Law

Judicial Process and Administration

Judicial Process: Role of Legal Profession and Ethics
 Module details

Subject Name: Law

Judicial Process and Administration

Paper Name:

Judicial Process: Role of Legal Profession

Module Name: and Ethics

JP/LAW/15/Q-I
Module ID:

The reader should have awareness of the

Pre-requisites: basic tenets of Law, judicial process, and
Legal Profession.

To understand the role and contribution of

Objectives: Legal profession in the Judicial Process. To
highlight the importance of Ethics in Legal
Profession.

Legal Profession, Lawyers, Bar Council of

Keywords: India, Professional Ethics, Advocates etc..
 Quadrant-I (E-Text)

JUDICIAL PROCESS: ROLE OF LEGAL

PROFESSION AND ETHICS

1. INTRODUCTION

In this module of ‘Judicial Process: Role of Legal Profession and Ethics’ we would
study the significance of Legal profession in the judicial process and how ethics is
an essential determinant in realizing the objectives of this process. In order to
undertake this study the module will briefly discuss the history of legal profession
and the significant developments that have taken place over the years, followed by
a study of the present institutions which constitute and manage the legal profession
in the country. The module will reflect upon the judicial pronouncements which
have sculpted the functioning of legal profession. In the course of the study the
module will highlight the role played by legal profession and its position in the
judicial process. The module will also put forth the ethical dimensions in realizing
the objectives of legal profession.

Learning Outcomes:

(i) After studying this module, the students shall have an understanding about the
history and development of legal profession in the country.
(ii) The students will develop fair conception about the significance and role
played by the legal profession in the judicial process.
(iii) The paper will also help in understanding the importance of Ethics in a
professional activity.

2. SIGNIFICANCE OF LEGAL PROFESSION

A well-organized system of judicial administration postulates a properly equipped and
efficient Bar.1 Legal Profession has played a significant role in safeguarding the life,
liberty and property of the citizens. It has been instrumental in upholding the values
which are very essential for the growth of a free and democratic society and that the
Constitution also recognizes the important role that is played by the legal profession.
A well-knit structure of legal profession plays a pivotal role of strengthening the system
of administrative justice in the country. It is axiomatic that a properly equipped and
efficient Bar can play a pre-eminent role not only in the system of justice but also in
the constitutional government and rule of law.2

1
The Law Commission of India, Report on Reform of Judicial Administration (14th Report of
1958, Vols. 1 page 556) <www.lawcommissionofindia.nic.in/1-50/Report14Vol1.pdf>
accessed 22 November 2014.
2
Dr Haniraj L Chulani v Bar Council of Maharashtra & Goa, (1996) 3 SCC 343.
Henry S. Drinker in his book Legal Ethics 3 observes that legal profession is
distinguished from other profession by four features viz. (i) a duty of public service in
which one may attain the highest eminence without making much money, (ii) a relation
as an "officer of Court" to administration of justice involving thorough sincerity,
integrity and reliability, (iii) a relation to clients in the highest degree fiduciary, and
(iv) a relation to colleagues at the bar characterized by candor, fairness and
unwillingness to resort to current business methods of advert practising and
encroachment on their practice, or dealing directly with their clients.

Thus, legal profession is a profession of great honor. It has been created for public good
and maintaining peace and order in the society. The Supreme Court has rightly
observed that the legal profession is a partner with the judiciary in the administration
of justice.4

3. HISTORICAL DEVELOPMENT OF LEGAL PROFESSION

The legal profession as it exists today was created and developed during the British
Period 5 . It is worthy to note that in the initial days of the British Period the legal
profession was not properly organized, neither did the Britishers paid much attention
in organizing it. The history can be traced back to the establishment of the First British
Court in Bombay in 1672. The admission of Attorneys was placed in the hands of the
Governor-in-Council and not with the Court. Prior to the establishment of the Mayor’s
Courts in 1726, in Madras and Calcutta, there were no legal practitioners or lawyers.

3.1 Legal Profession during British Period

3.1.1 Charters of 1726 and 1753
The Mayor’s Courts were established in 1726 by the Charter of 1726 in each of the
three presidency towns, with right of appeal first to the Governor-in-Council and a right
of second appeal to the Privy Council. There was no specific provision in the charter
laying down any particular qualifications for the persons who would be entitled to act
or plead as legal practitioners in these courts. Presumably, it was left to these courts to
regulate this matter by rules of practice which these courts were authorized to frame.
In 1791, Judges felt the need of experience, and thus the role of an attorney to protect
the rights of his client was upheld in each of the Mayor’s Courts. The second principle
of right to dismiss an attorney guilty of misconduct was also established during the
period of the Mayor’s Courts. Despite recognition of the role of attorneys for proper
administration of Justice those who practised law in the Mayor Courts were devoid of
any legal training or any knowledge of law.6
The Charter of 1753 was issued to modify the Charter of 1726 but even this charter did
not contain any significant provisions for legal training and legal education of legal
practitioners.

