In this article, Vincent Omwenga Kofi pursuing M.A, in Business Law from NUJS, Kolkata discusses Code of Ethics for Advocates.
In the context of the Indian law, an advocate is a subset of a lawyer. In other words, while all advocates are lawyers, not every lawyer is an advocate. The legal practice of advocates is established in the Advocates Act, 1961. Based on the Act, only advocates—and not any other subset of a lawyer—are permissible to practice in courts and plead on behalf of others, but only after obtaining the required license. An advocate transacts business under authority that is governed and restricted by power of attorney granted by the principal. An Advocate has to be registered with the State Bar Council as described under the Advocates Act, 1961. In Galanter and Robinson’s (2013) views, as experts, advocates analyze client’s legal problems carefully to provide exhaustively researched legal counsel. In addition, they represent clients before other deciding bodies, including tribunals, arbitrations, and professional disciplinary committees. Accordingly, they are expected to be very ethical.
The word ethics is a combination of two words, ethos (Greek for character) and more’s (Latin for customs). The combination defines how people choose to interact with each other. Philosophically, ethics outlines what is good for a person and for the whole society, as well as the duties individuals owe themselves and each other. In its application in philosophy and law, therefore, Gillers (2014) informs that ethics encompasses learning what is correct and incorrect, and then choosing to do the correct thing. The most ethical or right decisions have various alternatives and have far reaching consequences. According to Gillers (2014), such decisions may also have mixed outcomes, including indefinite consequences. The most ethical decisions also have personal consequences. In most, if not all jurisdictions, Code of Ethics for Advocates explains the demands of professional conduct for advocates. In Hazard, Hodes, and Jarvis’s (2014) understanding, and as will be demonstrated in the remaining section of this article, the determination of such requirements is to warrant that advocates do not act viciously or carelessly or in a manner distasteful to the decorum, dignity, or integrity of their occupation, or in such a manner as would utterly affect the trust bestowed on them.
Nobility of Advocates
It is commonly said that legal profession is noble—and it is indeed true. It should be noted, however, that the profession’s nobility is anchored in the observance and compliance of established professional standards by the people working in the legal industry, especially lawyers (Hazard, Hodes, & Jarvis, 2014). The standards are known as the ethics of the legal profession, or simply, legal ethics, or specifically in this article, Code of Ethics for Advocates. The most important scope of the legal ethics is to uphold the dignity and order of the law profession; to establish moral and fair transactions of the advocates with their clients, witnesses, and opponents; to maintain a spirit of friendly collaboration between the bar and bench in the furtherance of highest standard of justice; and to demonstrate a spirit of fraternity with bar.
Besides being professionals, advocates are court officers who play a critical part in the administration of justice. Therefore, advocates have the twofold responsibility of keeping the client’s’ interests confidently, while handling themselves as court officers. For these reasons, advocates are expected to follow the highest standards of integrity and honor. The conduct of advocates ought to reflect their honored position in society, which originates from the profession’s nobility (Bagust, 2013). In fewer words, the services of advocates to their clients should be graced with compassion, morality, and law. In India, generally, advocates shall adopt the standards of professional conduct and etiquette outlined in Chapter II, Part IV of the Bar Council of India (BCI) Rules, as a guide for transacting matters associated with law. The advocates should also be guided by the Advocate Act, 1961.
The Advocate Act, 1961, under Section 49 (1) (c), authorizes the BCI to create rules meant to propose the standards of professional conduct and etiquette that need to be adhered to by advocates within the jurisdiction. Under this legal provision, BCI has successfully created many different rules related to the code of ethics of advocates. For instance, Chapter II of Part VI of the BCI Rules demands that practicing lawyers, who include advocates, shall have the social obligation and dignity of the legal occupation and high standard of veracity and effective service to their clients, as well as for other advocates, their opponents, and the public. Broadly, therefore, the responsibility of a lawyer is to make the law functional in terms of fairness and justice as much as possible. In that respect, a lawyer needs to act as a guard or law, as well as an advocate of a legal system against clients. While acting and presenting their cases before courts, advocates should act with self-respect. At all times, they should conduct themselves with dignity. Nevertheless, if there is proper reason for grave grievance against an officer of the judiciary, the advocate has a right and obligation to submit his or her complaint to relevant authorities.
Conduct in Court
Advocates should respect the courts always and be mindful that the dignity and reverence upheld towards courts are critical for the existence of a free community. As outlined under BCI Rule 3, 1961, advocates are not allowed to influence courts’ decisions illegally or improperly. The illegal and improper means include bribery and coercion. Furthermore, Rule 3 prohibits advocates from communicating directly with judges in connection with pending cases. Advocates also have the responsibility of restraining and preventing their clients, based on BCI Rule 4, 1961, from falling back to sharp or unjust practice. Under BCI Rule 46, 1961, all advocates shall, while practicing law, be mindful that any person who honestly needs an advocate is ennobled with legal assistance even if he or she cannot pay for the legal services entirely or sufficiently.
