Professional Ethics

Unit -I
Importance of Legal Profession

In Peter Coss (Ed.), Thomas Wright’s Political Songs of England (1996), the following verse
occurs:

“Attorneys in country, they get silver for naught;

They make men begin what they never had thought;
And when they come to the ring, they hop if they can.
All they can get that way; they think all is won for them with skill.
No man should trust them, so false are they in the bile.”

If you go through the meaning of the verse above said, as a lawyer you should never expect an
opinion like this from intellectuals like Thomas Wright’s ability. Because, law and its practice is a
professional responsibility.  The regulation of the legal profession is supported by considerable academic
research. “Social scientists like lawyers, have found occupational and professional regulation to be a
provocative topic of study.”
Earl Warren once said, “It is the spirit and not the form of law that keeps justice alive.” 

A lawyer is "a person learned in the law; as an attorney, counsel or solicitor; a person licensed to
practice law." In India, the term "lawyer" is often colloquially used, but the official term is
"advocate" as prescribed under the Advocates Act, 1961. The conception of legal services as a
‘noble profession’ rather than services resulted in formulation of stringent and restrictive
regulatory machinery. These regulations have been justified on the grounds of public policy and
‘dignity of profession’. The judiciary has reinforced these principles: Law is not a trade, not
briefs, not merchandise, and so the heaven of commercial competition should not vulgarize the
legal profession. However, over the years courts have recognized ‘Legal Service’ as a ‘service’
rendered to the consumers and have held that lawyers are accountable to the clients in the cases
of deficiency of services.

The Legal Profession is an important limb of the machinery for administration of justice.
Without a well-organized profession of law, the courts would not be in a position to administer
justice effectively as the evidence in favors or against the parties to a suit cannot be properly
marshaled, facts cannot be properly articulated and the best legal arguments in support or against
the case of the parties cannot be put forth before the court. "A well-organized system of judicial
administration postulates a properly equipped and efficient bar;" and a well regulated profession
for pleading causes is a great desideratum to tone up the quality of justice.
The legal profession’s position in the country was not always the way it is today. The history of
legal profession in India is therefore a history of struggle: for recognition, characterized by
prestige, power and income. The professional standing of the advocates of our country evolved
and grew till it finally manifested itself in the Advocates Act of 1961. 

Some of the importance of legal profession are:

Act in a dignified manner/Maintaining standard of conduct:

It is recognized that duty of solicitor work is often performed under pressure. That pressure can
come from time constraints, the need for multiple court appearances and the task of dealing with
anxious or distressed defendants. Nevertheless, a solicitor is held accountable to the same
standard of professional conduct as are all legal practitioners. Maintaining an appropriate
standard of professional conduct is particularly important when considering the advice to be
given to a defendant, or whether or not to act for a defendant. It is also important for the solicitor
to keep comprehensive and accurate notes of all dealings with defendants throughout each day.
This includes situations where the solicitor has decided he/she cannot advise or represent a
particular defendant.

Duty to the client

Avoiding personal bias

Advancing the case

Allegations of serious misconduct made against other persons

The role of the legal practitioner when representing a defendant is to look after his or her
interests by assisting them to understand the case against them, their legal rights and obligations,
and the consequences of the decisions they may make in relation to the conduct of their matter.

Avoiding personal bias

In representing a client, a legal practitioner follows the client’s lawful, proper and competent
instructions. In addition, a legal practitioner must advance the client’s interest in accordance with
the law, without conveying or appearing to convey the practitioner’s personal opinion on the
merits of the case.

Advancing the case

A legal practitioner has a duty to provide clear and timely advice to enable a client to understand
relevant legal issues and to make informed choices about actions to be taken during the course of
a matter. This involves informing the client about the alternatives to a fully contested
adjudication which may be reasonably available to the client. Examples are, advising a defendant
on the merits of his or her case, particularly where there are no prospects of success, and advice
about a penalty discount on an early plea of guilty.

Allegations of serious misconduct made against other persons

Where a practitioner receives instructions for submissions in mitigation of a client’s criminality,

and those instructions involve allegations against another person of serious misconduct, the
practitioner must not make such allegations against another person unless the practitioner
believes, on reasonable grounds, that available material by which the allegation could be
supported provides a proper basis for it, and the client wishes the allegation to be made,
notwithstanding the seriousness of the allegation, and the possible consequences for the case and
the client if it is not made.

