Law Student in Action: PROFESSIONAL ETHICS AND ETIQUETTE http://lawsofland.blogspot.com/2017/09/professional-ethics-and-etiquette...

இந்தப் பக்கத்ைத இதில் காண்க: தமிழ் ெமாழிெபய ஆங்கில

These are the materials and observations available to a law student. The
proofread. The readers are advised to compare the materials with origin
are anticipated.

Sunday, September 10, 2017

PROFESSIONAL ETHICS AND ETIQUETTE

Sasi K.G.
01. Introduction
Professional Ethics of an advocate is legal ethics. Legal Ethics is that bran
moral science which deals with the duties which a member of the
profession owes to the public, the Court, to his professional brethren and t
clients. Ethics is a study of the meaning and application of judgments of
bad, right, wrong, etc. and every evaluation of law involves an ethical Judgm
Etiquette is a word of French origin which means a code of behavior
delineates expectations for social behavior according to contempo
conventional norms within a society, social class, or group. Thus profess
ethics and etiquette of advocates cover the moral, legal and behav
standards of an advocate expected by the Court, Governments, Client and
society as a whole. Among the above the Seven lamps of advocacy, Panchs
of the Bar, Ten Commandments of Advocates etc form part of Moral Standa

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Conduct and Etiquette form Legal and Court Room Etiquettes form Behav
Standards.
02. Seven Lamps of Advocacy
Justice ‘Abbot Parry’ qualifies the following qualities as “Seven Lamp
Advocacy.”
1. Honesty: An advocate’s thoughts words and deeds should have sincere
relation to each other with genuineness. An Advocate should be depend
and reliable to everyone who seeks his advice and services. The uprightn
integrity and honesty of the Advocate will increase his reputations and respe
the society.
2. Courage: An Advocate should fearlessly uphold the interest of his client b
fair means without fear of any unpleasant consequences to himself or any o
person. It is the knowledge and the skill of the Advocate that gives him
necessary courage and confidence to present the case fearlessly and to up
the interest of the client.
3. Industry: Hard works is inevitable for an Advocate. His knowledge of
should be up to date and conversant with current law in force. If one ignore
law, the law will also ignore him.
4. Wit: Constant clash between Judges and Advocates is common. Anxiety
favourable verdict on the part of the lawyers; and perpetual worry for the pu
of the truth on the part of the judges generate strain and tension. Occasiona
and humour, or provoking a smile or laughter will help them to ease the tens
5. Eloquence: Eloquence means the fluency, force and style of using
language. Strong vocabulary is one of the powerful weapon which an Advo
should possess. Words must be employed with eloquence. The ar
persuasive and impressive speaking will give the desired result in his favour
6. Judgement : Judgment means the ability to come to a sensible conclu
and make wise decisions at the relevant time in the proper way. This qual
necessary from the beginning of filing the case till its final disposal. An Advo
must always anticipate all the possible moves of the other side and
develop the necessary presence of mind, alertness and tact to cope with
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7. Fellowship: In legal profession, one Advocate fights with another Advo

