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Professional Ethics
[02:00 pm to 02:45 pm]

Introduction
• The word ethics is derived from the Greek word ‘ethos’ meaning ‘character’ and from the
Latin word ‘mores’ meaning ‘customs’. Both the terms when combined, provide a definition
of how an individual chooses to interact with one another. Ethics in philosophy represents what
is good for the person, for the society in general, and the established nature of duties people
owe themselves and one another.
• According to the Black’s Law Dictionary, ethics are “directives based on one’s ethics and
morality. How one lives with others. The foremost concepts and principles of proper human
conduct. Socially, it is the collective of universal values, treating each human equally,
acknowledging human and natural rights, obeying the law of land, showing health and safety
concerns, caring for natural environment. Refer to morality.”
• According to the Black’s Law Dictionary (11th edn.), Legal ethics means the standards of
professional conduct applicable to members of the legal profession within a given jurisdiction.
• Edmund Burke has combined the element of learning and nobility in the legal profession. He
states:
“The law is one of the first and noblest of human sciences, a science, which does more to
quicken and invigorate the understanding, than all the parts of learning put together.”
• Ethical behaviour can get subsumed in morality but assumes a higher level inasmuch as it
involves persons/ professionals, such as in the case of Doctors and lawyers where both have to
maintain basic ethical stands. In contradistinction to doctors who take the Hippocratic oath,
lawyers by their actions are assumed to have taken a similar role in its pristine form.
• When the legal profession was conceived, from ancient times, it was supposed to cater to social
needs and social service. The formation of lawyers and advocates came with passage of time
because municipal laws and criminal laws were being enacted by governments. Unlike the
medical profession, we do not have a Hippocratic oath, but we have a duty to the Court and the
client to act in a manner that is fair, just and ethical.
• Chief Justice Marshall of the American Supreme Court has also echoed on Legal Ethics in the
same spirit, as follows: “the fundamental aim of Legal Ethics is to maintain the honour and
dignity of the Law Profession, to secure a spirit of friendly co-operation between the Bench
and the Bar in the promotion of the highest standard of justice, to establish honourable and
fair dealings of the Counsel with his clients, opponent and witnesses; to establish a spirit of
brotherhood in the Bar itself; and to secure that lawyer discharge their responsibilities to the
community generally.”
• “Ethics is the science of human conduct - its sources, its development, its sanctions, and its
most general principles-as related to a rational ideal”. Or, to define more strictly this science,
in order to bring it into closer relations with the science and practice of law, by ethics we mean
the collective sentiments, judgments, and approved practices of the body of the people, with
respect to what is deemed right and wrong in conduct, as measured by a certain ideal standard
of character-in a word, the public conscience or moral consciousness. Both ethics and the law,
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the public morality and the body of legal rules, at every epoch in history, and in all lands, are
of necessity subject to development1.

The Advocates Act, 1961

• The Advocates Act, 1961 was enacted on the 19th of May, 1961, to “amend and consolidate
the law relating to the legal practitioners and to provide for the constitution of Bar Councils
and an All-India Bar.”
• Chapter V of the Advocates Act, 1961 provides for the ‘Conduct of Advocates’. Section 35(1)
of the Act states as under:
“Where on receipt of a complaint or otherwise a State Bar Council has reason to
believe that any advocate on its roll has been guilty of professional or other misconduct,
it shall refer the case for disposal to its disciplinary committee.”
• In Chapter II, Part VI of the Bar Council of India Rules, the rules on professional standards for
an advocate are clearly mentioned. These rules are mentioned in Chapter I, Part VI of the Bar
Council of India Rules. It is under section 49 (1) (c) of the Advocates Act, 1961 that these rules
have been provided.
• In State of Punjab v. Ram Singh (AIR 1992 SC 2188), the Hon’ble Supreme Court held that
the term ‘misconduct’ may involve –
a. moral turpitude
b. improper or wrongful behaviour
c. unlawful behaviour
d. a forbidden act
e. carelessness or negligence in performance of duty
f. or the act complained of bears forbidden quality or character
• In the matter of In Re: Mahbub Ali Khan v. Unknown (AIR 1958 AP 116), it was held by the
Hon’ble Andhra Pradesh High Court that the term, “misconduct” usually implies an act done
wilfully with a wrong intension and as applied to professional people, it includes
unprofessional acts even though such acts are not intentionally wrongful.
• In Shambhu Ram Yadav v. Hanuman Das Khatry (AIR 2001 SC 2509) the Hon’ble Supreme
Court made it clear that writing a letter to his client to send money to bribe the Judge is a
serious misconduct. It also held that legal profession is not a trade or business.
• In P.D Gupta v. Ram Murti (AIR 1998 SC 283), the advocate purchased property which was
subject of litigation from his client at a throw away price, and sold the said property to a third
party. He made profits and created more complications in the pending case. The Hon’ble
Supreme Court declared him guilty of professional misconduct. The Court further held that a
lawyer owes duty to be fair not only to his client but to the Court as well as to the opposite
party in the conduct of his case.
• In Ex-Captain Harish Uppal v. Union of India and Another [(2003) 2 SCC 45], the Hon’ble
Supreme Court has held that lawyers have no rights to go on strike or even token strike or to
go for a call for boycott. Nor can they obtain from Courts in pursuance of a call for strike or
boycott while holding vakalatnama on behalf of clients.

