An Advocate is defined as “One who assists, defends, or pleads for another; one who renders legal advice and aid and pleads the cause of another before a court or a tribunal, a counsellor.”
And “A person learned in the law, and duly admitted to practice, who assists his client with advice, and pleads for him in open court.” Under the Black’s Law Dictionary.[1]
An Advocate is a subset of a lawyer in the context of Indian law. To put it another way, while all lawyers are advocates, not every lawyer is an Advocate. Advocates’ legal practice is governed by the Advocates Act, 1961. Only advocates – not any other subset of a lawyer – are allowed to practice in Courts and plead on behalf of others, according to the Act, but only after obtaining the necessary license.
An advocate acts under the authority of a power of attorney granted by the principal, which governs and limits his or her actions. According to the Advocates Act, 1961, an advocate must be registered with the State Bar Council.
The word ethics is made up of two words: ethos, which means character in Greek, and mores, which means customs in Latin. This combination determines how people interact with one another. Ethics, from a philosophical standpoint, defines what is good for a person and for society as a whole, as well as the responsibilities that individuals have to themselves and to one another.
The Section 49(1)(c) of the Advocate Act, 1961, empowers the BCI to develop rules that propose standards of professional conduct and etiquette for Advocates practicing in the jurisdiction. BCI has successfully created many different rules related to the code of ethics of Advocates under this legal provision.
Which is why Advocates are also advised to behave ethically with their clients and colleagues, that are discussed below.
Ethical duties of an Advocate towards the Court
- Respecting the Court
An Advocate at all points of time should respect the Court as that is essential to his practice of the legal profession.
An Advocate has to bear in mind the dignity and the respect he should have towards the Judicial office as it is very important for the survival of a free community.
- Act in a dignified manner
An Advocate should always conduct himself with self-respect and in a dignified manner. He should always be well dressed in the uniform of the Court and whenever the need arises that a Judicial Officer is wrong, the Advocate can complain against him to the proper authorities.
- Not take clients who insist on using wrongful means
Any client who insists on using unfair means is an obstruction to justice and the against the dignity the Judicial office holds. An Advocate should not entertain clients who do not wish for justice but wish for their winning.
- Refuse to appear for his own relatives or relations of the bench
An Advocate should not appear for his relatives as then he is not fighting to provide justice but to help his relative gain a win.
An Advocate should also not appear before the bench with a client who is known to the bench as this makes the decision biased and is considered an obstruction of justice.
- Not to wear the bands or gown in public places
An Advocate should not wear bands or his gown outside the court establishment other than when required in a ceremonial occasion or in places where the Bar Council of India prescribes.
- Should not represent establishments he has interest in
An Advocate should not represent any establishment such as corporations that he is involved in management of, but this rule does not apply to a member appearing as “Amicus Curiae” on behalf of a Bar Council.
- Should not appear for matters in which he has pecuniary interest in
An Advocate shall not appear before the Bench in any matter he has financial interest in. For example, he should not appear for a bankrupt person when he himself is the creditor of that person.
Ethical Duties of an Advocate towards his client
- An Advocate shall never appear for the opposite party in the due course of the proceedings.
- Always accept briefs and not withdraw from service
An Advocates shall always accept the briefs of cases that come his way and should levy fee according to fee levied by his fellow advocates of his standing at the Bar and the nature of the case.
Only special circumstances can justify his refusal of a brief. Once the brief has been accepted by any Advocate, he shall not withdraw from serving the client. He should withdraw only if he has sufficient cause and shall refund any fee that has been taken in advance.
- Shall not appear in matters where he himself is a witness
An Advocate should not accept a brief if he himself is a witness in that case. How will he know that? He should have reason to believe that he might be a witness in the case and should automatically retire from the case to not jeopardize the clients’ interests.
- Full disclosure to the client
An Advocate shall make full disclosure of the facts and the due course of action to be undertaken by the Advocate in the proceedings of the Court. Not only this, but he should also make full disclosure to his client about his relationship with the other party and then leave the judgement of availing the Advocate’s service up to the client.
- Always uphold the best interests of the client
An Advocate shall always have the best interests of the client in his heart and shall do so without any regard to unpleasant consequences to himself.
