Introduction:

“Lawyers throughout the world are specialized professionals who place the interests of their clients above their own, and strive to obtain respect for the Rule of Law. They have to combine a continuous update on legal developments with service to their clients, respect for the courts, and the legitimate aspiration to maintain a reasonable standard of living.”

      – International Bar Association’s International Principles on Conduct for the Legal Profession

The profession of law is the only profession which is generally described as a learned and noble profession by the entire world. The profession in turn carries a lot of responsibilities both inside and outside it, which no person carrying on any other profession has to shoulder. It is a great controlling and unifying institution which places upon each his duties, gives to each his rights and enforces from each obligations. The role of the lawyer is very central to the very vital organ of the state that is the Judiciary. On the stage of administration of justice, his contribution is of immense importance. The lawyers as the social thinker have to play a special role for the solidarity, unity, integrity, welfare and good of the society. A profession which is performing such an essential service to the society must also be expected to conduct itself to come up to the expectations of the society. His professional conduct must be above board. A deviance on the part of the individual members of the legal profession has a bearing on the interest, lives and condition of the life of the members of the society. Hence, the society has an interest in the manner of regulation of the deviations, deviances and delinquencies in the profession conduct of this profession.

It is very pertinent to note that the profession of lawyers ordains a high level of ethics as much as in the means as in the ends. Justice cannot be attained without the stream being pellucid throughout its course and this is of great public concern, not merely profession care, the standards of professional conduct, that is the legal ethics not only serve the interest of the society but they also help the legal profession to maintain the honour and dignity of the very profession and the system of administration of justice prevailing in the society. Further, to secure a spirit of friendly cooperation between the bench and the Bar in promotion of highest standards of justice. The same establishes honourable and fair dealings of the counsel with the client, opponent and witnesses. Above all the lawyers discharge their responsibilities to community at large.

Meaning of Ethics:

The word is derived from the Greek word that is “Ethos” which means custom or a habitual mode of conduct. Ethics in easy term refers to moral science. It is the branch of philosophy which is only concerned with human character and conduct.[1]

Ethics also refer to systematic general science of right and wrong conduct of an individual, and morals or morality which refers to the actual patterns of conduct and direct working rules of moral action. Ethics can be said to be the study of human actions in respect of they being right or wrong actions of individuals and social groups with which we are now concerned is the one belonging to the profession of law.

Besides all these, it is pertinent to note that a lawyer must behave in a dignifies manner during the time of his case as well as while acting before the court. He should conduct himself with self – respect. Whenever there is a ground for complaint against a judicial authority, the lawyer has a duty to submit his grievances to the concerned authorities.

LEGAL ETHICS AND PROFESSIONAL ETHICS

The expressional “legal ethics” is made up of noun “ethics” qualified by the adjective that is “legal”. Ethics is broadly a sense of duty. In other words, it is the sum of aggregate of the rules of right living. The term “legal” refers to “according to law”. “Legal ethics” is that branch of moral science which lays down certain duties for observance which an advocate owes to the society; to the Court; to the profession; to his opponent; to his clients and himself. Legal ethics has their source from tradition. On regular practice after some generations, they become usages, from usages to customs and from customs to statutory rules that is etiquette.

Generally speaking, legal ethics denotes that body of principles by which the conduct of members of legal profession is controlled, more specifically and practically considered. More specifically and practically considered, legal ethics may be defined as that branch of moral science which treats of duties which an attorney – at – law owes to his clients, to the courts, to the bar, and to the public.[2]

Legal ethics refers to the ethics of the legal profession. It is the body of rules and practices, which determine the profession conduct of the members of the Bar and of the Bench. The phrase “legal ethics”, shows the existence of a set of professional norms for lawyers apart from the moral rules which regulate the conduct of men in general.

Legal ethics means “usages and customs among members of the legal profession involving their moral and professional duties towards one another, towards clients and towards the courts that branch of moral science which treats of the duties which a member of legal profession owes to the public, to the courts, to his professional brethren, and to his client.”[3]

Legal ethics are not exclusively rules – based. The customs and cultures of lawyers, to the extent that they have some effect on the delivery of legal services should also be included within an extended definition.[4] Lawyers` allegiances to these ethical values and canons of conduct have been shaped through ages. The ethics of the profession developed as the profession grew in the stature and assumed its dignified status as a strong arm of our judicial system.

Such canons of conduct serve as a guide to understand the social as well as the professional responsibilities of a lawyer. There were certain traditional ethics at one time. Later, they were formulated into statutory rules that is into law, by certain Act and Rules made there under viz. The Legal Practitioners Act of 1879; Bar Councils Act of 1926, Letters Patent of several High Courts and many more. These rules are now incorporates in the Bar Council of India Rules. Therefore, these ethics have become statutory rules now by virtue of legislation that is these ethics had become etiquette.

The four interwoven ethics or conceptions of what a lawyer ought to do can be discovered in lawyers` ethical debates, treatises and judicial pronouncement. They are as follows – [5]

1.      The ideal of devoted service to clients in a legal system where citizens need advice and representation to use the legal system (the advocacy ideal).

2.      The ideal of fidelity to the law and justice if the system is not to be sabotaged by clients who will pay a lawyer to anything (the social responsibility ideal).

3.      An ideal of willingness to work for people and causes that are usually excluded from the legal system (the just ideal).

4.      The ideal of courtesy, collegiality, and the mutual self – regulation amongst members of the profession (the ideal of collegiality).

An advocate who is enrolled under any State Bar Council has to strictly adhere to the Standards of Profession Conduct and Etiquette. As they are statutory rules, they are mandatory in nature and violation of any rule by any advocate attracts disciplinary enquiry by the State Bar Council competent to suspend him from practice for a period of some years and if the offence is very grave which renders him unfit to continue to practice law, then he can be permanently struck off from the rill as an advocate. Such power is exercised through the machinery of Disciplinary Committee of the State Bar Council.

The Legal ethics is normally concerned with the conduct of lawyers in their professional capacity; members of the Bar are required to conform to high moral standards even outside the sphere of their professional activities.

An Advocate shall, at all the time, conduct himself in a manner befitting his status as an officer of the Court, a privileged member of the community; and a gentleman, bearing in mind that what may be lawful and a moral for a person who is not a member of the bar, or for a member of the Bar in his non – professional capacity may still be improper for an advocate. Without prejudice to the generality of the foregoing obligations, an advocate shall fearless uphold the interests of his client and in his conduct conform to the rules hereafter mentioned both in letter and in spirit.

Importance of Ethics for Lawyers

1. Upholding the Rule of Law and Access to Justice

“…an independent legal profession is integral to upholding the rule of law. Whereas adequate protection of human rights and fundamental freedoms to which all persons are entitled, be they economic, social and cultural, or civil and political, requires that all persons have effective access to legal services provided by an independent legal profession.”

       – Preamble to the UN Basic Principles on the Role of Lawyers

If lawyers do not adhere to, and promote, principles of justice, fairness and equity, the law itself is brought into disrepute and public confidence in the law will be undermined, thereby hindering access to justice. Therefore, the legal profession has a huge responsibility within society as upholders of the rule of law, and protectors of individual rights against abuses of power.

• Maintaining the Reputation of the Legal Profession

“Lawyers shall at all times maintain the honour and dignity of their profession as essential agents of the administration of justice.”

