PROFESSIONAL ETHICS AND ACCOUNTING FOR LAWYERS

TOPIC: BRIDGING THE GAP BETWEEN LEGAL

ETHICS AND LEGAL PROFESSION

SUBMITTED TO:
PROF. AARTHI PRIYA S
VIT SCHOOL OF LAW

SUBMITTED BY,
R. SRI VISVAPRIYA
15BLB1009
ABSTRACT

In light of the declining in the legal profession due to increase in the cases of misconduct,
there is a need to emphasize a deeper understanding of professional ethics among lawyers
and perhaps articulate a different notion of professional responsibility that extends beyond
the standards of professional conduct and etiquette for lawyers devised by the Bar Council of
India. The exaggerated focus on rules, and legalistic thinking and analysis has distanced
lawyers from their ethical sensibilities and goals of truth and justice. In order to reconnect
lawyers to the moral dimensions of their profession, it is critical to root their professional
conduct while in law schools.

SYNOPSIS

1. Introduction
2. Advocates Act, 1961
3. Judgments
4. Code of Conduct for Lawyers
5. Nurturing Lawyers
6. Ethical problem
7. Bridging the gap between Legal ethics and Legal profession
 What can Law Schools do?
 Legal Theory and Practice Course
8. Lacunae in BCI rules
 Legal Services Board
9. Conclusion
 1. INTRODUCTION

Misconduct has been defined in the Black’s Law Dictionary to be “any transgression of some
established and definite rule of action, a forbidden act, unlawful or improper behavior, willful
in character, a dereliction of duty.” In the context of misconduct of an advocate, any conduct
that in any way renders an advocate unfit for the exercise of his profession, or is likely to
hamper or embarrass the administration of justice may be considered to amount to
misconduct, for which disciplinary action may be initiated.

In Solicitor A, Re, ex parte Law Society, professional misconduct was defined as follows:

‘If it is shown that an advocate in the pursuit of his profession has done something with
regard to which it would be regarded as disgraceful or dishonourable by his professional
brethren of good repute and competency, then it is open to say that he is guilty of professional
misconduct’.

2. MISCONDUCT UNDER ADVOCATES ACT, 1961

The terms misconduct and professional misconduct are not defined in Section 35 or any other
provisions of the Act. Section 35 of the Advocates Act, 1961 provides for punishment of
advocates for professional misconduct. The section reads as follows:

Punishment of advocates for misconduct.―(1) 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.

[(1A) The State Bar Council may, either of its own motion or on application made to it by
any person interested, withdraw a proceeding pending before its disciplinary committee and
direct the inquiry to be made by any other disciplinary committee of that State Bar Council.]

(2) 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 to the
Advocate-General of the State.

(3) The disciplinary committee of a State Bar Council after giving the advocate concerned
and the Advocate-General an opportunity of being heard, may make any of the following
orders, namely:―
 (a) dismiss the complaint or, where the proceedings were initiated at the instance of
the State Bar Council, direct that the proceedings be filed;

(b) reprimand the advocate;

(c) suspend the advocate from practice for such period as it may deem fit;

(d) remove the name of the advocate from the State roll of advocates.

(4) Where an advocate is suspended from practice under clause (c) of sub-section (3), he
shall, during the period of suspension, be debarred from practising in any court or before any
authority or person in India.

(5) Where any notice is issued to the Advocate-General under sub-section (2), the Advocate-
General may appear before the disciplinary committee of the State Bar Council either in
person or through any advocate appearing on his behalf.

[Explanation.―In this section, [section 37 and section 38], the expressions “Advocate-
General” and “Advocate-General of the State” shall, in relation to the Union territory of
Delhi, mean the Additional Solicitor General of India.]

In order to attract the application of Section 35, the misconduct need not be professional
misconduct alone. The expression used in the section is Professional or other misconduct.
Therefore, even conduct unconnected with the profession may account to a misconduct as for
example, conviction for a crime, though the crime was not committed in the professional
capacity.

3. JUDGMENTS
 NORATANMAL CHOURARIA VS M.R. MURLI 1

The Supreme Court explored the amplitude and extent of the words “professional
misconduct” in Section 35 of the Advocates Act. The facts of the case involved an advocate
(appearing as a litigant in the capacity of the respondent, and not an advocate in a rent control
proceeding) assaulted and kicked the complainant and asked him to refrain from proceeding
with the case. The main issue in this case was whether the act of the advocate amounted to
misconduct, the action against which could be initiated in the Bar Council, even though he
was not acting in the capacity of an advocate.