3
Henry S Drinker, Legal Ethics (1st edn, Columbia University Press 1953) 1.
4
Dr Haniraj L Chulani, (n. 2) para 20.
5
For Legal Profession in Pre-British India see R P Kangle, The Kauṭilīya Arthaśāstra (2nd edn,
Motilal Banarsidass (1969); In Re: Regina Guha (1916) 35 Ind Case 925 (CHC).
6
Samuel Schmitthener, A Sketch of the Development of the Legal Profession in India (1969)
Law & Society Review 337, 341.
3.1.2 The Regulating Act, 1773 and Charter of 1774
The Regulating Act, 1773 and the Charter of 1774 contributed much to the
development of legal profession in India. The Regulating Act empowered the British
Crown to establish a Supreme Court at Calcutta by issuing a Charter. Consequently,
the Supreme Courts of Judicature was established by Royal Charters at Calcutta (1774),
Madras (1781) and Bombay (1823).

The Charter of 1774 empowered the Supreme Court to approve and enroll advocates
and attorneys-at-law7. They were referred as Attorneys of Record and were authorized
to appear and plead and act for the suitors in the Supreme Court. This clause made it
clear that no other person but advocates or attorneys so admitted and enrolled could
appear and plead or act in the Supreme Court. The clause also gave the Court the
authority to remove lawyers from the roll of the Court on reasonable cause and to
prohibit practitioners not properly admitted and enrolled from practising in the Court.
The term ‘Advocate’ then extended only to English and Irish Barristers and members
of the Faculty of advocates in Scotland and the term ‘Attorneys’ then meant only the
British attorneys or solicitor. Thus, the Indian legal practitioners were not authorized
to appear before the Supreme Court.8

As Barristers began to come into the Courts to work as advocates, the attorneys gave
up pleading and worked as solicitors. The two grades of legal practice gradually
became distinct and separate as they were in England. Madras gained its first barrister
in 1778 with Mr. Benjamin Sullivan. Thus, the establishment of the Supreme Court
brought recognition, wealth and prestige to the legal profession.

In contrast to the Courts in the presidency towns, the legal profession in the mofussil
towns was established, guided and controlled by legislation. In the Diwani Courts,
legal practice was neither recognized nor controlled, and the legal practice was carried
on by vakils and agents. Vakils had even been appearing in the Courts of the Nawabs
and there were no laws concerning their qualification, relationship to the Court, mode
of procedure or ethics of practice. Two kinds of agents existed: (a) untrained relatives
or servants of the parties in Court and (b) professional pleaders who were training in
either Hindu or Muslim law. The Bengal Regulation VII, of 1793 created for the first
time a regular legal profession for the Company’s Courts. It was enacted as it was felt
that in order to administer justice, courts must have pleading of cases administered by
a distinct profession and only men of character and education, well versed in the
Mohamedan or Hindu law and in the Regulations passed by the British Government,
would be admitted to plead in the Courts. Further, they should be subjected to rules and
restrictions in order to discharge their work diligently and faithfully by upholding the
client’s trust.

The Bengal Regulation XXVII, of 1814 also made provisions relating to the legal
profession. Bengal Regulation XII, of 1833 modified the provisions of the earlier
Regulations regarding the appointment of the pleaders. It permitted any qualified
person of whatever nationality or religion to be enrolled as a pleader of the Sadar

7
Dr K Rai, Legal Ethics Accountability for Lawyers and Bench-Bar Relations(11th edn,
Central Law Publications 2013) 16.
8
ibid.
Diwani Adalat. The Legal Practitioners Act, 1846 authorized the attorneys and
Barristers of the Supreme Court to plead in any of the Company’s Courts subordinate
to the Sadar Courts subject to rules in the said subordinate Courts.

3.1.3 The Indian High Courts Act, 1861

The Indian High Courts Act, 1861, occupies an important place in the development of
the judicial administration in India. It empowered the British Crown to establish one
High Court in each Presidency Town. In the exercise of this power the British Crown
issued the Charters to establish High Courts. In 1862, the High Courts were established
at Calcutta, Bombay and Madras. The High Court were designed to combine Supreme
Court and Sadar Court traditions. This was done to unite the legal learning and judicial
experience of the English barristers with the intimate experience of civil servants in
matters of Indian customs, usages and laws possessed by them. Each of the High
Courts was given the power to make rules for the qualifications of proper persons,
advocates, vakils and attorneys at Bar. The admission of vakils to practice before the
High Courts ended the monopoly that the barristers had enjoyed in the Supreme Courts.
It greatly extended the practice and prestige to the Indian lawyers by giving them
opportunities and privileges equal to those enjoyed for many years by the English
lawyers. Additional High Courts were established in Allahabad (1886), Patna (1916),
and Lahore (1919).

Charter of 1726 and 1753

There was no specific provision in

Mayor’s Courts were established the charter laying down
by the Charter of 1726 in each of qualifications for persons who
the three presidency towns. would be entitled to act or plead as
legal practitioners in these courts.