 Principle 12 of the UN Basic Principles on the Role of Lawyers

A profession’s collective reputation is crucial to the confidence it inspires. The reputation of the legal profession is linked to how the public views the administration of justice. Where there is no public confidence in the legal profession, trust in the justice system itself is undermined.

• Accountability

If ethical standards exist and clearly define the duties of lawyers, they can be brought to account where they fall short of these standards. In order to achieve accountability, it is also important to ensure that rules of ethics, once developed, are publicised amongst the legal profession and the public. To ensure that ethics are enforceable, the legal profession should also put in place effective disciplinary procedures.

The object of professional ethics

The primary object of ethics in advocacy is to maintain the dignity and integrity of the legal profession. Legal ethics ensure that the legal fraternity serves the society honestly and present each case in the most formal way possible so that the litigants have faith on not only their legal representative or lawyer but also on the justice system. Not only the lawyer but also the judge needs to have a sense and understanding of legal ethics in order to maintain the functionality of Indian Courts. One of the fundamental aims of legal ethics is to seek a spirit of friendly cooperation amongst the bar, bench and the clients. Standards of ethics exist between the lawyer and his client, opponent and the witness being questioned and of course between the Judge and the lawyer.

The legal profession has been created by the state to serve the litigatory needs of the public. Thus, it is not a business it’s a profession. Consequently, there is 3 fundamental basis of legal ethics that gives an insight into the essence of the legal profession:

1. The organisation of its members in order for the performance of their function;
2. Maintain certain standards at both the intellectual and ethical level to preserve the dignity of the profession;
3. Pecuniary gains must be subordinate to the client’s interest.

Existing Legal Framework in India:

The Advocate Act, 1961[6]

The All India Bar Committee had come up with a few recommendations based on the Law Commission’s recommendations relating to the legal ethics and legal profession. Thus, under the auspices of these recommendations, the Legislature implemented the Advocate Act, 1961. Subsequently, the Bar Council of India was established by the Parliament under Section 4 of the 1961 Act. This Act lays down the functions of the Bar Council of India (BCI) under Section 7. The Bar Council of India thus lays down standards of professional Code of conduct and etiquettes to be followed by advocates under Section 7(1)(b). Interestingly, this very function of the Bar is also laid down under Section 49(1)(c). According to Section 49(1)(c), the Bar is empowered to make rules for the standard of professional ethics that needs to be observed by advocates.

Bar Council of India Rules on Professional Standards

Bar Council of India Rules[7] is framed by the BCI under Part VI of Chapter 2. This chapter deals with the standard of professional ethics and conduct of lawyers. It is important to go through the rules briefly to understand the importance of professional ethics of a lawyer towards the Court and the Client.

Rules on Advocate’s Duty towards Court

The Bar Council of India prescribes certain duties that an advocate must fulfill. 

1. Act in a dignified manner: During the presentation the case and while acting otherwise as an advocate before the court is required to conduct himself with dignity and self respect. An advocate shall not be servile and in case of proper ground for serious complaint against a judicial officer, it is his right and duty to submit his grievances to the proper authority. In re D.C. Saxena, AIR 1966 SC 2481 – The rule empowers the advocate to make complaint against judicial officer but it should be submitted to proper authority.
2. An advocate must maintain a respectful attitude while at court and shall respect the dignity of the judicial office: In the case of U.P. Sales Tax Service Association v Taxation Bar Association (1995) [8]it was stated that the survival of a free community is endangered if an advocate doesn’t show respect or recognises the dignity of the judicial officer. It potentially lowers the spirit of the court.
3. Not to communicate in private: this rule was well explained in the case of Rizwan-Ul-Hassan v. State of U.P. (1953)[9] It was observed that an advocate shall not try to seek favourable decisions by any illegal means including bribing the court or communicating any favour in private. Thus, this rule prohibits any private communication with the judge which would be specifically regarding a pending case. It is considered as a gross form of professional misconduct if at all an advocate tries to influence the decision of the court by having private communication with the judge.
4. Refuse to act in an illegal manner towards the opposition: An advocate is also required to prevent his client from resorting to unfair practices relating to the court, opposing counsel or opposite parties or even co-parties. The advocate must earnestly restrain and explain the implications and the consequences of such unfair practices. This rule also empowers an advocate to refuse to represent a client if he/she insists on such improper conduct.
5. An advocate shall have his own sense of judgement and mustn’t use strong language in the court of law: This is another important Rule laid down that the advocate is expected to have his own sense of judgment regarding the cause or the case he/she is representing. In the case of M.Y. Shareef & Anothers. V. Hon’ble Judges of Nagpur High Court & Ors. (1954),[10] it was observed that an advocate is not a mere mouthpiece of the client. Legal counsel must exercise his/her own judgement. An advocate must also restrain oneself from the use of scurrilous remarks while in pleadings. They shall use intemperate language during pleadings in court.
6. Appear in proper dress code: Legal profession is one of the few professions that have a designated uniform. The court demands that an advocate must necessarily show up inappropriate dress code. There have been instances in court where cases have either been postponed or dismissed for that matter due to the lack of proper dress code that should have been followed by the representing legal counsel. Thus, if an advocate is improperly or inadequately dressed, he is not only looked down upon but also his appearance is a breach of the prescribed dress code.
7. Refuse to appear in front of relations: this rule is laid down in Section 30 of the Advocates Act, 1961. This rule was laid down in order to avoid conflict of interest and bias in judgment. If there is a family tie existing between the presiding judicial officer and an advocate, then the advocate shall not appear in such cases and shall request for the change in bench.
8. Not to wear bands or gowns in public places: the advocate cannot utilise his/her gown or band in other public places unless in any ceremonial occasions that the Bar Council of India and the court may prescribe.
9. Not to represent establishments of which he is a member: The rule simply provides that an advocate is not allowed to represent, defend or even stand against an organization, institution, society, corporation etc. if he is a part of the executive committee of such institutions.

However, an advocate can appear as an ‘amicus curiae’ on behalf of a Bar Council.

1. Not appear in matters of pecuniary interest: An advocate shall not act or plead in any matter in which he himself has some pecuniary interest.
2. Not stand as surety for the client: sometimes parties at court or litigants are required to give surety to the court. An advocate shall not stand as a surety for his client in any legal proceedings.

Rules on Advocate’s Duty towards Client

Just as an advocate owes duty towards the court he/she is also obligated to follow Rule 11 to Rule 33 that prescribes an advocate’s duties towards his client. They are as follows: 

1. Bound to accept briefs: Rule 11 lays down that an advocate is bound to accept any brief in the court that is if he proposes to take up without any fee at the Bar council.

In S.J. Chaudhary v. State (1984)[11], the Supreme Court held that if an advocate doesn’t attend a case day to day he would be liable for breach of professional duty. This observation was based on the fact that a lot of advocates don’t appear at the court and then his client has to bear the brunt of it.

1. Not to withdraw from service: Rule 12 provides that an advocate shall give the client reasonable and sufficient notice before withdrawing from an engagement. He shall not withdraw without any reasonable grounds. If he withdraws himself with sufficient cause he is bound to refund the fee (even a part of it if not earned).
2. Not to appear in matters where he himself is a witness: Rule 13 provides this rule as it can give rise to a conflict of interest. It must be noted that if an advocate is a witness of a party and he is asked to represent the other side then only such an advocate shall refrain from taking up such matters

In Kokkanda B. Poondacha v. K.D. Ganpathi (1995)[12] the Court has upheld this rule as the parties could be disadvantaged. 

