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--------------- Print Magazine --------------
 
  May 2016
 
  April 2016
 
 
 
 
COVER STORY

"CODE OF ETHICS" FOR ADVOCATES

Hemant Kumar, Advocate
hemantkumar.mallb@gmail.com
It is indeed surprising that till date there is no explicit “Code of Ethics” for Advocates in our country although the strength of members of this so-termed Noble Profession is multiplying with each passing year. Whatever be the reasons behind the same, formulation of such a Code brooks no delay coupled with provisions of deterrent sanctions for its non-compliance. At a time when the Civil Society is being awakened against prevalent malpractices rampant in different walks of public life, it is imperative for over 1.5 million strong legal fraternity in India to rise up to the occasion and wholeheartedly observe such a Code in letter and spirit.
 

In March 2011, the Bar Council of India (BCI) uploaded on its official website a “Draft Code of Ethics for Advocates” for seeking views/suggestions from all stakeholders. More than a year has passed, but the Code is yet to see the light of the day. It is all the more surprising that such a Code has not been put in place although it has been more than fifty years since the only legislation governing the legal professionals in our country viz. The Advocates’ Act, 1961 was enacted.

Of course, the BCI in pursuance of the powers conferred under section 49(1)(c) of the Advocates’ Act has already framed the Rules viz. “Standards of Professional Conduct and Etiquette” for the Advocates which more or less can be seen in the context of a Code of Conduct. It is altogether a different aspect how strictly these are complied and how effectively their enforcement is ensured by the Bar Councils.

If one compares the newly framed Code of Ethics vis-à-vis the existing Rules as referred to above it appears that the latest Ethical Code framed by the BCI re-writes the current Standards in a much more broad and exhaustive sense. The salient features in the Draft Code inter alia comprise the expression “Advocate” as including to the extent practicable, any lawyer or group of lawyers practicing as part of a law firm and the law firm itself and whether engaged in litigation or transactional/corporate work. The term “Brief” includes transactional as well as non-litigation work entrusted by a client and handled by a lawyer or a firm of lawyers. Similarly “Client” includes a client of the law firm of which the Advocate is a partner or associate, whether or not the Advocate handles the client’s work.

Pertinent the very first part of the Code under the heading “Ethical Standards” carries a newly introduced Section “Advocate’s Duty in Connection with the Briefs” which broadly stipulate the duties of an Advocate with respect to accepting and retaining a brief from his/her client. It has been clearly provided that any brief once accepted, takes precedence over a later brief and an Advocate shall accept only as many briefs as he/she is sure that he/she can attend to and no more and further. Although an Advocate is under an obligation to accept a brief in the courts in which he/she professes to practice at a proper professional fee, he/she may decline a Specialist brief if he/she considers himself/herself not competent to accept the same.

Then under the next Section titled “Advocate’s Duty to the Court”, in addition to present principles, it has been mandated that an Advocate must inform the court of a lie or falsification, if any, made to the court as communicated to him/her by the client during the course of proceedings. In other words, an Advocate shall never mislead the court under any circumstances.

A separate heading titled “Conflict of Interest” under the Section “Advocate’s Duty to the Client” has been provided in the Code which delineates conflict rules for advocates, banning an Advocate acting for two or more conflicted parties unless he/she has given an express consent for the same. Even thereafter, an Advocate should guard against acting for more than one client where it seems reasonably obvious that a contentious issue may arise between them or that their interests, rights and obligations will diverge as the matter progresses. Further, it has been also laid down that although an Advocate shall hold in strict confidence all information regarding affairs and intentions of his/her client but when there is an imminent danger to life of a person or apprehension of any other dangerous situation, he/she must inform the concerned authorities so as to prevent the same.

Indeed, the Code can be said to be touching fully, if not covering in entirety, the whole gamut of highest standards of ethics consistent with the dignity of the Legal Profession. The Code itself expects Advocates to resolve ethical dilemma strictly in accordance with the Code. In case of any doubt, it has been provided that an Advocate shall be at liberty to seek advance ruling from the BCI. While fully appreciating the move of the BCI in framing the Code which tends to inculcate professional and ethical standards within the legal community, the idea seems highly sceptical whether it would yield desired fruits.

