PART I
PROFESSIONAL ETHICS & ACCOUNTANCY FOR LAWYERS
Q. 1. What do you understand by Professional Ethics?
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Discuss and explain the Code of Conduct for an advocate.
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What is code of conduct for an Advocate? Discuss in detail with relevant provisions.
Ans. Professional ethics or code of conduct for an Advocate.-By the expression “professional ethics”, we mean, the rules of conduct pertaining to a particular class of human action in a particular profession.
The term “Ethics” means a science of morals or it is that branch of 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 ordinary citizens in every walk of life, are standards of morals for an advocate too. The norms of morals fixed for an advocate is in consonance with his high office, intellectual learning and social responsibility. Legal ethics is that branch of moral science which lays down certain duties, which its members owe to the Court, to the society, to his profession, to his opponent, to his clients and to self etc. Legal ethics is that body of rules and practice which determine the professional conduct of lawyers. It is a written code of conduct for lawyers. This code of conduct is necessary for maintaining the dignity of legal profession and development of cordial relation between persons connected with legal profession. High order of professional ethics is the basic requirement of legal profession.
Mr. K.V. Krishnaswamy lyer, an eminent advocate of Madras High Court, while addressing a distinguished gathering of advocates had once said. “In your dealing in and outside the Court, you should always bear in your mind that every member of the Bar is a trustee for the honour and prestige of the profession as a whole. This is a message for all times, which you have to keep in mind always.”
In Hansraj Chhugani v. State of Maharashtra, (AIR 1996 SC 1708) the Supreme Court has held that legal profession is a profession of great honour. Due to being an officer of the Court, the advocate is required to maintain respectful attitude towards the Court in mind, which is essential for the dignity of the Court and the survival of democratic Society.
It may be noted that allied essentials to professional ethics are professional etiquette, decency, elegance and dignity, which have to be observed by the members of the profession. In the context of professional ethics, it is significant to note that the duties and responsibilities of a lawyer involve a variety of human relationships. The mettle of a lawyer is always rested and tried. The lawyer should be equip equipped with both mentally and morally to meet the challenges of the profession successfully to the utmost satisfaction of not only the brother members of the Bar including the senior members of the profession, but also the members of the judiciary and of the society. The legal profession, therefore, calls for wide knowledge, high mental capacity, great culture and integrity.
Mr. K. V. Krishnaswamy lyer has further observed in this context that “the capacity to analyse and sift facts, to penetrate the inner most recesses of the human mind and to discover there the sources of men’s actions and their true motives, and to perceive and present them with directness, accuracy and force, are the qualities which the practice of the profession both demands and develops. His genius in achieving results and his peculiar gift of mastering and disentangling complex situations have won for the lawyer the reputation that he can achieve anything.”
In Jadhara v. Mustafa Haji Mohd. Yusuf. (AIR 1993 SC 1535) the Supreme Court has held that “The legal profession is an elegant profession of great utility. It is the duty of every advocate to maintain the dignity of Court and higher standard of the profession”.
In Re Vinay Chandra Misra (AIR 1995 SC 2348) the Supreme Court observed that the conduct of the advocate should be in accordance with the discipline of the Court. It is expected from the advocate to maintain his equilibrium in the smooth conduct of the Court’s proceedings.
A lawyer must not be merely satisfied by being an expert in law alone. He has to acquire a vast knowledge in every field of human activity and life. Sir Walter Scot had once said, “A lawyer without history or literature is a mere mechanic, a mere working mason.”
It is noteworthy that the canons of ethics are just as essential for the Judges as for the advocates. Each Judge should not be left to determine for himself what is proper and what is not proper, as well-informed standard assists materially in the right direction for administration of justice.
Code of Professional Ethics
Section 7 of the Advocates Act, 1961 has empowered the Bar Council of India to lay down certain standards of professional conduct and etiquette for advocates. The Bar Council of India has laid down a Code of Professional Ethics which is as follows:
1. Duty of an advocate to the public is primary duty. – An advocate shall uphold the Constitution, help in the maintenance of the Rule of Law, promote the advancement of justice and assist in the enforcement of fundamental rights of the people.
2. Duty of advice to the public. – (a) An advocate shall not act contrary to the basic principles of morality and at all times shall act honestly
(b) An advocate shall not render any service or give advice involving breach of the law or imply disrespect to the established judiciary.
