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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