1
(2004) 5 SCC 689
It was upheld by the Supreme Court that a lawyer is obliged to observe the norms of behavior
expected of him, which make him worthy of the confidence of the community in him as an
officer of the Court. Therefore, inspite of the fact that he was not acting in his capacity as an
advocate, his behavior was unfit for an advocate, and the Bar Council was justified in
proceeding with the disciplinary proceedings against him.

 INDIAN COUNCIL OF LEGAL AID AND ADVICE V. BAR COUNCIL OF INDIA2

The SC observed that maintaining the duty of assisting the court in the administration of
justice, never must an advocate “indulge in any activity which may tend to lower the image
of the profession in society.” It was further observed that “the society has the right to expect
of him or her, such ideal behaviour.”

 P.D. KHANDEKAR V. BAR COUNCIL OF MAHARASHTRA3

The test of professional misconduct was laid down. The test to be applied in all cases is
whether the proved misconduct of the advocate is such that he must be regarded as unworthy
to remain a member of the honorable profession to which he has been admitted and unfit to
be entrusted with the responsible duties that an advocate is called upon to perform.

 N.G. DASTANE V. SHRIKANT S. SHIND4

Where the advocate of one of the parties was asking for continuous adjournments to the
immense inconvenience of the opposite party, it was held by the Supreme Court that seeking
adjournments for postponing the examination of witnesses who were present without making
other arrangements for examining such witnesses is a dereliction of the duty that an advocate
owed to the Court, amounting to misconduct.

4. CODE OF CONDUCT FOR LAWYERS

Section 49(1)(c) of the Advocates Act, 1961 empowers the Bar Council of India to frame
rules regulating standards of professional conduct and etiquette to be observed by advocates.
Rule 36 of Bar Council of India Rules states that an advocate in India cannot solicit work or
advertise, either directly or indirectly by circulars, advertisements, personal communications
or interviews, or by furnishing or inspiring newspaper comments or producing photographs to

2
(1995) 1 SCC 732
3
(1984) 2 SCC 556
4
(2001) 6 SCC 135
be published in connection with their cases. It is improper for an Advocate to demand or
accept fees or any premium for any person as a consideration for impairing in law under the
rules prescribed by the Bar Council to enable such person to qualify for enrolment under the
Advocates Act, 1961.

5. NURTURING LAWYERS

India has the second largest legal profession in the world with approximately one million
lawyers with more than 80,000 lawyers graduating each year from around 900 government
and private law schools.5 There is a steady increase in cases concerning misconduct of
lawyers. Therefore, there is a need to emphasize a deeper understanding of professional
ethics among lawyers and perhaps articulate a different notion of professional responsibility
that extends beyond the standards of professional conduct and etiquette for lawyers
prescribed by the Bar Council of India.

The exaggerated importance placed on rules, claims and defences and analytical reasoning in
traditional legal education has insulated students from learning about the relevance of social
context and processes, moral reasoning, and care and connection between lawyers and
clients.

6. ETHICAL PROBLEM

More than 90 per cent of Supreme Court lawyers appearing for the Advocates on Record
(AOR) examination in 2013, failed the paper on ‘professional ethics and advocacy’ which
asks critical questions such as harmonization of duties as a lawyer and officer of the court;
whether or not to take up cases inconsistent with one’s personal value system; the way
lawyers should conduct themselves etc.6 A practicing advocate who failed the paper
challenged the results on the grounds that the examination questions were related to the daily
functioning of the Supreme Court and general ethics of advocacy as if such knowledge and
understanding is immaterial to legal practice.

Intense competition among lawyers in a tight market for legal services has encouraged
aggressive, hostile and dishonest professional behaviour. Too many law students graduate
from law school with uncertain professional goals, values and standards, which make them

5
The Indian Legal Profession, Harvard Program on the Legal Profession (2011), available at
http://www.law.harvard.edu/programs/plp/pdf/Indian_Legal_Profession.pdf.
6
Utkarsh Anand, 93% Lawyers fail paper on Ethics, Advocacy, Indian Express (April 10, 2013),
http://www.indianexpress.com/news/93—lawyers-fail-paper-on-ethics-advocacy/1099986/.
susceptible to adopt ‘hostile and overreaching behaviour’ to achieve professional prestige and
material success.

7. BRIDGING THE GAP BETWEEN LEGAL ETHICS AND LEGAL PROFESSION

 WHAT LAW SCHOOLS CAN DO?

Traditional legal education approaches the subject of law within the imagined paradigm of a
perfect world where law equals justice and all that lawyers need to do is apply legal rules in
each case. However, in the real world, legal services are not always available or affordable,
legal aid is limited, states do not comply with their legal obligations, laws are not
comprehensive and clear, judges do not reason consistently, police and courts are not
efficient and lawyers are not ethical. As a result, lawyers are deprived of any training on how
to respond to the uncontrollable variables that often challenge the predictability of legal
outcomes.