The Regulating Act, 1773 and Charter of 1774

The Regulating Act empowered the The Charter of 1774 empowered the Supreme
Court to approve and enroll advocates and
British Crown to establish a Supreme attorneys-at-law. They were referred as
Court at Calcutta. The Supreme Court Attorneys of Record and were authorized to
of Judicature was established by a appear and plead and act for the suitors of the
Royal Charter in 1774. Supreme Court.

The Indian High Courts Act, 1861

It empowered the British Crown to There were six grades of legal practice
establish one High Court in each in India after the founding of the High
Presidency Town. In the exercise of Courts– a) Advocates, b) Attorneys
this power the British Crown issued the (Solicitors), c) Vakils of High Courts,
Charters to establish the High Courts at d) Pleaders, e) Mukhtars, f) Revenue
Calcutta, Bombay and Madras. Agents.

There were six grades of legal practice in India after the establishment of the High
Courts: (a) Advocates; (b) Attorneys (Solicitors); (c) Vakils of High Courts; (d)
Pleaders; (e) Mukhtars; and (f) Revenue Agents. The Legal Practitioners Act, of 1879
in fact brought all the six grades of the profession into one system under the jurisdiction
of the High Courts. The Legal Practitioners Act and the Letters Patent of the High
Courts formed the chief legislative governance of legal practitioners in the subordinate
Courts in the country until the Advocates Act, 1961 was enacted.9
3.1.4 Legal Practitioners Act, 1879
In 1879, the Legal Practitioners Act was passed to consolidate and amend the law
relating to the legal practitioners. It empowered an advocate or vakil on the role of any
High Court or a pleader of the Chief court of the Punjab to practice in all the Courts
subordinate to the court on the rolls of which he was entered. The Act authorized the
High Court not established under a Royal Charter to make rules with the previous
sanction of the Provincial Government as to the qualification and admission of proper
persons to be pleaders and Mukhtars of the High Court. Section 6 of the Act empowered
the High Court to make rules consistent with this Act as to suspension and dismissal of
pleaders and mukhtars. Section 7 of the Act made provisions in respect of issue of
certificates to the pleaders and mukhtars. Section 12 of the Act empowered the High
court to suspend or dismiss any pleader or mukhtar, if he was convicted of any criminal
offence implying a defect of character which unfit him to be pleader or mukhtar, as the
case may be. Section 13 of the Act empowered the High Court to suspend or dismiss
pleader or mukhtar guilty of unprofessional conduct.

3.1.5 Indian Bar Committee, 1923

In 1923 a Committee called the Indian Bar Committee was constituted under the
Chairmanship of Sir Edward Chamier. The Committee was to consider the issue as to
the organization of the Bar on all India basis and establishment of an all-India Bar
Council for the High Court. The Committee was not in favour of organizing the Bar on
all India basis and establishing an all India Bar Council. The Committee suggested that
in all High Courts a single grade of practitioners should be established and they should
be called advocates. On the fulfillment of certain conditions vakils should be allowed
to plead on the original side of the three High Courts. A Bar Council should be
constituted for each High Court. It should have power to enquire into matters calling
for disciplinary action against a lawyer.10

3.1.6 Indian Bar Councils Act, 1926

The Indian Bar Councils Act, 1926 was enacted to unify the various grades of legal
practice and to provide self-government to the Bars attached to various Courts. The
main object of the Act was to provide for the constitution and incorporation of Bar
Council for certain courts, to confer powers and impose duties on such Councils and
also to consolidate and amend the law relating to the legal practitioners of such courts.
The Act required that each High Court must constitute a Bar Council made up of the
Advocate General, four men nominated by the High Court of whom two should be
Judges and ten elected from among the advocates of the Bar.11 The duties of the Bar
Council were to decide all matters concerning legal education, qualification for
enrolment, discipline and control of the profession. It was favourable to the advocates

9
S Deshta, Legal Profession in India: Retrospect and Prospect (2004) MDU RLJ 145, 152.
10
S Row, Advocates Act (4th edn, Law Book Company 1966) 15.
11
N Dutt Majumdar, Advocates Act and Professional Ethics Law Relating to The Legal
Profession in India (2nd edn, Eastern Law House 1975) 45.
as it gave them authority previously held by the judiciary to regulate the membership
and discipline of their profession.

3.2 Legal Profession after Independence

3.2.1 All India Bar Committee, 1951
The Indian Bar Council Act, 1926 failed to satisfy the Bar. The Bar Councils were not
given any significant power, they were mere advisory bodies under the Act. In 1951 a
committee known as the All India Bar Committee was appointed under the
Chairmanship of Justice S.R. Das. The Committee recommended the establishment of
an All India Bar Council and State Bar Councils. Subject to certain safeguards the
committee suggested that the powers of enrolment, suspension and removal of
advocates should be vested in the Bar Councils. It recommended that there should be
no further recruitment of non-graduate pleaders or mukhtars. It also recommended that
there should be a common role of Advocates who should be authorized to practice in
all Courts in the country. The Fifth Law Commission in its fourteenth report submitted
in 1958, recommended for establishment of a united All India Bar. It also
recommended for the division of Bar in to Senior Advocates and Advocates.

