Advocate’s profession is service oriented, not trade or commerce or industry and is noble. Maintaining dignity and decorum is essentially based on mutual respect in between members of the Bar and Bench. Dignity, decorum and self-respect of the bar should be maintained as they are counterparts of the Administration of Justice, a divine act. Dispensation of justice is not an individual act of judiciary, but a joint act of the Bar and Bench. The central function of the legal profession is to help promotion of administration of justice. Any misdemeanour or misdeed or misbehaviour can become an act of delinquency. It is desirable to observe written and oral conventions built over long years and followed since time immemorial.
The Indian legal system is the product of the history. It is rooted in our soil; nurtured and nourished by our culture; languages and traditions; fostered and sharpened by our genius and quest for social justice; reinforced by history and heritage; it is not a mere copy of the English common law, though inspired and strengthened, guided and enriched by concepts and precepts of justice, equity and good conscience, which are indeed the hallmark of the common law. Elaborate rules framed by the Bar Council of India provide for the duty of an advocate to the Court, to the client; to the opponent counsel and to his colleagues; to maintain towards the Court a respectful attitude bearing in mind that the dignity of the judicial office is essential for the survival of a free community, that he shall use his best effort to restrain and prevent his client from resorting to sharp or unfair practices or from doing anything in relation to the Court, opposing counsel or parties which the advocate himself ought not to do; to uphold the interests of his client by all fair and honourable means without regard to any unpleasant consequences to himself or to any other; etc.
An advocate is an officer and a Senior advocate is a senior officer of the Court and with that privilege responsibility must follow in its wake. His primary allegiance is to the Court and it is no part of the professional duties of an Advocate to act merely as a mouthpiece of his client. A member of the bar should use best efforts to restrain and prevent his client from resorting to any unfair or sharp practice. He should ‘settle’ i.e. put pleadings in proper form and not ‘cut and paste’ from other cases. Pleadings should be tailored made not stereo-typed. He is expected to argue the case with sense of detachment and non-identification with the cause espoused as he is expected to argue in order to make law and considering the binding precedents and taking care of dissenting judgments.
He is expected to place facts fully, completely and correctly, as available on records. No material fact be concealed. He should raise arguments based on law and support by law laid down by the Hon’ble Supreme Court, the jurisdictional High Court and other High Courts. Only relevant judgments matching to the facts of the case need be cited. On the same proposition large number of judicial precedents need not be placed to burden the Hon’ble Court and to waste precious time of all concerned. Citing judgment of a Court which has been overruled by a larger Bench of the same High Court or Supreme Court without disclosing the fact that it has been overruled is bad and a matter of serious concern. Object is to ensure smooth functioning of the Court. We are architects of society by serving as social engineers. The indispensable role played by us in the dispensation of justice is commendable. When an advocate or a party appearing before the Court requires to conduct himself in a manner befitting to the dignity and decorum of the Court, he cannot have a free licence to indulge in writing in the pleadings the scurrilous accusations or scandalisation.
An advocate should be peaceful and keep atmosphere calm and quiet. Voice need not be too loud, aggressive or agitative. One should argue without any bias, pre-notions and attachment. Advocates are not astrologers or fore-tellers and should not forecast or guarantee. Guarantee briefs should be eschewed. Dignity and honour should not only be maintained but enhanced. We have a bounden duty to assist the Court and not to mislead it. We stand in a loco parentis towards the litigants and it, therefore, follows that the client is entitled to receive disinterested, sincere and honest treatment especially where the client approaches the advocate for succour in times of need.
An advocate shall, at all times, comport 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 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. The preamble depicts as to conduct of an advocate and need be read with care and caution. It is the soul and heart of the noble profession of law.
