ETHICAL VALUES OF AN ADVOCATE FROM HIS SOCIAL

BEHAVIOUR

F.L. 23 - PROFESSIONAL ETHICS AND PROFESSIONAL

ACCOUNTING SYSTEM

VISAKH H

(Reg. No: - 71180)

MOUNT ZION LAW COLLEGE

KADAMMANITTA
JULY 2020
 Certificate
This is certifying that this dissertation Titled “ETHICAL VALUES OF AN ADVOCATE
FROM HIS SOCIAL BEHAVIOUR” is a bonafide work done by VISAKH H (Reg No: 71180)
for F.L. 23 – Professional Ethics and Professional Accounting System, VII Semester B.Com.
LL.B. (Hons.) (2016 - 2021) batch, carried out under my supervision and guidance.

Kadammanitta

July, 2020

Signature: Signature:

(Principal) (Faculty-in-charge)
 ACKNOWLEDGMENT

Dissertation submitted partial fulfillment of the requirements for F.L.23- Professional Ethics And
Professional Accounting System, VII Semester B.Com. LL.B. (Hons.) (2016-2021) batch of the
Mahatma Gandhi University.

VISAKH H

(Reg. No: - 71180)

MOUNT ZION LAW COLLEGE

KADAMMANITTA

JULY 2020
 CONTENTS

Page No.

PREFACE

ABBREVIATIONS

TABLE OF CASES

INTRODUCTION 1

CHAPTER 1: NATURE AND CHARACTERISTICS OF ETHICS 2-8

CHAPTER 2: LEGAL ETHICS 9-18

CHAPTER 3: CODE OF CONDUCT {RIGHT OF LAWYERS} 19-28

CHAPTER 4: PROFESSIONAL MISCONDUCT 29-34

CHAPTER 5: PRIVILEGES AND RESPONSIBILITIES OF

LAWYERS 35-53
CHAPTER 6: DIMENSIONS OF LEGAL PROFESSION:
A CALL TOWARDS SOCIAL RESPONSIBILITIES 54-58

CONCLUSION 59-64

BIBLIOGRAPHY 65-66
 PREFACE

Justice P.N. Sapru has stated that, „justification for the existence to the counsel is that each side
to the controversy should be in a position to present its case before an impartial tribunal in the best
and most effective manner possible. The fundamentals of the legal ethics, may be defined as code
of conduct written or unwritten for regulating the behavior of a practicing lawyer towards himself,
his client his adversary in law and towards the court. It is widely acknowledged that the legal
profession, as it exists in India today, is a product of the legal system which came into being with
the advent of British Rule in India. The structure and practice milieu of legal practice in India has
been radically altered in the last decade or so. In this context, the legal academy and the Bar must
attempt to develop new approaches to teaching, learning and practicing professional responsibility
which will require a counter-socialization of sorts that priorities social context, moral reasoning,
care and connection, intuition and motivation. The system of peer group adjudication by the BCI
has proved to be ineffective and has failed to enforce the standards of professional conduct for
lawyers. Over the years, the BCI has served to protect the interests of advocates and has not upheld
the integrity of the legal profession, as was originally intended. The adherence of existing codes
of professional ethics to a set of neutral rules may lead to indifference towards ethical
considerations and reduce ethics to risk analysis and management instead of development of moral
character and ethical behavior. Instead, a caring, contextual code will address the ethical issues
involved in client selection and provide guidance on how these issues will play out in that particular
situation. It will expose law students to the ethical dilemmas and constraints that arise in various
practice areas and help them in making ethically informed career choices. In the changing world
of legal practice, care thinking may positively impact the nature of legal representation and
significantly reform the lawyer-client relationship. The ethic of care offers interesting alternatives
to current lawyering models by seeking to temper the lawyer‟s zeal while preserving the core ideal
of a lawyer‟s role as his/her client‟s advocate but care thinking risks devaluation if it does not run
as a thread within the law school curriculum and remains limited to a few isolated courses.
However, we must remain mindful about placing the burden of care disproportionately on certain
groups of lawyers, for example, women, or blurring the thin line between care and charity when
paternalism trumps empathy.
I would like to express my heartfelt gratitude to Dr. A Mohan Ram and to my guide and
supervisor Mr. Padmajan S, Assistant Professor, Mount Zion Law College, Kadammanitta for his
valuable supervision and helpful suggestions in the completion of my work, without which I
couldn‟t have completed this work. Throughout the work with practical approach to this issue
involved and the finalization of the study. I am also grateful especially to Dr. A Mohan Ram,
Principal, Mount Zion Law College, Kadammanitta, for his valuable suggestions and corrections
of the draft of my work. I must also express my thanks to the Librarian, Deputy Librarian and
Assistant Librarian of Mount Zion Law College, Kadammanitta. Last but not the least, I take this
opportunity to express my gratitude and credit for this work to my family, who have together
relentlessly supported and stood by me. Finally, without blessings of God Almighty, this work
would have never been completed. I express my gratitude to one and all.
 LIST OF ABBREVIATION

1. UOI- Union of India

2. UNUDHR-The United Nations Universal Declaration Of Human Rights

3. UNCRC- United Nations Convention on the Rights of the Child

4. TPA -Transfer of Property Act

5. Supra -Above

6. Sec. Section SMHA State Mental Health Authority

7. SCC- Supreme Court Cases

8. SC -Supreme Court

9. PWD- Persons with Disability

10. ICA -Indian Contract Act

11. Ibid- Ibidem (in the same place)

12. HR-Human Rights

13. HC-High Court

14. Fr -Fundamental Rights

15. Ed. -Edition

16. ECHR -European Convention on Human Rights

17. Cri.L.J.- Criminal Law Journal

18. Cr.P.C. -Criminal Procedure Code

19. CEHAT -Centre of Enquiry into Health and Allied Themes

20. Art.- Article

21. All. -Allahabad

22. ALJ- Aligarh Law Journal

23. ALI-American Law Institute Test

24. AIR -All India Reporter

 TABLE OF CASES

1. An Advocate v. Bar Council Of India and Anr. AIR 1989 SC 245.

2. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802
3. Bar Council of Maharashtra v. M. V. Dabholkar. AIR 1975 SC 2092 at 2104
4. Dr. Hardit Singh v. Bhagat, AIR 1964 Punj. 277
5. Emperor v. Rajani Kanta Bose and others, ILR 49 Cal 804
6. Haniraj L. Chulani v. Bar Council of Maharashtra and Goa, AIR 1976 SC 1708
7. Harbans Lai Arora v. Divisional Supdt. Central Railways, AIR 1960 SC 164
8. Husainara Khatoon v. Home Secretary Bihar, AIR 1979 SC 1360
9. Jaymal Thakore v. Gujarat State Charity Commissioner, Ahmedabad, AIR 2001 Guj.270
10. Justice Mukherjee quoted by K. Gururaja Chari, Advocacy and Professional Ethics 125
(2013)
11. M. C. Mehta v. State of Tamil Nadu, (1991) 1 SCC 293
12. M. C. Mehta v. Union of India, AIR 1988 SC 1037
13. Mana Mohamed Ismail vs V. Balarathnam, AIR 1965 Kant 28.
14. Mani Lal vs Matchless Industries Of India.
15. N.G. Dastane v. Shrikant S. Shind AIR 2001 SC 2028.
16. New India Insurance Company Ltd. v. A. K. Saxena 2003 (9) SCALE 531
17. Noratanman Courasia v. M. R. Murali (2004) 5 SCC 689
18. P. K. Gandhi, Social Action Through Law (1985)
19. Parmanand Sharma vs Bar Council Of Rajasthan And Anr, AIR 1999 Raj 171.
20. Peoples' Union of Democratic Rights v. Union of India, AIR 1982 SC 147
21. Peoples Union of Democratic Rights v. Union of India, AIR 1984 SC 802
22. R. D. Saxena v. Balram Prasad Sharma, (2000) 7 se c 264 at 280
23. Radha Binod Pal, "Professional Ethics," AIR 1961 (Journal Section), p. 65
24. S. P. Gupta V. Union of India, AIR 1981 (Supp.) SC 87
25. S.P. Gupta V. Union of India, AIR 1981 (Supp) SC 87
26. Sambhu Ram Yadav v. Hanuman Das Khatry AIR 2001 SC 2509.
27. Shri Santosh Kumar Sur vs Union Of India & Ors (2006) 6 SCC 794.
28. State of Punjab v Ram Singh 1992 SCR (3) 634
29. Subhashini K. Reddy v. Bangalore Metropolitan Transport Corporation, AIR 1999 Kant.
58
30. T. Venkata v. The Hon'ble High Court of Mysore, AIR 1973 Mys. 127
31. Vincent Panikulagora v. Union of India, (1987) 2 SCC 165
 INTRODUCTION
Professional misconduct is any action which is outside the bounds of what is considered tolerable
or worthy of its membership by the governing body of a profession. Advocacy is a noble profession
because of which advocates are considered to be most responsible, privileged and knowledgeable
person of the society and their acts are the role model for the society. Members belonging to this
profession should not encourage deceitfulness and corruption, but they have to strive to secure
justice to their clients This written article would deal with the problems prevalent in the society as
how a legal professional deficient in rendering quality sound services to its clients. What are the
liabilities of a legal professional owe to its clients and to what extent a legal professional can be
held liable. An advocate‟s act can also be tortuously liable for his professional negligence while
rendering services. And how can the acts of a lawyer towards the Court can be amount to
malpractice. This paper will attempt to understand the acts of an Advocate which may amount to
malpractice. To deal with this concept we will be studying the activities of advocates and how
their acts can be termed as Professional Misconduct under various statues, the fiduciary
relationship that an advocate shares with his clients and how breach of such relation would amount
to malpractice. Therefore to understand the extent of an advocate act and by proposing suggestions
to eliminate the malpractice prevailing in the society by the legal professionals.

Today you enter upon the practice of an age-old profession, a profession dedicated to the service
of your God, your country and your fellowman. Those of us who administer the law know fully
well that the rules of law that stand the test of the time are those that are in accord with the ideals
of our religions. Advocacy, it is a noble profession and the most accountability is upon an advocate.
In a noble profession like Advocacy advocates are the most privileged and erudite persons in the
society and their acts are role model for the societal benefits, which are to be regulated.
Professional Misconducts, which are considered outside the bounds, what are acceptable or worthy
of its membership by the governing body of a profession. Malpractice, behaviour of professional
misconduct which is referred as a disgrace or dishonest conduct thus advocates must despise from
indulging themselves into such activities because advocacy is a noble profession for the benefits
of society.

1
 CHAPTER- 1
NATURE AND CHARACTERISTICS OF ETHICS
Ethics is concerned with action, it has sometimes been characterized as a practical science; but that
is, on the whole, misleading. There are some scientific studies that may rightly be characterized as
practical, such as medicine, engineering or architecture. Such studies are directed onwards the
realization of a definite result. The study of moral culture might be classed with these; but it would
seem to be a part of the general study of education. Ethics, as a theoretical study, differs from this,
just as logic and esthetics do. Logic deals with general conditions involved in the discovery and
apprehension of truth; and esthetics deals with the general conditions involved in the Tightness and
goodness of conduct. Throughout history, humanity has struggled with those aspects of our values
and beliefs that concern the morality of our conduct - what is right and wrong, good and bad,
acceptable and unacceptable behavior. Questions of personal accountability and public obligation
in all spheres of life are vastly more complex today than they were just few years ago. As values
change and society attempts to cope with a myriad of problems, many prompted by development
in science and technology, new ethical issues emerge and old ethical issues must be revisited. The
profession of law is the only profession which is generally described as a learned and noble
profession by the world for several centuries. It is a learned profession par excellence. No other
profession touches human life at so many points than law. The people engaged in this profession
while performing their professional duties not only earn their livelihood, but also influence the
lives and conditions of life of many. A lawyer while lawyering, an advocate while doing advocacy
is no doubt making his own fortune, but in addition to that his art of lawyering, his techniques of
advocacy, his skills of argument, his scientific treatment to the law and the facts in hand cast
definite shadows on the conditions in society, lawyers make the most significant contribution to
the final outcome of justice system that is the court verdicts and judgment which ultimately shape
the future path of our society. The role of the lawyer is very central to the very vital organ of the
state that is judiciary. On the stage of administration of justice, his contribution is of immense
importance. The wheels of system of administration of justice are jammed when he is absent from
the stage. Law is not a mere profession to keep the pot boiling but it is a noble profession. Though
it is generally believed that lawyers are people who thrive on feuds, it cannot be said that the legal
profession is anti-social. Legal profession is closely dovetailed with the ever constant changing
society and the profession of the lawyer can be elevated into a sublime of

2
vocation if he becomes the real saviour to ameliorate the suffering of the people.1 There have been
many shrewd, able, eminent, upright and conscientious advocates, but it can hardly be said that
there are settled traditions to inspire the young man who is at the threshold of profession. Yet
young men are choosing a most ancient and exalted profession of the world, a profession which is
to have a s its members lawyers whom Mr. Justice Maugham (later the Lord Chancellor) described
as the 'custodian of civilization' than which there can be no higher aim and no nobler duty - a
profession demanding the cardinal virtues in its members which would make the order "as one of
the means most proper to maintain the propriety, delicacy, disinterestedness, desire of conciliation,
move of truth and justice and enlightened regard for the weak and the oppressed."2 The lawyers a
s the social thinker have to play a special role for the solidarity, unity, integrity, welfare and good
of the society. A profession which is performing such vital service to the society must also be
expected to conduct itself to come up to the expectations of the society. His professional conduct
must be above board. A deviance on the part of the individual members of the legal profession ha
s a bearing on the interest, lives and conditions of the life of the members of the society. Therefore,
the society ha s an interest in the manner of regulation of the deviations, deviances and
delinquencies in the profession conduct of this profession. To meet this interest, the standards of
profession conduct called the legal ethics serve as instruments to regulate the professional conduct.
Law's nobility as a profession lasts only so long as the members maintain their commitment to
integrity and service to the community. *Indeed the monopoly conferred on the legal profession
by Parliament is coupled with a responsibility towards the people, especially the poor. Viewed
from this angle, every delinquent who deceives his common client, deserves to be frowned upon.
The profession of lawyers ordains a high level of ethics as much as in the means as in the ends.
Justice cannot be attained without the stream being pellucid throughout its course and this is of
great public concern, not merely profession care, the standards of professional conduct, that is the
legal ethics not only serve the interest of the society but they also help the legal profession to
maintain the honour and dignity of the profession as well as the system of administration of justice
prevailing in the society. Further, to secure a spirit of friendly cooperation between the bench and
the Bar in promotion of highest standards of justice. It also establish honourable and fair dealings

1
C. Rama Swamy Sarma, Lawyer's Role in Present Society, Andhra Law Times 1987 (Journal Section), p. 14.
2
Radha Binod Pal, "Professional Ethics," AIR 1961 (Journal Section), p. 65

3
of the counsel with the client, opponent and witnesses. Above all the lawyers discharge their
responsibilities to community at large.

A. THE ORIGIN OF ETHICS

The word 'ethics' is derived from the Greek word 'Ethos' meaning custom or a habitual mode of
conduct. Ethics is essentially a moral science. It is the branch of philosophy which is only
concerned with human character and conduct.3 Though generally 'ethics; is treated to be the same
as moral philosophy, yet it is convenient to distinguish between 'ethics' which refers to systematic
general science of right and wrong conduct, and morals or morality which refers to the actual
patterns of conduct and direct working rules of moral action. Generally speaking, ethics can be
said to be the study of huma n actions in respect of they being right or wrong actions of individuals
and social groups with which we are now concerned is the one belonging to the profession of law.
Different people have evolved theories of what constitutes 'ethics'. In everyone of them, the basic
question has always been what will be conducive to the welfare and good of all, in other words,
the greatest common good, whether it is with reference to particular group, community or society
as a whole. When the mind gets broadened and the notions of group get expanded distinctions
based on a particular social group, community or society disappears, and we are ultimately left
with the test of what is good for the humanity as a whole."4 In matters of ethics, several questions
and aspects are involved. But the broad and basic question with which all theories of ethics are
concerned, is," what ought men to aim at; and how ought they to live" as distinguished from what
men's aims and purposes. The answer to the question, what are men's actual aims and purposes,
may not be complimentary and flattering to many of us. But the answer to the question, "what
ought men to aim at; how ought they to live" will always be enlightening an elevating. Unless we
have our eyes fixed on, "what ought men to aim at, and how ought they to live," progress will be
impossible, because we lose sight of the distinction between 'what is' and 'what ought to be'. 'What
ought to be' has always been the noble aim of every person with reference to his or her activity,
while 'what is' is the result of a compromise, which a person ha s convinced himself to be inevitable
in the practical humdrum world. In order to be slip further, it is always desirable to have the goal
before one's mind and view, as an ideal so that even when he falters, fails or falls down, he will be

3
Sunil Deshta and Kiran Deshta, Practical Advocacy of Law 109 (2006); see also Justice Ismail, "Profession Ethics
and Etiquette," The Law Weekly, 17 June , 1978, Vol. XCI (91), p. 77
4
Ibid.

