PROJECT WORK

ESSENTIALS OF PROFESSIONAL ETHICS IN INDIA

SUBMITTED TO: SUBMITTED BY:

Ms. Alisha Verma Jubair Bhati (L/125)

Assiatant Professor Scholar

School of Law School of Law

Raffles University Raffles University

TABLE OF CONTENTS

1. Acknowledgment
2. Research Methodology
3. Introduction
4. Nobility of Advocates
5. Conduct in Court
6. Conflict of Interests
7. Service Fees
8. Disclosure and Withdrawal
9. Social Conduct
10. Conclusion
ACKNOWLEDGMENT

I take this opportunity to express our humble gratitude and personal regards to Ms. Alisha Verma
for inspiring me and guiding us during the course of this assignment work and also for his
cooperation and guidance from time to time during the course of this assignment work on the topic.
I have prepared this assignment not only for marks but also to increase my knowledge.

Place: Neemrana -Jubair Bhati

RESEARCH METHODOLOGY

Aims and Objectives

The aim of the assignment is to present a detailed study of the “Essentials of Professional Ethics
in India” forming a concrete informative capsule for the same.

Research Plan
The researchers have followed Doctrinal method

Method of Writing
The researcher has used both a descriptive and analytical method of writing in order to understand
the issues better. The researcher has also relied on case law, to get an in depth understanding of
the subject. The method of writing followed in the course of this research project is primarily
analytical.

Sources of Data
The researcher has used secondary sources in order to obtain sufficient data for this project,
namely,

 Online Research Portals

 Articles
INTRODUCTION

In the context of the Indian law, an advocate is a subset of a lawyer. In other words, while all
advocates are lawyers, not every lawyer is an advocate. The legal practice of advocates is
established in the Advocates Act, 1961. Based on the Act, only advocates—and not any other
subset of a lawyer—are permissible to practice in courts and plead on behalf of others, but only
after obtaining the required license. An advocate transacts business under authority that is
governed and restricted by power of attorney granted by the principal. An Advocate has to be
registered with the State Bar Council as described under the Advocates Act, 1961. In Galanter and
Robinson’s (2013) views, as experts, advocates analyze client’s legal problems carefully to
provide exhaustively researched legal counsel.1 In addition, they represent clients before other
deciding bodies, including tribunals, arbitrations, and professional disciplinary committees.
Accordingly, they are expected to be very ethical.

The word ethics is a combination of two words, ethos (Greek for character) and more’s (Latin for
customs).2 The combination defines how people choose to interact with each other.
Philosophically, ethics outlines what is good for a person and for the whole society, as well as the
duties individuals owe themselves and each other. In its application in philosophy and law,
therefore, Gillers (2014) informs that ethics encompasses learning what is correct and incorrect,
and then choosing to do the correct thing.3 The most ethical or right decisions have various
alternatives and have far reaching consequences. According to Gillers (2014), such decisions may
also have mixed outcomes, including indefinite consequences.4 The most ethical decisions also
have personal consequences. In most, if not all jurisdictions, Code of Ethics for Advocates explains
the demands of professional conduct for advocates. In Hazard, Hodes, and Jarvis’s (2014)
understanding, and as will be demonstrated in the remaining section of this article, the
determination of such requirements is to warrant that advocates do not act viciously or carelessly
or in a manner distasteful to the decorum, dignity, or integrity of their occupation, or in such a
manner as would utterly affect the trust bestowed on them.5 Professional ethics encompasses an
ethical code governing the conduct of persons engaged in the practice of law as well as persons

1
Marc Glanter & Nick Robinson, India’s Grand Advocates: A Legal Elite Flourishing in The Era of Globalization,
20 INT’L J. OF LEGAL PROFESSIONAL 241-265 (2014).
2
Ethics, https://www.law.cornell.edu/wex/ethics
3
STEPHEN GILLERS, REGULATION OF LAWYERS: PROBLEM OF LAW AND ETHICS (2017).
4
Id.
5
GEOFERRY C. HAZARD, W. WILLIAM HODES, PETER R. JARVIS, LAW OF LAWYERING (2014).
engaged in the legal sector. All members of the legal profession have a paramount duty to the
court and towards the administration of justice. This duty prevail over all other duties, especially
in the circumstances where there may be a conflict of duties. It is important that legal practitioners
conduct themselves with integrity, provide proper assistance to the court, and promote public
confidence in the legal system. In carrying out their duties, they are required and expected to deal
with other members of the legal profession with courtesy and integrity.

