ETHICS AND LEGAL PROFESSION
- By Justice Sunil Ambwani
High Court, Allahabad
1. In the North- East Province (later known as United province and now Uttar Pradesh) a regulation was made in 1802 for appointment of Vakils and Pleaders in Civil Courts. Legal Practitioners Act, 1879 consolidated laws and regulations governing the lawyers. The Advocates, Vakils or Attorney of a High Court, Pleader, Mukhtar or Revenue agents were all brought under the jurisdiction and on the rolls of the High Court. The High Court was empowered to make rules regarding their qualifications, fees, suspension and dismissal.
2. In Regina Guha (1916) 21 CWN 74 the Calcutta High Court, and in Sudhangshu Bala Hazara (1922) ILR 1 Patna 104, the Patna High Court held that women otherwise qualified were not entitled to be enrolled as Vakil or Pleader. To remove the doubts Legal Practitioners (Women) Act, 1923 declared that notwithstanding the Letters Patent of any High Court no woman shall be disqualified to be enrolled as legal practitioners. The Allahabad High Court took the lead by enrolling Miss, Cornelia Sorabji as the first Indian lady Vakil of Allahabad High Court on August 24, 1921 by a decision of the English Committee of the Court (as the Administrative Committee was then called), consisting of Chief Justice Sir Grim Wood Meers.
3. The Chaimier Committee 1924 head by Sir Edward Chaimier retired Chief Justice of Patna High Court recommended a single grade or lawyers and to abolish the distinction between Vakil and Advocate, to name all the practitioners as Advocates instead of Pleaders, Vakils and Mukhtars. It also recommended for establishment of Bar Councils. The Bar Council Act, 1926 established Bar Councils in eight States including Allahabad w.e.f. 1.6.28 with Advocate General and 14 members out of which four were to be nominated by High Court and two could be Judges of the High Court.
4. The All India Bar Committee 1951 with Mr. Justice S.R. Das as its Chairman recommended a unified national Bar and on the 14th Report of the Law Commission, the Advocates Act, 1961 was enacted providing for Bar Council of India and State Bar Councils as autonomous bodies.
5. Bar Council has made rules providing for standards of professional conduct and etiquette, which include duties of Advocates to Court, duty to client, duty to opponent and duty to colleagues. It also provides duty in imparting training and duty to render legal aid. The conditions of practice fall in Chapter III. These are rules of good conduct on which an Advocate is enrolled.
6. Professional ethics is no different than morality. It is application of the accepted standards of right and wrong to the conduct of professional men. It is not important as to what the profession may be or the nature of the relations resulting from it. Under all the circumstances, a person must conduct himself in the accepted behaviour of good conduct and integrity. A practicing lawyer is governed by a system of rules, codes of conduct or etiquettes framed by the Bar Council of his State and Bar Council of India. All the rules, which are applicable to good behaviour are also applicable to a lawyer.
7. There is no difference between personal and professional ethics. The foundation on which the distinction between right and wrong rests are unaffected by the choice of man’s occupation. These are in the nature of things, fixed and immovable. There is no fixed line or boundary between the permitted and the forbidden. The questions as to how far one can go and where he has to stop are to be determined, by not our conscience or moral instincts of individual for these have been already disregarded, but by intellectual calculation of the necessities of the situation, and of the risks of exposure and loss of professional standards, or punishment.
8. These standards of professional ethics have been the same since the beginning when the counsels were permitted to appear before the Kings. Mr. K.P. Jayaswal in ‘Manu and Yajnavalkya’, Tagore Law Lectures 1917 (Calcutta 1930) at wrote (Page 288 para 7) 2 that, ‘Manu VIII, 169, shows that professional lawyers were already in existence in the time of Manava Code.’ The source of professional ethics is in the moral law. The territory lying between the line of strict morality on one side and the intermediate line without landmarks and definite description, is the philosophy of professional ethics, which knows no such line and no such territory. It holds as common sense affirms. A falsehood is equally false and equally wrong, whether it is told to advance the interest of those who are represented or for him, who tells it.
9. A lawyer works as a legal advisor and a defender of the person, who employs him but while he interests himself actively in discharge of his professional duties, he is naturally interested in his clients as individuals. He looks after his needs and is concerned about the failure. The sympathy sometimes gives temptation to cross the line of professional ethics. He often tells himself that he is not doing it for himself but for others and is only trying to save his client, whose interest he has taken upon him and seem to require such action. This is the point at which clear ideas on the subject of professional ethics becomes important. The need of the client can never exceed the interests of the society or in other words the public interest. No argument to save the client by hook or crook as it is a professional duty, succeeds, to cross such line.
10. The true measure of the duty of a lawyer to his clients, so clearly lies in the sense of his responsibility both towards the society and the Court. The practice of law is not a private occupation. A lawyer owes his duty to the Court in which the general public is deeply interested. The counsels are public officers and appear in Courts with mandate of good behaviour. The practice of law is permitted by Bar Council to only those, who are enrolled on good conduct. The professional conduct towards clients and fellow lawyers as well as towards society, and his duties towards Courts, are no different.
11. A lawyer possesses certain powers and privileges to which others are excluded and consequently assumes certain duties and obligations towards both the Court and the client. He is an officer of the Court and representative of his client. His opportunities for doing good and otherwise are so many that the codes of conduct, throw safeguards around him.
