Professional Ethics in Legal Sphere
CONTEMPT OF COURT AND THE ROLE OF BAR COUNCIL OFINDIA
Introduction – The Need for professional ethics
Ethics are those principles and values, which regulates the conduct of a profession, such as the legal profession. Ethics in legal sphere become essential to ensure right and proper conduct in the daily practice of a lawyer.
Certain ethics which are essential to the legal profession include-
• Independence, honesty and integrity- It becomes problematic for lawyers to protect the interests of their client if they are subject to interference and scrutiny from others. Independence, honesty and integrity is important as it’s the key to provide unbiased advice to a client. Lawyers need to maintain the highest standard of honesty, integrity and fairness towards the public, their clients, the court, and other lawyers.
• Lawyers need to maintain their relationship with the client with full honesty. Lawyers need to have the required Legal knowledge, thoroughness and preparation that is essential to represent a client.
• Capability which holds the required academic qualifications and training, and also meeting other practising requirements such as holding a valid practising certificate or licence. Eg. In India, in order to practice in courts, license of the Bar Council of India is necessary.
• Maintaining Client Confidentiality and Avoiding Conflict Of Interest- Communications which take place between a lawyer and his/her client are subject to legal professional privilege so that the client can seek advice without the fear of things being revealed, which may work against his favour. Lawyers thus have a duty to keep the affairs of their client confidential and private. Also, if interest of one client is in conflict with other, lawyers have a duty to inform the client about the same. In most cases, it is better for lawyers to refuse to act for another client where a conflict of interest arises with an existing client.
• Protecting and upholding fundamental rights and human rights- legal professions, in cases of violation need to ensure that that people who have suffered the same, are provided with an adequate remedy or compensation. The principles of fairness and equality form part of ethical standards which lawyers must seek to enforce or restore. Also its important that legal aid be provided to the poor and depressed classes, who do not have adequate resources and money to approach the court even after their rights have been violated.
• Respect for the profession and the bar- Being a Lawyer, is considered as a very noble profession and thus these legal professionals need to carry out their practice with utmost sincerity and discipline. They also need to honour the regulations set forward by the bar and need to have utmost respect for it. It is also essential that practicing advocates in the courts do not mislead the court.
The legal profession, all over the world is one of the most sought after professions. However, the same comes with its own set of responsibilities. Lawyer, judges, other legal professionals have to follow certain duties which they are morally as well as legally bound to follow. Failure of following the same, not only invites criticism of one’s legal career but can also include strict actions like suspending lawyers or preventing them from further practice.
The legal system as a whole, in India, and many other countries is founded on principles of fairness, justice, and equity. If lawyers themselves do not adhere and promote these ethical principles then the law will fall into disrepute and people will resort to alternative means of resolving conflict. The Rule of Law will fail by creating several doubts in the minds of people, who will look down upon the profession as biased or immoral, rather than a profession people resort to, to provide justice to them.
Ethical responsibilities and duties arising out of the same is seen as an inherent part of the legal profession. It is often believed that a profession’s most valuable asset is its collective reputation, which inspires confidence from people in general who look up to the same. In order to have support and confidence of clients, it’s crucial that confidence of the public at large is also maintained. Lawyers, as legal professions, have the utmost duty to serve the court and their clients, thereby administering effective justice. The Legal profession as a whole has a huge responsibility within society as the profession upholds the rule of law and protects of individual rights against abuse of power or violation of rights.
Contempt of Court, Other Misconducts And Role Of the Bar Council
1.1 Contempt of Court is any conduct by legal professionals like lawyers, judges, advocates, etc. which brings the authority and administration of Law into disrespect and disregard. Also, ordinary citizens can also be liable for contempt of court, when they disregard and disobey the decisions of courts in India.
An unfair and dishonest attitude and intention of advocates in the court affects administration of justice negatively. Misconduct in courts is viewed very seriously and contempt of court jurisdiction is invoked in such situations. In India, the law relating to contempt of court is comes under the ambit of the Contempt of Court Act, 1971 which defines the powers of courts in punishing acts in regard to contempt of courts which maybe civil or criminal in nature and also regulates the procedure with regard to the same.