Advocates, apart from being professionals, are also officers of the court and play a vital role in the
administration of justice.

Accordingly, the set of rules that govern their professional conduct arise out of the duties that they
owe to the court, the client, their opponents and other advocates. Rules on the professional
standards that an advocate needs to maintain are mentioned in Chapter II, Part VI of the Bar
Council of India Rules. These Rules have been provided under section 49(1)(c) of the Advocates
Act, 1961.

NOBILITY OF ADVOCATES

It is commonly said that legal profession is noble—and it is indeed true. It should be noted,
however, that the profession’s nobility is anchored in the observance and compliance of
established professional standards by the people working in the legal industry, especially lawyers
(Hazard, Hodes, & Jarvis, 2014).6 The standards are known as the ethics of the legal profession,
or simply, legal ethics. The most important scope of the legal ethics is to uphold the dignity and
order of the law profession; to establish moral and fair transactions of the advocates with their
clients, witnesses, and opponents; to maintain a spirit of friendly collaboration between the bar
and bench in the furtherance of highest standard of justice; and to demonstrate a spirit of fraternity
with bar.

Besides being professionals, advocates are court officers who play a critical part in the
administration of justice. Therefore, advocates have the twofold responsibility of keeping the
client’s’ interests confidently, while handling themselves as court officers. For these reasons,

6
Id.
advocates are expected to follow the highest standards of integrity and honor. The conduct of
advocates ought to reflect their honored position in society, which originates from the profession’s
nobility (Bagust, 2013).7 In fewer words, the services of advocates to their clients should be graced
with compassion, morality, and law. In India, generally, advocates shall adopt the standards of
professional conduct and etiquette outlined in Chapter II, Part IV of the Bar Council of India (BCI)
Rules, as a guide for transacting matters associated with law. The advocates should also be guided
by the Advocate Act, 1961.

The Advocate Act, 1961, under Section 49 (1) (c), authorizes the BCI to create rules meant to
propose the standards of professional conduct and etiquette that need to be adhered to by advocates
within the jurisdiction. Under this legal provision, BCI has successfully created many different
rules related to the code of ethics of advocates. For instance, Chapter II of Part VI of the BCI Rules
demands that practicing lawyers, who include advocates, shall have the social obligation and
dignity of the legal occupation and high standard of veracity and effective service to their clients,
as well as for other advocates, their opponents, and the public. Broadly, therefore, the
responsibility of a lawyer is to make the law functional in terms of fairness and justice as much as
possible. In that respect, a lawyer needs to act as a guard or law, as well as an advocate of a legal
system against clients. While acting and presenting their cases before courts, advocates should act
with self-respect. At all times, they should conduct themselves with dignity. Nevertheless, if there
is proper reason for grave grievance against an officer of the judiciary, the advocate has a right
and obligation to submit his or her complaint to relevant authorities.

CONDUCT IN COURT

Advocates should respect the courts always and be mindful that the dignity and reverence upheld
towards courts are critical for the existence of a free community. He/she has to keep in mind that
the dignity and respect towards the judicial officer are essential for the survival of a free
community. As outlined under BCI Rule 3, 1961, advocates are not allowed to influence courts’
decisions illegally or improperly. The illegal and improper means include bribery and
coercion. Furthermore, Rule 3 prohibits advocates from communicating directly with judges in
connection with pending cases. Advocates also have the responsibility of restraining and

7
J. Bagust, The Legal Profession and the Business of Law, SYDNEY L. REV., 35, 27 (2013).
preventing their clients, based on BCI Rule 4, 1961, from falling back to sharp or unjust practice.
Under BCI Rule 46, 1961, all advocates shall, while practicing law, be mindful that any person
who honestly needs an advocate is ennobled with legal assistance even if he or she cannot pay for
the legal services entirely or sufficiently.

