BBA LL.

B, 9TH SEMESTER, 5TH YEAR

BATCH- 2018-2023

SUBJECT- PROFESSIONAL ETHICS

TOPIC- ETHICAL LAWYERING: A WAY TO UPHOLD NOBILITY OF

THE LEGAL PROFESSION

SUBMITTED TO- PROF. UPASANA BHAGNANI

SUBMITTED BY-
SAUMYA SRIVASTAVA(A90821518043)
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CONTENTS

ABSTRACT 3
I. INTRODUCTION 4
II. SEVEN LAMPS OF ADVOCACY 5
III.MISCONDUCT 7
IV.PROCEDURE FOR DEALING WITH THE COMPLAINTS OF MISCONDUCT 8
V. CONCLUSION 10
VI. REFERENCES 12
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Ethical Lawyering: A Way to Uphold the

Nobility of the Legal Profession

ABSTRACT

The Ethics has to be the way of Life for any individual, especially,
Professionals. Professional Misconduct is an act of Advocate which transgresses
the boundary of decency and well-established norms laid down by the Bar Council
of India. The Civility in the Professional life is unarguably the important trait of
any Advocate. Any Act of defiance of rules by the member set up by the Statutory
Body is a serious issue for the entire legal Profession. The Standards of
Professional Conduct and Etiquette laid down by the Bar Council of India includes
various duties which the advocates owe towards the Court, Client, opponents,
colleagues and the society. The Advocates Act 1961 has laid down the provisions
relating to the disciplinary committees and procedure to be adopted for the
disciplinary proceedings against the advocates. The Researcher discusses the
contours of the Professional Misconduct as determined from the analysis of the
case laws and Reports of Law Commission of India. The Researcher also delves
into rules and statutory provisions governing the Standards of Professional
Conduct expected from the Advocates. The appropriateness of present procedure
and punishment is also discussed. The Researcher concludes the paper with the
suggestions so that the incidents of delinquent behavior can be brought down
significantly.
Keywords: Misconduct, Advocate Act, Bar Council of India

I. INTRODUCTION

The Professional ethics is the standard of conduct set out by any Organization or Professional
body for its members. The body of Advocates, which determines the standard of conduct for
the members, is the Bar Council of India. The Standards of Professional Conduct and
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Etiquette are part of Chapter II of the Bar Council of India Rules. The Rules are drafted
owing to the powers vested in the Bar Council of India under the section 49(1) (c) of the
Advocates Act, 1961. The Rules lay down explicit duties of the Professionals towards Court,
Client, Opponents, Colleagues and Society. The rules laid down by the Bar Council are not
exhaustive.

The Legal Profession is a noble Profession. In this spirit, the specifics left out in the rules
should be covered. The Ethical Conduct of the lawyer should not be determined solely by his
commitment to bring favorable results for the client1.

The Professionalism of the lawyer demands him/her to clearly communicate to the client, the
commitments, he/she owes towards the Court. The Legal Professionals are the edifice of the
justice delivery system. They enable the courts in deciding the matter on merit basis. Clients
approach the Advocate with a sense of faith in him/her. The Advocate should display a
zealous attitude while defending the client and should be enthused to protect the interest of
the client within the four corners of the Law2. The Advocates acts as an important
intermediary between different stakeholders of the justice delivery system. It is inevitable that
the expected level of ethics among the Legal Professionals is not the same as any other
individual. Lawyers, by virtue of being officers of the court, should display a character which
should strengthen the belief of the Common Man in the justice delivery system.

The kind of responsibility which an advocate carries on his/her shoulders is not a normal one.
The Lawyers are the torch bearer of justice, apart from the judiciary, which has the
responsibility of giving the judgment. The sense of responsibility with which lawyers will
assist the judiciary in the dispensation of justice will determine the future of the Legal System
across all the jurisdiction. The ethics cannot be measured in terms of any numerical manner.
The ethical standards can be assessed on the basis of the conduct of the members of the legal
fraternity. The harmonious relationship of the Bar and Bench can also be one of the
parameters to measure the ethical standards of the members of the Bar.