3.2.2 Advocates Act, 1961

The Advocates Act, 1961 was enacted for the purpose of amending and consolidating
the law relating to legal practitioners and also for providing the constitution of Bar
Council and an All India Bar. The Act lays down process of admission12, practice13,
ethics14, privileges, regulations, discipline15 and improvement of the profession as well
as law reform16 are now significantly in the hands of the profession itself. Under the
Act, the Bar Council of India is the supreme regulatory body to regulate the legal
profession in India and also to ensure the compliance of the laws and maintenance of
professional standards by the legal profession in the country.

Chapter-III
Chapter-IV
Admission and Enrolment of
Right to Practice
Advocates

Advocates Act, 1961

Chapter-V Bar Council of India

Conduct of Advocates State Bar Council

12
The Advocates Act, 1961, Chapter-III, ss 16-28.
13
ibid, Chapter-IV, ss 29-34.
14
ibid, s 49(1)(c) read with Chapter II, Standards of Professional Conduct and Etiquette of the
Bar Council of India Rules.
15
The Advocates Act, 1961, s 9 and Chapter V, ss 35-44.
16
ibid ss 6-7.
 For this purpose, the Bar Council of India is authorized to pass regulations and make
orders in individual cases and also generally. Further, under the Act there is only one
category of practitioners known as Advocates.

4. ROLE OF LEGAL PROFESSION IN JUDICIAL PROCESS

Advocacy touches and asserts the primary value of freedom of

expression and it is a practical manifestation of the principle
of freedom of speech.17
The continuous growth of the institution of Advocacy and the importance attached to
it by the Judiciary has made it an indispensable part of the Judicial Process.18 There has
been a sea change in the institution since the need of attorney was first recognized by
the Mayor Courts. The role of legal profession in the Judicial Process is eminent as
lawyers bring the law to non-lawyers by advising clients and by drafting documents
that make clients’ transactions or works to serve their interests within legal constraints.
Lawyers make the system of justice work, they play an active role in the litigation
process, shepherding cases through the system and law making as well. Many lawyers
serve in legislatures and parliaments and often lawyers are called upon to advise
parliaments on the details of new laws. Further, in democratic societies, lawyers surely
fill an important role that no other professional fills: the lawyer is the guardian of the
rule of law, the ideal that all people stand equally before the law and neither expect nor
receive special treatment from it. In emerging democracies, this role is especially
important for lawyers, who have the potential to become the great levelers between the
powerful and the less so.19

The importance attached to the role assigned to the lawyer in the judicial process have
made it necessary that the lawyers conduct themselves with utmost dignity and fairness
to uphold the faith posed by the litigants and Courts in their capacity as officers of the
court in the discharge of their duties and help establishing rule of law in the country.
In this direction the Advocates Act, 1961 is a legislative milestone which has
revolutionized the legal profession in the Country. The Act has created institutions as
the guardian of the profession, and has laid down rights and duties of the lawyers and
the mechanisms to take punitive measures in case of dereliction of duty.

The salient features of the Act are as follows:

1. The establishment of an All India Bar viz. The Bar Council of India.20
2. Creation of autonomous State Bar Councils for each state.21
3. Integration of the Bar as a single class of legal practitioners known as
Advocates.22
4. Right of the Advocate on roll to practice throughout India.23

17
Radha Mohan Lal v Rajasthan High Court (2003) 3 SCC 427.
18
Soli J Sorabjee, Lawyers as Professionals (2002) AIR J 4, 6.
19
J E Moliterno & P D Paton, Global Issues in Legal ethics (2nd edn, West Academic
Publishing 2014) 1.
20
The Advocates Act, 1961, s 4.
21
ibid s 3.
22
ibid s 29.
23
ibid s 30.
 5. Requirement of a uniform qualification for the admission of persons to be
advocates.24
6. Division of Advocates into Senior Advocates and other Advocates. Power
given to the High Courts and Supreme Court to designate Seniority on the basis
of advocate’s ability, experiences, standing and eminence at the Bar.25
7. Promote and determine standards of legal education and recognition of degrees
in law for the purpose of enrolment as advocate and inspection of Universities
for recognizing its degree in law.26

4.1 Bar Council of India

The most significant achievement of the Advocates Act, 1961 is the creation of a united
national Bar in India called the Bar Council of India, with multifarious functions and
wide powers. 27 The Act transfers the powers of the High Court to discipline and
reprimand the advocates for professional or other misconduct to the State Bar Council,
or the Bar Council of India as the case may be. Prior to this Act High Court alone was
competent to punish the deviant lawyers. The functions of the Bar Council of India are
laid down under Section 7 of the Act:

1. To lay down standards of professional conduct and etiquette for Advocates;

2. To lay down the procedure to be followed by its disciplinary committee and
the disciplinary committee of each state Bar Council;
3. To safe guard the rights, privileges and interest of advocates;
4. To support and promote law reforms;
5. To deal with and dispose of any matter arising under this Act, which may be
referred to it by a State Bar Council;
6. To promote legal education and to lay down standards of such education in
consultation with the Universities in India imparting such education and the
State Bar Councils;
7. To recognize Universities whose degree in law shall be a qualification for
enrolment as an advocate and for that purpose to visit and inspect Universities
(or cause the State Bar Councils to visit and inspect Universities in accordance
with such directions as it may give in this behalf);
8. To exercise general supervision and control over the State Bar Councils;
9. To conduct seminars and organize talks on legal topics by eminent jurists and
publish journals and papers of legal interest;
10. To organize legal aid to the poor in the prescribed manner;
The Supreme Court in the matter Ex Captain, Harish Uppal v Union of India and
Another28 while declaring strike call by lawyers as ex facie bad in law observed that
Section 7 of the Advocates Act provides for the functions of the Bar Council of India.
None of the functions mentioned therein authorize paralyzing of the working of Courts
in any manner. On the contrary, Bar Council of India is enjoined with the duty of laying
down standards of professional conduct and etiquette for advocates. This would mean

24
ibid s 24.
25
The Advocates Act, 1961, s 16.
26
ibid s 7.
27
Dr. A Prasad, Principles of the Ethics of Legal Profession in India (University Book House
2004) 45.
28
AIR 2003 SC 739.
that the Bar Council of India ensures that Advocates do not behave in unprofessional
and unbecoming manner. Section 48A gives a right to Bar Council of India to give
directions to State Bar Councils. The Bar Associations may be separate bodies but all
Advocates who are members of such Association are under disciplinary jurisdiction of
the Bar Councils and thus the Bar Councils can always control their conduct.

The State Bar Council under the Advocate Act have also been entrusted with numerous
functions and duties, Section 6 of the Act lays down the functions of State Bar
Councils, some of which are cited below:

1. To admit persons as Advocates on its rolls and to prepare and maintain such
rolls;
2. To entertain and determine cases of professional or other misconduct against
advocates on its roll;
3. To punish advocates found guilty of professional or other misconduct;
4. To promote the growth of Bar Associations for the purposes of effective
implementation of the welfare schemes referred to in clause (a) of sub-section
(2) of this section clause (a) of sub-section (2) of section 7;
5. To promote and support law reform;
6. To conduct seminars and organize talks on legal topics by eminent jurists and
publish journals and paper of legal interest;
7. To safeguard the rights, privileges and interests of Advocates on its roll;
8. To provide legal aid to the poor.

Sections 16 to 28 of the Advocates Act deal with admission and enrolment of

advocates. Section 16 provides that there shall be two classes of advocates, namely,
senior advocates and other advocates. 29 An advocate may with his consent be
designated as senior advocate if the Supreme Court or a High Court is of opinion that
by virtue of his ability, standing at the Bar or special knowledge in law, deserves such
distinction.30

Section 35 of the Advocates Act provide in respect of punishment for professional or

other misconduct. It provides that where on receipt of a complaint or otherwise a State
Bar Council has reason to believe that any advocate on its roll has been guilty of
professional or other misconduct, it shall refer the case for disposal to its disciplinary
committee. The disciplinary committee has the power to reprimand the advocate or
suspend the advocate from practice for such period as it may deem fit or remove the
name of the advocate from the State roll of advocates. In Noratanmal Chouraria v M
R Murli & Anr31, the Supreme Court has observed that misconduct has not been defined
in the Advocates Act, 1961. Misconduct, inter alia, envisages breach of discipline,
although it would not be possible to lay down exhaustively as to what would constitute
misconduct and indiscipline, which, however, is wide enough to include wrongful
omission or commission whether done or omitted to be done intentionally or

29
The Advocates Act, 1961, s 16(1).
30
ibid, s 16(3).
31
(2004) 5 SCC 689.
 unintentionally. It means, "improper behavior, intentional wrong doing or deliberate
violation of a rule of standard or behaviour". Misconduct is said to be a transgression
of some established and definite rule of action, where no discretion is left except what
necessity may demand; it is a violation of definite law.