Advocates should be aware of their social obligation of ensuring the oppressed and needy are
entitled to free legal assistance. However, in determining where to practice that obligation,
advocates are allowed to turn down requests to represent clients insisting on using unfair or
indecorous means. In other words, advocates shall exercise their personal judgments in such
matters, avoiding to blindly following the clients’ instructions. While corresponding and arguing
in courts, advocates are expected to use ethical and dignified language (Gillers, 2014). 8 That
language need not be un-parliamentary, and during pleadings, they should be careful to avoid
damaging the reputation of other parties scandalously on delusive grounds. The BCI Rules
prescribe how advocates should dress in court—they should be presentable all the time. However,
outside court, particularly in other public places than on ceremonial occasions and as prescribed
by the BCI and the court, advocates must not wear gowns or bands.

CONFLICT OF INTERESTS

Advocates must not act, or must stop acting further, in cases of conflict of interests between two
current or potential clients; the advocate and the client or potential client; and a current client, a
potential client or between potential clients (Folberg & Golann, 2016).9 Accordingly, advocates
must turn down the opportunity to act where they or their partners, spouses, employers, employees,
descendants, or ascendants directly hold some appointment or office, which may result in a conflict
of interests. By extension, an advocate should not welcome invitations to serve as an advocate for
clients if it is apparent the advocate or his or her associate or firm will be required to witness,
unless the advocate’s evidence is strictly formal. Advocates shall neither create an impression that
they are able to make use of any connection for the clients’ advantage. According to Folberg and
Golann (2016), advocates should also avoid acting or pleading in matters in which they have

8
Supra note 3.
9
JAY FOLBERG & DWIGHT GOLANN, LAWYER NEGOTIATION: THEORY, PRACTICE, AND LAW (2016).
financial interests.10 For example, they should avoid acting in bankruptcy litigation when they are
also creditors of the bankrupt.

Advocates should avoid appearing in or before all judicial authorities for or against any
establishment if they are members of the establishment’s management (Wilkins, Khanna, &
Trubek, D 2017).11 However; this ethical principle is inapplicable to members appearing as amicus
curiae or without a fee on behalf of the BCI, Bar Association, or Incorporated Law Society. It is
unethical for an advocate to accept invitation to acting in a matter where another advocate is
representing the client regarding the same matter, except when he or she is certain that the first
advocate has compensated lawfully on close of the brief. Withal this scenario, the second advocate
may act in pressing special circumstances where the client’s interests would otherwise be
extremely prejudiced, in which case he must notify the first advocate. In either case, the Chamber
of Advocates may find it proper to authorize the second lawyer to act (Galliott, 2016).12 However,
advocates must avoid accepting instructions being aware that a third party has conditioned that the
advocates must act.

SERVICE FEES

Advocates are obliged to accept any legal briefs in the tribunals, courts, or before any other
authority, before or in which he offers to practice. They are required to charge fees that are equal
with the fees charged by fellow advocates of the same rank at the Bar and a similar kind of the
case (Lacity, Burgess, & Willcocks, 2014).13 Under special circumstances, Shapiro (2002) rejoins,
it is justifiable for the advocates to turn down invitations to particular briefs. Advocates should
also refuse calls to stand as surety, or attest the level-headedness of sureties that their client requires
for the proceedings.14 In such cases where advocates receive instructions from other parties other
than members in the legal occupation claiming to represent their clients, advocates should
immediately and directly communicate with the clients to confirm whether that is true. If it is still

10
Id.
11
WILKINS, D. B., KHANNA, V. S., & TRUBEK, D. M. (Eds.). THE INDIAN LEGAL PROFESSION IN THE AGE OF
GLOBALIZATION: THE RISE OF THE CORPORATE LEGAL SECTOR AND ITS IMPACT ON LAWYERS AND SOCIETY.
(Cambridge University Press 2017).
12
JAI GALLIOTT, COMMERCIAL SPACE EXPLORATION: ETHICS, POLICY AND GOVERNANCE (2016).
13
MARY LACITY, ANDREW BURGESS, & LESLIE WILLCOCKS, THE RISE OF LEGAL SERVICES OUTSOURCING:
RISK AND OPPORTUNITY. A&C BLACK (2014).
14
SUSAN P. SHAPIRO, TANGLED LOYALTIES: CONFLICT OF INTEREST IN LEGAL PRACTICE (2002).
doubtful, the advocates shall communicate with the clients or do anything necessary to confirm
the third-party instructions soonest possible.