Conflict of interest
Former clients

Acting for more than one party

Practitioners own interest

When client’s lie to the court or falsify documents

When client’s disclose they will breach a court order

The following paragraphs outline situations where a duty solicitor may be faced with a conflict
of interest.

Former clients

Where a legal practitioner in the course of acting for a defendant (former client) has acquired
confidential information which is material to a matter involving a new defendant, and it might be
reasonably concluded that such information, if disclosed, would be detrimental to the interests of
the former client, then there is a conflict of interest and the legal practitioner cannot act for the
new defendant unless the former client has given informed written consent, or an effective
information barrier has been established.

Acting for more than one party

A conflict of interest may also arise where a legal practitioner is asked to represent more than
one party involved in a particular matter.

Practitioners own interest

A practitioner must not act for a client where the practitioner is aware that the client’s interest in
the matter is, or would be, in conflict with the practitioner’s own interest or the interest of an
associate.. For example, a conflict of interest would arise where the victim of an offence is a
relative, a friend or an acquaintance of the legal practitioner.

When client’s lie to the court or falsify documents

A conflict of interest can arise in the course of duty solicitor work based on the instructions of
the defendant. Where a defendant informs a legal practitioner that they have lied to the court, or
have arranged for another person to lie to the court, or have falsified or arranged for another
person to falsify a document which has been tendered to the court, before judgement or a
decision is handed down, the practitioner must:

 advise the client that the court should be informed of the lie or falsification, and request
authorisation to inform the court; and
 refuse to take any further part in the case unless authorised by the client to inform the
court of the lie or falsification.

Where the defendant instructs the practitioner to disclose the information to the court, the
practitioner must promptly inform the court of the lie or falsification. Where the defendant
refuses to provide such instructions, the legal practitioner must refuse to take any further part in
the case, but cannot inform the Court of the lie or falsification.

When client’s disclose they will breach a court order

On occasions, the duty solicitor will come across a defendant who instructs that they will disobey
a particular court order. In this situation, the duty of a legal practitioner is to advise the client
against such action and warn of the consequences. A legal practitioner must not provide advice
as to how such a breach should be carried out or concealed, nor should a legal practitioner inform
the court or prosecution of the client’s intentions without authorisation from the client.

Officer of the court

As officers of the court, all legal practitioners are expected to act with competence, diligence and
candour when dealing with the court. Conduct towards the court must be exemplary, and there is
an expectation of honesty and frankness in all court proceedings. Towards this end, a legal
practitioner must not knowingly or recklessly mislead the Court. Whilst defence counsel is not
required to disclose information, he/she must not mislead the Court by providing false or
inaccurate information, nor fail to disclose material information [see R v Stamos [2004] SASC
132 ].

A legal practitioner must correct any misleading statement made by the practitioner to a court as
soon as possible after they become aware that the statement was misleading. However, a
practitioner is not taken to have made a misleading statement to a court simply by not correcting
an error in a statement made to the court by an opponent or any other person. Whilst, as a general
rule, legal practitioners act in accordance with the defendant’s instructions, there must remain a
degree of forensic judgement in following those instructions in order to prevent submissions to
the court which the duty solicitor knows will deceive the court.
Confidentiality and Legal Professional Privilege

The solicitor-client relationship is based on confidentiality and legal professional privilege.

These principles are based in the public interest for trust and candour in the giving or receiving
of legal advice. A legal practitioner must not disclose to any person, any information which is
confidential to a client and acquired by the practitioner during the client’s engagement of the
legal practitioner, without the client’s authorisation. Legal professional privilege protects written
material or documents (such as those in a client’s file, or the pink duty solicitor forms) from
disclosure to any other person, without the defendant’s consent. This also protects such
information from being subpoenaed or consequently used as evidence.

Legal Profession during British Rule

In England, the admission of lawyers has been regulated since the middle of the 13th century.  In
the late 13th century, three critical regulations were adopted – a. the Statute of Westminster I,
chapter 29 (1275); b. The London Ordinance of 1280; and c. the Ordinance of 1292, de
Attornatis et Apprenticiis. During the medieval period, further regulations were enacted, called
the Statute, 4 Henry IV, chapter 18 (1402) and the Ordinance, 33 Henry VI, chapter 7 (1455).  In
addition, judges have always used their inherent power to control the admission of lawyers and
check their misconduct.

The history of the legal profession in India can be traced back to the establishment of the First
British Court in Bombay in 1672 by Governor Aungier. The admission of attorneys was placed
in the hands of the Governor-in-Council and not with the Court. Prior to the establishment of the
Mayor’s Courts in 1726 in Madras and Calcutta, there were no legal practitioners.