1. Full and frank disclosure to the client: Rule 14 provides that an advocate is expected to be honest with his client before the commencement of his engagement. He is obligated to reveal whether he has any connection with the other side of parties and any interest in their case. Otherwise, this creates controversies and also affects his client’s judgment to carry forward such an engagement.
2. Uphold interest of the client: Rule 15 provides that an advocate owes his loyalty to his client and must uphold the interest of his client fearlessly and honestly by all fair means. He shall not give regard to unpleasant consequences that he may bear.
3. Not to suppress material or evidence: suppressing material evidence is absolutely disregarded in the court of law. This rule is provided under Rule 16. It basically provides that if a prosecutor in a criminal trial tries to suppress material evidence that may lead to the innocence of the accused or taint the justice of the victim if shall be considered a gross breach of professional conduct and can also invite legal trouble for themselves. Thus, such an act or omission shall be scrupulously avoided.
4. Not to disclose the communications between the client and himself: Rule 17 is also one of the most important obligations followed by an advocate. A non-disclosure agreement is always signed between the client and the advocate. Since there exists a fiduciary relationship between the client and the advocate, breach of confidentiality is taken seriously even at the court of law.  This rule is also incorporated in Section 126 of the Indian Evidence Act, 1872.
5. Not charge depending on the success of matters: Rule 20 provides that an advocate shall not charge depending upon the success of the lawsuit. Such a practice is opposed to public policy. Any such contract for a contingent nature of fee against Section 23 of the Indian Contract Act.
6. An advocate must not lend money to his client: Rule 32 provides that when an advocate lends money to his client then interest is created. Such a creation of interest if not allowed as it affects the advocate’s sense of judgment and also disallows the client to think upon before commencing with engagement.
7. Not appear for opposite parties: Rule 33 provides that an advocate shall not represent the opposite party after withdrawing from the case on behalf of the previous party.

Rules on Advocate’s Duty to Opponents:

 i. Not to negotiate directly with opposing party: An advocate shall not in any way communicate or negotiate or call for settlement upon the subject matter of controversy with any party represented by an advocate except through that advocate representing the parties.

 ii. Carry out legitimate promises made: An advocate shall do his best to carry out all legitimate promises made to the opposite party even though not reduced to writing or enforceable under the rules of the Court.

Rules on Advocate’s Duty towards Fellow Advocates:

1. Not advertise or solicit work: An advocate shall not solicit work or advertise in any manner. He shall not promote himself by circulars, advertisements, touts, personal communications, and interviews other than through personal relations, furnishing or inspiring newspaper comments or producing his photographs to be published in connection with cases in which he has been engaged or concerned.

1. Sign-board and Name-plate: An advocate’s sign-board or name- plate should be of a reasonable size. The sign-board or name-plate or stationery should not indicate that he is or has been President or Member of a Bar Council or of any Association or that he has been associated with any person or organisation or with any particular cause or matter or that he specialises in any particular type of work or that he has been a Judge or an Advocate General.
   1. Not promote unauthorized practice of law: An advocate shall not permit his professional services or his name to be used for promoting or starting any unauthorised practice of law.

1. An advocate shall not accept a fee less than the fee, which can be taxed under rules when the client is able to pay more.

• Consent of fellow advocate to appear: An advocate should not appear in any matter where another advocate has filed a vakalat nama or memo for the same party. However, the advocate can take the consent of the other advocate for appearing.

In case, an advocate is not able to present the consent of the advocate who has filed the matter for the same party, then he should apply to the court for appearance. He shall in such application mention the reason as to why he could not obtain such consent. He shall appear only after obtaining the permission of the Court.

Other Duties:

Rule 40 requires every advocate on the rolls of the State Bar Council to pay a certain sum to the state bar council.

Rule 41 provides that all the sums so collected by the state bar council shall be credited in a separate fund to be known as “Bar Council of India Advocates welfare fund for the State” and shall be deposited in the bank as provided there under.

(b) (i) According to rule 41(2) the Bar Council of India Advocates Welfare fund Committee for the State shall remit 20% of the total amount collected and credited to its account, to the bar council of India by the end of every month which shall be credited by the Bar council of India and the Bar council of India shall deposit the said amount in a separate fund to be known as “Bar Council of India Advocates Welfare fund.”

• (ii) According to rule 41(3) the rest 80% of the total sum so collected by the Bar Council of India Advocate Welfare Fund Committee for the state shall be utilized for the welfare of the advocates in respect of welfare schemes sponsored by the respective State Bar Council.

• Rule 42 deals with the consequences of non payment of the said amount by the advocate. It provides that if an advocate fails to pay the aforesaid sum within the prescribed time, the secretary of the State Bar Council shall issue to him a notice to show cause within a month why his right to practice be not suspended. In case the advocate pays the amount together with late fee within the period specified in notice, the proceeding shall be dropped. If the advocate does not pay the amount or fails to show sufficient cause, a committee of three members constituted by the state bar council in this behalf may pass an order suspending the right of the advocate to practice.

• Rule 43 provides that an advocate who has been convicted of an offence mentioned under section 24-A of the Advocates Act or has been declared insolvent or has taken full time service or part time service or engages in business or any avocation inconsistent with his practicing as an advocate or has incurred any disqualification mentioned in the Advocates Act or the rules made there under, shall send a declaration to the effect to the respective state bar council in which the advocate is enrolled, within 90 days from the date of such disqualification.

• Rule 44 provides, an appeal shall lie to the bar council of India at the instance of an aggrieved advocate within a period of 30 days from the date of the order passed under rule 42 and 43.

(e)(i) Rule 44-A provides that there shall be a Bar council of India Advocates Welfare Committee consisting of five members elected from amongst the members of the council. The term of the members of the

committee shall be co-extensive with their term in the Bar Council of India. Rule 44-b makes it clear that the Bar Council of India shall utilise the funds received under rule 41(2), stated above, in accordance with the scheme which may be framed from time to time.

Rules on Advocate’s Duty in Imparting Training:

Rule 45 framed by the Bar Council of India makes it clear that it is improper for an advocate to demand or accept fees or any premium from any person as a consideration for imparting training in law under the rules prescribed by the State Bar Council to enable such person to qualify for enrolment under the Advocates Act, 1961.

Rules on Advocates Duty to render legal aid:

The preamble of the Constitution of India assures justice, social, economic and political to all citizens of the country. Articles 14 & 16 of the Constitution of India impose an implicit responsibility on the State to ensure that none is deprived of legal assistance for reasons of economic or other disabilities so that equal justice is provided to all citizens of the country. Further, the principle contained in Article 39-A are fundamental and cast duty on the State to secure that the operation of the legal system promotes justice to all citizens and particularly the poor and the marginalized. However, despite this Constitutional mandate, poor remain deprived of appropriate legal assistance for a long time even after independence.

In this situation advocates have a role to play. Legal profession is monopolistic in character and this monopoly itself inheres certain high traditions, which its members are expected to upkeep and uphold. Law is an Hon’ble profession and an Advocate is an Officer of justice and friend of the Court. He is an integral part for the administration of justice. From the ancient times, the legal obligations of the Advocates to conduct the case of a poor litigant without reward when so required by the Court has

been recognized not only in our country, but also in England, US and other Countries. However, in practice, Counsels have been assigned only in criminal cases of serious nature and a few civil cases.

