LAW512- PROFESSIONAL ETHICS

Topic: Advocates Act: Code and Conduct

Submitted To: Submitted By:

Ms Prabha Shree Sain Vanshika Gupta
Faculty, A3221517292
Amity Law School, BBA LLB (H)
Noida 2018-23
SEC A
Sem 9
 INTRODUCTION

A specific code of ethics is prescribed for lawyers by the Indian Bar Council, which they are
required to abide by, in order to regulate the legal profession in India. Due to the fact that
lawyers serve as court officers, a rule for a lawyer's code of conduct is required to protect the
value of the legal profession in India.

The Indian parliament enacted the Indian Bar Council Act, 1926 with the intention of
establishing regulations for legal professionals and also outlines the kinds of rules that apply
to practise or necessary requirements for legal education, with a focus on professional
misconduct, under the authority granted by the act. Under Section 7, this Act specifies the
duties of the Bar Council of India. In accordance with Section 7(1), the Bare Council of India
establishes standards of professional conduct and etiquette for advocates (b). It's interesting to
note that Section 49(1) also establishes this specific function of the Bar (c). Section 49(1)(c)
gives the Bar the authority to establish regulations governing the level of professional ethics
that advocates must uphold. In essence, the aforementioned Act outlines the process for
registering with state-level bar councils and the kinds of credentials that may be necessary for
registration to practise law. The Bar Council of India, the nodal organisation that establishes
stringent guidelines for registration, is the supreme body. It also outlines the standards that a
legal institution should uphold. Additionally, it defines the standards that a legal institution
must uphold The Indian Bar Council Act, 1926 has been replaced by the Advocates Act,
1961.

According to the Advocates Act of 1961, an advocate must register with the State Bar
Council as well as the qualifications needed to practise law. In addition to defining the legal
requirements for legal professionals, the Advocate Act also contains provisions for the
formation of bar councils and an All-India Bar. In essence, the aforementioned Act outlines
the process for registering with state-level bar councils and the kinds of credentials that may
be necessary for registration to practise law. An advocate is a subset of a lawyer in the
context of Indian law. In other words, while all lawyers are advocates, not all advocates are
lawyers. The Advocates Act of 1961 established the legal practise of advocates. According to
the Act, only advocates—and not any other division of a lawyer—may practise law in courts
and present arguments on behalf of others, but only after obtaining the necessary licence. The
Advocate Acts specify the rules for establishing bar councils and an All-India Bar as well as
the legal framework for attorneys. The term "advocate" is used to refer to a subset of
"lawyer" in India, but the act only applies to "advocates" because they are the only ones
permitted to practise law in courts due to membership in the Bar Council of India and State
Bar Council, whereas "lawyers" are those who have earned a bachelor's degree in law.
Therefore, the Bar Council's code of conduct only applies to advocates who are also members
of the bar.

Why do we need the Bar Council of India?

Bar Council of India is a statutory body that oversees and represents the Indian bar
association which was established by Parliament. Bar Council of India basically serves as a
regulatory body for all legal professionals in the nation; as a result, it has a very important
role to play in establishing standards of professional conduct, defining the appropriate
etiquette for lawyers, and exercising its authority to discipline the bar. Along with that, the
Bar Council of India also establishes standards for legal education with the aid of universities
and colleges and recognises universities whose degree in law will be used as a requirement
for applicants to positions in the legal profession. Additionally, the Bar Council of India
recognises universities whose law degrees will be required for applicants to register as
advocates and sets standards for legal education with the assistance of universities and
colleges.

Need for professional ethics in Indian Legal System:

Maintaining the honour and integrity of the legal profession is the main goal of advocacy
ethics. Legal ethics ensure that the legal community serves society honestly and presents each
case in the most formal manner possible so that litigants have confidence in both the legal
system and their legal counsel. To keep the functioning of Indian Courts, both the judge and
the attorney must have a sense and understanding of legal ethics. Seeking an atmosphere of
cordial cooperation between the bar, the bench, and the clients is one of the main goals of
legal ethics. There are ethical rules that apply to every interaction between a lawyer and a
client, an opponent, and a witness. The pursuit of a spirit of cordial cooperation between the
bar, the bench, and the clients is one of the fundamental goals of legal ethics. There are
ethical requirements for interactions between the attorney and his client, the opposing party
and the witness under cross-examination, and of course, the attorney and the judge.1

To meet the public's need for legal representation, the state established the legal profession.
As a result, it is a profession rather than a business. As a result, there are three main tenets of
the law that provide insight into the essence of the legal profession:

 The arrangement of its members to enable each to carry out their specific role;
 To uphold the honour of the profession, uphold certain standards at both the
intellectual and ethical levels;
 Financial gains must take second place to the interests of the client.