3. Duty of maintenance of dignity and self-respect.- An advocate shall conduct himself with due dignity and self-respect and shall assist in the enforcement of law and the administration of justice.
4. No withdrawal from employment as Counsel. – No advocate shall withdraw from engagement once accepted without good cause.
5. Dealing with the client’s property– An advocate should refrain from any action whereby for his personal benefit or gain, he abuses or takes advantages of the confidence reposed in him by his client. Further, he should maintain, a regular account of his client’s money entrusted to him, and the account should show the amounts received from the client or on his behalf, the expenses incurred for him and the debits made on account of fees with respective dates and other particulars, if any.
In P. D. Gupta v. Ram Murti and Another (AIR 1998 SC 283), the appellant advocate had purchased the disputed property of his client at low price and sold it at higher price and earned profit thereby he not only obstructed the due course of justice but also committed misconduct of the professional ethics. Hence the Supreme Court suspended him from legal practice for one year.
6. Lending money to the clients. – No advocate shall lend money to his clients for the purpose of any action or legal proceeding in which he is engaged by such client.
7. Duty towards clients. – (a) An advocate shall give advice to his client honestly and in good faith and will not in any manner, take advantage of the ignorance of the client.
(b) An advocate shall devote to the clients cause his knowledge and skill to the utmost of his ability.
(c) An advocate shall not disclose any matter communicated to him in his professional capacity nor use any knowledge obtained in any other proceeding except with the consent of his client.
8. Justifiable and unjustifiable litigation.- An advocate shall decline to conduct a civil cause or to make a defence when convinced that it is intended merely to harass or to injure the opposite party or to work oppression or wrong.
9. Conflict of interest– An advocate shall decline to accept a brief where the acceptance could be incompatible with his professional honour or independence or would be otherwise not in the best interests of the administration of justice.
10. Counsel as twitness. An advocate shall not accept a brief in a case in which he has reasons to believe that he will be called as a witness but if he is already engaged in a case and it appears at a later stage that he may be called upon as a witness, he may continue that engagement only if he cannot retire without prejudicing the interests of his client.
11. Defence or prosecution of those accused of crime. – An advocate shall not refuse the defence of a person accused of a crime merely because in his opinion the accused is guilty of the crime unless he has any conscientious objection to accept such defence.
12. Acquiring interest in litigation. – No advocate shall acquire in any manner whatever, any interest in the subject-matter of the litigation which he is conducting, nor shall he directly or or indirectly indi purchase either in his own name for his own benefit or for the benefit of any other person, any property sold in the execution of a decree or order in any suit, appeal or any proceeding in which he has been any way professionally engaged.
13. Standing surety for clients. – No advocate shall stand as surety or certify the soundness of surety for his client while he is appearing for him in the case, except with the permission of the Court
14. Suing the client jor fees. – Controversies with clients concerning fees for service and law suits with clients, should be resorted to only in extreme cases.
15. Duty towards the profession. – An advocate shall not speak ill of the profession but shall conduct himself in such a way as to enhance regard, respect, sympathy and fellow feeling between the members of the profession and strive to maintain the honour and dignity of the profession.
16. No engagement in any business other than that of law. – No advocate shall be a promoter of a trading company, nor shall, without the leave of the Bar Council, otherwise engage in any trade or calling except in following cases-
(a) An advocate may be a Director or Chairman of the Board of the Directors of a company with or without any ordinary sitting fees. but no advocate may, without the leave of the Bar Council be a Managing Director or a Secretary.
(b) An advocate shall not be a full time salaried employee of any firm, corporation or concern.
(c) An advocate who has inherited or succeeded by survivorship to a family business, may continue it but may not personally participate in the management thereof.
(d) An advocate may review Parliamentary Bills on a remuneration and edit legal text book at a salary, coach pupils for legal examinations, set and examine question papers and engage in broadcasting, journalism and teaching.
(e) An advocate may act as an arbitrator or umpire.
The above standards of professional conduct and etiquette, are, in nutshell the Code of Conduct for an advocate.
Q. 2. Discuss the necessity and object of Professional Ethics.
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Discuss the significance of professional ethics in the field of legal profession. How do you agree with the view that legal profession would have been worse without it?
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Discuss the need of ethics of legal profession.
Ans.