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https://openyls.law.yale.edu/bitstream/handle/20.500.13051/10757/72_18YaleLJ613_1908_1909_.pdf?sequenc
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Ethics and chargeability of fees

• In fact, the Barristers could never demand a fee, and would have a pouch suspended where
people would pay them what they deemed fit. With the advent of the increase of costs staff,
papers, journals and books (which have become exponentially high) lawyers could and would
demand “reasonable fees” from their clients, the quantum of which could be, as a matter of
discussion fall within ethical practice, but when a client decides to pay a fee demanded, a
lawyer cannot be said to be adopting unethical practice, as long as it is not termed as extortion
or champertous in any nature which would mean fees dependent upon the success of the case.
• The three chartered High Courts, i.e. Calcutta, Bombay and Madras, have, for the purpose of
taxation and costs, incorporated in the Original Side Rules, the concept of admissibility of fees,
which is only illustrative and not exhaustive. The same has also been incorporated in the
Supreme Court Rules as well as the Delhi High Court Original Side Rules. In fact, the Supreme
Court, 1966 and The Supreme Court Rules, 2013, had on the request of the Bar Association,
listed out a name of touts with a warning message that strict action would be taken, in the late
1990s.
• The Delhi High Court Rules contains an interesting provision that fee of advocate/vakeel who
is known to have dealings with dalals or other persons frequenting the railway station/sarai or
other place as tout, no fee shall be allowed to a party who has engaged such an advocate. It
appears that the High Court of Delhi is taking steps to revise the rules.
• Order XLIX of the Supreme Court Rules, 2013 provides for “Costs”; Order L provides for
“Taxation”; the Second and Third Schedule of the SCR, 2013 provides for “Fees Payable to
Advocates”

Conduct in Court / Duty to the Court

• Haste to be avoided and calmness to be maintained at all times
• Neither the Judge nor the opposite counsel should be interrupted while speaking.
• The counsel should not assume that the Judge has prior knowledge of the case.
• One should maintain eye contact with the Judge while, presenting the best point first.
• One should shun inaccurate expressions and employ correct language while presenting their
submissions before the Court.
• Section 1 of the Bar Council of India Rules provide for Advocate’s duties to the Court.
a. An advocate should present his case with dignity and self-respect.
b. An advocate should maintain respectful attitude towards the Courts.
c. An advocate should not influence the decision of the Court by an illegal or improper
means.
d. An advocate should appear in proper dress in the Court.
e. An advocate should not wear bands or gown in public places other than Courts.
f. An advocate should not act in any matter in which he is himself pecuniarily interested.
• In D.C Saxena v. Chief Justice of India [(AIR) 1987 AP 254], the Hon’ble Supreme Court has
held that a party or counsel appearing before the Court should not use in his pleadings, the
scurrilous allegations against the judge or the Court in order to maintain the dignity and
decorum of the Court, otherwise, the reputation and dignity of the judge would disappear and
the independence of the judiciary would be badly affected.
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• Fair criticism is within the bounds of ethical behaviour, however, on attack on the judiciary
and the process by practicing lawyers, it seeks to scandalise the Court and erodes the purity of
the justice delivery system, and is more often than not bad/ unethical behaviour, and should be
avoided. In Haridas Das v. Smt. Usha Banik [AIR 2007 SC 2688], the Hon’ble Supreme Court
observed that “judge bashing” and using derogatory and contemptuous language against
Judges tend to scandalise and lower the authority of the Courts and cannot be permitted
because, for the functioning of democracy, an independent judiciary to dispense with justice
without fear and favour is paramount.
• Please also see Court on Its Own Motion v. Deepak Khosla (dated 22.02.2016) – Cont. Case
(Crl.) No. 09 of 2014. [Link - https://indiankanoon.org/doc/39879868/]

