Professional Documents
Culture Documents
Professional Ethics: Bar Bench Relation and Accountancy For Lawyers
Professional Ethics: Bar Bench Relation and Accountancy For Lawyers
D.Darshan Aradhya
BES LAW COLLEGE
FIRST EDITION
CONTENTS
I PROFESSIONAL ETHICS 1-34
1. Origin and Development of Legal Profession 1
2. Advocates Act 3
3. State Bar Council 3
4. Bar Council of India 5
5. Qualification for Enrolment 6
6. Disqualification for Enrolment 7
7. Senior Advocate 8
8. Advocate on Record 9
9. Advocates r Roll 10
10. Amicus curiae 11
11. Lawyers Privilege 11
12. Seven Lamps of Advocacy 12
13. Panchasheel of the Bar 13
14. Ten commandments of Advocates 14
15. Darwin”s Therory in Legal Profession 15
16. Meaning of Professional Ethics 15
17. Meaning of the term Etiquette 16
18. Duty to Court 16
19. Duty to Clients 17
20. Duty to Opponent 20
21. Duty to Profession 21
22. Duty to Render Legal Aid 22
23. Restriction on other Employment 22
24. Duty to Self 23
25. Duty to Colleagues 24
26. Restriction on Advertisement 24
27. Refusing to Accept a Case 25
28. Professional Misconduct 25
29. Punishment for Misconduct 27
30. Remedies Against the Order of Punishment 28
31. Review of its Own Order 29
32. Disciplinary Committee of the State Bar Council 29
33. Disciplinary Committee of the Bar Council of India 31
34. Transfer of Proceedings 32
35. Advocates Welfare fund 32
36. Tamil Nadu Advocates Welfare Fund 33
II BAR BENCH RELATION 34-47
Contempt of court 35
Civil Contempt 35
Criminal Contempt 36
Punishment for Contempt 37
Defences in Criminal Contempt 38
Defences in Civil Contempt 40
Contempt Against Subordinate Court 41
Contempt Procedure in High Court & Supreme Court 41
Contempt by Judicial Officers 43
Bar Bench Relations 44
Role of the Bar to Strengthen Bar Bench Relation 45
Role of the Bench to Strengthen Bar Bench Relations 45
III CASES ON PROFESSIONAL MISCONDUCT 48-57
1. Jagadish Singh v.T.C.Sharma 48
2. Babulal v.Subash Jain 49
3. Balswaroopsoni v.Babulalsoni 49
4. Indure Ltd. v.Deo Raj Gupta 50
5. Commissioner of civil Supplies v. Balakrisdhnan 52
6. A.Banumurthy v.Bar Council of A.P. 53
7. Dr. D.V.P.Raja v.Jayabalan 53
8. G.M.Hirmani v.Iswarappa 54
9. N.S.v. K.V. 56
10. P.R.v.V.I. 56
IV CASES OF MISCONDUCT & CONTEMPT 58-68
1. Pawan Kumar Sharma v.Gurdial Singh 58
2. Mahabir Prasad Singh v.M/s Jacks Aviation 59
3. Supreme Couirt Bar Association v. Union of India 60
4. P.D. Gupta v.Ramamurthi 61
5. Rubtas Singh v.Commissioner, Agra Division 62
6. Harish Chandra Singh v. S.N. Tripathi 63
7. Hikmatali Khan v.Iswar Prasad Arya 64
8. Prahalad Saran Gupta v. Bar Council of Idia 65
9. Dr.Haniraj Chulani v. Bar Council if Maharashtra 66
10. D.C. Sexena v. Hon’ble Chief Justice of India 67
V. ACCOUNTACY FOR LAWYERS 69-73
Purpose of Maintaining Accountas by Lawyers 69
Place of Keeping Books of Account by a Lawyers 70
Bar Council Rules Relating of Accounting 70
Rules Under Income Tax 71
CHAPTER – I
PROFESSIONAL ETHICS
The first time in India, the legal profession was recognized and
regulated by the Charter Act of 1774.This Act has permitted the
English lawyers to practice in the Supreme Court of Calcutta.
The word ‘ethics’ derived from the Greek word ‘ethos’. It means
the habitual mode of conduct Professional ethics means a conduct written
or unwritten which prescribes the duties of a profession (legal
Profession).
S.49(I) (C) of the Advocates Act, 1961 empowers the bar council
of India to make rules prescribing the standards of professional conduct
and etiquette to be observed by the advocates. The rules made by the
Bar council shall come into effect only when it is approved by the Chief
justice of India.
1. An Advocate shall show the due respect to the court and shall
never act in any manner to undermine the confidence in the
judiciary.
2. He shall not exert or attempt to exert any personal influence on
the decision of the court, nor shall give any impression that he
possesses personal influence with the judge before whom he
normally practices.
3. He shall be always punctual in attending courts in the prescribed
dress.
4. He shall be fair and frank in the court proceedings.
5. He shall not include any fact which he knows to be false in the
pleadings, petitions or affidavits.
6. He shall not ask for any adjournment of a case without genuine
reasons.
7. He shall not communicate privately with the judges to influence
them relating to any pending case.
