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PROFESSIONAL ETHICS
QUESTION BANK
1. What do you understand by “Professional Ethics”? Explain its importance to the legal profession.
2. What are the norms of professional ethics? Explain with special reference to-
a) Advocate and profession, and
b) Advocate and witness.
3. Explain various duties of an advocate to the client.
4. Discuss briefly- “Standards of professional conduct and Etiquettes”.
5. Discuss the duties of an advocate towards court and opponent lawyer.
6. Explain in detail the meaning, nature and need of professional ethics.
7. “Law being fraternity, the profession is entitled to loyal support of its members in the maintenance of certain high traditions”. Elucidate this statement evaluate the role of a lawyers.
8. Can an advocate refuse a brief, if a client comes with proper instructions and is prepared to pay fair and proper fees?
9. What the counsel owes to his client?
10. State duties of lawyers to his opponents and colleagues.
11. What are the counsel owes to the Court.
12. Explain in detail Bar Council of India Rules on standards of professional conduct and Etiquettes.
13. Discuss the duties of Advocate’s towards the court.
Short Notes
1. Nature of legal profession.
2. Lawyers’ duty to public.
3. Need of professional ethics.
4. Duties towards opponent lawyer.
5. Duties towards client.
6. Advocate’s duty to his colleagues.
7. Advocate’s duty to opponent.
8. Advocates' right to practice.
9. Refusal to accept brief.
10. Lawyers’ duty towards the court.
SYNOPSIS
I. Introduction to Professional Ethics in Law
II. Standards of Professional Conduct and Etiquette
(A) Advocate’s Duties Towards the Court
1. Act in a Dignified Manner
2. Respect the Court
3. Not to Communicate in Private
4. Refuse to Act in an Illegal Manner Towards the Opposition
5. Refuse to Represent Clients Who Insist on Unfair Means
6. Appear in Proper Dress Code
7. Refuse to Appear in Front of Relations
8. Not to Wear Bands or Gowns in Public Places
9. Not to Represent Establishments of Which He is a Member
10. Not to Appear in Matters of Pecuniary Interest
11. Not to Stand as Surety for a Client
(B) Advocate’s Duties Towards the Client
1. Bound to Accept Briefs
2. Not to Withdraw from Service
3. Not to Appear in Matters Where He Himself is a Witness
4. Full and Frank Disclosure to the Client
5. Uphold the Interest of the Client
6. Not to Suppress Material or Evidence
7. Not to Disclose Communications Between the Client and Himself
8. No Stirring Up Litigation
9. Act Only on Instructions of the Client
10. Not to Charge Depending on the Success of Matters
11. Not to Receive Interest in Actionable Claims
12. Not to Bid or Purchase Property Arising Out of Legal Proceedings
13. Not to Bid or Transfer Property Arising from Legal Proceedings
14. Not to Adjust Fees Against Personal Liability
15. No Misuse of Confidence
16. To Keep Proper Accounts
17. Not to Divert Money from Accounts
18. Intimate the Client on Amounts
19. Balance Amount to be Returned to the Client
20. Provide a Copy of Accounts
21. No Conversion of Funds into Loans
22. Not to Lend Money to His Client
23. Not to Appear for Opposite Parties
(C) Advocate’s Duties Towards the Opponent
1. Not to Negotiate Directly with the Opposite Party
2. To Carry Out Legitimate Promises Made
(D) Advocate’s Duties Towards Colleagues
1. Not to Advertise or Solicit Work
2. Reasonable Size of Sign-Board and Name-Plate
3. Not to Promote Unauthorized Practice of Law
4. Not to Accept Fee Less Than the Taxable Limit
5. Seek Consent of Fellow Advocate to Appear
II. Conclusion
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I. Introduction to Professional Ethics in Law
The legal profession occupies a unique position of trust, majesty, and responsibility in Indian society. It is universally recognized that advocates are not mere mouthpieces of their clients but are, first and foremost, officers of the court. Consequently, members of the Bar are required to adhere to the highest standards of integrity, honesty, and professionalism. The Advocates Act, 1961, which structurally governs the legal profession in India, provides a comprehensive statutory framework for the regulation, enrolment, and conduct of advocates. One of the primary objectives of this Act is to uphold the dignity of the legal profession by ensuring that advocates maintain strict professional ethics throughout their practice.
