PROFESSIONAL ETHICS

RESEARCH PROJECT

“Professional Ethics and Misconduct: In light of COVID

Pandemic”

Submitted by: Submitted to:

Abhishek Anand Ms. Sanchita Tiwari

Roll-786 Teaching Assistant (Law)

Sem-10th. NUSRL, Ranchi.

________________________________________

NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW

RANCHI

________________________________________

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 Table of Contents
Serial no. Name of Chapter Page no.
1. Abstract 3
2. Introduction 4
3. Research Objective 6
4. Research Question 6
5. Literature Review 6
6. Interpretation of the word 8
‘Professional Misconduct’
7. Duties of an Advocate 9

8. Disciplinary Committee of the 12

Bar Council
9. Lawyers and Legal Ethics in 14
Virtual Courts
10. Conclusion 17

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 ABSTRACT
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. 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 include various duties that the advocates owe to
the Court, Client, opponents, colleagues, and the society. The Advocates Act 1961 has laid down
the provisions relating to the disciplinary committees and procedures to be adopted for the
disciplinary proceedings against the advocates. The Researcher in this paper discusses the contours
of Professional Misconduct as determined from the analysis of the case laws and Reports of the
Law Commission of India. The Researcher also delves into rules and statutory provisions
governing the Standards of Professional Conduct expected from the Advocates during the COVID-
19 Pandemic. The appropriateness of the present procedure and punishment is also discussed. The
Researcher concludes the paper with suggestions so that the incidents of delinquent behavior can
be brought down significantly.

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 INTRODUCTION
“Ethics is knowing the difference between what you have a right to do and what is right to do”

Mr. Potter Stewart (An American lawyer and judge)

The legal profession is considered a noble profession by society and the fundamental prerequisite
of any profession is good ethics. So to maintain the nobility of the legal profession it is mandatory
to adhere to and observe a set of professional norms by those who adopt this profession. This
adherence and observance of a set of professional norms can be also referred to as Professional
Ethics. These ethics are principles that govern the behavior of a person or group in a professional
environment. It provides rules on how a person should act towards other people and institutions in
a particular environment.

The Advocates in India are governed by the Advocates Act, 1961. Further, the Advocates Act
provides for the establishment of the State Bar Councils and the Bar Council of India vide sections
3 and 4 of the Advocates Act, 1961, respectively.

Not complying with professional norms or ethics leads to misconduct. Professional misconduct is
nowhere defined in the Advocates Act, 1961. Even the Bar Council is silent about what is
professional misconduct. Professional misconduct here can be considered unacceptable or
improper behavior, especially done by a professional person. In the legal sense, it means; an act
done willfully with a wrong intention by the people engaged in the legal profession, which betrays
the client’s confidence or attempts to practice fraud or to deceive the court or the adverse party or
his counsel.

In other words, it can be said that any act which disqualifies an Advocate to continue in the legal
profession is considered professional misconduct.

Because of the coronavirus outbreak, which resulted in a nationwide lockdown to prevent the
virus’ spread, the Supreme Court had planned to conduct court proceedings virtually through video
conferencing. The virtual courts had a lot of benefits, for example, they reduced the environmental
impact of court proceedings.

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They also saved expenses as they reduced the need for litigants and lawyers to go to the courts. It
also provided the parties with openness regarding the place of proceedings and facilitates
availability online.

They provided direct exposure to court orders. It appears that courts in India post-pandemic will
provide a healthy balance between virtual and physical systems. But as online hearing has its
virtues it also has its vices. In India, the Bar Council itself said that up to 90% of lawyers are not
technology-friendly and fully prepared for these digital advancements.

Although the judges, attorneys, and lawyers are gradually becoming accustomed to virtual
proceedings, still the video conferencing proceedings have produced some very humorous
instances which shocked the conscience of Hon. Judges and the nation at large. While several
councils of State Bars have made laudable efforts to maintain decorum in the virtual model of
hearing and maintain some ethical standards by providing training to advocates about online
hearings and issuing a strict warning regarding misconduct taking place online, they have still not
proved to be very effective in controlling the undisciplined activities of advocates and litigants
alike.

In this paper author first discusses in brief Professional Misconduct and then moves on to discuss
the duties of Advocates to courts, colleagues, clients, and opponents. In the next part, the author
discusses the Disciplinary Committee of the Bar Councils and then discusses the virtual mode of
hearing and the problems arising out of it. In the last part, the author provides suggestions to
maintain ethical standards during the online hearing as it is becoming a regular part of our life and
this practice of online hearing is here to stay.