The critical position enjoyed by an Advocate in administration of justice in fact imposes a responsibility upon him to ensure that justice is made available to all. Rule 46 of Bar Council if India Rules in part-VI relating to a standard professional conduct and etiquette reminds Advocates of the obligation they owe to the society. The Rule reads as under:

“Every Advocate shall in the practice of the profession of law bear in mind that any one genuinely in need of a lawyer is entitled to legal assistance even though he cannot pay for it fully or adequately and that within the limits of an Advocate’s economic condition, free legal assistance to the indigent and oppressed is one of the highest obligations an Advocate owes to society.”

Thus, to ensure justice to poor and marginalized sections of the society, an Advocate is required to provide them legal assistance even when they are not in position either to pay him at all or adequately pay him for his services. In fact the least duty expected of an Advocate is to play his role sincerely in implementing the various legal aid schemes available under the Legal Services Authorities Act, 1987 – be it legal aid to poor and other marginalized sections of the society or promotion of legal literacy or facilitating resolution of disputes through Lok Adalat’s. The role of the Advocates in implementation of these schemes becomes pivotal due to the fact that legal profession being monopolistic, the various schemes of legal aid under the Act can only be put into operation through Advocates.

Rules on Advocate’s Restriction on other employment:

• Rule 47 provides that an advocate shall not personally engage in any business but he may be a sleeping partner in a firm doing business provided that in the opinion of the appropriate state bar council the

nature of the business is not inconsistent with the dignity of the profession.

• Rule 48 makes it clear that an advocate may be director or chairman of the board of directors of a company with or without any ordinary sitting fees, provided none of his duties are of executive character. An advocate shall not be a managing director or a secretary of any company.
• Rule 49 provides that an advocate shall not be a full time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practice and shall taking up any such employment intimate the fact to the bar council on whose roll his name appears and shall thereupon cease to practice as an advocate so long as he continues in such employment.
• Rule 50 provides that 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.
• Rule 51 an advocate may review parliamentary bills for a remuneration, edit legal text books at a salary, coach pupils for legal examination, set and examine question papers and subject to the rules against advertising and full time employment, engage in broadcasting, journalism, lecturing and teaching subject both legal and non legal.
• Rule 52 makes it clear that nothing in these rules shall prevent an advocate from accepting after obtaining the consent of the state bar council, part-time employment provided that in the opinion of the state bar council, the nature of the employment does not conflict with his professional work and is not inconsistent with the dignity of the profession.

Now that I have discussed the ethics quo advocates I would discuss the ethics which judges must imbibe in themselves for a fair adjudication of cases and to instill a sense of confidence among the citizenry.I will also discuss in brief the concept of recusal.    

The concept of recusal

a) It is a basic precept that no one should be a Judge in his or her own case. Courts must keep the promise of dispensing fair and impartial justice, and must decide controversies without bias. The practice of recusal i.e., when and how an individual justice should be excluded from participating in a specific case, where he has some interest—has been a regular topic of passionate debate since the founding in the United States of America and United Kingdom[13]

b) Recusal is “removal of oneself as a Judge or policymaker in a particular matter, especially because of a conflict of interest”[14]

c) The doctrine of judicial recusal enables, and may require, a Judge who has been, appointed to hear and determine a case to stand down from that case and leave the disposition of it to another colleague or colleagues. The judicial oath in England and Wales, widely echoed in the common law world, is to do justice without fear or favour, affection or ill-will. Fear and favour are the enemies of independence, which is a state of being.[15]

d) Affection and ill-will undermine impartiality, which is a state of mind. But independence and impartiality are the twin pillars without which justice cannot stand, and the purpose of recusal is to underpin them. That makes the law relating to recusal a serious business.

The reason for recusal

It is simple, a Judge has a duty of fairness when imparting justice and making judgments as they preside over a case. Thus, at the time a Judge learns of their assignment to a case, the Judge should review the facts of the case and decide whether there are any conflicts of interest regarding the case that would prevent them from being able to be impartial, ethical, and fair. Some examples of conflicts of interest where a Judge should likely recuse themselves from the case include: personal connection to one of the parties to the case, personal knowledge of the facts of the case, familial relationship to one of the attorneys and financial interest in the result of the case and other.

THREE DOCUMENTS for Judges’ Ethics[16]

Canons of judicial ethics have been attempted, time and again, to be drafted as a Code. Several documents of authority and authenticity are available as drafted or crafted by several fora at the national and international level. The fact remains that such a code is difficult to be framed and certainly cannot be consigned to a straitjacket. Mostly these canons have originated in and have been handed down by generation after generation of judges by tradition and conventions. If any reference is required to be made to documents, I would choose to confine myself by referring to three of them:—

(i) Restatement of Values of Judicial Life (1999)

On May 7, 1997, the Supreme Court of India in its Full Court adopted a Charter called the “Restatement of Values of Judicial Life” to serve as a guide to be observed by Judges, essential for independent, strong and respected judiciary, indispensable in the impartial administration of justice. This Resolution was preceded by a draft statement circulated to all the High Courts of the country and suitably redrafted in the light of the suggestions received. It has been described as the ‘restatement of the pre-existing and universally accepted norms, guidelines and conventions’ observed by Judges. It is a complete code of the canons of judicial ethics. It reads as under:

(1) Justice must not merely be done but it must also be seen to be done. The behaviour and conduct of members of the higher judiciary must reaffirm the people’s faith in the impartiality of the judiciary. Accordingly, any act of a Judge of the Supreme Court or a High Court, whether in official or personal capacity, which erodes the credibility of this perception has to be avoided.

(2) A Judge should not contest the election to any office of a Club, society or other association; further he shall not hold such elective office except in a society or association connected with the law.

(3) Close association with individual members of the Bar, particularly those who practice in the same court, shall be eschewed.

(4) A Judge should not permit any member of his immediate family, such as spouse, son, daughter, son-in-law or daughter-in-law or any other close relative, if a member of the Bar, to appear before him or even be associated in any manner with a cause to be dealt with by him.

(5) No member of his family, who is a member of the Bar, shall be permitted to use the residence in which the Judge actually resides or other facilities for professional work.

(6) A Judge should practice a degree of aloofness consistent with the dignity of his office.

(7) A Judge shall not hear and decide a matter in which a member of his family, a close relation or a friend is concerned.

(8) A Judge shall not enter into public debate or express his views in public on political matters or on matters that are pending or are likely to arise for judicial determination.

(9) A Judge is expected to let his judgments speak for themselves. He shall not give interviews to the media.

(10) A Judge shall not accept gifts or hospitality except from his family, close relations and friends.

(11) A Judge shall not hear and decide a matter in which a company in which he holds shares is concerned unless he has disclosed his interest and no objection to his hearing and deciding the matter is raised.

(12) A Judge shall not speculate in shares, stocks or the like.

(13) A Judge should not engage directly or indirectly in trade or business, either by himself or in association with any other person. (Publication of a legal treatise or any activity in the nature of a hobby shall not be construed as trade or business).

(14) A Judge should not ask for, accept contributions or otherwise actively associate himself with the raising of any fund for any purpose.

(15) A Judge should not seek any financial benefit in the form of a perquisite or privilege attached to his office unless it is clearly available. Any doubt in this behalf must be got resolved and clarified through the Chief Justice.

