR

DIST. NANDED

A SHORT PROJECT ON

PROFESSIONAL ETHICS

L.L.B. FIRST YEAR

BY

VIJAY PANDITRAO MUNDHE

UNDER GUIDANCE OF

MR. SHRI AMBATWAD SIR

INDEX

1. INTRODUCTION

2. WHAT ARE ETHICS

3. ETHICS AND MORALITY

4. ETHICAL PRINCIPLES IN LEGAL INTERPRETATIONS

5. STANDARDS OF PROFESSIONAL CONDUCT AND ETIQUETTES

6. CONDITIONS FOR RIGHT TO PRACTICE

7. 7 LAMPS OF ADVOCACY

8. CLIENT INTERVIEWING AND COUNSELLING

9. COUNSELLING DOMESTIC VIOLENCE CLIANTS

10. CASE LAWS

a. DISCIPLINARY CASES b. CONTEMPT OF COURT

What Are Ethics?

The concise oxford dictionary defines ethics as “Relating to morals, treating of moral questions, morally correct, honourable.”

A dictionary of psychology defines ethics as “A branch of philosophy concerned with that which is deemed acceptable in human behavior, with what is good or bad, right or wrong in human conduct in pursuit of goals and aims.

Ethics are relevant to you in your everyday life. At some point in your personal or professional life, you will have to deal with an ethical question or problem eg., what is your responsibility towards protecting another person from threat or weather or not you must tell the truth or lie in a particular situations?

There is a value system at work in our lives. Values are the unarticulated beliefs that form the foundation for ethical behavior. These are practices that are deemed by our society as correct behavior. As a lawyer, you have to acknowledge as well as follow the following values which are fundamental to any individual or profession-

1. Quality of life
2. Health, Human Potential, Empowerment, Growth and Excellence
3. Freedom and Responsibility
4. Justice
5. Dignity, Integrity, Worth and Fundamental rights
6. Cooperation
7. Authenticity and Openness
8. Effectiveness, Efficiency, and Alignment
9. Holistic, Systemic view and Affected Parties Orientation

Ethics and Morality

In our everyday language, the two terms ethics and morality along with their adjective forms ethical and moral respectively are often used as synonyms of each others.

The difference between the two is that moral justifications are used to define actions in a particular way as either good and appropriate and therefore to be accepted and spread around, or as bad and improper and therefore to be banned or condemned. Moral justifications can be achieved in different ways. Through indicating the possible consequences, or through reference to a moral code or to role-models whose behavior shapes our own conscience.

On the other side, Ethical justifications seek not so much to validate individual actions but to determine why a person should behave morally and how the morality of actions can be accounted for. In debating and arguing these matters, ethicists have developed a range of approaches and theories over the last 2000 years. Some of these may be incompatible, or even contradictory to one another.

 You retain the content of others’ speech and signing. You do not allow your own ideas on accuracy to interfere in others’ interpretations. Even if this content is unpleasant to you eg. Swear words, or obscene language.  You must also retain the characteristics of involved interacting parties such as formal or non formal speech.  Clients may use terms that are highly specific to their culture, background or career role which may be hard to interpret in the beginning but will be clarified through longer conversations.  Where necessary, you seek the agreement of the interviewer when requesting clarification.

4. PROFESSIONAL CONDUCT

The principle of professional conduct is the basis for the following behavioral norms-  You should conduct yourself in a dignified and respectful manner towards all applicants, interviewers and other persons present before you, regardless of their nationality, ethnicity, religion, age or social status etc.  You may question statements that appear disrespectful towards other involved parties before interpreting them.  You are always conscious of your appearance.

5. PROFESSIONALISM

Professionalism refers to the particular manner in which one carries out one’s duties. It is shown when a person fulfils the requirements of their occupation and displays field specific knowledge or capabilities. Further to this, professionalism is understood to be the ability to employ specialist problem solving skills, to follow field specific behavioral norms and to be able to perform things that cannot be expected of other ordinary people.

Standards of Professional Conduct and Etiquette to be Observed

by Advocates

By Standards of Professional Conduct and Etiquette (Made by the Bar Council of India under Section 49(1)(c) of the Advocates Act, 1961) An Advocate shall always present himself in a manner befitting his status as an officer of the Court, a privileged member of the community, and a gentleman.

An advocate shall fearlessly uphold the interests of his client and in his conduct conform to the rules mentioned both in letter and in spirit.

SECTION I—DUTY TO THE COURT

1. An advocate shall, during the presentation of his case and while otherwise acting before a Court, conduct himself with dignity and self-respect. He shall not be servile and whenever there is proper ground for serious complaint against a judicial officer, it shall be his right and duty to submit his grievance to proper authorities.
2. An advocate shall maintain towards the Courts a respectful attitude, bearing in mind that the dignity of the judicial office is essential for the survival of a free community.
3. An advocate shall not influence the decision of a Court by any illegal or improper means. Private communications with Judge relating to a pending case are forbidden.
4. An advocate shall use his best efforts to restrain and prevent his client from restoring to sharp or unfair practices or from doing anything in relation to the Court, opposing counsel or parties which the advocate himself ought not to do.