Necessity and object of Professional Ethics or need of ethics of legal profession
An Advocate has not to engage himself in any other trade or business while carrying on the legal profession. Persons who wish to take up this profession must take their choice. If they wish to be insurance agents, there is nothing to prevent them from carrying on that useful occupation, but, if they enter in the profession of law as lawyer, they must make up their mind to conduct the business of the lawyer and nothing else. In case the lawyer is carrying on two business at the same time. i.e., the legal profession and the business of insurance agent, it has been held that the profession of law and the interest of public will be jeopardized. Therefore, the carrying on of a inarily inconsist trade or business is ordinarily inconsistent with the practice of the profession of an advocate. Similarly, where an advocate enters into partnership business and makes an untrue statement that he is not a partner. it is not possible to take a lenient view of the conduct of the advocate, as he is guilty of professional misconduct.
Whenever an advocate engages himself in a business, he attaches more attention to his business rather than to his profession of law, which proves injurious to the interests of his clients for whom he appears in a Court. So, it is a matter of professional misconduct on the part of an advocate to engage himself in any other business rather than to concentrate on his legal profession. There are many instances of professional misconduct which are impediments to legal profession.
Professional Ethics is necessary for smooth conduct of Court’s proceedings and dispensation of justice. It enhances the grace of the advocate besides his reputation in the society. The profession of law is not a business to earn money rather it is a profession of social service and the carning of money is the outcome of that service. No advocate can acquire name and fame without observing professional ethics. It is, therefore correct to say that legal profession would have been worse without professional ethics of a lawyer. As such, legal profession is a necessity. The legal profession would be a curse to the society without the observance of professional ethics by the lawyers at large.
Chief Justice Marshall of American Supreme Court has aptly observed “The fundamental aim of legal ethics is to maintain the honour and dignity of the law profession to secure a spirit of friendly co-operation between the Bench and Bar in the promotion of highest standard of justice. to establish honourable and fair dealing of the counsel with his clients. opponents and witnesses to establish a spirit of brotherhood in the Bar itself and to secure that lawyer’s discharge their responsibilities to the community generally.”
Q. 3 (a). What is Legal Profession?
Ans. Legal Profession. – Legal profession means the profession through which an accused in a criminal case or a party in a civil suit, is defended by the legal practitioners. The person who defends accused persons or the parties in civil suits, is a legal practitioner, whether he is called an advocate or an attorney. A legal practitioner defends his clients in the Court of Law on the basis of licence, granted by a State Bar Council to appear before the Courts. A legal practitioner is a representative of his clients in the cases before the Courts of Law. Section 33 of the Advocates Act, 1961. is relevant here for discussion. The self-explanatory provisions of Section 33 provides that “Except as otherwise provided in this Act or in any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practice in any Court or before any authority or person, unless he is enrolled as an advocate under this Act.” It means advocates alone are entitled to practise before a court, tribunal or any authority.
In Hari Shanker v. Girdhari Sharma, AIR 1979 SC 1019, the Supreme Court has held that a private person who is not an advocate, has no right to barge into the Court and claim to argue for a party. He must obtain the prior permission of the Court, for which the motion must come from the party himself. It is open to the Court to grant or withhold permission in its discretion. In fact, the Court may, even after grant of permission, withdraw it half way through, if that representative proves himself to be reprehensible.
Q. 3 (b). What is the main difference between business and profession.
Ans.
Differences between business and profession
Business
1. There is no minimum qualification required for starting a business.
2. An economic activity concerned with the production or purchase and sale merchandise and rendering of services with the purpose of earning profit is called business.
3. The primary objection of business is to earn profit.
4. A business requires capital investment to its size and nature.
5. A businessman gets profit as a return for the work done by him/her.
6. In business, there is no prescribed code of conduct.
7. In general, every business advertises its products for the purpose of increasing sale.
8. In business, transfer of interest is common, like transfer of business by father to his children.
Profession
1. On the other hand, a profession requires a person to be formally qualified, expert and trained in a particular field to be called as a profession.
2. A term of economic activities, wherein special skills, knowledge and expertise is required to be applied by the person in his occupation is known as the profession.
3. Profession is aimed at providing services.
4. Capital requirement is limited in the case of profession.
5. A professional gets fee for the services rendered by him/her.
6. The code of conduct is prescribed by professional bodies which must be followed.
7. The advertisement is strictly prohibited as per professional code of conduct.
8. Transferability is not possible in the case of profession.
Q. 4. Who is an advocate? What qualifications are necessary for enrolment as an advocate?
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Discuss the provisions regarding the enrolment of advocate as provided under the Advocates Act, 1961.