The Mayor’s Courts, established in the three presidency towns, were Crown Courts with right of
appeal first to the Governor-in-Council and a right of second appeal to the Privy Council.  In
1791, Judges felt the need of experience, and thus the role of an attorney to protect the rights of
his client was upheld in each of the Mayor’s Courts. This was done in spite of opposition from
Council members or the Governor.  A second principle was also established during the period of
the Mayor’s Courts. This was the right to dismiss an attorney guilty of misconduct.  The first
example of dismissal was recorded by the Mayor’s Court at Madras which dismissed attorney
Jones.

The Supreme Court of Judicature was established by a Royal Charter in 1774. The Supreme
Court was established as there was dissatisfaction with the weaknesses of the Court of the
Mayor.  Similar Supreme Courts were established in Madras in 1801 and Bombay in 1823.  The
first barristers appeared in India after the opening of the Supreme Court in Calcutta in 1774.  As
barristers began to come into the Courts on work as advocates, the attorneys gave up pleading
and worked as solicitors. The two grades of legal practice gradually became distinct and separate
as they were in England.  Madras gained its first barrister in 1778 with Mr. Benjamin Sullivan.

Thus, the establishment of the Supreme Court brought recognition, wealth and prestige to the
legal profession.  The charters of the Court stipulated that the Chief Justice and three puisne
Judges be English barristers of at least 5 years standing.

The charters empowered the Court to approve, admit and enrol advocates and attorneys to plead
and act on behalf of suitors. They also gave the Court the authority to remove lawyers from the
roll of the Court on reasonable cause and to prohibit practitioners not properly admitted and
enrolled from practising in the Court. The Court maintained the right to admit, discipline and
dismiss attorneys and barristers.  Attorneys were not admitted without recommendation from a
high official in England or a Judge in India.  Permission to practice in Court could be refused
even to a barrister.

In contrast to the Courts in the presidency towns, the legal profession in the mofussil towns was
established, guided and controlled by legislation.  In the Diwani Courts, legal practice was
neither recognized nor controlled, and practice was carried on by vakils and agents.  Vakils had
even been appearing in the Courts of the Nawabs and there were no laws concerning their
qualification, relationship to the Court, mode of procedure of ethics or practice.  There were two
kinds of agents – a. untrained relatives or servants of the parties in Court and b. professional
pleaders who had training in either Hindu or Muslim law.  Bengal Regulation VII of 1793 was
enacted as it was felt that in order to administer justice, Courts, must have pleading of causes
administered by a distinct profession Only men of character and education, well versed in the
Mohamedan or Hindu law and in the Regulations passed by the British Government, would be
admitted to plead in the Courts. They should be subjected to rules and restrictions in order to
discharge their work diligently and faithfully by upholding the client’s trust.

Establishment of the High Courts

In 1862, the High Courts started by the Crown were established at Calcutta, Bombay and
Madras.  The High Court Bench was designed to combine Supreme Court and Sudder Court
traditions. This was done to unite the legal learning and judicial experience of the English
barristers with the intimate experience of civil servants in matters of Indian customs, usages and
laws possessed by the civil servants.  Each of the High Courts was given the power to make rules
for the qualifications of proper persons, advocates, vakils and attorneys at Bar.  The admission of
vakils to practice before the High Courts ended the monopoly that the barristers had enjoyed in
the Supreme Courts. It greatly extended the practice and prestige of the Indian laws by giving
them opportunities and privileges equal to those enjoyed for many years by the English lawyers. 
The learning of the best British traditions of Indian vakils began in a guru-shishya tradition:
“Men like Sir V. Bashyam Ayyangar, Sir T. Muthuswamy Ayyar and Sir S. Subramania Ayyar
were quick to learn and absorb the traditions of the English Bar from their English friends and
colleagues in the Madras Bar and they in turn as the originators of a long line of disciples in the
Bar passed on those traditions to the disciples who continued to do the good work.” Additional
High Courts were established in Allahabad (1886), Patna (1916), and Lahore (1919).

There were six grades of legal practice in India after the founding of the High Courts – a)
Advocates, b) Attorneys (Solicitors), c) Vakils of High Courts, d) Pleaders, e) Mukhtars, f)
Revenue Agents.  The Legal Practitioners Act of 1879 in fact brought all the six grades of the
profession into one system under the jurisdiction of the High Courts.  The Legal Practitioners
Act and the Letters Patent of the High Courts formed the chief legislative governance of legal
practitioners in the subordinate Courts in the country until the Advocates Act, 1961 was enacted.