1
Roger Clifford Clapp, 'Ethics for Advocates: An Overdue Conversation' (2010-2011) 80 Supra 9
2
Sharon Dolovich, Ethical lawyering and the possibility of integrity, 70 FORDHAM LAW REV. 1629–1687
(2002). 4 American Bar Association, Essential Qualities of the Professional Lawyer (2016)
<www.shopABA.org.> accessed 2 July 2018.
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II. SEVEN LAMPS OF ADVOCACY

The Character is a broader trait. It cannot be only seen within the narrow passage of morality.
The spectrum of ethics should be seen in the broader aspect. The Civility displayed in the
personality of the Legal Professionals help in upholding the stature of this noble profession4.
The Characteristics for an ideal Advocate have been proposed by the Judge Abott Parry.
Honesty as the Characteristic often appear as a simplistic value to the masses. The credibility
of the legal profession gets reinforced by the display of this important virtue. The Trust in
Legal system is vital for the strengthening of the democratic values for any Nation. The
Gandhian principle of honesty appears to be tough to be followed in its literal sense.
However, the honest behavior from the Advocate community towards client and court can go
long way in reinstating the lost pride of the common man. Gandhiji was of the firm view that
advocates should keep the honest behavior, above all the perks offered by legal profession3.

Courage as an attribute is another trait of the advocate. To fight for the Dharma and
Righteousness, need courage. The advocate community has to confront the regular threat, just
because of pursuing a public cause. Without the correct ethical subset in the Advocate, the
profession can have its old sheen lost under the threat of fear. In the pursuit of justice, often
there are many roadblocks. In the times, when moral values in the society is somewhere going
through its lowest point, it is important that the important stakeholder of the justice delivery
system, should try to raise

The hard work is the virtue and must have attribute for the Advocates 4. In today’s era, when
technology is making resources available on the desktop/ laptop at the spur of click of the
mouse, the requirement of hard work as an attribute doesn’t get lesser. The Industry is one of
the Lamps or characteristics for the Advocate, proposed by Judge Abott Parry. A Lawyer
needs to put in hard work in preparing the well-researched draft before appearing in the Court
for the Case. The appearance of the Advocate should be coupled with legal arguments. The
Pleadings should be prepared with the usage of technical tools. The use of legal databases

3
Ashutosh Sharma, ‘Mahatma Gandhi on Law and Lawyers | Perspective - TheLeaflet’ (The Leaflet, 2019)
<https://www.theleaflet.in/mahatma-gandhi-on-law-and-lawyers-perspective/> accessed 4 July 2020.
4
Orowhuo WA Okocha, ‘Hardwork and Patience : Virtues Every Lawyer Must Possess to Succeed’ THISDAY
(2018) <https://www.pressreader.com/nigeria/thisday/20180501/281831464352222> accessed 4 July 2019.
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provides ease for the research. However, that search of the databases also requires persistence
and hard work.

The Wit of the Advocate derives attention of the Court towards the well drafted and prepared
arguments. The Legal Proceeding is the serious business. The argument stage see the
advocates, at times, carried away, while pursuing the cause of their client. The Wit, at times,
enables the stakeholders in the process to be relieved during the high tempered arguments.
The contours of the wit, at times, go beyond the discussion at hand. Apart from lightening the
tensed environment of the courtroom, the wit has the potential of bringing, the various
stakeholders, in the whole process very close to each other. To create the bonhomie within
different stakeholders of the legal profession is very important for the society and it is not an
exaggeration to say this trait somewhere is helping in bridging the gap.

The Eloquence has been attributed as another important characteristic for the Lawyers. The
brevity of expression, capturing the gist of important points in argument, is an art, which an
advocate should culture. The Clarity of expression, with a power, to enable others to listen, is
a required trait for the legal professional. The Power to fluently put across the views is an
important trait of the advocate. However, judicious use of the power of eloquence in
upholding the truth, should be the motive of the advocate. To use the fluency of the language
in camouflaging the lies, will never do good for this noble profession.

Judgment is an important characteristic of the advocate. It is presupposed that the Advocate

will exercise his or her own judgment while handling any case, and refrain from blindly
follow the footsteps of the other5. It enables the advocate to analyze the intricacies of the brief
handed over to advocates. The Trait is cultured over the years of experience in handling of
different cases. There are different stages of the trial in any case. The ability to take decisions
at the critical moments, hones this skill of the advocate further. Providing an estimated picture
of the course of trial, after the submission of the brief, is derived from years of experience at
the bar. Taking advantage of the fiduciary relationship and promising unachievable results is
against the ethical standards of the Profession.
5
Bar Council of India, ‘Rules on Professional Standards « The Bar Council of India’
<http://www.barcoun cilofindia.org/about/professional-standards/rules-on-professional-standards/>
accessed 4 July 2020.
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The Advocate community should understand that they are the members of the bar and share a
bond of brotherhood among themselves6. The feeling of brotherhood should enthuse them to
work for the legal profession as a whole, rather than merely servicing their interests. The lamp
of fellowship enables the lawyers, not to see the other lawyers, as their adversary, while
arguing any case. There may be a situation where the advocates may fiercely contest the
arguments of other party and may often be carried away while putting across their point.
However, the trait warrants that the feeling of oneness with the other colleagues should never
be lost.

