NATIONAL LAW UNIVERSITY ODISHA

PROFESSIONAL ETHICS

LEGAL DILEMMA AND UNDERSTANDING OF IMPORTANCE OF

ETHICS FOR LAWYERS

SUBMITTED TO : SUBMITTED BY:

SHARBANI ACHARYA PARUL PRIYA NAYAK

(18BA074)

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 TABLE OF CONTENTS

I. LEGAL DILEMMA ........................................................... Error! Bookmark not defined.

a) Explanation of the Situation .......................................... Error! Bookmark not defined.

b) Identification of Ethical Dilemma ................................. Error! Bookmark not defined.

c) Basis For Identification of the Ethical Dilemma ........... Error! Bookmark not defined.

d) Appropriate Course Correction ..................................... Error! Bookmark not defined.

II. UNDERSTANDING OF IMPORTANCE OF ETHICS FOR LAWYERS ........ Error!

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 LEGAL DILEMMA AND UNDERSTANDING OF IMPORTANCE OF ETHICS FOR
LAWYERS

I. LEGAL DILEMMA

a) EXPLANATION OF THE SITUATION – Complainants were entrusting all their cases to the
Respondent and had confidence in him Respondent made an offer to Complainants that
the Complainant No. 1, the wife of the Respondent and another two persons could form a
partnership for the manufacturing and sale of bricks. This offer was accepted
by the Complainant No. 1 and she paid the Rs. 50,000 to the Respondent towards her
share capital. The firm was established but no partnership deed came to the executed.
Later on, the Respondent executed a partnership deed excluding his wife and
Complainant No. 1. Complainant realized the foul play on the part of the Respondent an
approached him for the rendition of accounts. But this failed as the Respondent refused
to show accounts. Thus the Respondent has committed professional misconduct by
misusing his power as an Advocate who was enjoying confidence of the Complainants as
their Advocate and legal adviser.

b) IDENTIFICATION OF ETHICAL DILEMMA – There is breach of confidentiality as well as

misconduct towards the client. This should not be done as it breaches the rules as per laid
down in the bar council rule.

c) BASIS FOR IDENTIFICATION OF THE ETHICAL DILEMMA – Rule 17 of the Bar Council has
been breached An advocate shall not, directly or indirectly, commit a breach of the obligations
imposed by Section 126 of the Indian Evidence Act. Thus, it cannot be breached and if it does
then the advocate have to fulfilled the duty.

APPROPRIATE COURSE CORRECTION –The advocate should not breach the duty of confidentiality
towards the client. He should not misuse his authority or misconduct towards client in any aspect of
the same. This need to be kept in mind of all the advocates and need to be implemented effectively
and efficiently.

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 II. UNDERSTANDING OF IMPORTANCE OF ETHICS FOR LAWYERS

The adversarial advocate is the predominant conception of what a lawyer's role and ethics
ought to be in most common law countries. It gives a reasonably clear answer of what to do
in most situations: that is, a lawyer should advance their client's partisan interests with the
maximum vigour permitted by law.14 This approach to legal ethics is often termed an
'amoral' one because it sees general moral theory as being irrelevant to lawyers' ethics. Rather
the basis for lawyers' ethics is found in the social role that lawyers are supposed to play in the
adversarial legal system.

Adversarial advocacy combines the 'principle of partisanship' and the 'principle 0f non-
accountability'. The principle of partisanship means that the lawyer should d0 all for the client
that the client would do for themselves, if the client had the knowledge of the lawyer. This is
because the adversarial system is based on party control of the proceedings with each party
ensuring that all legitimate arguments in their own favour are put forward. The principle of
non-accountability follows from this: the lawyer is not morally responsible for either the
means or the ends of representation, provided both are lawful. If the lawyer was morally
responsible, it is said, the lawyer may not be willing to act vigorously to represent the client's
interests. This approach is most clearly justified in the case of trial lawyers, especially
criminal defence advocates who must vigorously assert the rights of the accused against the
superior power and resources of the state

By corollary, the adversarial advocate approach is least justifiable if applied to a criminal

prosecutor who represents the state against the accused. It is well accepted that prosecutors
should act as 'ministers of justice', pay elaborate attention to fairness and candour, and only
present to the court those facts and arguments they believe to be well grounded." Historically,
the adversarial advocate approach was essentially liberal, motivating lawyers to pursue client
interests primarily against the power of the state. It was dependent on a conception of the rule
of law that puts the courts between citizens and governments, and required lawyers
independent of the state to help those who want to use the law to challenge or 14 D.L. Rhode,
Legal Ethics in an Adversary System.

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However, the adversarial advocate approach has extended beyond representing client
interests against state interests to representing client interests against other private interests
and in any situation where a lawyer is necessary. Since ours is a complex legal system,
lawyers must be readily available to empower those who need to use the law to organize their
affairs, settle a dispute, defend themselves against the powers of the state or establish a right
against some private interest without pre-judging their clients or being held accountable for
what the client chooses to do (provided it is within the bounds of law). With regard to the role
of moral judgements in the course of giving advice by advocates who are operating in an
adversarial system, the following observation was made by an Australian court in McCabe v
British American Tobacco Australia Services Ltd.

Moral judgments have no place in the advice a lawyer gives to a client, according to the chief
executive partner of Clayton Utz ... Asked what role a lawyer should play if a client was
proposing to do something legal, but immoral, he said: 'I'm struggling to see where there
would be a case where that would actually arise.' He said: 'The clients are entitled obviously
to avail themselves of the full protection of the law and the lawyers are there to advance their
clients' interests subject to the constraints of their professional duties and, in particular, their
duties to the court. But if they operate within those constraints then they are acting
appropriately.' He said a lawyer might advise on the 'appropriateness' of different strategies,
but it was wrong for a lawyer to make moral judgments. 'We don't take a moral stance and it's
not up to us, as advocates for a client, to take a moral stance. Ultimately that comes to a
decision by the client, not the lawyer.' [The chief executive partner] said: 'We operate for a
range of clients and make decisions based on a business assessment. What we aspire to
ensures that we act with integrity at all times, but I don't think that involves bringing moral
judgment to who we act for and who we don't act for”. This clearly demonstrates how it is the
consensus in today’s world that while contemplating ethics of a lawyer who is operating in an
adversarial legal system, morals have absolutely no role to play while he is giving his client
any sort of legal advice.

Although proponents of the adversarial advocate approach generally state that client
advocacy should extend only as far as the law allows, the lawyer's duty to the law is usually
left vaguely defined. Indeed, taken to its logical extreme, the adversarial advocate approach
requires lawyers to resolve ambiguity in the law and their own ethical duties in favor of the
client.