Professional ethics refer to the mandatory code of conduct and moral obligations that advocates must scrupulously observe in their dealings with clients, courts, opponents, and fellow professionals. These ethical standards are not merely directory guidelines or ornamental homilies; they are legally enforceable norms under Chapter II of Part VI of the Bar Council of India Rules, framed under the explicit statutory authority of the Advocates Act, 1961. These rules encapsulate an advocate's multi-dimensional duties towards the client, the court, opponents, and colleagues. They place profound emphasis on foundational values such as confidentiality, absolute loyalty, unyielding honesty, and the scrupulous avoidance of conflicts of interest.
Through these stringent ethical obligations, the Act and the Bar Council of India aim to maintain public confidence in the administration of justice. In the landmark case of E.S. Reddi v. Chief Secretary, Government of A.P. & Ors., (1987) 3 SCC 258, the Supreme Court observed that the bar is an extension of the system of justice, and an advocate’s duty to the court takes precedence over their duty to the client. By ensuring that advocates serve as responsible officers of the court while zealously representing their clients within the bounds of law and justice, these ethical standards preserve the rule of law in India.
II. Standards of Professional Conduct and Etiquette
Section 49(1)(c) of the Advocates Act, 1961 empowers the Bar Council of India (BCI) to frame statutory rules prescribing the standards of professional conduct and etiquette to be observed by advocates. Exercising this statutory power, the BCI has codified comprehensive rules under Part VI, Chapter II of the Bar Council of India Rules. These rules delineate the standards of professional ethics and etiquette across four distinct categories.
(A) Advocate’s Duties Towards the Court
Section I of Chapter II of the Bar Council of India Rules explicitly mandates the advocate’s duties towards the Court. This section contains specific, enforceable rules designed to preserve the majesty of the judiciary.
1. Act in a Dignified Manner
An advocate has an unyielding ethical duty to conduct themselves in a dignified manner both inside and outside the courtroom, thereby upholding the honor, prestige, and integrity of the legal profession. This requires maintaining respectful behavior towards the presiding judge, clients, fellow advocates, and litigants, while strictly avoiding any conduct that might lower the esteem of the profession. An advocate must completely refrain from using abusive, derogatory, or intemperate language, showing disrespect, or engaging in any activity that undermines the authority of the judiciary. By conducting themselves with dignity, advocates ensure the proper administration of justice and reinforce public confidence in the legal system. However, the rule explicitly provides that whenever there is a proper ground for a serious and legitimate complaint against a judicial officer, the advocate has not only the right but the duty to submit such a grievance to the proper authorities rather than resorting to courtroom disruptions.
2. Respect the Court
An advocate is under a strict ethical obligation to show the utmost respect to the court, recognizing the institution as the guardian of justice and the rule of law. This duty involves maintaining strict courtroom decorum, addressing the bench with civility and courtesy, meticulously following courtroom procedures, and avoiding any act, gesture, or expression that may scandalize or undermine the authority and dignity of the judiciary. An advocate must present arguments with intellectual honesty and civility, accept adverse court orders with professional grace, and never engage in behavior that brings the court into disrepute. Upholding respect for the court is essential not only for the seamless functioning of the legal process but also for preserving the public’s faith in the judicial system. In Re: Sanjiv Datta, (1995) 3 SCC 619, The Supreme Court held that the legal profession is a noble calling, and if its members do not behave with dignity and respect toward the court, the entire justice delivery system will collapse.