If a judge, is disrespected and without any fraction of truth, is called as resorting to favouritism and openly called prejudiced by lawyers, then such an act also amounts to professional misconduct by the lawyers. In the case of Registrar, High Court, Bombay v. S.K. Irani it was held that scandalising a court by sending a letter by an advocate even on the instruction of the client is professional misconduct and he can be prosecuted for contempt of court.
Since Bar Council of India is the main statutory body regulating legal profession in India, it’s important that it prevents decline of ethical value and principals associated with law at the earliest. Strong disciplinary action needs to be taken against legal professions if found involved in contempt of court because unlike other citizens, they are looked up to as officers of the court and thus have utmost responsibility to uphold dignity of their profession and that of the courts in India. Many High Courts in India also prohibit an advocate from practicing if they are found guilty of contempt of court.
Under Art. 129 of the Constitution of India, the Supreme Court is deemed to be a court of record and has powers to punish for contempt of itself. Also, under Art.215 of the Indian Constitution even High Courts shall be courts of record and shall also have all the powers to punish for contempt of itself.
In P.N. Dube v. P.Shiv Shankar it was held that any criticism against a judge brings the administration of justice to deep disrepute as it will impair and hamper the administration of justice and thus must be prevented. In Mohd. Aslam Obhure V Union of India and State of Uttar Pradesh , the Chief Minister of Uttar Pradesh at that time, Kalyan Singh, who also resigned from the post soon was convicted of Contempt of Courts and sentenced to imprisonment of one day along with a fine of Rs. 2,000. He had earlier filed an affidavit in the Supreme Court that as the chief minister of Uttar Pradesh, he will not allow any damage to the much controversial Babri Masjid, however, being the Chief Minister, he couldn’t ensure the same, resulting in demolition of the Masjid and was thus liable for disobeying the court’s orders and subsequently for contempt of court.
In a democracy, protests and strikes are frequent, so that those in power recognize public dissent and take adequate steps to resolve the same. However, lawyers in India are strictly discouraged from going on strikes as eventually it’s the litigating party which suffers due to such actions.
In Lt. Col. S.J. Chaudhary v. Delhi Administration the court held that absenting from courts as part of a movement of lawyers to boycott a court amounts to professional misconduct as it’s an absolute breach of his/her professional duty. In Ex-Captain Harish Uppal v. Union of India , the Supreme Court held that the lawyers have no right to go on strike or give a call for boycott. If, a protest is required then that can be only be by giving press statements, T.V. interviews, carrying out on court premises banners and or placards, wearing black or white or any colour arm bands, peaceful protest marches outside and away from court premise, dharnas, etc. Also, strikes by lawyers are prohibited under the Advocates Act, 1961. The duties to the court and duties to the clients prescribed by the Bar Council Rules also disapprove of strikes and boycotting of courts goes against the practice of courts, and is considered as a professional misconduct in order to protect the rights of the litigants. So, it can be said that courts have recognised ‘the right to protest’ of lawyers but at the same doesn’t include the right to strike and boycott.
1.1.1 The Bar Council Of India, further places restrictions on some other employment of lawyers as its believed that the profession of being a legal professional requires full time attention so that they can bring out the best and fulfil their role as an officer of court and give their best in administration of justice. An Advocate has a duty to stick on to the profession and elevate it. He is not expected to engage in other trade or profession or employment, in order to bring down his profession of that of an advocate. In order to do the best he/she can in the legal sphere, it’s important to give one’s whole-heart and full-time attention. Any major profession other than the same can actually have an impact one’s professional ability and expertise. This is the main reason why any other employment by lawyers is strictly prohibited.
1.1.2. Also, lawyers are prohibited from soliciting, advertising and touting in India. Courts have several times laid touting or appointing touts clearly go against rules and regulations under the Advocates Act and such a practice is strictly considered as professional misconduct. The reason, why the same is done is because profession of being a lawyer is considered as a noble one and is considered entirely different from trade or business. It is the well-recognized rule of conduct in the legal profession that that no attempt should be made to advertise. However, in reality there is indirect advertising, like through media or websites created by lawyers or engaging in legal aid programmes. The situation in India therefore demands regulation on the same but it may not always be that strict. One reason for this is because the touts can play a very important in assisting people to seek legal aid especially when people are unaware of their legal rights, remedies and where to seek help from.