The cornerstone of government is law. Therefore, a proper code is required to prevent craft,
greed, or other unethical motivations from controlling the judicial system. An advocate owes
a duty to the bar, and a judge owes a duty to the courtroom bench, through the practise of
ethics. It should be noted that litigants or clients who are represented by an advocate in court
do not necessarily owe the same ethical obligations as an advocate or a judge. The Bar and
the Bench also have a responsibility to guard against the client engaging in unethical
behaviour. The committee also noted that in order to advance the fair and impartial
administration of justice, a high standard of legal ethics must be codified. To maintain
membership in a professional organisation, every lawyer must adhere to the legal ethics
guidelines.2

ADVOCATES ACT: CODE & CONDUCT

A noble profession, advocacy. Since it is integral to the administration of justice and the
judiciary, it cannot be compared to any other profession such as trade or business. The two
eyes of "justice" are the bar and the bench. Judges must adhere to judicial ethics and protocol.
There are rules of conduct and manners for advocates. They should be followed in his
profession by every advocate. Another important participant in a court proceeding is an
advocate. The advocate must act wisely while conducting a proceeding. The advocate is
entrusted with a number of duties. The top five roles are listed below:

1
Ipshita Sengupta, Nurturing Caring Lawyers: Rethinking Professional Ethics and Responsibility in India
http://docs.manupatra.in/newsline/articles/Upload/E45CDC05-BF94-46F6-A9A3-81424EE2DABD.pdf
2
UNKNOWN, Indian courts and professional ethics, https://blog.ipleaders.in/code-ethics-conduct-advocates/
  Briefing

 Counselling

 Pleadings, drafting and Conveyancing

 Examination, Cross – examination, chief examination of witness and

 Arguments.

In addition to these duties, an advocate also has to perform other tasks that are essential for
running trials. A lawyer or advocate must act sensibly, legally, and cautiously while
performing these tasks. The behaviour of the advocates is governed by a number of ethics and
manners. The advocates have obligations as a result of these ethics and manners. Etiquette
and ethics refer to morals, morality, and moral philosophy. It represents the beginning of
society. The second stage is etiquette, which establishes the norms of behaviour expected in
polite society. People have had ethical experiences in their lives. Every religion has them
built in. Ethics existed along with human civilization. Every major religion stressed ethics
and morals. Etiquette is only applicable to certain professions. It merely involves the
regulation of ethics. Etiquette is a collection of ethical rules, whereas ethics are simply a
collection of habits. These laws are legally binding. These obligations are a requirement of
every advocate because they are an integral part of professional ethics and etiquette. Any
advocate who disobeys them is deemed to have engaged in professional misconduct and will
be disciplined accordingly.3

As stated above, the important duties that have to be followed by the advocate are:

1. Advocate's Duty to the Court

An advocate is regarded as an officer of the court, a respected citizen, and a

gentleman. He believes that in order to join the bar, he must uphold morality and the
law both in his professional and non-professional capacities. An advocate must firmly
uphold his client's interests while also adhering to ethical and etiquette rules in all
written correspondence. Certain canons of conduct and etiquette are mentioned as
general guidelines in the bar council of India rules and state bar council rules. The Bar

3
Niharika, Conduct/Duties of Advocate, https://www.legalserviceindia.com/legal/article-2374-conduct-duties-
of-advocate.html
 Council of India Rules, Chapter II, Part IV, Section I, explains the requirements for
"Advocate's Duty to the Court."