3. Not to Communicate in Private
An advocate has a strict ethical duty never to communicate in private with a judge concerning any pending matter or case. Such ex-parte or private communications, whether oral or written, completely compromise the fairness, neutrality, and impartiality of judicial proceedings. Private communication creates an immediate perception of undue influence, bias, or collusion, thereby severely eroding public confidence in the justice delivery system. All communications regarding a case must take place openly, transparently, and on the record in the courtroom, strictly in the presence of the opposing party or their authorized counsel. This ensures absolute transparency, guarantees an equal opportunity to be heard, and adheres to the principles of natural justice. Furthermore, an advocate must never attempt to influence the decision of a court in any matter using illegal or improper means, such as coercion, intimidation, personal relations, or bribery.
4. Refuse to Act in an Illegal Manner Towards the Opposition
An advocate must firmly refuse to act in an illegal, unfair, or improper manner towards the opposing counsel or the opposite parties. The duty of an advocate extends beyond their personal conduct; they must use their best efforts to restrain and prevent their own client from acting in any illegal, fraudulent, or improper manner. An advocate must actively dissuade their client from using unfair practices in relation to the judiciary, the opposite counsel, or the opposite parties. If a client persists in such wrongful conduct, the advocate must firmly refuse to participate in or facilitate it.
5. Refuse to Represent Clients Who Insist on Unfair Means
An advocate shall flatly refuse to represent any client who insists on employing unfair, fraudulent, or improper means. An advocate must independently exercise their own professional judgment in all matters and must not blindly or slavishly follow the instructions of the client. An advocate must remain dignified, measured, and professional in the use of language in all correspondence as well as during oral arguments in court. They shall not scandalously or maliciously damage the reputation of the opposing parties or witnesses on false or unverified grounds during pleadings. Additionally, an advocate must not use imperious, threatening, or disrespectful language during arguments before the bench.
6. Appear in Proper Dress Code
An advocate must appear in court at all times only in the distinct dress code prescribed under the Bar Council of India Rules. The attire must always be clean, presentable, and professional. The uniform is not merely a formality but a symbol of equality, discipline, and seriousness of purpose within the judicial ecosystem.
7. Refuse to Appear in Front of Relations
An advocate must not enter an appearance, act, plead, or practice in any way before a judicial, quasi-judicial, or administrative authority if the sole member or any member of the bench is related to the advocate. Prohibited relations include a father, grandfather, 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. This rule is rooted in the foundational principle of natural justice that justice must not only be done but must manifestly be seen to be done, ensuring there is no reasonable apprehension of bias.
8. Not to Wear Bands or Gowns in Public Places
An advocate is prohibited from wearing their professional bands or gowns in public places other than the court premises, except on such distinct ceremonial occasions and at such specific places as the Bar Council of India or the court may expressly prescribe. The uniform must be reserved strictly for professional use to maintain its sanctity.
9. Not to Represent Establishments of Which He is a Member
An advocate must not appear in or before any judicial or quasi-judicial authority for or against any establishment, institution, or company if they are a member of the executive management or board of directors of that specific establishment. This rule ensures that the advocate does not suffer from a conflict of interest or compromise their professional independence. However, this restriction does not apply to a member appearing as an amicus curiae (friend of the court), or appearing without a fee on behalf of the Bar Council, an Incorporated Law Society, or a Bar Association.
10. Not to Appear in Matters of Pecuniary Interest
An advocate has an absolute ethical duty to avoid appearing in any legal matter where they possess a direct or indirect pecuniary or financial interest. Such an interest is highly likely to affect their independent professional judgment, cloud their objectivity, and create a severe conflict of interest. This duty ensures that the advocate’s advice and representation remain entirely free from the undue influence of personal financial gain, thereby maintaining the integrity, objectivity, and impartiality of the legal process. For instance, an advocate must not act in a bankruptcy petition when they themselves are a creditor of the bankrupt individual or estate. Similarly, an advocate must never accept a brief from a company in which they serve as a director.
