Need For an Ethical Code of Rights

Introduction:

There is a point of distinction between a lawyer and an advocate, an advocate is permitted to practice in the judiciary and whose practice is covered under the Advocates Act of 1961. An advocate is someone who represents his client in the court of law or other judicial bodies and hence, is as important as a judge or adjudicator of any proceedings. It is a famous saying that law is a noble profession thus, there is a need for advocates to act more nobly and professionally and for this purpose, there needs to exist a Code of Ethics for the advocates to guide them in the exercise or practice of their profession.

The doctrine of Uberrima fides governs the relationship of a client and an advocate, which translates to “utmost good faith” and the violation of this doctrine would not only lead to distrust in the legal profession itself but also be detrimental to the administration of justice. Therefore, norms that not only govern the relationship and conduct between advocate and court are necessary but also between an advocate and the judiciary. The reason that there needs to be an ethical code for the conduct of the legal profession is that the relationship between lawyer and client is nuanced and has many aspects.

Brief History

The first attempt made in India to providing of legal education and regulation of the legal profession was done by the Chamier Committee in 1921. The committee recommendation although mainly governed the relationship between advocates and the High courts and wasn’t exhaustive enough. Soon after in 1926, the Indian Bar Councils Act was introduced on the recommendation of the Chamier Committee however it too was limited as it only applied to the High courts, the primary feature was the constitution of a 15 member Bar Council although their functions were to be only advisory in nature. In 1961 the government of India passed the Advocates Act which repealed the 1926 Act. The act aimed to regulate the entirety of the legal profession in the territory of India. The main features of this act were:

1. It laid down Conduct and etiquette for the advocates. 
2. It protected the interests and the rights of advocates.
3. It regulated and imparted legal education.
4. It made legal aid accessible for the poor.

The Advocates Act, 1961 Currently governs the Legal Profession and education in India.

International Perspective

The UN’s Basic Principles on the Role of Lawyers states: “…an independent legal profession is integral to upholding the rule of law. Whereas adequate protection of human rights and fundamental freedoms to which all persons are entitled, be they economic, social and cultural, or civil and political, requires that all persons have effective access to legal services provided by an independent legal profession.” The objective of this charter was to provide the member states to create a framework of ethics and norms which would govern the Legal profession in their respective judiciaries. Let’s look how some of the jurisdiction has regulated the legal profession in their country.

In the United States legal profession is regulated by an individual state bar association that observes compliance of an advocate’s conduct to their rules and regulation and holds disciplinary hearings in case those rules are violated. The advocates need a bar license to practice in the respective states and subject themselves to the rules of the bar. The individual bars are free to write their own rules and regulation with the consultation of their state Supreme Courts. The lawyers who fail to uphold the ideal of their bars may be reprimanded and in the worst-case disbarred from practice in that state.

In England and Wales, the legal profession is regulated by the Legal Services Act of 2007 under which only those individuals and companies allowed by or exempted from the obligation to be authorized by the Authorized Regulator (AR) are entitled to participate in reserved legal practices. Once they have been authorized to practice by the AR they automatically become subjects of its regulation. There are also many unregulated practitioners of legal professions in England and wales but they are limited to few areas of law such as family, wills, IP, and employment.

In Germany, the legal profession is regulated by a federal act called the Bundesrechtsanwaltsordnung which is supplemented by a rulebook of practice called the Berufsordnung für Rechtsanwälte which was created by the Bar association of Germany. In comparison to other jurisdictions, the german law takes a laissez-faire approach to the regulation of the legal profession, in some cases even allowing non-legal parties to represent themselves in the court and German law imposes no restriction on a self-employed legal practitioner.

Present Scenario in India

Currently, the Legal profession in India is regulated by the Bar Council of India which was established under the Advocates Act, 1961. Section 49 of the Advocates Act, 1961 grants rulemaking powers to the BCI, who can make rules which can be published in the official gazette. Currently, the conduct and ethics of legal practitioners are regulated by the Bar Council of India Rules. 

It first highlights how the advocate should conduct himself with respect to the judiciary, rules such as an advocate should not communicate with a judge in a private capacity, should not use any illegal means in litigation, proper dress code, refuse to appear in front of a bench if there is a conflict of interest of either the advocate of the judges and should not appear in matters in which he is financially invested are important to protect the integrity of the judicial system. 