After all it is a herculean, if not impossible, task so as to convince and persuade a vast community of Advocates to abide by this Ethical Code. As everyone agrees that ethics or morals indeed reside in the conscience of a professional, it cannot be concluded that mere existence of a Code would ipso facto guarantee its observance especially when there is no mention in the draft Code of the likely sanctions in the event of its breach. Without the specific provision of penalties for non-compliance, the Code is not going to act as a deterrent for corrupt, dishonest and rapacious members in the legal fraternity. One may recall that the Transparency International Report 2007, while projecting the Judiciary as the third most corrupt institution in the country, concluded that 77 per cent of corruption in the judicial system is lawyer-driven.

Of course, such a Code may not be the only remedy for this malady, but it is undoubtedly a remarkable initiative so as to kickstart the process of cleansing and refurbishing the eroding image of the Indian Bar. The BCI now ought not to delay further implementation of this Code owing to possible pressure tactics from those members of the Bar who want to elude their accountability for their vested interests.

In recent times, it has been observed that the efforts of the Union Government to pass new law(s) so as to rejuvenate our Legal Profession have hit roadblocks. In late 2010, the Union Ministry for Law and Justice Draft Bill titled “Legal Practitioners (Regulation and Maintenance of Standards in Profession, Protecting the Interest of Clients and Promoting the Rule of Law) Act, 2010” for eliciting comments met with vociferous protests by the legal fraternity. It was termed by Bar Panels as a transgression by Government into their domain and thus interference with their independence. The same wrath of legal community is evident from the ongoing nationwide agitation spearheaded by the Bar Panels over Government’s Higher Education and Research Bill, 2011 which provides for regulating legal education by a proposed National Commission.

Further, it is noteworthy to mention that till date ambiguity continues to persist whether Advocates come under the ambit of Consumer Protection Act, 1986 (CPA) or not. Although in August, 2007 a Bench of National Consumer Dispute Redressal Commission (NCDRC) reiterated that if there is any deficiency in service rendered by an advocate, complaint under the CPA is maintainable but after the Supreme Court was moved in the matter, a Bench comprising then Justices LS Panta and BS Reddy in April, 2009 granted a reprieve by staying the aforesaid order of the NCDRC during the pendency of the appeal. The matter is still pending final adjudication before the Apex Court.

The Bar has been maintaining right from the beginning that under the provisions of the Advocates’ Act, it is only the Disciplinary Committee of a Bar Council which can inquire, investigate and proceed against those advocates whose conduct is called in question. It would be appreciable if there is inclusion of certain retired and distinguished members from higher judiciary, legal academicians/intellectuals as well as other intelligentsia from different walks of civil society in these disciplinary committees. It would surely increase the faith and trust of complainants and aggrieved victims with regard to complaints against delinquent and irresponsible advocates.

Finally , it can be concluded that nevertheless the immediate framing of a comprehensive Code of Ethics for Advocates is the need of the hour but it would be effective only if an efficient and result-oriented mechanism is also put in place for its enforcement lest it would just be another exercise in futility. Although BCI is legally competent for framing such a Code, it would be better if the Code is granted statutory recognition by incorporating its due reference in the Advocates’ Act because whenever the BCI has made new Rules, the same have been challenged in the Superior Court(s) for want of requisite amendment in the Advocates’ Act. Remember, the BCI Training Rules for new Advocates and prescribing upper age limit for enrolment were quashed by the Supreme Court on this ground in the 90s. The introduction of Bar Exam in 2010 also came under judicial scrutiny. Just recently, the BCI has passed a resolution mandating practicing Advocates to renew their licenses after every five years.

Be that as it may, it is high time for initiating long-pending reforms in our legal profession. As the millennium pledge envisaged by the BCI endeavours to strive for maintenance of highest standards of professional ethics, advancement of legal profession and service to humanity, there ought not to be any further delay in kickstarting the marathon process of polishing the image of Indian Bar which unfortunately has got eroded and tarnished in recent years.

 
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