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Mubashir Malik

Advocate High Court of J & K, Srinagar

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Malik Mubashir

The word ethics is derived from the Greek word ethos (character), and from the Latin word mores (customs). Together they combine to define how individuals choose to interact with one another. In philosophy, ethics defines what is good for the individual and for society and establishes the nature of duties that people owe themselves and one another.

Legal profession is noble profession. The nobility of the legal profession is maintained by the adherence and observance of a set of professional norms by those who adopt this profession. It is known as legal ethics or the ethics of the legal profession. The fundamental of the legal ethics is to maintain the owner and dignity of the law profession, to secure a spirit of friendly cooperation between Bench and Bar in the promotion of highest standard of justice, to establish honorable and fair dealings of the counsel with his client, opponent and witness, to establish a spirit of brotherhood with bar.

Advocates, in addition to being professionals, are also officers of the courts and play a vital role in the administration of justice.

Accordingly, the set of rules that govern their professional conduct arise out of the duty that they owe the court, the client, their opponents and other advocates.

Rules on the professional standards that an advocate needs to maintain are mentioned in Chapter II, Part VI of the Bar Council of India Rules. These rules have been placed there under section 49(1)(c) of the Advocates Act, 1961.

RULES ON AN ADVOCATE’S DUTY TOWARDS THE COURT

Act in a dignified manner
Respect the court
Not communicate in private
Refuse to act in an illegal manner towards the opposition
Refuse to represent clients who insist on unfair means
Appear in proper dress code
Refuse to appear in front of relations
Not to wear bands or gowns in public places
Not represent establishments of which he is a member
Not appear in matters of pecuniary interest
Not stand as surety for client
RULES ON AN ADVOCATE’S DUTY TOWARDS THE CLIENT

Bound to accept briefs.
Not withdraw from service.
Not appear in matters where he himself is a witness.
Full and frank disclosure to client.
Uphold interest of the client.
Not suppress material or evidence.
Not disclose the communications between client and himself.
An advocate should not be a party to stir up or instigate litigation.
An advocate should not act on the instructions of any person other than his client or the client’s authorized agent.
Not charge depending on success of matters.
Not receive interest in actionable claim.
Not bid or purchase property arising of legal proceeding.
Not bid or transfer property arising of legal proceeding.
Not adjust fees against personal liability.
An advocate should not misuse or takes advantage of the confidence reposed in him by his client.
Keep proper accounts.
Divert money from accounts.
Intimate the client on amounts.
Adjust fees after termination of proceedings.
Provide copy of accounts.
An advocate shall not enter into arrangements whereby funds in his hands are converted into loans.
Not lend money to his client.
Not appear for opposite parties.
RULES ON ADVOCATE’S DUTY TO OPPONENTS

Not to negotiate directly with opposing party.
Carry out legitimate promises made.
RULES ON AN ADVOCATE’S DUTY TOWARDS FELLOW ADVOCATES

Not advertise or solicit work.
Sign-board and Name-plate.
Not promote unauthorized practice of law.
An advocate shall not accept a fee less than the fee, which can be taxed under rules when the client is able to pay more.
Consent of fellow advocate to appear.
Some topics covered in legal ethics include attorney-client privilege, legal billing, disclosures which lawyers are obligated to make, professional and personal relationships with other members of the legal profession, relationships with jurors, situations in which lawyers and judges must refused from taking up a case, ethical conflicts which can arise in the law, and situations in which people can offer legal advice. In many nations, legal ethics also includes mandates to perform volunteer service, or a strong stress on performing pro bono work.

A Bench of Justices Markandeya Katju and Gyan Sudha Mishra in an order deplored the growing tendency among bar associations across the country to pass resolutions against appearing for certain accused persons for some reason or the other.

“Professional ethics requires that a lawyer cannot refuse a brief, provided a client is willing to pay his fee, and the lawyer is not otherwise engaged. Hence, the action of any Bar Association in passing such a resolution that none of its members will appear for a particular accused, whether on the ground that he is a policeman or on the ground that he is a suspected terrorist, rapist, mass murderer, etc. is against all norms of the Constitution, the statute and professional ethics.

The bench passed the order while quashing the counter criminal cases filed by policemen and lawyers of Coimbatore during an agitation in 2007.

In this case the Madras High Court had on the basis of the recommendations made by Justice(retd) K P Sivasubramaniam, Commission of Inquiry, ordered a compensation of Rs 50,000 to advocate A S Mohammed Rafi who was allegedly assaulted by policemen during a clash with them.

At that time both the lawyers and women police constables involved in the fracas lodged counter criminal cases. The Bar Association of Coimbatore had also passed a resolution that no member of the Coimbatore Bar will defend the accused policemen in the criminal case against them.

