“In law, a man is guilty when he violates the rights of others. In ethics, he is guilty if he only thinks of doing so.”Immanuel Kant
An advocate is an officer of the court and an important part of the justice delivery system. Therefore, by being so, he must conduct himself in a way that is befitting of his profession. The legal profession is one of the noblest professions in the world. Hence, this vests inherent accountability on practising advocates to be ethical in their dealings. But what is ethics?
Ethics is a set of ‘dharmic’ values that inherently lingers in every human life. It refers to a sense of justice and morality, and the ability to distinguish between right and wrong. Truly, to be ethical in one’s dealings implies to be virtuous.
The legal profession also has principles of conduct governing it and its practitioners. Additionally, a code of conduct would help maintain the dignity of the profession, whilst keeping the professional grounded.
An advocate may come across certain unforeseen circumstances while discharging his duties. During such tense moments, a legal professional must reach into his conscience and find the touchstone to guide his decisions. To do that, however, he must not only understand his relationship with the law but also its other elements. These would include the Court, client, opponent, and colleagues.
Advocates enjoy certain privileges under the law, with the foremost being that only they are entitled to practise the law. This exclusivity enjoyed by advocates brings with it added responsibility. Additionally, it means that any minor violations of standards of morality or justice can damage the integrity of the profession.
Legal Ethics in Law Practice
An advocate is an officer of the Court and is therefore expected to act appropriately. Part VI of the Bar Council of India Rules (the Rules) contain the “Rules governing Advocates”. Of this, Chapter II prescribes the standards of etiquette and professional conduct which must always be upheld by the advocates. Its Preamble clarifies that the specific mention of any rule in it does not preclude other unnamed rules of conduct. Let us see what these canons of conduct and etiquette are:
Conduct Towards the Court
- An advocate must always conduct himself with dignity and self-respect and approach the Court with a respectful attitude.
- It is his right and duty to submit his grievances against any Judicial Officer before the correct forum.
- He must not try to use unfair and illegal means to influence the Court’s decision/s.
- He must ensure his client behaves with restraint and must refuse to represent a boisterous and ill-mannered client. An advocate must not function as a meagre mouth-piece for the client, but as a sensible orator with good judgment.
- No advocate should enter appearance in improper uniform and must respect the sanctity of the dresses and robes. Additionally, he shall wear the gowns or bands in only such places as prescribed by the appropriate authorities. Wearing the uniform in public places such as restaurants, shopping malls, or movie theatres is not appropriate.
- Furthermore, an advocate should plead or act in any matter in which he is fiduciarily or pecuniarily invested.
Conduct Towards the Client
- The advocate should not abuse or take advantage of the belief and confidence reposed in him by the client.
- An advocate must accept briefs for appearing in forums before which he practices unless specific circumstances justify non-acceptance. Additionally, the advocate must charge a fee, consistent with his standing at the Bar.
- Furthermore, if an advocate simply must return a case-brief, then he should also return the part of the fee not earned.
- Moreover, he must be candid about every material fact which could affect his engagement as the client’s counsel. Besides, he must not let his personal bias cloud his honourable and fearless efforts to uphold the client’s interests.
- Furthermore, the advocate must only follow the instructions of the client or his duly authorised agent.
- Legal ethics prohibits the advocate from representing conflicting interests of the client. For instance, by advising the opposition/s in the same or connected matter, or by drafting, or settling the opposition’s documents.
- Every advocate should maintain a true and fair picture of the client’s account.
Conduct Towards Opponent/s
- Most importantly, an advocate must always communicate with the advocate of the opposition party, and not the opposition party itself.
- Secondly, the advocate shall try to honour every legitimate promise made to the opposite party.
Conduct Towards Colleague/s
- The law proscribes soliciting for work or direct or indirect advertisement of the advocate in connection with his cases.
- Furthermore, the advocate should disallow the usage of his name in aid of unlawful services.
- Additionally, if the client is financially sound, the advocate should charge the complete fee taxable under the Rules.
- Moreover, an advocate should only appear if permitted by the advocate in whose name the vakalatnama or memo originally is.
Other Principles of Conduct
Some of the other duties of the advocate are to:
- Impart training to trainee advocates, in order the further the legal knowledge, without charging any fee or premium.
- Provide free legal aid to the indigent and oppressed.
- Not engage in full-time employment during the time that he continues his law practice.
- Additionally, Section 35 of the Advocates Act, 1961 proscribes ‘misconduct’ of advocates. The Disciplinary Committee of the State Bar Council may reprimand, suspend, or remove the advocate if he is found guilty.
What Are the Seven Lamps of Advocacy?
Advocacy is more than just a profession—it is a calling. It is an indispensable part of the justice system for any part of the world. Consequently, it makes perfect sense for the practitioners of this noble profession to imbibe certain qualities. These principles of conduct, Justice Abbott Parry revealed in his book- ‘Seven Lamps of Advocacy’, were the elements that illuminated advocacy.
Every problem has two sides to its solution, and good judgment would help determine the right thing to do. When a situation calls for tough choices, a legal practitioner must be able to take heed of his better judgment. Often, it is ‘sound judgment’ that makes all the difference regarding legal ethics in law practice.
An advocate is expected to serve with utmost diligence. He must rise above lies, deceit or trickery, and be candid with his client. Additionally, he should be honourable towards the Court, colleagues, and the opposition. Lying under oath would attract the offences of perjury, and contempt of court.
Just as Rome was not built in a day, similarly, a diligent advocate is not created in a day. A good advocate is the end-product of hard-work, smart-work, and perseverance.
It requires an immense amount of strength to survive in a profession overrun with intense competition and sometimes, unnecessary politicism. Furthermore, an advocate must be able to undertake the pressures of research and drafting, perhaps for multiple clients, often in quick succession.
The ability to face the pressures of the profession is crucial for the legal practitioner. Courage entails rising to the challenges and being true to oneself. It allows one to do what is right, and not just what is convenient. The legal practitioner must be confident and fearless while arguing his client’s case.
People consider advocates to be champions of the spoken word. A good advocate will be able to conjure feelings of apathy from the Bar and Bench alike. Furthermore, the speech of the advocate must be measured and reserved. Flowery language should be avoided.
Presence of mind is important to counter the arguments of the opposition counsel, and tackle questions posed by the Bench. Sometimes, a well-placed humorous quip or intelligent statement can help ease the tension in the court-room.
There should be a feeling of brotherhood within the Bar. An advocate should share a mutual respect with his brothers and sisters at the Bar. Advocates should not let the fact that they are opposing counsels undermine their friendship away from the Bench.
Justice KV Krishnaswamy Iyer added the element of Tact to the Seven Lamps. Tact is similar to the element of Wit and refers to being able to think on one’s feet. There may often be disagreements, but the advocate must be able to skilfully advance his opinions and not offend anyone.
Misconduct is the undoing of legal ethics, and it has only been defined by way of judicial pronouncements. It includes inter alia, going on strikes, breaking the client’s trust, citing overruled judicial decisions.
Good judgment can often help distinguish between what is right and what is convenient. Nurturing the seven lamps of advocacy will assist the legal practitioner in fulfilling the ideals of legal ethics.