This article has been written by Gaurav Prakash, an advocate.
The legal profession is considered to be one of the oldest as well as the noble profession of this world. The legal profession unlike other professions, which are generally taken up with the sole object of earning money, is a profession of high dignity. It is further stated that legal professionals have a large responsibility towards society. In our country, some of our great politicians had legal careers starting from Father of Nation Mahatma Gandhi, Pandit Jawahar Lal Nehru to Shri Arun Jaitley. Like any other profession, the legal profession also contains a certain set of rules and code of conduct which every advocate and lawyer has to follow and abide by. An advocate is expected to be fair in his dealing both within the premises of the court and even outside the premises of the court.
The need for Professional ethics code in Law- The judiciary is considered one of the keystones of the arch of government. It is always expected that whenever another keystone of the arch of government becomes anarchist and cruel to the people of its state then the judiciary will use its whip to protect the interest of the country. ‘State of Uttar Pradesh Vs Raj Narain’ is the classical example when the judiciary used its power against the anarchy of the then Prime Minister of India Smt Indira Gandhi. Raj Narain filed an election petition against Indira Gandhi accusing her of using unfair measures to win the election of the year 1975 from the seat of Rai Bareilly.
Justice Jagmohanlal Sinha who was the judge of Allahabad High Court at that time passed a judgment in the favor of Raj Narain and held Indira Gandhi liable for using state machinery to win election. In his judgment, he declared the election null and void. This judgment could not have been possible without the professional ethics of Justice Jagmohanlal Sinha and Counsel of Raj Narain, Advocate Shanti Bhushan who were pressurized as well as lured to give the judgment in the favour of Smt Indira Gandhi. The counsel of Raj Narain, Shanti Bhushan, was also lured by the then-Attorney General in a dinner party who had given a subtle hint that “A new post of Additional Attorney General could be created for him”.
Thus Professional Ethics in Law is very important to secure a spirit of friendly cooperation between the Bar and bench. It is allowed to be weakened by those who are controlled by craft, greed, and gain or other immoral motives then there will be a time when people will lose interest in the machinery of justice and they will resort to illegal measures to secure justice for them.
In India section 49 (1) c of the Advocates Act 1961 gives power to the Bar Council of India to make as well as prescribe the standards of professional conduct and etiquette to be followed in the court. Chapter II of Part VI of the Bar Council of India Rules contains 52 rules. These rules are divided into 7 sections:
Section 1: Duty to the Court- Rules [1 to 10]
Section 2: Duty to the Client- Rules [11 to 33]
Section 3: Duty to an opponent [Rule 34 and 35]
Section 4: Duty to Colleagues [Rules 36 to 39]
Section 5: Duty in Imparting Training [Rule 40 to 44B]
Section 6: Duty to render Legal Aid [ Rule 45]
Section 7: Restriction on other Employments [Rule 47 to 52]
- Duty to the court: The first and the foremost duty of an advocate towards the court is that an advocate should conduct themselves in respectful, and in a dignified way in court premises. The advocate should refrain from pleading in any case in which an advocate is pecuniary interested. An advocate is bound to assist the court in deciding the case. In the absence of proper assistance to the court by the lawyer, the court is under no obligation to decide the case for the simple reason that unless and until the lawyer renders proper assistance to the court, the court is not able to decide the case. An advocate shall appear in court at all times in a very prescribed dress code and an advocate should always be in a presentable manner.
- Duty to the client: An advocate should defend a person accused of criminal offense regardless of his/her opinion as to the guilt of the accused, bearing in mind that his/her loyalty is to the law which requires that no man should be convicted without adequate evidence. An advocate should not take advantage of the client’s trust and should not divulge the confidential information of the client. An advocate should not act on any person other than his client or his authorized agent.
- Duty to colleagues: An advocate should not advertise his work either directly or indirectly, whether by circulars, advertisements, touts, personal communication, or even through interviews. An advocate shall not enter in any case in which there is already a vakalatnama or memo of appearance filed by an advocate engaged for a party except with his consent.
- Duty to Render Legal Aid: An advocate must give legal aid. Every citizen of a country is entitled to receive legal aid but not all of them can afford it. The legal profession is not all about making money it is also about serving society. Free legal assistance to the indigent and oppressed is one of the highest obligations an advocate owes to the society.
- Restriction on other Employments: An advocate cannot be a permanent employee of any organization, firm, company, or concern while he is a practicing advocate. An advocate can be a sleeping partner in a company but that accompany should not engage in any business which is inconsistent with the dignity of the profession. The advocate can take professional fees or remuneration for editing a legal textbook, coaching pupils for legal examination, set and exam question papers, lecturing, and teaching subjects both legal and non-legal.
