CHAPTER IV

ETHICS OF LEGAL PROFESSION

SYN OPSIS
1. Meaning, Nature and Need
2. Professional Ethics
1. Duty to the court
2. Duty to the client
3. Duty to opponent
4. Duty to colleague
5. Other Duties
3. Punishment for breach

t. Meaning, N ature and N eed

Professional ethics may be defined as a code of conduct w ritten or
upwritten..ior .regul?ifing the behaviour of a p_ractising lawyer towards hi.m,self,
his cli~n,t, his adversary in law and towards the Court~ Thus, ethics of legal
.er,o! e~ on means the body of the rules and p ractice w hi~ defennme ., the
p rofessional conduct of the members of bar. When a person becomes an
advoca te his relation with men in general is.. governed by the general rules
of law but his conduct as advocate is governed by the special rules of
professional ethics of the Bar. ,.T he main object of the ethics of the leg al
profession is to maintain the dignity of fhe 1 egal p rofession and the frienclly
relation betv.reen tli e Bench and Bar. Chief Justice Marshall h as ob se~ ed :
• - · "The fundamental '"aim of Legal Ethics is to maintain the honour
and dignity of t..1-te Law Profession, to secure a spirit of friendly
co-operation between the Bench and the Bar in the promotion of highest
standards of justice, to establish honourable and fair dealings of the
counsel with his client opponent and witnesses ; to establish a spirit of
brotherhood in the Bar itself ; and to secure that lawyers discharge their
1
responsibilities to the community generally."
The American Bar Association Committee has well explained the need
of the Code of legal ethics. It has observed that the legal profession is
necessarily the keystone of the arch of Government. If it is weakened by
allowing it to be increasing for subject to the corroding and demoralising
influence of those who are controlled by craft, greed and gain or other
unworthy motive, sooner or later the arch must fall. The future of the country,
thus, d epends upon the maintenance of the Shrine of Justice pure and
unrolled b y the advocates and it cannot be so maintained, unless the conduct
and m otive of the members of the legal profession are what they object to

1. Quo ted in C.L. Anand, General Principles of Legal Etlzics, p. 63.

 ·LEGAL ETH/~ ACCOUNTABILITY OF LAWYERS & BENCH-BAR RELATTON
60
be. It, therefore, becomes the plain and simple duty of the lawyers to use
their influence in every legitimate way to help and make the ~ar what it
!
ought to be. A Code of ethics is one method of furtherance 0 tlus end. 1he
Committee has further observed that members of the bar, like judges, are
officers of the Court and like judges they should hold office only during gooct
behaviour "good behaviour" should not be a vague te:111. It should be defined
and measured by such ethical standards, however ~igh, as are necessary to
keep the administration of justice, pure and unsullied: Such standards may
be crystallized into a written code of pr<:>fessional :thics and. lawyer failing
to conform thereto should not be permitted to practise or retam membership
in professional organisation.
Stating the need for a Code of conduct for lawyers Justice Sundaram
Aiyar has said1 :
Rules are necessary even for the best self-interest is a misleading factor
when you have to decide on the spur of the moment what is best to be done
in the circumstances. The fact that these are definite rules and that much
discretion is given to the individual will itself be an additional source of
I temptation. Never adopt the standards of a business profession. l3ut after all
I , whatever light we may seek to get from rules of conduct which have been
prescribed in England or other countries, a great deal will have to be left to
u:idiv~dual conscience. Nothing but a deterrnihatio~ to err always on the safe
side m c~ses of doubt will enable you to do your duty consciously. In this
count_cy 1t must be co~essed_ that very often petitioners are guilty of
questionable condu~t owing to_ ignorance. They do not really know what is
proper to be done .any particular case and as there are no rules to ·de
t~ere, no settled traditions to serve as an inspiration, each one is a law ~to
~self. He has further observed that it is not desirable that the la er's
~dan~e should be altogether under the judicial control It wo:J'
rmposs1ble for Judges to control the bar satisfactorily. Too s; • t di . ~e
on the part of the Courts is likely to unfair th . d IC a sap e
of the members of the bar It is all th . e m ependence and self-reliance
h Id · e more necessary: theref th th
s ou be disciplinary bodies and that the . '. ore, at ere
frame rules for its guidance.2 Ex lainin profession itself should try and
learned C.L. Anand has stated th~t d. g the ba~vantages of the legal ethics
t kin ... a vocate emg a publi fun .
on_e . a g to practice at the Bar should c ctionary any
privileges as well as . of th thi have a correct knowledge of
e e ca obhgatio f th
1· •

·
profess10n. He should be able tO d' t· . ns O e members of his
matters Of professional conduct witho Is mgu1sh. .between ng · h t and wrong in
necessary for the. satisfaction of h' ' ut di!ficulty or hesitation. This is
name of the profession for th is ow~ conscience, for the honour and good
· Ii · ' e protection Of th ·
m tigat~on and for the welfare of e client and other concerned
S~ate to protect ·persons not only frthe ~eneral public. It is the duty of the
t ose who will disregard the obligat'om Incompetent lawyers but also from
Sir Sivaswamy has right! b ions of professional service 3
Y o served th t •t . ·
. a I is of course true that men
1. Justice Sundaram A.
2. Ibid. iyar, Professional Ethics.
3· C.L. Anand Gener I p · ·
' a rmctples of Le I .
ga Ethics, p. 69 _
 ETHICS OF LEGAL PROFESSION
61

are not necessarily made moral by courses of lectures on ethics but it must
be remembered that la~ses. from the traditional standard are often due to
ignor~ce and that a d~ffusion of knowledge of the rules applicable to the
rofessions must contribute to the maintenance of a hi h t d d f
P 1Th Ob • f g sanar o
integrity. e . se1:abon ° ~e canons of legal profession will, no doubt,
raise the profession m the public estimation.
Legal prof~s.siQn, is~no~ a business bu.t a profession. It has been g eated

lies in the _ _th!flgs-

.28-:.
by b..1.tt!~J.9£..!D$..J2\1Jl.li5J.0 S£nse9uently,_the _esJJence o.f.J11~1ofession
•
or~ sation ~f its m~mbers for the pe!formance of their fpnction ;
(2) mamtenapce 0£ ce.rtam...,st~dards, intellectual and ethical for the
dignT't"y of ~tg&J2t~fession ; ~d • '
(3) subow:"ifFat10µ. of p~cuniary. gains to efficient service.2
Th_e codification of. the canons of the professional clhics may give
impression ~at the .code 1s exhaustive while in reality it cannot be exhaustive.
It has been nghtly stated by P. Ramanatha Aiyer, and N.S. Ranganatha Aiyei
that it is not possible to formulate a code of legal ethics which will provide
the lawyer with a specific rule to be followed in all the varied relations of
his professional life. He has made it clear that it must not be assumed that
in these canons of an ethical code, any attempt whatever can be made to
exhaust the subject or to lay down rules of conduct which will be sufficient
for all purposes and under all sets of circumstances. 4 This fact has been
realised by the Bar Council of India. The preamble to the rules as to standards
of professional conduct and etiquette made by the Bar Council of India has
made it clear that the rules so made contain canons of conduct and etiquette
adopted as general guides and the specific mention thereof shall not be
construed as a denial of the existence of other equally imperative. though not
specifically mentioned role in the administration of justice. The lawyers and
judges are considered the protector of justice. Because of such an important
role of the lawyers nothing should be done by them to lessen the people's
faith in the honesty .and integrity of the legal profession. Initially a written
code of conduct did not find favour in England but later on the General
Council of the Bar published a Book containing a complete code for the
guidance of the lawyers. In India the exhaustive code of conduct for lawyers
has been provided by the Bar Council of India in the exercise of its
rule-making power under Section 49(l)(c) of the Advocates Act, 1961.
Even prior to the Advocates Act, 1961, the provision for punishment for
misconduct is found. Section 10 of the Indian Bar Councils Act, 1926
contained provision for the punishment for misconduct. Section 10 of the
Indian Bar Council Act, 1926, contained the following provisions-
"(1) The High Court may, in the manner hereinafter provided,
reprimand, suspend or remove from practice any Adv~cate of the High
Court whom it finds guilty of professional or other misconduct.