(16) Every Judge must at all times be conscious that he is under the public gaze and there should be no act or omission by him which is unbecoming of the high office he occupies and the public esteem in which that office is held.

 These are only the “Restatement of the Values of Judicial Life” and are not meant to be exhaustive but illustrative of what is expected of a Judge.

The above “restatement” was ratified and adopted by Indian Judiciary in the Chief Justices’ Conference 1999. All the High Courts in the country have also adopted the same in their respective Full Court Meetings.

 (ii) The Bangalore Draft Principles

The values of judicial ethics which the Bangalore Principles crystallises are: (i) independence (ii) impartiality, (iii) integrity, (iv) propriety (v) equality and (vi) competence & diligence.

The above values have been further developed in the Bangalore Principles as under:—

(i) Judicial independence is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects.

(ii) Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision is made.

(iii) Integrity is essential to the proper discharge of the judicial office.

(iv) Propriety, and the appearance of propriety are essential to the performance of all of the activities of a judge.

(v) Ensuring equality of treatment to all before the courts is essential to the due performance of the judicial office.

(vi) Competence and diligence are prerequisites to the due performance of judicial office.

(vii) Implementation – By reason of the nature of judicial office, effective measures shall be adopted by national judiciaries to provide mechanisms to implement these principles if such mechanisms are not already in existence in their jurisdictions.

The Preamble to the Bangalore Principles of Judicial Conduct states inter alia that the principles are intended to establish standards for ethical conduct of judges. They are designed to provide guidance to judges and to afford the judiciary a framework for regulating judicial conduct. They are also intended to assist members of the executive and the legislature, and lawyers and the public in general, to better understand and support the judiciary. These principles presuppose that judges are accountable for their conduct to appropriate institutions established to maintain judicial standards, which are themselves independent and impartial, and are intended to supplement and not to derogate from existing rules of law and conduct which bind the judge. There are a few interesting facts relating to the Bangalore Principles. The first meeting to prepare the Draft Principles was held in Vienna in April 2000 on the invitation of the United Nations Centre for International Crime Prevention, and in conjunction with several other institutions concerned with justice administration. In preparing the draft Code of Judicial Conduct, the core considerations which recur in such codes were kept in view. Several existing codes and international instruments more than three in number including the Restatement of Values of Judicial Life adopted by the Indian judiciary in 1999 were taken into consideration. At the second meeting held in Bangalore in February 2001, the draft was given a shape developed by judges drawn principally from Common Law countries. It was thought essential that it will be scrutinized by judges of all other legal traditions to enable it to assume the status of a duly authenticated international code of judicial conduct. The Bangalore Draft was widely disseminated amongst judges of both common law and civil law systems and discussed at several judicial conferences. The draft underwent a few revisions and was finally approved by a Round-Table Meeting of Chief Justices (or their representatives) from several law system, held in Peace Palace in The Hague, Netherlands, in November 2002. ‘Accountability’ as one of the principles which was included in the original draft was dropped in the final draft. It is apparently for two reasons. Firstly, it was thought that the principles enshrined in the Bangalore Principles presuppose the ‘accountability’ on the part of the judges and are inherent in those principles. Secondly, the mechanism and methodology of ‘accountability’ may differ from country to country and therefore left to be taken care of individually by the participating jurisdictions.

(iii) The oath or affirmation by Judge

The Constitution of India obligates the Indian Judiciary to reach the goal of securing to all its citizens Justice, Liberty, Equality and Fraternity. How this goal is to be achieved is beautifully summed up in the form of oath or affirmation to be made by the Judges of the Supreme Court and High Courts while entering upon the office.

 Swearing in the name of God or making a solemn affirmation a Judge ordains himself:—

(i) that I will bear true faith and allegiance to the Constitution of India as by law established;

(ii) that I will uphold the sovereignty and integrity of India;

(iii) that I will truly and faithfully, and to the best of my ability, knowledge and judgment perform the duties of office without fear or favour, affection or ill-will; and

(iv) that I will uphold the Constitution and the laws.

 In my humble opinion, the oath of a Judge is a complete Code of Conduct and incorporates therein all the canons of judicial ethics.

The judiciary has been trusted and hence entrusted with the task of upholding the Constitution and zealously and watchfully guarding the constitutional values. The oath administered to a judge ordains him to uphold the Office as a citadel of public justice and public security to fulfil the constitutional role assigned to the Judiciary.

 “The concept of independence of the judiciary is a noble concept which inspires the constitutional scheme and constitutes the foundation on which rests the edifice of our democratic polity. If there is one principle which runs through the entire fabric of the Constitution, it is the principle of the Rule of Law and under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the Rule of Law meaningful and effective. It is to aid the judiciary in this task that the power of judicial review has been conferred upon the judiciary and it is by exercising this power which constitutes one of the most potent weapons in armoury of the law, that the judiciary seeks to protect the citizen against violation of his constitutional or legal rights or misuse or abuse of power by the State or its officers.”[17] This is the principle of independence of judiciary which judges must keep in mind while upholding the Constitution and administering the laws.

Oath of a Judge’ — analysed

Every word and expression employed in the oath of a judge is potent with a message. The message has to be demystified by reading between the lines and looking beyond what meets the eyes.

An option to swear in the name of God or to make a; solemn affirmation is suggestive of secular character of the oath.

A judge must bear not only faith but ‘true faith’ and ‘allegiance’ to the Constitution of India. The oath demands of a judge not only belief in constitutional principles but a loyalty and a devotion akin to complete surrender to the constitutional beliefs. Why?

 “Under our constitutional scheme, the judiciary has been assigned the onerous task of safeguarding the fundamental rights of our citizens and of upholding the rule of law. Since the Courts are entrusted the duty to uphold the Constitution and the laws, it very often comes in conflict with the State when it tries to enforce its orders by exacting obedience from recalcitrant or indifferent State agencies. Therefore, the need for an independent and impartial judiciary manned by persons of sterling quality and character, undaunting courage and determination and resolute impartiality and independence who would dispense justice without fear or favour, ill-will or affection. Justice without fear or favour, ill-will or affection, is the cardinal creed of our Constitution and a solemn assurance of every Judge to the people of this great country an independent and impartial judiciary is the most essential characteristic of a free society.[18]” The arch of the Constitution of India pregnant from its Preamble, Chapter III (Fundamental Rights) and Chapter IV (Directive Principles) is to establish an egalitarian social order guaranteeing fundamental freedoms and to secure justice — social, economic and political — to every citizen through rule of law. Existing social inequalities need to be removed and equality in fact is accorded to all people irrespective of caste, creed, sex, religion or region subject to protective discrimination only through rule of law. The Judge cannot retain his earlier passive judicial role when he administers the law under the Constitution to give effect to the constitutional ideals. The extraordinary complexity of modern litigation requires him not merely to declare the rights to citizens but also to mould the relief warranted under given facts and circumstances and often command the executive and other agencies to enforce and give effect to the order, writ or direction or prohibit them to do unconstitutional acts. In this ongoing complex of adjudicatory process, the role of the Judge is not merely to interpret the law but also to lay new norms of law and to mould the law to suit the changing social and economic scenario to make the ideals enshrined in the Constitution meaningful and a reality.[19]

The sovereignty and integrity of India has to be upheld. Constitution itself would cease to exist, if, God forbid, the sovereignty and integrity of India were lost.