4
able to get u p with a renewed determination to walk towards that ideal. Ethics is present in every
human society. Ethics are born in human civilization since the beginning. Every religion preaches
morals and ethics to every person to that entire society. Ethics have no statutory force. It is
something that maintains the moral integrity of a community. Ethics embodies a set of norms and
principles which govern the moral conduct of a member of the community. It is essential because
human nature tends to choose the easier path that often does not lead to good.5 Ethical norms are
therefore meant to chastise and reform a person and not to suppress desire. There is need to
chastisement and straightening of the crooked will so as to enable it to cooperate with reason.
Unlike other sciences which are more on the theoretical since, ethics is highly practical in its
approach. It seeks to guide man's action by indicating which is good and which is bad or what is
right and what is wrong. From this point of view, ethics is the noblest science. When we speak of
ethics we are at once led to think or four key concept which are truly the cornerstones of ethical
evaluation, they are 'good' and its opposite 'bad, 'right' and its opposite 'wrong'. If we are to remove
these concept from dictionary of ethics then we would have altogether destroyed ethics. There is
a need to examine what does the term 'good' imply. A thing is generally said to be good when it is
valuable for some end.6 Not to misunderstand this term, one should remember that there are three
divisions of 'good', namely metaphysical good - the goodness of a thing or action in its very self;
physical good - something that is related to conduciveness and suitability of a thing or the
desirability of a thing; and lastly moral good - which applies only to acts of rational beings. One
can term it a s real good or apparent good.7 Real good is that which is seen or judged as good for
a thing and is really so. Apparent good is that which seems to be good but is actually not good for
a being. Similarly, the term 'right' which comes from the Latin root rectus, meaning straight or
according to rule 'right' applies only to conduct and not to things. The term 'right' ha s been
generally accepted as a better term in determining the ethical nature of an action rather than the
term 'good'. An action is right if it conforms to the norms of morality. For example, "I speak the
truth", is a right action because it is conformity with the ethical law which says "speak the truth."
These concepts of 'good' and 'bad', 'right' and 'wrong' are most universal concepts. They are present
in every society and are inherent in every man. A person does not need to go to school to learn

5
G. Spiller, Ethical Discipline in Encyclopedia of Religion and Ethics 405 (1937), Vol.V
6
J. Mackenzie, A Manual of Ethics 2 (1980).
7
Ibid.

5
from them. These are termed as the voice of conscience which ha s endowed on human being by
God. However, ethical evaluation of conduct varies from place to place. Certain types of conduct
may be considered morally acceptable in one society while in other societies they may be morally
prohibited.

Etymologically, the word 'ethics' denotes a location, a place where people lived together. With the
passage of time, the word has acquired other meanings, including custom, temperament, character,
and a way of thinking. In ancient philosophy it possessed a terminological meaning denoting the
nature or permanent character of a physical or social phenomenon. The history of the word 'ethics'
is similar in the Latin of Ancient Rome. The Latin word for ethos is, roughly, mos, which can be
translated as mores, custom, character, behavior; property inner nature; law, regulation, fashion,
style of clothing. Relying on the Greek precedent and making a direct reference to Aristotle, Cicero
formed the adjective moralis (that which pertains to character, customs), and later, in the 4*^
century A.D., Romans coined the term moralitas. Etymologically, the Greek ethica, and the Latin
moralitas are the same; they did not evolve inside popular consciousness but are artificial terms
coined to give a name to a certain field of research. The two terms, ethics and morality, gained
currency throughout Europe, diverging in meaning a s cultural development progressed. The term
ethics has retained its original meaning still denotes a scientific discipline, while morality is the
phenomenon study by this discipline - i.e. its subject - matter. Ethics is the discipline which studies
morality. This definition outlines the field of research into morality but does not pinpoint its
subject. The latter is liable to historical change; it conveys a certain interpretation of morality and
registers a qualitative stage in cognition of its essence.

In nutshell, ethics are morals. It is the science of morals and duties. There are the first stage in a
society and are seen in every kind of human life. In other words, these are inherent in every man.
Generally these are found in religions. Ethics are a bundle of habits and morals and are necessary
to control and regulate every huma n being. If ethics are violated, there can be no punishment.
There shall be no external enquiry, but only internal regret and confession. The person, who
violates ethics, cannot be expelled from the society or profession. Ethics have their source from
the tradition, culture and heritage. These guard the society at large and guide the person
individually.

6
 B. NATURE OF ETHICS

Ethics is far from being purely a natural science which seeks only to explain things as they are,
their nature and essence but it is a normative or critical science.8 It is concerned not only with
things and actions but our judgments upon them as well. Ethics deals with huma n acts. Human
acts are done voluntarily with knowledge and free will. Ethics is not a practical science unlike
other sciences. Sciences of medicine and engineering perfect the practitioner. The student who
studies them becomes an expert in those fields. On the other hand, the study of ethics does not
necessarily perfect a person. The person who knows all about ethics need not be a saint. Knowledge
of ethics does not make him or her, a better person, lo Even though ethics may not make better
people yet we should not be forgetful of the valuable service it renders to humanity. Ethics is
essentially concerned with "Right and wrong". How do we judge whether an action is right or
wrong? This has been a perplexing question for mankind. Different groups of people have different
approaches of criteria in judging the moral quality of an action.

Ethics is of vital necessity to people. It regulates a person's life, his or her speech and conduct. It
is our moral behavior which makes us either acceptable to society or rejected by it. In our day to
day life we perform many actions and it is necessary that we should be guided by sound ethical
norms. The fact that ethics is concerned with an end or ideal or standard serves at once to
distinguish it from most of special sciences. Most of the sciences are concerned with certain
uniformities of our experience with the ways in which certain classes of objects (such as rocks or
plants) are found to exist, or with the ways in which certain classes of events (such as the
phenomena or sound or electricity) are found to occur. Such sciences have no direct reference to
any to end that is to be achieved or to any ideal by reference to which the facts are judged. The
knowledge which they communicate may, indeed, be useful for certain purposes. The study of
ethics is also distinguished from the natural sciences, inasmuch as it has a direct reference to an
end that men desire to attain, or a type of which they wish to approximate. It is not by any means
that only scientific study, however, which has such a reference. There are at least two other
subjects, commonly recognized as scientific, that are in a similar position - viz. logic and esthetics.
These are concerned, respectively, with the general conditions involved in the pursuit of truth and
in the creation and appreciation of beauty, just a s ethics is concerned with what is good and right

8
J. H. Muirhead, "Ethics" in Encyclopaedia of Religion and Ethics 414 (1974), Vol. 11

7
in human purposes and actions. Such studies are sometimes said to be normative. They are
concerned with standards of value, rather than with the simple apprehension and analysis of what
exists or occurs. It may be pertinent to note that there appear to be three supreme values in our
human experience - truth, beauty and goodness. They correspond somewhat closely to the three
main aspects of our conscious life - knowing, feeling and acting. We learn by degrees to know
what is true, to appreciate what is beautiful and to do what is right; and logic, esthetics and ethics
deal, as thoroughly as they can with the general conditions that are involved in those three modes
of experience.

8
 CHAPTER-2
LEGAL ETHICS
The expression 'legal ethics' is made up of noun 'ethics' qualified by the adjective 'legal'. Ethics is
broadly a sense of duty. In other words, it is the sum of aggregate of the rules of right living. The
term 'legal' means 'according to law'. 'Legal ethics' is that branch of moral science which lays down
certain duties for observance which an advocate owes to the society; to the court; to the profession;
to his opponent; to his clients and to himself. Legal ethics has their source from tradition. On
regular practice after some generations, they become usages, from usages to customs, and from
customs to statutory rules, i.e. etiquette. Dean John H. Wigmore, one of America's great legal
writers, once said, "this living spirit of the profession, which limits it yet uplifts it as a livelihood,
has been customarily known by the vague term 'legal ethics' . . . An apprentice must hope and
expect to make full acquaintance with this body of traditions, as his manual of equipment, without
which he cannot do his part to keep the law on the level of profession."9 The term legal ethics has
been defined as "that branch of moral science which treats of the duties which a member of the
legal profession owes to the people, the court, his professional brethren and his client . . ."10

Generally speaking, legal ethics denotes that body of principles by which the conduct of members
of legal profession is controlled, more specifically and practically considered. More specifically
and practically considered, legal ethics may be defined a s that branch of moral science which
treats of duties which an attorney-at-law owes to his clients, to the courts, to the bar, and to the
public.11

Legal ethics means the ethics of the legal profession. It is the body of rules and practices which
determine the profession conduct of the members of the Bar and of the Bench. The phrase 'legal
ethics' shows the existence of a set of professional norms for lawyers apart from the moral rules
which regulate the conduct of men in general. Legal ethics means "usages and customs among
members of the legal profession involving their moral and professional duties towards one another,
towards clients and towards the courts; that branch of moral science which treats of the duties
which a member of legal profession owes to the public, to the court, to his professional brethren,

9
Albert P. Blaustein, et al, The American Lawyers 240 (1954)
10
Fransis Rawle, ed., Bouvier's Law Dictionary (1914).
11
Henry Wynans Jessup, The Professional Ideals of Lawyer 4( 1986).

9
and to his client."12 Legal ethics are not exclusively rules-based. The customs and cultures of
lawyers, to the extent that they have some effect on the delivery of legal services should also be
included within an extended definition.13 Lawyers allegiance to these ethical values and canons of
conduct have been shaped through ages. The ethics of the profession developed as the profession
grew in the stature and assumed its dignified status as a strong arm of our judicial system. Such
canons of conduct serve as a guide to understand the social as well as professional responsibilities
of a lawyer. There were certain traditional ethics at one time. Later, they were formulated into
statutory rules, i.e. into law, by certain Act and Rules made there under viz. the Legal Practitioners
Act, 1879; Bar Councils Act, 1926, Letters Patent of several High Courts, etc. These rules are now
incorporated in the Bar Council of India Rules. Therefore, these ethics have become statutory rules
now by virtue of legislation, i.e. these ethics had become etiquette.

The four interwoven ethics or conceptions of what a lawyer ought to do can be discovered in
lawyers ethical debates, treatises, and judicial pronouncements. They are:14

(i) The ideal of devoted service to clients in a legal system where citizens need advice and
representation to us e the legal system (the advocacy ideal),
(ii) The ideal of fidelity to the law and justice if the system is not to be sabotaged by clients
who will pay a lawyer to anything (the social responsibility ideal),
(iii) An ideal of willingness to work for people and causes that are usually excluded from
the legal system (the just ideal)
(iv) The ideal of courtesy, collegiality, and mutual self-regulation amongst members of the
profession (the ideal of collegiality)

12
Henry Campbell {ed.), Black's Law Dictionary 894 (1990)
13
Stephen Parker and Charles Sampford [eds.) Legal Ethic and Legal Practice Contemporary Issues 11 (1995).
14
Christine Parker (ed.), Just Lawyers 87 (1999)

10
2.1 ETHICS IN LEGAL PROFESSION

The expression 'legal ethics' is made up of noun 'ethics' qualified by the adjective 'legal'. Ethics is
broadly a sense of duty. In other words, it is the sum of aggregate of the rules of right living. The
term 'legal' means 'according to law'. 'Legal ethics' is that branch of moral science which lays down
certain duties for observance which an advocate owes to the society; to the court; to the profession;
to his opponent; to his clients and to himself. Legal ethics has their source from tradition. On
regular practice after some generations, they become usages, from usages to customs, and from
customs to statutory rules, i.e. etiquette. Dean John H. Wigmore, one of America's great legal
writers, once said, "this living spirit of the profession, which limits it yet uplifts it as a livelihood,
has been customarily known by the vague term 'legal ethics' . . . An apprentice must hope and
expect to make full acquaintance with this body of traditions, as his manual of equipment, without
which he cannot do his part to keep the law on the level of profession"15 The term legal ethics has
been defined as "that branch of moral science which treats of the duties which a member of the
legal profession owes to the people, the court, his professional brethren and his client . . ."16

Legal ethics are not exclusively rules-based. The customs and cultures of lawyers, to the extent
that they have some effect on the delivery of legal services should also be included within an
extended definition.17 Lawyers allegiance to these ethical values and canons of conduct have been
shaped through ages. The ethics of the profession developed as the profession grew in the stature
and assumed its dignified status as a strong arm of our judicial system. Such canons of conduct
serve as a guide to understand the social as well as professional responsibilities of a lawyer. There
were certain traditional ethics at one time. Later, they were formulated into statutory rules, i.e. into
law, by certain Act and Rules made there under viz. the Legal Practitioners Act, 1879; Bar
Councils Act, 1926, Letters Patent of several High Courts, etc. These rules are now incorporated
in the Bar Council of India Rules. Therefore, these ethics have become statutory rules now by
virtue of legislation, i.e. these ethics had become etiquette.

15
Fransis Rawle, ed., Bouvier's Law Dictionary (1914)
16
Henry Wynans Jessup, The Professional Ideals of Lawyer 4( 1986).
17
Stephen Parker and Charles Sampford [eds.) Legal Ethic and Legal Practice Contemporary Issues 11 (1995).

11
The four interwoven ethics or conceptions of what a lawyer ought to do can be discovered in
lawyers ethical debates, treatises, and judicial pronouncements. They are:18

(i) The ideal of devoted service to clients in a legal system where citizens need advice
and representation to us e the legal system (the advocacy ideal),
(ii) The ideal of fidelity to the law and justice if the system is not to be sabotaged by
clients who will pay a lawyer to anything (the social responsibility ideal),
(iii) An ideal of willingness to work for people and causes that are usually excluded
from the legal system (the just ideal)
(iv) The ideal of courtesy, collegiality, and mutual self-regulation amongst members of
the profession (the ideal of collegiality).

The violation of these standards of conduct will affect the prestigious image of the profession and
hence treated as professional misconduct. Section 35 of the Advocates Act, 1961 provides for
punishment of advocates for professional or other misconduct. The relevant rules appear under
Chapter II with the heading Standards of Professional Conduct and Etiquette under Part VI of the
Bar Council of India Rules. The preamble of this Code of Conduct clarifies that the standard
included in this are not exhaustive. The other canons of conduct which are equally imperative but
not specifically mentioned are also deemed to be included in these rules. The Code does not,
however, specify in explicit terms as to how far these rules are enforceable or as to how far they
are directives without justiciability. This so because some of the rules are in nature of summons.
Rule 46 describes the obligation to provide legal aid to the indigent and the oppressed, as the
highest obligation of the advocates to the society. Professor Upendra Baxi, and eminent jurist
compares such directives with the directive Principles of the State Policy meaning thereby that the
obligation is subject to 'economic condition' of the advocate himself hence not a binding rule, that
is an unenforceable rule.19 It is revealed from different studies that even the superstar lawyers,
whose economic condition is unconsciously affluent, even refuse summarily to see and indigent
person with urgent need for legal assistance. It is also seen that most senior lawyers stay away
from legal aid programmes of the State.

18
Christine Parker (ed.), Just Lawyers 87 (1999)
19
Upendra Baxi, "The Pathology of Indian Legal Profession," Indian Bar Review 1986, Vol. 13, pp. 455-457

12
2.2 NATURE OF ETHICS: LEGAL ETHICS

Ethics is far from being purely a natural science which seeks only to explain things as they are,
their nature and essence but it is a normative or critical science.20 It is concerned not only with
things and actions but our judgments upon them as well. Ethics deals with human acts. Human
acts are done voluntarily with knowledge and free will. Ethics is not a practical science unlike
other sciences. Sciences of medicine and engineering perfect the practitioner. The student who
studies them becomes an expert in those fields. On the other hand, the study of ethics does not
necessarily perfect a person. The person who knows all about ethics need not be a saint. Knowledge
of ethics does not make him or her better person.21 Even though ethics may not make better people
yet we should not be forgetful of the valuable service it renders to humanity. Ethics is essentially
concerned with "Right and wrong". How do we judge whether an action is right or wrong? This
has been a perplexing question for mankind. Different groups of people have different approaches
of criteria in judging the moral quality of an action.

The fact that ethics is concerned with an end or ideal or standard serves at once to distinguish it
from most of special sciences. Most of the sciences are concerned with certain uniformities of our
experience with the ways in which certain classes of objects (such as rocks or plants) are found to
exist, or with the ways in which certain classes of events (such as the phenomena or sound or
electricity) are found to occur. Such sciences have no direct reference to any to end that is to be
achieved or to any ideal by reference to which the facts are judged. The knowledge which they
communicate may, indeed, be useful for certain purposes. The study of ethics is also distinguished
from the natural sciences, inasmuch as it has a direct reference to an end that men desire to attain,
or a type of which they wish to approximate. It is not by any means that only scientific study,
however, which has such a reference. There are at least two other subjects, commonly recognized
as scientific, that are in a similar position - viz. logic and esthetics. These are concerned,
respectively, with the general conditions involved in the pursuit of truth and in the creation and
appreciation of beauty, just as ethics is concerned with what is good and right in human purposes
and actions. Such studies are sometimes said to be normative. They are concerned with standards
of value, rather than with the simple apprehension and analysis of what exists or occurs. It may be

20
J. H. Muirhead, "Ethics" in Encyclopaedia of Religion and Ethics 414 (1974), Vol. 11
21
Mackenzie, A Manual of Ethics 5 (1980

13
pertinent to note that there appear to be three supreme values in our human experience - truth,
beauty and goodness. They correspond somewhat closely to the three main aspects of our
conscious life - knowing, feeling and acting. We learn by degrees to know what is true, to
appreciate what is beautiful and to do what is right; and logic, esthetics and ethics deal, as
thoroughly as they can with the general conditions that are involved in those three modes of
experience. The expression 'legal ethics' is made up of noun 'ethics' qualified by the adjective
'legal'. Ethics is broadly a sense of duty. In other words, it is the sum of aggregate of the rules of
right living. The term 'legal' means 'according to law'. 'Legal ethics' is that branch of moral science
which lays down certain duties for observance which an advocate owes to the society; to the court;
to the profession; to his opponent; to his clients and to himself. Legal ethics has their source from
tradition. On regular practice after some generations, they become usages, from usages to customs,
and from customs to statutory rules, i.e. etiquette. Dean John H. Wigmore, one of America's great
legal writers, once said, "this living spirit of the profession, which limits it yet uplifts it as a
livelihood, has been customarily known by the vague term 'legal ethics' . . . An apprentice must
hope and expect to make full acquaintance with this body of traditions, as his manual of equipment,
without which he cannot do his part to keep the law on the level of profession."22

Legal ethics means the ethics of the legal profession. It is the body of rules and practices which
determine the profession conducts of the members of the Bar and of the Bench. The phrase 'legal
ethics' shows the existence of a set of professional norms for lawyers apart from the moral rules
which regulate the conduct of men in general. Legal ethics means "usages and customs among
members of the legal profession involving their moral and professional duties towards one another,
towards clients and towards the courts; that branch of moral science which treats of the duties
which a member of legal profession owes to the public, to the court, to his professional brethren,
and to his client."23

In India under Section 49(1)(C) of the Advocates Act, 1961 prescribe the Standards of Professional
Conduct and Etiquette of Advocates.24 The violation of these standards of conduct will affect the
prestigious image of the profession and hence treated as professional misconduct. Section 35 of
the Advocates Act, 1961 provides for punishment of advocates for professional or other

22
Albert P. Blaustein, et al, The American Lawyers 240 (1954)
23
Stephen Parker and Charles Sampford [eds.) Legal Ethic and Legal Practice Contemporary Issues 11 (1995)
24
Upendra Baxi, "The Pathology of Indian Legal Profession," Indian Bar Review 1986, Vol. 13, pp. 455-457.