1. See Aiyer, Professional Ethics, Foreward. .

2. C.L. Anand, General Principles of Legal Ethics, p. 30.
3. Legal Ethics, p. 14.
4. Ibid.
 LEGAL ETHICS, ACCOUNTABILITY OF LAWYERS & BENCH-BAR RELATION
62
(2) Upon receipt of a complaint made to it by any Court or by
the Bar Council or by any other person that any such advocate has been
guilty of misconduct, the High Court shall, if it does not summarily
reject the complaint, refer the case for inquiry either to the Bar Council
or after consultation with the Bar Council to the Court of a District
Judge (hereinafter referred to as a District Co~rt) and may of_ its own
motion refer any care in which it has otherwise reason to believe that
any such Advocate has been so guilty."
Besides this Legal Practitioners Act, 1879 also contained provISions for
punishing the advocates for misconduct. The provisions of this Act were as
follows-
Section 13. Suspension and dismissal of pleaders and Mukh~ars ~lty
of unprofessional conduct.-The High Court may also, after such mqwry as
it thinks fit, suspend or dismiss any pleader or Mukhtar holding a certificate
as aforesaid-
(a) who takes instructions in any case except from the party on whose
behalf he is retained or some person who is the recognised agent
of such party within the meaning of the Code of Civil Procedure
or some servant, relative or friend authorised by the party to give
such instructions, or
(b) who is guilty of fraudulent or grossly improper conduct in the
discharge of his professional d~ty ; or
(c) who tenders, gives or consents to the retention, out of any fee paid
or payable to him for his service or any gratification for preserving
· or having procured the employment in any legal business of
himself or any other pleader or mukhtar ;
(d) who, directly or indirectly, procures or · attempts to procure the
employment of himself as such pleader or mukhtar, through or by
the intervention of, any person to whom any remuneration for
obtaining such employment has been given by him or agreed or
promised to be· so given, or
(e) who accepts any employment in any legal business through a person
who has been proclaimed as a tout under Section 36, or
(f) for any other reasonable cause.
Section 14. Procedure when charge of unprofessional conduct is
brought in subordinate Court or revenue office.-lf any such pleader or
mukhtar practising in any subordinate Court or in any revenue office is
charged in such Court or office with taking instructions except as aforesaid
o~ with any such misconduct as aforesaid, the presiding officer shall send
him a copy of the charge and also a notice that on a day to be therein
appointed, such charge will be taken in to consideration. Such copy and notice
shall be served upon the pleader or mukhtar at least fifteen days before the
day so appointed. .
. On such day __o~ on ~y subsequent day to which the enquiry may be
adJoumed the pres1dmg officer shall receive and record all evidence properly
produced in supp~rt of the charge or by the pleader or mukhtar and shall
proceed to adJud1cate on the charge. If such officer finds the charge
 ETHICS OF LEGAL PROFESSION 63
i.}ished and considers that the pleader or mukhtar should be suspended
estav . d . h
disnusse m consequence, e shall record his finding and the grounds
or reof and shall report the same to the High Courts and the High Court
tJle acquit,
JllaY · s~spend o~ d'1s~1ss · th. e ~leader or mukhtar.
suspension pending_ mveshg~hon.-Any District Judge or with his
ariction any Judge subordmate to him, any Judge of a Court of Small Causes
!
~f a Presidency 0 ~n, an~ District Magistrate or with his sanction any
Magistrate sub_ordmate to him and any revenue authority not inferior to a
collector or with the Collector's sanction any Revenue Officer subordinate to
hiln may, pending the investigation and the order of the High Court, suspend
from practice any pleader or mukhtar charged before him or it under this
section.
Every report made to the High C~urt under the section shall,-
(a) when made by any Civil Judge subordinate to the District Judge be
made through such Judge ;
(b) .when made by a Magistrate subordinate to the Magistrate of the
District, be made through the Magistrate of the District and the
Sessions Judge ;
(c) when made by the Magistrate of the District, be made through the
Sessions Judge ;
(d) when made by any Revenue Officer subordinate to the Chief
Controlling Revenue authority, be made through such Revenue
authorities as the Chief Controlling Revenue Authority may from
time to · time, direct.
Every such report shall be accompanied by the opinion of each Judge,
Magistrate or Revenue authority through whom or which it is made.
Section 15. Power to call for record in case of acquittal under Section
14.-The High Court, in any case in which a pleader or mukhtar has been
acquitted under Section 14 otherw.ise than by an order of the High Court,
may call for the record and pass such order thereon as it thinks fit.
Before the written Code of conduct there were canons of ethics for
lawyers but they were not exhauftive. There was much uncertainty as to the
conduct amounting to the professional misconduct. Often the lawyers
committed professional miscondµct on account of ignorance as to the conduct
amounting to the professional misconduct. To remove out this uncertainty a
written code of conduct was considered necessary. Section 49(1)(c) of the
Advocates Act empow~rs the Bar Council of India to frame rules prescribing
the standards of professional conduct and etiquette. In the exercise of this
power the Bar Council of India has framed the rules as to the professional
conduct and etiquette to be observed by the advocates. Sections 35 and 36 of
the Advocates Act makes provision in relation to punishment for professional
or other misconduct.
2. Professional Ethics
Section 49(1)(c) of the Advocates Act, 1961, empowers the Bar Co!llcil
of India to mal<eniles so as to prescribe ffie stanoards of professional conduct
and etiquette to 'Se ooserved b)" the advocates.I t has been made clear that
........ __ .....,.. '
 64 LEGAL ETHICS, ACCOUNTABILITY OF LAWYERS & BENCH-BAR RELATION

such rules shall have effect only when they are approved by the Chief Justice
o.f""Inaia. ·rr fias also l5een made clear that any rules -maa.e - in relation to the
starldards of professional conduct and etiquette to be observed by the
advocates and in force before the commencement of the Advocates
(Amendment) Act, 1973, shall continue in force, until altered or repealed or
amended in accordance with the provisions of this Act.
In the exercise of the rule-making power under Section 49(1)(c) of the
Advocates Act 1961 the Bar Council of India has made several rules so as
I I

to prescribe the standards of professional conduct and etiquette to .be observed

by the advocates. Chapter II of Part VI of the Rules framed by the Bar Council
of India deals with the standards of · professional conduct and etiquette. It
contains several Rules which lay down the standards of professional conduct
and etiquette. These Rules specify the duties of an advocate to the Court,
client, opponent and colleagues, etc. However from the Preamble it becomes
clear that these rules contain canons of conduct anct ~efiquefte ru:fopfed as
g~neraJ--::-gµiq.~~ cµ1a Jn~ s:t,~u(c~menfion·••rnerebf should not be construed as
.ot.~
a dez:iial of .!!:~ : xi~tence, other equally imp~rative,' though ·n ot specifically
mentioned. · •. , ,
' "' 7:11e Rule~ mentioned in Ch'!IJ~r .. Q of...Part VI ~ f the Rules of .the Bar
Cow:icil of India may be discussed as follows :-
1. Dn!XJ&..!h~~!1
The Bar Council of India has made certain rules so as to prescribe duties
of an advocat~ to the Court. Such duties may be explained as follows : -
1. Dunng the presentation . of the case and while actin otherwise
:~fo~e the Court an advocate is required to .conduct ~ I f with
mid.. ~\TY-respect. An advocate shall not be servile d ·
c:e o~ }:'roper ground for serious complaint against a -~ .:
o icer, it is his right and duty to submit h. . JU Cl
authorities. The rule empowers the ad lS grtievance to the proper
ag . t . d. . voca e to make sompJaint
a u ~ ~1.:,_ ic1al ~fficer but it should be submitted to the
t. ....
er
- · ~ - .... . ,, .,._,..._ .........,.,.., ........... . , . , . . . ~ ~--
ro
p p
2. ~·- •a-ari-v_o,...
cate is required to maintain to . .
attitude bearing in .~ind that the di ~:rds the C~u1: respectful
e~"fffial for the survival of f gru Y of the Judicial office is
1 a ree community Th•15 rul
c e~r that the lowering the di •ty of . :. • e makes it
ser!,?~s danger to the survi'vat~"'·· 'f -~ J U~~c1~l off1c~ will be a
3. The rule has m"ade.,.,.,,..---
1t c1ear
~-...,.....,':
th t _ree · community.
............. ,. .
decision of the Court by ill a no ~dvocate shall in+1u,a:1nre the
tl -~--....;;;.: any egal or un ~M~ ,
1e private communication with . _ p.rg~r ~ eans. It prohibits
Consequently, if can ad a relating to a pending
, vocate attem t t . -·• - case
court by any illegal or im p o infl:uence the decision of
pr.,9fessional miscondy_ct. proper means it will amount to the
4. The rule requires th d .
e a vocate to hi
Pd~,xent.his ~mt. from~resorting touseh s best effort to restrain and
omg anythm · LS arp or un£ ·
Which th d g m relation to the Court ~- . . clll' Pt actice or from
e a vocate himself ought noi t~p;smg counsel or parties
o. It also . requires the
 ETHICS OF LEGAL PROFESSION
65
advocate to refuse to represent the client who persists in such
improper. condu_ct. TI1e rule makes it clear that the advocate shall
no~ :~; r_ ~ ~elf mere mouthpiece of the client and shall
-a-- . . .
exercise n is 6'wn 1uctgment in the use of restrained langu
~orrey pon ence, avoiding _scurrilous attacks in pleadings ancf using
·
age 1n
mtemperat~ langua ge during arguments in the Court.
s. An a?vocate shall a~pear in Court at all times only in the
P~ : .d dress and his appearance shall always be p.i;,esentable.
6. An advocate shall not enter appearance, act, plead or practise in
any way before a Court, Tribunal or authority mentioned in section
30 of the Advocates Act, if the sole or any member thereof is
related !,~ t~e_advoc~te as father, grand-father, son, grand-sori,' unc1e,
bfcillier, nepfiew, first cousin, husband, wife, mother, daughter,
sister, aunt, niece, father-in-law mother-in-law son-m-law
b;-_cl§-~ :'.law :-" a aughter-in-law or si~te~:i!)-lq.w,_ F~r this purpose 'of
this rule, Court shall mean a Court, Bench or Tribunal in which
abovementioned relation of the advocate is a Judge, Member or the
Presiding Officer.
The provisions of Section 30 of the Advocates Act are as foJ:1-ows-
Subject to the provisions of the Advocates Act every advocate
whose name is entered in the State roll shall be entitled as of right
to practise throughout the territories to which this Act extends-
(i) in all courts including the Supreme Court ;
(ii) before any tribunal or person legally authorised to take
evidence ; and
(iii) before any other authority or person before whom such
advocate is by or under any law for the time being in force
entitled to practice.
7. The rule requires the advocate nol_ to wear bands or in
public places o!1'er_ ~ -in Court except .0:2., ~?ch ~~re~ onial
-OC'.£~~l.--<.?!1~.......ana at such places as the Bar Council of'1riaia or the
Court may p~scribe.
8. The rule provides that an advocate sh_all not appear in or before 1