 The duties associated with the Office of a judge are too sacrosanct and hence demand the judicial functioning with ‘the best of ability, knowledge and judgment’ of the judges. It is not enough to be a law graduate or to have put in a number of years of practice or to have gained experience by serving as a judicial officer for a specified number of years. Their ability and knowledge associated with the clarity of purpose and methods which the judges display enables the judicial system to perform to its optimum efficiency. The role of the judge obligates him to continue to invest in up-dating his knowledge of law and skills of justice dispensation. The holder of the Office if not able and knowledgeable would not have the confidence to function, much less with independence. It is said:

Strange, how much you’ve got to know;

Before you know, how little you know.[20]

Independence and Impartiality

‘Independence’ and ‘impartiality’ are most crucial concepts. The two concepts are separate and distinct. ‘Impartiality’ refers to a state of mind and attitude of the court or tribunal in relation to the issues and the parties in a particular case, while ‘independence’ refers not only to the state of mind or attitude, but also to a status or relationship to others — particularly to the executive branch of Government — that rests on objective conditions or guarantees.[21]

 According to Chief Justice Lamer: “The overall objective of guaranteeing judicial independence is to ensure a reasonable perception of impartiality; judicial independence is but a “means” to an end. If judges could be perceived as “impartial” without judicial “independence”, the requirement of independence would be unnecessary. However, judicial independence is critical to the public’s perception of impartiality. Independence is the cornerstone, a necessary prerequisite for judicial impartiality.”

The concept of judicial independence has been described in golden letters in one of the judgments of the Supreme Court of India. “To keep the stream of justice clean and pure, the Judge must be endowed with sterling character, impeccable integrity and upright behaviour. Erosion thereof would undermine the efficacy of the rule of law and the working of the Constitution itself. The Judges of higher echelons, therefore, should not be mere men of clay with all the frailties and foibles, human failings and weak character which may be found in those in other walks of life. They should be men of fighting faith with tough fibre not susceptible to any pressure, economic, political or of any sort. The actual as well as the apparent independence of judiciary would be transparent only when the office-holders endow those qualities which would operate as impregnable fortress against surreptitious attempts to undermine the independence of the judiciary. In short, the behaviour of the Judge is the bastion for the people to reap the fruits of the democracy, liberty and justice and the antithesis rocks the bottom of the rule of law.”[22] Unless the judges function without fear and favour, the question of their being impartial or independent does not arise. “Judges owe their appointment to the Constitution and hold a position of privilege under it. They are required to ‘uphold the Constitution and the laws’, ‘without fear’ that is without fear of the executive; and ‘without favour’ that is without expecting a favour from the executive. There is thus a fundamental distinction between the master and servant relationship between the government and the Judges of High Courts and the Supreme Court.”[23]

 Independence and impartiality and objectivity would be tall claims hollow from within, unless the judges be honest — honest to their Office, honest to the society and honest to themselves, “…the society’s demand for honesty in a judge is exacting and absolute. The standards of judicial behaviour, both on and off the Bench, are normally extremely high. For a judge, to deviate from such standards of honesty and impartiality is to betray the trust reposed in him. No excuse or no legal relativity can condone such betrayal. From the standpoint of justice, the size of the bribe or scope of corruption cannot be the scale for measuring a Judge’s dishonour. A single dishonest Judge not only dishonours himself and disgraces his office but jeopardizes the integrity of the entire judicial system. A judicial scandal has always been regarded as far more deplorable than a scandal involving either the executive or a member of the legislature. The slightest hint of irregularity or impropriety in the court is a cause for great anxiety and alarm. ‘A legislator or an administrator may be found guilty of corruption without apparently endangering the foundation of the State. But a Judge must keep himself absolutely above suspicion; to preserve the impartiality and independence of the judiciary and to have the public confidence, thereof.”[24]

To perform the duties of judicial office without fear or favour, affection or ill-will is the same thing as performing the duties with independence, impartiality and objectivity. In order to achieve this a certain degree of aloofness is required to be maintained by the judges. According to Justice P.B. Gajendragadkar — “Judges ordinarily must observe certain rules of decorum in their social behaviour. A little isolation and aloofness are the price which one has to pay for being a judge, because a judge can never know which case will come before him and who may be concerned in it. No hard and fast rule can be laid down, in this matter, but some discretion must be exercised.”[25]

Case Brief of B Sunitha v. State of Telangana[26]

Brief History

• In July, 1998, B. Sunitha’s (hereinafter referred to as the ‘Appellant’) husband died in a motor accident. A claim before the Motor Accident Claims Tribunal (hereinafter referred to as the ‘MACT’) was filed wherein one of the Respondents in the present case was the advocate for the Appellant. Compensation was also given in the said case.
• The Respondent charged a fee of INR 10 Lakhs (USD 15590 approx.). Later on, the Appellant was forced to sign another cheque worth INR 3 Lakhs (USD 4677 approx.) on October 25, 2014, despite her informing that she has no funds in the account.
• On November 2, 2014, the Appellant received an e-mail from the Respondent wherein it was claimed that the fees of the Respondent was 16% of the amount received by the Appellant.
• On December 11, 2014, a complaint was filed before the Hyderabad High Court under Section 138 of the Negotiable Instruments Act, 1881, stating inter alia that the cheque which was issued in discharge of liability having been returned unpaid for want of funds, the appellant committed the offence for which she was liable to be punished.
• The High Court summoned the Appellant to which she stated that there was no legally enforceable debt and the fee was an unreasonable amount and against the law. It was contended that the claim violated the Advocates Fee Rules and Ethics as fee could not be demanded on percentage of amount awarded as compensation to the Appellant.
• The Respondent opposed this contention by stating that the professional fee was agreed upon by the Appellant and now having availed his professional services, she could not contest the claim for fee. It was further contended that Senior Advocates were engaged in the case by the Respondent and paid huge amount for their services.
• It was further argued by the Appellant that the fee claimed was against Andhra Pradesh Advocates’ Fee Rules, 2010 of Subordinate Courts, ethics and public policy and hit by Section 23 of the Contract Act.
• The High Court dismissed the quashing petition. It was stated by the High Court that Advocates’ Fee Rules are only for guidance and there was no bar to fee being claimed beyond what is fixed under the Rules.

Issue Raised

1. Whether fee can be determined with reference to percentage of the decretal amount?
2. Whether the determination of fee can be unilateral and if the client disputes the quantum of fee whether the burden to prove the contract of fee will be on the advocate or the client?
3. Whether the professional ethics require regulation of exploitation in the matter of fee?

Appellant’s Arguments

• It was contended that the charging percentage of decretal amount by an advocate is hit by Section 23 of the Contract Act, being against professional ethics and public policy. Thus, the cheque issued by the Appellant could not be treated as being in discharge of any liability by the Appellant.
• It was also contended that it is a settled law that any fees claim made by the advocate based on the percentage of the amount received as a result of litigation is illegal.
• The Appellant claimed that the signing of the cheque was an exploitation of the fiduciary relationship of the Advocate and the client.
• Judgements such as In the matter of Mr. G., a Senior Advocate of the Supreme Court ((1955) 1 SCR 490 at 494), R.D. Saxena versus Balram Prasad Sharma ((2000) 7 SCC 264), V.C. Rangadurai versus D. Gopalan ((1979) 1 SCC 308) were produced to support the claim.

