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Wednesday, November 7, 2012

The desirability of ethics in Legal profession


the practice of securing harmonious co-operation between the Bar & the Bench & establishing the promotion of highest standards in fair dealings with ones clients, opponent & witnesses

“With great power comes great responsibility” but the question is, how far the proverb stands to be true when compared to the legal profession?

Our Indian Constitution has prescribed in Article 22(1), -

“No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for which arrest nor shall he be denied the right to consult and to be defended by, a legal practitioner of his choice”.

Bar Council of India Rules explicitly states the Standards of Professional Conduct and Etiquettes”, where an Advocate is bound to accept any brief in the Courts or Tribunals or before any other authorities in or before which he proposes to practice at a fee consistent with his standing at the Bar and the nature of the case with an exception to special circumstances, where he may refuse to accept a particular brief. Section 49(1)(c) of The Advocates Act of 1961 empowers the Bar council of India to make rules so as to prescribe the standards of professional conduct and etiquette desired to be observed and practiced by the advocates. To sum up, legal professionals have a vital role to play on social dimension.

Every profession has its own sets of ethics, set of norms & code of conduct codified for correct approach. For instance, writing an article in a newspaper or magazine, a journalist is expected to follow basic prescribed code of ethics i.e. verification of facts before putting it into writing before publishing the same for public. Doctors, if simply put are also expected not to refuse with medical help at the time of dire emergency. No wonder why they are considered as “next to god”. If simply put, the lawyers are also bound by certain professional ethics and guidelines, in order to safeguard the interest of a common man.

Legal profession is highly dynamic and competitive. In this 21st century and expanding globalization, the profession has ceased to be referred “a traditional profession”. With increasing globalization mobility of lawyers have become frequent, and with time and pace the legal practice has also become more complex. It is seen that there is a constant conflict of approach between a conventional lawyer and street-smart lawyer, both struggling through the cutthroat competition. Practicing law with passion while maintaining integrity is seldom seen admired and valued. The public image of legal professionals is far from flattering as they are referred as “fortune seekers” instead of being someone who seeks to serve.

In the recent past, there had been an utter rage when lawyers challenged Rule 36 of the Bar Council of India Rules before the Supreme Court on the issue of blanket ban on “advertising services”. Rule 36 prohibits lawyers from advertising to get clients, either directly or indirectly and the prohibition extended to include websites and also online directories. A simple law degree would not suffice if larger public interests were to be taken into consideration.

Lawyers cannot be termed as businessmen! Mere solicitation of their legal specialization, skills and information can never be equated with profit making. With diversified areas of legal practice, nobody is expected to be master of every sphere of law.

Hence, making available of relevant information regarding their work and expertise on websites, online directories etc for the consumers cannot be termed as commercialization of legal services. Every citizen who seeks for legal service/legal help is rightly entitled to know about his/her lawyer and ones expertise, because at the end of the day a fee is charged by the lawyer for rendering legal service. “Lawyers cannot attract business through advertisements” is a conventional opinion. What about circulation of personal visiting cards by the professionals? Wouldn’t it be referred as solicitation of their legal service only to get more clients? The difference is embracement of the modern tool or medium of providing information to public by way of advertisement on websites / online-portals, directories etc instead of a usual conventional approach of distributing ones visiting cards. In the end resolution to amend Rule 36 were sorted and advocates are now allowed to provide information on websites under intimation and as approved by the Bar Council of India.

Now, if an ethical approach in legal practice is so much desired and Bar Council of India is active in maintaining the integrity of this profession by safeguarding the same from getting commercialized, then why this profession is no longer regarded as a noble one? What are the reasons for this outright decline by the public? Why people are loosing faith in lawyers and judiciary? As far as practical aspect is concerned, the legal hierarchy and its procedural complexities are the main reasons for indefinite litigation process and a lawyer is always doubted for being unethical and manipulative.

Not to mention of another issue for which people are loosing faith in this so-called noble profession. It is that when “lawyers resort to strike” for disagreement. Considering the exigencies of the profession and speedy disposal of cases in order to achieve justice is the need of an hour. What intrigues me is whether it is socially, morally & ethically acceptable to let an innocent suffer for the want of an immediate legal aid when the lawyers are on strike? This is one of the major facets of this legal profession, which should be obeyed in order to achieve harmonious relationship with the public. 

Hon’ble Supreme Court has out rightly stated that lawyers cannot resort to strike which is illegal. In the case of Ex Capt. Harish Uppal vs Union of India & Anr (2002) Hon’ble Supreme Court has held that,

“if a lawyer, holding a Vakalat of a client, abstains from attending Court due to a strike call, he shall be personally liable to pay costs which shall be addition to damages which he might have to pay his client for loss suffered by him. There will be no strikes and/or calls for boycott. It is hoped that better sense will prevail and self restraint will be exercised.” 

On such occasions Bar Councils are expected to uphold the dignity of courts in order to prevent interference in the smooth functioning of the administration of justice and also to ensure that there shall be no unprofessional or unbecoming conduct from the lawyers. Considering the responsible position and their duty, no Bar Council shall ever consider giving a “call for strike” or “call for boycott”. Considering this situation, Bar councils instead of resorting to strike and protest shall challenge the legality of provisions in court that are binding them.

After all, if the citizens are expected to be law abiding, why an exception shall be made for the legal professionals!

Law is a serious profession and is very different from other professions. It affects not only an individual but also society at large. If the importance of this profession lies in maintaining a discipline and certain code of conduct, then why wouldn't the society rightfully expect an ideal behavior from a lawyer!  

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