any Court or Tribunal any otner authority for or against an

organisation or an institution, society or corporation, if he is a
member of the executive committee of such organisation or
institution or society or corporation. "Executive Conµajttee", by
wh; tever name it rn:ay be called, shall include any committee or
body of person which, for the time being, is vested with the general
management of the affairs of the organisation or institution or
society or corporation. However it has been made clear that
rule shall not apply to suc,h_a member app~ar~g as,::.g"iiiiCJJS-Cijrz~
or without a fee on behalf of a Bar Council, Incorporated Law
Society or a Bar Association. • -~ ··
9. An advocate sha1f not act or pl~ ~ L ma~~r which he is /
himself pecuniarily interested. For example, an advocate should not
act in a bankruptcy petition when he himself is also a creditor of
 TABILITY OF LAWYERS & BENCH-BAR RELATION
LEGAL ETHICS, ACCOUN
66
the banknipt. b e) make it clear that an advocate
Rules T and 2_ (st~ted • ov the court fearlessly. He shall not b •hot,l,\

and in case the_re 1s proper

is not only his right but
.. H
g::
present the case of _his client be1ored for complaint againSt a judicial

the ru1e as
Yh also made it clear that he
. . f th
:it•rvu,
to submit his grievance to the ice,, it
Proper
must b
authorities. owever, . ust maintain the d1 t o e le al rofe . e
respectful to the Court. He is an of(jsg....Qf the _Court and re •sto,,
as well as~ e di nity_..£[ th edC .,:clfue -Cc>JJ!.L~d_u.oJJ.P. do any•1-.~\l~d
--.--=r,:J d. ';tv m1d ecofUJ.u - 1 1 . -..~u1~ •t
t~)!F!l!"u t e 1gn.!,- ·· :-· a case a awyer unputed part;- ~ •
bJ:i!]g the Couru ts_elf...!O -d1srepuif/ and said that the Munsiff did not o/1°'lr
and unfairness against the lMuns was held liable for professional misc ollo'W
princ1p. 1es in
. h.ts order· Thed awyer b ve) are also of much importance in th <>nduct •
Rules 3 and. 4 ~stateTh a orules require an advocate not to influen e fair
elm.
a nus . tra t'1on of 1usttce· ese
. -
gal or im_eroper means an d use his_ best
_ . ce ~th
111
decision _of a Court b~ an[. cl~ent from resOrl § l . ~ Or Ullfair practl!'!
to restrain and preve 1 f to the Court, op__eos'!!S.Sounsel 0, - - .'."
or from omg any mg m re a io~ -
~ dvocate himself ou~ I Il_0~
- a "'fh eAn
- rules proh.ibi~. ~ private•s
~ t· w~~ u- dg-erelating to a pending case. attempt to influen
communtCa tOn }U l J
the decision of a Court by improper or I eg •n al means and private Ce
. t· 'th the Judge relating to a case are taken not onl
commun1ca ion w1 . ~+ r, 2- Th • - Y
prolession~ conduct but ffe§Q. c,Q!ll!'!!!P~.w;!.... . us'. if an a~
stoops To bribe~ •• an order m favour of his c~ent' or suggests
his client to bribe the official to obtain the favourable order will amount to
professional misconduct. ·
An advocate is . an of~ r __o( . tlle. _(<;>~_court ..acts on the
stateme;i; of fu;;-;;;Jv.;,,ate:Tt is the duty of the advocate to assist the Court
in ttie aue"admini7tr~iion •o(JusticO. CollS"4uently an advocate is requ;;;.i to
be 'i§1Iuf1'[j_m!r~~':. e lf~1-'le ·sn ouldJn"ake_accurate ~ta_tem':llts ·of facts
and should not ~ s! the j~E!~~.JI!;_~fjo.'M~ . nQt mtsgu1de the Court ~y
suJ'.'piessing_\)1,!! p,levant (as ts. If an advocate suppresses the fact that earlier
an 'identical petition has been dismissed by another Bench of the High Court,
5
it would amount to professional misconduct. It is the duty of the advocate
to assist the Court in the administration of justice and not to cite knowingly
an overruled decision or a repealed statute.
Learned CL. Anand6 has observed that the advocate owes respect and
courtesy to the Court for the reasons stated below-
(a) An advocate is like the Judge, himself, an officer of the Court and
~ tegral part of the ·udicial · e. The legal · pro£essi011
consists o e ar as well as the Bench and both have conunon
aims and ideals.

1. L~lit Mohan v. Advocate-General, AIR 1957 SC 250

2. R1zwr111-11l-Hassan v. State of U.P., AIR 1953 SC .
3. In the matter of U, an advocat A 185. . v. Bat
Council, AIR 1983 SC _ e, IR 1935 Rang 178 ; Chandra Shtkiulr S0111
1012
4. Presiden( Vnkil's Association v A v; k'l
5. Clznndrika Prasad v. State 0if
6 CL A d .
Mp 1
a ' AIR 1914 Mad 635.
. ., AIR1985MP254
. . . nan , General Pnnciples oif Legal Eth lCS,. p. 175..
 ETHICS OF LEGAL PROFESSION

(b) ~eory it is the King or Sovereign who presides in the Court of

Justice and t~e Judge is merely the mouthpiece and representative
of the Sovereign. Re~pect shown to the Court is, therefore, respect
shown to Sovereign whose representative the Judge is
(c) No~ ~nly. ht~gants and witnesses but ~e general public will get
their ms~1~aho~s from the example of advocates. It is necessary for
the admirustrahon of justice that Judges should have esteem of the
peo~le. If _judges are not respected it tends to impair public
confidence m the administration of justice.
(d) It is the good manners and advocates · before anything else are
"gentlemen of the Bar."
(e) Even from a purely practical standpoint, there is nothing to be
gained but there_is much to lose by antagonising the Court. Conflict
with the Judge renders the trial disagreeable to all and has
generally an injurious effect upon the interests of the client.
(f) The usual practice in modem times is to appoint Judges from
among the members of the Bar and even where this rule is not
strictly observed the Bench is fairly representative of the Bar.
(g) It is necessary for dignified and honourable administration of
justice that the Court should be regarded with respect by the suitors
and people.
In his third Resolution Hoffman has stated1-
"To all Judges, when in Court, I will ever be respectful ; they are
the law's viceregents ; and whatever may be their character and
department, the individual should be lost in the majority of the office."
Resolution Forty one of Hoffman is also notable. In this Resolution he
has stated2-
"In reading to the Court or to the jury, authorities, records, .
documents or other papers, I shall always consider myself as executing
a trusts and as such, bound to execute it faithfully and honourably. I
am resolved, therefore, carefully to abstain from all false or deceptions
readings and from all uncandid omissions of any qu_alification of the
doctrines maintained by me, which may be contained in the text or in
the notes ; and I shall ever hold that the obligation extends not only to

r
I
words, syllables and letters but also to the modus legendi."
In · the case of q.c;.
Sax$,_ua3 the Supreme Court has made it clear that
the counsel or party appearing before the Court should not indulge in writing
in pleadings, the scurrilous allegations or scandalisation against the judge or
Court. He should maintain dignity and decorum of the Court. If the
reputation or dignity of the Judge who decides the case are allowed to be
prescribed in the pleadings the respect for the Court would quickly disappear
and independence of the judiciary would be a thing of the past.
In U.P. Sales Tax Seroice Association v. Taxation Bar Association,4 the
1. Hoffman, Fifty Resolutions, Resolution III. 'ii11- •