Respondent’s Argument

• The Respondent No. 2 supported the order of the High Court of Judicature at Hyderabad. .
• It was contended that there was no legal bar to claim professional fee by the Respondent. Further, it was stated that since the cheque was dishonored, the statutory presumption was in the favor of Respondent.
• It was claimed that the Appellant made out no ground for quashing the petition.

Court’s Findings

• While discussing about Professional Misconduct and whether the fees could be charged as a part of the decretal amount, the Court took into consideration certain judgements –
  • Re: KL Gauba, wherein it was held that the fees conditional on the success of a case and which gives the lawyer an interest in the subject matter tends to undermine the status of the profession. The same has always been condemned as unworthy of the legal profession. If an advocate has interest in the success of the litigation, he may tend to depart from ethics.
  • In the matter of Mr. G.: A Senior Advocate of the Supreme Court, it was held that the claim of an advocate based on a share in the subject matter is a professional misconduct.
  • In VC Rangadurai versus D. Gopalan, it was observed that relation between a lawyer and his client is highly fiduciary in nature. The advocate is in the position of trust.
  • Thus, the Court was of the view that the application of the Respondent deserves to be quashed as it was against the public policy and a grave professional misconduct.

• Further, it was stated by the Court that Respondent no. 2 prayed to withdraw the complaint to which it was replied that ‘Having committed a serious professional misconduct, the Respondent No.2 could not be allowed to avoid the adverse consequences which he may suffer for his professional misconduct’.
• Talking about the importance of the legal profession the Court stated that ‘Undoubtedly, the legal profession is the major component of the justice delivery system and has a significant role to play in upholding the rule of law. Significance of the profession is on account of its role in providing access to justice and assisting the citizens in securing their fundamental and other rights.’  The Court was of the view that it is the fundamental right of the poor to get justice and the exorbitant amount charged as fees by the Advocates is serious violation of this right.
• Further, the observations made in the 131st Report of the Law Commission, 1988, were brought to light. These were:
  • Role of the legal profession in strengthening the administration of justice must be in consonance with the mandate of Article 39A to ensure equal opportunity for access to justice.
  • It was observed that like public hospitals for medical services, the public sector should have a role in providing legal services for those who cannot afford fee.
  • Referring to the lawyers’ fee as barrier to access to justice, it was observed that it was the duty of the Parliament to prescribe fee for services rendered by members of the legal profession. First step should be taken to prescribe floor and ceiling in fees.

• Also, it was highlighted that ‘Mandate for the Bench and the Bar is to provide speedy and inexpensive justice to the victim of justice and to protect their rights. The legal system must continue to serve the victims of injustice.’
• Focusing on the sleeping nature of the system, the Court pointed out that though the 131st Law Commission Report was submitted in the year 1988, still no step is taken in the last 29 years.

The fiduciary relationship between Lawyer and Client

On a general note, a fiduciary relationship is that of trust and confidence. Any client expects their lawyer to maintain a high degree of fidelity and good faith as their confidential information rests with the lawyer as they need to know the details of the case in order to find out the best way to pull their clients out of the legal trouble or query. In the case of V.C. Rangadurai v.  D. Gopalan (1979), the Court observed that the relation between the advocate and his client involves the highest personal trust and confidence. Thus, their relationship cannot be completely treated as purely professional owing to the confidential nature of the information that the client gives to his lawyer. Thus, the lawyer-client relationship is purely fiduciary in nature.

Nature of Professional Legal Ethics

Every profession has its own code of ethics. The legal profession in India is highly competitive and dynamic. As it has been thoroughly discussed above that the standard of ethics of the legal profession is codified under Indian law. 

The nature of professional ethics is such that it is the essence of the legal profession. It encourages a Lawyer to act in a dignified manner that is befitting of such a noble profession. Thus, in order to maintain its dignity and integrity, professional ethics were codified. It brings upon accountability upon the legal professionals for dishonest, irresponsible and unprofessional behaviour. Furthermore, advocates can lose their license (to practice at court/firm) if they resort to unethical practices that endanger and tarnish the dignity of the legal profession.

Even in general not only the legal profession but also various other professions like the medical profession in India have codified standards of ethics. The Advocates Act, 1961 and Bar Councils Act, 1926 lay down the professional ethics that need to be followed by lawyers. On the other hand the Indian Medical Councils Act, 1956 and the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 governs the standard of professional ethics that needs to be followed by medical professionals. 

The main intent behind these legislations is to prevent the exploitation of clients and patients or anyone at the receiving end of their services and of course to maintain the integrity of the profession. Just like every other provision and statute these rules and codes are not absolute in nature and can be amended or repealed as and when need be felt. 

Need for Professional ethics in Indian Courts

The need for codified legal ethics was well explained by the American Bar Association Committee. Law is a keystone to the arch of Government. Thus, a proper code is needed in order to prevent control of the judicial system by craft, greed or unworthy motives. Ethics is a way by which an advocate owes a duty to the Bar, a judge to the Bench of justice. It shall be noted that litigants or clients whom advocates represent don’t exactly owe the same standard of ethics as an advocate or a judge in a Court. The duty to prevent the client from resorting to unfair practices is also shouldered by the Bar and the Bench. 

The committee also observed that a high standard of legal ethics must be codified in order to further the administration of justice in a pure and unsullied manner. Every lawyer must follow the prescribed legal ethics in order to retain membership in a professional organisation.

Professional Conduct & Professional ethics

There lies a necessary distinction between professional ethics and professional conduct. The primary difference is between the obligation to be followed by a member of the profession. In professional conduct, refers to acts or steps taken under some statutory obligation or contractual powers. Such an obligation could be a legal obligation. On the other hand, in professional ethics, one is expected to follow a moral obligation. 

Bridging the Gap between Legal Ethics and the Legal Profession in Indian Courts

The traditional approach to legal education is that of the application of established legal rules and principles to a certain set of facts in a case. However, with the commencement of law over time it was realised that the mere existence of laws cannot bring justice due to a number of reasons. Firstly, legal services are not as affordable as it should be for the whole economic spectrum of citizens to be able to avail them. Especially in a poverty-stricken country like India, the rights of the poor take a backseat due to lack of affordability. Secondly, legal aid services are also limited. Thirdly, laws are not completely comprehensive and coherent and judges are not consistent with their reasoning. Lastly, one of the biggest concerns is the lack of ethics portrayed not only by the police but also the lawyers.

Thus, to bridge the gap between ethics and the legal profession, the codification of the standard of ethics was a way to prevent the above-stated concern. However, the question raised is how far is it successful in protecting the dignity of the profession? 

It shall be noted that the institutions providing legal education often neglect the concept of ethical lawyering. Therefore, it is argued that in order to produce good ethical lawyers who would serve the interest of the country, it can only be possible if institutions providing legal education educate the young lawyers to be ethical.  The legal curriculum must give importance to socio-legal issues and contemporary problems of society that can be solved through an ethical and realistic perspective of everything. Law schools are somehow uncharacteristically silent on the subject of duties to court and client and general responsibilities towards justice. 

On the other hand, it is also argued that ethics cannot be taught and it is up to every. Lawyer’s personal experience that will help them develop such ethics. The problem with this statement is that it ignores the fact that before one enters a profession, one can be misguided. Later on, the  Bar is accused of lowering standards of professional ethics and discipline for failing to provide moral and legal leadership when an advocate or a judge misbehaves or uses unfair means to get by their respective cases. 