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 RESEARCH OBJECTIVE
Following are the objectives with which this research is being done :

 To know about the Profe3ssional Misconduct of lawyers in India

 To know about the disciplinary committee of Bar councils
 To know about the conduct of lawyers in the virtual hearing
 To provide suggestions and recommendations to prevent professional misconduct by
advocates?

RESEARCH QUESTION
Following are the research questions that the author of this research will deal with during the course
of this research:

1. What constitutes Professional Misconduct for lawyers in India?

2. What are the powers and functions of the Disciplinary Committee?
3. How was the conduct of lawyers in the course of virtual hearings during the pandemic?
4. What are the suggestions and recommendations to prevent professional misconduct by
advocates?

LITERATURE REVIEW
Like other researchers, the researcher in the present study will also analyze the previous literature
available on the given topic, which is of some relevance in the present study, some of them are:

Kouri Keenan, Rationalizing professional misconduct: An examination of techniques of

neutralization in lawyer discipline proceedings, Diss. Arts & Social Sciences: School of
Criminology, (2019):

This thesis investigates the use of neutralization techniques by lawyers to justify, excuse, and
rationalize their behavior in disciplinary action for misappropriation, real estate fraud, and
conviction for serious financial criminal offenses. In addition to assessing the nature and frequency
of lawyer neutralizations, this study also considers the extent to which law society discipline

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hearing panels evaluate and respond to these defense and mitigation strategies in making a
sanctioning determination.

Neeraj Sharma, Ethical Lawyering: A Way to Uphold the Nobility of the Legal Profession,
4 International Journal of Law Management & Humanities, 488 (2021):

In this paper, the researcher discusses the contours of Professional Misconduct as determined from
the analysis of the case laws and Reports of the 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 the present procedure and punishment is also
discussed. The Researcher concludes the paper with suggestions so that the incidents of delinquent
behavior can be brought down significantly.

Utkarsh Kumar, Professional Misconduct of Advocates in India, 2 Lex Forti Legal J., 118
(2020):

In this paper, the author deals with the concept of Professional Misconduct and analyses the
effectiveness of the current regulatory regime in maintaining a standard for the practice of law in
India. The author concludes with some valuable suggestions which can be incorporated into the
current regime to make it more effective and freer and fair.

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 Interpretation of the word ‘Professional Misconduct’
The word ‘professional misconduct’ is nowhere defined in the Advocates Act, and it is not possible
to come up with a standard definition of it. This makes precedents in this particular matter the only
reliable source of understanding the meaning of professional misconduct.

In the case of State of Punjab v/s Ram Singh Ex. Constable1, the Supreme Court had observed
that Misconduct in office may be defined as unlawful behavior or neglect by a public officer, by
which the rights of a party have been affected. Further, the court had observed that professional
misconduct may involve –

 Moral Turpitude
 improper or wrongful behavior
 unlawful behavior
 willful in character
 a forbidden act
 transgression
 carelessness or negligence in the performance of duty
 or the act complained of bears forbidden quality or character

Moral turpitude is an act or behavior that gravely violates the sentiments or accepted standards of
the community. Section 24A of the Advocates Act, 1961, states that no person shall be admitted
as an advocate on a State roll if he is convicted of an offense involving moral turpitude.

Further, if such moral turpitude is committed by a person who is already enrolled as an advocate,
then the Bar Council and its disciplinary committee can take up the matter and impose suitable
punishments. As stated by Justice K. Ramaswamy, in the above-mentioned case, it can be said that
any improper or wrongful behavior which is unlawful and is done deliberately by a professional
person, can be considered professional misconduct. Further, performing any forbidden act or a
transgression of established and definite rules of action or code of conduct may lead to professional
misconduct.

1
1992 AIR 2188, 1992 SCR (3) 634.

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 Duties of an Advocate

The advocates in India are governed by the Advocates Act, of 1961. Further, the Bar Council of
India was created by the Parliament under the Advocates Act, 1961. It is a statutory body that
regulates and represents the Indian bar. It prescribes standards of professional conduct and
etiquette and exercises disciplinary jurisdiction. Section 49(1)(c) of the Advocates Act, 1961
empowers the Bar Council of India to make rules to prescribe the standards of professional conduct
and etiquette to be observed by the advocates. Such rules are mentioned under chapter II of part
VI of the Bar Council of India rules, 1975.

The rules mentioned on standards of professional conduct and etiquette shall be adopted as a guide
for all advocates in conducting matters related to law.

Some of the rules laid down by the bar council under chapter II of part VI of the Bar Council of
India rules, 1975 are as follows: -

Section I – Duty towards the Court

An advocate must uphold his reverence and integrity towards the court if he is portraying in his
case or as an audience. An advocate must therefore not be submissive and it should also be his
responsibility to send his concerns to the suitable officials even when there is an adequate basis
for a legitimate issue against the judicial officer.