2. Ibid., Resolution XLI.

3. In re D.C. Saxena, AIR 1996 SC 2481.
4. AIR 1996 SC 98. .
68 LEGAL ETHICS, ACCOUNTABILITY OF LAWYERS & BENCH-BAR RELATION
',
Supreme Court has made it clear that if an advocate attends the Court with
firearm,§J his conduct will not be consis~ent with the dignity of t~ legal
profession and it should be deprecated. In this case an advocate, instead of
arming himseH wrffi armoury of preceaents, was ar~!!d with licensed_revolver
and was attending !}1e Co1-!_l't~ ~ ith lf~e1:'.e~.!i~~ 5Ill· He pretended to pr~~ide
himself with the revolver to shoot m s~ nce. The Court observed 1t is
regrettable that advocates attef:"cr C~urt ~~ i.!!l fire~ ~.!§..~ot b~f!!ting to the
dignity of the legal p rofession, and is a distressmg feat~e .
.f In(Smt. PoQnam v. umz anwar, the ~upreme Court ~as held that in
case, the counsel for the party i~ no able to . render any assistance the court
may decline' to entertain the petition. The cou)tsel cannot just raise the issues
in his petition and leave it to the court to give its decision on those pointers
on going through the record and determining correctness thereof. In absence
of ,ErOR ~istarice to the court by the lawyers, there is no obligation O_!l the
part of the court to decide the case for the· simple reason that unless the
lawyer renders proper assistance to the •court: the court is ~ofable to decide
the case. It is not for the court itself to decide the controversy. Besides, if the
judgment is decided in such cases the judgment given may be violative of
principles of natural justice as the' opposite co.unsel _would not have fair
opportunity to answer the line .of reasoning adopted in this behalf. Such a
judgment may be violative of the principle of natural justice.
2. Duty to the client
~!!;~J.J2.. deal with the duties of an advocate to his client. These
rules may e explained as foll9ws :-
(1) Rule 11 provide~ that an advocate is bound to accept any brief in
the ~ 01:;t gJ;_., I nl~,1!n?l ~~..,~ ;~~!,~Y, ,,_O.~~r ~~tnO:~ff."§ or before
wh(ch.fie pro12oses- to•. pi:a€t1se,. a Lie.e._consistenCwith .bjs~_standing
~t &11~ ~~!_Ur~,2f,,t,b~S,¥ ~ The rule makes it cl~ar that
m special circumstances he may refuse to accept a particular brief.
the case o!
S.J. Chaudhary v. State,2 the Supreme Court has made
1t clear that 1f an advocate accepts the brief of a criminal case, he
must attend the case day to day and if he does not do (' ·f
h f ·1 t0 d h so 1.e., 1
e at~ atten t e case), he will be held liable for breach of
profess10nal duty.
(2) frRule 12 provides that an advocate shall not ordinarily withdraw
om
~ engagements
·€ ..
once accep ted wit
,
· h out
--.. . .
sufficient cause and
1
~: :~~easonabl~ and sufficient notice is given to the client. In case
art of 1~awfs himself from the case, he is bound to refund such
P e ee as has not been earned
(3) Rule 13 makes it l th ·
or a . c ear at an advocate should not acc~ t a brief
be ppe_atnr m a case in which ~e has reason to believethat -he will.
w1 ess. The rules provid" tt:.~ f 1·t·~-f - -. • • ·- .
case it be es ua , a ter being engaged m a
comes apparent that he · ·tn
of fact he shouu t . is a wi ess on a material question
' · J. no continue to appe d .
he can retire witho t . d' . . ar as an a vocate m case
1. AIR 2010 SC 1384. u Jeopar ismg his client's interests.
2. AIR 1984 SC 1755.
 ETH/CS OF LEGAL PROFESSION
69
In a easel the M.P. High Court h
of India Rules are not com let as ~eld that the Bar Council
standard of professional eth' p e code with respect to the higher
be proper for others may i~ti~x),ect~d of a lawyer, what may still
expectation is of high ethical b he _improper for a counsel. The
privileged member of the co~;v10.ur from a lawyer who is a
gentleman. The Court has held that ~ty and expected to be a
to continue as counsel of I . tiff i is not p~oper_ for an Advocate
w. tn . . th p am once he is bemg examined as
re~i es_s m e case on behalf of the plaintiff. He must volunteer to
can: the .case. once he has been cited as a witness. An advocate
for identify hi~self ~ith the client and therefore it is not proper
. im to contmue with the case after being examined as a
witness.
(4) Rule 14 provides that an advocate shall, at the commencement of
his engagement and during the continuance thereof, make all such
fuJl and frank ,Q-!S,$lQfilYe tq,,Jlls e,li.~llt. relating to his connection with
the parties and any interest in or abo{;t"t~e controversy as are likely
to affect his client's judgments in either engaging him or continuing
the engagement.
(5) Rule 15 provides that it is the duty of an advocate to uphold the
int~~Lbi§..,.c;li_e!!t_ f~rlessly by all fair ~n_g h~ Te m eans
witb~£!.J~~~X~.,.,,~ ,"'! ~ ~ p~e~~~ ~quen<;e to him ~ or any
other. It is the duty of""an advocate to defend a person accused of
~ e regardless of his personal opinion as to the guilt of the
accused and in the discharge of this duty he should always bear
in mind that his .loyalty is to the law which requires that no man
hould be convicted without adequate evidence.
Rule 16 provides that an advocate aP12..eariI)gj or the prosecution of
a criminal trial shall so conduct the 12rosecutif>n that it .2.,oes not
l~d to caovicijon of the innocent. The 1:11~ makes. it clear that the
suppression of material capable of establishing the innocence of the
accused must be scrupulously avoided.
(7) Rule 17 provides ~ !e s}1aj l not commit (~irectly or
1

indirectly) a brEle,_9ls;,2LJhe o?li~ ns imp~sed ~y Sec~on 126 of

the Indian Evidence Act. This section provi~es m. relation to_ the
. 1 mmunications According to this section no barnster,
professiona co · . b ·tt d unless
1 der or vakil shall at any time e permi e ,
attorney, Pea d' cl mmunication made
.th his client's express consent, to is ose any co ch
Wl d f the purpose of his employment as su
to him in the course an or . b or on behalf of his client or
barrister, pleader, attorney o~-~akil~f ~ny document with which he
to state the contents or ~on hi on se and for the purpose of his
uainted m t e cour .
has be~ome acq lo ent or to disclose any advice given by him to
professional emp ym d f th purpose of such employment :
. li t . the course an or e fr
his c en m hi . this section shall protect om
Provided that not ng m
disclosure-
1. Rajendra Nagrath v. L. Vohra, AIR 2009 MP 131.
70
LEGAL ETHICS, ACCOUNTABILITY OF LAWYERS &BENCH-BAR RELATION