When charging for services, advocates should not set the amount depending on the triumph of the
matter pursued. Neither should they set the amount as a per centum of the property or amount
received after the victory of the matter. In other words, Code of Ethics for Advocates does not
allow lawyers to set a fee contingent on the outcome of litigation or seek to share the incomes
thereof (Curtis & Resnik, 1997).15 Clearer, advocates should not buy or deal in or stipulate for or
offer to get any interest or share in any actionable claim. However, nothing in this rule in Code of
Ethics for Advocates shall be applicable to shares, debentures, and stock of government securities,
or to any instruments that are, for the moment, by law or tradition, negotiable or to any mercenary
document of title to goods. The rule extends to forbidding an advocate from using proxies to
directly or indirectly buy or bid for any property vended in the execution of an order in any case,
prayer, or other proceeding in which he was professionally involved in any way. However, this
forbiddance does not keep advocates from tendering for or buying for their clients any property
that their clients may themselves legally tender for or buy, provided the advocates are clearly
authorized in writing by the clients.

The Code of Ethics for Advocates does not allow advocates to adjust fee payable to them by their
clients against the advocate’s’ own personal liabilities to the clients, which do not arise during the
representation. In addition, advocates should not in any way take advantage of the clients’ trust
and confidence (Kao, 2003).16 In effect, they are required to always keep accounts of the monies
clients entrust to them. The accounts in question must indicate the amounts obtained from the
clients or in the clients’ behalf. The accounts need to clearly indicate expenses and deductions with
their respective dates, including all other essential particulars. In other words, according to Barrett
and Herwitz, (2015), the bill of costs the advocate prepares should contain enough information to
identify the item and matter to which it relates and when he or she rendered the services. In
addition, the accounts should show whether the funds the advocate received from the client during
the counsel or proceedings are on account of fees or expenses. This, therefore, forbids advocates
from diverting part of the money received for expenditures as fees without clients so instructing in

15
Denise E. Curtise & Judith Resnik “Contingency Fees in Mass Torts: Access, Risk and the Provision of Legal
Services When Layers of Lawyers Work for Individuals and Collectives of Clients,” 47 DEPAUL L. REV. 425 (1997).
16
M. Kao, “Calculating Lawyers’ Fees: Theory and Reality,” 51 UCLA L. REV., 825 (2003).
writing (Barrett & Hurwitz, 2015). Code of Ethics for Advocates forbids advocates from lending
money to their clients for the purpose of any activity or legal proceedings in which clients involve
such advocates. However, no advocate can be held guilty for a violation of this rule, if in the course
of an incomplete suit, and without any agreement with the client regarding the same, the advocate
feels obliged by reason of the Court’s rule to pay the Court on the client’s account for the
continuation of the suit.

DISCLOSURE AND WITHDRAWAL

Where advocates choose to accept clients’ instructions from third-parties, they are obliged to
execute those instructions diligently, carefully, and skillfully. While doing that or anything in the
interest of clients, advocates must keep their clients’ business and affairs private (Wood Jr., Hogan,
Bhadha, & Dadrewala, 2008).17 Under normal circumstances, advocates should not withdraw from
serving clients after agreeing to serve them. They can, however, withdraw only if they have
compelling reasons and by rationally and sufficiently notifying clients. Upon withdrawal, they are
required to refund fees not yet accrued to the clients. On terminating the brief, advocates should,
in accordance with any prerogative and/or right of withholding, submit to their clients all papers
and belongings to which the clients are entitled, as well as account for all the clients’ funds then
in the advocates’ custody. Advocates should be careful not to accept briefs or appear in cases in
which they are themselves witnesses. Further, if they reasonably believe they will be required to
be witnesses at some point, they should discontinue appearing for the clients in question. However,
when retiring from such cases, they should do so respectfully and without jeopardizing their
clients’ interests.