14
misconduct. The relevant rules appear under Chapter II with the heading Standards of Professional
Conduct and Etiquette under Part VI of the Bar Council of India Rules. The preamble of this Code
of Conduct clarifies that the standard included in this are not exhaustive. The other canons of
conduct which are equally imperative but not specifically mentioned are also deemed to be
included in these rules. The Code does not, however, specify in explicit terms as to how far these
rules are enforceable or as to how far they are directives without justiciability. This so because
some of the rules are in nature of summons. Rule 46 describes the obligation to provide legal aid
to the indigent and the oppressed, as the highest obligation of the advocates to the society.
Professor Upendra Baxi, and eminent jurist compares such directives with the directive Principles
of the State Policy meaning thereby that the obligation is subject to 'economic condition' of the
advocate himself hence not a binding rule, that is an unenforceable rule. It is revealed from
different studies that even the superstar lawyers, whose economic condition is unconsciously
affluent, even refuse summarily to see and indigent person with urgent need for legal assistance.
It is also seen that most senior lawyers stay away from legal aid programmes of the State.

An advocate enrolled under any State Bar Council has to strictly follow the Standards of Profession
Conduct and Etiquette. As they are statutory rules, they are mandatory in nature and violation of
any rule by any advocate attracts disciplinary enquiry by the State Bar Council competent to
suspend him from practice for a period of some years and if the offence is very grave which renders
him unfit to continue to practice law, then he can be permanently struck off from the roll as an
advocate. Such power is exercised through the machinery of Disciplinary Committee of the State
Bar Council. The legal ethics is normally concerned with the conduct of lawyers in their
professional capacity, members of the Bar are required to conform to high moral standards even
outside the sphere of their professional activities. If, for example, by reason of his criminal or
dishonest conduct, an Advocate becomes an unworthy member of the society, that may also justify
forfeiting his right to remain in the profession as well. This provision is clearly deal in Section
35(1) of the Advocates Act, 1961. Knowledge of legal ethics is an indispensible part of the
intellectual equipment of every legal practitioner. A junior advocate, being a public functionary
taking to practice at the bar should have the correct knowledge of privileges as well as the ethical
obligations of the members of the profession. He should be able to distinguish between right and
wrong in matters of professional conduct without difficulty or hesitation. This is important and
necessary for the satisfaction of his own conscience, for the honour and good name of the

15
profession, for the protection of the client and other concerned with litigation and for the welfare
of general public. Truly admitting that a lawyer is at times faced with considerable difficulty in
determining what is right or wrong in matters of professional conduct. The researcher finds no
settled traditions as yet, which may guide the younger entrants. There are so many temptations in
the path to serve from the line of integrity in which so many delicate and difficult questions of
duty are constantly arising. There are many pitfalls and mantraps at every step, and the younger
lawyer at the outset of his career, needs often the prudence and self-denial, as well as the moral
courage which belong to riper years. Knowledge of legal ethics will inspire respect for its ideals.
The rules framed by bar Associations, statutory rules made by the Court and the rules framed by
Bar Council of India lay down the Standards of Profession Conduct and Etiquette for Advocates.
Knowledge of high ideals of Bar will create in the young advocate satisfaction and pride in his
calling.

These four basic ideals can be found in the U. S. Code of Legal Ethics. The American bar
Association's Model Rules of Professional Conduct, 1983 include : (1) Rules to ensure that lawyers
zealously serve and represent their clients (the advocacy ideal), (2) Rules to ensure that they show
candour to tribunals, fairness to opposing parties, and are allowed to reveal information to prevent
a client committing a criminal act (the social responsibility ideal), (3) Rules regulating the way
public service are given and encouraging lawyers to do pro bono work (the justice ideal) and (4)
Rules governing relationship between lawyers within firms and upholding the integrity of the
profession as a whole by reporting misconduct (the ideal of collegiality). In India under Section
49(1)(C) of the Advocates Act, 1961 prescribe the Standards of Professional Conduct and Etiquette
of Advocates.25 The violation of these standards of conduct will affect the prestigious image of the
profession and hence treated as professional misconduct. Section 35 of the Advocates Act, 1961
provides for punishment of advocates for professional or other misconduct. The relevant rules
appear under Chapter II with the heading Standards of Professional Conduct and Etiquette under
Part VI of the Bar Council of India Rules. The preamble of this Code of Conduct clarifies that the
standard included in this are not exhaustive. The other canons of conduct which are equally
imperative but not specifically mentioned are also deemed to be included in these rules. The Code
does not, however, specify in explicit terms a s to how far these rules are enforceable or as to how

25
S. 1 and Rule 1 to 10 under Section 49(C) of the Advocates Act, 1961

16
far they are directives without justiciability. This so because some of the rules are in nature of
summons. Rule 46 describes the obligation to provide legal aid to the indigent and the oppressed,
as the highest obligation of the advocates to the society. Professor Upendra Baxi, and eminent
jurist compares such directives with the directive Principles of the State Policy meaning thereby
that the obligation is subject to 'economic condition' of the advocate himself hence not a binding
rule, that is an unenforceable rule.26 It is revealed from different studies that even the superstar
lawyers, whose economic condition is unconsciously affluent, even refuse summarily to see and
indigent person with urgent need for legal assistance. It is also seen that most senior lawyers stay
away from legal aid programmes of the State.

An advocate enrolled under any State Bar Council has to strictly follow the Standards of
Profession Conduct and Etiquette. As they are statutory rules, they are mandatory in nature and
violation of any rule by any advocate attracts disciplinary enquiry by the State Bar Council
competent to suspend him from practice for a period of some years and if the offence is very grave
which renders him unfit to continue to practice law, then he can be permanently struck off from
the roll a s an advocate. Such power is exercised through the machinery of Disciplinary Committee
of the State Bar Council. The legal ethics is normally concerned with the conduct of lawyers in
their professional capacity, members of the Bar are required to conform to high moral standards
even outside the sphere of their professional activities. If, for example, by reason of his criminal
or dishonest conduct, an Advocate becomes an unworthy member of the society, that may also
justify forfeiting his right to remain in the profession as well. This provision is clearly deal in
Section 35(1) of the Advocates Act, 1961. Knowledge of legal ethics is an indispensible part of
the intellectual equipment of every legal practitioner. A junior advocate, being a public functionary
taking to practice at the bar should have the correct knowledge of privileges as well as the ethical
obligations of the members of the profession. He should be able to distinguish between right and
wrong in matters of professional conduct without difficulty or hesitation. This is important and
necessary for the satisfaction of his own conscience, for the honour and good name of the
profession, for the protection of the client and other concerned with litigation and for the welfare
of general public. Truly admitting that a lawyer is at times faced with considerable difficulty in
determining what is right or wrong in matters of professional conduct. The researcher finds no

26
Upendra Baxi, "The Pathology of Indian Legal Profession," Indian Bar Review 1986, Vol. 13, pp. 455-457.

17
settled traditions as yet, which may guide the younger entrants. There are so many temptations in
the path to serve from the line of integrity in which so many delicate and difficult questions of
duty are constantly arising. There are many pitfalls and mantraps at every step, and the younger
lawyer at the outset of his career, needs often the prudence and self-denial, as well as the moral
courage which belong to riper years. Knowledge of legal ethics will inspire respect for its ideals.
The rules framed by bar Associations, statutory rules made by the Court and the rules framed by
Bar Council of India lay down the Standards of Profession Conduct and Etiquette for Advocates.
Knowledge of high ideals of Bar will create in the young advocate satisfaction and pride in his
calling.

18
 CHAPTER-3
CODE OF CONDUCT {RIGHT OF LAWYERS}
The members of legal profession, by virtue of law and usage, enjoy certain rights and privileges.
Rights and privileges of advocates in India are not different from those of Barristers in England.
There the advocate has the rights of audience as an Advocate in the entire superior and most of the
inferior courts. The advocate has the right to draw or prepare for or in expectation of fee or reward
instruments relating to real or personal estate or any legal proceeding. Further the advocate has the
right to advise on questions of law. The advocate has the right of authenticating by his name the
report of case decided in court. In India too, the researcher find that the advocates have the
following rights provided by law and usage.27

(i) Right to Freedom of Speech and Expression Article 19(l)(a) of the Constitution of India
provided the right to freedom of speech and expression to all citizens. An advocate need not fear
about police, bureaucrats, legislators and even the judiciary. But they should oblige the reasonable
restriction imposed on this right in the interest of the sovereignty and integrity of India, the security
of the state, friendly relations with foreign states, public order, decency or morality, or in relation
to contempt of court, defamation or incitement of an offence. He should not hurt the religious
feelings of one sect. He should speak in decent language and should not use intemperate language.

(ii) Right to practice and audience Before enacting the Advocates Act, 1961 there were different
classes of Legal Practitioners viz.. Barristers, Advocates, Valiks, Pleaders, Mukhtars, Agents etc.
The Act of 1961 made several important changes and brought this profession into uniformity. Now
there is only one class of legal practitioners, viz., Advocates. Chapter IV containing Section 29 to
34 of the Advocates Act, 1961 explains the legal provisions about the right to practise. Section 29
of the Act imposes strict restriction that advocates are the only one class of persons to practice the
profession of law. The right to practice is authorized only to the advocates, who have enrolled their
name s in the Roll of a State Bar Council. According to Section 30 of Act of 1961, every advocate,
whose name is entered in the State roll is entitled as of right to practice throughout the territories
to which this Act extends, subject to the provisions of this Act - (a) In all courts including the
Supreme Court; (b) Before any tribunal or person legally authorized to take evidence; and (c)

27
Sharma, K. L., Sociology of Law and Legal Profession (A Study of Relations between Lawyers and their Clients),
(1984).

19
Before any other authority or person before whom such advocate by or under any law for the time
being in force entitled to practise. Only advocates have monopoly right to represent clients in
courts.28

(iii) Right for Welfare Fund States have enacted Advocates Welfare Fund Act and every advocate
practicing in any court in the State become a member of the fund. A member of the fund shall, on
cessation of practice, be entitled to receive from and out of the fund an amount at the rate specified
in the schedule after five years of service at the rate of one thousand for a completed year.

(iv) Right of Fee An advocate has right to his fee. This right is absolute and not conditional. It
does not depend upon winning or losing of the case. The advocate can insist upon the payment of
their fees in advance or rely on their lien on the clients papers and on the fruits of the litigation as
well as on their right to sue for their fees. Rule 11 of Chapter II of Part VI of the Bar Council of
India Rules provides that the advocate has a right for a fee consistent with his standing at the bar
and the nature of the case. Sometimes advocates do take up cases without any fees, then it will not
be their right.

(v) To Enter the Bar An advocate has a right to sit in the seats provided for advocates, whether
he is having a case or not and observe the proceedings of the court.

(vi) Advocate's Right to Refuse a Brief According to section 29 of the Advocates Act, 1961 the
only one class of persons entitled to practice the profession of law, namely advocates. As per Rule
11 of Chapter II of Part VI, and advocate is bound to accept any brief in the Courts or Tribunals
or before any authority in or before which he professes to practice at a fee consistent with his
standing at the bar and the nature of the case. Special circumstances may justify his refusal to
accept a particular brief. Defending a client known to be guilty neither involves violation of neither
law nor ethics. No person is guilty unless otherwise proved. Any guilty person has the right to
defend himself in court. A client approaches a particular advocate after satisfying that he has
sufficient experience, knowledge and ability to safeguard his interests. No advocate refuses a brief.
But in situation where he could not appear before court lawfully, then he has a right to refuse a
brief and it is his duty also. The following are the circumstances where as advocate should not
plead in a Court and where he has to refuse a brief: According to Rule 4 of Section I of Chapter

28
Barhat, Virendra Singh, Judicial Courts v. Lok Adalats, AIR 1987 (Journal Section), p. 5

20
III of Part VI of the Rules of the Bar Council of India, an advocate shall refuse to represent the
client who persists in unfair practices and improper conduct. According to Rule 6 of Chapter II of
Part VI of the Bar Council of India rules, an advocate shall not enter appearance, act, plead or
practice in any way before a court, tribunal or authority mentioned in Section 30 of the Act, if the
sole or any member thereof is related to the advocate as father, grandfather, son, grandson, uncle,
brother, nephew, first cousin, husband, wife, mother, daughter, sister, aunt, niece, father in-law,
mother-in-law, son-in-law, brother-in-law, daughter-in-law, or sister-in-law. For the purpose of
this rule. Court shall ban a Court, Bench or Tribunal in which above mentioned relation of the
advocate is a Judge, Member or Presiding Officer.29

According to Rule 8 of Chapter II of Part VI of the Bar Council of India Rules, an advocate shall
not appear in or before any Court or tribunal or any other authority for or against any organization
or any institution, society or corporation, if he is a member of the Executive Committee of such
organization or an institution, society of corporation, if he is a member of the Executive Committee
of such organisation or institution or society or corporation. "Executive Committee" by whatever
name it may be called, shall include any Committee or body of persons which, for the time being
is vested with the general management of the affairs of the organization or institution, society or
corporation: Provided that this rule shall not apply to such a member appearing as 'amicus curiae'
or without a fee on behalf of a Bar Council, Incorporated Law Society or a Bar Association.
According to Rule 9 of Chapter II of Part VI of the Bar Council of India Rules, an advocate should
not act or plead in any matter in which is himself pecuniary interested. (i) He should not act in a
bankruptcy petition when he himself is also a creditor of the bankrupt; (ii) He should not accept a
brief from a company of which he is a Director. According to Rule 13 of Chapter II of Part VI of
the Bar Council of India Rules, an advocate should not accept a brief or appear in a case in which
he has reason to believe that he will be a witness and if being engaged in a case, it becomes apparent
that he is a witness of a material question of fact, he should not continue to appear as an advocate
if he can retire without jeopardizing his client's interests. In the case, Allahabad Bank Ltd.,
Fyzabad v. Thakur Bakshi Singh, the Privy Council held, "if a client conies to them with proper
instructions and prepared to pay a fair and proper fee and invites them to undertake a case of a
kind which they are accustomed to do and they refuse, such refusal amounts to professional

29
Baxi, Upendra, "Professional Terrorism : Lawyers Strike," Lex Et Juris, August 1986, pp. 10-11

21
misconduct, and should be punished as such. That is to say, nor has a lawyer any right to reject a
brief when offered to him on payment of fee agreed upon the ground of partisanship for a party to
the litigation." No advocate should accept a fee less than the fee taxable under the rules when the
client is able to pay the same. At the same time, Article 39-A of the Indian Constitution provides
that if the arrested person is poor, free legal aid and equal justice shall be provided to him. Hence
no advocate has right to refuse a brief on the basis of fee; If an advocate refuses to appear on the
ground that the fee offered is not adequate enough for him, it is violation of professional ethics of
a lawyer. An advocate should not bargain for higher fee and refuse a brief on that basis. In India,
there is no provision to refuse a brief legally. But it is the general opinion that defending a client
known to be guilty neither involves violation of law nor ethics, and such client must be defended,
irrespective of the personal opinion of the advocate. But, as the advocacy is a noble profession an
advocate should not counsel or maintain any suit or proceeding which is unjust and dishonest.30

(vii) Right to Lien Once a lawyer has filed a vakalatnama in a case it is his privilege that no one
else can step in without his consent. Earlier the law was that a lawyer had a lien, for any upaid fee,
upon such papers of the client as were in hands. This lien was possessory. Even, courts could not
grant leave to appear in the case if he remained unpaid when he had a right of lien upon the briefs
and papers in his possession. Unless satisfactory arrangements for the payment of his fees have
been made and the judge is satisfied on that account, even the judge cannot make an order to
hand over the brief either to another advocate or to the client. Recently two Judge bench of the
Supreme Court consisting of S. N. Variava and Dr. A. R. Lakshmanan, JJ. While considering the
issue of returning of files by an advocate to his client between whom a dispute had arisen, took the
position that the right of the litigant to have the files returned to him is a corresponding
counterpart of the professional duty of the advocate and the dispute regarding fees is an issue to
be decided in an appropriate proceedings. Whenever or not the fees were payable to the advocate,
the court refused to consider that question and observed that the entitlement of the advocate to
the fee would also be open for consideration in appropriate proceedings for recovery of his fees.
The court has curtly observed that in order to claim the unpaid remuneration from a client,
advocates cannot retain the papers of their clients against his will.31