(1) any such communication made in furtherance of any illegal

purpose ;
(2) any fact observed by any barrister, pleader, attorney or vakil,
in the course of his employment as such showing that any
crime or fraud has been committed since the commencement
of his employment.
It is immaterial whether the attention of such barrister,
pleader,· attorney or vakil was or was not directed to such fact by
or on behalf r' his client. The explanation to Section 126 makes it
clear that the vbligation stated in this section continues after the
employment has ceased. ·
(8) Rule 18 provides that an advocate shall not, at any time, be a party
to fomenting of_Utigjttion. · ·
(9) Rul'e19 makes it dear that it is the duty of an ad~ocat~ n2 t~ a~t
on the instru£!!ons_ .£! ~ th~j,t.!tl ,,ms .shent or his
authorised agent. It provides that an advocate shall not act on the
instructions of any person other than his client or his authorised
ao-Pnt.
~~~~!<:t depenting upon the success
(10) 1 · .: _fee of an of the suit is
~ e £ ~ tp . t . ~. £0 cy. contract or
comingent fee is also hit bySectfon ·23 0T11te111dian Contract Act.
· Agreement to share the proceeds of the litigation may amount to
champerty. In such conditions the advocate has direct interest in
the subject-matter and cannot act with the sense of detachment or
with the attitude of objectivity. Such agreement degrades the
honourable profession. To prevent such an agreement rule 20
provides that an advocate shall not stipulate for a fee contingent
on the results of litigation or agree to share the proceeds thereof:
(11) Rule 21 provides that an ady9s.ate shall not buy or traffic in or
stipulateJ2! ,,2r_ ~fil!~ .t.,Q•. :~cei1r:e_m~ share or__inte_resJ ~in any
acponable claim. However, it has been made clear that nothing in
this Ruleshall apply to stock, shares and debentures or government
securities or to any instruments which are, for the time being, by
law or custom negotiable or to any mercantile document of title to

J2) goods. ·
Rule 22 provides that an advocate shall not, directly or indirectly,
bid for or purchase either in his own name or in any other name,
for his own benefit or for the benefit of any other person, any
property sold in the execution of a decree or other proceeding in
which he was in any way professionally engaged. The rule makes
it clear that this prohibition does not prevent an advocate from
bidding for or purchasing for his client any property which his
client may himself legally bid for or purchase, provided the
_/ advocate is expressly authorised in writing in this behalf.
JIJ.3) Rule 23 provides that an advocate shall not adjust fee payable to
him by his client against his own personal liability to the client
which liability does not arise in the course of his employment as
 ETH/CS OF LEGAL PROFESSION 71

an advocate.
(14) Rule 24 provides that an advocate shall not do anything whereby
he @._uses or takes advantag ~ the confidence reposed in him by
his client.
(1.'iY R~e ~ ~vJ_,des that an advocate should keep accounts of thJ
v' clients money e~htm7mtl- the -m:counts shoultrsltowlhe
a~ ~eived- from ilie cTient -or ~ his oefialf, the expenses
inromtt-for-ium--and -the debits- made 011 accotffif- of fees with
respective dates and all other necessary particulars.
(16) According to Rule 26 where moneys are received from or on
account of a client, the entries in the accounts should contain a
reference as to whether the amounts have been received for fees or
expenses and during the course of the proceedings, no advocate
shall, except with the consent in writing of the client concerned, be
at liberty to divert any portion of the expenses towards fees.
(17) Rule 27 provides that where any amount is received or given to
him on behalf of his client, the fact of such receipt must be
intimated to the client as early as possible. If the client demands
the payment of such money and in spite of such demand the
advocate does not pay him, he will be guilty of professional
misconduct." 1
(18) Rule 28 provides that after the ter~ tio~ of the_ I?r~ ~g the
advocate shall be at liberty to appropnate towards The settled fee
due to him any sum remaining unexpanded out oftfie amount
paid ~ s~~t to 1:in~Jor ~XP;!;~el 011-nyamounfThat ms-come into
his hands m ffiaf proceeamg. ·
(19)' Rule 29 provides that where the fee has been left unsettled, the
advocate can ded~t.,E.u t _of any inoney~ ..< ;>(Jne client ~IlJ...._~g:. in
his hands at the termination of the proceeding fo!.,...wltiGlk.he had
be\ U!Jg~er ,tnefee payable "unaer L'1e rules of the Court in force
for the time being or by then settled and the balance shall be
refunded to the client.
(20) Rule 30 makes it clear that a copy of the client's account shall be
furnished to him on demand provided the nec?essary copying charge
is pa'ia"."""- , ............ , • , ,..._ _ · · __ .
,J~) Rule 31 requires an advocate not into arrangeme\lts
whereby funds in hiJ_, h~u~r~ convertea !nto loans. It makes it
clea r-that"'1tnadvocate shall not enter into arrangements whereby
funds in his hapds are converted into loans.-
(22) Rule 32 prohibi t\s an advocate to lend money to his client for the
1

purpose of any action or legal proceedings in which he is engaged

by such client. It provides that an advocate shall not lend money
to his client for~ he purpose of any action or legal proceedings in
which he is en .aged by such client. The explanation to this ntle
mak~ it clea_r t. t an advocate shall not be held guilty for a breach
of this rule 1f, \ the course of a pending suit or proceeding and
1. In the matter of P.J. Ratna.m, AIR 1962 AP 201. .
 LEGAL ETHICS, ACCOUNTABILITY OF LAWYERS & BENCH-BAR RELATION
72
t with the client in respect of the s
without any arrange7ie~ b reason of the rule of the Court ~Ine, th
advocates feel com~ e t
a payment to the o~r
fn account of the client for the O Illa~
Progres
h ·t r proceedings. s
of t e sw o . hat an advocate who has, at any time, a .
(23) Rule 33 p~ovid~ th 'nstitution -of a suit appeal or other dv18eq
in connection wl1t d ' e 1or acted for a , party, .shall not act ?natter
has drawn p ea mgs ' appe
or lead for the opposite party. , ,, --- . ar
or P f;, ,-~ 'rt has held that the- resolution of th
~ --- t Supreme L OU eB
In a case e .11 ot defend certain accused persons has b ar
Association ffla! lawyers r:fess~onal ethics and also against the constitu ~en
held to be against . the Ip th. cs as has been held by the Court, requires ~on
and statute. Professfu1ona e b
lawyer cannot re se a n
l·~i provided the client is willing to pay hi haft
. f th B s ee
a . th •,e engaged. Thus the action o e ar Associati
and lawyer 1s not o erwis ill c on
. 1 ti that none ,0 f its members w appear 1or a particuJ
in passdmg ha threso ounothne ground that he is a policeman or on the ground thaart
accuse , w e er • ·

I
. ted terrorist rapist · mass murder, etc. 1s agamst all norms of
he 1s a suspec ' ' hi d th f
the constitution, the statute and professional Et cs an ere ore null and
void. 2
Fiduciary duties.-The relation be~e~n an ~dvocate and ~s c_lient is
fiduciary. It is of confidential nature re mn a high degree of fidelity and
3
good faith. In V.C. Ran a urai v. D. G. ala Ju~tice Sen has obsen~ed th~t the
relation betw n r ea vocate and his c 1ent 1s purely personal involving a
highest personal trust and confidence.
An advocate should not be considered merely an agent o~ ant of his
client. He is -more than mere agent or ~m¥1t. of his g i~nt~~_!.ule 14n'takes
it clear that an advocate -shalf,atiliecommencement of his engagement and
during the continuance thereof, make all such full and frank disclosure to his
client relating to his connection with the parties and any interest in or about
the controversy as are likely to affect his client's judgment in either engaging
him or continuing the engagement. Rule 15 provides that it shall be the duty
of an advocate fearlessly to uphold the interests of his client by all fair and
honourable means without regard to any other. Rule 22 provides that an
advocate shall not, directly or indirectly, bid for or purchase, either in his
own name or in any other name, for his own benefit or for the benefit of
any other person, any property sold in the execution of a decree or order in
any s~it, appeal or other proceeding in which he was iri any way
. rofess1onally e~ga?ed. This prohibition, however, does not prevent _an
a~voc_ate from b~ddmg for or purchasing for his client any property whi~
his client may ~mse~f leg~l~y b~d for or purchase, provided t~e advocate 15
expressly authonsed m writing m this behalf. Rule 24 makes it clear ~t an
advocate
. . anything whereby h e ab used or ta k es a d van tage of the
shall not do
confidence reposed m him by his client.

1. A.S. Mohammed )Jffi v. State of Tamil 1\T d AIR

2. Ibid. - - - --•· - «-...t.:E. ,Aft 2011 SC 308.
3. AIR 1979 SC 281.
4. In the matter of Mahabat Ali Khan AIR 1958 A
' P 116.
 ETHICS OF LEGAL PROFESSION 73

In the case of P.D. Gupta v. Ram Murti,1 an advocate purchased property

i,ich was ·subject-matter of litigation from his client at throw away price.
;ere was a dou?t cast on the client's title to the property and the advocate
as aware of this fact. He sold the property to a third person and made
wrofit. He was held guilty of professional misconduct.
p In Vikas Deshpande v. Bar Council of lndia,2 the appellant advocate took
advantage of the situation that the c?mplainants facing death sentence and
obtained the power of attorney on mis-representation in his favour and sold
the property of the complainants. Besides, the appellant advocate fraudulently
appropriated the sale-proc~ds for_ his gain. The Court held that he had
committed a grave professional misconduct. The Disciplinary Committee of
Bar Council of India permanently debarred him from practising as an
advocate. The punishment was upheld by the Supreme Court. The State Bar
council could not complete the proceeding within a period of one year and
therefore the complaint was transferred to the Bar Council of India under
5ection 36B of the Advocates Act and thereupon the Disciplinary Committee
of the Bar Council of India passed the aforesaid order for permanently
debarring him from practice and this order was found proper by the Supreme
Court.
In Harish Chand Singh v. S.N. Tripathi, 3 a senior advocate appointed his
own junior as mu~tar of complainant in consolidation case. He misguided
his junior and tried to dispose of complainant's property in favour of his own
father. The senior advocate was held guilty of professional misconduct. He
was suspended from practice for two years.
Hoffman4 has stated-
"To my client I will be faithful ; and in their causes zealous and
industrious. Those who can afford to compensate me, must do so ; but