In order to be a vakil, the candidate had to study at a college or university, master the use of
English and pass a vakil’s examination.  By 1940, a vakil was required to be a graduate with an
LL.B. from a university in India in addition to three other certified requirements. The certificate
should be proof that a. he had passed in the examination b. read in the chamber of a qualified
lawyer and was of a good character.  In fact, Sir Sunder Lal, Jogendra Nath Chaudhary, Ram
Prasad and Moti Lal Nehru were all vakils who were raised to the rank of an Advocate.

Original and appellate jurisdiction of the High Court.

The High Courts of the three presidency towns had an original side.  The original side included
major civil and criminal matters which had been earlier heard by predecessor Supreme Courts.
On the original side in the High Courts, the solicitor and barrister remained distinct i.e. attorney
and advocate. On the appellate side every lawyer practiced as his own attorney.

However, in Madras the vakils started practice since 1866. In 1874, the barristers challenged
their right to do original side work. However, in 1916, this right was firmly established in favour
of the vakils.  Similarly, vakils in Bombay and Calcutta could be promoted as advocates and
become qualified to work on the original side.  By attending the appellate side and original side
Courts each for one year, a vakil of 10 years service in the Court was permitted to sit for the
advocates’ examination.

The legal practitioners act, 1846

It was the first All-India law concerning the pleaders in the mofussil, made several important
innovations, namely: (1) The office of the pleader in the courts of the Company was thrown open
to all persons of whatever nation or religion, provided he was duly certified (in such manner as
directed by the Sadar Courts) to be of good character and duly qualified for the office. Thus,
religious test was abolished for enrolment as a Pleader. (2) Every Barrister enrolled in any of Her
Majesty's Courts in India was made eligible to plead in the Sadar Adalats subject to the rules of
those Courts applicable to pleaders as regards language or any other matter. (3) Vakils were
allowed freedom to enter into agreement with their clients for their fees for professional services.
This Act is regarded as the "first charter of the legal profession" although it left unsolved the
important question of the right of Vakils to practice in the Supreme Courts 

The legal practitioners act, 1879

The Act, XVIII of 1879, was enacted to consolidate and amend the law relating to legal
practitioners in the mofussil  . The Act repealed the Pleaders, Mukhtars and Revenue Agents Act,
1865. At this time, there were six grades of practitioners functioning in India. Advocates,
Solicitors (Attorneys), and Vakils of the High Court: Pleaders, mukhtars and-revenue agents in
the lower courts. The High Courts laid down standards for admission of Vakils to practice in the
High Court; for Zila courts, standards were laid down in the Regulations which were lower for
Pleaders than the High Court Vakils. Thus, Vakils became a distinct grade above the Pleader.

The Legal Practitioners Act, 1879, brought all-the six grades of legal practitioners into one
system under the jurisdiction of the High Courts. The Act empowered an Advocate or a Vakils
on the roll of any High Court to practice in his own High Court, in all the courts subordinate
there to, in any court in British India other than a High Court on hose roll he was not entered, or
with the permission of any High Court on whose roll he was not entered. The right to practice
thus conferred by these provisions included the right to plead as well as to act in the courts.

Indian Bar Councils Act, 1926.

The Indian Bar Councils Act, 1926 was passed to unify the various grades of legal practice and
to provide self-government to the Bars attached to various Courts.  The Act required that each
High Court must constitute a Bar Council made up of the Advocate General, four men nominated
by the High Court of whom two should be Judges and ten elected from among the advocates of
the Bar. The duties of the Bar Council were to decide all matters concerning legal education,
qualification for enrolment, discipline and control of the profession. It was favourable to the
advocates as it gave them authority previously held by the judiciary to regulate the membership
and discipline of their profession.

Legal Profession in Independent India

The Advocates Act, 1961 was a step to further this very initiative.  As a result of the Advocates
Act, admission, practice, ethics, privileges, regulations, discipline and improvement of the
profession as well as law reform are now significantly in the hands of the profession itself.

The advocates act, 1961

The Act establishes an All-India Bar Council for the first time. The Attorney-General of India
and the Solicitor-General of India are the ex-officio members of the Bar Council of India. It has
one member elected to it by each State Bar Council from amongst its members. The Council
elects its own Chairman and Vice-Chairman.  The Bar Council of India has been entrusted inter
alia with the following important functions:

(1) To lay down standards of professional conduct and etiquettes for Advocates;

(2) To safeguard the rights, privileges and interests of Advocates;

(3) To promote legal education,

(4) To lay down standards of legal education in consultation with the Universities imparting such
education and the State Bar Councils;

(5) To recognize Universities whose degrees in law shall qualify for enrolment as an Advocate.