for justice before the learned judge. There may be controversies
contradictions in their contention relating to the case, but that shall never a
the fellowship. The Advocates should refer the opposite party’s Advocat
“Learned Friend” and the judge should be referred as “Learned Judge
order to maintain the fellowship, the Bar Council of India has laid down ce
rules to be observed as the duty to colleagues.
03. Panchsheel of the Bar
Panchsheel refers to the following five qualities.
1. Honesty: An Advocate should be dependable and reliable to everyone
seeks his advice and services.
2. Industry: An advocate should be hard working.
3. Justice: An Advocate is as an Officer of the High Court. He should help
Judge in finding out the truth in the dispute, and help him to arrive the
decision. He shall never resort to unfair the practices. His efforts shoul
always to advance the cause of the justice.
4. Service: Legal profession is concerned with the promotion of administr
of justice and the establishment of the welfare society. Therefore, Lawyers
be willing to protect the right of the oppressed and the downtrodden. They
render their service to the general public without any discrimination.
5. Philosophy: Lawyers should have the required mental fitness to adjust
accommodate with success and failiure alike. It is therefore necessary
lawyers should be guided by some philosophical principles suitable to
profession.
04. Ten Commandments of Advocates
The various duties of an Advocate like duties to the client, duties to the c
duties to the colleagues and duties to the public shall be put into the follo
ten rules popularly known as the ten Commandments of Advocates.
1. Protection of the interest of the client: An Advocate must be loyal to
interests of the client and fight for his cause without the fear of any unplea
consequence to him or any other person (see duty to the client).
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over estimate or under estimate the value of his advice. He must always
proper legal advice to the client.
3. Honesty and Respect: He must be always honest and respectful to
court.
4. Preparation of the case: He must prepare the case thoroughly be
presenting it to the court.
5. Service: He must be willing to protect the rights of the oppressed and
poor.
6. Loyalty to Law and Justice: He must always give advice to enhance lo
to law and justice.
7. Fellowship: He must be always friendly with the fellow-members of the
and more friendly with the young lawyers and encourage them.
8. Fairness: He must be fair in his dealings with the client, with the court
with the public
9. Systematic Study: He must develop the habit of systematic study of the
and acquainted with the latest developments in Law.
10. Prudence and Diligence: He must always vigilant and active. He
avoid the easy come and easy-go method.
05. Legal Duties
Bar Council of India Rules, 1975 Part V, Chapter II Standards of Profess
Conduct and Etiquette imposes many duties on the Advocates, a few am
which are reproduced below.
06. Duty to the Court (Rule 1-10)
In the administration of the justice, the role of the advocate is to help the cou
take a right decision in the dispute.
1. An Advocate shall show the due respect to the court and shall never a
any manner to undermine the confidence in the judiciary.
2. He shall not exert or attempt to exert any personal influence on the dec
of the court, nor shall give any impression that he possesses personal influ
with the judge before whom he normally practices.
3. He shall be always punctual in attending courts in the prescribed dress.
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5. He shall not include any fact which he knows to be false in the plead
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 rel
to any pending case.
8. He shall not speak ill of judges or use abusive remarks about them. But,
judge behaves improperly, it is not only the right but also his duty to report
the proper authorities.
9. He shall not interrupt when the counsel for the otherside or the judg
speaking.
10. He shall appear in the court in the prescribed dress and his appeara
shall always be presentable. He shall not wear bands or gown in the p
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(mone
interested.
13. He shall not appear for any organization, institution, society or corporat
he is the member of the executive committee of such organization, institu
society or corporation.
07. Duty to the Clients (Rule 11-33)
A client is entrusting a case with an Advocate because of his trust
confidence on him. The Bar Council of India rules 11-33 prescribes the follo
duties as duty to the client.
1. An Advocate is bound to accept a case in the courts or tribunals where
normally practicing.
2. He shall not withdraw from a case which he has already accepted wit
sufficient reasons. He shall not withdraw from the case merely because his
has not been paid in full. He shall withdraw from the case only after givi
reasonable notice to his client. After his withdrawal he must refund such pa
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 w
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witness then he should return the case. But, if his retirement will c
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 conne
with the parties and his interest in the controversy which may likely to affec
client’s interest.
5. He should fearlessly uphold the interest of his client by fair and honour
means without the fear of any pleasant consequences to himself or to any o
person. He shall not refuse to appear for an accused person merely becau
his personal opinion the accused has committed the offence.
6. An Advocate appearing as a prosecution counsel shall be fair and shal
conduct the prosecution with hostility to the accused to secure conviction
should not obstruct the defence counsel in placing the relevant ma
evidence to prove the innocence of the accused.
7. He shall not disclose any matter communicated to him in his profess
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 o
other person.
10. He shall not stipulate a fee depending on the success of the case or a
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
other name any property sold in execution of a decree in which he was enga
as a lawyer.
13. He shall not adjust fees payable to him by his client against his
personal liability to the client.
14. He shall not do anything whereby he abuses or takes advantage o
confidence reposed in him by the client.
15. He should keep regular accounts of the clients’ money entrusted to him.
account should show the particulars of the amount received from the client
the expenses incurred for him.
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and for the expenses. The amount received for the expenses shall no
converted for fees without the consent of the client.
17. Where any amount received on behalf of the client (either from the cou
from any other person) it should be intimated to the client as early as possib
18. After the proceedings are over, he shall take the settled fee from the cli
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
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
the client.
22. He shall not lend money to his client for the purpose of any legal procee
in which he is engaged as the lawyer. But, any amount given to his client i
unanticipated emergency shall not be treated as beach of this duty.
23. An Advocate who has advised or prepared the pleadings or appeared
party in any suit or appeal shall not act, appear or plead for the opposite par
In addition to the above duties prescribed by the Bar Council of India
Advocate is expected to perform the following duties also to his client.
1. He shall give advice to his client honestly and in good faith.
2. He shall prepare the case with due care and skill.