Rafi who was not satisfied with the quantum of compensation moved the apex court for a higher compensation. The apex court while enhancing the compensation to Rs 1.50 lakh as advised by amicus curiae and senior counsel Altaf Ahmed, however, minced no words in expressing displeasure at the manner in which the bar associations have been frequently passing resolutions asking advocates not to appear for certain persons.

We would like to comment upon a matter of great legal and constitutional importance which has caused us deep distress in this case. It appears that the Bar Association of Coimbatore passed a resolution that no member of the Coimbatore Bar will defend the accused policemen in the criminal case against them in this case.

Several Bar Association all over India, whether High Court Bar Associations or District Court Bar Associations have passed resolutions that they will not defend a particular person or persons in a particular criminal case. Sometimes there are clashes between policemen and lawyers, and the Bar Association passes a resolution that no one will defend the policemen in the criminal case in court. Similarly, sometimes the Bar Association passes a resolution that they will not defend a person who is alleged to be a terrorist or a person accused of a brutal or heinous crime or involved in a rape case.

 

In our opinion, such resolutions are wholly illegal, against all traditions of the bar, and against professional ethics. Every person, however, wicked, depraved, vile, degenerate, perverted, loathsome, execrable, vicious or repulsive he may be regarded by society has a right to be defended in a court of law and correspondingly it is the duty of the lawyer to defend him.

We may give some historical examples in this connection.

When the great revolutionary writer Thomas Paine was jailed and tried for treason in England in 1792 for writing his famous pamphlet ‘The Rights of Man’ in defence of the French Revolution the great advocate Thomas Erskine (1750-1823) was briefed to defend him. Erskine was at that time the Attorney General for the Prince of Wales and he was warned that if he accepts the brief, he would be dismissed from office. Undeterred, Erskine accepted the brief and was dismissed from office.

However, his immortal words in this connection stand out as a shining light even today:

“From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in court where he daily sits to practice, from that moment the liberties of England are at an end. If the advocate refuses to defend from what he may think of the charge or of the defence, he assumes the character of the Judge; nay he assumes it before the hour of the judgment; and in proportion to his rank and reputation puts the heavy influence of perhaps a mistaken opinion into the scale against the accused in whose favour the benevolent principles of English law make all assumptions, and which commands the very Judge to be his Counsel”

Indian lawyers have followed this great tradition. The revolutionaries in Bengal during British rule were defended by our lawyers, the Indian communists were defended in the Meerut conspiracy case, Razakars of Hyderabad were defended by our lawyers, Sheikh Abdulah and his co-accused were defended by them, and so were some of the alleged assassins of Mahatma Gandhi and Indira Gandhi. In recent times, Dr. Binayak Sen has been defended. No Indian lawyer of repute has ever shirked responsibility on the ground that it will make him unpopular or that it is personally dangerous for him to do so. It was in this great tradition that the eminent Bombay High Court lawyer Bhulabhai Desai defended the accused in the I.N.A.trials in the Red Fort at Delhi (November 1945 – May 1946).

However, disturbing news is coming now from several parts of the country where bar associations are refusing to defend certain accused persons.

The Sixth Amendment to the US Constitution states “In all criminal prosecutions the accused shall enjoy the right …….to have the assistance of counsel for his defence”.

In Powell vs. Alabama 287 US 45 1932 the facts were that nine illiterate young black men, aged 13 to 21, were charged with the rape of two white girls on a freight train passing through Tennessee and Alabama. Their trial was held in Scottsboro, Alabama, where community hostility to blacks was intense. The trial judge appointed all members of the local bar to serve as defense counsel. When the trial began, no attorney from the local bar appeared to represent the defendants. The judge, on the morning of the trial, appointed a local lawyer who undertook the task with reluctance. The defendants were convicted. They challenged their convictions, arguing that they were effectively denied aid of counsel because they did not have the opportunity to consult with their lawyer and prepare a defense. The U.S. Supreme Court agreed. Writing for the court, Mr. Justice George Sutherland explained :

“It is hardly necessary to say that the right to counsel being conceded, a defendant should be afforded a8 fair opportunity to secure counsel of his own choice. Not only was that not done here, but such designation of counsel as was attempted was either so indefinite or so close upon the trial as to amount to a denial of effective and substantial aid…..”

In the same decision Justice Sutherland observed:

“What, then, does a hearing include? Historically and in practice, in our own country at least, it has always included the right to the aid of counsel when desired and provided by the party asserting the right. The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense”.