30
Bhatt, Jitendra N., "Dimensions and Dynamics of American Bar Association," Indian Bar Review, 2002, Vol.
29(12), p. 29.
31
New India Insurance Company Ltd. v. A. K. Saxena 2003 (9) SCALE 531

22
(viii) Right to have access to Judge It is the right of a lawyer to have access to the judge in urgent
judicially matter at any time during day or night, and the Judge cannot refuse to give audience to
him. Of course, when such urgent matters are taken after the working hours of the court, the
convenience of the judge has to be looked into. Though, it looks bitter and odd yet it is the right
of the advocate to refuse to recognize and appear before a presiding officer/judge who is not in the
prescribed robe of a judge in the court. Similarly, a Judge can also refuse to give an audience to
the lawyer who is not in the prescribed dress. The profession of law is a noble calling with serious
responsibilities. The notability of it consists in this fact that the lawyers have to act as watchman
in order to protect the rights of the people. Hence, they are looked upon as the protectors and
defenders of life, liberty and property - off course at price. They are expected to act in honest and
upright manner because they have the privilege of discharging all those duties which those who
are not members, of the legal profession cannot do. Mukherjee, J. in Emperor v. Rajani Kanta
Bose and others,32 has rightly observed that "the practice of law is not a business open to all who
wish to engage in it; it is a personal right or privilege .. . it is the nature of a franchise from the
state . . ." All rights attached to the office of advocate by virtue of law and usage are in a sense, his
privileges,. The lawyer is given an absolute privilege and this absolute privilege carried with it a
special responsibility that should not be abused, "that you are a member of the legal profession is
your privilege; that you and represent clients is your privilege; that you can in that capacity claim
audience in courts is your privilege. Yours is an exalted profession in which your privilege is your
duty and your duty is your privilege. They both coincide."33

The lawyer have the privileges of audience in the court and he can insist on his right to be heard
without any hindrance, so long as he act decorously and with due respect to the court. It is pertinent
to state here that a two day national seminar on "Privileges, Court Fee and Access to Justice" was
held at Hyderabad on 11-12 December, 1982 under the joint auspices of the Bar Council of India
trust and the Bar Council of Andhra Pradesh. The seminar was attended by over 300 lawyers from
District and Taluka Bars of Andhra Pradesh besides members of the Bar Council of India and
representatives of State Bar Councils was inaugurated by the then Vice-President of India Hon'ble
Mr. M. Hidayatullah. The speaker unanimously felt that the subject was of paramount importance.
In his inaugural address, Mr. Hidayatullah stated that there was a duty owed by advocates to the

32
Emperor v. Rajani Kanta Bose and others, ILR 49 Cal 804
33
Justice Mukherjee quoted by K. Gururaja Chari, Advocacy and Professional Ethics 125 (2013)

23
court on the one hand and their clientele on the other and pointed out that their privileges did not
extend beyond the ends of justice. On the occasion Mr. Justice P. Rama Rao of the Andhra Pradesh
High Court said that "brilliant advocates contributed to correct judgment. Advocates had
unfettered right in the presentation of the cases. Arrest of advocates and employment of force
against them by the executive are a sad situation." Learned Counsel F. S. Nariman said that "law
is a profession and not a business. One has to be efficient and honest." He cautioned that mere
honesty without efficiency was useless. He deprecated boycott of courts. He pointed out that
advocates privileges are service oriented." The speaker unanimously felt that the advocates are
limbs of the administration of justice. Any attempt to interfere with the freedom of advocates
constituted an act of contempt of court. There was near unanimity on all the following points: (i)
Freedom of advocacy is the most important privilege and any attempt aimed at to curb it will have
to be deprecated; (ii) Amount the Bench and Bar there must be an element of mutuality in the
matter of extending respect an courtesy; and (iii) cases of professional misconduct have to be
examined only by the statutory Bar Council and should not rest with the courts. There was
difference of opinion surfaced at the seminar as to whether the privileges of advocates should or
should not be codified. The question has been solved by a Joint Conference of Bar Council of India
with the State Bar Councils held at Bangalore on 25th and 26th February, 1984. "All the State Bar
Councils were of the opinion that not only privileges but rights and interests of the Advocates shall
be considered together according to sub-sections 6(l)(d) and 7(l)(d) of the Advocates Act, 1961.
These State Bar Councils were of the opinion that the following privileges should be enjoyed by
the advocates: (i) The freedom of advocacy in the courts so long that advocate think it necessary
for pleading the case of his client; (ii) the judges should not interfere at the time of argument. If
the judge interferes or asks the advocate to take his seat and if the advocate does not comply with
the order of the judge for the best interest of his client and feels necessary to continue the argument
and place the case of his client then that will not amount to contempt; (iii) fair treatment from
courts and the advocates should be strictly treated as officers of courts; (iv) immunity from penal
action with regard to any communication made by an advocate on behalf of his clients on
instructions; (v) immunity from arrest while going in courts for performing professional duties,
returning from courts after performing professional duties, performing duties by orders of courts
and practicing the profession of law; (vi) immunity from arrest for custody of documents, paper,
etc. of clients for the purpose of opinion and cases; (vii) taking full instructions from clients with

24
regard to trial in cameras; (viii) taking notes from records and/o r documents, papers, etc. filed in
courts and quasi-judicial authorities even if the same are prohibited by law; (ix) immunity from
legal actions for expressions used at the time of advocates and clients; (xi) immunity from
proceedings for contempt and/o r defamation for expressions used in courts during arguments
under instructions from client." As a member of legal profession, the lawyer enjoys certain
exclusive privileges. These are as follows:

(i) The right to hold himself out as a lawyer

(ii) The right to advise clients and to represent them.

(iii) The right to appear for them in judicial proceedings.

(i) Privilege to Claim Audience In India licensing of legal practitioner was a judicial function and
the judges had the power to debar them, but now by the Advocates Act, 1961, the power is vested
in the Bar Council of India. In any court and in any proceedings the litigant has a right to appear
in person but he does not choose to avail of that privilege and he law allows him to be represented
by a counsel then he must choose for his advocate someone from the ranks of the Bar. In India,
there is no common law right of the litigants to be represented by Counsel. Under the Bar Council
Act, the advocates' right of audience depended on Section 14 of the Act which run s as follows:
"An advocate shall be entitled as of right to practice - (a) subject to the provisions of sub-section
4 of Section 9 of the High Court of which he is an advocate, and (b) save as otherwise provided
by sub=- section (2) or by or under any other law for the time being in force in any other court in
British India and before any other Tribunal or person legally authorized to take evidence."

The right of advocates to practice is now regulated by Section 30 of the Advocates Act, 1961. It
lays down that subject to the provisions of the Act every advocate in common roll shall be entitled
as of right to practice throughout the territories to which the Act extends (i) in all courts including
the Supreme Court; (ii) before any tribunal or person legally authorized to take evidence; and (iii)
before any other authority or person before whom such advocate is by or under any law entitled to
practice. Although the advocates enrolled under the Advocates Act have been conferred an
absolute right under Section 30 to practice before all courts and tribunals, but Section 30 has not
yet been brought into force. Consequently at present the right of an advocate brought on the rolls
to practice is what is conferred by Section 14(1) (a), (b) and (c) of the Bar Council Act, 1926.

25
Advocates have the privilege to practise and pleading before the court and nobody else. In Jaymal
Thakore v. Gujarat State Charity Commissioner, Ahmedabad34, Gujarat High Court ruled that the
right of pleading an practising is monopolized by registered advocates. A chartered accountant
holding power of attorney could not appear, file an application or act on behalf of the party in the
proceedings as a recognized agent, but he could no plead or practice as a pleader or an advocate.
It is privilege of a person who fulfills the prescribed qualification to become a member of the Bar;
it is privilege to represent his clients in the courts of law; it is his privilege to claim audience in
courts so long he acts decorously; this is an exalted profession in which privilege is duty and duty
is privilege. They both coincide. Words spoken by lawyer in his professional capacity in the course
of a judicial inquiry or in the examination of witnesses are privileged. The advocate can insist on
his right to be heard without any hindrance. Bench and Bar are the two main limbs of judiciary
and one without the other cannot function. It is, therefore, necessary that the harmony between the
two must be maintained. Bench and Bar should give due respect to each other. In T. Venkata v.
The Hon'ble High Court of Mysore,35 the court held that when an advocate appears before the court
as a litigant in person, he is not exercising any right under Section 30 of the Act. So, he cannot be
permitted to argue with his robes on from the advocates table.

(ii) Privileges of Exemption from Arrest Common law doctrine of absolute privilege does not
apply to the criminal law of defamation in India. Privilege of the advocate is analogous to that of
the clients. A lawyer while going to the court to attend the matter or while returning from court is
exempt from arrest under Section 135(2) of the Civil Procedure Code, 1908 which states as under:
"Where any matter is pending before a tribunal having jurisdiction therein, or believing in good
faith that it has such jurisdiction, the parties thereto, their pleaders, mukhtars, revenue-agents, and
their witnesses acting in obedience to a summons, shall be exempt from arrest under civil process
other than process issued by such tribunal for contempt of Court while going to or attending such
tribunal for the purpose of such matter, and while returning from such tribunal." This privilege
also does not appear to be his personal one because it is in furtherance of public interest and for
the promotion of administration of justice. In other words, in civil process, other than process for

34
Jaymal Thakore v. Gujarat State Charity Commissioner, Ahmedabad, AIR 2001 Guj.270
35
T. Venkata v. The Hon'ble High Court of Mysore, AIR 1973 Mys. 127

26
Contempt of court, while going to the court or attending the court or returning from court, a
lawyer is exempted from arrest.

(iii) Privilege under the Code of Criminal Procedure An advocate is exempted from serving as
juror or as assessor under the Criminal Procedure Code.

(iv) Liability of Negligence No action can be taken against the advocate if he does any negligence,
which an ordinary and a reasonable man does. Such mere negligent acts are privileged under the
Act.

(v) Privilege of being offered judgeship and several other offices under the statute It is the
privilege of a lawyer that he is made eligible for holding several offices under the statutes, e.g. an
advocate is eligible for appointment as a District Judge, Additional District Judge, Magistrate,
Session Judge, Additional Session Judge, etc. An advocate of a High Court with 10 years standing
is eligible for appointment as Advocate General or a Judge of a High Court. He has also the
privilege to become Munsifs, official Assignee, Official Receiver, Public Prosecutor, Govt.
Pleader and Liquidator under administrative rules.

(vi) Privilege of Public and Political Life An advocate can enter public or political life without
any fear, and play his part therein. He can be a Member of Parliament or Legislature. He enjoys
overall privileged position in society at public places.

(vii) Privilege of Independence It is the privilege of an advocate that he is frank, fearless and
independent. It is his privilege that he is subordinate to none except God, because he stands for
justice and fights for justice alone and that makes him a leader of the society. It is the privilege of
the advocate to exercise independent judgment in determining how he will conduct the case. So
strong is the practice the etiquettes of the profession require that counsel in this respect will nt be
guided even by the advice of the court. Thus, if the court tells him that the evidence already
recorded was sufficient to support his client's case that will not by itself justify the counsel not
producing further evidence.

(viii) Words Spoken in Professional Capacity of Privileged The words spoken by an advocate
in his professional capacity in the course of a judicial inquiry or examination of witnesses are
privileged. It is an advocate's privilege to ensure that the forms and requirements of the law are

27
strictly observed and carried out and to defend an accused person towards that end even though
the advocate may have knowledge or reason to believe that he is guilty.

It is also the advocate's privilege, resulting from the credit due to the honour and prestige of the
profession, to make, on occasions, statements from your place in the Bar and without being sworn.
For example, it appears sometimes in cases where advocate takes part in settling compromise of
pending litigations that disputes occur when the matter is brought before the Judge for being made
an order of the court. The extent of advocate authority or any mistake he may have made or some
other like question might be mooted. It is then advocate's privilege to make a statement from the
Bar on matter that has transpired without making an affidavit. Lord Esher once said that they would
never admit an affidavit in such cases but trusted to the honour of lawyer. In Hickman v. Berens,
a dispute arose as to the extent of the authority given by the client to his advocate and the court
accepted the statement of advocate made from his place in the Bar without requiring it to be made
on oath. On the same principle a barrister in England enjoys a peculiar privilege. He has the right
to authenticate by his name the report of a case decided in court. As soon as the report is published
of any case with the name of a barrister annexed to it, the report is accredited and may be cited as
an authority before any tribunal. That marks the limit of the reliance placed on the integrity of the
profession.

28
 CHAPTER- 4
PROFESSIONAL MISCONDUCT
A person who carries/undertakes the profession is called a professional. Depending on the
profession a person undertakes, he/she is identified with a special name relevant to the profession.
Misconduct means a wrongful, improper, or unlawful conduct motivated by premeditated act.36 It
is an activity of not conforming to prevailing standards or laws or dishonest or deceitfulness,
generally by people entrusted or engaged to act on behalf of others. The expression professional
misconduct in the simple sense means improper conduct. In law profession misconduct means an
act done wilfully with a wrong intention by the people engaged in the profession. Misconduct
signifies any activity of an advocate in violation of professional ethics for his selfish ends. If an
act creates disrespect to his profession and makes him unworthy of being in the profession, it
amounts to professional misconduct. In other words an advocate which seeks to fulfill his selfish
ends at the cost of his client such act amounts to disqualification for an advocate to continue in
Legal profession. Misconduct is sufficiently comprehensive to include misfeasance as well as
malfeasance and is applied to the professional people, it include unprofessional acts even though
they are not inherently wrongful. The professional misconduct may consist the fact in any conduct,
which tends to bring reproach on the legal profession or to alienate the favourable opinion which
the public should entertain concerning it. In state of Punjab v Ram Singh37 the Supreme Court held
that the term misconduct may involve moral turpitude, it must be improper or wrong behaviour,
unlawful behaviour, illicit in character, a forbidden act, a transgression of established and definite
rule of action or code of conduct, but not mere error of judgement, carelessness or negligence in
performance of duty.

As values change and society attempts to cope with a myriad of problems, many prompted by
development in science and technology, new ethical issues emerge and old ethical issues must be
revisited. The profession of law is the only profession which is generally described as a learned
and noble profession by the world for several centuries. It is a learned profession par excellence.
No other profession touches human life at so many points than law. The people engaged in this
profession while performing their professional duties not only earn their livelihood, but also

36
Mana Mohamed Ismail vs V. Balarathnam, AIR 1965 Kant 28.
37
State of Punjab v Ram Singh 1992 SCR (3) 634

29
influence the lives and conditions of life of many. A lawyer while lawyering, an advocate while
doing advocacy is no doubt making his own fortune, but in addition to that his art of lawyering,
his techniques of advocacy, his skills of argument, his scientific treatment to the law and the facts
in hand cast definite shadows on the conditions in society, lawyers make the most significant
contribution to the final outcome of justice system that is the court verdicts and judgment which
ultimately shape the future path of our society. The role of the lawyer is very central to the very
vital organ of the state that is judiciary. On the stage of administration of justice, his contribution
is of immense importance. The wheels of system of administration of justice are jammed when he
is absent from the stage. Law is not a mere profession to keep the pot boiling but it is a noble
profession. Though it is generally believed that lawyers are people who thrive on feuds, it cannot
be said that the legal profession is anti-social. Legal profession is closely dovetailed with the ever
constant changing society and the profession of the lawyer can be elevated into a sublime of
vocation if he becomes the real savior to ameliorate the suffering of the people.38 There have been
many shrewd, able, eminent, upright and conscientious advocates, but it can hardly be said that
there are settled traditions to inspire the young man who is at the threshold of profession. Yet
young men are choosing a most ancient and exalted profession of the world, a profession which is
to have as its members lawyers whom Mr. Justice Maugham (later the Lord Chancellor) described
as the 'custodian of civilization' than which there can be no higher aim and no nobler duty - a
profession demanding the cardinal virtues in its members which would make the order "as one of
the means most proper to maintain the propriety, delicacy, disinterestedness, desire of conciliation,
move of truth and justice and enlightened regard for the weak and the oppressed."39

The lawyers as the social thinker have to play a special role for the solidarity, unity, integrity,
welfare and good of the society. A profession which is performing such vital service to the society
must also be expected to conduct itself to come upto the expectations of the society. His
professional conduct must be above board. A deviance on the part of the individual members of
the legal profession has a bearing on the interest, lives and conditions of the life of the members
of the society. Therefore, the society has an interest in the manner of regulation of the deviations,
deviances and delinquencies in the profession conduct of this profession. To meet this interest, the
standards of profession conduct called the legal ethics serve as instruments to regulate the

38
C. Rama Swamy Sarma, Lawyer's Role in Present Society, Andhra Law Times 1987 (Journal Section), p. 14
39
Radha Binod Pal, "Professional Ethics," AIR 1961 (Journal Section), p. 65

30
professional conduct. Law's nobility as a profession lasts only so long as the members maintain
their commitment to integrity and service to the community. Indeed the monopoly conferred on
the legal profession by Parliament is coupled with a responsibility towards the people, especially
the poor. Viewed from this angle, every delinquent who deceives his common client, deserves to
be frowned upon. The profession of lawyers ordains a high level of ethics as much as in the means
as in the ends. Justice cannot be attained without the stream being pellucid throughout its course
and this is of great public concern, not merely profession care, the standards of professional
conduct, that is the legal ethics not only serve the interest of the society but they also help the legal
profession to maintain the honour and dignity of the profession as well as the system of
administration of justice prevailing in the society. Further, to secure a spirit of friendly cooperation
between the bench and the Bar in promotion of highest standards of justice. It also establishes
honourable and fair dealings of the counsel with the client, opponent and witnesses. Above all the
lawyers discharge their responsibilities to community at large.