An advocate must remain civil. He cannot behave inappropriately as it spoils the court’s integrity,
the court is a good place to come to pursue justice. An advocate cannot impact the judge’s verdict
or visit the judge personally to interact to give the ruling in his favor.

A lawyer can use his perfect efforts to accomplish the case, but he can’t engage in any unethical
competition and should teach his client how to respond in court and with an adversary. The lawyer
shouldn’t be the client’s spokesperson but should inform the client concerning the court processes
and mechanisms.

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They must retain the language during the argument in court. A lawyer should show up in the
stipulated attire. This recommended dress code must not be worn outside the court or in an open
area and it should only be stretched when the Indian Bar Council allows certain ceremonial events.

Section II – Duty toward client

A lawyer should preserve his correlation with his client, especially financially. Money plays an
essential part in every profession. Even the lawyer takes money, but this doesn’t imply that this
career path is only centered on money, but it is a cognitive service. Contract terms govern the
attorney-client correlation in India.

A client selects a lawyer relying on his professional outcomes hoping he’s the perfect individual
to represent his preferences. An advocate concurs if the defendant intends to spend a certain
amount, if the client does not make a payment, the lawyer may sue him.

A client wants that his lawyer is devoted solely to work, hard-working and well-reputed. Even
with his hectic schedule, a client can freely consult his lawyer and discuss issues. An advocate can
reject a stubborn client.

The advocate should pay close attention to his client’s issue and make a complaint accordingly.
Under Rule 33 of the Bar Council of India, an advocate must not alter the parties as per the rule of
professional and judicial etiquette.

Section III – Duty towards the opponent

A lawyer is not expected to visit the opponent and must not conduct any other kind of bargaining
on the subject matter and the case and if he intends to explain some specifications, he only has to
specify the opponent and is not supposed to interact with the opponent.

Quite often the lawyers promise the opposition party that they may come down for a resolution or
mediation, but a lawyer could only go to settlement through the other party’s lawyer and not by
directly approaching the opponent.

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A lawyer should not interfere with an opponent’s lawyer as they have the authority to cross-
examine, argue and confirm the documents as this might ruin the court’s civility and integrity. If
a lawyer has to object, he is required to tell the judge. No lawyer has the right to prevent a judge
from following the course of the argument presented by the opponent.

A lawyer should establish sportsmen enthusiasm because the case includes two parties and each
advocate works hard to get a decision in their favor and may be defeated. A lawyer should always
establish an outlook of equal rights because all lawyers are equal in court, no lawyer should
condemn any lawyer including the opponent’s lawyer as it will ruin the ambiance of advocacy,
court hearings, and justice administration.

Section IV – Duty towards colleagues

A lawyer cannot show up in a situation in which the other advocate’s name occurs on a memo. To
do just that, he should first receive approval from the lawyer and if that approval is not accepted,
he should register an application with the honorable court describing why he requires approval. A
colleague is a phrase used to refer to all Bar Association members. A lawyer must honor and
abstain from condemning all colleagues.

These above-mentioned duties or responsibilities that an advocate must fulfill are called
professional ethics. An advocate who fails to satisfy these duties has infringed on professional
ethics ideals and has no right to practice law. These are the moral responsibilities that all who are
part of the legal fraternity must uphold, not just advocates, but even individuals in other areas
because morality and ethics are crucial to everyone in society.

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 Disciplinary Committee of the Bar Council
The Bar Council performs a regulatory function by prescribing standards of professional conduct
and etiquette and by exercising disciplinary jurisdiction over the bar. The Council also sets
standards for legal education and grants recognition to Universities whose degrees in law will serve
as qualifications for enrolment as an advocate.

To exercise disciplinary jurisdiction, the Bar Council of India and every State Bar Council have a
disciplinary committee. Section 9 of Advocates Act, 1961, states that every Bar Council shall
consist of a Disciplinary Committee, where every disciplinary committee shall consist of 3
members out of which two shall be persons elected by the Council from amongst its members, and
the third shall be a person co-opted by the Council from amongst the advocates who possess the
qualifications specified in the proviso to sub-section (2) of section 3 (i.e. a person who has been
an advocate on a State roll for ten years) and who are not members of the Council. The senior-
most amongst the three shall be appointed as the Chairman of the committee. 2

Section 35 of the Advocates Act, 1961, deals with the Punishment of advocates for misconduct
and talks about the disciplinary powers of the State Bar Councils.

Section 35[2] states 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”.