An advocate should not accept brief, file Vakalatnama and put appearance before his father or other close blood relation or friend or an associate and should not accept brief in such case where any other advocate has filed Vakalatnama, without seeking no objection from the existing advocate. Tendency to retain the records and not to return need to be eschewed. No right vests to retain the records even if fees remains as outstanding. Any communication between the client and the counsel is secret and it is the duty of the counsel not to divulge or disclose or discuss without permission of the client. Loose talks deserve to be avoided. Gossips impermissible. Utmost care and caution is essential in proper discharge of duty and trust.
He should at all times pay differential respect to the judge and unscrupulously observe the decorum of the Court room and maintain strict fiduciary relations with the clients under all circumstances. We must act as a ‘model to the juniors’ of the profession. He should know that his first duty is to the Court, he has nothing to fear. “Fear None, Except one, who is above all of us”. He must disregard specific instruction of his client, if they conflict with his duty to the Court. If he breaks it, he is offending against the rules of profession and is subject to its discipline.
An advocate should not hesitate to condemn tyranny or injustice. An advocate stands for justice more than a Judge and he pleads for it. An advocate should continue to enjoy the confidence not only of his client but also of the Court and the Bar by his moral excellence. It is not the duty to follow every instruction of the client friendly / mechanically. That is an entire misapprehension of the duty of a legal practitioner. He must not trick or deceive the Court or attempt to gain for his client an advantage by dishonest means.
Lawyers have no right to go on strike or give a call for boycott, not even on a token strike. The protest, if any is required, can only be by giving press statements, TV interviews, carrying out of Court premises banners and/or placards, wearing black or white or any colour arm bands, peaceful protest marches outside and away from Court premises, going on dharnas or relay fasts etc. It was held that only in the rarest of rare cases where the dignity, integrity and independence of the Bar and/or the Bench are at stake, Courts may ignore (turn a blind eye) to a protest abstention from work for not more than one day. It has been admitted that judiciary is over-burdened with pending litigation. If strikes are resorted to on one or the other ground, litigants would suffer as cases would not be decided for years to come. Therefore, some concrete joint action is required to be taken by the Bench and the Bar to see that there are no strikes any more. Strike by lawyers is illegal and unethical. It infringes fundamental right of litigants for speedy trial. Lawyers abstaining from appearing in Court are also guilty of professional misconduct.
Relationship between an advocate and his client is of trust and therefore sacred. Acts of professional misconduct and the frequency with which such acts are coming to light distressed the Court. Preservation of the mutual trust between the advocate and the client is a must otherwise the prevalent judicial system in the country would collapse and fail. Such acts do not only affect the lawyers found guilty of such acts but erode the confidence of the general public in the prevalent judicial system. It is more so, because today hundred per cent recruitment to the Bench is from the Bar starting from the subordinate judiciary to the higher judiciary. You cannot find honest and hard working Judges unless you find honest and hard working lawyers in their chambers. Time has come when the Society in general, respective Bar Council of the States and the Judges should take note of the warning bells and take remedial steps and nip the evil or the curse, in the bud.
Ordinarily a lawyer should fix his fees at the time when he is engaged by his client. It is improper for a lawyer to leave the determination of the fees till the conclusion of the litigation or dependent upon how the litigation fares. An agreement between an advocate or a lawyer and his client that he will accept as his fees a specified share in the subject-matter of the litigation or claim upon the successful issue of such litigation is void as being opposed to public policy and the conduct of such advocate or lawyer amounts to gross professional misconduct. The fees should commensurate to the labour involved and his standing but it should be just, fair, reasonable and such where an ordinary litigant can also seek the help. It should be as per “need” – not “greed”. As far as possible professional bills be issued, payment be received by cheque, receipt be issued and proper taxes paid.
The high standards of the profession demand that when the moneys of the client come into the possession of an advocate, otherwise than as earmarked fees, he has to treat himself as in the position of a trustee for the client in respect of the said moneys. Even if he has a lien on such moneys, it would be improper for him to retain, i.e., to appropriate the same towards his fees without the consent, express or implied of his client or without any order of the Court.