- Not suppress any material evidence
An Advocate appearing as the Prosecutor in a criminal trial shall conduct the proceedings in a way that it should not lead to conviction of the innocent by not suppressing the material evidence to a criminal trial.
- Communications between client and Advocate shall not be disclosed at any point of time. They are subject to Attorney Client Privileges.
- An Advocate shall not work on any other person’s instructions who is not his client.
- Not charge fee according to the success
An Advocate shall not charge fee according to the success of the matter and also not as the percentage of amount or property received after success of the matter.
- Should not bid or purchase a property arising out of a matter
An Advocate has insider information on any bid on a property that has been seized in a legal proceeding and thus should not be a part of that bid when it is taking place
- An Advocate shall not adjust his fee against personal liability he has towards his client.
- Proper accounting records
An Advocate shall keep proper accounting records showing the amount received by him from the client and the expenses incurred by him for the client. He should also provide copy of these accounts to the client, if necessary.
- Lending money to the client should not be done
An Advocate shall not lend money to the client for his personal expenses, especially if the suit or proceedings are pending in the court.
Ethical duties of an Advocate towards his opponents
- An Advocate shall not directly negotiate directly with the opposing party, without consulting with his client.
- An Advocate should make achievable promises to his client and carry them out in the correct manner.
Ethical duties of an Advocate towards other Advocates
- An Advocate shall not solicit or advertise his work, which means that his hoardings should be of reasonable size and not hover over his fellow Advocates hoarding.
- An Advocates stationary shall not include his previous designations. For example, that an Advocate shall not write that he was the President of the Bar Council on his letterhead.
Case Laws
P.D. Gupta v. Ram Murti and Anr.[2]
The Supreme Court held that:
“A lawyer owes a duty to be fair not only to his client but also to the Court as well as to the opposite party in the conduct of the case. Administration of justice is a stream which has to be kept pure and clean. It has to be kept unpolluted. Administration of justice is not something which concerns the Bench only. It concerns the Bar as well. The Bar is the principal ground for recruiting Judges. No one should be able to raise a finger about the conduct of a lawyer. While conducting the case he functions as an officer of the court.”
State of Uttar Pradesh and Ors. v. U.P. State Law Officers Association and Anr.[3]
“The relationship between the lawyer and his client is one of trust and confidence. The client engages a lawyer for personal reasons and is at liberty to leave him also, for the same reasons. He is under no obligation to give reasons for withdrawing his brief from his lawyer. The lawyer in turn is not an agent of his client but his dignified, responsible spokesman. He is not bound to tell the court every fact or urge every proposition of law which his client wants him to do, however irrelevant it may be. He is essentially an adviser to his client and is rightly called a counsel in some jurisdictions. Once acquainted with the facts of the case, it is the lawyer’s discretion to choose the facts and the points of law which he would advance. Being a responsible officer of the court and an important adjunct of the administration of justice, the lawyer also owes a duty to the court as well as to the opposite side. He has to be fair to ensure that justice is done. He demeans himself if he acts merely as a mouthpiece of his client. This relationship between the lawyer and the private client is equally valid between him and the public bodies.”
M.P. Electricity Board and Ors. v. Shiv Narayan and Anr.[4]
“The avocation of Advocacy/lawyering is better described as profession, than as money-making enterprise. It could be an avocation but should never be a commerce! It is rather a noble profession.”
Conclusion
Professional ethics can also be defined as the obligations that an advocate must fulfil while practicing his or her profession. These are moral obligations and basic courtesy that everyone in this field should be aware of. The code of ethics of this profession is said to have been violated by an Advocate who does not work with sincerity and does not follow the rules of conduct.
The fundamental goal of legal ethics is to maintain the legal profession’s honor and dignity, to foster a spirit of friendly cooperation, to ensure the counsel’s honorable and fair dealings with his clients, and to secure the lawyers’ societal responsibilities.
References
- Blacks Law Dictionary 4th Edition pg. 75 ↑
- P.D. Gupta v. Ram Murti and Anr. AIR 1998 SC 283 ↑
- State of Uttar Pradesh and Ors. v. U.P. State Law Officers Association and Anr. (1994) 2 SCC 204 ↑
- M.P. Electricity Board and Ors. v. Shiv Narayan and Anr. AIR 1999 MP 246 ↑