If the commitment of the legal profession and of legal academia to producing ethical lawyers
is genuine, legal ethics must be the most important subject in the curriculum. 7Properly
taught, ethics courses should provide the lens through which students view what it means to
be a lawyer and discover how to find meaning in their work. The rules must be taught in the
context of their purpose and history. They must be placed in the framework of lawyers'
central role in how society distributes justice and maintains order.

The teaching of professional ethics and responsibility in Indian law schools has struggled to
establish intellectual legitimacy, and the curriculum has remained limited to instruction about
a code of conduct for legal practitioners- essentially, a list of do’s and don’ts. Professional
ethics courses offered in Indian law schools adopt a legalistic approach focused on
enforceable laws and rules rather than addressing issues concerning a lawyer’s moral conduct
and inquiring their role in perpetuating injustices.

 THE LEGAL THEORY AND PRACTICE COURSE (LTP)

The Legal Theory and Practice (LTP) course in the University of Maryland School Of Law in
the United States, attempted to rethink the discourse on professional responsibility in terms of
an ethic of care. Classes on lawyering skills, interviewing and fact-finding emphasized on

7
Russell Pearce, Legal Ethics Must Be the Heart of the Law School Curriculum Symposium: Recommitting to
Teaching Legal Ethics- Shaping Our Teaching in a Changing World, 26 J. Legal Prof. 159 (2002) Available at:
http://ir.lawnet.fordham.edu/faculty_scholarship/354
responding to the clients’ goals and understanding their perspectives. 8
A part of the course
focused on individual client representation and legal work which encouraged law students to
support each other and share their findings in order to develop caring and cooperative
approaches to legal practice.

8. LACUNAE IN BCI RULES

The legal profession in India is regulated by the Bar Council of India (BCI) which performs
oversight functions and lays down standards of professional conduct. Each state has its own
Bar Council which regulates admission and removal of advocates from its rolls. The members
of the legal profession in India are bound by the Code of Professional Ethics in Part VI,
Chapter II of the BCI Rules under Section 49 of the Advocates Act 1961. The powers of
disciplinary action are vested in the state Bar Councils through a system of peer group
adjudication.

Many notorious practices of the Bar are overlooked by the rules, such as bench-fixing,
suppression of unfavourable legal precedent, asking for repeated adjournments, charging
disproportionately high fees without any regard for the capacity of the client to pay and the
nature of the case, encouragement of administrative corruption among court staff. The BCI
sparingly uses its powers under Section 35(3) of the Advocates Act 1961 to reprimand,
suspend or remove an advocate from its rolls as punishment for professional misconduct.

 LEGAL SERVICES BOARD

Legal Practitioners (Regulations and Maintenance of Standards in Profession, Protecting the

Interest of Clients and Promoting the Rule of Law) Bill 2010 is still pending. The proposed
law aims to create a Legal Services Board to regulate the legal profession; establish an
ombudsman to deal with complaints against legal practitioners and enact the duty to provide
pro bono legal services. The Bill is being opposed by large sections of the legal fraternity as
they argue that such a ‘super-regulator’ would undermine the authority of the Bar Councils
and interfere with the independence of the Bar. Instead, they have proposed that Bar Councils
be strengthened and made more accountable.

9. CONCLUSION

8
Barbara L. Bezdek, “Legal Theory and Practice” Development at the University of Maryland: One Teacher’s
Experience in Programmatic Context, 42 Wash. U. J. Urb. & Contemp. L. 127 (1992) Available at:
http://openscholarship.wustl.edu/law_urbanlaw/vol42/iss1/11
Increasingly, we find that law students graduating from the elite law schools in India are
attracted to careers that disconnect them from their ‘intrinsic’ values and motivations like
integrity, care, help etc. and they drift towards ‘extrinsic’ orientations like winning, high
salaries, social status etc. As a result, they begin to understand and practice professionalism
as separate from job/personal satisfaction when, in reality; they are inseparable as one’s
quality of life and professional reputation ‘manifest from one’s choice of optimal goals,
values and motives’.

The adherence of existing codes of professional ethics to a set of neutral rules may lead to
indifference towards ethical considerations and reduce ethics to risk analysis and
management instead of development of moral character and ethical behaviour. Most students
do not learn how to appreciate or value their clients during their legal training. An
integration of personal and professional values, and an assimilation of analytical thinking and
emotional intelligence will allow lawyers to practice law with integrity, compassion,
diligence and enjoyment. A contextual code will address the ethical issues involved in client
selection and provide guidance on how these issues will play out in that particular situation. It
will expose law students to the ethical dilemmas and constraints that arise in various practice
areas and help them in making ethically informed career choices.