I shall never _close my ear or heart because my client's means are low.
Those who have none and who have just causes, are of all others, the
best entitled to sue or be defended ; and they shall receive a due portion
5
of my services, cheerfully given."
llaPrahlad Saran Gupta v. Bar Council of lndia,6 certain amount was
deposited with the advocate for decree-holder in connection with the
settlement in execution proceedings under negotiation between decree-holder
and judgment-debtor. The settlement was not fructified and the property of
the judgment-debtor was auctioned but the advocate retained the money
deposited with him and, . thus, did not return the amount either to the
decree-holder or to the judgment-debtor. The Court held that the action of
the advocate in not returning the amount either to the decree-holder or to
the judgment-debtor and retaining the same with himself was not in
consonance with the standards of the professional ethics expected from an
advocate. The conduct of the advocate was taken as professional misconduct.
1. AIR 1998 SC 283.
2. AIR 2003 S.C. 308.
3. AIR 1997 SC 879.
4. Resolution XVIII.
S. Ibid.
6. AIR 1997 SC 1338.
 LEGAL ETHICS, ACCOUNTABILITY OF LAWYERS & BENCH-BAR RELAnON
74
th
Advocate's Fee-Fixation of fee.-The rules framed by e Bar Council
th
of India do not prescribe the fee to be claimed by e advocates for theu,
• • · h b n Ieft to be settled by the .
professional services and it as ee R 1 11 . Pnvate
es 11 and 38 are notable. u e provides that
agreemen ts . H owever Rul T 'b 1 an
advocate is bound to accept any brief in the Courts. or n una or _before any
. . b £
au thonty m or e1ore w
hich he proposes to practise
H
at fee consistent u.;th
I •vi
his standing at the Bar and the nature of the ca~e.. ?wever egal profession
is not a business but profession and therefore m fixmg . t~e fe~ should be
kept in mind that the profession is a bran~ of the adminIStfation of justice
and not a mere money-getting trade. _£ccmdmg to the ca,!!..<?~f Erofes~ional
ethics of American Bar Association in fixing fees lie lawyers should avoid
chargeswN'cDover-esliffi.!l_!~_!!:dvice a~d ser~ices-:s ~~U~~fifo~e which
undervalue them., The canon also makes it clear that tl'le' Cori'trotfers1es With
clie~ ing fees are to be avoided by the lawyers so far as shall be
compatible with his !~~~ ~· and ~ith. his :ight to rec:,iVE:, reasonable
reco~pen.~ for his service and law swt, with clients shoula Se resorted to
only to prevent injustice, impositions or fraud.
Carter1 has stated that in fixing the fees it is fair to consider the time
used and the skill employed, the amount involved and the · result of the
services as well as the customary charge for similar services by the lawyers
in general practice. He has made it clear that any lawyer who cares for his
reputation would prefer to reduce his charges rather than engage in litigation
for their collection .
.L. Anand has ably summed up the matters to be taken into
· consideration in fixing the amount of fee these are as follows :-
(i) The qualification and standing of the advocate who is asked t0
render professional service. It is evident that a service rendered b
a person of superior education and rich experience is likely to b~
more valuable · 1and of better quality than the advice 0oi.ven by a
person wh o 1s ess qualified.
(ii) The
. t . difficulty
h of the problem involved m· the case The more
m ncate t e case, the greater will be the degree of skill . d
of Jabour required. an amount
(iii) Th
(iv) Th: : : : : : ivotilmveedr:quthired t~ render professional service.
m e smt.
(v) The result expected to be accom I'
lawyer's exertion. P tshed as a consequence of the
(vi) The customary chan es of th
Actually there is no hardg d f e Bar for such services.
depends on the agreement betw:~ th:s:;ile as to the fixation of the fees. It
of such a eement an advocate is . vocate and the client. In the absence
the . uantu111: ms uit I1' e. If the fee :ntitled to _rea~onable fee on the basis of

t zpa y fil e stn·t

for its recov:ery to .-avoid the p yable to him ts not naid he
t th . . co,ntroversy th d _ - &.
i(
:elatkgt~ e efg,a~Ill,£,I]t. It would be=bett~-: ff O£aJ.e~ ~U.,Q.4!..9,_~ ttl~ the fee
---=---e_e_e_is_r_e_duced into wr·r e exact terms of the contract
1. Carter, O.N., Ethics of Legal P ,r. . I mg. In the case of Ranjit Singh In re 2
2. In re Ranjit Singh AIR 1936 ro;esszon, p. 56. , ,
' All 359.
 ETHICS OF LEGAL PROFESSION 75

5uiaiman, C.J .,
has observed :-
"It would incr~ase the dignity of the profession as well as its purity
of a common practice grew up under which exact terms of the contract
of engag~ment of counsel were reduced into writing preferably signed
by the cbent and maintained in the Advocate's office. Such a contract
would make it impossible for any dispute or misapprehension to arise
in future.
Rule 38 framed by the Bar Council of India, with the object to prevent
unhealthy competition, provides that an advocate shall not accept a fee less
than the f~e taxable under the rules when the client is able to pay the same.
Co_ntm~ent fee.:--The fee depending !:!£On the suq :esJ, o.f_.tl;e suit or
proceeding (1.e., C_?~~ge~ t ~:,) is regarded as against th: P..!!Pllc- ~ . The
~ ~ntmgenf fee IS hit by Section 23 or the Indian Contract Act.
Rule 9 framed by the Bar Council of India expressly provides that an advocate
should not act or plead in any matter in which he is himself be pecuniarily
interested. Besides rule 20 makes it clear that an advocate shall not stipulate
for a fee contingent on the result of litigation or agree to share the proceeds
thereof. In such condition an advocate cannot be expected to act with sense
of detachment or objectivity. In such condition an advocate , makes himself as
a client in the garb of an advocate. Such an agreement, thus, degrades the
honourable legal profession. On this issue the canon of the professional ethics
of American Bar Association provides that a contract for contingent fee, where
sanctioned by law, should be reasonable under all the circumstances of the
case including the risk -and uncertainty of the compensation, but should
always be subject to the supervision of a court, as to its reasonableness.
However, another canon mak~s it clear that the lawyer should not purchase
any interest in the subject-matter of the litigation which he is conducting. In
England an agreement for contingent fee is not valid.
The agreement for contingent fee is looked upon with disfavour,1 and
later as inconsistent with the high ideals at the Bar.2

f Right of lien. - "

In the case of R.D. Saxena v. Bairam Prasad Sharma! the Supreme Court
has held that an advocate cannot claim lien over the litigation files entrusted
to him for his fees. The Court has held that no professional can be given the
right to withhold the returnable records relating to the work done by him
with his client's matter on the strength of any claim for unpaid remuneration.
The alternative is that the professional concerned can resort to other legal
reme~ for such unpaid remuneration. · .
New India Assurance Co. Lt v. _A.K. Saxena,4 the Supreme C_ourt. has
made it c ear at advocate has no hen over t e papers of their client.
Therefore, the advocate cannot retain files of his client on the ground that his
fee has not been paid by him. The question as to whether fees are payable
or not to the advocate cannot be decided in proceedings filed by client
1. In the matter of an Advocate, 4 Cal LJ 259 ; In re Bhandara, 3 Born LR 102.
2. C.L. Anand, Geneml Principles of Legal Ethics, p. 150.
3. AIR 2000 SC 2912.
A.LR. 2004 S.C. 311.
76 LEGAL ETHICS, ACCOUNTABILITY OF LAWYERS & BENCH-BAR RELAnON

claiming return of his papers or files. However, the advocate may resort to
legal remedies for tmpaid fee or remuneration. It has been held that the
dispute regarding fees is a lis to be decided in an appropriate proceeding in
the Court.
An advocate has fiduciar relation w· i lient and occupies a position
of trustee wi - regard to the money of his di~t w com~s in his
possession. Thus, an ad~ocat,£ is t~ ated J§ a trustee m relation-~ his client's
money which comes in ~ eossession. If an advocate refuse~ to giv~ the client
the money received for him he will be held ~ il of r?fess10nal _m~ co~ducf.1
In a case t e our 1as e at if an advocate retains
2
e c ent s money
3
in spite of demand he will be guilty of mi~co~duc~. In another case -fill_
advocate lent money of his client to his re~ ~ .distress for ~hor~ period
~ d subsequently made goo?, the_~~nq, to .~ ..c~§Tut not m time. 'Jre-
was held guilty of professional misconctuct]n the case of J,S. Jadhav v._Mustaja
Fl.M. a'ctvocate wHnarew certain amount. on behalf of ~s client
from the Court Receiver but did not pay the whole amotmt to the client. He
was held guilty of professional misconduct. Certain Rules made by the Bar
Council of India are here notable. Rule 23 provides that an advocate shall
not adjust fee payable to him by his client against his own personal liability
to the client which liability does not arise in the course of his employment
as an advocate. Rules 25 makes it clear that the advocate should keep
accounts of the client's money entrusted to him and the accotmts should show
the amounts received from the client or on his behalf, the expenses incurred
for him and the debits . made on account of fees with respective dates and all
other necessary particulars. Rule 26 provides that where moneys are received
from or on ·account of a client, the entries in the accounts should contain a
reference as to whether the amounts have been received for fees or expenses
and during the course of the proceedings, no advocate shall, except with the
consent in writing of the client concerned, be at liberty to divert any portion
of the expenses towards fees. Rule 27 imposes another duty on the advocates.
It provides that where any amount is received or given to him on behalf of
his client, the fact of such receipt must be intimated to the client as early as
possible. Rule 28 lays down ·that after the termination of the proceeding the
advocate shall be at liberty to appropriate towards the settled . fee due to him
any sum remaining unexpended, out of the amount paid ·or sent to him for
expenses or any amount that has come in his hands in that proceeding.
According to Rule 29 where the fee has been left unsettled, the advocate shall
be entitled .to ~etail, out of any ~oneys of the client remaining in his hands,
at the tennmation of the proceeding for which he had been engaged, the fee
payable under the rules of the Court in force for the time being or by their
settled and the balance, if any, shall be refunded to the client. As Rule 30