Further, the disciplinary committee of a State Bar Council shall fix a date for the hearing of the
case and shall cause a notice thereof to be given to the advocate concerned and the Advocate-
General of the State. The disciplinary committee of a State Bar Council after giving the advocate
concerned and Advocate-General an opportunity of being heard may make its decision on the
matter.3

2
Hon’ble Mr. Justice F.M. Ibrahim Kalifulla, Legal profession: challenges and prospects & the art of advocacy 1–25
(2013).
3
Bar Council of India, Rules on Professional Standards.

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The Disciplinary Committee can make the following orders: -

 Dismiss the complaint or, where the proceedings were initiated at the instance of the State
Bar Council, direct that the proceedings be filed;
 Reprimand the advocate;
 Suspend the advocate from practice for such period as it may deem fit;
 Remove the name of the advocate from the State roll of advocates.

Likewise, under section 36 of the Advocates Act, 1961, the Bar Council of India too has
Disciplinary powers. The disciplinary committee of the Bar Council of India while disposing of
any case under this section shall observe the same procedure as laid down in section 35. Regarding
the Bar Council of India, while giving notice to the concerned advocate, it shall also be given to
the Attorney-General of India, which in the case of the State Bar Council is the Advocate-General
of the State.4

Any person, who is aggrieved by an order of the disciplinary committee of a State Bar Council
made under section 35 or by the Advocate-General of the State, May, within sixty days of the date
of the communication of the order to him, appeal to the Bar Council of India, under section 37.
Such appeal shall be heard by the disciplinary committee of the Bar Council of India. Further, any
person who is still aggrieved by an order made by the disciplinary committee of the Bar Council
of India under section 36 or section 37 or the Attorney-General of India, as the case may be, may
within sixty days of the date on which the order is communicated to him, prefer an appeal to the
Supreme Court and the Supreme Court may pass such order (including an order varying the
punishment awarded by the disciplinary committee of the Bar Council of India) thereon as it deems
fit.5

In the recent scenario, where an online hearing is taking place due to the Covid-19 virus, many
cases of professional misconduct are being seen. Advocates are not complying with the dress code
and are appearing before the Honorable Court in a casual manner, which is against the duty of the
court. A Senior Advocate was seen smoking hookah in a live virtual hearing before the Rajasthan

4
Roger Clifford Clapp, 'Ethics for Advocates: An Overdue Conversation' (2010-2011).
5
Sharon Dolovich, Ethical lawyering and the possibility of integrity, 70 FORDHAM LAW REV. 1629–1687
(2002).

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High Court. These are things that are not expected from a person who is into a noble profession
and as the role played by Disciplinary committees in such matters is of paramount importance they
must work efficiently and in a transparent manner.

Lawyers and Legal Ethics in Virtual Courts

The pandemic has revolutionized the nation’s judiciary by preponing the concept of virtual
hearings for at least by a decade. The lawyers’ duty was to get their clients justice without further
delays, which transformed the status quo of a court proceeding. In the process, lawyers must
protect their reputations in virtual hearings while also conforming to the practical aspects of
practicing law in virtual mode.

A lawyer’s license is an essential badge of his career, and recent disciplinary proceedings against
it highlighted the need for established practices and protocols when engaging in virtual
courtrooms. While the pandemic is still ongoing with its anticipated fourth wave, it is equally
necessary to foresee the future of virtual hearings concerning safety and convenience to reduce
exposure to the virus.

The recent cases coming out of all corners of the nation suggest that lawyers are being subjected
to indiscipline and their clients are being charged with contempt due to misconduct in the virtual
model of hearing. Improper dress code during remote court proceedings, misconduct by lawyers
by way of mumbling when they thought they were muted, rude & obnoxious behavior of ill-
tempered lawyers, texting clients how to answer a particular question, all the possible ways of
misconduct in a virtual setup was witnessed since the utilization of video conferencing started by
courts.

There were even some uncivil incidents that have taken place during the video conferencing in the
courts. In one such recent court hearing which was held through video conferencing in the Supreme
Court, the judges and the public were taken aback when a lawyer appeared up on the screen without
wearing his shirt.

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Although the presence lasted only a few seconds, it was sufficient to cause bafflement among those
who were present. Controlling access to live court hearings has resulted in some humorous
incidents in the past and it isn’t the first time it has happened. While participating in a virtual
proceeding carried via video conferencing, many lawyers have indeed been observed smoking
hookah or even relaxing on the bed.

On one side, where these were the failures on the part of lawyers, there were other genuine and
natural issues in a virtual hearing. Where different members of the same family have to work
remotely and children attending their school by zoom are all in the same household, it poses a
challenge to be dealt with daily.