Duty to Client and the right of full disclosure for a proper adjudication
• The lawyer or and advocate has fiduciary relationship with his client. It means an advocate
protecting his client in the litigation. He protect the interest of his client in the litigation and in
the proceeding. The relationship of an advocate with his client is of contractual nature still it
involves the highest order of trust and confidence. It is essentially a relationship of faith and
fidelity.
• Section 2 of the Bar Council of India Rules provide the duties of advocate toward their
clients.
a. An advocate behaviour towards his client should be kind and polite.
b. An advocate should never manipulate a client and give proper advice to the client.
c. An advocate should try his best to get justice for his client.
d. An advocate appearing for the prosecution in a criminal trial shall so conduct the
prosecution that it does not lead to conviction of the innocent.
e. It is the duty of an advocate fearlessly to uphold the interests of his client by all the fair
and honourable means.
f. An advocate should not come close with the opposite party.
g. An advocate should not give any improper advice to his client that will affect negatively.
h. An advocate should keep accounts of the clients’ money entrusted to him.
i. Proper accounting of everything is important in the case and for the client.
j. An advocate should not disclose any weaknesses of his client and should not reveal any
material or document to the opposite party.
k. An advocate should not accept any bribe, gifts, and fees from the opposition party.
• In State of Orissa v. Nalini Kanta Muduli (AIR 2004 SC 283), the Hon’ble Supreme Court has
held that as the members of Bar are officers of the Court, that have bounden duty to assist the
Court, and not to mislead it. The Court further held that citing the judgement of account which
has been over-ruled by a larger bench of High Court and Supreme Court without disclosing the
fact that it has been over-ruled, is a matter of serious concern, and amounts to professional
misconduct.
• In Bar Council of India v. Kurapati Satya Narayana [(2003) 1 SCC 102], the Hon’ble
Supreme Court has held that delinquent advocate’s failure to pay to the client the decretal
money which he had received on behalf of his client, amounted to breach of trust and grave
professional misconduct. Bar council of India had erred, in taking the view that the delinquent
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had utilised the money for his treatment and had no intension and had no intension to take the
money. Hence, punishment of removal of his name from State Roll was imposed, which was
appropriate.
• Right of Lien: In R.D. Saxena v. Balram Prasad Sharma [AIR 2000 SC 2912], the Hon’ble
Supreme Court has held that an advocate can’t guarantee lien over the prosecution records
depended on him for his expenses. The Court has held that no expert can be given the option
to retain the returnable records identifying the work done by him with his customer’s issue on
the quality of any case for unpaid compensation. The option is that the expert) concerned can
depend on other legal solutions for such unpaid compensation.
• In New India Assurance Co. Ltd. v. A.K. Saxena [(2004) 1 SCC 117], the Hon’ble Supreme
Court has clarified that advocates have no lien over the papers of their customers.
Subsequently, the promoter can’t hold records of his customer on the ground that his charge
has not been paid by him. The inquiry concerning whether charges are payable or not to
the/advocate can’t be chosen in procedures recorded by the customer asserting the return of his
papers or documents. Be that as it may, the advocate may turn to legal solutions for unpaid
charge or compensation. It has been held that the contest concerning expenses is a list to be
chosen in a fitting continuing in the Court.
• If a lawyer knows that a client comes and confesses to the commission of an offence, is it still
ethical to appear in Court or should he or she recuse themselves, that is also a part of ethical
practice. The lawyer can then also determine how to minimise the impact of rigors of law of
sentencing even in a hopeless case.
• Privity of contract with the client v. ethics: For instance, in a case between a corporation and a
workman, if one is appearing on behalf of the Corporation and is privy to a document essential
to the case and if presented to the Court, much would turn on the document, would one as a
counsel practice fairness at the cost of losing the client?
• In another instance of a Senior Advocate and his Associate suborning the process of a judicial
proceeding by trying to influence the witnesses whilst the said Senior Advocate and his
colleague were appearing for the accused (BMW case), the Court while committing the said
lawyers for criminal contempt, also held that the overwhelming and unimpeachable evidence
beckoned and called for maintaining the purity of the stream of justice where it was sought to
be polluted by such deliberate unethical practice of the said lawyers. The Court on terms held
that there is a thin line between preventing or tending to prevent an Advocate from performing
his duties and heaping calumny upon him and that the deliberate actions of the said lawyers of
influencing the witnesses was seriously deprecated, and they were subjected to criminal
contempt jurisdiction by being disrobed of their gowns.