Illustration I. He should not act in a bankruptcy petition when he himself is also a creditor of the bankrupt. II. He should not accept a brief from a company of which he is a director.

10. An Advocate shall not stand as a surety, or certify the soundness of surety, for his client required for the purpose of any legal proceedings.

SECTION II—DUTY TO THE CLIENT

1. An Advocate is bound to accept any brief in the Courts or Tribunals or before any authority in or before which he professes to practise at a fee consistent with his standing at the Bar and the nature of the case. Special circumstances may justify his refusal to accept a particular brief.
2. An Advocate shall not ordinarily withdraw from engagements once accepted, without sufficient cause and unless reasonable and sufficient notice is given, to the client. Upon his withdrawal from a case, he shall refund such part of the fee as has not been earned.
3. An Advocate should not accept a brief or appear in a case in which he has reason to believe that he will be a witness and if being engaged in case, it becomes apparent that he is a witness on a material question of fact, he should not continue to appear as an Advocate if he can retire without jeopardising his client‟s interests.
4. An Advocate shall at the commencement of his engagement and during the continuance thereof, make all such full and frank disclosures to his client relating to his connection with the parties and any interest in or about the controversy as are likely to affect his client‟s judgment in either engaging him or continuing the engagement.

5. It shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair and honourable means without regard to any unpleasant consequences to himself or any other. He shall defend a person accused of a crime regardless of his personal opinion as to the accused, bearing in mind that his loyalty is to the law which requires that no man should be convicted without adequate evidence.
6. An Advocate appearing for the prosecution in a criminal trial shall so conduct the prosecution that it does not lead to conviction of the innocent. The suppression of material capable of establishing the innocence of the accused shall be scrupulously avoided.
7. An Advocate shall not, directly or indirectly, commit a breach of the obligations imposed by Section 126 of the Indian Evidence Act.
8. An Advocate shall not, at any time, be a party to fomenting of litigation.
9. An Advocate shall not act on the instruction of any person other than his client or his authorised agent.
10. An Advocate shall not stipulate for a fee contingent on the results of litigation or agree to share the proceeds thereof.
11. An Advocate shall not buy or traffic in or stipulate for or agree to receive any share or interest in any actionable claim. Nothing in this Rule shall apply to stock, shares debentures or government securities, or to any instruments which are for the time being, by law or custom negotiable, or to any mercantile document or title to goods.
12. An Advocate shall not, directly or indirectly, bid for or purchase, either in his own name or in any other name, for his own benefit or for the benefit of any person, any property sold in the execution of a decree or order in any suit, appeal or other proceeding in which he was in any way professionally engaged. This prohibition, however, does not prevent an Advocate from bidding for or purchasing for his client any property which his client may himself legally bid for or purchase provided the Advocate is expressly authorised in writing in this behalf.

21. An Advocate shall not enter into arrangements whereby funds in his hands are converted into loans.
22. An Advocate shall not lend money to his client, for the purpose of any action or legal proceedings in which he is engaged by such client. Explanation—An Advocate shall not be held guilty of a breach of this rule, if in the course of a pending, suit or proceedings, and without any arrangement with the client in respect of the same, the Advocate feels compelled by reason of the rule of the Court to make a payment to the Court on account of the client for the progress of the suit or proceeding.
23. An Advocate who has at any time, advised in connection with the institution of a suit, appeal or other matter or has drawn pleadings or acted for a party, shall not appear or plead for the opposite party.

SECTION III—DUTY TO OPPONENT

1. An Advocate shall not in any way communicate or negotiate upon the subject matter of controversy with any party represented by an Advocate except through that Advocate.
2. An Advocate shall do his best to carry out all legitimate promises made to the opposite party even though not reduced to writing or enforceable under rules of the Court.

SECTION IV—DUTY TO COLLEAGUES

1.An Advocate shall not solicit work or advertise, either directly or indirectly, whether by circulars. Advertisements, touts, personal communications, interview not warranted by personal relations, furnishing or inspiring newspaper comments or procuring his photograph 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 Members 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 work or that he has been a Judge or an Advocate-General.

2. An Advocate shall not permit his professional services or his name to be used in aid of or to make possible, the unauthorised practise of law by any lay agency,
3. An Advocate shall not accept a fee less than the fee taxable under the rules when the client is able to pay the same.
4. An Advocate shall not enter appearance in any case in which there is already a vakalat or memo of appearance filed by an Advocate engaged for a party except with his consent, in case such consent is not produced he shall apply to the Court stating reasons why the said consent could not be produced and he shall appear only after obtaining the permission of the Court.