The Supreme Court has, in some of its decisions, elucidated on the concept of „misconduct‟, and
its application. In Sambhu Ram Yadav v. Hanuman Das Khatry,40 a complaint was filed by the
appellant against an advocate to the Bar Council of Rajasthan, that while appearing in a suit as a
counsel, he wrote a letter stating that the concerned judge, before whom the suit is pending accepts
bribes, and asked for Rs. 10,000 to bribe and influence the judge to obtain a favourable order. The
Disciplinary Committee, holding that the advocate was guilty if “misconduct”, stated that such an
act made the advocate “totally unfit to be a lawyer.” The Supreme Court, upholding the finding of
the Rajasthan Bar Council held that the legal profession is not a trade or business.41 Members
belonging to the profession have a particular duty to uphold the integrity of the profession and to
discourage corruption in order to ensure that justice is secured in a legal manner. The act of the
advocate was misconduct of the highest degree as it not only obstructed the administration of
justice, but eroded the reputation of the profession in the opinion of the public.

In another case, Noratanman Courasia v. M. R. Murali42 the Supreme Court explored the
amplitude and extent of the words “professional misconduct” in Section 35 of the Advocates Act.
The facts of the case involved an advocate (appearing as a litigant in the capacity of the respondent,

40
Sambhu Ram Yadav v. Hanuman Das Khatry AIR 2001 SC 2509.
41
Parmanand Sharma vs Bar Council Of Rajasthan And Anr, AIR 1999 Raj 171.
42
Noratanman Courasia v. M. R. Murali (2004) 5 SCC 689

31
and not an advocate in a rent control proceeding) assaulted and kicked the complainant and asked
him to refrain from proceeding with the case. The main issue in this case was whether the act of
the advocate amounted to misconduct, the action against which could be initiated in the Bar
Council, even though he was not acting in the capacity of an advocate. It was upheld by the
Supreme Court that a lawyer is obliged to observe the norms of behaviour expected of him, which
make him worthy of the confidence of the community in him as an officer of the Court. Therefore,
in spite of the fact that he was not acting in his capacity as an advocate, his behaviour was unfit
for an advocate, and the Bar Council was justified in proceeding with the disciplinary proceedings
against him. It may be noted that in arriving at the decision in the case, the Supreme Court carried
out an over-view of the jurisprudence of the courts in the area of misconduct of advocates,
reiterated that the term “misconduct” is incapable of a precise definition.43 Broadly speaking, it
envisages any instance of breach of discipline. It means improper behaviour, intentional
wrongdoing or deliberate violation of a rule of standard of behaviour. The term may also include
wrongful intention, which is not a mere error of judgment. Therefore, “misconduct”, though
incapable of a precise definition, acquires its connotation from the context, the delinquency in its
performance and its effect on the discipline and the nature of duty.44 In N.G. Dastane v. Shrikant
S. Shind45 where the advocate of one of the parties was asking for continuous adjournments to the
immense inconvenience of the opposite party, it was held by the Supreme Court that seeking
adjournments for postponing the examination of witnesses who were present without making other
arrangements for examining such witnesses is a dereliction of the duty that an advocate owed to
the Court, amounting to misconduct. Ultimately, as it has been upheld and reiterated that
“misconduct” would cover any activity or conduct which his professional brethren of good repute
and competency would reasonably regard as disgraceful or dishonourable. It may be noted that the
scope of “misconduct” is not restricted by technical interpretations of rules of conduct, this was
proven conclusively in the case of Bar Council of Maharashtra v. M.V. Dahbolkar46 the facts under
consideration involved advocates positioning themselves at the entrance to the Magistrate‟s courts
and rushing towards potential litigants, often leading to an ugly scrimmage to snatch briefs and
undercutting of fees. The Disciplinary Committee of the state Bar Council found such behaviour

43
Shri Santosh Kumar Sur vs Union Of India & Ors (2006) 6 SCC 794.
44
Mani Lal vs Matchless Industries Of India.
45
N.G. Dastane v. Shrikant S. Shind AIR 2001 SC 2028.
46
Bar Council of Maharashtra v. M.V. Dahbolkar 1976 SCR (2) 48.

32
to amount to professional misconduct, but on appeal to the Bar Council of India, it was the Bar
Council of India absolved them of all charges of professional misconduct on the ground that the
conduct did not contravene Rule 36 as the rule required solicitation of work from a particular
person with respect to a particular case, and this case did not meet all the necessary criteria, and
such method of solicitation could not amount to misconduct. This approach of the Bar council of
India was heavily reprimanded by the Supreme Court. It was held that restrictive interpretation of
the relevant rule by splitting up the text does not imply that the conduct of the advocates was
warranted or justified. The standard of conduct of advocates flows from the broad cannons of
ethics and high tome of behaviour. It was held that “professional ethics cannot be contained in a
Bar Council rule or in traditional cant in the books but in new canons of conscience which will
command the member of the calling of justice to obey rules or morality and utility.” Misconduct
of advocates should thus be understood in a context-specific, dynamic sense, which captures the
role of the advocate in the society at large. The Advocates Act, 1961 is a comprehensive statute
that regulates the conducts of Legal practitioners and legal education in India. The legislature
envisioned the establishment of Bar Council of India and State Bar Councils thus formed various
disciplinary committees to concordat the misconduct of the advocates. The provision relating to
the admission and enrolment of advocate, the right to practice advocacy are being provided under
the Advocates Act, 1969. Sections 35 to 44 are enumerated under Chapter V to look out the
conducts of the advocated. The statute has conferred penalizing power to the Bar Council of India
to maintain discipline among the advocates and for the professional and other misconduct. To
attract the provision i.e., Section 35 of the Act the act of misconduct must not need to be a
professional misconduct in itself. The expression used in the section is Professional or other
misconduct. Since not all events are connected with profession but they may amount to misconduct
for example conviction for a crime even when the crime was not committed in the professional
capacity. At the same time it is to be noted that a mere conviction is not sufficient to find an
advocate guilty of misconduct, the court must look in to the nature of the act on which the
conviction is based to decide whether the advocate is or is not an unfit person to be removed from
or to be allowed to remain in the profession.47

47
An Advocate v. Bar Council Of India and Anr. AIR 1989 SC 245.

33
Misconduct is not restricted to finite variety the connotation professional or other misconduct has
to be read in plain and simple meaning as defined in the Oxford Dictionary. The implication of
misconduct is an act done willfully with deceitful intent and this is applied to professional as
well as unprofessional acts even when such acts are not innately wrong. Section 49 of the
Advocate Act empowers the Bar Council of India to frame rules and standards of professional
misconduct. Under the Act, no person has a right to make advertisement or soliciting; it is against
advocate‟s code of ethics. He is also not entitled to any advertisement through circulars, personal
communications or interviews, he is not entitled to demand fees for training and to use
name/service for unauthorized purposes.48

48
Retrieved on: http://www.legalservicesindia.com/article/article/professional-misconduct-of-lawyers-in-india1665-
1.html.

34
 CHAPTER-5

PRIVILEGES AND RESPONSIBILITIES OF LAWYERS

The farewell to laissez-faire and emergence of Welfare State has resulted in explosive increase in
the functions of the States. Definitely this had led to multidimensional spread of codification of
citizens' rights and the laws governing them. This has given birth to several new branches of law.
New institutions were created to cope with the expanded new tasks. The journey of the State, its
organs and the allied institutions on the road to welfare-state left no field of human activity
untouched. This led to development of new concepts and new doctrines. The concepts of social
responsibility and social cost-effect came to be recognized. The contribution of the modern times
is the doctrine of social responsibilities.49 In early twentieth century State nearly controlled
everything. There has been a growing realization and awakening among the countries of the world
including socialist as well as capitalist countries, for the need to evolve and develop the doctrine
of social responsibility. Only that nation is prosperous and progresses whose citizens do their
respective duties with the utmost devotion and dedication. Everyone, therefore to be wide awake
to their respective sense of duty for betterment and progress of society, thereby ensuring betterment
and progress of nation and world at large. Modern States are taking shape of welfare States.
Everything is controlled and regulated by States, till very recently the liberalization and the process
of globalization have broken many barriers. The governance of democratic States has welfare
orientation. In early twentieth century State nearly controlled everything. There were mostly State
run enterprises which are involved in various kinds of activities. The State generates profits from
industry and revenue by collecting various taxes. The money so collected used to be spent on
security and development of the nation and a major portion of money was spent on welfare
activities. Strong need was felt by all the institutions, organizations, corporations, industrial houses
and commercial establishment to devote a part of their time, energies and resources towards the
programmes and activities which would help in improvement in the conditions of living in the
society from which they draw their sustenance. The traditional concept of profiteering being the
sole motive of business activity has given way to adopt the social responsibility also as an objective
complementary to profiteering. It is being recognised that even business houses in the days to
come, may have no option but to respond to call of social responsibility to meet the expectations

49
Prasad, Anirudh, Principles of the Ethics of Legal Profession in India, (2004)

35
of the society. According to some of the economists, the profitability and social responsibilities
may be the different sides of the same coin.50 There are others who have opined that making a
profit should yield to social responsibility when the two objectives conflict.51 M. K. Gandhi's
theory of trusteeship goes beyond all that. It tries to avoid all the evils and difficulties. It provides
a unique fusion of capitalism and socialism. Under this doctrine property is socialized without
being nationalized. In place of private ownership the socialist approach is prescribed to meet the
call towards social responsibility. This theory envisages that the ownership of private property, on
which the livelihood of others is dependent, is not to be deemed a private ownership. It is to be
held as a trust of society, its benefits to be used for the service of the community. The trustee is
accountable to the society. It is true that these newly developing concepts of social responsibilities
are not unknown to the members of legal fraternity.52

The crux of the situation is that when the disciplines such as trade and business, with their
traditional sole motive of profiteering is changing its course by adopting social responsibility as
one of its complementary goals, then how can the legal profession - a noble calling remain cut-off
from this trend? This is also considered to serve as a pointer to those advocates who for some
reasons consider their avocation as nothing more than a mere means of earning their livelihood.
The need of hour for such lawyers to come out of their self-made shells of attitudes like "what can
I do?" or "what I have to do with it"? And respond to the call of social responsibility. It may be
clearly stated that the social responsibility here does not imply the traditional and routine legal
services rendered by the lawyers. It definitely means something more than that. It envisages the
duty to help and protect the society in overcoming the major problems facing it which cannot be
solved by the State and its agencies above and which need the participative cooperation of different
sections of society including the lawyers for their solution. It is the right time which call for the
members of legal fraternity individually and collectively to respond to the call toward social
responsibilities to help in solving numerous grave problems facing the community, concerning
law, lawyers and justice.

It is crystal clear from the foregoing study that when there is no legal sanction behind these social
responsibilities they may remain undercharged and on the other hand strong public opinion against

50
Thoma J. Peters and Robert H. Waterman Jr., In Search of Excellence, 13-16 (1982), New York
51
Lisa H. Newton, "The Internal Morality of Corporation," 5 J. Bus Ethics 249 (1986)
52
Ibid.

36
no fulfillment of responsibilities resulting in somewhat revolting conditions. In between there is a
third situation also that is satisfaction on having done one's duty. Each and every person knows
that it is one's duty to be honest, self-reliant, to participate in the democratic process, to have
respect for the law and to respect others. These are not enforceable and even then we abide by
these norms. Thus, the satisfaction of having done one's duty is a strong moral force. It does not
require any sanction behind it. A word of advice to lawyers is that they should not focus on the
glamour of cases rather they should be on service to the client. The lawyer has a dual responsibility.
On the one hand they are to assist the Court so that it may come to right conclusion or findings
and on the other hand they are to protect the interests of the clients vigorously, attractively and
independently. The lawyer who integrates the values of self-realization and service makes the
morally worthy career choice. Thus, there is a need for the lawyers individually, the legal
profession in general spearheaded by the Bar Council of India and helped by the law academics,
intellectuals and other leading personalities in the field of law, justice, education, social service,
etc., to think, plan and act on these lines.53

5.1 CONSTITUTIONAL PROTECTION

Justice, liberty, equality and fraternity find prominent place in the very Preamble of our
Constitution and Part III and Part IV of it. These are values which are very essential for the free
community and the democratic set-up to service and thrive. Justice has been given the very first
place of pride in declaring these essential values of our constitutional scheme. Justice is further
qualified by the adjectives social, economic and political. Social justice occupies the first place,
being the most significant of all others. Social justice has to be the guiding star of all our actions
to fulfill the constitutional commitments and achievement of constitutional goals. Part III of the
Constitution of India guarantees Fundamental Rights to all the citizens equally whether rich or
poor, haves or have-nots. These rights are justiciable and enforceable by law. Part IV, on the other
hand, lays down certain directives to be accomplished by the State in due course of time and are
not justiciable and not enforceable under the law. These have the status of mere directives but are
of paramount significance as they, more or less, do the job of equalizing and balancing. They are
heavily inclined in favour of weak, exploited, unprivileged and disadvantaged people. These
principles direct u s for the establishment of a social order free from exploitation, injustice and

53
Parker, Stephen and Sampford, Charles (eds.) Legal Ethic and Legal Practice - Contemporary Issues, (1995).

37
inequalities. In other words, they aim at making the Indian masses free in positive sense, free from
passivity engendered by centuries of coercion by society and by nature, free from the abject
physical conditions that had prevented them from fulfilling their best selves. Part IV deals with the
subject of socioeconomic order which the founding fathers of the Constitution wanted ultimately
to be ushered in.54

The essence of Directive Principles lies in Article 38, which echoing the Preamble reads . . . "the
State shall strive to promote the welfare of the people by securing and protecting as effectively as
it may a social order in which justice social, economic and political, shall inform all the institutions
of the national life." Article 39(A) postulates the operation of the legal system in a manner that
promotes social justice on the basis of equal opportunity. Under this provision it is the duty of the
State to provide legal aid and advice in appropriate cases so that opportunities of securing justice
are not denied to any citizen by reason of economic or other disadvantages. The other directives
are related to citizens' right to an adequate means of livelihood (Article 39(c)), to just and humane
conditions of work and equal pay for equal work (Articles 42 and 39 (d)). Directive Principles
exhort the State to ensure that the citizens have the ownership and control of material resources of
the country subserve the common good, that the health of the workers, including children is not
abused, that citizens are not forced by the economic necessity to enter avocations unsuited to their
age or strength and that children are given opportunities and facilities to develop in healthy manner
and in conditions of freedom and dignity and their childhood and youth are protected against
exploitation. It is true that a social order based upon these directives cannot be achieved by mere
declarations. After almost sixty nine years of independence the irony of fate is that even today
there is growing disparity between rich and poor; nearly half of the population lives below the
harrowing poverty line. It is, therefore, submitted that Part III of the Constitution emphasizes on
individual rights, while Part IV lays the emphasis on group interest, the interests of the society.
Part IV tries to fill the gaps through State action in the capacities of the weaker, underprivileged
and disadvantaged sections of the society, to defend their rights. A social order based on these
principles cannot be achieved by mere declarations. Nor the State alone can do it without the
participative cooperation of all the concerned agencies, groups or institutions including the legal
profession. The legal profession has a special role to perform in this endeavour. There is a need to

54
Sharma, K. L., Sociology of Law and Legal Profession (A Study of Relations between Lawyers and their Clients),
(1984).