1.2 Ethics through Disciplinary Procedures- The role of the Bar council of India
The Bar Council of India plays a very integral part to regulate the conduct of legal professionals in India. The Bar Council of India lays down rules, regulations which lawyers in their practice, are bound to follow. In order for ethical standards or a code of conduct to be effective, they must be enforceable and it’s the Bar which ensures, and takes responsibility of the same.
Section 35 of the Advocates Act, 1961 deal with professional misconduct of lawyers in India, and if a situation arises where a person is found guilty of the same, then the same has to appear before the disciplinary committee of the State Bar Council which fixes a date of hearing and also issues a show cause notice.
Section 49 (1)(c) of the Advocate Act ,1961, empowers the Bar Council of India to prescribe the standards of professional conduct and etiquette to be observed by an Advocate and several rules for standards of professional conduct and etiquette have been made by the council.
Under Bar Council of India’s, Rule 3, 1961, advocates are prohibited from influencing the decision of courts illegally or improperly. This includes bribery and forceful activities, like coercion and threats. Further, it prohibits advocates from communicating directly with judges in connection with cases which are already pending before the court of law. Under Rule 4, advocates have to also prevent their clients from resorting to unjust and unfair practices or anything in relation to the court and the opposing party. Under Rule 46, they also need to acknowledge problems of people and provide legal assistance for the same if that particular person cannot pay for the legal services.
Advocates need to be aware of their social obligation in order to ensure that the oppressed and needy are entitled to get free legal assistance. However, advocates are also completely allowed to turn down requests to represent clients who want to resort to unfair methods in order to get their way. In courts, advocates need to use ethical and dignified and should take utmost care to avoid damaging the reputation of other parties or making false claims against them. Also, according to the Council, advocates need to be presentable at all time during practice.
Lastly, advocates, who are found guilty of contempt of court or even professional misconduct, can be debarred from practicing by the Bar Council Of India. The council also has full authority to suspend such an advocate’s license. There have been several situations where the Bar Council of India have personally taken note of misconduct of an advocate, has initiated disciplinary proceedings and punished him/her for the same.
The Bar Council performs a public duty and has the responsibility to protect the dignity of the profession and maintain professional standards and etiquette which legal professionals are bound to follow. Thus even High Courts can also call upon the Bar Council of the State to bring to its notice, any case of professional misconduct and contempt in proceedings before it by any persons.
It therefore becomes clear, what all values and ethics are essential for a lawyer’s conduct. An advocate, who does not adhere to the same, can face serious repercussions. One fundamental aim of the Bar Council of India is to maintain the dignity of the legal profession, the Bar and the bench, in order to ensure the spirit and trust of people in the legal profession is maintained. A lawyer needs to have a clear understanding of his/her duties and the role he/she plays in society. Legal career is undoubtedly filled with difficult situations many a times, such situations demand legal professionals to make difficult decisions, they also might face conflict in their beliefs and ethical ideas when faced with a challenging situation. Thus legal conduct becomes important for them to follow so that they also fear the strict regulations and follow disciplined, sincere and honest practice. If people lose confidence in the profession on account of the deviant ways of some of its members, it is not only the profession which will suffer but also the administration of justice.
In recent years, public perception of the legal profession in India has become somewhat negative. Lawyers are sometimes being called out for being corrupt and dishonest. Therefore it becomes very important that lawyers continue to uphold the nobleness and sincerity attached with their reputation. It is only through adherence of professional ethics that the stature of the Bar can be enhanced. Lawyers in India and as a matter of fact, all over the world, need to realise and follow the highest standards of professional ethics so that respect of the community is earned. Also, the Bar Council, in general should also aim towards stricter implementation of its code of conduct for the advocates along with internal arrangements involving inquiries, regulatory penalties etc. thereby also ensuring strict disciplinary actions against those who disrespect the bar, the courts, the profession and resort to wrongful means and conduct.