a. Act in a dignified manner4

An advocate should conduct himself with dignity both when presenting his
case to the court and whenever acting in front of it. He should always act with
respect for himself. However, the advocate always has the right and obligation
to bring a legitimate grievance against a judicial officer to the attention of the
appropriate authorities.
b. Respect the court
An advocate should always treat the court with respect. An advocate must
keep in mind that a free society cannot survive without the dignity and respect
accorded to the judicial office.
c. Not communicate in private
An attorney shouldn't speak to a judge in private about any case that is
currently before them or another judge. An advocate is not permitted to use
coercion, bribery, or other unethical tactics to affect a court's decision in any
case.
d. Refuse to act in an illegal manner towards the opposition
An advocate must refrain from acting improperly or illegally toward the
opposing counsel or the opposing parties. Additionally, he must exert all
reasonable efforts to restrain his client from acting in any way that is illegal,
improper, or unfair toward the court, the opposing counsel, or the opposing
parties.
e. Refuse to represent clients who insist on unfair means
Any client who insists on using unethical or improper tactics will be refused
representation by an advocate. An advocate must disregard his own judgement
in these situations. He must not just follow the client's instructions without
question. He must speak with dignity when communicating with others and
making arguments in court. He must refrain from using fabricated
justifications in pleadings to scandalously harm the parties' reputations. He
must refrain from using improper language when arguing in court.

4
Shanu, Professional Ethics for lawyer, https://www.legalserviceindia.com/legal/article-911-professional-
ethics-for-lawyer.html
 f. Appear in proper dress code
An advocate must always appear in court in the attire required by the Bar
Council of India Rules, and he must always present himself well.
g. Refuse to appear in front of relations
If the sole or any member of the bench is the advocate's parent, grandparent,
son, grandson, uncle, brother, nephew, first cousin, husband, wife, mother,
daughter, sister, aunt, niece, father-in-law, mother-in-law, son-in-law, brother-
in-law, daughter-in-law, or sister-in-law, the advocate should not enter an
appearance, act, plead, or practise in any way before the judicial authority.
h. Not to wear bands or gowns in public places
Except for ceremonial occasions and locations that the Bar Council of India or
the court may specify, an advocate should not wear bands or gowns in public
settings other than courts.
i. Not represent establishments of which he is a member
If he is a member of the establishment's management, an advocate should not
appear before or before any judicial authority, either for or against any
establishment. This rule does not apply to a member who represents the Bar
Council, Incorporated Law Society, or a Bar Association pro bono or in a
"amicus curiae" capacity.
j. Not appear in matters of pecuniary interest
In any case where he has financial interests, an advocate should not act or
argue. He shouldn't, for example, participate in a bankruptcy petition if he is
also the bankrupt's creditor. Additionally, he ought not to agree to a brief from
a business where he serves as a director.
k. Not stand as surety for the client
An advocate should not stand as a surety or certify the soundness of a surety
that his client requires for the purpose of any legal proceedings.5

Under Section 44 of the Advocate's Act of 1961, the Bar Council may review the
decision made by the disciplinary committee. D. Gopalan vs. V.C. Rangadurai, In this
instance, V. C. Rangadurai was a lawyer, Devasenapathy was a 70-year-old man who
was deaf, and Smt. D. Kamalammal was also an elderly woman. They had given

5
Unknown, DIFFERENT DUTIES OF AN ADVOCATE, https://www.writinglaw.com/all-rules-on-advocates-
different-duties/#Fellow
 Rangadurai two promissory notes and had also paid the attorney's fees as requested.
However, the attorney failed to submit the case by the deadline. The restriction was
lifted. After a long time of wandering around the office of the advocate, the old man
came to know that the advocate deceived him by not filing the cases within the time
even after receiving the fees. He filed a complaint before disciplinary committee of
the Tamilnadu state bar council which after enquiry punished the advocate suspending
him for 6 years. On appeal, it was confirmed by the Bar council of India and also by
Supreme Court. Rule 6 of Chapter II of Part- VI of the Bar Council Rules states that
an advocate shall not appear, act, plead or practice before the court if any member is
related to the advocate as father, son, wife etc. the main object is to avoid personal
bias between an advocate and presiding officer related to such advocate. Due to
natural love and affection, the judge may incline towards the advocate, thus to favour
the client of the advocate related to him or her.

In case of Satyendra Nararain Singh and Others vs Ram Nath Singh and Other, wife is
the judge and husband is the advocate. The advocate was ordered by the court not to
appear before his wife, the court's judge. If he shows up in front of the court, where
his wife serves as the presiding officer, it is considered professional misconduct. If he
shows up in front of the wife-judge. The judge has a responsibility to make the
objection. If she doesn't object and accepts his presence, it's considered judicial
misconduct on her part.