III. MISCONDUCT
The definition of misconduct is not provided in the Advocates Act. The Legislation governing
the advocates, the Advocates Act, directly provides for the procedure to be adopted in the
cases of Professional Misconduct. The Bar Council of India Rules are not of much help, when
it comes to the definition of Professional Misconduct. However, Bar Council of India Rules,
lay down the norms, which the members of the community, should adhere to. The Law
Commission prescribes transgression of the standards laid down by the statutory bodies as the
Misconduct by the Advocates. The Chapter XV of the 266 th Report of Law Commission of
India, discusses the instances of misconduct by the Advocates. It also recommends the laying
down of the definition of Misconduct in the Advocates Act. The Advocates indulged in taking
money from the client in the name of bribing the judges, soliciting the client, non-appearance
despite accepting the brief from the client, withdrawal of the case without intimating the
client7, making open threat to the judges in the court8, influencing the witnesses, colluding
with the prosecution in derailing the trial 9, are the instances where advocates have been found
responsible for Professional Misconduct. The Advocates are expected to act in a dignified
manner10, and avoid any kind of Private communication with the judges 11, pertaining to the
case, in which the concerned advocate is appearing. An advocate should refrain from
attending to the clients, who insists that the advocate should resort to the unfair means. The
expected Professional standards from the Advocates goes to the extent that he/ she will

6
Hon’ble Mr. Justice F.M. Ibrahim Kalifulla, Legal profession: challenges and prospects & the art of advocacy
1–25 (2013).
7
An Advocate vs. Bar Council of India 1989 Supp(2) SCC 25
8
In Re : Vinay Chandra Mishra , (1995) 2 SCC 584
9
R.K. Anand Vs. Registrar, Delhi High Court, (2009) 8 SCC 106
10
Rule 1 of the Chapter II, Part VI of the Bar Council of India Rules
11
Rule 3 of the Chapter II, Part VI of the Bar Council of India Rules
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represent the client, before the court, in the proper attire and will not wear band and gown,
mandated during the court proceeding, at public places other than courts.

The Legal Professionals are expected to adhere to certain standards, while dealing with the
client. The Advocate, who is approached with the brief, should not refuse it, unless there are
sufficient reasons, not to go further ahead with the brief. After taking up the case, the
advocate should not indulge in taking unnecessary advantage of his position. The Advocate,
who is that no innocent should be convicted, by suppressing any material evidence, during the
trial approached with the brief, should make full disclosure of any interest, he/ she is having
in the matter, taken up by him/her. The Advocate is expected to pursue the case, in such a
manner

IV. PROCEDURE FOR DEALING WITH THE COMPLAINTS OF MISCONDUCT

Chapter V of the Advocates Act deals with the conduct of the Advocates. When the State Bar
Council receives a complaint against the misconduct of the advocate, and the State Bar
Council has the reason to believe about the genuineness of the complaint, it can hand over the
complaint, for the further proceeding to the disciplinary committee 12. Section 9 of the
Advocates Act, 1961 mentions about the Constitution of the Disciplinary Committee. Section
42 of the Act mentions about the Powers of the Disciplinary Committee. The Powers akin to
the Civil Court are vested in the Disciplinary Committee, in order to ensure the presence of
the witness, discovery of the documents, to receive the evidence on affidavits and other
procedural necessities to arrive at the conclusion regarding the guilt of the advocate.

The disciplinary committee shall fix a date of hearing and shall give the notice to the
Advocate, who have been charged with the misconduct13.

The Committee can issue various orders against the advocate, depending upon the seriousness
of the charges against the Advocate. The Punishment ranges from the simple order of
reprimanding the advocate to Suspension of the practice. In the cases, where the misconduct
was found to be serious, the recommended punishment, in the Advocates Act is removing the
name of the delinquent advocate from the rolls. The disciplinary action before the Bar

12
Section 35(1) of the Advocates Act, 1961
13
Section 35(2) of the Advocates Act, 1961
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Council of India is also on the similar lines as mentioned under section 35 of the Advocates
Act, 1961. The State Bar Councils are expected to dispose of the disciplinary proceedings
expeditiously, not later than one year14. The Proceedings get transferred to the Bar Council of
India, if the disciplinary committee of the State Bar Council is not able to dispose of the case
within the time limit of One year. The Disciplinary Committees have been empowered to
review its own orders, either on their own or on any application being made in this regard15.