(6) To visit and inspect the Universities for that purpose;

(7) To exercise general supervision and control over State Bar Councils,

(8) To promote and support law reform;

(9) To organize legal aid to the poor.

This Act created a State Bar Council in each State.  It is an autonomous body. The Advocate-
General of the State is its ex-officio member, and there are 15 to 25 elected Advocates. These
members are to be elected for a period of five years in accordance with the system of
proportional representation by means of single transferable vote from amongst Advocates on the
Roll of the State Bar Council. The State Bar Council has power to elect its own Chairman. The
main powers and functions of the State Bar Council are:

(a) To admit persons as Advocates on its Roll;

(b) To prepare and maintain such Roll;

(c) To entertain and determine cases of misconduct against Advocates on its Roll;

(d) To safeguard the rights, privileges and interests of Advocates on its roll;

(e) To promote and support law reform;

(f) To organize, legal aid to the poor.

Thus, every State Bar Council prepares and maintains a Roll of Advocates and: an authenticated
copy of the Roll is to be sent to the Bar Council of India. An application for Admission as an
Advocate is made to the State Bar Council within whose jurisdiction the applicant proposes to
practice.

The Bar Council of India regulates the content, syllabi, duration of the law degree. Subject to the
provisions made by the Bar Council, each University can lay down its own provisions and
regulations concerning the law degree. To perform its functions regarding legal education it is
assisted by a Legal Education Committee consisting of ten members, five being members" of the
Bar Council of India, and five co-opted by the Council who are not members' thereof. The idea is
that the co-opted members would mainly be law teachers.

The finances of the Bar Councils are essentially met out of the enrolment fees of the Advocates,
Twenty per cent of the fees realized are paid by each State Bar Council to the Bar Council of
India. The Bar Councils may receive donations and grants. The Bar Councils can frame rules for
carrying out their functions.

The rules made by the State Bar Council have to be approved by the Bar Council of India. The
Central Government has been given an overriding power of making rules on any matter. There
was no such provision originally. This provision was inserted in the Act in 1964. This provision
has been criticized as amounting to a threat to the independence and autonomy of the Bar
Councils.

The qualifications for admission as an Advocate are: citizenship of India, 21 years of age, and
LL.B. Degree from an Indian University. A foreign national can also be enrolled on the basis of
reciprocity if an Indian citizen is permitted to practice in that country. Foreign Law Degrees can
also be recognized by the Bar Council of India for the purpose. 

The Act recognizes only one single class of practitioners, namely, Advocates. An Advocate on
the State roll is entitled to practice as of right before any tribunal, or authority in India, or any
court including the Supreme Court.  

Advocates have been classified into Senior Advocates and other Advocates. An Advocate may,
with his consent, be designated as a Senior Advocate if the Supreme Court or a High Court is of
opinion that by virtue of his ability, experience and standing at the Bar he is deserving of such
distinction. Senior Advocates are, in the matter of their practice, subject to such restrictions as
the Bar Council of India may, in the interests of the legal profession prescribe. 

Originally, the Act had saved the dual system, i.e. Advocates and Attorneys, prevailing in the
Bombay and Calcutta High Courts on their Original Side. It was left to the two High Courts to
continue the system or not. These provisions were deleted with effect from 1st January, 1977 and
now Attorneys are no longer recognized as a separate class of lawyers. However, since the
system prevailed for a long period in the two towns, it continues there still as a matter of
practice.

Any advocate enrolled with his State Bar Council is now entitled to practice i the Supreme Court
irrespective of his standing at the bar.
In Supreme Court there exist 3 categories of advocates: Senior Advocates, Advocates and
Advocates on Record.

A Senior Advocate is one who with his consent may be designated so if the Supreme Court is of
the opinion that by virtue of his ability, experience and standing at the bar is deserving of such
distinction. An advocate can become an Advocate on record after undergoing one year training
with an advocate o record and passing an examination held by the court. He has to have an office
in Delhi within a radius of 16 kilometers from the Court House and has to employ a registered
clerk.

Thus, admission, practice, ethics, privileges, regulation, discipline and improvement of the
profession are now all in the hands of the profession itself. The legal profession has achieved its
long cherished object of having a unified Bar on an All-India basis.