At the beginning of their engagements and during the engagements thereof, advocates should fully
disclose to their clients their connections to other parties and their interest in or about the matter
as are likely to influence their clients ‘judgment in either engaging them or keeping the
engagement(Wood Jr., Hogan, Bhadha, & Dadrewala, 2008).18 Advocates should uphold their
clients’ interests fairly, honorably, and fearlessly. They should undertake the duty without fear of
any hostile consequences to themselves. Accordingly, advocates shall defend clients accused of a

17
Wood Jr., L. R., Hogan, E. M., Bhadha, C., & Dadrewala, J. “Trade Secret Law and Protection in India,” 20(10),
Intellectual Property & Technology Law Journal, 25 (2008).
18
Id.
crime notwithstanding the advocates’ personal opinions on the guilt of the accused. They should
always keep in mind that they need to be loyal to law, which demands that no one ought to be
chastised without compelling evidence. Advocates should not, directly or indirectly, divulge the
communications between themselves and clients, including the clients’ advice. However, if the
communications or advice breach Section 126 of the Indian Evidence Act, 1872, the advocates are
liable to divulge.

When appearing for criminal prosecution, advocates should conduct the transactions in a way that
it does not result in sentence of the innocent. Advocates should not, therefore, directly or indirectly,
violate the obligations under Section 126 of the Indian Evidence Act. For instance, advocates shall
not in any way bottle up any material or evidence that is meant to establish the innocence of the
defendants. Advocates should be careful not to agitate or prompt litigation.19 One of the ways of
avoiding this is to not act on any person’s instructions other than the clients’ or the clients
‘authorized agents. When clients make occasional sensible requests for information related to the
brief, advocates should dutifully comply. In case an advocate terminates the relationship with his
or her client, he or she should first issue sensible notification in the circumstances.

SOCIAL CONDUCT

In relation to society, whether in their individual or professional capacity, advocates should not act
towards anyone in a manner that is evidently deceitful, fraudulent, or generally conflicting the
appropriate exercise of professing as lawyers. They must not also use their positions and privileges
as advocates to unfairly take advantage of the members of the public for themselves or anyone
else. In upholding the nobility of the profession, if an advocate determines that an unqualified
individual (for instance, posing as an advocate) is representing another party, the advocate should
stop communicating with the unqualified individual, but without prejudicing his or her client’s
interests. Advocates must also relate with other advocates in good faith, frankly, courteously, and
consistent with their principal duties to their clients (Cooley, 2000).20 If this does not happen,
especially from other advocates, in Malta, Jersey, and Seychelles, advocates are obliged to report
any such serious violations to the Chamber of Advocates. If he or she finds it necessary, the

19
A.N. Veeraraghavan, “Legal Profession and the Advocates Act, 1961,” 14(2), J. Indian L. Inst., 228-262. (1972).
20
John W. Cooley, “Mediator & Advocate Ethics,” 55 DISPUTE RESOLUTION JOURNAL 73 (2000).
advocate may obtain his or her client’s permission thereto (Donlan, Marrani, Twomey, & Zammit,
2017).21

In relation to finding work, Code of Ethics for Advocates forbids advocates from soliciting work
or advertising as they wish, but as prescribed legally (Burton, 1992). 22 For instance, advocates
should not promote themselves in interviews, circulars, personal communication except through
personal relations, comments in dailies, advertisements, and photographs associated with cases in
which they have been contracted or interested (Rossi & Marti, 2015).23 Advocates should not allow
anyone to use their names or professional services to promote or start any unlicensed practice of
law. To further protect individual integrity of lawyers, an advocate should not represent a client in
any matter in which another lawyer has filed a memo for the same client. Nevertheless, with the
other advocate’s consent, the advocate can appear for the same client. If it is impossible for the
advocate to get consent of the other advocate who has filed a memo to represent a client, the
advocate can make an application to the court for permission to appear. In such application, the
advocate should provide the reason or reasons it was impossible to get such consent from the
advocate who filed the memo first. Code of Ethics for Advocates only allows the advocate to
appear following the court’s approval of the application

CONCLUSION

Professional ethics can also be stated as the duties that have to be followed by an advocate during
his profession. These are moral duties and the very basic courtesy which every person in this field
should know. An advocate who does not work with sincerity and does not follow the rules of
conduct is said to have violated the code of ethics of this profession. The fundamental aim of legal
ethics is to maintain honor and dignity of the legal profession to ensure the spirit of friendly co-
operation, honorable and fair dealing of the counsel with his clients as well as to secure the
responsibilities of the lawyers towards the society.