SECTION IV A

1. Every advocate borne on the Rolls of a State Bar Council shall pay to the State Bar Council a sum of Rs. 30 every third year, commencing 1st April, 1980, either at one time or in three equated instalments.
2. The aforesaid sum collected by the State Bar Council shall be credited to a separate fund to be known as „Advocates Welfare Fund‟.
3. All sums so collected by the State Bar Council in accordance with Rule 1 shall be remitted to the Bar Council of India forthwith, which shall be credited by the Bar Council of India to a separate fund to be known as „Advocates Welfare Fund.‟

SECTION VI—DUTY TO RENDER LEGAL AID

1. Every Advocate shall in the practice of the profession of law bear in mind that any one genuinely in need of a lawyer is entitled to legal assistance even though he cannot pay for it fully or adequately and that within the limits of an Advocate‟s economic condition, free legal assistance to the indigent and oppressed is one of the highest obligations an Advocate owes to society.

SECTION VII—RESTRICTIONS ON OTHER EMPLOYMENTS

1. An Advocate shall not personally engage in any business but he may be a sleeping partner in a firm doing business provided that, in the opinion of the Bar Council the nature of the business is not inconsistent with the dignity of the profession.
2. An Advocate may be a Director or Chairman of the Board of Directors of a company with or without any ordinary sitting, fee provided none of his duties are of an executive character. An Advocate shall not be a Managing Director or a Secretary of any company.
3. An Advocate shall not be full-time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practise and shall, on taking up any such employment, intimate the fact to the Bar Council and shall thereupon cease to practise as an advocate so long as he continues in such employment. Nothing in this rule shall apply to Law Officer of the Central Government or the Government of a State or of any Public Corporation or body constituted by statute who is entitled to be enrolled under the rules of the Bar Council made under Section 28(2)(d) read with Section 24(1)(c) of the Advocates Act, 1961 despite his being a full-time salaried employee.

4. An Advocate who has inherited, or succeeded by survivorship, to a family business may continue it, but may not personally participate in the management thereof. He may continue to hold a share with others in any business which has descended to him by survivorship or inheritance or by will, provided he does not personally participate in the management thereof.
5. An Advocate may review Parliamentary Bills for a remuneration, edit legal text books at a salary, do „press-vetting‟ for newspapers, coach pupils for legal examinations, set and examine question papers; and subject to the rules against advertising and full-time employment, engage in broadcasting, journalism, lecturing and teaching subjects both legal and non-legal.
6. Nothing in these rules shall prevent an Advocate from accepting, after obtaining the consent of the Bar Council part-time employment provided that in the opinion of the Bar Council the nature of the employment does not conflict with his professional work and is not inconsistent with the dignity of the profession.

These rules shall be subject to such directives if any as may be issued by the Bar Council of India from time to time.

7. A person, who has held judicial/quasi judicial office in any part of the Union Territory of Delhi at any time within two years immediately preceding his retirement or otherwise ceasing to be in service, shall not practise for a period of two years from the date of his retirement or ceasing to be in service as the case may be in the territory of Delhi. Provided that nothing in this Rule shall prevent any such person from practising in any Court of Superior jurisdiction to the one in which he held the office. Explanation—A Court of Sessions, a District Court or the City Civil Court shall be a Court of Superior jurisdiction in relation to a Magistrate‟s Court or Small Causes Court, even though no appeal may lie from the latter to the former.
8. No Advocate shall be entitled to practise if in the opinion of the Bar Council he is suffering from such contagious disease as makes his practice of law a hazard to the health of others. This qualification shall last for such period as the Bar Council directs from to time.

The Seven Lamps of Advocacy

Advocacy is an honourable profession. Advocates are part and of the Court. Their efforts solve the conflicts in the society. Advocates defend the rights and liabilities. They hold an unique place in the society.

Advocacy is not a craft but a calling; a profession wherein devotion to duty constitutes the hallmark. Legal profession is regarded to be a noble one. A good advocate should possess some essential qualities and equipment.

Judge Abbot parry in his book “The Seven Lamps of Advocacy” called these important characteristics of advocacy as “seven lamps of advocacy” and listed them as honesty, courage, industry, wit, eloquence, judgment and fellowship.

1. HONESTY Honesty means the quality of straightforwardness; freedom from deceit, cheating or stealing and not telling any lies. The best advocates of all generations have been devotees of honesty. A great example for honest character is Abraham Lincoln, who founded his fame and success on what some called ‘preserve honesty’. The nobleness of legal profession lies in honesty itself. An advocate should not do illegal practices. He should not do any act which will lead to professional misconduct. He should disclose the real facts to his clients frankly. Honesty, integrity and character are inseparable. These three virtues together are essential for the success of an advocate. The great sages of law had taken their visdom from knowledge, honesty, gravity and integrity.