11. Not to Stand as Surety for a Client
An advocate must not stand as a surety or certify the financial soundness of a surety that their client is required to provide for the purpose of any legal proceedings. Standing as a surety mixes the advocate’s personal liability with their professional duty, which compromises their objectivity and independence as an officer of the court.
(B) Advocate’s Duties Towards the Client
Section II of Chapter II of the Bar Council of India Rules meticulously delineates the advocate’s duties to the client. This section contains 33 rules designed to protect the client’s interests while maintaining the advocate’s professional independence.
1. Bound to Accept Briefs
An advocate is generally bound to accept any brief in the courts, tribunals, or before any other authority in or before which they formally propose to practice. The fees levied by the advocate should be fair and at par with the fees collected by fellow advocates of comparable standing at the Bar, keeping in mind the complexity and nature of the case. While an advocate is bound by this "cab-rank rule" to ensure access to justice for all, special and exceptional circumstances may justify their refusal to accept a particular brief.
2. Not to Withdraw from Service
Once an advocate has agreed to serve a client, they should not ordinarily withdraw from the engagement. An advocate can withdraw from a case midway only if there is a sufficient, justifiable cause and upon giving reasonable and sufficient prior written notice to the client. Upon such valid withdrawal, the advocate is legally and ethically bound to refund that portion of the fee which has not accrued or earned by them back to the client.
3. Not to Appear in Matters Where He Himself is a Witness
An advocate must not accept a brief or appear in a case in which they have reason to believe that they themselves will be a material witness. If, during the course of ongoing litigation, it becomes apparent that the advocate will be called as a witness in the due course of events, they must not continue to appear for the client. The advocate must retire from the case immediately, ensuring that their withdrawal is executed smoothly without jeopardizing the client’s legal interests. This prevents the overlapping of the distinct roles of an objective advocate and a factual witness.
4. Full and Frank Disclosure to the Client
An advocate must, at the commencement of their engagement and throughout its continuance, make a full, frank, and honest disclosure to the client regarding any connection they may have with the opposing parties. They must disclose any prior or current interest in or about the controversy that is likely to affect the client’s judgment in either engaging the advocate or continuing the professional relationship.
5. Uphold the Interest of the Client
It is the paramount duty of an advocate to fearlessly, zealously, and competently uphold their client’s interests by all fair, honest, and honorable means. An advocate must discharge this duty without any regard to unpleasant consequences to themselves or to any other person. In criminal trials, an advocate must defend a person accused of a crime regardless of their personal opinion as to the guilt or innocence of the accused. The advocate must remember that their ultimate loyalty is to the law and the administration of justice, ensuring that no person is convicted except by due process of law.
6. Not to Suppress Material or Evidence
An advocate appearing for the prosecution in a criminal trial must conduct the proceedings with absolute fairness, ensuring that the primary objective is the discovery of truth and justice, rather than merely securing a conviction. The prosecution must by no means suppress, hide, or withhold any material, document, or evidence that could tend to prove the innocence of the accused.
7. Not to Disclose Communications Between the Client and Himself
An advocate must not by any means, directly or indirectly, disclose the confidential communications passed between themselves and their client, nor shall they disclose the legal advice given by them during the course of the professional relationship. This rule embodies the principle of attorney-client privilege. However, an advocate is legally permitted and liable to disclose such communications if they fall within the exceptions provided under the contemporary statutory framework of Section 126 of the Bharatiya Sakshya Adhiniyam, 2023 (which replaced the old Indian Evidence Act, 1872), such as when the communication is made in furtherance of any illegal or criminal purpose.
8. No Stirring Up Litigation
An advocate must never be a party to stirring up, instigating, or manufacturing litigation. They must not actively foment disputes or encourage unnecessary or malicious legal actions merely for personal or professional gain.
9. Act Only on Instructions of the Client
An advocate must not act, plead, or file proceedings based on the instructions of any person other than their direct client or the client’s formally authorized agent. This ensures that the advocate maintains a direct fiduciary relationship with the actual party to the dispute.
