Pratik Singh, Law Graduate from Faculty of Law Delhi.
PROFESSIONAL CONDUCT: NEED FOR CHANGE
Lawyer’s profession has been regarded as an honourable or noble profession by the world for several centuries. It is a learned profession par excellence. An advocate has a four-fold obligation, the obligation to his clients to be faithful and honest to them, the obligation to the profession not to bring down its fair name or injure its credit by any act of his and an obligation to the court as a dependable officer of court and missionary through which justice is delivered. He has also an obligation to the public at large to protect, to preserve and to see proper administration of justice for the maintenance of a welfare society. In India, the rules made by the Bar Council of India under Section 49(1) (c) of the Advocates Act, 1961 prescribe the standards of professional conduct and etiquette of Advocates.’ Standards of professional conduct and etiquette are laid down in the Bar Council of India rules as well.
ETHICS IN LAW
Fundamental prerequisite of any profession is good ethics. Ethics denotes to human behaviour to make decisions between what is correct and what is wrong. Professional ethics are those set code or moral principles that govern a person’s conduct in a professional workplace or work life. In the legal profession, a lawyer must obey to professional codes for fair dealing with the client and uphold the self-possession.
Bar Council of India has framed the rules under part VI of chapter II dealing with the standard of professional conduct of lawyers. This chapter state 39 rules or duties of the lawyer against court, client, opponent etc.
The Senior Advocates and law officers in interviews and discussions have always pressed for hardwork and consistency. They mention that flouting ethical norms and using shortcuts will land you nowhere, and definitely not in the upper echelons of legal profession. Every profession demands perseverance and honesty towards work which cannot be compromised. Integrity in a profession is key to achieving success and recognition.
But few young new generation lawyers are developing the tendency to oversee the ethical principle and pursue their matters. They are least concerned about the idle professional conduct. For example, one of the practices that they resort to is seeking “unnecessary Passovers and adjournments”. They seek adjournment multiple times in the same matter without any reasonable cause. This is sheer “abuse of court process and violative of Standards of Professional Conduct and Etiquette laid down in in the Bar Council of India rules chapter II Section 2. This does not just languish matters in the court for long and waste the precious time of court but also puts financial burden on the client.
In N.G.Dastane v. Shrikant S.Shivde, (2001)6 S.C.C. 135. Supreme Court held that seeking repeated adjournments for postponing examination of witness who were present in court without making alternative arrangement for their examination amounts to misconduct of the advocate concerned. Strict disciplinary proceedings need to be taken against such lawyers who cross every limit of professional ethics. In this case the respondent advocates sought unnecessary adjournments which made the appellant who was a witness in a case where the respondent was lawyer for the opposite party, to come down from New York several times for cross examination. Similar principle has been reiterated in State of Uttar Pradesh v.
Sambhhu Nath Singh (2001) 4 SCC 667.
Bribing is another common sight in court premises. In lower courts Readers take bribe to record the statement of witnesses and lawyers themselves encourage their clients to bribe the Reader. Such incidences are not uncommon, where the lawyers promote the practice of bribing the officers of the Court.
Giving bribe is in itself illegal in nature and against the law as well as unethical and when it is done by lawyers it becomes even more grievous. This also violates Rule 4, Chapter II Part VI of BCI rules which states:
“4. An Advocate shall use his best efforts to restrain and prevent his client from resorting to sharp or unfair practices or from doing anything in relation to the Court, opposing counsel or parties which the Advocate himself ought not to do. An Advocate shall refuse to represent the client who persists in such improper conduct. He shall not consider himself a mere mouth- piece of the client, and shall exercise his own judgement in the use of restrained language in correspondence, avoiding scurrilous attacks in pleadings, and using intemperate language during arguments in Court.”
Another disturbing practice is “implanting false Witnesses”. The advocates teach and train the witnesses about what they have to say in the court irrespective of whether such statement is true or not.
Similarly, another unethical practice is “misleading the court” by citing over ruled case laws and leaving it completely on the court and the opposite party to discover it. This amounts to violation of “duties of disclosure to court”.
Both non-disclosure and disclosure of wrong facts or law is not expected from a lawyer. The Supreme Court of India, in D.P.Chadha v. Torvugi Narain Mishra, (2001)2 SCC 221 has observed that “a lawyer must not hesitate in telling the court the correct position of law when it is undisputed and admits of no exception. He is not entitled to drag a settled and non- controversial point of law into doubt solely to mislead or confuse court so as to gain an unfair advantage for his client.” In this case the Court found the delinquent lawyer guilty for professional misconduct for deliberately attempting to mislead court into accepting position that personal presence of parties was not a mandatory requirement for verification of compromise.
Similarly, in Ratnamma v. Abdul Khader (AIR 1959 AP135). While ordering to suspend delinquent advocate, the Andhra Pradesh High Court held that “concealment of some material facts from the court may not be treated as a professional misconduct. At the same time a wrong disclosure should be treated as misconduct.”
On visiting lower courts, especially in the smaller districts, one may get surprised to see the way the advocates dress. The advocates are shabbily dressed in un-ironed clothes with stain marks over the dress. This lowers the personality and the professional respect of an advocate. At times, even the judicial officers do not mind an advocate pleading before him in improper dress code. Advocates at such courts do not even bear the pain to wear black and white. They come to court in informal colored dress and even have the audacity to face the court in the same dress. This lowers the dignity of court as well as the profession itself.
A recent case is of an advocate who appeared before the court, during virtual hearing because of Covid-19 lockdown, sitting in his car. Though the court took to task the advocate but this reflects the sheer disregard an advocate has towards his own profession. A senior advocate during virtual hearing in Supreme Court had hookah in his hand. Such behavior by a senior set a wrong precedent for the junior advocates and therefore, the courts should take strict actions against such delinquent advocates.
Following are some measures that should be introduced to check professional misconduct and unethical practices in the legal profession:
1. A very limited number of adjournments and Passovers should be allowed in the court.
2. To restrict entry of criminals or unethical persons in the profession previous record of candidates be scanned before enrolling them in the Bar.
3. More and more digital transactions and submissions should be promoted so as to limit the role of clerical staff. The advocates too should in no circumstances indulge or suggest their clients to indulge in bribing or offering undue favors to court staff, law officers and judicial officers.
4. Also, to prevent the demand of bribe by legal officers, the proceedings of the court should be video recorded. This will restrain the legal officers from indulging in such illegal and unethical practices.
5. Proper dress code should be strictly adhered to by the advocates. The judges or judicial officers too should not allow the advocates to plead if they are not in proper dress specified.
6. Members of Bar should not be made part of Disciplinary Committee so that influence of lawyers can be minimized
7. Conflict of tug of war between Bar & Bench should be minimized so that well- coordinated action can be taken against unethical lawyers.
8. A proper regular review of law colleges should be made and such colleges which do not adhere to Bar Council of India norms and which have become a heaven to obtain a degree in law without proper classes and education should be shut down and penalized heavily.
9. Since, the senior advocates are looked up to by the juniors and young lawyers, they have a greater responsibility towards the profession and therefore, if any senior advocate is found indulging into professional misconduct or unethical practices, they should be stripped off their designation and should also be barred from practicing for some time.
10. Judicial officers too should be made responsible for conduct of advocates in their courtrooms. For example, if judicial officer allows and advocate to plead even when he is not complying to the dress code, such judicial officers too should be made answerable for such conduct.
The legal professional has helped develop society and civilisations. It upholds morality and binds the society together. It is one of the most noble and best means to serve the society. Therefore, it is the duty of the lawyers to promote ethics and integrity and not indulge in any form of professional misconduct.