8. He shall not speak ill of judges or use abusive remarks about
them. But, if the judge behaves improperly, it is not only the
right but also his duty to report it to the proper authorities.
9. He shall not interrupt when the counsel for the otherside or the
judge is speaking.
10. He shall appear in the court in the prescribed dress and his
appearances shall always be presentable. He shall not wear bands
or gown in the public places.
11. He shall not practice before a judge if he is related to him.
12. He shall not act or plead in any matter in which he is
pecuniarily(monetary) interested.
13. He shall not appear for any organization, institution, society or
corporation if he is the member of the executive committee of
such organization, institution, society or corporation.
Duty to the Clients (Rule 11-33)
A client is entrusting a case with an Advocate because of his
trust and confidence on him. In order to honour this trust and confidence
the Bar Council of India rules 11-33 prescribes the following duties as
duty to the client.
1. An Advocate is bound to accept a case in the courts or tribunals
where he is normally practicing.
2. He shall not withdraw from a case which he has already
accepted without sufficient reasons. He shall not withdraw from
the case merely because his fees has not been paid in full. He
shall withdraw from the case only after giving a reasonable
notice to his client. After his withdrawal he must refund such
part of the fees which is in excess in his hand.
3. He shall not accept a case in which he has reason to believe that
he will be called as witness. If he already engaged in a case in
which he is called as a witness then he should return the case.
But, if his retirement will cause irreparable loss to the client then
he can continue to appear as a lawyer.
4. He must make full and frank disclosures to his client relating to
his connection with the parties and his interest in the controversy
which may likely to affect his clients interest.
5. He should fearlessly uphold the interest of his client by fair and
honourable means without the fear of any pleasant consequences
to himself or to any other person. He shall not refuse to appear
for an accused person merely because in his personal opinion the
accused has committed the offence.
6. An Advocate appearing as a prosecution counsel shall be fair and
shall not conduct the prosecution with hostility to the accused to
secure conviction. He should not obstruct the defence counsel in
placing the relevant material evidence to prove the innocence of
the accused.
7. He shall not disclose any matter communicated to him in his
professional capacity to any other person without the consent of
his client.
8. He shall not be a party to fomenting of litigation.
9. He should act at the instructions of his client and not at the
instruction of any other person.
10. He shall not stipulate a fee depending on the success of the case
or agree to share the proceeds of the litigation.
11. He shall not buy or agree to share the interest of the litigation.
12. He shall not directly or indirectly bid or purchase in his own
name or in any other name any property sold in execution of a
decree in which he was engaged as a lawyer.
13. He shall not adjust fees payable to him by his client against his
own personal liability to the client.
14. He shall not do anything whereby he abuses or takes advantage
of the confidence reposed in him by the client.
15. He should keep regular accounts of the clients money entrusted
to him. The account should show the particulars of the amount
received from the client and the expenses incurred for him.
16. He should maintain separate accounts for the amount received
for the fees and for the expenses. The amount received for the
expenses shall not be converted for fees without the consent of
the client.
17. Where any amount received on behalf of the client (either from
the court or from any other person) it should be intimated to the
client as early as possible.
18. After the proceedings are over, he shall take the settled fee from
the client’s money in his hand and the balance, if any should be
returned to the client.
19. If the Advocates fee is left unsettled, he shall take a reasonable
fee from the client’s money in his hand, after the proceedings are
over.
20. A copy of the clients account shall be furnished to him on
demand.
21. He shall not convert the client’s money in his hand as loan given
to him by the client.
22. He shall not lend money to his client for the purpose of any legal
proceeding in which he is engaged as the lawyer. But, any
amount given to his client in an unanticipated emergency shall
not be treated as beach of this duty.
23. An Advocate who has advised or prepared the pleadings or
appeared for a party in any suit or appeal shall not act, appear or
plead for the opposite party.
Restriction on Advertisement.
Rule 36 of Bar Council of India restricts the Advocates not to
advertise about the profession. This restriction is imposed because
Advocate profession is the noble profession.
Due to this restriction Advocates are banned to do the following
things.
1. Directly or indirectly advertise about their profession.
2. Publishing his photo along the news regarding his appearance in
a case.
3. Circulation of phamplets or giving advertisement with a view of
soliciting case.
His name board should be small and in prescribed size. In the
name board the following matters should not be mentioned.
1. Information relating to his membership in Bar Council or post in
the Bar Association.
2. Information about the specialization in a particular branch of
law.
3. Information about Ex-Judicial Officer or Ex-Government
Advocate.
4. Information about his membership in other associations.
Making advertisement against the above said restrictions will be
treated as professional misconduct.
Professional Misconduct
Misconduct means dereliction of duty. Professional misconduct
means dereliction of duty relating to Legal profession. Under S.35 of the
Advocates Act, An Advocate is punishable not only for professional
misconduct but also for other misconduct. Other misconduct means a
misconduct not directly connected with the legal profession.
Professional misconduct arises as a result of serious dereliction
of duties to the court, to the client, to the opponent, to the colleagues, to
the profession, to the public etc. Following are some of the instances of
professional misconduct.