Duty to the Opponent

• Section 3 of Bar Council of India rules provide for the duties of an advocate to the opponent
party.
a. An advocate should not negotiations with party directly.
b. An advocate should do his best to carry out all legitimate promises made to the opposite
party.
c. An advocate should be fair to his opponent.
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d. An advocate should give due importance to his opponent Advocate and never mislead the
facts of the case to the opponent Advocate in other words, a lawyer is supposed to maintain
decorum and try not to intimidate his/ her counter-part.
• In Chandra Sekhar Soni v. Bar Council of Rajasthan & Ors. (AIR 1983 SC 1012), the
Hon’ble Supreme Court held that an advocate may change side if express consent is given by
all concerned after a full disclosure of facts. But it is not in accordance with professional
etiquette for an advocate while retaining the brief of one party to accept the brief of another
party.
• Seniors/ Senior Advocates may often be faced with a situation where they are appearing against
junior counsels, it is important to ensure that juniors new to the profession/ practice, who are
often already intimidated and nervous about their appearance before the Court, are encouraged
and to create a comfortable space for them to present their arguments.
• One should not try to intimidate or steamroll the opposing counsel.

Duty to Colleagues
• Section 4 of the Bar Council of India rules provide for the duties of an advocate’s to the
colleagues.
a. An advocate cannot appear in a case where a memo is filed by the name of the other
advocate. If he having the consent then only he can appear.
b. An advocate sign-board or name-plate should be of reasonable size.
c. An advocate has keep goodwill among his fellow advocates.
d. An advocate should not promote unauthorized practice.

Difference between ethics and professionalism

• There is a difference between ethics and professionalism. Where ethical conduct is the
theoretical ideals, professional conduct is the practical path to fulfilling those ideals. Ethics
refers to the guidelines that state the do’s and don’ts in a specific context whereas
professionalism refers to the specific traits that are expected of a professional. Ethics are
usually stated whereas professionalism is cultivated by an individual personally.

Legal ethics in the digital age

• Just like medical professionals, lawyers take an oath to behave ethically and are held to a high
standard of care when it comes to their clients and offering legal advice. Before the world went
digital, these obligations were more predictable. Take the duty of confidentiality. What did that
require pre-digitization?
1) Physically secure hard copy documents containing sensitive information.
2) Do not discuss client matters with anyone outside the legal team.
3) Conduct client and case strategy meetings face-to-face or over the phone in a private setting.
These were considered adequate measures to fulfil the duty of confidentiality before digital
communication and storage became the norm. Now, data security needs to be considered before
sending that text over an app or investing in new tech to help with information governance or
privacy initiatives. While decades have passed since digitization begun, lawyers need to be
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mindful of how ethics plays a role in their everyday operations more than ever before given
the explosion of emerging technologies in business over the past few years.
• Data security is the optimal place to start, as keeping client communications and data safe is
the cornerstone of legal ethics. The vulnerabilities and risks that are present in emerging
technologies and digital business models must be a top concern. Understanding the importance
of data security and how to implement effective practices is crucial. Data security essentially
refers to the processes, policies, and programs that operate to protect vulnerable data from
cyber-attacks. Since lawyers regularly handle sensitive information, such as personal client
identifiers and trade secrets, it is very important to implement strong security systems and
protocols. While there are laws and regulations that apply to data security and breaches, the
separate ethical duties in the legal space add another layer to compliance and can result in
disciplinary action when gone unfulfilled.
• Lawyers always have to account for their ethical obligations when dealing with emerging
technologies. Confidentiality and competence are two major duties that surface with tech
usage. Even if someone chooses not to utilize all the latest technologies, they still need to be
aware of the tools other lawyers in the same practice area are using and understand the basics
or obstacles that may surface. This trend has materialized over the year with AI usage in legal
practice. Most litigators regularly use technology assisted review (TAR) for eDiscovery
purposes or are at minimum educated about function, benefits, and risks.
• Client confidentiality, security and privacy are some considerations that surface with tech
usage. Putting confidential client information into a large language model like ChatGPT can
open the door to waive privilege and can violate the attorney-client relationship. Any
information included in a prompt will not be deleted and can be used for training purposes.
Consider these factors before using for document review, contracting, language translation,
and other use cases that involve confidential information. Client consent is also crucial when
using any new technology and lawyers need to remain informed about the benefits and risks in
order to provide competent representation.

• Benefits of Codifying Professional Ethics in Law

a. Social control tools- Under societal expectations and regulations, it will remain current with
fresh views introduced to the profession. It will be necessary to uphold the profession’s dignity
in order to keep the public’s trust in it.
b. Ethics laws forbid the government from interfering in these problems through its agencies. It
will keep governmental intervention outside if some level of uniformity is required.
c. The development of better standards of behaviour depends on ethical norms. The code also
instils a sense of disapproval towards the profession.
d. Both attorneys and regular people will benefit greatly from the existence of the code in terms
of education, correction, and appreciable worth.