The traditional way of teaching professional ethics in Indian law schools is not doing enough. Young lawyers need more insight into the fact as to why legal ethics is more important than subject knowledge. Legal knowledge can be gained (much more than the knowledge gained in law schools) through practice and experience. However, a sense of ethics should be developed earlier than that so that an intellectual legitimacy is created.

Traditional legal education must take up a humanistic approach and shall try to impart values into young budding lawyers as their contribution to the future is going to become of great consequence. There must exist a more holistic and humanising outlook towards the teaching and studying of law. Even after legal ethics are codified in India, lawyers still practice unfair means to seek favourable outcomes for their cases. The Code cannot bring about a sense of ethics unless it is imparted to the law students at the very earliest. There are a few positive examples, where some progressive law teachers have recognised the need for law students to gain a deeper understanding of ethics and its needs in the legal forefront. 

The present stance is that with changing times the existing methods used to impart legal knowledge need to change. As stated above there is a gap between legal ethics and the legal profession. Thus, the ‘vectors’ need to converge. The law schools need to understand that along with the different disciplines in law, such as collaborative law, preventive law, problem-solving, holistic justice, restorative justice etc. are all meaningless if the knowledge is not implemented with morals, values, and ethics. 

A sea change in the traditional methods of legal education can bring about an integration of personal and professional values along with the assimilation of analytical thinking/application of legal principles and emotional intelligence. A mere codification of legal ethics will not make the young lawyers realise the nobility of the legal profession or the dignity of the Bar.

Advantages of Having Codified Professional Ethics

There are 4 important advantages of having a code for professional ethics to be followed in Indian Courts: 

Firstly, a Code of Professional ethics provides a sense of social control. Every now and then each profession and industry (here the legal profession) a newcomer enters it. Thus, codified professional ethics makes the newcomer aware of the standards that need to be met with, in the profession. A Codified form of ethics also keeps the old members of a professional fraternity in line according to the standard of social requirement and expectations.

Secondly, without a code of professional ethics the government or by society may try to control the standards through its agencies. Thus to prevent such control and interference, a code is required. Therefore, it is believed and practised that in order to standardise a certain set of rules, protocols and ethics, it should be done by the profession itself so that governmental interference is kept away.

Thirdly, higher standards of conduct can only be developed by codifying it. The codes bring about a sense of permanence and crystallize the standard of best ethics about the profession. 

Fourthly, the existence of code will have great educative, corrective and appreciable value for both the lawyers and the laymen.

Conclusion

From the foregoing discussion, it can be gleaned that court ethics entails the ethical participatory acts of both the courts and advocates who represent their clients. The fundamental aim of legal ethics is to uphold the honour and dignity of the legal sphere, ensuring the spirit of friendly cooperation, mutual and fair dealing of counsel with clients, and to secure lawyers’ responsibilities to society. There are some fundamental principles that constitute the essence of legal ethics. These include diligence and dedication, professionalism, uprightness and integrity, personal development, and the impact of technology on professional ethics and the general practice of law.

It is abundantly clear that legal ethics and the legal profession are closely related. It is evident from the existence of codified professional ethics for the legal profession that ethics holds an important position in the legal profession. The Bar Council ensures that advocates conform to the rules laid down with regard to legal ethics and dress code (professional attire of lawyers).

The nature of the legal ethics reveals that it is an absolute mandate however the language of the Code (under Advocate Act, 1961) makes it evident that advocates owe a duty towards the Bar, bench, their clients along with opposing counsels at the court. The whole point of having codified legal ethics is to mandate advocates to maintain the dignity of the court. Also, it prevents the exploitation of clients. The need for legal ethics was also briefly explained along with rules that need to be followed by advocates. The basic difference between professional ethics and professional conduct is that the former is a moral obligation while the latter is a legal or statutory obligation.

Another important aspect captured was whether codified professional ethics is making any difference or not? The implications of the code were explained and why it still remains relatively ineffective due to the lack of understanding of ethics before one starts practicing in the profession. Mere codification of professional ethics will not fulfill the legislative intent behind the Advocates Act, 1961 and the Bar Council Rules until the traditional method of legal education is slightly changed. The Code cannot bring about a sense of ethics unless it is imparted to the law students at the very earliest.

In the changing world of legal practice, a high standard of ethics and professional conduct is the only tool that can ensure a stimulant justice system and it would also restore the faith of clients on it. Considering the lawyer-client relationship is a fiduciary one, a breach of confidentiality can be punished. Professional ethics of lawyers can be stated as the duty of then towards their profession. There are moral duties and the very basic courtesy which every person in this field should know. A lawyer who does not work with sincerity or efficiency and also does not follow the rules of the conduct is said to have violated the code of ethics of the very profession. The fundamental purpose of legal ethics is to maintain honor and dignity of the legal profession to ensure the spirit of friendly co – operation, honourable and fair dealing of the counsel with his clients as well as to secure the responsibilities and duties of the lawyers towards its profession as well as towards its society at large.

---

[1]  Henry Wynans Jessup, The Professional Ideas of Lawyer, 4 (1986).

[2] Ibid

[3] Henry Campbell (ed.), Black`s Law Dictionary, 894 (1990).

[4] Stephen Parker and Charles Sampford, (eds.), Legal Ethics and Legal Practice – Contemporary Issues, 11 (1995).

[5] Christine Parker (ed.), Just Lawyers, 87 (1997).

[6] (https://www.indiacode.nic.in/handle/123456789/1631?view_type=browse&sam_handle=123456789/1362 )

[7] Available at (http://www.barcouncilofindia.org/about/professional-standards/rules-on-professional-standards/ )

[8] 1995 SCC (5) 716

[9] 1953 SCR 581

[10] 1955 SCR (1) 757

[11] 1984 SCC  (1) 722

[12] CIVIL APPEAL NO(s).2015 OF 2011

[13] Jeffrey W. Stempel, “Rehnquist, Recusal, and Reform”, 53 Brook L. Rev. 589 at 621-627 (1987).

[14] Black’s Law Dictionary, 1303 (8th edn., 2004).

[15] Grant Hammond, Judicial Recusal: Principles, Process and Problems, Bloomsbury Professional.

[16] (2005) 2 LW (JS) 25
Canons of Judicial Ethics

[17] S.P. Gupta v. Union of India, 1981 Supp SCC 87, para 27.

[18] S.C. Advocates-on-Record Association v. Union of India (1993) 4 SCC 441, para 273, per Ahmadi, J.

[19] C. Ravichandran Iyer v. Justice A.M. Bhattacharjee (1995) 5 SCC 457, para 41, per K. Ramaswamy, J

[20] Anonymous

[21] University of New Brunswick Law Journal, Vol. 45, 1999, p. 81

[22] C. Ravichandran Iyer v. Justice A.M. Bhattacharjee (1995) 5 SCC 457, para 41, per K. Ramaswamy, J.

[23] Union of India v. S.H. Sheth (1977) 4 SCC 193, quoted in K. Veeraswami v. Union of India (1991) 3 SCC 655, para 3!

[24] K. Veeraswami v. Union of India (1991) 3 SCC 655. para 79. 80, per Sharma, J.

[25] P.B. Gajendragadkar, To The Best of My Memory, p. 138

[26] (2018) 1 SCC 638.