38
go to the people, educate them and organize them to be involved in nation's reconstruction
programme.55

Lawyers may be the perfect persons to go to the people both in town and country, awaken and
organize the people to build up a conscious constructive movement for achieving the goals. To
resolve all such conflicts, only the lawyer can help. He has a very significant role to play in
reaching the goal of social justice. At some or the other stage recourse has to be taken to the
litigation process to balance the conflicting claims and resolving the conflicts emerging from
following the path of social justice. Lawyers alone, who precisely know what the law is, what the
citizen's rights are, what the claims of the society are in tune with our constitutional goals and
philosophy, can act as a catalyst to make our constitutional declarations to turn in reality. So the
importance of the legal profession cannot be underestimated in this gigantic task, the contours of
which have been laid down by the Constitution makers. The legal profession is a profession of
service - service to the community. The important duty of the profession is to act as the interpreter,
guide and faithful servant of the community. Role of lawyers in a developing society is linked with
the question of the contribution which law can make for the development of society. Used as
instrument of social engineering, law can introduce smoothness in the act of change, prevent
upheavals and eliminate jolts in the onward march of society. There is no doubt that the legal
profession in India has responded to the call to social responsibilities by espousing the cause of
public interest social responsibilities by espousing the cause of public interests, social interests and
community interest. Legal profession did raise an effective legal voice through the famous Judge‟s
case, which helped in expanding the whole concept of locus standi and gave birth to the chapter of
public interest litigation. The lawyers have come to the service of the underprivileged and
disadvantaged classes of people through the famous cases of construction workers,56 bonded
labour, slum dwellers, undertrial,57 and so on. It is crystal clear that legal profession had made a
remarkable contribution in helping the judiciary in la5dng down the new horizons of public interest
law in these cases resulting from activist interpretation of the constitutional provisions of Part III
as well as Part IV of the Constitution of India. It is further to state that the interest of the lawyers
in this field of social justice has remained more or less a symbolic one.58 It has not so far taken the

55
Supra note 13.
56
S.P. Gupta V. Union of India, AIR 1981 (Supp) SC 87
57
Peoples Union of Democratic Rights v. Union of India, AIR 1984 SC 802
58
Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802

39
form of a movement. There is a need for proper organizing this trend into a movement by a
concerted effort of the Bar Council of India, the legal profession as a corporate body under Section
5 of the Advocate Act, 1961 and the legal professionals as individuals.59 This has to be continuous
process. Only then the society can grow into an orderly society where irrespective of the social
and economic inequalities, social justice, as guaranteed by the Constitution informs all the
institutions of national life and the rights guaranteed would in reality be meaningful to our
underprivileged and disadvantaged masses.60

5.2 SOCIAL RESPONSIBILITIES -ADVOCATES

Society is ever changing. It is always dynamic. It is never static. The politician, the clergy or the
merchant man cannot deliver the goods to the poor and downtrodden of our vast country. Only the
lawyers, by strict adherence of truth, honesty and justice can do real help to weaker section. The
lawyer must evaluate their role within legal profession and in the broader community at a time of
rapid social change. There is an imminent need to break from the traditional laissez faire norms of
society. "Beaten path is the safe path," no longer holds good. The lawyer must respond to the
changing needs of the society. The lawyer as a social thinker has to play a special role for the
solidarity, unity, integrity, welfare and good of the society. There cannot be more appropriate, than
the present time which direly call for the members of the legal profession individually and
collectively to respond to the call towards social responsibilities to help in serious numerous
problems, facing the community, concerning law, lawyers and justice.61

It is a truism that absence of sanction behind the social responsibilities which the legal profession
owes to the society, and resulting lack of enforceability is not the cause of much concern. There is
no specific set of provisions or rules in the relevant Act and Rules fixing and enlisting social
responsibilities of the legal profession, does not mean that the statute is totally silent on this aspect.
A careful scrutiny of the relevant law would lead u s to conclude otherwise. There are numerous
indicators in the relevant statute which recognize and point towards the importance of this vital
aspect. No doubt, there is no specific provision in the Advocates Act, 1961, nor there is any specific
Rule in the Bar Council of India Rules, 1975, which exclusively earmarks the area of social

59
P. K. Gandhi, Social Action Through Law (1985)
60
Hussainara Khatoon v. Home Secretary Bihar, AIR 1979 SC 1360
61
Sunil Deshta, "Changing Dimensions of Legal Profession and Social Responsibilities of Lawyers in India in the Era
of Globalization," Orient Journal of Law and Social Sciences, October 2009, Vol. Ill, Issue 11, p. 28 at 32

40
obligations and social responsibilities. But the statute do not categorically negates the very concept
of social responsibilities. The words "obligations an Advocate owes to society" do find a specific
mention, while laying down the Code of Legal Ethics for the advocates in the last line of Rule 46
of the "Standards of Professional Conduct and Etiquette." It clearly says that rendering legal aid
to the poor is one of the highest obligations and owes to the society.62 This is not the only obligation
of an advocate which he owes to society. The lawyer has numbe r of other obligations to the society
or to the community, for example, he is to help in maintenance of rule of law, duty to maintain the
integrity of the State, he should uphold the Constitution, he should promote the advancement of
justice and assist in the enforcement of fundamental rights of the people and so on. The All India
Bar Committee in its Report in 1953 under the leadership of Justice S. R. Das traced the history of
Indian Legal Profession and after giving a due consideration to the Report of Law Commission,
emphasized the need of obligation of advocates in these words: "The functions of the lawyers are
not confined to counseling, to advocacy in court and to routine of office practice; he has high duties
and responsibilities beyond these bread and butter activities. He must, not only add his contribution
to the improvement of the law, the courts and profession, but he must assume the obligation to
intelligently and carefully mould public opinion in spheres and areas where his training and
experience give him a peculiar competence and he must be prepared to perform public service
when duty dictates."63

It is only on January 15, 1962 when the Bar Association of India announced the publication of the
draft of code of ethics for the legal profession. It gave proper weightage to the observations made
by the All India Bar Committee. In the Code of Ethics, the "Duty to Public" found the first place
which read as under: "An advocate shall uphold the Constitution, help in maintenance of the Rule
of Law, promote the advancement of justice in enforcement of fundamental rights of the people."
It is a hard fact that while laying down these rules did recognize that there are a number of
obligations, some of them being the highest obligations an advocate owes to the society. Only
thing is that, we have not been able to codify them so far. The duty of rendering legal aid and
advice to the downtrodden and oppressed classes of people can itself become a light house to
ameliorate the darkness of injustice spread over the lives of millions of our people. The other

62
Professional Conduct and Etiquettes (Chapter II of Part VI of the Bar Council of India Rules, 1975 : Rule 46)
63
Report of AH India Bar Committee, 1953 under the Chairmanship of Justice S. R. Das of Supreme Court, which
submitted the Report in 1954.

41
important provision is Rule 2 of Section 1 of the Standards of Professional Conduct and Etiquette.
This deals with lawyer's duty towards court. The qualifying clause in it says that "bearing in mind
that the dignity of the judicial office is essential for a free community." So the respect to the courts
is directed to be maintained because it is essential for the survival of free community. Hence, the
survival of free community is a value to which the legal profession as well as the Bar is fully
committed. The survival of free community is a value most vital and dear to the legal profession.
The legal profession is independent from State control and has monopoly in its profession. Hence,
all these attributes are to be protected if we want the democracy to survive, if we want the free
community to survive. So this value of necessity of survival of free community can become, and
in reality it is the fountain source of hundreds of duties and obligations and social
responsibilities, legal profession, owes to the society. The important is that the lawyers should
protect and defend the very existence of the legal profession. They have to deal with a variety of
human relations. Therefore, the profession gives them special opportunities to equip themselves
with those qualities which count for pre-eminence in society. Truly admitting that the force
behind discharge of such responsibilities have to be voluntary. In such a category of social
responsibilities/obligations would fall all those duties which are essential to preserve our
democratic fabric, rule of law, social justice, independence of judiciary and the Bar and so on. A
thing which hampers the conditions of justice for the masses, that subverts the democratic fabric
of our system, interfere in the independence of judiciary and Bar would call for participative
action from the legal profession and call them upon for social responsibilities. And the guarantee
is that all the call would be responded, no matter whether there is sanction or no sanction behind
it. As a matter of fact, majority of the social responsibilities can be anchored to this single pillar
of survival of free community. Besides these, there are some other provisions in the Advocates
Act, 1961, which point towards the aspect of social responsibility of the legal profession.
Sections 6 and 7 of the Advocates Act enumerate the functions of the State Bar Council and Bar
Council of India respectively. Clause (eee) of sub- section (1) of Section 6 says that it is one of
the functions of the Bar Council to organise legal aid to the poor in prescribed manner. Section
6(2) further empowers the Bar Council to constitute funds for this very purpose. Further, Section
15(2) empowers the Bar Councils to make rules for organizing legal aid and advice to the poor.
On the similar analogy Section 7(l) (ib) empowers the Bar Council of India to organize and
render legal aid and advice to the poor. Further, Section 7(2) empowers to constitute funds for
giving legal aid and advice to the poor in prescribed manner.
42
Similarly, Rule 46 of the Standards of Professional Conduct and Etiquette under Chapter VI of the
Bar Council of India Rules 1975 casts a duty on the advocates to render free legal assistance to the
poor as one of the highest obligations an advocate owes to the society. Further, Rule 15 under
Chapter IX of the Bar Council of India Rules, 1975, dealing with conditions for enrolment as an
advocate. In addition to the provisions of Section 24 of the Advocate Act. Sub-rule (2) of this rule
is relevant for the purpose of this study. It read as under: "Enrolment (1) (2) Every candidate
seeking enrolment as an advocate shall be required to affirm and subscribe to the following
declarations: (a) "I shall uphold the Constitution and the laws." (b) "I shall faithfully discharge
every obligation cast on me by the Act and the Rules framed thereunder."

This rule is a paramount importance. This rule not only binds an advocate to abide by the
Constitution, as amended and interpreted by the judiciary of the land, and the laws of the land, but
also to faithful discharge of every obligation cast on him as emanating from the Act and Rules
framed thereunder. So an advocate like any other citizen, or rather than an ordinary citizen, is
bound by the law and Constitution of the land. Meaning thereby, the advocate is not above law.
No doubt, lawyer's loyalty is to the law. This aspect has been touched in Rule 15 of the Code of
Professional Conducts of the Bar Council of India Rules, 1975, wherein it is clearly laid down that
the lawyer is to bear in mind his loyalty to the law. The language or the words used i.e. "His loyalty
is to the law" is not intended to have a restricted meaning, rather, the lawyer's loyalty to the law
has wide meaning. It is confined with the solemn affirmation by an advocate before enrolment to
the effect that he would abide by the Constitution and the laws and that he would discharge every
obligation cast on him by the Act and the Rules, cannot but turn the needle to that point where
realization on the part of lawyers to respond to social responsibilities and social obligation is
marked.

43
5.3 JUDICIAL ATTITUDE TOWARDS LEGAL PROFESSION

There is no doubt that the legal profession has responded to the call to social responsibilities by
espousing the cause of public interests social interests and community interest. It is crystal clear
that in a system governed by rule of law judiciary is the final interpreter of the provisions of law.
Under this head, the researcher would try to gauge as to with what warmth and enthusiasm the
judiciary has responded in showing and laying down the highway path of social laying down the
highway path of social responsibilities of legal profession. Decisions of the High Courts as well
as the Supreme Court, besides the expert and considered opinions of the leading judges would
form the basis of this study.

Recognising the importance of the rule of the lawyers in general in creating an environment of free
community. Justice Dhawan of Allahabad High Court observed in the case of Harbans Lai Arora
v. Divisional Supdt. Central Railways,64 as early as 1960, that the Bar and Bench are the joint
guardians of the rule of law. It is their joint duty to create an atmosphere which will enable the
citizens of the Republic to enjoy that freedom from fear which can only come from the assurance
that the two guardians of freedom are always on the lookout for any temptation for arbitrary action
which may be looking in the darkness recesses of the all too, huma n executive mind, and from a
feeling of confidence that whenever and wherever in the Republic any act of Zabardasti or Zulum
takes place, the long arm of the law will reach forth and crush it.

In another case Dr. Hardit Singh v. Bhagat65, the Punjab and Haryana High Court has observed
that to preserve the administration of justice under the law is the special responsibilities of the
professional lawyer in the India Republic since in addition to his being the pleader of his client
and defender of his right, he is an officer of the court. Similarly, the Supreme Court has made a
pointed reference to this aspect in Bar Council of Maharashtra v. M. V. Dabholkar.66 Justice V.
R. Krishna Iyer said that the vital role of lawyers depends upon his probity and professional life
style. He observed that the central function of the legal profession is to promote the administration
of justice. As monopoly to the legal profession has been statutorily granted by the nation, it
obligates the lawyer to observe scrupulously those norms which make him worthy of the

64
Harbans Lai Arora v. Divisional Supdt. Central Railways, AIR 1960 SC 164
65
Dr. Hardit Singh v. Bhagat, AIR 1964 Punj. 277
66
Bar Council of Maharashtra v. M. V. Dabholkar. AIR 1975 SC 2092 at 2104

44
confidence of community in him as a vehicle of social justice. He further observed that law is not
trade briefs - no merchandise. This in addition to the normal bread and butter activities, the legal
profession is also entrusted with the tasks, outside his routine job to the tasks of ensuring social
justice, a clear pointer to the realization of social responsibilities.

Justice V. R. Krishna Iyer has more forcefully recorded his observations in the following words:
"The Bar is not private guild, like that of barbers, butchers and candle makers but by bold contrast
of public institution committed to public justice and pro-bono public service. The grant of
monopoly licence to practice law is based on the three assumptions: (1) There is a socially useful
function for the lawyers to perform. (2) The Lawyer is a professional person who will perform this
function. (3) His performance as a professional person is regulated by himself and more formally,
by the profession as a whole." The Supreme Court in Haniraj L. Chulani v. Bar Council of
Maharashtra and Goa,67 held that it is the obligation of the lawyer to maintain dignity and purity
of the profession. The Court held that only profession-oriented and service-oriented people join
the Bar and those not so oriented be kept out. The role of the advocate is essentially different from
the role of any other profession. The Supreme Court has rightly observed in R. D. Saxena v. Balram
Prasad Sharma,68 that, "it is high time for the legal profession to join hands and evolve a code for
themselves in addition to Advocates Act and Rules made thereunder and the Rules made by the
High Courts and Supreme Court, for strengthening the belief of the common man in the institution
of judiciary in general and their profession in particular. Creation of such faith and confidence
would not only strengthen the rule of law but also result in reaching excellence in the profession."
Legal profession did raise an effective legal voice through the famous Judges case,69 which helped
in expanding the whole concept of locus standi and gave birth to the chapter of Public Interest
Litigation. The lawyers have come to the service of the underprivileged and disadvantaged classes
of people through the famous cases of construction workers,70 bonded labour,71 slum-dwellers,
pavement dwellers, the languishing prisoner, under-trials,72 healthy environment,73 women and

67
Haniraj L. Chulani v. Bar Council of Maharashtra and Goa, AIR 1976 SC 1708
68
R. D. Saxena v. Balram Prasad Sharma, (2000) 7 se c 264 at 280
69
S. P. Gupta V. Union of India, AIR 1981 (Supp.) SC 87
70
Peoples' Union of Democratic Rights v. Union of India, AIR 1982 SC 147
71
Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802
72
Husainara Khatoon v. Home Secretary Bihar, AIR 1979 SC 1360
73
M. C. Mehta v. Union of India, AIR 1988 SC 1037; Vincent Panikulagora v. Union of India, (1987) 2 SCC 165

45
children74 and so on. The legal profession had made a remarkable contribution in helping the
judiciary in laying down the new horizons of public interest law in these cases resulting from
interpretation of the constitutional provisions in Part III as well as Part IV of the Constitution. The
gist of above pointed opinions with regard to social responsibilities of the legal profession may
appear to be too heavily dosed ideals to some readers. Such a feeling is quite natural also when we
see that there exist no specific statutes or constitutional provision directly fixing or enlisting the
obligations/responsibilities an advocate owes to the society. Accountability of the legal profession
to the public or the public interest is nowhere envisaged in any statutory provision or any rule
under the Act. If today we do not have a chapter on Social Responsibilities in the statute, it does
not mean that this is going to be the eternal truth. Sooner or later, legal profession and our system
of administration of justice in general would have to accept the social responsibility and
accountability as a goal, in the ultimate interest of social welfare, social justice and also in the
ultimate interest of the legal profession itself. The following observations of Justice D. A. Desai
points out that "it cannot be gainsaid that the profession has fallen in the estimate of the society. It
is living in its cherished complacency closing its eyes to regrettable realities. The present non-too-
respectable position arises from the maladjustment of the profession to the needs of legal service
and deprivation to consumers of such service and public accountability in the fast changing
society."75

These considered opinions have taken due note in the 131st Report of Law Commission which has
recognised the concept of accountability of the legal profession. This Report was laid in Parliament
on March 1989 and calls for devising ways and means to make the legal profession to play a
meaningful role in promoting quality of justice in the country.

74
M. C. Mehta v. State of Tamil Nadu, (1991) 1 SCC 293; Subhashini K. Reddy v. Bangalore Metropolitan Transport
Corporation, AIR 1999 Kant. 58
75
D. A. Desai, "Role and Structure of Legal Profession," Indian Bar Review 1981, Vol. 9, p. 112

46
5.4 POSITION ON SOCIAL RESPONSIBILITY

It fails to appreciate to have an insight into the actual working of the legal professionals in regard
to the understanding by them of their social responsibilities and the level to which these
responsibilities are responded to. Though not many, a good number of empirical research projects
have been undertaken by the law scholars, institutions, sociologists and academicians in the field
of law, legal system and legal profession. Result and findings of research works relevant to subject
are collated which will give a clear picture of factual position on awareness and practice by legal
profession of social responsibilities. It is not only in India that the lawyer's attitude towards social
change has been questioned. The researcher finds that in a scathing indictment of the American
Bar, President Jimmy Carter had said: "We are overlawyered-lawyers or great influence and
prestige led the fight against civil rights and economic justice - they have fought innovations even
in their own profession - lawyers as a profession have resisted both social change and economic
reforms."76

Thus, the picture of the legal profession's response to social responsibilities that emerges
consequent to the scanning of above mentioned literature is not very much reassuring. Some of the
studies referred above even go to the extent of expressing a total disappointment on this front. One
may pass off these observations as exaggerations or unwarranted generalizations not capable of
universal application. But that is not the solution of the problem. Moreover, in view of the almost
unanimity of those findings in pointing out that all is not well with the legal profession's response
to social responsibilities, it may be unwise to ignore these pointers what to talk of their total
rejection. It may, therefore, be summed up that the legal profession has not been a total failure in
responding to the call of social responsibilities. As a matter of fact, the lawyers have made
significant contributions on this front. One can't forget the lawyers' role as champions of under-
trial prisoners languishing in jails, women prisoners in police custody, bonded labour, the exploited
construction workers and so on. It is impossible to oversight the contribution made by the lawyers
in the development and growth of the expanded concept of locus standi, the concept of speedy trial
as a part of fundamental right under Article 21 of the Indian Constitution, and the incorporation of
the due process clause within Article 21 while interpreting the procedure established by law and
so on. The need of the hour is that the movement on the path of social responsibilities has to be

76
K. K. Venugopal, "The Legal Profession at the turn of the Century," 1989 (1) NLSC 121 at 129

47
broad based and mass-based. It has to be a continuous and never ending process until the country
reach orderly society governed fully by rule of law where justice social, economic and political
inform all the institutions of national life, where liberty, equality and fraternity belongs equally to
all, defacto and not merely dejure.

