Professional ethics of lawyer

Definition of Professional Ethics:

A code of conduct that lawyers must follow in dealing with
themselves, the public, their clients, and the courts.
It governs the professional conduct of lawyers and is
crucial for the growth and integrity of the legal profession.
Importance of Professional Ethics:
• Essential for the clean and efficient functioning of the
legal profession.
• Ensures that lawyers contribute positively to the
profession and maintain its standards.
Historical Perspective:
• The utility of professional ethics has been evident since
the beginning of the legal profession, particularly guided by
those with practical legal experience.
• Not just legal experts but also those with broad,
practical knowledge have influenced the profession’s ethical
practices.
Chief Justice Hughes (American Supreme Court):
• Ethics are critical for the functioning of democratic
institutions.
• Justice must be dominant in the legal process; without
ethics, legal procedures lose their significance.
Chief Justice Marshall (American Supreme Court)
The aim of legal ethics is to:
• Uphold the honor and dignity of the legal profession.
• Promote cooperation between the Bench and the Bar.
• Encourage fair dealings and foster a spirit of
brotherhood in the Bar.
• Secure lawyer responsibilities toward the community.
K.V. Krishna Swami Iyer (Madras High Court): The legal
profession requires:
• Vast knowledge, high mental capacity, culture, and
integrity.
• The ability to analyze facts and understand human
motivations.
• Clear and forceful presentation of facts and arguments.
• Mastery in dealing with complex legal situations and
earning a reputation through results.
Edmund Burke’s View on Law:
• Burke emphasizes the nobility of law as a science
that enhances understanding more effectively than any other
form of learning.
Professional Etiquette:
• Lawyers must not only uphold decency, elegance, and
dignity but also maintain friendly, cordial relationships with
their peers.
• Lawyers’ duties involve managing complex human
relationships tested through their daily lives.
• Lawyers must cope with various challenges by using
their mental, moral, and physical faculties.
• A lawyer must maintain good relations with both their
fellow advocates and the judiciary, ensuring harmony and
satisfaction in the profession.
Pre-1961 Misconduct Provisions:
• Before the Advocates Act, 1961, lawyers were
disciplined under the Indian Bar Council Act, 1926.
• Section 10 of the 1926 Act empowered the High Court to
reprimand, suspend, or remove an advocate found guilty of
misconduct.
Indian Bar Council Act, 1926:
• Complaints against advocates could be made to the High
Court, Bar Council, or other courts.
• The Bar Council could refer such cases to the District
Judge if it found reason to believe that the advocate was
guilty of misconduct.
Legal Practitioners Act, 1879:
Sections 13 and 14 of the Legal Practitioners Act, 1879 dealt
with the suspension and dismissal of pleaders and mukhtars
for unprofessional conduct.
• Section 13 covers:
 1. Improper Instructions: A lawyer who takes
instructions from someone other than the authorized party,
as per the Code of Civil Procedure, can be dismissed.
2. Fraudulent Conduct: Lawyers guilty of fraudulent or
improper actions in their professional duty are subject to
dismissal.
3. Improper Retention of Fees: Any lawyer who
accepts improper payments or gratifications for procuring or
engaging in legal business can be dismissed.
Misconduct Definitions under the Legal Practitioners Act,
1879:
Section 13(d): Procuring or attempting to procure
employment through intermediaries or receiving
remuneration for employment via unauthorized parties.
Section 13(e): Accepting employment through a person
declared a “tout” under Section 36.
Section 13(f): Any other reasonable cause for misconduct.
Impact of the Advocates Act, 1961:
• Section 13 of the Legal Practitioners Act, 1879, was
repealed on 1.9.1963 when Chapter V of the Advocates Act,
1961, came into effect.
• However, Section 55 of the Advocates Act states that
provisions of the Legal Practitioners Act, 1879 will still apply
to pleaders and mukhtars practicing before the enactment of
the Advocates Act, and they remain subject to High Court
jurisdiction.
Classification of Misconduct: The Legal Practitioners Act,
1879, defines six types of misconduct, three of which relate
to tourism:
1. Taking instructions from unauthorized persons.
2. Fraudulent or improper conduct in professional
duties.
3. Employment of touts.
4. Other reasonable causes.
Section 14 of the Legal Practitioners Act, 1879:
• Procedure for charges of unprofessional conduct in
subordinate courts or revenue offices:
• If a pleader or mukhtar is charged with misconduct in a
subordinate court or revenue office, they must be served
with a copy of the charges and notified at least 15 days
before the appointed hearing date.
• All evidence will be recorded, and if the presiding officer
finds the charges valid, the pleader or mukhtar may be
dismissed or suspended.
• The High Court must be notified, which will decide on
acquittal, suspension, or dismissal.
Suspension Pending Investigation:
• A District Judge, any Judge of a Court of Small
Causes, or a Magistrate (with the proper sanction) may
suspend a pleader or mukhtar pending investigation and the
orders of the Revenue Officer in cases of suspected
misconduct High Court’s Authority to Suspend Pleaders or
Mukhtars:
• The High Court can suspend pleaders or mukhtars
from practice if charged under this section.
Reporting to the High Court:
• Reports to the High Court must follow these
channels:
• (a) Reports made by a Civil Judge subordinate to a
District Judge must go through the District Judge.
• (b) Reports made by a Magistrate subordinate to
the Magistrate of the District must go through the Magistrate
of the District and Sessions Judge.
• (c) Reports made by the Magistrate of the District
must go through the Sessions Judge.
• (d) Reports by Revenue Officers subordinate to the
Chief Controlling Revenue Authority must go through the
Chief Revenue Authority, as directed by the controlling
authority.
Effect of Repeal of Section 13: Although Section 13 was
repealed on 1st September 1963 when the Advocates Act,
1961 came into force, Section 55 of the Act keeps provisions
applicable for pleaders and mukhtars practicing before the
Act came into effect.
Section 15: Power to Call for Records in Case of Acquittal:
• The High Court has the authority to call for the record of
a case if a pleader or mukhtar is acquitted under Section 14.
• This section allows the High Court to review such cases
and pass orders as it deems fit.
• Section 15 was also repealed on 1st September 1963,
but under Section 55 of the Advocates Act, 1961, it remains
relevant for pleaders and mukhtars practicing before that
date.
Provisions of Professional Ethics under the Advocates Act,
1961:
• Although provisions existed under the Legal
Practitioners’ Act, 1879, there was still uncertainty about
professional ethics and misconduct for advocates.
• To address this, Section 49(1)(c) of the Advocates
Act, 1961, empowers the Bar Council of India to frame rules
on professional ethics and etiquette.
• Punishments for violations of these standards are
addressed under Sections 35 and 36 of the Advocates Act,
1961.act. Preamble:

• An advocate must always conduct themselves in a

manner that upholds their status as an officer of the court, a
privileged community member, and a gentleman.
• Advocates must behave in a lawful and moral way,
ensuring their conduct upholds the interests of their client
while adhering to the rules of conduct.
• The rules serve as general guidelines, not limiting
the existence of other important but unstated obligations.
(A) Duty to the Court:

• Rule 1: An advocate must present their case and conduct

themselves with dignity and self-respect. Advocates have the
right and duty to file complaints against a judicial officer if
needed but must do so through proper authority.
• Rule 2: Advocates should maintain a respectful attitude
towards the courts, as the dignity of the judicial office is
crucial for the survival of a free community.
• Rule 3: Advocates must not influence court decisions
through illegal or improper means. Private communication
with judges regarding pending cases is strictly prohibited.
• Rule 4: Advocates must restrain their clients from
engaging in sharp or unfair practices in court. If a client
persists in improper conduct, the advocate must refuse to
represent them. Advocates should act independently and not
serve merely as a mouthpiece for their client, using
restrained and respectful language in court.
• Rule 5: Advocates must always appear in court in the
prescribed dress and maintain a presentable appearance.
• Rule 6: An advocate is prohibited from acting, pleading,
or appearing in court in cases where they or a close relative
(as listed in Section 30 of the Act) are connected to the
matter.
• Rule 7: Advocates are prohibited from wearing bands or
gowns in public places other than in courts or during
ceremonial occasions, as prescribed by the Bar Council of
India or the Court.
• Rule 8: Advocates should not appear in court against any
organization, institution, society, or corporation if they are a
member of the Executive Committee of such an entity.
However, this rule does not apply when appearing as an
amicus curiae (a friend of the court) or without a fee in
matters affecting the Bar Council, Law Society, or Bar
Association.
• Rule 9: An advocate should not act in any case where
they have a personal financial interest. For instance, they
must not:
• Act in a bankruptcy petition where they are also a
creditor.
• Accept a brief from a company of which they are a
director.
• Rule 10: Advocates should not act as surety or certify
the soundness of a surety for their client in legal proceedings.
Case References:
Sarat Chandra Biswal v. Surendra Barman (AIR 1969 Orissa
117):
• In this case, two advocates scandalized the Chief
Justice of a High Court.
 • It was held that an advocate must uphold their
status as an officer of the court with dignity, refraining from
using scurrilous language.
• Both advocates were found guilty of contempt of
court for failing to maintain the professional conduct required
under Rule 15 of Section 49 (1)(c) of the Advocates Act, 1961.
Court of Its Own Motion, Petitioner v. Shamsher Singh (1986
Cr. Law Journal 293):
• It was held that a lawyer’s allegiance to their client
does not permit them to transgress the rules of ethics,
decency, and propriety.
• Contempt of court was established when a lawyer
scandalized the Magistrate in a notice issued under Section
80 of the Civil Procedure Code.
Damodar Das Agarwal v. R. Badrilal
It was held that in the absence of rules on professional
conduct, an advocate has a lien over the papers of his client
entrusted to him during the pendency of a case until his fees
are paid.
D.C. Saxena v. Chief Justice of India:
The Supreme Court held that a party or counsel should not
use scurrilous language or make allegations against the judge
or court. This is essential to maintain the dignity and
decorum of the judiciary.
Sarat Chandra v. Surendra Barman:
Rule 15 of the Advocates Act, 1961 is subject to the preamble
of the rules. The advocate’s duties to the court take
precedence over his duties to the client. Signing petitions
that scandalize the court amounts to contempt of court.
(B) Duty to the Client:
Section II of the Bar Council of India Rules outlines the duties
of advocates toward their clients. Key points include:
Rule 11: An advocate is bound to accept any brief in courts or
tribunals within their practice area, for a fee consistent with
their standing and the case’s nature. They may refuse a brief
only under special circumstances.
Case: S.J. Chaudhary v. The State:
The Supreme Court held that if an advocate accepts a brief in
a criminal case, they must attend the case daily, or they may
be liable for breach of professional duty.
Case: New India Assurance Co. Ltd. v. A.K. Saxena:
It was held that an advocate cannot seek a remedy for unpaid
remuneration through a writ petition
Rule 12: An advocate must not withdraw from an
engagement once accepted without sufficient reason. If the
withdrawal is necessary, the advocate must provide
reasonable notice to the client and refund any unearned fees.
Rule 13: An advocate should not accept a brief in a case
where they will likely be a witness. If they become a witness,
they must retire from the case.
Case: Rajendra Nagrath v. L. Vora:
The Madhya Pradesh High Court emphasized that a lawyer
must act in a way that maintains their privileged status and
high ethical standards, particularly when they become a
witness.
Rule 14: At the commencement of an engagement, an
advocate must fully disclose any connections or interests that
may affect their impartiality.
Rule 15: The advocate has a duty to fearlessly uphold the
interests of their client by fair means, without undue regard
to consequences for themselves or others.
Rule 16: When appearing for the prosecution in a criminal
trial, the advocate must ensure that no suppression of
material that could establish the innocence of the accused
occurs.
Rule 17: An advocate must not breach obligations under
Section 126 of the Indian Evidence Act, which pertains to
confidential communications with the client.
Rule 18: Advocates must not engage in or encourage litigation
that has no valid legal grounds.
Rule 19: An advocate must not act based on the instructions
of anyone other than their client or the client’s authorized
agent.
Rule 20: An advocate must not agree to a fee contingent on
the result of litigation or share in the proceeds thereof.
Rule 21An advocate must not engage in the trade of
actionable claims, shares, securities, or any negotiable
instruments unless permitted by law. They must not buy or
traffic in any interest in these for themselves or on behalf of
others.
Rule 22: An advocate cannot bid for or purchase any property
involved in a legal case they are professionally engaged in,
either for themselves or others. However, they may bid for or
purchase a property on behalf of their client if expressly
authorized in writing.
Rule 23: An advocate cannot adjust fees payable by the client
against personal liability not arising in the course of their
employment as an advocate.
Rule 24: An advocate must not exploit or take advantage of
the trust placed in them by their client.
Rule 25: Advocates must maintain accounts of money
entrusted to them by clients. These accounts must reflect all
amounts received or spent on behalf of the client, with
accurate records.
Rule 26: Money received on behalf of a client must be
properly accounted for, and advocates cannot divert funds
without written consent from the client.
Rule 27: Any money received by the advocate on behalf of
their client must be reported to the client as early as possible.
Rule 28: After the proceedings end, advocates can settle any
remaining fee out of the money in their possession, with
excess amounts being returned to the client.
Rule 29: If fees remain unsettled at the end of a case, the
advocate may deduct any payable amount from the client’s
funds, refunding the balance if applicable.
Rule 30: A client is entitled to request a copy of their account,
provided they pay the copying charges.
Rule 31: Advocates must not convert client funds into loans
or other financial arrangements.
Rule 32: An advocate is prohibited from lending money to a
client for the purpose of any legal action or proceeding in
which they are engaged on behalf of the client.
Rule 33 An advocate who has, at any time, advised or drawn
pleadings for one party in connection with a suit, appeal, or
any other matter, must not act, appear, or plead for the
opposite party in that same case.
Fiduciary Relationship with the Client:

• An advocate holds a fiduciary relationship with

their client, meaning they must act in the best interest of the
client and protect them in litigation to the best of their ability.
This relationship is built on trust, loyalty, and integrity. The
advocate is more than just an agent; they must uphold their
client’s interests without concern for personal discomfort or
negative consequences to themselves.
• Key Duties of Advocates under Bar Council of India
Rules:
• Rule 14: Advocates must disclose any personal
interest they have in a case to their client.
• Rule 15: An advocate must defend their client (even
those accused of a crime) fearlessly and with full dedication,
regardless of their personal opinions on the matter.
• Rule 22: Advocates cannot bid for or purchase any
property involved in legal proceedings where they are
engaged professionally. However, they can do so if expressly
authorized by their client in writing.
• Rule 24: Advocates must not abuse or take
advantage of the confidence placed in them by their client.
Sharan Bihari Lal v. Kanhaiya Lal:
• It was held that a mortgage taken by a legal
practitioner in the course of his money-lending business is
void, as it violates Rule 26 of the Allahabad High Court Rules,
and is opposed to public policy.
• P.D. Gupta v. Ram Murti & Another:
• The Supreme Court ruled that an advocate who
bought property under litigation from his client at a
throwaway price and sold it for profit was guilty of
professional misconduct. This act was considered
unbecoming of the legal profession and undermined the
administration of justice.
• State of Orissa v. Nalini Kanta Muduli:
• It was held that members of the Bar are officers of
the Court and have a duty to assist the court and not mislead
it. Citing a judgment without disclosing that it has been
overruled is considered a serious offense, amounting to
contempt of court.
• Vikas Deshpande v. Bar Council of India:
• The appellant-advocate was found guilty of
exploiting his clients (complainants in the case) who were
facing death sentences. He obtained a power of attorney and
sold their property, keeping the proceeds for himself. The Bar
Council of India permanently debarred the appellant, a
decision upheld by the Supreme Court.
• Bar Council of India v. Kurapati Satya Narayana:
• The Supreme Court held that failure to pay a client
the money received on their behalf is a breach of trust and
amounts to grave professional misconduct. The delinquent
advocate was struck off the State Roll as a result.

Definition of “Misconduct”:

• Misconduct usually implies an intentional act done

with wrongful intent in a professional setting. Even acts that
are not inherently wrongful can be considered
unprofessional. The Supreme Court clarified that gross
negligence in discharging duties constitutes delinquency and
professional misconduct.
• Misconduct and Negligence:
• The Andhra Pradesh High Court ruled that
“professional misconduct” refers to conduct deemed
disgraceful or dishonorable by solicitors of good reputation
and competence. However, mere negligence, even if serious,
does not necessarily constitute professional misconduct.
• Keeping Accounts of the Client’s Money:
• Rule 25: Advocates must maintain accurate records
of any money entrusted to them by clients. These records
must reflect the amounts received and expenses incurred,
including any debits made on account of fees, with respective
dates and particulars.
• Rule 26: Requires that entries contain references as
to whether funds are for fees or expenses. During
proceedings, advocates may not divert any portion of the
client’s money towards fees without the client’s written
consent.
• The Supreme Court held in New India Assurance
Co. Ltd. v. A.K. Saxena that advocates have no right to retain a
client’s papers based on unpaid fees. While the question of
fee payment may not be determined in proceedings,
advocates may seek legal remedies for unpaid fees.
• Rule 27:
• Advocates must inform clients of any money
received on their behalf as soon as possible.
• Upon the conclusion of proceedings, the advocate
may appropriate any fees from the money remaining after
deducting necessary expenses. If the fees remain unsettled,
the advocate may deduct unpaid fees from the client’s
money, refunding any balance.
• Rule 30:
• Clients may request a copy of their accounts, which
the advocate must provide upon payment of copying charges.
• Rule 31:
 • Prohibits advocates from entering into loan
arrangements with funds held for clients.
• Rule 32:
• Prohibits advocates from converting client funds
into loans.
• Advocate Lending Money to Client:
• An advocate shall not lend money to a client for any
legal action or proceedings in which they are engaged.
However, an exception exists: an advocate will not be guilty
of a breach if, during a pending case, they make a court-
ordered payment on behalf of the client for the progress of
the suit or proceeding.
• Restrictions on Appearance for the Opposite Party
(Rule 33):
• Rule 33 states that an advocate who has, at any
time, advised or acted for a client in a suit or any other
matter shall not appear for the opposite party, not just for
the duration of the case but even after the conclusion of the
proceedings.
• Section 126 of the Indian Evidence Act, 1872:
• No barrister, pleader, or vakil is permitted to
disclose any communication made to them in the course of
professional employment, or any document they have access
to during such employment, unless the client’s express
consent is given.
• Exceptions to confidentiality include:
 1. Any communication made for an illegal purpose.
2. Any fact observed during the employment showing
that a crime or fraud has been committed since the
advocate’s employment began.
• Objective of Privileged Communication:
• The purpose is to allow the advocate to defend the
client with all knowledge and power while effectively
discharging professional duties.
• Section 129 of the Indian Evidence Act, 1872:
• No person is compelled to disclose confidential
communication between them and their legal adviser in
court, unless the individual voluntarily testifies. However, if
they offer themselves as a witness, they may be required to
disclose such communication to explain evidence.
• Further Restrictions on Advocates:
• An advocate is advised not to represent the
opposing side in any subsequent proceeding involving the
same case, which strengthens the restrictions under Rule 33.
Unprofessional Conduct in Switching Sides (Baijnath v. S, An
Advocate of Unnao):
• It is considered unprofessional for an advocate to
represent the other party in the same case. To prevent such
situations, an advocate must either have a clear retainer with
a paid fee or must receive explicit confidential instructions
from one party, indicating it is appropriate for him to
represent that party.
 • Any charges of misconduct for switching sides must
be clearly proven.
• Example: A pleader missed an important case
involving a significant client to represent a lesser matter,
thereby committing a serious offense deserving strong
censure.
• (c) Duty to the Opponent:
• Section III of Bar Council of India Rules (Rule 34 &
35):
• Rule 34: An advocate shall not communicate or
negotiate on behalf of an opponent represented by another
advocate without the consent of that advocate.
• Rule 35: An advocate must honor any legitimate
promises made to the opposite party, even if such promises
are not enforceable by the court.
• Ethical Responsibilities Toward the Opponent:
• An advocate must treat the opponent fairly and
honestly, not concealing any facts or misleading them.
• Chandra Sekhar Soni v. Bar Council of Rajasthan &
Others:
• The Supreme Court held that an advocate may
switch sides if all parties involved give express consent after
full disclosure. However, it is against professional etiquette
for an advocate to accept a brief from the other side while
still holding the brief of one party.
• Observation by Sir P.S. Sivaswami Aiyer on Fair Play:
 • Advocates must play fair, even against their
opponents. They should give their opponents a fair chance to
present their case, and only then, if they win, can they claim
legitimate credit. Any interference with an opponent’s fair
hearing amounts to unethical behavior.
• Victory Without Ethics:
• A victory won through unethical means is tainted
and not worth having. Advocates should care about
upholding moral principles in their profession.
• (d) Duty to Colleagues:
• Section IV of Bar Council of India Rules (Rules 36,
37, 38, 39):
• Rule 36: An advocate must not solicit work or
advertise directly or indirectly, whether through circulars,
advertisements, personal relations, or by publishing his
photograph in connection with cases.
• The advocate’s signboard or stationery must not
mislead by indicating associations or qualifications that aren’t
accurate or misrepresenting the advocate’s standing or
specialty.
• Rule 37: An advocate must not allow his services to
enable the unauthorized practice of law by any legal agency.
• Rule 38: An advocate must not accept a fee lower
than the taxable amount, ensuring the profession maintains
its integrity and standards.
 • Rule 39: An advocate must not represent a party if
another advocate is already engaged in the case unless
consent is obtained from the previous advocate. This is to
promote goodwill and prevent client shifting without proper
reasons.
• (E) Residual Duties:
• Duty to Pay Membership Subscription:
• Every advocate must pay an annual subscription to
the State Bar Council, which funds welfare activities for
advocates. According to Rule 41, the amount collected is
remitted to the Bar Council and credited to the “Advocate
Welfare Fund.”
• Rule 41(2): The Bar Council of India must remit 20%
of the total amount collected to the Advocates’ Welfare Fund
Committee for the state.