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What are necessary qualifications for any person to carry on legal profession?
Ans. Section 2 (1) (a) of the Advocates Act, 1961, provides that “advocate” means an advocate entered on the roll of any State Bar Council under the provisions of this Act. In fact, an advocate is a legal practitioner of any High Court or Lower Court. He is entitled to represent his clients before the Courts of law for which he should be granted licence by a State Bar Council.
Qualifications for Enrolment as an advocate. – The Advocates Act, 1961, has made specific and detailed provisions for enrolment of a person as an advocate. In this context, Section 24 is relevant for discussion which deals with the provisions about the persons who may be admitted as Advocates on the roll of a State Bar Council. That self-explanatory provisions of Section 24 are described as under:
Subject to the provisions of this Act, and the rules made thereunder, a person shall be qualified to be admitted as an advocate on a State Roll, if he fulfils the following conditions, namely :
(a) he is a citizen of India:
Provided that subject to the other provisions contained in this Act, a national of any other country may be admitted as an advocate on a State Roll, if citizens of India, duly qualified, are permitted to practise law in that other country:
(b) he has completed the age of twenty one years;
(c) he has obtained a degree in law-
(i) before the 12th day of March, 1967, from any University in the territory of India; or
(ii) before the 15th day of August, 1947, from any University in any area which was comprised before that date, within India as defined by the Government of India Act, 1935, or
(iii) after the 12th day of March, 1967, save as provided in sub-clause (iii-a), after undergoing a three years course of study in law from any University in India, which is recognized for the purposes of this Act by the Bar Council of India, or
(iii-a) after undergoing a course of study in law, the duration of which is not less than two academic years commencing from the academic year 1967-68 or any earlier academic year from any University in India, which is recognized for the purposes of this Act, by the Bar Council of India; or
(iv) in any other case, from any University outside the territory of India, if the degree is recognized for the purposes of this Act by the Bar Council of India, or he is a barrister and is enrolled to the Bar on or before the 31st day of December, 1976, or has passed the Articled Clerk’s Examination or any other examination specified by the High Court at Bombay or Calcutta for enrolment as an Attorney of that High Court, or has obtained such other foreign qualification in law as is recognized by the Bar Council of India for the purpose of admission as an advocate under this Act;
(d) he fulfils such other conditions as may be specified in the rules made by the State Bar Council under this Chapter,
(e) he has paid, in respect of the enrolment, stamp duty, if any. chargeable under the Indian Stamp Act, 1899 (2 of 1899), and an enrolment fee payable to the State Bar Council, of six hundred rupees and to the Bar Council of India, one hundred and fifty rupees by way of a bank draft drawn in favour of that Council:
Provided that where such person is a member of the Scheduled Castes or Scheduled Tribes and produces a certificate to that effect from such authority, as may be prescribed, the enrolment fee payable by him to the State Bar Council shall be, one hundred rupees and to the Bar Council of India, twenty five rupees.
According to sub-section (2) of Section 24 of the Advocates Act, 1961. not only a person who holds a bachelor’s degree in law, as provided under sub-section (1) of Section 24, may be enrolled as an advocate on the State Roll but also a person who is a vakil or a pleader and is a law graduate, may be admitted as an advocate. Similarly, under sub-section (3) of Section 24, a person who has, for atleast three years, been a pleader or a mukhtar or was entitled at any time to be enrolled under any law as an advocate of a High Court, or of a Court of Judicial Commissioner in any Union territory, can also be admitted as Advocate on the State Roll, provided he makes an application for such enrolment in accordance with the provisions of this Act.
The Supreme Court has held in V. Sudeer v. Bar Council of India, (1999) 3 SCC 176, that Bar Council of India cannot take up the role of laying down rules for pre-enrolment training for applicants seeking to enter the legal profession by getting enrolled under Section 24 of the Advocates Act.
In Indian Council of Legal Aid and Advice v. Bar Council of India, AIR 1995 SC 69, the Supreme Court has observed that a rule debarring a person, who has completed 45 years of age, from enrolment as an Advocate, is beyond the rule making power of Bar Council of India and ultra vires the Advocates Act, 1961.