The advocate must always be aware of their obligations. The clients appreciate that the
advocate gives them all of his time and attention. The duty-conscious attorney, once his
engagement is finalised, sticks to the preparation of that case on facts and laws with such
tenacity that he makes no effort on his part to win the case of his clients on merits by any
means permitted by law.6

2. Advocate's Duty to the Client7

Chapter – II of Part IV of Bar Council of India Rules (Rule 11 to 33) provides the
provisions relating to advocate's duty to client. A noble and honourable profession in
our society is that of an advocate. A public service, that is. However, it should also be

6
Lectures on Professional Ethics and Accountancy for lawyers and Bench – Bar Rekations – Dr. Rega Surya Rao
7
Niharika, Conduct/Duties of Advocate, https://www.legalserviceindia.com/legal/article-2374-conduct-duties-
of-advocate.html
 remembered that things are not always easy, particularly for newcomers. A lawyer has
several obligations to his clients. In general, clients prefer an aggressive advocate.
They rely heavily on the skill of the lawyer they can easily get in touch with and
explain their problems to. The majority of clients prefer an advocate who gives them
all of his attention and is especially kind to them. Once his engagement is final, the
duty-conscious attorney sticks to the case's factual and legal preparation with such
tenacity that he makes no effort on his part to win the client's case on the merits
through any available legal means. Even if the client is present or not, it is the
lawyer's responsibility to accept the case and begin preparations. Such file preparation
must be done while taking his clients' existing points of view into consideration. The
advocate's obligation is to always put in time, not only for the benefit of his client but
also to satisfy his own sense of obligation that distinguishes him from other members
of his profession. There are two different kinds of relationships between an advocate
and a client which are as follows:

I. Contractual Relationship: In essence, it begins and lasts only as long as the

contract is in effect. The relationship between the lawyer and his client in India is
primarily based on contractual commitments. Depending on his professional track
record and strong belief that he is the best candidate to represent his interests, a
client selects an advocate for his case. The advocate decides whether or not to take
the case after hearing the cause. If he decides to take on the case, he will make a
fee offer to the client. If the client agrees to pay the sum, the advocate takes up the
case. Thus, a matter of contract shall be reached between an advocate and a client.
If a client fails to pay the remuneration, the advocate can sue him or has a right of
lien on the documents of his client.
In Kothi Jairam vs Vishwanath, the Supreme Court has held that an agreement
made by his client to pay his lawyer according to the result of the case is against
public policy. The Supreme Court observes that it is professional misconduct for
an advocate to stipulate for or agree with his client to accept as his fee or
remuneration as share of the property sued or other matter in litigation upon the
successful issue thereof.
II. Fiduciary Relationship: Relationships that are fiduciary are those that never come
to an end. If a client comes to the advocate and shares private information about
his life, that information falls under a fiduciary relationship and the advocate is
obligated to keep it private and not share it with anyone else for the rest of his life.
The parties cannot be changed by an advocate. The same is provided for in Rule
33 of the bar council of India rules. It also pertains to business ethics. It is the duty
of the advocate to give proper advice to his client. Other duties followed under
this category are:
a. Bound to accept briefs
In the courts, tribunals, or before any other authority in which he plans to
practise, an advocate is required to accept any brief. Given his standing at the
Bar and the circumstances of the case, he should set fees that are comparable
to those received by other attorneys in the same situation. His refusal to accept
a specific brief may be justified by exceptional circumstances.
b. Not withdraw from service
Once he has committed to helping a client, an advocate shouldn't typically
stop helping them. He may only withdraw after giving the client a sufficient
amount of notice and a good enough reason. He must return the portion of the
fee that has not yet accrued to the client upon withdrawal.
c. Not appear in matters where he himself is a witness
A lawyer who is also a witness in the case shouldn't accept the brief or show
up. He shouldn't continue to represent the client if he has cause to believe that
he will eventually be called as a witness. Without jeopardising the interests of
his client, he should give up on the case.
d. Full and frank disclosure to the client
An attorney should be completely and frank with his client about his
relationships with the parties and any interests he may have in or regarding the
controversy both at the beginning of the engagement and throughout its
duration, as long as these disclosures are likely to have an impact on the
client's decision to hire him or extend the engagement.
e. Uphold the interest of the client
An advocate's duty is to zealously defend the interests of his client in every
way that is just and right. An advocate must act without thinking about the
negative effects it may have on him or another person. Regardless of his
personal feelings about the accused's guilt, he must defend anyone who has
been accused of a crime. An advocate must always keep in mind that the law
is his true ally and that no man may be punished without sufficient proof.
f. Not conceal information or evidence.