Inspite of criticism leveled against the legal profession, the profession has played and has to
continue to play a great role in the administration of justice. The lawyers have proved themselves
to be vital links in the chain of administration of justice between the litigant and the judge. It is a
truism that for a layman, the lawyer's functions are nothing more than advocacy and lawyering in
the courtroom. Inspite of the fact that today lawyers have been prevented from appearing as of
right many a tribunal, no one can say that he has no longer any place in society. Without the
assistance of the lawyer the litigant will not be in a position to place his exact case before court for
solution. It is only the trained and scientific mind of lawyer that can select the grain from the chaff
that could place what is material and essential before the court and assist the court in arriving at
the truth of the case within the minimum possible time. Without such assistance much time would
be consumed by the court in resolving the disputes between party and party. It is a hard reality that
the law ascribes very significant roles to the lawyers. The society has also great expectations from
the profession of the lawyers. He is expected to perform many important functions beyond his
bread and butter activities.

When a lawyer is lawyering, it is wrong to say that there are only two parties. The society is
standing as client of the legal profession. Social problems are there crying out to be solved. It is
for the profession to answer the challenge. The lawyer has not to wait for the problem to arrive at
his door-step. He should be able to fore-stall it by taking his professional skill to the people."77
The social responsibilities entrusted to the legal profession direct it to turn and synchronise its
efforts and activities to meet the aspirations and expectations of the society and community from
which it draws its sustenance. Truly admitting that the lawyers should be ready to practise his
profession by climbing up the vantage ground of science instead of governing his life below in a
mean but gainful application of all the little arts of chicane.78

77
D. K. Sampath, "Structure and Role of Legal Profession," CULR 1980,Vol. 4, p. 318 at 319
78
S. Parameshwaran, "Quo Vadis - Legal Profession?" KLT 1978 (Journal Section), p. 3 at 4

48
Many of the lawyer never visualise as what the society expects of the legal profession. For them
responsibilities begin and end with serving their client and for them law is only a set of mechanical
roles which they attempt to manipulate for the interest of the clients. A lawyer with such an outlook
on his profession is not likely either to attract his clients or to serve them well, nor will he enjoy
the solid and durable satisfaction that comes from a well rounded complete life in law.79

Arthur T. Vanderbilt has stated five functions of great lawyers, namely, (i) counseling, (ii)
advocacy, (iii) improving the profession, the courts and the law, (iv) leadership in moulding public
opinion, and (v) public service. Keeping these in view, the researcher would proceed to earmark
the areas which call upon the legal profession to social responsibilities.

1. Improvement in Law Vanderbilt has rightly elaborated this duty to improve the profession, the
court and the law. He has stated that with the advancement of science and technology, the law as
social science may face great danger of being extinguished if it lags behind and does not awake
from lethargy. Hence, the need of the hour is to adjust and synchronise the law with the changing
needs of the society. Towards this end, the legal profession must set up adequate machinery for a
continuous study and analysis of legislation and judicial pronouncements and it should make its
views available to the legislatures as well as to the public at large. The legal profession should give
a new orientation to the instruction of law and justice so that these functions in response to the
Zeitgeist of the time. The lawyer as a social thinker has to play a special role for the solidarity,
unity, integrity and welfare of the society. The need of the time is to directly call for the members
of legal profession individually and collectively to the call towards social responsibilities to help
in serious problems facing the community, concerning law, lawyers and justice.

2. Moulding Public Opinion Another important function of a lawyer alive to the social
responsibilities is leadership in moulding public opinion i.e. the task of acting as an intelligent and
unselfish leader of public opinion. No individual class in our society is better able to render real
service in the moulding of public opinion. In this context the Indian legal profession did play a
praise worthy role during the last days of British Raj in India, when they became the first time to
imbibe the spirit of resistance to the foreign rule at the call of Mahatma Gandhi, himself a lawyer
of indisputable eminence. There is stronger current need for the legal profession to be in the

79
Arthur T. Vanderbilt, Chief Justice of New Jersy State in United States while stating the functions of great lawyers
quoted in Sanjiva Row, Advocates Act and Legal Practitioners 254 (1987)

49
forefront in remodeling of our social system and in helping to achieve the goals enshrined in our
Constitution which envisages the setting up of a secular, democratic socialist system free from
exploitation of any kind of any person. The so far unsatisfactory response of the legal profession
to this arena is a big challenge to it.

3. Public Service Public service, to which every great lawyer must be prepared is the next among
the important functions of the lawyers, who bow before the alter of social responsibilities. Public
service here means answering the call for the service to society, pro bono service, as and when the
call comes. But it has to be a life-long career by actual practice of it in day to day life. If one goes
on waiting for the appropriate time and opportunity when he would rise to the call of public service,
it may perhaps never come. The best time to jump into the fray of public service is 'now' and Tiere'
only. One has only to have those eyes. There is no dearth for the avenues for pro bono services in
the present circumstances. In the words of Arthur T. Vanderbilt: "There is no sadder sight in the
legal profession than that of a lawyer who has long dreamed of unselfish public service but who
has been so engaged in serving private clients that when the call does come to him for public career
he has so lost contact with the spirit and problems of the day that his efforts in the public interest
prove abortive."

Duty of public service has a very vast area and includes understanding the problems of the society
and extending cooperative participation in finding out their solutions. The socio-legal evils of the
society will expect the members of the profession, learned in law, to respond to social
responsibilities. Dowry deaths, oppression against women, exploitation of the weaker sections of
the society, bonded labour, under-trial prisoners, corruption in administration, denial of rights,
claims and entitlements to the underprivileged and disadvantaged persons and the consequent
chronic injustice to them, illegal incarceration of under-trials and detenues, atrocities by State
apparatus, violation of human rights, and then the terrorist menace are some of the problems facing
the society, which cannot be tackled if left to the State alone. These problems knock at the doors
of the wisdom, and intelligence of the lawmen, the legal professionals to provide possible solution
to these problems or suggestions as to how to best tackle with these complex and multidimensional
problems. In India, the public lawyers would solve the problem in a lawful and orderly manner.

50
4. Avoiding Law Delays Justice delayed is justice denied and denial of justice to the masses or a
certain sections of people all the times hits at the very confidence of the people in the system of
administration of justice. It breeds contempt for the whole system, law and the courts. It is a real
and potential threat to the stability of an orderly society and to the survival of a free community.
Lawyers alone can save such a situation to become a reality. They have a very significant role to
perform on this front of avoiding law delays, particularly those law delays which are avoidable
and which if not avoided, will breed injustice to the people, to the society. It is generally said that
the law delays in most of the cases are the result of fewer number of Judges. This is not the
complete appreciation of the whole problem. If lawyers individually and collectively as legal
profession are determined to avoid delays more than 50% of the law delays can be averted without
much difficulty and without bringing in any increase in the number of Judges. In 2019, there were
66,876 cases pending in the Supreme Court. And according to the latest statistics available, the
researcher find that in the country's 21 High Courts, where 48,17,903 cases are awaiting disposal.
It was found that at subordinate level pending cases stood at 2,79,53,070. The main reason for this
is the Judges vacant posts, adjournments, delay in investigation, delay in service of summons, etc.

5. Dispute Resolving Dispute resolving here connotes the non-formalistic, out of court settlements
of disputes through negotiation, mediation and reconciliations. The 114 th Report of the Law
Commission of India has recommended structural and institutional reform in the system of justice
far beyond the conventional litigation process. It expressed that informal dispute resolution
mechanisms outside the court system, such as Lok Adalats, Nayaya Panchayats, Tribal Councils,
Arbitration Councils, Special Tribunals, Professional Committees were certainly better and
preferable in many cases. There is imminent need for the legal profession to comprehend the role
of these popular and noble institutions in dispute resolving. Lawyers can definitely play a very
important and useful role, if they adopt themselves to the functioning of these institutions. But
unfortunately the role of the lawyers in this field, so far, has not been encouraging. The lawyers
have been viewed with suspicious on this front and the tendency has been to have minimum
involvement of the legal practitioner in these institutions, for some obvious reasons. The
formalistic mechanism is very cumbersome, burdensome, dilatory and expensive. One needs great
courage to approach the Courts to vindicate one's rights. Even lawyers themselves are scare of
taking their own cases to the courts for settlement, until and unless dragged by the opposite party.
But the fact remains that the lawyers can and should try to arrive at dispute resolution out of the

51
court in a large number of cases and thus reduce the pressure on the already overburdened courts.
The words of Abraham Lincoln addressed to the lawyers need a specific mention here:
"Discourage litigation, persuade your neighbours to compromise whenever you can point out to
them how the nominal winner is often a real loser - in fees, expenses and waste of time." Mahatma
Gandhi, undisputably a lawyer of eminence realized, while practicing as barrister, that, "the true
function of a lawyer was to unite the parties driven as under". He observed that, "The lesson was
so indelibly burnt into time that a large part of my time during the twenty years of practice as a
lawyer was occupied in bringing about private compromises of hundreds of cases."

6. Strengthening the Legal Profession A number of duties are also cast on the legal profession
in the social responsibilities arena which tries to strengthen the legal profession itself for being
better equipped to meet the expectations of the society and to continuously deserve high esteem
and respect of the society.

(a) Legal education for those who belong to the profession as well as for those in one such duty.
Legal education is required to the new comers to the profession as well as to those who wish to
specialize or to sharpen their tools and thus to continue their legal education in breadth and depth.
A paractising lawyer has been as well as obligation to continue his legal education throughout his
professional life, which would be conducive to professional competence and responsibility. The
Bar Council of India and the Bar Association have special responsibility in this regard.

(b) The beginners in the profession of law have to face very tough time to begin with. Their
difficulties are insurmountable. And in that difficult time, there is none to reassure him or
encourage him. It is essential that the legal profession must chalk out a programme that the
beginners are provided subsistence and at the same time imparted a sense of belonging to the
profession. It is the responsibility of the legal profession to take care of the new comers with
honour and dignity and not with neglect and disregard. The lawyer of today is the judge of
tomorrow. The legal professionals are the tiny plants of the future. A tender care and upbringing
of the new entrants to the profession, therefore, becomes the responsibility of the legal profession.

7. Legal Aid The equal and even handed justice has been a cherished ideal of administration of
justice since the dawn of civilization. In the wake of changing social, economic and political
conditions in the modern world, the social scientists, jurists and politicians gave their thoughts to
the philosophy of legal aid and they made the State responsible for eliminating social and economic

52
wrongs, as also ensuring just and decent human living to the people at large. Providing free legal
aid to the poor is one of the most essential duties and obligations the lawyers owe to the society.
Rule 46 of the Standards of Professional Conduct and Etiquettes (Legal Ethics) ordains the legal
profession that extending free legal aid to the poor, is one of the highest obligations the lawyers
owe to the society. This is subject to the economic condition of the lawyer himself so it is not a
mandatory provision. It is a mere directive. The scheme of our constitutional goal, the directives
and the commitment of our system to democratic norms and main thrust of all our plans and our
programmes being eradicate of poverty, upliftment of the downtrodden, all these values and
pointers indicate to the direction that the poor people must not be deprived of justice, only by
reason of being poor. So providing of free legal aid becomes the part and parcel of our
commitment. Inspite of all the clear directives, somehow or other, the responsibility of the free
legal aid to the poor has not been discharged with any degree of satisfaction to the society to the
legal profession and as well as to the underprivileged and disadvantaged masses. There appears to
be some inherent inertia and indifference within the legal profession. No doubt the society has also
to contribute in achieving this goal, but it is also indisputable that the main initiative and thrust has
to come from the legal profession itself. By responding to the responsibility the legal profession
would definitely rises high in the esteem and honour of the society as a noble profession. The
lawyers can perform the duty more effectively in a collective manner.

53
 CHAPTER- 6
DIMENSIONS OF LEGAL PROFESSION : A CALL TOWARDS
SOCIAL RESPONSIBILITIES
The journey of the State, its organs and the allied institutions on the road to welfare-state left no
field of human activity untouched. This led to development of new concepts and new doctrines.
The concepts of social responsibility and social cost-effect came to be recognized. The
contribution of the modern times is the doctrine of social responsibilities. In early twentieth century
State nearly controlled everything. There ha s been a growing realization and awakening among
the countries of the world including socialist as well as capitalist countries, for the need to evolve
and develop the doctrine of social responsibility. Only that nation is prosperous and progresses
whose citizens do their respective duties with the utmost devotion and dedication. Everyone,
therefore to be wide awake to their respective sense of duty for betterment and progress of society,
thereby ensuring betterment and progress of nation and world at large. It may be clearly stated that
the social responsibility here does not imply the traditional and routine legal services rendered by
the lawyers. It definitely means something more than that. It envisages the duty to help and protect
the society in overcoming the major problems facing it which cannot be solved by the State and
its agencies above and which need the participative cooperation of different sections of society
including the lawyers for their solution. It is the right time which call for the members of legal
fraternity individually and collectively to respond to the call toward social responsibilities to help
in solving numerous grave problems facing the community, concerning law, lawyers and justice.

LAW AND DIALECTICS ON SOCIAL RESPONSIBILITIES

Society is ever changing. It is always dynamic. It is never static. The politician, the clergy or the
merchant man cannot deliver the goods to the poor and downtrodden of our vast country. Only the
lawyers, by strict adherence of truth, honesty and justice can do real help to weaker section. The
lawyer must evaluate their role within legal profession and in the broader community at a time of
rapid social change. There is an imminent need to break from the traditional laissez faire norms of
society. "Beaten path is the safe path," no longer holds good. The lawyer must respond to the
changing needs of the society. The lawyer as a social thinker ha s to play a special role for the
solidarity, unity, integrity, welfare and good of the society. There cannot be more appropriate, than
the present time which direly call for the members of the legal profession individually and

54
collectively to respond to the call towards social responsibilities to help in serious numerous
problems, facing the community, concerning law, lawyers and justice.80 It is a truism that absence
of sanction behind the social responsibilities which the legal profession owes to the society, and
resulting lack of enforceability is not the cause of much concern. There is no specific set of
provisions or rules in the relevant Act and Rules fixing and enlisting social responsibilities of the
legal profession, does not mean that the statute is totally silent on this aspect. A careful scrutiny of
the relevant law would lead us to conclude otherwise. There are numerous indicators in the relevant
statute which recognize and point towards the importance of this vital aspect.

The other important provision is Rule 2 of Section 1 of the Standards of Professional Conduct and
Etiquette. This deals with lawyer's duty towards court. The qualifying clause in it says that "bearing
in mind that the dignity of the judicial office is essential for a free community." So the respect to
the courts is directed to be maintained because it is essential for the survival of free community.
Hence, the survival of free community is a value to which the legal profession as well as the Bar
is fully committed. The survival of free community is a value most vital and dear to the legal
profession. The legal profession is independent from State control and has monopoly in its
profession. Hence, all these attributes are to be protected if we want the democracy to survive, if
we want the free community to survive. So this value of necessity of survival of free community
can become, and in reality it is the fountain source of hundreds of duties and obligations and
social responsibilities, legal profession, owes to the society. The important is that the lawyers
should protect and defend the very existence of the legal profession. They have to deal with a
variety of human relations. Therefore, the profession gives them special opportunities to equip
themselves with those qualities which count for pre-eminence in society. Truly admitting that the
force behind discharge of such responsibilities have to be voluntary. In such a category of social
responsibilities/obligations would fall all those duties which are essential to preserve our
democratic fabric, rule of law, social justice, independence of judiciary and the Bar and so on.
Anything which hampers the conditions of justice for the masses, that subverts the democratic
fabric of our system, interfere in the independence of judiciary and Bar would call for participative
action from the legal profession and call them upon for social responsibilities. And the guarantee
is that all the call would be responded, no matter whether there is sanction or no sanction behind

80
Sunil Deshta, "Changing Dimensions of Legal Profession and Social Responsibilities of Lawyers in India in the
Era of Globalization," Orient Journal of Law and Social Sciences, October 2009, Vol. Ill, Issue 11, p. 28 at 32.