The Supreme Court has also commented on the role of lawyers in judicial process on a
number of occasions. In Rameshwar Prasad Goyal, In Re the Supreme Court observed:

‘Lawyers play an important part in the administration of justice. The profession

itself requires the safeguarding of high moral standards. As an officer of the court
the overriding duty of a lawyer is to the court, the standards of his profession and
to the public. Since the main job of a lawyer is to assist the court in dispensing
justice, the members of the Bar cannot behave with doubtful scruples or strive to
thrive on litigation. Lawyers must remember that they are equal partners with
judges in the administration of justice. If lawyers do not perform their function
properly, it would be destructive of democracy and the rule of law.’32

In Sudha v President, Advocate Association Chennai & Othersthe court observed:

The legal profession is a solemn and serious occupation. It is a noble calling and
all those who belong to it are its honourable members. Although the entry to the
profession can be had by acquiring merely the qualification prescribed by different
universities, the honour as a professional has to be maintained by its members by
their exemplary conduct both in and outside the court. The legal profession is
different from other professions in that what the lawyers do, affects not only an
individual but the administration of justice which is the foundation of the civilized
society. Both as a leading member of the intelligentsia of the society and as an
intelligent citizen, the lawyer has to conduct himself as a model for others both in
his professional and in his private and public life. 33

The United Nations has also asserted the role of lawyers in judicial process by enacting
the Basic Principles on the Role of Lawyers34which have been formulated to assist
Member States in their task of promoting and ensuring the proper role of lawyers,
should be respected and taken into account by Governments within the framework of
their national legislation and practice and should be brought to the attention of lawyers
as well as other persons, such as judges, prosecutors, members of the executive and the
legislature, and the public in general. These principles shall also apply, as appropriate,
to persons who exercise the functions of lawyers without having the formal status of
lawyers.

32
(2014) 1 SCC 572.
33
(2010) 14 SCC 114.
34
Adopted by the Eighth United Nations Congress on the Prevention of Crime and the
Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990. The instrument
relates to matters of (a) qualification and training (b) duties and responsibilities (c) freedom of
expression and association and (d) disciplinary proceedings.
The Law Commission of India while studying the role of legal profession in the
administration of justice has observed that legal profession enjoys on the one hand
uninhibited eulogy and on the other hand no holds barred condemnation. The criticism
against the profession being that lawyers are always looking for technical and
sometimes dubious means for bending the law to their advantage. This criticism against
the profession is as old as the profession itself. However, abjuring this criticism the
role of legal profession has to be assessed in the context of the Constitutional mandate
as set out in Article 39A of the Constitution. The role of the legal profession thus would
be to ensure equal opportunity to all litigants in search of justice. Legal profession is
expected to ensure that anyone who has not the economic wherewithal to seek justice
must not turn away from the law courts on the only ground that he is unable to incur
necessary expenditure to secure justice.35

In another dimension lawyers are seen as influential agents of change, there is

prominence of lawyers as organizers and spokesmen of civic and reform groups. They
are not only instrumental in the formation of "modern" groups like labor unions, but
also in the reorganization of traditional groups along modern lines. Whether the
interests and concerns are traditional or modern, lawyers seem to be instrumental in
devising modern organizational forms articulated to action in the national world of
government policies and plans.36

5. LEGAL PROFESSION AND PROFESSIONAL ETHICS

‘Some standards can be prescribed by law, but the spirit and the quality of service
rendered by a profession depends far more on its observance of ethical
standards.’37

The word ethics means a science of morals, or it is that branch of the philosophy which
is only concerned with human character and conduct and so it is purely a moral science.
The standards of morals which are applied to an ordinary citizen in any other walk of
life shall be the standard of morals for an advocate too. The norms of morals fixed for
an advocate is in consonance with its high office, intellectual learning and social
responsibility.

Legal Ethics is that branch of moral science which lays down certain duties for the
observance of its member which he owes to the society, to the court, to the profession,
to his opponent, to his client and to self.38 Professional Ethics may be defined as a code
of conduct written or unwritten for regulating the behavior of a practicing lawyer
towards himself, his client, his adversary in law and towards the court. Professional
Ethics thus is properly a matter of positive law of the same character as laws governing
a regulated business. While the requirement of such a positive law are not the only
normative considerations by which a lawyer might guide his conduct, they are
minimum standards in that a lawyer should in all event comply with them.39

35
Law Commission of India, Report on Role of The legal profession in the administration of
justice (131st Report of 1988 page 13).
36
M Galanter, The Study of the Indian Legal Profession (1968) LSR 201, 212.
37
Justice J B Thomas, Judicial Ethics in Australia (2nd edn, LBC Information Service 1997).
38
K G Chari, Advocacy and Professional Ethics (Wadhwa & Co 2000) 3.
39
G C Hazard, Ethics in the Practice of Law (Yale University Press 1978) 5.
5.1 Restatement of Values of Judicial Life
Roscoe Pound, while touching on the subject observes that along with training and
experience, in order to be a help to the courts and an aid to the administration of justice,
advocacy demands the professional spirit. In order to further justice, in order to ensure
that the machinery of justice is not perverted, those who operate the machinery must
not merely know how to operate it, they must have a deep sense of things that are done
and things that are not done.40

The Judiciary has recognized the importance of Ethics in raising the standards of
Judicial Process in the Country and in this respect on May 7, 1997 Supreme Court of
India in its Full Court adopted a Charter called the “Restatement of Values of Judicial
Life” to serve as a guide to be observed by Judges, essential for independent, strong
and respected judiciary, indispensable in the impartial administration of justice.