An attorney who represents the prosecution in a criminal trial should conduct

the proceedings so that no innocent people are found guilty. An advocate is
under no obligation to hide any information or evidence that would support the
accused's innocence.
g. Keep the communications he has with the client a secret.
An advocate should under no circumstances, either directly or indirectly,
reveal the communications his client has with him. Additionally, he must keep
his counsel from the proceedings a secret. If it goes against Section 126 of the
Indian Evidence Act of 1872, he must disclose it.
h. An advocate should not be a party to stir up or instigate litigation.
i. An advocate should not act on the instructions of any person other than his
client or the client’s authorised agent.
j. Not charge depending on success of matters.
An advocate shouldn't base his fees on the outcome of the case being taken on.
Additionally, he is not permitted to bill his clients a percentage of the money
or property they will receive if the case is successful.
k. Not getting interest on a claim that can be pursued
An advocate should never exchange shares of actionable claims or consent to
receiving them. Nothing in this rule shall apply to government securities,
including stock, shares, and debentures, or to any instruments that are
currently regarded as negotiable under the law or custom, or to any mercantile
document of title to goods.

l. Not bid or purchase property arising of legal proceeding.

An attorney should under no circumstances bid on or buy any property sold in
a legal proceeding in which he was otherwise professionally involved, whether
it be in his own name or under another person's name, for his own benefit or
the benefit of another person. However, provided the advocate has been
expressly authorised in writing to act on behalf of the client, it does not
prevent an advocate from bidding for or purchasing any property on the
client's behalf.
 m. Not bid or transfer property arising of legal proceeding
An advocate should never, under any circumstances, bid at a court auction or
purchase any property that is the subject of a lawsuit, appeal, or other
proceeding in which he is otherwise professionally involved through sale, gift,
exchange, or any other mode of transfer (either in his own name or in any
other name for his own benefit or for the benefit of any other person).

3. Advocate's Duty to the Opponent Advocate

In the legal profession, an advocate and his adversary are like brothers, but they each
represent various client interests. Clients are not permanent; they arrive with the case
and depart once it is concluded, but attorneys remain in court and frequently interact
with one another there. If two advocates are arguing, they cannot cooperate amicably
or face each other. Their disagreement and resentment ruin the mood. Also impacted
are their customers. If it infiltrates the court, it taints the delivery of justice. In a
courtroom, the judge makes the decisions, not the advocate. The following duties
should be followed by an advocate while dealing with his opponents.

a. Not to negotiate directly with opposing party

Any communication, negotiation, or call for a settlement regarding the subject
of the controversy with a party represented by an advocate must go through
the advocate who is also representing the parties.
b.  Carry out legitimate promises made
An advocate shall do his best to carry out all legitimate promises made to the
opposite party even though not reduced to writing or enforceable under the
rules of the Court.

4. Advocate's Duty to the Cross Examination

Cross-examination of a witness is defined as an examination by an adversarial party

in Section 138 of the Indian Evidence Act of 1872. An advocate has the right to
question the opposing party's witnesses and to cross-examine them. The goal of cross
examination is to reveal the truth if it is carried out skillfully and successfully. When a
fact is mentioned during the examination-in-chief and there isn't a cross-examination
on it, it is inferred that the other party believes the fact to be true. Cross examination
 of witnesses is a procedural matter. Cross examination is mostly done according to the
provisions of the Indian Evidence Act, Civil Procedure Code, Criminal Procedural
Code and other provisions of the law. Besides these procedural matters; legal ethics
are also concerned with what the advocate should do or should not do, while he is
performing cross – examination. It has to be done with an objective to obtain the real
facts from the witnesses and the opposite party. While cross examining and advocate
must not offend the religious or personal feelings of the opposite party. He should not
mis-utilise the opportunity of cross examining. He has no right to disgrace and bully a
witness by putting offensive questions. Questions which affect the integrity of a
witness by making aggressive comments on his character, but are not otherwise
relevant to the actual enquiry, ought not to be asked unless the cross – examiner has
reasonable grounds for thinking that the imputation conveyed by the question is true.