Advocates should be aware of their social obligation of ensuring the oppressed and needy are entitled to free legal assistance. However, in determining where to practice that obligation, advocates are allowed to turn down requests to represent clients insisting on using unfair or indecorous means. In other words, advocates shall exercise their personal judgments in such matters, avoiding to blindly following the clients’ instructions. While corresponding and arguing in courts, advocates are expected to use ethical and dignified language (Gillers, 2014). That language need not be unparliamentary, and during pleadings, they should be careful to avoid damaging the reputation of other parties scandalously on delusive grounds. The BCI Rules prescribe how advocates should dress in court—they should be presentable all the time. However, outside court, particularly in other public places than on ceremonial occasions and as prescribed by the BCI and the court, advocates must not wear gowns or bands.
Conflict of Interests
Advocates must not act, or must stop acting further, in cases of conflict of interests between two current or potential clients; the advocate and the client or potential client; and a current client, a potential client or between potential clients (Folberg & Golann, 2016). Accordingly, advocates must turn down the opportunity to act where they or their partners, spouses, employers, employees, descendants, or ascendants directly hold some appointment or office, which may result in a conflict of interests. By extension, an advocate should not welcome invitations to serve as an advocate for clients if it is apparent the advocate or his or her associate or firm will be required to witness, unless the advocate’s evidence is strictly formal. Advocates shall neither create an impression that they are able to make use of any connection for the clients’ advantage. According to Folberg and Golann (2016), advocates should also avoid acting or pleading in matters in which they have financial interests. For example, they should avoid acting in bankruptcy litigation when they are also creditors of the bankrupt.
Advocates should avoid appearing in or before all judicial authorities for or against any establishment if they are members of the establishment’s management (Wilkins, Khanna, & Trubek, D2017).However; this ethical principle is inapplicable to members appearing as amicus curiae or without a fee on behalf of the BCI, Bar Association, or Incorporated Law Society. It is unethical for an advocate to accept invitation to acting in a matter where another advocate is representing the client regarding the same matter, except when he or she is certain that the first advocate has compensated lawfully on close of the brief. Withal this scenario, the second advocate may act in pressing special circumstances where the client’s interests would otherwise be extremely prejudiced, in which case he must notify the first advocate. In either case, the Chamber of Advocates may find it proper to authorize the second lawyer to act (Galliott, 2016).However, advocates must avoid accepting instructions being aware that a third party has conditioned that the advocates must act.
Advocates are obliged to accept any legal briefs in the tribunals, courts, or before any other authority, before or in which he offers to practice. They are required to charge fees that are equal with the fees charged by fellow advocates of the same rank at the Bar and a similar kind of the case (Lacity, Burgess, & Willcocks, 2014). Under special circumstances, Shapiro (2002) rejoins, it is justifiable for the advocates to turn down invitations to particular briefs. Advocates should also refuse calls to stand as surety, or attest the level-headedness of sureties that their client requires for the proceedings. In such cases where advocates receive instructions from other parties other than members in the legal occupation claiming to represent their clients, advocates should immediately and directly communicate with the clients to confirm whether that is true. If it is still doubtful, the advocates shall communicate with the clients or do anything necessary to confirm the third-party instructions soonest possible.
When charging for services, advocates should not set the amount depending on the triumph of the matter pursued. Neither should they set the amount as a per centum of the property or amount received after the victory of the matter. In other words, Code of Ethics for Advocates does not allow lawyers to set a fee contingent on the outcome of litigation or seek to share the incomes thereof (Curtis & Resnik, 1997). Clearer, advocates should not buy or deal in or stipulate for or offer to get any interest or share in any actionable claim. However, nothing in this rule in Code of Ethics for Advocates shall be applicable to shares, debentures, and stock of government securities, or to any instruments that are, for the moment, by law or tradition, negotiable or to any mercenary document of title to goods. The rule extends to forbidding an advocate from using proxies to directly or indirectly buy or bid for any property vended in the execution of an order in any case, prayer, or other proceeding in which he was professionally involved in any way. However, this forbiddance does not keep advocates from tendering for or buying for their clients any property that their clients may themselves legally tender for or buy, provided the advocates are clearly authorized in writing by the clients.
The Code of Ethics for Advocates does not allow advocates to adjust fee payable to them by their clients against the advocate’s’ own personal liabilities to the clients, which do not arise during the representation. In addition, advocates should not in any way take advantage of the clients’ trust and confidence (Kao, 2003). In effect, they are required to always keep accounts of the monies clients entrust to them. The accounts in question must indicate the amounts obtained from the clients or in the clients’ behalf. The accounts need to clearly indicate expenses and deductions with their respective dates, including all other essential particulars. In other words, according to Barrett and Herwitz, (2015), the bill of costs the advocate prepares should contain enough information to identify the item and matter to which it relates and when he or she rendered the services. In addition, the accounts should show whether the funds the advocate received from the client during the counsel or proceedings are on account of fees or expenses. This, therefore, forbids advocates from diverting part of the money received for expenditures as fees without clients so instructing in writing(Barrett & Hurwitz, 2015). Code of Ethics for Advocates forbids advocates from lending money to their clients for the purpose of any activity or legal proceedings in which clients involve such advocates. However, no advocate can be held guilty for a violation of this rule, if in the course of an incomplete suit, and without any agreement with the client regarding the same, the advocate feels obliged by reason of the Court’s rule to pay the Court on the client’s account for the continuation of the suit.