In Bar Council of India v. Aparna Basu Mallick, AIR 1994 SC 134, the Supreme Court has observed that under Section 24 (1) (c) (iii) of the Advocates Act, 1961, a person shall be qualified to be admitted as an advocate on a State Roll if he fulfils the conditions of having undergone a three years’ course of study in law from any University which is recognized by the Bar Council of India Where the candidate admittedly did not pursue any regular course of study at any college recognized by the University by attending the law classes, lectures, tutorials and moot Courts, he/she cannot be said to have complied with the requirements for enrolment as an advocate.
In Satish Kumar Sharma v. Bar Council of Himachal Pradesh, AIR 2001 SC 509, the Supreme Court has held that in terms of appointment and promotion order issued to the appellant, he was to act or plead on behalf of the Himachal Pradesh Electricity Board. But his work was not exclusively to act or plead in the Court. So he could not be called, “an advocate” within the meaning of para 3 of Bar Council of India, Rule 49. On the basis of above facts, the appellant was not entitled to be enrolled as an Advocate.
All India Bar Examination
The Bar Council of India has inserted Rules 9 to 11 in Part VI, Chapter III of the Bar Council of India Rules. According to Rule 9, no advocate enrolled under Section 24 of the Advocates Act shall be entitled to practice under Chapter IV of the said Act, unless such advocate successfully passes the All India Bar Examination conducted by the Bar Council of India. The Bar Examination shall be mandatory for all law students graduating from 2009, 2010 and onwards and enrolled as Advocates under Section 24 of the Advocates Act, 1961.
Q. 5. Discuss how State Bar Council maintains the roll of advocates.
Ans. Section 17 of the Advocates Act, 1961, deals with the provisions for the maintenance of roll of advocates. The self-explanatory provisions of Section 17 are reproduced hereunder:
(1) Every State Bar Council shall prepare and maintain a roll of advocates in which shall be entered the names and addresses of:
(a) all persons who were entered as advocates on the roll of any High Court under Indian Bar Council, Act, 1926 (38 of 1926). immediately before the appointed day (including persons, being citizens of India, who before 15th August, 1947, were enrolled e as advocates under the said Act in any area which before the said a date, was comprised within India as defined in Government of u India Act, 1935, and who at any time, expresses an intention in a the prescribed manner to practise within the jurisdiction of Bar Council.
(b) all other persons who are admitted as advocates on the roll of the State Bar Council under this Act on or after the appointed day.
(2) Each such roll of advocates shall consist of two parts, the first part containing the names of senior advocates, and the second part, the names of other advocates.
(3) Entries in each part of the roll of advocates prepared and maintained by a State Bar Council under this section shall be in the order of seniority. and subject to any rule that may be made by the Bar Council of India in this behalf, such seniority shall be determined, as follows:
(a) The seniority of an advocate referred to in clause (a) of sub-section (1) shall be determined in accordance with his date of enrolment under the Indian Bar Council Act, 1926 (38 of 1926);
(b) The seniority of any person who was a senior advocate of the Supreme Court immediately before the appointed day shall, for the purposes of the first part of the State Roll, be determined in accordance with such principles as the Bar Council of India may specify;
(c) The seniority of any other person who, on or after the appointed day, is enrolled as a senior advocate or is admitted as an advocate shall be determined by the date of such enrolment or admission, as the case may be;
(d) Notwithstanding anything contained in Clause (a), the seniority of an attorney enrolled, whether before or after the commencement of the Advocates (Amendment) Act, 1980, as an advocate, shall be determined in accordance with the date of enrolment as an attorney.
(4) No person shall be enrolled as an advocate on the roll of more than one State Bar Council.
In Bhadreshwar Tanti v. S. N. Choudhary, AIR 1985 Gauhatı 32, Gauhati High Court has held that a conjoint reading of the provisions of the Advocates Act, 1961, makes it quite clear that a person whose name is entered on the roll of Advocates, is entitled to practise the profession of law in all the Courts, including the Supreme Court.
Under Section 19 of the Advocates Act, 1961, it has been provided that every State Bar Council shall send to the Bar Council of India an authenticated copy of the roll of advocates prepared by it for the first time under this Act and shall thereafter communicate to the Bar Council of India all alterations in, and additions to, any such roll, as soon as the same have been made.