21
Sean P. Donlan, and David Marrani, Mathilda Twomey, David Zammit, “Legal Education and the Profession in
Three Mixed/Micro Jurisdictions: Malta, Jersey and Seychelles. In: Small States in a Legal World. Springer, Cham,
Switzerland, 191-212 (2017).
22
Gene E. Burton, Attitudes Towards Advertising by Lawyers, Doctors, CPA’s, 8 J. OF PROFESSIONAL & SERV. MKTG.
115-128 (1992).
23
Jim Rossi & Mollie Weighner, An Empirical Examination of the Iowa Bar’s Approach to Regulating Lawyer
Advertising, 77 IOWA L. REV. 179, 202 (1991).
BIBLIOGRAPHY

Articles referred

1. Marc Glanter & Nick Robinson, India’s Grand Advocates: A Legal Elite Flourishing in
The Era of Globalization, 20 INT’L J. OF LEGAL PROFESSIONAL 241-265 (2014).
2. Jim Rossi & Mollie Weighner, An Empirical Examination of the Iowa Bar’s Approach to
Regulating Lawyer Advertising, 77 IOWA L. REV. 179, 202 (1991).
3. Gene E. Burton, Attitudes Towards Advertising by Lawyers, Doctors, CPA’s, 8 J. OF

PROFESSIONAL & SERV. MKTG. 115-128 (1992).

4. Sean P. Donlan, and David Marrani, Mathilda Twomey, David Zammit, “Legal Education
and the Profession in Three Mixed/Micro Jurisdictions: Malta, Jersey and Seychelles. In:
Small States in a Legal World. Springer, Cham, Switzerland, 191-212 (2017).
5. A.N. Veeraraghavan, “Legal Profession and the Advocates Act, 1961,” 14(2), J. Indian L.
Inst., 228-262. (1972).
6. John W. Cooley, “Mediator & Advocate Ethics,” 55 DISPUTE RESOLUTION JOURNAL 73
(2000).
7. Wood Jr., L. R., Hogan, E. M., Bhadha, C., & Dadrewala, J. “Trade Secret Law
and Protection in India,” 20(10), Intellectual Property & Technology Law Journal, 25
(2008).
8. M. Kao, “Calculating Lawyers’ Fees: Theory and Reality,” 51 UCLA L. REV., 825 (2003).

9. Denise E. Curtise & Judith Resnik “Contingency Fees in Mass Torts: Access, Risk and the
Provision of Legal Services When Layers of Lawyers Work for Individuals and Collectives
of Clients,” 47 DEPAUL L. REV. 425 (1997).

10. J. Bagust, The Legal Profession and the Business of Law, SYDNEY L. REV., 35, 27 (2013).

11. Marc Glanter & Nick Robinson, India’s Grand Advocates: A Legal Elite Flourishing in
The Era of Globalization, 20 INT’L J. OF LEGAL PROFESSIONAL 241-265 (2014).

Books Referred

1. SUSAN P. SHAPIRO, TANGLED LOYALTIES: CONFLICT OF INTEREST IN LEGAL PRACTICE

(2002).
2. MARY LACITY, ANDREW BURGESS, & LESLIE WILLCOCKS, THE RISE OF LEGAL SERVICES
OUTSOURCING: RISK AND OPPORTUNITY. A&C BLACK (2014).

3. JAI GALLIOTT, COMMERCIAL SPACE EXPLORATION: ETHICS, POLICY AND GOVERNANCE

(2016).

4. WILKINS, D. B., KHANNA, V. S., & TRUBEK, D. M. (Eds.). THE INDIAN LEGAL PROFESSION
IN THE AGE OF GLOBALIZATION: THE RISE OF THE CORPORATE LEGAL SECTOR AND ITS

IMPACT ON LAWYERS AND SOCIETY. (Cambridge University Press 2017).

5. JAY FOLBERG & DWIGHT GOLANN, LAWYER NEGOTIATION: THEORY, PRACTICE, AND LAW
(2016).

6. GEOFERRY C. HAZARD, W. WILLIAM HODES, PETER R. JARVIS, LAW OF LAWYERING (2014).

7. STEPHEN GILLERS, REGULATION OF LAWYERS: PROBLEM OF LAW AND ETHICS (2017).