3. He shall submit all relevant documents before the court in support of the c
of his client.
4. He should attend the court on every day fixed for hearing of his client’s ca
5. He should return the whole fees received from his client, if he is not
position to conduct the case.
08. Lawyers Duty to Opponent Party (Rule34 & 35)
Rule 34 & 35 deals with the duties of an Advocate to the opponent party. T
are as follows.
1. Rule 34 provides that an Advocate shall not in any way communica
negotiate upon the subject matter of dispute with the opposite party directly
any reasons, if he wants to communicate anything then it should be d
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2. Rule 35 provides that an Advocate shall do his best to carry out all legitim
promises made to the opposite party. Even if such promises are not in writin
not enforceable under the rules of the court, he must try his level best to per
his promises.
3. He shall not use unfair and malicious tactics against the opponents.
4. He shall not abuse the rules of evidence and the process of the court in o
to injure the opponent.
5. He shall not make baseless attacks on the reputation of the opponent o
witness or unduly harass them.
6. He may make concessions to the convenience of the opponent and
lawyer in fixing the date of trial.
09. Duty to profession (rule 36-40)
Every Advocate owes an obligation to uplift the profession to which he belo
He must avoid, any conduct that may lead to lower the standards of
profession. He shall never forget that he belongs to the noble profes
Following are some of his important duties to the profession. These duties
incorporated with the intention of raising the standards of the profession.
1. An Advocate shall not speak ill of the profession. He should conduct him
in such a way to enhance respect, sympathy and good feeling between
members of the profession and strive to maintain the honour and dignity o
profession.
2. He shall not discuss in the newspapers any pending case or appeal.
3. He shall not in any way solicit cases by advertisement or otherwise.
4. He shall not act or plead in his professional capacity before any officer o
state not exercising judicial or quasi-judicial powers.
5. He shall not appoint intermediaries for procuring cases and divide the
between them or pay commission to them for such work.
6. He shall not entertain or show any undue hospitality to any particular judg
7. He shall not place himself in the situation which may be unbecoming
member of the bar.
8. He shall not oppose the desire of his client for additional professional he
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9. He must appear in robes in the court proceedings. He shall not wear robe
gown in public places except on ceremonial occasion.
10. He shall not act as a managing Director or a secretary of a company wit
the leave of the Bar Council.
11. He shall not work as a full time salaried employee.
12. He shall not do any other business. An advocate who inherits any fa
business may continue it, but he should not personally participate in
management of the business.
10. Legal aid programs
The lawyers must actively participate in the legal and aid programs and give
legal services to the poor and the needy people. This is one of the impo
duties of an Advocate to the society.
If a lawyer personally knows that his client is unable to pay because of po
then he must represent the case without demanding any fees from
Similarly, when the court appoints a lawyer to defend an accused, it is his m
obligation to accept such order and discharge his duties towards the court
the accused by the best use of his knowledge and ability. Lawyers shal
operate and actively participate in joining hands with the local area
services Authorities in organizing Lok Adalats and Legal Aid programs
conciliation proceedings.
11. Restriction on other Employments
Bar council of India Rule-40 restricts the Advocates not to personally engag
any other business other than the legal profession. If he joins as a full
salaried employee either in the Government or in the private sector he
request the Bar Council to remove his name from the Advocates Roll.
But there are some exceptions.
1. He can be a Sleeping partner in a business, if in the opinion of the State
Council that business is not inconsistent with the profession.
2. An Advocate who has inherited a family business shall continue it, bu
shall not personally participate in the management of the business.
3. He shall engage himself in writing Law Books.
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exceeding 3 hours in a day and which may not be inconsistent with the
profession.
5. He shall prepare question papers for the Exams.
6. He shall review parliamentary Bill for a remuneration.
7. He shall act as a member of the parliament or Member of the State Assem
8. He shall study Post Graduate course in Law without suspending his pract
An Advocate who is engaged in other business shall be punished
professional misconduct (See Dr.Kaniraj L. Sulani v. Bar Counci
Maharashtra, Babulal v. Subash Jain and Sharma v. Gurdial Singh).
12. Duty to Self
Legal profession is a noble profession. An Advocate should follow the follo
duties as duty to self.
1. An Advocate must develop the habit of systematic study of law and acq
up-to-date knowledge in law.
2. He shall exercise prudence, deligience and judiciousness in all his activiti
3. He shall never be a party to anything which he knows to be wrong.
4. He shall not stir up litigations.
5. He should discourage vexations (groundless)litigation.
6. He shall encourage compromise between the parties.
7. He shall not indulge in any act which amounts to professional misconduct
8. He should not do any act which amounts to contempt of the court.
9. He must be fair and honest in his dealings.
13. Duty to colleagues
In order to maintain good relation among the members of the Bar, an Advo
has to perform the following duties to colleagues.
1. An Advocate shall not enter appearance in any case in which there is alr
an Advocate.
2. He shall not in any way solicit cases by advertisement or otherwise.
3. He shall not allow his name to be used by some other person
unauthorized practice of law.
4. He shall not accept a fee less than the fee chargeable under law.
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Rule 36 of Bar Council of India restricts the Advocates not to advertise abou
profession. Due to this restriction Advocates are banned to do the follo
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 pamphlets or giving advertisement with a view of soliciting c
4. His name board should be small and in prescribed size. In the name b
the following matters should not be mentioned.
1. Information relating to his membership in Bar Council or post in the
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 treate
professional misconduct.
15. Refusing to Accept a Case
An Advocate shall not refuse to accept a case, if the client asks to file or de
a case in a court or a tribunal where he normally practice. But in the follo
situations he can refuse to accept a case.
1. If he has reasons to believe that he may be called as witness in the case.
2. If he has already given the advice or prepared the pleadings for the opp
party.
3. If he is physically disabled from appearing.
4. When he may not be available to present the case in the court.
5. Where he confines his practice in some courts only.
16. Professional Misconduct
Misconduct means dereliction of duty. Professional misconduct m
dereliction of duty relating to Legal profession. Under S.35 of the Advocates
An Advocate is punishable not only for professional misconduct but als
other misconduct. Other misconduct means a misconduct not directly conne
with the legal profession.
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concerned and the Advocate general comes to the conclusion that

