1st INTERNAL ASSIGNMENT

Legal Skills IV
Professional Ethics in Legal Sphere

Submitted by
Angela Thomas
PRN: 17010126490
BBA LLB – E
2nd year
Professional Ethics in Legal Sphere
Fiduciary Duties of a Lawyer
Introduction
Professional ethics refers to the code of conduct which may either be written or unwritten for
regulating the behavior aspects of a practicing lawyer towards the court, client, opponent and
colleagues. Thus ethics in legal sphere would be the rules and regulations a lawyer has to adhere
to as required by the bar they are registered under. The main objective of such obligation in the
legal profession is because the profession is considered to be not a business but something
created by the state for the public good, so to maintain the dignity, deference and devotion
towards the profession, making it trustworthy in the eyes of the layman and to observe a
respectful relation between the Bench and the bar the advocates are bound by the code of
conduct.
The judges and lawyers are considered to be the protectors of justice, as they hold such an
important role in the stable working of the society nothing should be done by them to lessen the
society’s faith in their honesty, good conscience and integrity. Therefore the bar council of India
in exercise of its rule-making power under section 49(1)(c) of the Advocates Act, 1961 has laid
down the exhaustive code of conduct to be followed in the legal sphere.
The relation between an advocate and his client is of fiduciary nature, meaning it is of high
degree of confidentiality and good faith. In V.C Rangadurai v. D.Gopalan 1 Justice Sen has
observed that the relation between the advocate and his client is purely personal involving a
highest personal trust and confidence. Professional ethics as held by the courts, states that a
lawyer cannot refuse a client because he is accused of terrorism, rape, murder etc. provided the
client is willing to pay his fee and the lawyer is not previously engaged as doing so will be
against the constitution, the statue and professional ethics this was held in the case of A.S.
Mohammed Rafi v. State of Tamil Nadu2.
Content
The Bar Council of India has made several rules to prescribe the standard of professional
conduct and etiquette to be observed by the advocates, Chapter II of Part IV of the rules framed
by the Bar Council of India contains them. Rules 11 to 33 deals with the duties of an advocate to
his clients. The main duties which focus on the fiduciary relationship between the clients and
advocate are:
Rule 13 makes it clear that an advocate should not accept a brief or appear in a case in which he
himself is a witness. If he has a reason to believe that in due course of events he will be a
witness, then he should not continue to appear for the client. He should voluntarily retire from
the case without jeopardizing his client’s interests. This is because once identified as a witness,

1
AIR 1979 SC 281
2
AIR 2011 SC 308
the advocate may find it difficult to identify with the interests of the client so it is better for him
and beneficial for the client, if he withdraws the case.3
Rule 14 makes it compulsory on the advocates part, at the commencement of his engagement and
during the continuance of the dealings, make all necessary full and frank disclosure to his client
relating to his connection with the parties and any of any conflict of interest in or about the
controversy as are likely to affect his client’s judgement in either engaging him or continuing the
engagement.
Rule 15 provides that it is the duty of the advocate to fearlessly to uphold the interest of his client
by all fair and honorable 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
guilt of the accused. An advocate loyalty should always remain to the law, which requires that no
man should be punished without adequate evidence.
Rule 16 provides that an advocate appearing for the prosecution of a criminal trial should
conduct the proceedings in a manner that it does not lead to conviction of the innocent. An
advocate shall by no means suppress or hide any material or evidence, which shall prove the
innocence of the accused.
Rule 17 provides that an advocate shall not commit (directly or indirectly) a breach of the
obligations imposed by Section 126 of the Indian Evidence act. An advocate is therefore bound
by law to not to disclose the communications made by his client to him. Hit is also not necessary
to disclose the advice given by the advocate in the proceedings. However, he is liable to disclose
it, if it violates section 126 or if such communication is made for any illegal purpose. This is
known as Attorney-client privilege. And according to Rule 19 advocate should not act on the
instructions of any other person than his client or the client’s authorized agent
Rule 22 provides that an advocate shall not directly or indirectly bid for or purchase, either in his
name or any other person, for his own benefit or for the benefit of other person, any property
sold in the execution of a degree or order in any suit, appeal or other proceedings in which he
was in any way professionally engaged. However the advocate can bid or purchase on behalf of
his client any property which his client may be legally interested in purchasing provided that the
advocate is expressly authorized to do so in writing. In the case of P.D. Gupta v. Ram Murti4, an
advocate purchased property which was subject-matter of litigation from his client at throw away
prices. There was a doubt cast on the client's title to the property and the advocate was aware of
this fact. He further sold the property to a third party and made profit. He was held guilty of
professional misconduct by the court.
Rule 24 makes it clear that an advocate shall not do anything whereby would abuse or by taking
advantage of the confidence entrusted in him by the client. In the case of Vikas Deshpande v.
Bar council of India5 the appellant advocate took advantage of the situation that the complainants