12. The argument that a lawyer may disregard his duty to the Court in the interest of his client, is stripped of all disguise. It is a gross mistake. He is expressly bound by his code of conduct both towards court as well as his client. The high and honourable office of the counsel, attains him, so long as he acts honourably. Where he does not, he is degraded, to that of a mercenary, where he is compelled to do the bidding of his clients against dictates of his conscience.
13. The dealings between counsel and his client are also governed by standards of morality and conduct. A lawyer enjoys confidentiality and trust of his client. If the client is treated like a victim, his distrust, consumes the entire profession. Where a client is swindled and made to pay illegal or excessive fees or charges, and his counsel does not notice it, or advise him to go such conduct unnoticed, brings the entire profession to shame.
14. Many a times a counsel blames his own client, the cunning of the opposite counsel or the Judge. This conduct again brings the entire profession to responsibility, including he himself. What is to be done when a lawyer is engaged to defend a notorious or dangerous criminal or a corrupt officer. It is true and cherished right given by law to every individual to a fair and unprejudiced trial, and the right not to be convicted until competent and satisfactory evidence is brought on record. These rules, however, are not to be treated as a shield of the innocent or the guilty of grounds of acquittal where a person deserves conviction. It is not only the right but the duty of the advocate to stand guard vigilantly and courageously over the rights of even a guilty client. This duty however, ends and does not extend to working up a defence where there is none, to intimidate and harass the witnesses, to influence the judge or to act in a forbidden manner. A lawyer should not forget that the community stands socked by commission of a crime and if the criminal about whose guilt they have no doubt, is acquitted and turned loose once more on the society, puts a question mark on the integrity of the Bar and the functioning of the Court.
15. The due administration of law is of greater importance than the result of a particular case or the success and failure of any individual. A lawyer is as much guilty of crime if he knowingly sinks his officials duty in what may seem to be his own or his clients temporary advantage. Remember when we lower the standards of profession, we harm the entire society.
16. Law, does not live in the books; it lives with profession. Judges may speak more finally, but only for a moment. They learn from Bar which fabricate the social structure from statutes tailored to the needs of society. The Bar gives shape and meaning to the words of the statute. The learning of the Bar reflects in the opinion of a Judge. Law is a catalyst to social change. It systhesises the change with stability, bridges the past with the present and makes roads for the future. Wisely employed, law is organized societies principle resource for securing public assent and consent of the governed. The Bar acts as a cradle for the growth of law.
17. The activities of the Government are now extending in spheres, where it plays a role of protector, dispenser of social services, industrial manager, economic controller and an arbitrator. These activities continue to affect the individual rights and liberties. The dispensation of administrative justice, through human hands is always fraught with abuse of power. The rights guaranteed by the Constitution of India counter balance the vast powers of the Government. The Bar acts as a sentinel of these rights. The Bar must ensure that there are no deviations from the norms prescribed by law, also ensuring that emphasis on certain type of rights do not hold back the progress of the society and develop few islands of rich and influential, depriving others with benefits of development. The Bar has a responsibility of smooth and orderly progress of the society and to eliminate the causes of tension. The members of the legal profession are always looked upon as leaders of the community.
18. In the words of Holmes, “many an appeal to freedom is a masquerade of privilege or inequality seeking to entrench itself behind the catchword of a principle.” No one should be allowed to maneuver the judicial process. The Bar must see that the remedies in law do not remain confined with a chosen few, confining legal help to create economic and social inequities.
19. The entire judicial system is at trial today. The overburdened and understaffed Courts, outdated procedures, and the deluge of cases without any assistance from the tribunals, which are mostly vacant and the others manned by tired and unspirited people have developed cracks in the system. The society and the Bar blames the Judges for all the inadequacies in the system. May I ask, whether with the given resources and help, that is rendered by the legal profession today, the Judges can do any better. It is easy to critisize a decision but then how much assistance is given by the counsels in deciding the case. Can you expect Judges to give an entirely just and brilliant judgments without any effective assistance, hour after hour, day after day, months after months.
20. The members of the legal profession have to be ready to accept new challenges. At Allahabad we are not yet exposed to latest developments in laws. We do not have lawyers trained in sea laws, space laws, cyber laws, environmental laws and IPR. Very few lawyers are aware of technological advances made in our country, and the need for the law to adopt to these changes. New tools are being forged to deal with arrears and court management. The Courts are changing its focus from dispute resolution to justice dispensation. The judicial enforcement of socio economic rights, calls for representative and distributive justice. How else less than hundred Judges are to deliver justice to two hundred million people of the State. The ADR mechanism and public interest actions will answer the needs for those, who do not have easy access to Courts.
21. The members of legal profession must respond to tackle the increasing crime in society and to break the nexus between crime and politics. A common man may despair, not the lawyers. A trained, intelligent and vigilant lawyer can provide an answer to the evil. The ethics in legal profession can act as a potent vaccine to the acquired immunity deficiency syndrome, breaking up the fabric of society.
22. No reform in judicial system is possible without full cooperation of lawyers and their active assistance. These reforms should begin with legal education, interactive sessions between lawyers, training programmes on new laws, legal methods, court craft and ethics. It is sad to see lawyers fighting on the streets with police to secure their dignity and honour. I also feel sad to read statements issued by lawyers in favour of politicians, political parties and religious institutions. These methods are used by weak and disabled people, who do not have power to respond. An intelligent lawyer with his pen is more effective than thousand demonstrating on streets.