misconduct is proved that it may pass any of the following orders, namely
(i) Reprimand the Advocate.
(ii) Suspend the Advocate from the practice for such period as it thinks f
(iii) Remove the name of the Advocate from the Advocates Roll.
Some important cases relating to Professional Misconduct
Purchase of the property in dispute of the client - P.D. Gupta v. Ram Murt
Anr.
Non filing of the case or filing of the case with nominal court fees - Allaha
Bank v. Girish Prasad Verma
Deliberate delay in filing of the suit - Prof. Krishanraj Goswami v. Vishwana
Mukashikar
Suppression of material facts with intention to harass poor persons -
Sudesh Rani v. Munish Chandra Goel
Manipulation of the judgement and the decree - Surendra Nath Mittal v. D
Nand Swaroop
Handing over of forged documents to the opposite party - Pratap Narain v.
Raheja
Not appearing before the court deliberately and intentionally - Smt. P. Pank
v. B.H. Chandrashekhar
Defrauding the client by exploiting his/her illiteracy - Vikramaditya v. Smt. Ja
Khatoon
Advocate actively engaged in carrying other business - Babu Lal Ja
Subhash Jain
Advocate attending the court with fire arms - UP Sales Tax Service Associ
v. Taxation Bar Association, Agra
Refusal to return the will - John D’souza v. Edward Ani
Remedies against the order of punishment
Remedies against the punishment of Professional Misconduct are Appeal to
Bar council of India (s 37), Appeal to the Supreme Court, Stay of the o
Review of its own order by the State Bar Council etc.
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Regardless of a lawyer’s style or bent, there are some basic courtroom eƟqueƩe which a lawyer s
always observe. Five each DOs and DONTs are given below.
1. DO: Stand when addressing the court.
2. DO: Show exhibits to opposing counsel before showing them to the judge or the witness.
3. DO: Ask permission before approaching any witness or the bench.
4. DO: Properly lay the foundaƟon for a document before offering it into evidence.
5. DO: Build credibility by acƟng with civility and professionalism at all Ɵmes.
6. DON’T: Object before your opponent has finished asking the quesƟon.
7. DON'T: ConƟnue to argue once a ruling has been made aŌer you have created a record.
8. DON'T: Address your comments to the opposing counsel instead of the court.
9. DON’T: Interrupt opposing counsel when they are asking a quesƟon or addressing the court.
10. DON'T: Badmouth opposing counsel or the opposing party
18. Conclusion
Though the profession of advocacy is noble, it is really very hazardous
restricted by constraints from everywhere. Many of the legal practitioners
facing starvation due to large scale competition. The moral, legal and behav
expectations and the punishments for the breach of each are great. It is true
only legal practitioners can be Supreme Court Chief Justice, and that they
can become the President, Prime Minister or Speaker of the Loksabha. Bu
lower strata are destined to be the sacrificed for the sake of this n
professions. It is high time that the constraints regulating the practice o
advocates should be curtailed at least in terms of its multiplicity of numb
authorities and punishments. Measures to ensure that the sole professionals
not starving may also be resorted to.

Posted by яn at 11:49 PM

Labels: 1961, Advocacy, Advocates Act, Assignment, Etiquette, Professional Ethics

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