It is not in accordance with professional etiquette for an advocate while retained by one party to accept the brief of the other. It is unprofessional to represent conflicting interests except by express consent given by all concerned after a full disclosures of the facts. Acceptance of brief for accused after having appeared for complainant amounts to professional misconduct. Giving of improper legal advice may amount to professional misconduct but not wrong legal advice. Mere negligence unaccompanied by any moral delinquency on the part of a legal practitioner in the exercise of his profession does not amount to professional misconduct. However, proper care need be taken while giving an opinion. Cases for and against need be examined and intimated. It is a sacred act – may make or mar your client – reposing utter confidence in you.
Snatching briefs by standing at the door of the Court house and in-fighting for this purpose is too dishonourable, disgraceful and unbecoming to be approved. The canons of ethics and propriety for the legal profession totally taboo conduct by way of soliciting, advertising, scrambling and other obnoxious practices, subtle or clumsy, for betterment of legal business. Law is no trade, briefs no merchandise and so the heaven of commercial competition or procurement should not vulgarise the legal profession.
An advocate stands in a loco parentis towards the litigants. Therefore, he is expected to follow norms of professional ethics and try to protect the interests of his client in relation to whom he occupies a position of trust. Counsel’s paramount duty is to the client. The client is entitled to receive disinterested, sincere and honest treatment. It was further observed that no advocate can take it for granted that he will appear in the Court according to his whim or convenience. It would be against professional ethics for a lawyer to abstain from the Court when the cause of his client is called for hearing or further proceedings.
Some members of the profession have been adopting perceptibly casual approach to the practice of the profession as is evident from their absence when the matters are called out, the filing of incomplete and inaccurate pleadings – many time even illegible and without personal check and verification, the non-payment of Court fees and process fees, the failure to remove office objections, the failure to take steps to serve the parties, et al. They do not realise the seriousness of these acts and omissions. They not only amount to the contempt of the Court but do positive disservice to the litigants and create embarrassing situation in the Court leading to avoidable unpleasantness and delay in the disposal of matters. This augurs ill for the health of our judicial system.
Judicial function cannot and should not be permitted to be stonewalled by browbeating or bullying methodology, whether it is by litigants or by counsel. Judicial process must run its even course unbridled by any boycott call of the Bar or tactics of filibuster adopted by any member thereof. It concluded : “Some Courts might have conducted the cases even during the strike or boycott periods or adjourned due to helplessness for not being in a position to decide the lis in the absence of the counsel but majority of the Courts in the country have been impliedly sympathisers by not rising to the occasion by taking positive stand for the preservation of the high traditions of law and for continued “restoration of the confidence of the common man in the institution of judiciary. It is not too late even now for the Courts in the country to rise from the slumber and perform their duties without fear or favour particularly after the judgment of this Court in Mahabir Singh’s case (supra). Inaction will surely contribute to the erosion of ethics and values in the legal profession. The defaulting Courts may also be contributory to the contempt of this Court.
Both the Bench and the Bar are the two inextricable wings of the judicial forum and therefore the aforesaid mutual respect is the sine qua non for the efficient functioning of the solemn work carried on in Courts of law. But that does not mean that any advocate or a group of them can boycott the Courts or any particular Court and ask the Court to desist from discharging judicial functions. At any rate, no advocate can ask the Court to avoid a case on the ground that he does not want to appear in that Court.
A Vakalatnama need be stamped as per the fees provided under the Court Fees and Suits Valuation Act. A Muktarnama, Vakalatnama or any paper signed by an advocate signifying or intimating that he is retained for a party should carry court fee leviable as per the State Law. Different court fee has been provided for presentation to any court, the Board of Revenue or the High Court. Additional Stamp for Advocates Welfare Fund and for Bar Associations have to be affixed. One must note that Vakalatnama is filed immediately after engagement.
An advocate has to conduct himself as a model for others both in his professional and in his private and public life. The society has a right to expect of him such ideal behaviour. Service to Humanity is Service to God. Let us pledge to do service to humanity after discharging our duties and obligations of this unique institution. Let us search, introspect and correct ourselves.