provides a copy of the account of the client shall be furnished to him on
demand provided . the necessary copying charges is paid. Rule 31 prohibits an
advocate to enter mto arrangements whereby funds in his hands are converted
1. In re an advocate, AIR 1961 Ker 209.
2. Ibid.
3. In re N.K. Sen, AIR 1952 Cal 551.
4. AIR 1993 SC 1335.
 ETHICS OF LEGAL PROFESSION
n
. to 1oans- It provides that an advocate shall not enter into
illnerebY funds in his hands are converted into loans. arrangements
w Rule ~2 prohibits an advo~te to lend money to his client for the
of any action or legal~proceedings in which he is engaged by s u e r :
}'{owever, the ~xplanation to the rule makes it clear that an advocate shall
not be hel~ gwlty fo~ breach of this rule, if, in the course of a pending suit
or proceeding and without any arrangement with the client in respect of the
satne, the advocate feels compelled by reason of the rule of the Court to make
a payment. to the court on accounts of the client for the progress of the suit
or proceedings.
Prohi~ition as to app~arance for opposite party and use of information
to the detnment of the chent.-The relation between the advocate and his
clients is _2f .trustJ -Il;-d..£onfi.qe1:ce. I~ the duty of an _a_dvocaie no t to use
~ ~ormatio~ obtained by him adv~ ate t.2,_ the detriment of the cli"ent
This dut,L£2ntinues ey~ aft~L t!°lg_~ lc!PQ!L Qj_a~vocate and client has ceas;l.'
1ris ffieJ u!)',__~f an advocate no! !g__ disclose the informationscoirummi~
_by_ hi~s~~-- If the ~isclosure"orsu ch W ormation; is allowed, the
clients would not disclose their secrets to their advocates and the advocates
would not be able to discharge their functions properly. The client's
communications to the advocates have been protected under section 126 of
the Indian Evidence Act. From Section 126 it is evident that an advocate is
not permitted, unless with his client's express consent, to disclose any
communication made to him in the course and for the purpose of his
employment as such advocate, by or on behalf of his client or state the
contents or condition of any document with which he has become acquainted
in the course and for purposes of his professional employment or to disclose
any advice given by him to his client in the course and for the purpose of
such employment. However, the proviso to Section 126 provides that nothing
in this section shall protect from disclosure-
(1) any such communication made in furtherance of any illegal
purpose, .
(2) any fact observed by any barrister, pleader, attorney or vakil, in the
course of his employment as such showing that any crime or fraud
has been committed since the commencement of his employment.
Section 126 makes it clear that iUs immaterial whether the attention
of such barrister, pleader, attorney or vakil was not directed to such
fact by or on behalf of his client. From the Explanation to Section
126 it is evident that the obligation stated in this section continues
after the employment has ceased. The object of this frovision ~s
that there should be absolute confidence between the client and his
advocate and this should be protected. Section 129 of the Indian
Evidence Act provides that no one shall be compelled to disclose
to the Court any confidential communication which has taken place
between him and his legal professional adviser, unless he offers
himself as a witness, in which case he may be compelled to disclose
any such communication as may appear to the Court necessary to
be known in order to explain any evidence which he has given }?ut
 78 r::NCH-BAR RELATION
LEGAL ETHICS, ACCOUNTABIUTY OF LAWYERS & Bi:;,

M~~rs. ,
. ide and appear 1or the
It 1s the duty of an advocate not to change s
opposite party in subsequent proceedings in the sa:e
·t Rule 33 framed
s~e· who has, at any
by the Bar Council of India makes it clear th~t an ~oca_t appeal or other
time, advised in connection with the institution ° =~;f ~ot act, appear or
matter or has drawn pleadings or act~ for a. par% a ears to be this that
plead, for the opposite party. The bas!s of this ru. : tions given to him
there is likelihood or possibility of misuse of th e :;s . c D Gopalan 2 the
by his former client. 1 In the case of V.C. Ranga u:a~ \hat there w'ill
be
Supreme Court has held that in case an ~dvo~ate fin 0 uld handover the
conflict of interest in taking up a case of his _client, hehs to take his place.
brief to his client and should not hand over it to anot er th b . f f th
ted e ne or e
In the case of Gurubasappa3 an advocate accep h Government
plaintiff and appeared at the initial stage and thereafter. as t~ e suit He was
pleader on behalf of the State which was a defendant m e ·
held guilty of professional misconduct. b d tha
• 4 th s Court has o serve
In the case of Chandra Sekhar Som, e upreme dt
·. . t · oiven by a11 conceme
an advocate may change side 1f express consen is tr C ha h Id
after a full disclosure of the facts. In this case the Supreme ourt s
that, it is not in accordance with professional etiquette for an advoca~e while
retained by one party to accept the brief of the other. I~ is unprofessional to
represent conflicting interest except by express consent given by all concerned
after a full disclosure of the facts. 5
On this issue the canons of the American Bar Association is also notable.
One of the canons provides th~t it is the duty of a la~er at 1!1e time of
retainer to disclose to the client all the circurristances of his relations to the
parties and any interest in or in connection with the controversy which might
influence the client in the selection of counsel. It makes it clear that it is
unprofessional to represent conflicting interests, except by express consent of
all concerned given after a full disclosure of the facts. The lawyer is under
duty to represent the client with undivided fidelity and not to divulge his
secrets or confidences. He is forbidden also the subsequent acceptance of
retainer or employment from others in matters adversely affecting any interest
of the client with respect to which confidence has been reposed. The another
canon of the American Bar Association provides that a lawyer should not in
any way communicate upon the subject of controversy with a party
represented by counsel, much less should he undertake to negotiate or
~ompromise the matter with him but should deal only with his counsel. It is
incumbent upon the lawyer most particularly to avoid everything that may
tend to mislead a party not represented by counsel and he should not
undertake to advise him .as to the law.
Canon 37 of the American . ,Bar Association
.. provides that 1·t lS
· the d U ty
o f a 1awyer to preserve his cI1ent s confidence. This duty outlasts the lawyer's
1. See State v. Lil/it Mohan Nanda, AIR 1961 Orissa 1.
2. AIR 1979 SC 281.
3. AIR 1964 AP 261.
4. AIR 1983 SC 1012.
5. AIR 1983 SC 1012.
 ETHICS OF LEGAL PROFESSION
79
....,ployment and extends as well to his employ d .
ccept emi:1oyrnents . w hi ch involves or may involve
e.. , ees an thneither
. of them sh ould
~ese confidence, either for the private advanta ~closure or use of
employees or to the disadvantage . of the client wf~o~t
onsent and even though there are other available sour
ru: ~wyer or his
f chowledge and
lawyer should not continue employment when ~s ~ -su information.
Obligation prevents the performance of his full duty t e hi ISCfovers that this
new client.· The canon ma kes it · clear that U a lawyer0 . sf lsel
armer or to his
his chent, e is no prec u ed from disclosing the truth . Y accused by
· h · t l d ts a
· Th d · • m respect to the
accusatiJn. "thie :~oun~~ intention of a client to commit a crime is not
include_ wi n e con ences which he is bound to respect. He can make
such disdosu~s _as may be necessary to prevent the act or protect those
against whom it 1s threatened.
3. Duty to opponent
R es 3 aq ramed by the Bar Council of India contain provisions
as to 3t'e dtrfies o1 a~ advocate to the opponent. Rule 34 provides that an
advocate shall not m any way communicate or negotiate upon the
su12!~t-m~:t:r ~ f ~ontr_2~ersy with any p~rty repr~sentect S"y a~- advoc~te
e~ ~ g n tnataavo~~te., RuleJ_S)~rovides that an acivocate .~hall _d2 his
best to carry~ all legitimate promises made to the opposite party even
th~ \siegh not
AU SfJII
reduced to ·writing or enforceable under the rulesofi:ne Co urt.
l'J. -,_'-- - -

It is the duty of an advocate not to engage in discussion or argument

about the subject of the dispute with the opposite party without notice to his
counsel. Resolution 43 of Hoffman provides :-
"I will never enter into any conversation with my opponent's client
relative to his claim or defence, except with the consent and in the
presence of his counsel."
Canon 9 ~.!.,h!_.A m<:ri~a~ Bar A!isociatjpn.)s_,jlb<?_notable. It provid.~ that
a lawyersrumid not in any way communicate upon the subject of controversy
with,, ~- _rfatty_.~ru]se~ .- ~o~_!':l~-_T~ ~~ le~ sh~uld 1!,e 009ertak~ to

~I~
.---------..------------
negotiate or compromise the matter with rum, but should deal orily with his
co
II. Duty to the colleagues
36, 37, 38 and ,.a39 framed by the Bar Council
0

" RuI:;._ ~ a e , g •
of India deal with
the duties of an advocate to the colleagues. R~ provides that an advocate
shall not solicit work or advertise (either directly or indirectly) whether by
circulars, advertisements, touts, personal communications interview not
unwarranted by personal relations, furnishing or inspiring newspaper,
comments or producing his photograph to be published in connection with
case in which he has been engaged or concerned. The sign-board or
name-plate should be of a reasonable size. The sign-board or stationary 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.
 LEGAL ETHICS, ACCOUNTABILl7Y OF LAWYERS & BENCH-BAR RELATION
80
Th d · · . . . 1·t may lead to unhealthy
.. e a verhsmg 1s proh1b1ted because • -~ . . 51'd
Cffi!'Retition ainont the advoca~ ifo;;;-er, the acfv~ th, ~~con ered th
beneficiaL inJ he sens~ tha t it will provide information to e pub~c alls to e
n
1 t · 6""etter- ro a ow th
r
~ --- - - -
advocates
1
and their seecialised area of law as we · !!f - - d e
advertisement. but thereroust be proper guidelines s~ tha j t .may...JlO~ e_a to
unhealthy comp'filtion _and may not resu.!J in loweqng dow.n ,the digl1)ty of
w f;•cy_gf.essii;.i_n.
the le!!al ·t h'15 name to be used
R~7 provides that an advocate shall not permt - _
in aid or'or to make possible the unauthoris~ a~ PY any agency.
Rule 38 makes it clear th a E an =advocate shall not accap.Lathfee_ less ~?a!l
the fee~le under the rules whe11Jhe _Qi.e~ hle to pay ~1 same.
A:ccording to Rule 39 an ad'vocate shall not enter appearance ~ any case