55
it. As a matter of fact, majority of the social responsibilities can be anchored to this single pillar
of survival of free community. Besides these, there are some other provisions in the Advocates
Act, 1961, which point towards the aspect of social responsibility of the legal profession. Sections
6 and 7 of the Advocates Act enumerate the functions of the State Bar Council and Bar Council of
India respectively. Clause (eee) of sub-section (1) of Section 6 says that it is one of the functions
of the Bar Council to organise legal aid to the poor in prescribed manner. Section 6(2) further
empowers the Bar Council to constitute funds for this very purpose. Further, Section 15(2)
empowers the Bar Councils to make rules for organizing legal aid and advice to the poor. On the
similar analogy Section 7(l)(ib) empowers the Bar Council of India to organize and render legal
aid and advice to the poor. Further, Section 7(2) empowers to constitute funds for giving legal aid
and advice to the poor in prescribed manner. Similarly, Rule 46 of the Standards of Professional
Conduct and Etiquette under Chapter VI of the Bar Council of India Rules 1975 casts a duty on
the advocates to render free legal assistance to the poor as one of the highest obligations an
advocate owes to the society. Further, Rule 15 under Chapter IX of the Bar Council of India Rules,
1975, dealing with conditions for enrolment as an advocate. in addition to the provisions of Section
24 of the Advocate Act. Sub-rule (2) of this rule is relevant for the purpose of this study. It read as
under: "Enrolment (1) (2) Every candidate seeking enrolment as an advocate shall be required
to affirm and subscribe to the following declarations: (a) "I shall uphold the Constitution and the
laws." (b) "I shall faithfully discharge every obligation cast on me by the Act and the Rules framed
thereunder." This rule is a paramount importance. This rule not only binds an advocate to abide by
the Constitution, as amended and interpreted by the judiciary of the land, and the laws of the land,
but also to faithful discharge of every obligation cast on him as emanating from the Act and Rules
framed thereunder. So an advocate like any other citizen, or rather than an ordinary citizen, is
bound by the law and Constitution of the land. Meaning thereby, the advocate is not above law.
No doubt, lawyer's loyalty is to the law. This aspect has been touched in Rule 15 of the Code of
Professional Conducts of the Bar Council of India Rules, 1975, wherein it is clearly laid down that
the lawyer is to bear in mind his loyalty to the law. The language or the words used i.e. "His loyalty
is to the law" is not intended to have a restricted meaning, rather, the lawyer's loyalty to the law
has wide meaning. It is confined with the solemn affirmation by an advocate before enrolment to
the effect that he would abide by the Constitution and the laws and that he would discharge every
obligation cast on him by the Act and the Rules, cannot but turn the needle to that point where

56
realization on the part of lawyers to respond to social responsibilities and social obligation is
marked.

Inspite of criticism leveled against the legal profession, the profession has played and ha s to
continue to play a great role in the administration of justice. The lawyers have proved themselves
to be vital links in the chain of administration of justice between the litigant and the judge. It is a
truism that for a layman, the lawyer's functions are nothing more than advocacy and lawyering in
the courtroom. Inspite of the fact that today lawyers have been prevented from appearing as of
right many a tribunal, no one can say that he has no longer any place in society. Without the
assistance of the lawyer the litigant will not be in a position to place his exact case before court for
solution. It is only the trained and scientific mind of lawyer that can select the grain from the chaff
that could place what is material and essential before the court and assist the court in arriving at
the truth of the case within the minimum possible time. Without such assistance much time would
be consumed by the court in resolving the disputes between party and party. It is a hard reality that
the law ascribes very significant roles to the lawyers. The society has also great expectations from
the profession of the lawyers. He is expected to perform many important functions beyond his
bread and butter activities. When a lawyer is lawyering, it is wrong to say that there are only two
parties. The society is standing as client of the legal profession. Social problems are there crjdng
out to be solved. It is for the profession to answer the challenge. The lawyer has not to wait for the
problem to arrive at his door-step. He should be able to fore-stall it by taking his professional skill
to the people."81 The social responsibilities entrusted to the legal profession direct it to turn and
synchronise its efforts and activities to meet the aspirations and expectations of the society and
community from which it draws its sustenance. Truly admitting that the lawyers should be ready
to practise his profession by climbing up the vantage ground of science instead of governing his
life below in a mean but gainful application of all the little arts of chicane."82

Many of the lawyer never visualise as what the society expects of the legal profession. For them
responsibilities begin and end with serving their client and for them law is only a set of mechanical
roles which they attempt to manipulate for the interest of the clients. A lawyer with such an outlook
on his profession is not likely either to attract his clients or to serve them well, nor will he enjoy

81
D. K. Sampath, "Structure and Role of Legal Profession," CULR 1980,Vol. 4, p. 318 at 319.
82
S. Parameshwaran, "Quo Vadis - Legal Profession?" KLT 1978 (Journal Section), p. 3 at 4.

57
the solid and durable satisfaction that comes from a well rounded complete life in law.83 Arthur T.
Vanderbilt has stated five functions of great lawyers, namely, (i) counseling, (ii) advocacy, (iii)
improving the profession, the courts and the law, (iv) leadership in moulding public opinion, and
(v) public service. Keeping these in view, the researcher would proceed to earmark the areas which
call upon the legal profession to social responsibilities.

83
Arthur T. Vanderbilt, Chief Justice of New Jersy State in United States while stating the functions of great
lawyers quoted in Sanjiva Row, Advocates Act and Legal Practitioners 254 (1987).

58
 CONCLUSION
An advocate while discharging his professional assignment has a duty towards his client, a duty to
his opponent, a duty to the court, a duty to the society at large and a duty to himself. It requires
high degree of probity and poise to strike a balance to arrive at the place of righteous stand, during
the times when there are conflicting claims. An advocate is also an office of the Court who has the
responsibility to render services of sound quality. Deficiency is services in the nature of absence
when the matters are scheduled, filing of incomplete and inaccurate pleadings, lots of time even
illegible and without personal check and verification, the nonpayment of court fees and process
fees amount to deficiency in work. Usually the act of an Advocate affects only to his clients but in
certain circumstances persons who are directly injured by the acts of the advocates or omissions
can also bring an action against him. An Advocates liability to the disappointed beneficiary is
recognised in many jurisdictions. Legal profession does not allow an advocate to withdraw his
liability for deficiency in services. If a legal professional contracts out his liability for deficiency
in services such acts are barred under Law and puts prohibition against such activities to protect
the interests of the clients from the unscrupulous legal professionals. According to the study there
is a lot of variation in the characteristics of legal malpractice cases. The dimensions characterizing
lawyers‟ malpractice are more extensive in nature and the issues that arise differ in important ways
depending on those dimensions. As one would expect, there is a lot of variation in the
characteristics of legal malpractice cases. We would argue that the variation in this area of
professional negligence is substantially greater than in the most visible area, medical negligence.
The dimensions characterizing lawyers‟ malpractice are more extensive than those characterizing
medical malpractice, and the issues that arise differ in important ways depending on those
dimensions. The relationship which is shared between an advocate and his client is a relationship
of trust also known as fiduciary relationship. In this a lawyer is responsible and has the liability to
keep the conversation relating to case matters private and maintain secrecy. If such measurements
are not being taken by an advocate hired by a person to resolve the matter involving and having
knowledge of Law which thus requires a legal professional to deal with certain matters by
productively using his competence. If the advocate does not respect the relationship and fail to
maintain the secrecy about the case matter therefore he is deficient in rendering quality sound
service which he is bound to render. I want to conclude that it is not the number of laws or the out-

59
dated or old laws which cause problem but it is the ineffective and incompetent mechanism which
implement them are the real problems.

There is no doubt that legal profession is a career of service to the community. Lakhs of people
are engaged in this service to society in our country as elsewhere. In this context for resorting the
integrity of the legal profession, it is essential for the lawyers to make concerted efforts for
improving the delivery of legal services. The crisis of public confidence faced by the legal
profession today needs to be cured lest it may become difficult or even impossible to be endured
tomorrow. At present, the society is moving very fast. Law, lawyers and judiciary are not in
position to keep pace with fast moving society. The legal profession has to be sensitive to the
merging social and economic trends which regulate affairs of the society. It has to be alive to the
challenges posed by liberalization and globalization. Globalization has also affected our National
Legal System. The legal profession, if it is a responsible profession, has to tune and synchronize
itself to the new expectations of the public interest in the civilized society. It has to act as an
instrument of social change, as a catalyst of moulding public opinion. The legal profession has to
order this conduct to give effect to the aspirations of the people in accordance with the new
commitments, new goals our constitutional scheme. The need of the hour is that the lawyers have
to act as reconcilers, negotiators, arbitrators between the conflicting interests of the clients, groups
and the society. It ha s to be understood that law, after all, is not a static phenomenon. It is a
dynamic and evolving institution which must take adequate notice of and accommodate competing
and conflicting, interests-individual, social and public interests. The role of the lawyer, in the arena
of social responsibilities, has to be that of a watchdog of the larger interests of the society. He must
be able to identify the emergent social economic, political and legal problem of the society and
suggest their solution much before the critical stage is reached, and create situation for adopting
the legal system to the needed reforms and change. The path of social responsibilities is not a bed
of roses. It is a hazardous path. It is a path of sacrifice, service, devotion and dedication. It is a
path where duties are performed not with an eye on the returns or the rewards. The greatest reward
is the satisfaction that one has done his duty, and one is regarded so in the eyes of others. For the
legal profession a s whole there is no alternative to this path. The legal profession cannot afford to
side-track this path. As a matter of fact, legal profession could not avoid traversing this path in the
past nor it can do so in future. The very culture of the legal education, the very intuition, instinct
and impulse of being a lawyer, we should say a true lawyer, will compel one's conscience, one's

60
morality to stand u p and take-up the task of social responsibilities besides one's normal routine
avocation. And those of our lawyers brethren who have never felt the impulse of serving the
society, from which they draw their sustenance, in overcoming the serious problems in the field of
law and social justice, the researcher is afraid, are to be termed, with due apologies, not as true
lawyers. They are lawyers not in the professional sense, they are lawyers only to the extent that
consider law only a s business, trade or commerce and not a profession, what to talk of a noble
profession. They cannot afford to take up the highly responsible task of acting as social engineers.
And a reality, the social responsibilities chapter in the legal profession is out of syllabus for them.
Social responsibilities do not form the course-content of law studies for such of our lawyer
brethren. One should not give u p the hope that the legal profession is capable of responding to the
call of social responsibilities. What is lacking is the intensity and emphasis of creating awareness
among them to rise and awake to the call of the times.

The image of the legal profession in the face of new challenges in the post-independence scenario
ha s not been that much reassuring. Our new constitutional commitments, our new social, political
and economic goals to fight with inequalities, to eradicate poverty and to usher in a social order
informed by social justice demanded innovative techniques and novel approach on the part of the
legal profession. But the inertia to stick to status-quo came in the way, and the fruits of the
independence achieved could not reach majority of our masses who were in disadvantaged
positions, socially, economically and educationally. This adversely affected the confidence of the
masse s in the whole system of administration of justice and the legal profession, being in the
pivotal position in the system was bound to face adverse public scrutiny, its prestige, esteem and
honour declined considerably in public eye. This was due to poor lawyers' response to their social
responsibilities which they owe to the society, the community and the nation. The performance of
the disciplinary machinery of self regulation of the lawyers conduct ha s also not been satisfactory,
as is made out in the study on the basis of the decided cases by the disciplinary committees of the
different Bar Councils of the States and the Bar Council of India. There is no denial from the truth
that the society has an interest in a disciplined profession which alone can best subserve an orderly
society. A weekly disciplined profession cannot be expected to respond strongly to the social
responsibilities. So, if the disciplinary machinery of the Bar Council of India is incapable of
cleansing the legal profession from the unprofessional elements through strict enforcement of the
code, it would only weaken the profession as a whole. The special privileges of camera

61
proceedings which are aimed at protecting the lawyers from public censure, appear somehow or
other, to have been extended to mean protecting them from adequate sanctions as well. This
appears to be due to two reasons. Firstly, because the respective Bar Councils, which are the
disciplinary authorities are the elected bodies, the elected judiciary has failed to perform the
judicious functions, judiciously. Secondly, the Bar Councils have to play a double role, i.e. it has
the dual responsibilities of protecting the rights and interests of the members of the Bar, as well as
disciplining them, the roles conflicting with each other. The result has been that the lines of
demarcation have been towards the first role, i.e. protecting the interests of the legal professionals.
In addition to these factors, the disciplinary bodies also do not have representation of the interests
of the consumers of justice and the complainants, hence their verdicts also lack fuller
considerations or law involved in such disciplinary proceedings.

SUGGESTIONS
In view of the conclusion drawn of the research, the researcher propose to advance the following
suggestions which can contribute to establish a system in which the legal health of our community
will be preserved and system of administration of justice will be strengthened and the people's
confidence in it will usher in an era of a strong and powerful democratic fabric with enhanced
esteem for the legal profession:

 The first and most important need is to create a greater awareness and deeper understanding
among the law professionals about the social responsibilities. The lawyers in general
cannot afford to run away from their social responsibilities. The social interest, the public
interest, the interest of social justice, the interest of preservance of the fabric of our
democratic republic and survival of free community, and last but not the least, the interest
of legal profession in its status of independence and monopoly, all in one voice, demand
of responsible lawyers, the great lawyers to respond to the call towards social
responsibilities. A rejection to this call will hit the legal profession the most, besides of
course hitting considerably the other interests also. For this, the Universities and colleges
have to devise and design their courses accordingly. The researcher do not find any such
topic on social responsibilities of the legal profession in any curriculum of the country.
Therefore, there is a need for introducing a special course on "Legal Profession and Social

62
 Responsibility both in LL.B. and LL.M. level. The course should be a compulsory course
for all.
 The course content of the law studies in general both at LL.B. and LL.M. should also
include, besides the case law method, the emphasis on skill training in the lawyering to the
future lawyers. The skills should include the art of interviewing, the science and art of
negotiation, reconciliation. There should be specialised skilled training in the art and
science of problem solving, with the emphasis on study of dispute resolving techniques
and skills. The faculties of the law students, to find innovative ways and means for the
problems facing them, must be developed in a creative way by applying the modern
educational and psychological teaching aids. They should be encouraged to come out with
their suggestions by exposing them to real problems in the selected fields.
 There is need for evolving machinery at all levels, i.e. the National, State and District level,
whose function would be to continuously study and survey, research and investigate the
fields into which the legal profession is required to undertake its social responsibilities.
This machinery should earmark the resources and men available in the legal professionals
at their respective levels who would perform the needed pro-bono services. The Bar
Council of India, the State Bar Councils and the Bar Associations must be activated to
undertake this task. These machineries can be named as National Committee on Social
Responsibilities and similarly and State Committee and District Committees. The areas to
be undertaken for survey can be several such as bonded labour, the labour in the
unorganised sector, the tribal people's problems, oppression against women, the child
labour, the needed law reforms and so on.
 There is a need to establish primary legal clinics which should give legal advice to the
people at reasonably cheaper rates and try to solve these legal problems resulting in better
legal health of the community. The complicated cases can be sent to the bigger law clinics
at the Tehsil or district level only the cases which could not be sorted out in these clinics
can be taken upto the courts. This would absorb a large numbe r of trained lawyers and
help in reducing the overcrowding of lawyers in the courts, thereby lessening unhealthy
competition and improving legal services. This would also enable the legal profession, with
the support from the State, to respond actively to the social responsibilities it owes to the
society. The emphasis of the scheme should be on preventive legal services.

63
 On the question of the legal profession there must be a system under which the State Bar
Council prepare an annual report on the working of the legal profession including focus on
problems face, the lawyers genuine demands, the functioning of disciplinary authorities,
the pro-bono services, the lawyers' strikes, and all the related aspects. On the basis of these
reports and its own experience the Bar Council of India should prepare a comprehensive
report every year which should be placed before the Parliament. The nation should have an
opportunity to have a firsthand information on the problems faced by the legal profession.
A national debate can definitely help find out solution to their problems. Moreover, the
necessary law reforms can be made as and when they are needed.

64
 BIBLIOGRAPHY
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65
  Barhat, Virendra Singh, Judicial Courts v. Lok Adalats, AIR 1987 (Journal Section), p. 5
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Section), p. 14
 Radha Binod Pal, "Professional Ethics," AIR 1961 (Journal Section), p. 65
 Sunil Deshta, "Changing Dimensions of Legal Profession and Social Responsibilities of
Lawyers in India in the Era of Globalization," Orient Journal of Law and Social Sciences,
October 2009, Vol. Ill, Issue 11, p. 28 at 32
 Arthur T. Vanderbilt, Chief Justice of New Jersy State in United States while stating the
functions of great lawyers quoted in Sanjiva Row, Advocates Act and Legal Practitioners
254 (1987)
 Sunil Deshta, "Changing Dimensions of Legal Profession and Social Responsibilities of
Lawyers in India in the Era of Globalization," Orient Journal of Law and Social Sciences,
October 2009, Vol. Ill, Issue 11, p. 28 at 32.
 K. Sampath, "Structure and Role of Legal Profession," CULR 1980,Vol. 4, p. 318 at 319.
 S. Parameshwaran, "Quo Vadis - Legal Profession?" KLT 1978 (Journal Section), p. 3
 Arthur T. Vanderbilt, Chief Justice of New Jersy State in United States while stating the
functions of great lawyers quoted in Sanjiva Row, Advocates Act and Legal Practitioners
254 (1987).
Journals
 Rama Swamy Sarma, Lawyer's Role in Present Society, Andhra Law Times 1987 (Journal
Section), p. 14.
 Radha Binod Pal, "Professional Ethics," AIR 1961 (Journal Section), p. 65
 Sunil Deshta and Kiran Deshta, Practical Advocacy of Law 109 (2006); see also Justice
Ismail, "Profession Ethics and Etiquette," The Law Weekly, 17 June , 1978, Vol. XCI (91),
p. 77
 Lisa H. Newton, "The Internal Morality of Corporation," 5 J. Bus Ethics 249 (1986)
 Parker, Stephen and Sampford, Charles (eds.) Legal Ethic and Legal Practice -
Contemporary Issues, (1995).
 Sharma, K. L., Sociology of Law and Legal Profession (A Study of Relations between
Lawyers and their Clients), (1984).

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