The Supreme Court in the matter O P Sharma and others v High Court of Punjab and
Haryana 41 has observed that an advocate's duty is as important as that of a Judge.
Advocates have a large responsibility towards the society. A client's relationship with
his/her advocate is underlined by utmost trust. An advocate is expected to act with
utmost sincerity and respect. He is under an obligation to uphold the rule of law and
ensure that the public justice system is enabled to function at its full potential. Any
violation of the principles of professional ethics by an advocate is unfortunate and
unacceptable. An ideal advocate should believe that the legal profession has an element
of service also and associates with legal service activities. Most importantly, he should
faithfully abide by the standards of professional conduct and etiquette prescribed by
the Bar Council of India in Chapter II, Part VI of the Bar Council of India Rules.

The High Court of Delhi upholding the importance of ethics in judicial life in Secretary
General, Supreme Court of India v Subhash Chandra Agarwa,l42 held that all persons
possessing a portion of power ought to be strongly and awfully impressed with an idea
that they act in trust and that they are to account for their conduct in that trust.

5.2 Professional Ethics under Advocates Act, 1961

A lawyer’s function therefore lays on him a variety of legal and moral obligations
toward: the client; the courts and other authorities before whom the lawyer pleads the
client’s cause or acts on his behalf; the legal profession in general and each fellow
member of it in particular; the public for whom the existence of a free and independent
profession itself is an essential means of safeguarding human rights in face of the power
of the state and other interests in society.

Chapter – II, Standards of Professional Conduct and Etiquette of the Bar Council of
India Rules43 specifies the duties of an advocate. It states that an advocate shall, at all
times, conduct himself in a manner befitting his status as an officer of the Court, a
privileged member of the community, and a gentleman, bearing in mind that what may

40
Rosco Pound, The Lawyer from Antiquity to Modern Times (West Publishing Co 1953) 26.
41
(2011) 6 SCC 86.
42
AIR 2010 159 Del.
43
The Advocates Act, 1961, Rules under s 49 (1) (c) of the Act read with the Proviso thereto.
be lawful and moral for a person who is not a member of the Bar, or for a member of
the Bar in his non-professional capacity may still be improper for an advocate.

Duty
to the
Court

Duty Professi Duty

to the onal to the
Client Ethics Client

Duty
to the
Oppon
ent

The Rules envisages that the duty of an Advocate is four fold i.e. Duty to the Court,
Duty to the Client, Duty to Opponent and Duty to Colleagues. The Rules elaborate
these duties as follows:

5.2.1 Duty to the Court

There are ten rules under Section I of this Chapter, enlisting the duties of an advocate
to the court. Advocate is described as an officer of court. He is the minister of Justice
and a friend of court. It is the duty of an advocate to maintain the honour and dignity
of the court as this is necessary for the survival of free community. He should not abuse
the judicial process and abstain from showing disrespect to Judiciary.44

The advocate should not do anything which lowers the public confidence in the
administration of Justice. It is the duty of the Bar to support judges in their
independence. The advocate should not do anything which is calculated to obstruct,
divert or corrupt the stream of justice. Another duty which the advocate owes to the
court is of fidelity i.e. he must be honest in his presentation and citation of law and
authority which is over-ruled or repealed. The counsel is to present everything to the

44
ibid rule 2.
judge openly and in court and nothing privately. The advocate must not place himself
in a position in which he cannot effectively discharge his obligations to the court as
minister of justice, for instance, he should not have any personal interest in a litigation
he is conducting.

5.2.2 Duty to the Client

The bulk of rules under Section II enlist the different duties an advocate owes to the
client. Commenting on this duty, the Supreme Court, in the case of P.D. Khandekar v
Bar Council of Maharashtra45observed that for an advocate to act towards his client
otherwise than with utmost good faith is unprofessional. When an advocate is entrusted
with a brief, he is expected to follow norms of professional ethics and try to protect the
interests of his client in relation to whom he occupies a relation of trust. Counsel’s
paramount duty is to the client. When a person consults a lawyer for his advice, he
relies upon his requisite experience, skill and knowledge as a lawyer and the lawyer is
expected to give proper and dispassionate legal advice to the client for the protection
of his interests. An advocate stands in a loco parentis position towards the litigants and
it therefore follows that the client is entitled to receive disinterested, sincere and honest
treatment specially where the client approaches the advocate for succor in times of
need.

Some of the duties enlisted in this Section are such as, an advocate is bound to accept
any brief in the Courts or Tribunals or before any other authorities in or before which
he proposes to practice at a fee consistent with his standing at the Bar and the nature of
the case. 46 An advocate shall not ordinarily withdraw from engagements, once
accepted, without sufficient cause and unless reasonable and sufficient notice is given
to the client.47 An advocate should not accept a brief or appear in a case in which he
has reason to believe that he will be a witness. 48 An advocate shall at the
commencement of his engagement and during the continuance thereof, make all such
full and frank disclosure to his client relating to his connection with the parties and any
interest in or about the controversy as are likely to affect his client’s judgment in either
engaging him or continuing the engagement.49 An advocate shall not, at any time, be a
party to fomenting of litigation.50 An advocate shall not act on the instructions of any
person other than his client or his authorized agent. An advocate shall not stipulate for
a fee contingent of litigation or agree to share the proceeds thereof.