Now let us look out a leading case on professional misconduct.
Salil Dutta v. T.M. and M.C. (P) Ltd (1993) 2 SCC 185
The plaintiff filed a suit against the defendant for ejecting the defendant on the ground of not paying rent on time and for using the premises for commercial use. The suit was listed on 09.06.1998 for the final hearing i.e. seven years after the filing of the case in the court. On 09.06.1998 the advocate for the defendant prayed for an adjournment till the next day which was accepted by the court. Next day neither the advocate nor the defendant appeared for the case, so the hearing of the suit commenced and concluded on that day. It was decided by the court that the delivery of judgment will be announced on 13.06. 1998. Meanwhile, an application was made on behalf of the defendant stating the reason for the absence of his defendant from the case but this application does not contain any prayer. On 13.06.1998 the suit was decreed ex parte on 13.06.1988. The defendant applied to set aside the ex parte decree. This application was dismissed by the trial court of West Bengal.
The defendant went to the Calcutta high court where the division bench set aside the order of the trial court. The division bench referred the case of ‘Rafiq vs Munshilal which was reported in AIR 1981 SC 1400.’ In this case, the plaintiff (Rafiq) had preferred a second appeal before the Allahabad High Court but during the second appeal his advocate was not present in the court and the court dismissed the case. Rafiq then went to the Supreme Court to appeal against the order of the Allahabad High Court. “The Supreme Court set aside the order of the Allahabad High court and stated that the dismissal of a case due to the careless and unprofessional behaviour of an advocate will not harm any advocate but to the client. When a client who has diligently pursued his case, appointed an advocate, paid him the fees, and that advocate because of his inaction and deliberate omission led to the dismissal of the case, is it fair that the party should suffer, the answer is definitely negative.”
Relying on the above decision of the Supreme Court, the division bench allowed the appeal. Thereafter an appeal was filed by the Plaintiff against the judgment and order of a Divisional Bench of the Calcutta High Court.
Whether the principle laid down in Rafiq v. Munshilal will be applicable in this case?
Observations & Decisions
The supreme court allowed the appeal and observed that:
- The defendant is a private limited company having its registered office at Calcutta itself. Unlike Rafiq, the defendant is a well-educated businessman who is fully aware of the court procedures. The defendant to delay the proceedings of the case refuse to appear before the court. According to the defendant they were advised by their advocate not to appear before the court until and unless their interlocutory application is disposed of by the court at the final hearing. It is very hard to believe that the advocate will give such advice to his client. It is also hard to believe that such learned clients will be ignorant of the fact that non-participation in the final hearing of the case can result in an adverse decision. Apart from this, there were many contradictions in the statement of the advocate of the defendant. The learned advocate in his deposition has stated that he had not filed any application for adjournment on 09.06.1988 but from the court record, it was quite evident that because of an application for cross-examination of the witnesses was made by the advocate of the defendant, the court was adjourned for 10.06.1988.
- Secondly, they observed that the advocate is the agent of the party. It was observed by the court that he was acting on the instructions of his principal i.e the party who engaged him. It is hard to believe that an educated businessman who resides in Calcutta fails to understand the procedure of the court. There are cases when an innocent litigant who is usually a poor person who is not aware of the procedures of the case and who lives in villages misses the proceedings of the case because of his advocate, in those cases the Apex court of our country set aside those order to protect the interest of the innocent litigant. But this rule is not absolute in nature. Every case has to be judged according to its merit.
This case was fought by a businessman who has his office at Calcutta, and the duration of this case lasted for about 7 years. This case was not fought seriously by the defendant as well as the counsel of the defendant. A party cannot be allowed to take advantage of their wrongdoings. It is quite evident that when their applications were not disposed of before taking up the suit for final hearing, they felt annoyed and refused to appear before the court. They have failed to pursue this case with seriousness and have not assisted the court. The learned advocate had forgotten his duty and took no pain in inquiring to the court as what happened on 10.06.1988, 11.06.1998, and 13.06.1988. The defendant, in this case, tried to build up a picture where because of the inaction of their advocate they could not attend the last proceedings, this theory should not be accepted by the court.
Hence this case was decided in the favour of the client as the advocate of the defendant failed to perform his duty towards the court, instead of assisting the court, he chose to be an agent of his client and tried to misguide the court. An advocate is first the officer of the court then the advocate of his client. One must align with these codes of conduct to maintain dignity as well as the honour of the legal profession. Any violation of the professional ethics of an advocate will be considered unfortunate and unrespectable.
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