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Pratik Singh, Law Graduate from Faculty of Law Delhi.
Date: 18.11.2020
PROFESSIONAL CONDUCT: NEED FOR CHANGE
INTRODUCTION
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.
NO SHORTCUTS
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.
WAY AHEAD
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.
CONCLUSION
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.
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