The aggrieved party can appeal to Bar Council of India, within 60 days from the date of
communication of the order, against the decision of the lower adjudicatory authority 16. The
Person aggrieved by the order of Bar Council of India can further appeal to Supreme Court,
within the statutory period of 60 days 17. The appeal preferred by the aggrieved person will not
serve as the stay for the order of the lower appellate authority 18. However, the Bar Council of
India and the Supreme Court of India can order for the stay of the order delivered by the
lower adjudicatory authority. Similarly, on application being made by the aggrieved party to
the adjudicatory authority, can provide the relief of stay to the aggrieved party.

The nature of the proceedings relating to the Misconduct is Quasi – Criminal. The expected
level of proof required to prosecute the accused is beyond reasonable doubt rather than
relying on Preponderance of Probabilities as being looked into the Civil Proceedings. The
transgression of the thin line from the tolerable negligence to culpable negligence, needs to be
looked into, while hearing the matters pertaining to the professional misconduct, under the
Advocates Act, 1961. The accused Advocate should be provided the benefit of doubt, in
absence of the charges against him/her proved beyond reasonable doubt19.

V. CONCLUSION

The Analysis of the judgment and provisions of the Advocates Act1961 and Bar Council of
India Rules, drafted using the powers vested in Bar Council of India, under Section 49(1)(c)
14
Section 36B of the Advocates Act, 1961
15
Section 44 of the Advocates Act, 1961
16
Section 37 of the Advocates Act, 1961
17
Section 38 of the Advocates Act, 1961
18
Section 40 of the Advocates Act, 1961
19
An Advocate vs. Bar Council of India, AIR 1989 SC 245
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of the Advocates Act, 1961, goes on to show, that there is well established procedure laid
down by the legislators to deal with the Misconduct of the Advocate. The Legal Profession is
a noble profession, as it enables the legal professional to be an enabler, in the justice delivery
process.

At times, it is seen that there is a gradual decline in the professional ethical conduct of the
Advocates. The unruly behavior towards the presiding officers of the courts, is a matter of
great concern. The punishment prescribed in the Advocates Act, 1961, is not being meted out
in true spirit. The Disciplinary Committee is empowered to even award the punishment of
removal of names of the advocate from the rolls. However, this appear to be a serious
punishment, directly affecting the livelihood of the Advocates. It is generally seen that the
adjudicatory authority refraining from taking the harsh view of the actions of the delinquent
advocate. The constitution of the Disciplinary committee, is also seen as a hindrance, in
checking the belligerent advocate. The disciplinary proceeding are often seen as an internal
affair of the bar. Though there are appeal provisions available, wherein the final appeal can be
to the Supreme Court. However, the role of the disciplinary committee, assumes huge
importance, as after all these committees are responsible for the proper investigation and
inquiry relating to the matter at hand. The appellate authorities often take up the Question of
Law in the matters reaching out in appeal.

The ethical standards of the Lawyers needs to be kept high, due to the nature of profession.
The Professional are responsible to enable justice to the masses. It should evoke passion and
empathy among the fellow members while taking up any case. The Advocate should not bow
down to any threats confronting him/her in pursuance of justice for the client, within the four
corners of the law. This is a tough time to uphold the ethics of this noble profession, in light
of the challenges confronting the professionals. However, social churning and perseverance
should not stop the human tryst to better itself.

*****
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VI. REFERENCES

● Association AB, Essential Qualities of the Professional

Lawyer (2016) <www.shopABA.org.>
● Dolovich S, ‘Ethical Lawyering and the Possibility of Integrity’ (2002) 70 Fordham
Law Review 1629
● ‘Rules on Professional Standards: The Bar Council of India’
<http://www.barcouncilofindia.org/about/professional-standards/rules-on-professiona
l-standards/>
● Hon’ble Mr. Justice F.M. Ibrahim Kalifulla, ‘Legal Profession: Challenges and
Prospects & the Art of Advocacy’ 1
● Okocha OWA, ‘Hardwork and Patience: Virtues Every Lawyer Must Possess to
Succeed’ THISDAY (2018)
<https://www.pressreader.com/nigeria/thisday/20180501/ 281831464352222>
● Sharma A, ‘Mahatma Gandhi on Law and Lawyers | Perspective - TheLeaflet’
(The Leaflet, 2019)
<https://www.theleaflet.in/mahatma-gandhi-on-law-and-lawyers-perspe ctive/>

*****