Another issue is regarding the training of clients. Lawyers had to train their clients for the virtual
hearing, and it becomes very difficult sometimes to train a client to access a courtroom remotely,
and to maintain their demeanor in the court once they logged in. This cannot be called a failure of
a client who may be illiterate with technology or otherwise too, neither can the onus of failure be
put on the lawyer completely. It is a process to be learned, and it will take time as the lawyer was
trained for years in law school before he/she can stand before the court, similarly to present oneself
in a virtual courtroom, they will require if not the same level of training, then at least to a significant
extent.

Further, it has not been hidden from anyone that internet connectivity in India has only taken up
its pace after the Reliance’ Jio revolution; however, even that could not cover the entire nation till
now. Many clients in the first place may not have any internet connection at their houses, and even
if they want to install one, especially for the virtual hearing, there may be a ton of connectivity and
network issues. Even well-developed cities today face Wi-Fi networks and bandwidth, let alone
the concern of the last miles of the nation. Again, a weak connection cannot be attributed to a
lawyer’s misery, due to which he may ultimately miss his hearings.

The advocates of virtual mode may argue the positives of it like reduced costs and time, require
no time to drive and parking charges, or a lawyer can multi-task while waiting for his case, but
even with all these positives, if we aspire to extract the benefits of virtual mode, we need to deal
with the issue of misconduct amicably.

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Professionalism in the virtual mode requires extra effort as the extensions of communication get
limited in such situations. A lawyer should use all the nonverbal of active listening during a virtual
hearing that he would use in a physical court hearing. Further, maintaining eye contact by looking
at the camera when listening to the judge or the other counsel and speaking shows an extra bit of
professionalism in remote courtrooms.

Nodding one’s head to indicate understanding or a little lean to show one engagement is ethical
and may prove beneficial for the client as a judge is a human being who will probably consider his
demeanor to some extent. A lawyer must not contain himself to these actions in a virtual court but
should understand the underlying idea to maintain civility and professionalism.

Further, the role of an employer comes into play. Law firms should ensure training for their
employees on maintaining the confidentiality of client information in the virtual setup. Also,
lawyers’ responsibility is to look after the other staff members or outsiders to work in an
insufficiently distant workspace to ensure confidentiality. Another confidentiality issue is with the
devices that are being used to prepare and admit cases. Hence, lawyers and other staff members
should probably use their devices even in the workplace and use strong passwords to protect their
systems. They should keep their devices updated with regular software updates to ensure that
client-related information on the device is not exposed to unauthorized access by any other third
party.

The author concludes with these remarks that a virtual practice may offer great economic and
lifestyle benefits, but those advantages should be utilized with greater care towards ethics and
professionalism. A lawyer may not be well versed in the new software to act prudently while using
them, but this does not excuse him from ensuring a successful and ethically compliant virtual
practice. All the stakeholders in the ecosystem should understand and act likewise to ensure that
the profession’s ethics are not taken for granted. In cases of doubt, a lawyer can always refer to
the rules established by the Bar Council of India for the professional conduct of law practitioners
to ensure one’s practice of law does not run against or afoul of any rules in the emerging virtual
practice in the profession.

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 CONCLUSION
The pandemic caused radical changes and disturbances in society. This also harmed the legal
profession. Amidst these difficulties, lawyers must still adhere to their professional responsibilities
and ethical principles. During the outbreak of COVID-19, numerous State Bar Associations have
even released guidance to assist lawyers with their ethical responsibilities.

In times of the pandemic, it is the duty of an advocate who is involved in a noble profession, to
keep his ethics entitled to him. The deficit of the honor and dignity of the legal profession results
in a lack of reverence for the court system and the law. During the time of the pandemic, many
people are in a situation of distress and an advocate must not take advantage of their distress and
help them in their interests, keeping in mind the ethical standards.

People have lost faith in the justice system and they presume that no action will be taken in the
event of a complaint. If justice is established in society, individuals will begin to take steps to
address their concerns on an individual basis.

People have taken the law into their own hands and are not willing to indulge in the judicial
process. As a result, property and lives are destroyed and society as a whole is brought to its knees.

Legal ethics necessitates the ethical conduct of the legal profession to prevent the destruction of
society. The Bar and the Bench are required to work cooperatively with one another to avoid the
conflict of interest.

The judiciary (the bench), the Bar (the Bar Association), and the prosecution are not adversaries.
To achieve justice, they should work together in a friendly manner. It is the duty of a person (judge
or advocate or a normal client) whether offline or in an online mode conducted through virtual
hearings, to abide by the etiquette and standard professionalism to maintain the decorum of the
court.

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