5. Advocate's Duty to the Colleagues

Section IV of Chapter II of Part VI of Br Council of India lays down the provisions

about the ‘Advocate's duty to the colleagues. Rules 36 to 39 provides for advocate's
duty to the court. An Advocate cannot appear in a case where a memo is filed by the
name of the other advocate. To do so he has to first take consent from the advocate
and in case if such consent is not given then he has to apply to the court stating the
reasons as to why he need consent. Every advocate plays a crucial role in the justice
system. They work for the court. They collect payment for the services provided.
Their service is essentially a public service, and each advocate's office is referred to as
a public office, so the fee is only a secondary consideration. Achieving justice for
people's welfare should be the advocate's top priority. There shouldn't be any
unhealthy rivalry between the co-workers. All of them should respect one another
because they are all equal. An advocate shouldn't promote themselves.

An arrogant attitude of an advocate towards his colleagues is always observed by the

clients and public present in the court. This kind of behaviour affects his profession,
bar and bench relations, court proceedings and finally the whole administration of
justice.

CONCLUSION
 The obligations that the advocate must uphold are known as professional ethics. A
lawyer who transgresses these obligations is deemed to have done so in violation of
the rules of professional ethics. Because ethics and morals are crucial for each and
every member of society, everyone in the profession of advocacy as well as all other
professions are required to uphold these moral obligations. The main goal of legal
ethics is to uphold the honour and dignity of the legal profession and to foster a
cordial environment in the courtroom free from bias and arguments between
attorneys, which ultimately harms relations between the bar and the bench and has an
impact on the administration of justice. For the advocates, cooperation and fair play
are essential. An advocate is thought of as performing public service, so having this
mindset helps them gain more clients and be accountable to society. Every person has
a code of conduct, and advocates are no different. An advocate has obligations to
himself, his clients, his adversaries, his colleagues, the court, and others. It is his
responsibility to uphold the court's decorum and treat his adversaries and colleagues
with respect. He must always act in his clients' best interests and must never act in a
way that violates their faith in him. All of these obligations, morals, and obligations
help an advocate advance in his or her career and become a successful lawyer.

Bibliography

i. Primary Sources
Statues:
 Advocate's Act, 1961
 Bar Council of India Rules,

Books:

 Legal Ethics (Accountability for lawyers and Bench – Bar Relations) – Dr.
Kailash Rai
 Lectures on Professional Ethics and Accountancy for lawyers and Bench – Bar
Rekations – Dr. Rega Surya Rao

Cases

 D. Gopalan vs. V.C. Rangadurai..............................................................................6

 Kothi Jairam vs Vishwanath....................................................................................8
  Satyendra Nararain Singh and Others vs Ram Nath Singh and Other.....................7

ii. Secondary sources

Articles
 Ipshita Sengupta, Nurturing Caring Lawyers: Rethinking Professional Ethics and
Responsibility in India
http://docs.manupatra.in/newsline/articles/Upload/E45CDC05-BF94-46F6-A9A3-
81424EE2DABD.pdf\
 Unknown, DIFFERENT DUTIES OF AN ADVOCATE,
https://www.writinglaw.com/all-rules-on-advocates-different-duties/#Fellow
 Niharika, Conduct/Duties of Advocate,
https://www.legalserviceindia.com/legal/article-2374-conduct-duties-of-
advocate.html
 Shanu, Professional Ethics for lawyer,
https://www.legalserviceindia.com/legal/article-911-professional-ethics-for-
lawyer.html
 Prachi Darji, Code of Conduct for lawyers in India,
https://www.myadvo.in/blog/code-of-conduct-for-lawyers-in-india/
 UNKNOWN, Indian courts and professional ethics, https://blog.ipleaders.in/code-
ethics-conduct-advocates/
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 https://www.myadvo.in/blog/code-of-conduct-for-lawyers-in-india/
 https://www.ccbe.eu/fileadmin/speciality_distribution/public/documents/
National_Regulations/DEON_National_CoC/
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 https://www.legalserviceindia.com/legal/article-911-professional-ethics-for-
lawyer.html