Disclosure and Withdrawal
Where advocates choose to accept clients’ instructions from third-parties, they are obliged to execute those instructions diligently, carefully, and skillfully. While doing that or anything in the interest of clients, advocates must keep their clients’ business and affairs private (Wood Jr., Hogan, Bhadha, & Dadrewala, 2008). Under normal circumstances, advocates should not withdraw from serving clients after agreeing to serve them. They can, however, withdraw only if they have compelling reasons and by rationally and sufficiently notifying clients. Upon withdrawal, they are required to refund fees not yet accrued to the clients. On terminating the brief, advocates should, in accordance with any prerogative and/or right of withholding, submit to their clients all papers and belongings to which the clients are entitled, as well as account for all the clients’ funds then in the advocates’ custody. Advocates should be careful not to accept briefs or appear in cases in which they are themselves witnesses. Further, if they reasonably believe they will be required to be witnesses at some point, they should discontinue appearing for the clients in question. However, when retiring from such cases, they should do so respectfully and without jeopardizing their clients’ interests.
At the beginning of their engagements and during the engagements thereof, advocates should fully disclose to their clients their connections to other parties and their interest in or about the matter as are likely to influence their clients ‘judgment in either engaging them or keeping the engagement(Wood Jr., Hogan, Bhadha, & Dadrewala, 2008). Advocates should uphold their clients’ interests fairly, honorably, and fearlessly. They should undertake the duty without fear of any hostile consequences to themselves. Accordingly, advocates shall defend clients accused of a crime notwithstanding the advocates’ personal opinions on the guilt of the accused. They should always keep in mind that they need to be loyal to law, which demands that no one ought to be chastised without compelling evidence. Advocates should not, directly or indirectly, divulge the communications between themselves and clients, including the clients’ advice. However, if the communications or advice breach Section 126 of the Indian Evidence Act, 1872, the advocates are liable to divulge.
When appearing for criminal prosecution, advocates should conduct the transactions in a way that it does not result in sentence of the innocent. Advocates should not, therefore, directly or indirectly, violate the obligations under Section 126 of the Indian Evidence Act. For instance, advocates shall not in any way bottle up any material or evidence that is meant to establish the innocence of the defendants. Advocates should be careful not to agitate or prompt litigation. One of the ways of avoiding this is to not act on any person’s instructions other than the clients’ or the clients ‘authorized agents. When clients make occasional sensible requests for information related to the brief, advocates should dutifully comply. In case an advocate terminates the relationship with his or her client, he or she should first issue sensible notification in the circumstances.
In relation to society, whether in their individual or professional capacity, advocates should not act towards anyone in a manner that is evidently deceitful, fraudulent, or generally conflicting the appropriate exercise of professing as lawyers. They must not also use their positions and privileges as advocates to unfairly take advantage of the members of the public for themselves or anyone else. In upholding the nobility of the profession, if an advocate determines that an unqualified individual (for instance, posing as an advocate) is representing another party, the advocate should stop communicating with the unqualified individual, but without prejudicing his or her client’s interests. Advocates must also relate with other advocates in good faith, frankly, courteously, and consistent with their principal duties to their clients (Cooley, 2000).If this does not happen, especially from other advocates, in Malta, Jersey, and Seychelles, advocates are obliged to report any such serious violations to the Chamber of Advocates. If he or she finds it necessary, the advocate may obtain his or her client’s permission thereto (Donlan, Marrani, Twomey, & Zammit, 2017).
In relation to finding work, Code of Ethics for Advocates forbids advocates from soliciting work or advertising as they wish, but as prescribed legally (Burton, 1992). For instance, advocates should not promote themselves in interviews, circulars, personal communication except through personal relations, comments in dailies, advertisements, and photographs associated with cases in which they have been contracted or interested (Rossi & Marti, 2015). Advocates should not allow anyone to use their names or professional services to promote or start any unlicensed practice of law. To further protect individual integrity of lawyers, an advocate should not represent a client in any matter in which another lawyer has filed a memo for the same client. Nevertheless, with the other advocate’s consent, the advocate can appear for the same client. If it is impossible for the advocate to get consent of the other advocate who has filed a memo to represent a client, the advocate can make an application to the court for permission to appear. In such application, the advocate should provide the reason or reasons it was impossible to get such consent from the advocate who filed the memo first. Code of Ethics for Advocates only allows the advocate to appear following the court’s approval of the application.
Bagust, J. (2013). The Legal Profession and the Business of Law. Sydney L. Rev., 35, 27.
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