In Lalit Mohan Das v Advocate General, Orissa & Another, the Hon’ble Supreme
Court emphasizing of the dual obligations of an advocate and observed:

"A member of the Bar undoubtedly owes a duty to his client and must place
before the Court all that can fairly and reasonably be submitted on behalf of his
client. He may even submit that a particular order is not correct and may ask

45
(1984) 2 SCC 566.
46
ibid (n. 43) rule 11.
47
ibid (n. 43) rule 12.
48
ibid (n. 43) rule 13.
49
ibid (n. 43) rule 14.
50
ibid (n. 43) rule 18.
 for a review of that order. At the same time, a member of the Bar is an officer
of the Court and owes a duty to the Court in which he is appearing.” 51

5.2.3 Duty to Opponent and Duty to Colleagues

The Code of Conduct also contains rules regarding other duties of the advocates
including the duties to the opponent52and colleagues53 and duty to render legal aid to
the indigent and oppressed.54 Rule 47-52 under Section VII impose restriction on the
advocates on other employments.

The importance of Professional ethics in legal profession and their role in judicial
process is indispensible for strengthening the rule of law in the Country as it requires
the Lawyers to fearlessly uphold the rule of law without any favor. The Hon’ble
Supreme Court in A S Mohammed Rafi v State of Tamil Nadu Rep by Home Dept &
Ors.,55 emphasizing the importance of ethics held:

“Professional ethics requires that a lawyer cannot refuse a brief, provided a

client is willing to pay his fee, and the lawyer is not otherwise engaged. Hence,
the action of any Bar Association in passing such a resolution that none of its
members will appear for a particular accused, whether on the ground that he is
a policeman or on the ground that he is a suspected terrorist, rapist, mass
murderer, etc. is against all norms of the Constitution, the Statute and
professional ethics. It is against the great traditions of the Bar which has always
stood up for defending persons accused for a crime. Such a resolution is, in fact,
a disgrace to the legal community. We declare that all such resolutions of Bar
Associations in India are null and void and the right minded lawyers should
ignore and defy such resolutions if they want democracy and rule of law to be
upheld in this country. It is the duty of a lawyer to defend no matter what the
consequences, and a lawyer who refuses to do so is not following the message
of the Gita.”

Section 35 of the Advocates Act empowers the bar council to take necessary action
against a lawyer if he/she is guilty of professional or any other misconduct. The
disciplinary committee of a State Bar Council after giving the advocate concerned and
the Advocate-General an opportunity of being heard may punish the advocate in any
of the following manner:

a) reprimand the advocate;

b) suspend the advocate from practice for such period as it may deem fit;
c) remove the name of the advocate from the State roll of advocates.

6. Summary
The Advocate Act, 1961 was enacted to amend and consolidate the law relating to legal
practitioners and to provide for the constitution of Bar Councils and All India Bar.

51
AIR 1957 SC 250.
52
ibid (n. 43) rules 34-35.
53
ibid (n. 43) rules 36-37.
54
ibid (n. 43) rule 46.
55
(2010) INSC 1060.
Though the Act has been in force for over five decades and the object stated in the
Preamble of the Act has also been achieved in a sense, but the larger object of
improving the standards of the legal profession has not been achieved at all. This is
because of multitude of reasons, primarily being that legal profession is not the
preferred choice of first brains and mostly those ventures in the legal profession who
could not find place in any other profession. Then, the quality of legal education has
also gone down drastically and the prime reason for this is the mushrooming of private
law colleges which lack adequate resources to impart legal education and
commercialization of education. Further, at the Bar, the huge gap between the income
and resulting social status of the rich and poor lawyers is quite alarming. The
concentration of work in the hands of few senior lawyers, the substantial influence that
senior lawyers wield over the Benches and the court rooms, and the unethical practices
of some members of the Bar who have been found guilty of influencing witnesses in
Criminal Trial, has only weakened the legal profession. Still further, the rampant strikes
by the lawyers despite the judgment56 of the Apex Court declaring strikes by lawyers
as unconstitutional and resort to violence has tarnished the image of legal profession.

The Legal profession can still play a vital role in upholding individual’s rights,
promoting more efficient and widespread justice and acting as an integrating force in
national life. It has now to its credit a unified Bar and controls the quality of its
education, requirement and ethical standards. It has extensive literature and great deal
of experience to overshadow all the impediments towards completely realizing the
objective of the Advocates Act.

The urgent need for the legal profession is to become people oriented and to reorient
themselves towards the service of people. They must show recognition of what is meant
by the service ethics of dealing with the need of a fellow human being’s need without
consideration of self-interest. Lawyers must serve as healers not makers of human
conflict and suffering.

56
ibid (n. 28).