3
Rajendra Nagrath v. L. Vohra, AIR 2009 MP 131
4
AIR 1998 SC 283
5
AIR 2003 S.C. 308
facing death sentence and obtained the power of attorney on misrepresentation in his favor and
sold the property of the complainants also fraudulently appropriated the sale proceeds for his
gain. The court held him to have committed grave professional misconduct and the Bar council
of India permanently debarred him from practicing as a lawyer.
The rules framed by the Bar council of India do not prescribe the fee to be claimed by the
advocate for their professional services and it has been left to be settled by the private
agreements. However Rule 11 expects an advocate to accept any brief in the court/tribunal or any
other authority he practices in consistence with his standing at the bar and nature of the case.
Also it must be remembered in fixation of fees that legal profession is a branch of administration
of justice and not a money-mending business. Since there is no fixed fee, in the absence of any
agreement regarding the fee between the advocate and client, the advocate is entitle to receive a
reasonable fee on the basis of quantum meruit rule meaning as much as one deserves. If the
client is of bad financial condition, the advocate should adjust the remuneration in accordance to
the financial condition of his client, that is, to decrease the remuneration even under the
minimum which is determined by the tariff. Also, the advocate is expected to not take
remuneration from a client who is extremely poor, taking care for the old ethical principle of the
lawyers: nobody should be left without an expert advocate’s legal assistance only because of his
incapability to pay the required remuneration.
However receiving a contingent fee, the fee depending on the success of a suit or proceeding is
regarded as against public policy. Receiving contingent fee is also considered immoral under
section 23 of the Indian Contract Act. Besides Rule 20 makes it clear that an advocate shall not
stipulate for a contingent fee on the result of litigation or agree to share the proceeds thereof. An
agreement for contingent fee degrades the honorable legal profession, it is looked upon with
disfavor6 and is considered inconsistent with the high ideals at the bar.
As an advocate has fiduciary relation with his client, he occupies a position of a trustee with
regard to the money or documents of his client which comes in his position. If an advocate
refuses to give the money received for the client back he will be liable of professional
misconduct7 also in the case of R.D. Saxena v. Balram Prasad Sharma 8 the Supreme Court has
held that an advocate cannot claim lien over the litigation files entrusted to him for his fees. The
court has held that no profession can be given the right to withhold the returnable records
relating to the work done by him with his client’s matter on the strength of any claim for unpaid
remuneration. However the advocates have other legal remedies for any unpaid remuneration but
they don’t have right to lien over any documents or case files of the client.
There exists a prohibition on the advocates as to appearance for the opposite party and use of
information received to the detriment of the client. As the relation between the advocate and the
client is of trust and confidence. It is duty of the advocate to not use any information that he
obtains from the client against his benefits in any circumstance. This duty continues even after

6
In re Bhandara 3 Bom LR 102
7
In re an Advocate , AIR 1961 Ker 209
8
AIR 2000 SC2912
the relation of an advocate and client has ceased as any such disclose by the advocate, will
hamper the relation of trust ceasing the fiduciary relationship.
It is the duty of the advocate not to change sides and appear for the opposite party in subsequent
proceedings in the same suit. Rule 33 by the bar council emphasis on this condition and strictly
restricts the advocate from changing sides. The basis of this rule is to protect the interests of the
client and not to misuse the information given by one party for the benefit of another.9 The court
has held representation of conflicting interests to be unprofessional except by express consent
given by all concerned parties after a full disclosure of the facts.
The advocate however should not see the opposite party as an enemy but as an average
adversary, who may be as confident in his right as the client he represents. Thus, the advocate's
relation to the opposite party should be concrete. It shouldn’t in any way affect his representation
of his client. The advocate should act energetically and without fear, but still in the framework of
the provisions of the law. The advocate is expected to avoid any contact with the opposite party
without knowledge of his client and the opposite party's representative. The advocate should
inform his client about his friendly relation with the opposite party if any, before he agrees to
represent the client. This would eliminate any suspicion regarding the regular/correct
performance of the advocate’s duty.
An advocate shall take all the possible means, depending upon him, to resolve the dispute in an
amicable settlement manner i.e. a friendly settlement out of court. An advocate shall discuss with
the client the offer for friendly settlement from the opposing party if any, the advocate should
wisely judge the exception of cases when this kind of proposal on behalf of the opposing party
has a tendency to unduly delay the lawsuit. Advocate shall not try to create any artificial disputes
(bring cases to court) for the client to increase the amount of remuneration for his personal
benefit, with the exception of cases where the bringing a new case to court is necessary to
influence the result of the general case of the client or create other favorable situation for the
client. The settlement should only be made considering the best interests of the client, if a
friendly settlement is made without the client’s consent and in detriment to his interests, which
has caused a significant damage to the client or has put an unnecessary burden on him/her
amounts to professional misconduct of the advocate.
Conclusion
Once the advocate accepts the offer to represent or defend the client, he should get detailed
information with all possible evidence from his client, and to caution the same that in his/her
interest is to inform the lawyer about all facts only then a fiduciary relationship between the two
parties can be well established. The advocate is obliged to research and study conscientiously the
case that he has accepted to represent and to act upon that case on the same way, as well to
address his client honestly about his personal opinion about the expected outcome of the
litigation. The advocate is also obliged to familiarize his client with the actual situation of the
case - from factual and legal point of view.

9
State v. Lalit Mohan Nanda AIR 1961 Orissa 1.
The legal profession is a profession of great honor. The Supreme Court has rightly observed that
the legal profession is a partner with the judiciary in the administration of equity, good
conscience and justice. So in case of any professional or other misconduct the lawyers are
punishable by the Bar council of India under Chapter V of the Advocates Act 1961 and in case of
gross misconduct they are also punishable by the court.
Professional ethics can be stated as the duties that have to be followed by an advocate during his
profession. An advocate who works without sincerity and fails to adhere to the rules of conduct
is said to have violated the code of ethics of this profession. The fundamental aim of legal ethics
made mandatory to follow is to maintain honor and dignity of the legal profession to ensure the
spirit of friendly co-operation, honorable fair and true dealing of the advocate with his clients
and also to secure the responsibilities of the lawyers towards the efficient working of the society.