The Rules also highlights the advocates conduct towards the client, rules such as ubirrama fides, that he should not appear when he himself is a witness, that he should fully disclose any information to his client, and uphold his interest, that he should not suppress material evidence, should not instigate litigation, etc.

What is an ethical code for the advocates?

An ethical code is a rule or regulation which lays down the norms of how an Advocate should act in relation to both the court and their clients. A codification of norms makes it easier for the advocates to adhere to the required etiquettes and behavior that a person in a professional occupation should. For example, the conduct of doctors is regulated by the Indian Medical Councils Act, 1956 and Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002. Similarly, the Bar Council of India prescribes the norms and standards by which an advocate registered in the Bar ought to conduct himself in relation to the court and the client. The bar council also holds a disciplinary hearing in case an advocate has violated its code. Chapter II of part VI of the Rules framed by the Bar Council of India deals with the standards of professional Conduct and Etiquette.

Why there is a need for a Code of Ethics for the advocates?

Firstly, because Advocates are essential to the normal functioning of the judiciary, and the rule of law itself is based on the principles of natural justice. If Advocates do not adhere to these ethical principles and encourage them, then the law will fall under contempt and people will resort to alternative means of conflict resolution even resolving to vigilante justice. With a surge of public discontent, the Rule of Law will break down.

Second, advocates are considered specialists and professionals. This theory conveys the idea that social duty and ethical concerns are intrinsic aspects of the legal profession. It has been said that the most important quality of a profession is its mutual prestige and the trust it inspires. As stated by Justice Kirby in the Australian High Court

“The challenge before the legal profession….is to resolve the basic paradoxes which it faces. To reorganize itself in such a way as to provide more effective, real, and affordable access to legal advice and representation by ordinary citizens. To preserve and where necessary, to defend the best of the old rules requiring honesty, fidelity loyalty, diligence, competence and dispassion in the service of clients, above mere self-interest and specifically above commercial self-advantage.”[1]

Third, that advocates who are admitted as judicial agents have a responsibility to represent the court and the administration of justice and thus need to act most ethically and professionally that befits the reputation of the judiciary that they represent. The integrity of the judicial system is dependant upon the collective actions of its components and if advocates who form a component of the judiciary were to act unethically then the integrity of the entire judiciary will be compromised.

And ultimately, advocacy is a privileged profession, as only advocates can take up others’ causes and initiate them in the courts for the administration of justice. Thus there is a need for them to act as ethically as possible

Conclusion

As mentioned earlier the legal profession has been described as a noble profession and since the administration of justice is so dependent upon the relationship between advocate and client, and advocate and the court that ethical conduct of the participant becomes imperative. Any unorthodox behavior of advocates doesn’t only bring disrepute for the entire legal fraternity but also brings into contempt the integrity of the entire judicial system. Hence, a code of ethics enforced through legislation is important in maintaining the purity and integrity of the judicial system. Statutory bodies like the Bar council must overwatch the compliance and adherence to the ethics of the profession and if there is ever such violation of ethics must take proper punitive measures against the violator. Values and practices must be taught to the young and upcoming lawyers if we are to protect the integrity of our judiciary.

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References:

[1] Michael Kirby, Legal Professional Ethics in Times of Change 2 ALRCRefJl 50, 72(1998).

Other Sources:

1. Indian Bar Councils Act, 1926.
2. The Advocates Act, 1961
3. Peter Macfarlane, The Importance Of Ethics And The Application Of Ethical Principles To The Legal Profession, Journal of South Pacific Law ( June 6, 2002), http://www.paclii.org/journals/fJSPL/vol06/8.shtml 
4. Michael Kirby, Legal Professional Ethics in Times of Change 2 ALRCRefJl 50, 72(1998).
5. Jochen Lehmann, Regulation of the legal profession in Germany, Thomson Reuters ( Nov 1, 2018) https://uk.practicallaw.thomsonreuters.com/2-638-8145?transitionType=Default&contextData=(sc.Default)&firstPage=true
6. Suzanne Rab, Regulation of the legal profession in the UK (England and Wales), Thomson Reuters ( Nov 1, 2019) https://uk.practicallaw.thomsonreuters.com/7-633-7078?transitionType=Default&contextData=(sc.Default)&firstPage=true