In this connection we may also refer to the legendry American lawyer Clarence Darrow (1857-1930) who was strongly of the view that every accused, no matter how wicked, loathsome, vile or repulsive he may be regarded by society has the right to be defended in court. Most lawyers in America refused to accept the briefs of such apparently wicked and loathsome persons, e.g. brutal killers, terrorists, etc. But Clarence Darrow would accept their briefs and defend them, because hewas firmly of the view that every persons has the right to be defended in court, and correspondingly it was the duty of the lawyer to defend. His defences in various trials of such vicious, repulsive and loathsome persons became historical, and made him known in America as the ‘Attorney for the Damned’, (because he took up the cases of persons who were regarded so vile, depraved and despicable by society that they had already been condemned by public opinion) and he became a legend in America (see his biography ‘Attorney for the Damned’).

In Re Anastaplo, 366 US 82 (1961), Mr. Justice Hugo Black of the US Supreme Court in his dissenting judgment praised Darrow and said :

“Men like Lord Erskine, James Otis, Clarence Darrow, and a multitude of others have dared to speak in defense of causes and clients without regard to personal danger to themselves. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-feari ng individuals is to humiliate and degrade it.”

At the Nuremberg trials, the Nazi war criminals responsible for killing millions of people were yet defended by lawyers.

We may also refer to the fictional American lawyer Atticus Finch in Harper Lee’s famous novel ‘To Kill a Mocking Bird’. In this novel Atticus Finch courageously defended a black man who was falsely charged in the State of Alabama for raping a white woman, which was a capital offence in that State. Despite the threats of violence to him and his family by the racist white population in town, and despite social ostracism by the predominant while community, Atticus Finch bravely defended that black man (though he was ultimately convicted and hanged because the jury was racist and biased), since he believed that everyone has a right to be defended. This novel inspired many young Americans to take up law as a profession in America.

The following words of Atticus Finch will ring throughout in history :

“Courage is not a man with a gun in his hand. It is knowing you are licked before you begin, but you begin anyway and you see it through no matter what. You rarely win, but sometimes you do.”

 

In our country, Article 22(1) of the Constitution states :

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

Chapter II of the Rules framed by the Bar Council of India states about ‘Standards of Professional Conduct and Etiquette’, as follows

“An advocate is bound to accept any brief in the Courts or Tribunals or before any other authorities in or before which he proposes to practice at a fee consistent with his standing at the Bar and the nature of the case. Special circumstances may justify his refusal to accept a particular brief”.

Professional ethics requires that a lawyer cannot refuse a brief, provided a client is willing to pay his fee, and the lawyer is not otherwise engaged. Hence, the action of any Bar Association in1 passing such a resolution that none of its members will appear for a particular accused, whether on the ground that he is a policeman or on the ground that he is a suspected terrorist, rapist, mass murderer, etc. Is against all norms of the Constitution, the Statute and professional ethics. It is against the great traditions of the Bar which has always stood up for defending persons accused for a crime. Such a resolution is, in fact, a disgrace to the legal community. We declare that all such resolutions of Bar Associations in India are null and void and the right-minded lawyers should ignore and defy such resolutions if they want democracy and rule of law to be upheld in this country. It is the duty of a lawyer to defend no matter what the consequences, and a lawyer who refuses to do so is not following the message of the Gita.

The Registry of this Court will circulate copies of this judgment/order to all High Court Bar Associations and State Bar Councils in India. The High Court Bar Associations are requested to circulate the judgment/order to all the District Court Bar Associations in their States/Union territories.

Some other topics covered in legal ethics include lawyer-client confidentiality, maintaining court etiquettes, when lawyer is permitted to refuse to take up a case, admissions which lawyers are compelled to make, professional relationships with other members of the profession, appearing against a previous client in a related case.

In U.K. or India a lawyer cannot even enter into a contract with a client based on contingent payment. i.e. paying the lawyer a percent of the amount that the lawyer wins in court for the client as fees or paying fees only if the lawyer wins.[ K.L. Gauba vs Unknown, AIR 1954 Bom 478, (1954) 56 BOMLR 838, ILR 1955 Bom 11]

One of the judgments given by a Full Bench over which Sir Lawrence Jenkins presided “I consider that for an Advocate of this Court to stipulate for, or receive, a remuneration proportioned to the results of litigation or a claim whether in the form of a share in the subject-matter, a percentage, or otherwise, is highly reprehensible, he will by so acting offend the rules of his profession and so render himself liable to the disciplinary jurisdiction of this Court.”[ in re Bhandara’, 3 Bom LR 102 (H)]

Unlike doctors or chartered accountant, lawyers are more likely to face disciplinary proceedings than criminal or civil liability. Earlier, a lawyer guilty of unethical conduct will usually loose her/his license but will not face imprisonment or be charged huge fines. This old trend does seem to fading away as judges and chairpersons of the disciplinary committee are becoming more and more stringent in upholding the reputation of the noble profession.


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