in which there is .a'trta!y a vakalatnama or memo of ap~earance filed by an
advocate engaged for a party except with his consent ; in case such cons~t
is not produced he shall apply' to the Court stating reasons why the said
consent should not be produced and he shall appear only after obt~ining the
permission of the Court. The object of this Rule is to secure goodwill among
the advocates. 1 The advantages of the Rule have been well 3 summed up by
C.L. Anand,2 in his book, General Principles of Legal Ethics. It prevents the4
temptation of seducing clients from counsel who have already been engaged.
The Counsel already engaged can, in this way, require that all hi~
remuneration shall be paid to him before the client engages another counsel.'
Besides, it is one of the professional obligation, of an advocate to dissuade
client from changing his counsel unless he has a strong reason 6
for it and to
satisfy himself that the reason is proper and . adequate. All lawyers are
brothers at the Bar. The ill-feelings of clients should not affect their cordial
el ·ons. An advocate should be courteous to the other advocates.
Other Duties 40 /tl
I
l.12- 1 l..(s/ W4 -A-/-' 4,,g) l/J
_52,
(1) 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
~urns . so collected by the State Bar Council shall be credited in a separate
tund to be known as "Bar Council of Indif1 Advocates Welfare Fund for the
State" and shall be deposited in the bank as provided thereunder.
A_ccording to Rule 41(2) the Bar Council of India Advocates Welfare Fund
Cor~m1ttee _for the State shall remit 20% of the total amount collected and
cre~ted to its acco~t, to the Bar Council of India by the end of eve month
which shall be credited by the Bar Council of India and th B cry ·1 f
Ind'ia h an d ep?si·t the sai'd amount in a separate fund to bee known ar ounc1 o
as "Bar
.
Council of India Advocates Welfare Fund" · Th1's fun d s h a 11 b e managed by
the Wtime
from
elfare Committee of the Bar Council of I d' . th
to time by the Bar Council of India for n th1aemwelfearemanner prescribed
of the advocates.

1. C.L. Anand,
2. Ibid.
General Principles oif Lean/
O'
Eth ,cs,
. . p. 193.

3. 111id.
4. Ibid.
5. Ibid.
6. Ibid.
 ETHICS OF LEGAL PROFESSION 81

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 utilised ,· for the welfare of I advocates in respect of Welfare Schemes
sponsored by the respective State Bar Councils and this fund shall be
administered by the Advocates Welfai:e Committee for the State which shall
submits its report annually to the Bar Council of India.
Rule 42 deals with the consequences of non-payment of the said amount
by the advocate. ~t pro~ides that if advocate fails to pay the aforesaid sum
within the prescnbed bme as provided under Rule 40, 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 of rupees five per month or a part a month
subject to a maximum of rupees thirty within the period specified in notice,
the proceedings 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 practise. However the order of suspension shall cease
to be in force when the advocate concerned pays the amount along with a
late fee of rupees fifty and obtains a certificate in this behalf from the State
Bar Council.
Rule 43 provides that an advocate who has been convicted of an offence
mentioned under Section 24-A of the Advocates Act1 or has been declared
insolvent or has taken full time service or part-tin}e · service or engages in
business or any avocation inconsistent with his practising as an advocate or has
incurred any disqualification mentioned in the Advocates Act or the rules made
thereunder, shall send a declaration to that effect to the respective State Bar
Council in which the advocate is enrolled, within 90 days from the date of such
disqualification. If the_ advo_cate does not file the said declaration or fails to
show sufficient cause for not filing such declaration provided therefor, the
Committee constituted by the State Bar Council under Rule 42 may pass orders
suspending the right of the advocate to practise. However, it shall be open to
the Committee to condone the delay on an application being made in this
behalf. Alongwith it, an advocate who had after the date of his enrolment and
before the coming into force of this rule, becomes subject to any of the
disqualifications mentioned in this rule, shall within a period of 90 days of the
coming into force .of this rule send declaration referred to in this rule to the
respective State Bar Council in which the advocate is enrolled and on failure to
do so by such advocate all the provisions of this rule would apply.
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 Rules 42 and 43 (stated above).
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.
It provides further that every State Bar Council shall have an Advocate
Welfare Committee known as Bar Council of India Advocates Welfare
Committee for the State. The Committee shall consist of member, Bar Council of

1. As to Section 24, see Chapter II.

 82 LEGAL ETHICS, ACCOUNTABILITY OF LAWYERS & BENCH-BAR RELATTON

India, .from the State concerned who shall be the ex-officio Chairman of th
committee the two members elected from amongst the members. The Secreta e
of the. State Bar Council concerned will act as ex-officio Secretary of
Committee. The term of the member, Bar Council of India in the Committ e
shall be co-extensive with his term in the Bar Council of India. The term of
members elected from the State Bar Councils shall be two years. The RuI e
makes it clear that two members of the committee shall form a quorum of an;
meeting of the committee.
The Rule requires every State Bar Council to open an accounts in the name
of the Bar Council of India Welfare Committee for the State in any Nationalised
Bank. No amount shall be withdrawn from the Bank, unless the cheque is
signed by the Chairman of the Welfare Committee and its Secretary.
The Rule also provides that the State Bar Council shall implement Welfare
Scheme approved by the Bar Council of India · through Advocates Welfare
Committee so constituted. The State Bar Councils may suggest suitable
modifications in the welfare Schemes or suggest more schemes, but such
modifications or such suggested schemes shall have effect only after approval
by the Bar Council of India.
The Rule requires the State Bar Council to maintain separate account in
respect of the Advocate Welfare Fund which shall be audited annually along
with other accounts of the State Bar Council and send the same along with the
auditor's report to 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 schemes
Whic!)Al,.ay be framed from time to tim~-
/ (2) Duty in imparting training: Rul 45 -'framed by the Bar Council of
- India makes it clear that it is improper n 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 a State Bar Council to enable such person to
qualifjAor enrolment under the Advocates t 1961.
/(3) Duty to render Legal Aid. ule 4 rovides that every advocate
shall in the practice of the profession o 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, as an advocate owes to the society.
(4) Restriction on other employments.-Rules 47, 48, 49, SO, 51 and 52
deal with the restrictions 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 fee-provided none of his
duties are of an executive character. An advocate shall not be a managing
director or a secretary of any company. Rule 49 provides that an advocate ~hall
not be a full time salaried employee of any person, government, fi~,
corporation or concern, so long as he continues to practise and shall, on ta~g
up any such employment intimate the fact to the Bar Council on whose roll his
name appears and shall thereupon cease to practise as an advocate so long as
he continues in such employment. However, nothing in Rule 49 shall apply to
 ETHICS OF LEGAL PROFESSION 83

a la~ officer of_the Central Government or the Government of a State or of any

public corporation or body constituted by statute who is entitled to be enrolled
und_er the Rules of his State Bar Council made under section 28(2)(d) read with
s~tion 24(1)(e) of th_e Act de~pite his being a full time-salaried employee. For
t~s pur~ose law officer mearls a person who is so designated by the terms of
his appointment and who, by the said terms, is required to act and/ or plead in
Courts on behalf of his employer.
1
.In a case a person was enrolled as an advocate despite of being full time
salaned employee as law Officer. The State Bar Council (Bar Council of
Himachal Pradesh) had not made any Rule entitling full time salaried Law
Officers for practising•as an advocate. The work of the person so enrolled was
not mainly or exclusively to act or plead in Court as 'Law Officer.' He was not
entitled to be enrolled as an advocate. His name may be removed from the Roll
of the State Bar Council. Such removal was not taken as punishment but
rectification of mistake. Thus, the cancellation or withdrawal of enrolment was
not taken as punishment and therefore, in such condition the procedure to be
followed in the case of punishment for professional or other misconduct was
not required to be observed.
If in the rules of any State Bar Council, a provision is made entitling Law
Officers of the Central Government or a State or any Public Corporation or
body constih1ted by a statute, the bar contained in Rule 49 shall not apply to
such Law Officers despite they being full time salaried employees. The Court
has observed further that not every Law Officer, but only a person who is
designated as Law Officer by terms of his appointment and who, by the said
terms is required to act and/ or plead in courts on behalf of his employer can
avail the benefit of the exception contained in the aforesaid Rule 49.
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. He may continue to hold a share with
the others iry any business which has descended to him by survivorship or
inheritance or by will provided he does not personally participate in
management thereof.
Accorcl.ing ,to Rule 51 an advocate may review Parliamentary Bills for a
remtineratiqn, fudit legal text books at a salary, do 'press-vetting' for
newspaper~, ,cdach pupils for legal examination, set and examine question
papers ar1i<i su~ject to the rules against advertising and full-time employment,
engage in'.1 bro.adcasting journalism, lecturing and teaching subject, both legal
and non-legal. ·
Ru,le 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
inc9nsistent with the dignity of the profession. This rule shall be subject to such
directives if ~y as may be issued by the Bar Council of India from time to time.
3. Punishment for the breach
See Chapter V.

1. Satislt Kumar Sharma v. Bar Council of Himnchal Pradesh, A.LR. 2001 S.C. 509.