10. Not to Charge Depending on the Success of Matters
An advocate must not charge for their professional services based on a contingency fee model, meaning they cannot make their fees dependent on the successful outcome of the litigation. Furthermore, an advocate shall not enter into agreements to charge for their services as a percentage of the amount, damages, or property recovered after the success of the matter. IN C. Manohar v. B.R. Ratnam, 2004 (2) CTC 4950, it was reaffirmed that demanding a share in the fruits of litigation amounts to gross professional misconduct and is completely void as against public policy under Indian law.
11. Not to Receive Interest in Actionable Claims
An advocate must not trade in, purchase, or agree to receive any share or interest in an actionable claim that is the subject matter of litigation. This rule is designed to prevent speculative commercialization of lawsuits. However, nothing in this rule applies to regular investments in government securities, stocks, shares, and debentures, or to mercantile documents of title to goods.
12. Not to Bid or Purchase Property Arising Out of Legal Proceedings
An advocate must not, by any means, bid for or purchase, either in their own name or through an alias or nominee, for their own benefit or for the benefit of any other person, any property sold in an auction or execution arising out of a legal proceeding in which they were professionally engaged. However, this does not prevent an advocate from bidding for or purchasing property strictly on behalf of their client, provided the advocate has been expressly authorized in writing by the client to do so.
13. Not to Bid or Transfer Property Arising from Legal Proceedings
An advocate must not, by way of sale, gift, exchange, or any other mode of transfer, acquire or bid for (either in their own name or in another's name for their personal benefit) any property which is the active subject matter of any suit, appeal, or other legal proceedings in which they are professionally engaged.
14. Not to Adjust Fees Against Personal Liability
An advocate must not adjust the professional fee payable to them by their client against any separate, personal liability owed by the advocate to the client. The fee must be treated strictly within the professional domain, and personal debts or liabilities that do not arise during the course of employment as an advocate cannot be set off against it.
15. No Misuse of Confidence
An advocate must never misuse, abuse, or take unfair advantage of the deep confidence and trust reposed in them by their client. A breach of this fiduciary trust constitutes a severe form of professional misconduct.
16. To Keep Proper Accounts
An advocate must scrupulously maintain accurate, clear, and up-to-date accounts of all the client’s monies entrusted to them. The accounts must clearly reflect the amounts received from the client or on their behalf, along with a detailed breakdown of all expenses incurred for the litigation, deductions made on account of professional fees, along with respective dates and necessary particulars.
17. Not to Divert Money from Accounts
During any proceeding, an advocate must clearly separate and mention in their accounts whether the money received from the client is earmarked for professional fees or for litigation expenses. The advocate is strictly prohibited from diverting any part of the funds received specifically for court expenses towards their professional fees without explicit, written instructions from the client.
18. Intimate the Client on Amounts
Where any sum of money is received by the advocate from the court or any opposite party on behalf of their client, the advocate must, without any delay, formally inform and intimate the client regarding the fact of such financial receipt.
19. Balance Amount to be Returned to the Client
Upon the formal termination of the legal proceedings, the advocate is at liberty to adjust any outstanding, legitimate professional fees due to them from the client’s money held in their account. However, any balance amount left after the deduction of the proper fees and authorized expenses must be promptly returned to the client.
20. Provide a Copy of Accounts
An advocate is under an obligation to provide the client with a clear copy of the client’s ledger and account maintained by them upon demand, provided that the necessary, reasonable copying charges are paid by the client.
21. No Conversion of Funds into Loans
An advocate shall not enter into any financial arrangements or adjustments whereby the client’s funds remaining in their hands are converted into personal loans to the advocate.
