Above: Lawyers of Patna High Court protest against the proposed Advocates (Amendment) Bill/Photo: UNI
The legal profession is governed by a moral code that is the key to maintaining independence and accountability and instilling trust among clients
By Ritu Gupta
As per Black’s Law Dictionary, legal ethics, also termed as etiquette of the profession, refers to the minimum standards of appropriate conduct within the legal profession. This involves duties that its members owe to one another, their clients and courts. In general terms, legal ethics refers to the professional regulations that govern the conduct and moral lives of lawyers.
The Preamble to the UN’s Basic Principles on the Role of Lawyers states: “…an independent legal profession is integral to upholding the rule of law. Whereas adequate protection of human rights and fundamental freedoms to which all persons are entitled, be they economic, social and cultural, or civil and political, requires that all persons have effective access to legal services provided by an independent legal profession.”
The legal system of any government is executed through the administration of justice. A sound and healthy system for administration of justice is necessary to uphold the rule of law as mandated by the Constitution as well as to attain peace and stability in the nation. Courts, judges and lawyers, in turn, are said to be the torchbearers and true upholders of this system. As courts rely on the pleadings rendered by lawyers, this duty rests on their shoulders. The confidence of people may suffer a setback and access to justice may be hindered if lawyers are unable to profess ethics in their professional conduct. There cannot be an exhaustive list of these desirables but honesty, fairness, equity, and integrity are a few qualities in the quest for justice. The code of professional responsibility delineates conduct that is “rational”, “judicious” and consistent with the “norms of the profession and the rule of law”.
The relationship between lawyers and clients is said to be based on the uberrima fides principle, which means utmost good faith. The abuse of this faith would not only block administration of justice but be responsible for deterioration of the noble profession. Moreover, any such single incident puts a serious question mark on the entire fraternity, and professional ethics then become indispensable. The oft-quoted aphorism, “Not only must justice be done; it must also be seen to be done” is applicable to judges. At the same time, it is true for lawyers also while dispensing their duties as officers of the court.
In the words of Immanuel Kant: “In law, a man is guilty when he violates the rights of others. In ethics, he is guilty if he only thinks of doing so.”
In Noratanmal Chaurasia v MR Murli, the Supreme Court held that misconduct has not been defined in the Advocates Act, 1961, but professional misconduct envisages breach of discipline and may be defined as transgression of some established and set standards of practice. It is wide enough to cover omissions and commissions, whether done intentionally or unintentionally. Further, in Tulsidas Amanmal Karim, it was held that any conduct which, in any way, renders a person unfit for the exercise of his profession, or where he is likely to tamper with or embarrass the administration of justice by a high court or any subordinate court may be taken as misconduct.
In this case, the following two tests were laid down: (1) the conduct of the advocate is such that he must be regarded as unworthy to remain a member of the honourable profession; and (2) the conduct of the advocate is such that he must be regarded as unfit to be entrusted with the responsible duties that an advocate is called upon to perform.
The lawyer-client relationship too has various connotations and aspects. Some of them are:
- A lawyer is under a duty to act as per his capability and potential, and guide his client in the best possible manner. The action must be diligent and must be taken in a time-bound manner.
- He should treat the client fairly and protect his interests in the most befitting manner. He should avoid conflict of interest by not engaging with more than one client in the related matter.
- He should ensure the availability of resources needed to enable him to dispense his duties effectively.
- At every relevant point of time, the client should be updated and kept informed of the possible outcomes of the steps taken and the reasonable duration of time that may be involved in the process.
- He should advise the client in a swift and polite manner that is easily understandable.
- The lawyer should maintain the confidentiality of the discussion and the documents submitted to him, during the course of the pendency of litigation and even afterwards, till a reasonable time. He should act as per the trust and faith of the client.
- As the relationship with the client is contractual, reasonable professional fees should be charged from him as agreed with him. The lawyer is expected to resort to legitimate means to recover professional dues from the client.
In their capacity as officers of the court, lawyers should not be complicit in misleading the court. If during the pendency of the case, a lawyer learns about any fraud or wrongful depiction by his client, he should convey the details to the court.
Principle 14 of the UN’s Basic Principles on the Role of Lawyers says: “Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognised by national and international law and shall at all times act freely and diligently in accordance with law and recognised standards and ethics of the legal profession.”
Any deviant or defiant behaviour by lawyers brings disrepute to the entire legal community. Hence, professional ethics is the key to maintaining independence and accountability of the legal profession. The importance of such practices must be inculcated in budding lawyers when legal education is imparted to them. Professional bodies like Bar Councils must ensure inclusion of legal ethics in the curriculum of law universities, faculties, schools and colleges. Bar Associations must take strict action against professionals who indulge in wrong practices. The principles of legal ethics would help build a justice delivery mechanism that shall command respect from all stakeholders, and in turn, help establish the rule of law.
—The writer is a professor at National Law University, Delhi