22. Not to Lend Money to His Client
An advocate shall not lend money to their client for the purpose of initiating or carrying on any action or legal proceedings in which the advocate is professionally engaged. However, an advocate cannot be held guilty of a breach of this rule if, during a pending suit, the advocate feels compelled by a strict rule or emergency order of the court to make a necessary progress payment on behalf of the client to prevent the dismissal of the suit, provided there was no prior commercial arrangement with the client regarding the same.
23. Not to Appear for Opposite Parties
An advocate who has formally advised a party, drawn pleadings, or acted for a client in connection with the institution of a suit, appeal, or other matter shall not under any circumstances act, appear, or plead for the opposite party in the same or substantially connected matter. This rule protects against the betrayal of client confidentiality and conflict of interest.
(C) Advocate’s Duties Towards the Opponent
Section III of Chapter II of the Bar Council of India Rules outlines the advocate’s duties to the opponent, ensuring fairness and professional courtesy during adversarial litigation.
1. Not to Negotiate Directly with the Opposite Party
An advocate shall not in any way communicate, negotiate, or call for a settlement upon the subject matter of a controversy directly with any opposite party who is formally represented by an advocate. All such communications, negotiations, or settlements must be conducted exclusively through the advocate representing the opposite party.
2. To Carry Out Legitimate Promises Made
An advocate must do their absolute best to carry out all legitimate, professional promises and assurances made to the opposite party or their counsel, even if such promises have not been formally reduced to writing or are not strictly enforceable under the technical rules of the Court.
(D) Advocate’s Duties Towards Colleagues
Section IV of Chapter II of the Bar Council of India Rules governs the professional relationship between advocates, promoting mutual respect, collegiality, and fair competition.
1. Not to Advertise or Solicit Work
An advocate is strictly prohibited from soliciting work or advertising their professional services in any manner, direct or indirect. They shall not promote themselves or their practice through circulars, advertisements, touts, personal communications, or media interviews. They are forbidden from inspiring newspaper comments or producing their photographs for publication in connection with active cases in which they have been engaged or concerned. This rule preserves the legal profession as a noble public service rather than a commercial trade. In Bar Council of Maharashtra v. M.V. Dabholkar & Others, (1976) 2 SCC 291, The Supreme Court held that commercial solicitation and advertisement by advocates constitute gross professional misconduct, as it degrades the dignity of the profession.
2. Reasonable Size of Sign-Board and Name-Plate
An advocate’s sign-board or name-plate must be of a reasonable and modest size. The sign-board, name-plate, or professional stationery must not indicate or boast that the advocate is or has been the President or Member of a Bar Council or any Association. It must not state that they have been associated with any specific organization, person, or high-profile cause, nor can it claim that the advocate specializes in any particular type of legal work, or has previously served as a Judge or an Advocate General.
3. Not to Promote Unauthorized Practice of Law
An advocate must not permit their professional name, services, or office to be used by un-enrolled persons to promote, start, or facilitate any unauthorized practice of law.
4. Not to Accept Fee Less Than the Taxable Limit
An advocate shall not accept a professional fee that is less than the fee which can be taxed under the rules of the court when the client is fully solvent and able to pay more. This prevents the unfair practice of undercutting fees to inappropriately attract clients.
5. Seek Consent of Fellow Advocate to Appear
An advocate must not enter an appearance or plead in any matter where another advocate has already filed a Vakalatnama or memo for the same party. However, the new advocate may do so after obtaining the explicit, written consent of the previously engaged advocate. If such consent cannot be obtained, the new advocate must file a formal application before the court explaining the specific reasons why consent could not be secured. They shall appear and plead in the matter only after obtaining explicit permission from the Court.
Conclusion
By meticulously adhering to the aforementioned statutory duties and ethical principles, an advocate not only upholds the majestic dignity and honor of the legal profession but also ensures the seamless delivery of justice. Professional ethics are the lifeblood of the Indian legal framework. As officers of the court, advocates bear the dual responsibility of fearlessly protecting the rights of their clients while remaining unswervingly loyal to the law, thereby rendering distinguished service for the ultimate welfare of society.
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