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PROFESSIONAL ETHICS AND PROFESSIONAL ACCOUNTING SYSTEM
CONTEXT
TOPIC Page No.
I. DEVELOPMENT OF LEGAL PROFESSION IN INDIA 3
II. DEVELOPMENT OF LEGAL PROFESSION IN ENGLAND 3
III. EQUIPMENTS OF ADVOCATE : 4
IV. GENERAL CONDUCT OF A ADVOCATE AND ADVOCATE
CONDUCT IN COURT
V. ELEMENTS OF ADVOCACY 4
VI. SEVEN LAMPS OF ADVOCACY
VII. ADVOCACY IS NOT A CRAFT BUT A CALLING
VIII. SUGGESTIONS OF K.V.KRISHNASWAMY AIYER ON
MEETING THE CLIENTS
IX. BAR COUNCILS 6
X. PRIVILEGES,RIGHTS AVAILABLE AND DISABILITIES OF THE
ADVOCATE
XI. FEATURES OR OBJECTIVE OF PASSING ADVOCATE ACT : 9
XII. RIGHT TO PRACTICE IS A RIGHT BUT NOT A
PRIVILEGE :
XIII. APPLICATION ONCE REFUSED NOT TO BE
ENTERTAINED BY ANOTHER BAR COUNCIL EXCEPT IN
CERTAIN CIRCUMSTANCES
Unit – I ADVOCATES ACT, 1961
I. DEVELOPMENT OF LEGAL PROFESSION IN INDIA
The term legal profession includes all those categories of persons who use technical, legal knowledge and skills in the course of performing there occupational role and duties.
Ancient India :
The profession of law has been recognized as a profession of high calling and the noblest order from the time of immortal.
- In ancient India law was understood as a part of DARMA.
- In the two epics RAMAYANA and MAHABHARATHA contains the legal processes in ancient India.
- Vedas are the original source of law.
- Smurtis are the legal base.
- Kautilya’s Arthasastra and Chalukya’s separate law system remembers the ancient legal system in India.
Medieval era :
- There was less scope compare to the ancient days.
- Most of the issues settled outside the courts.
- Vakils, panchas are the major law deciders.
British regime :
- British established the first British court at Bombay in 1672 by the governor general Aungier.
- For making their administration Strong, they established Supreme court at Calcutta in 1773 and appointed many advocates.
- They passed many acts as follows :
- Charter act 1762
- (^) Charter act 1774
- Legal practitioner act 1846
- Legal practitioner act 1853
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SL
No.
General conduct of a advocate Advocate conduct in court
Public Interest.
Protection of fundamental rights and duties.
Honor and Dignity.
Friendly co-oparation
Fair dealings with clients
Sprit off brotherly-hood
a) The advocate's independence or integrity;
b) A person's freedom to instruct an advocate of his or her choice;
c) The advocate's duty to act in the best interests of the client;
d) The good repute of the advocate or of the advocates' profession;
e) The advocate's proper standard of work;
f) The advocate's duty to the Court.
V. ELEMENTS OF ADVOCACY
a) Accept brief in the Court An advocate is a person who argues in favour of his clients in courts of justice. An advocate is bound to accept any brief in the Courts or Tribunals or before any other authority in or before which he professes to practice at a fee consistent which his standing at the bar and the nature of the case.
b) Filing the case In civil cases a suit is required to be instituted by presenting a plaint to the court. The statement of a plaint regarding his claim is taken as a plaint
c) Pleading The fundamental principles of pleading are four:
- Every pleading must state fact and no law;
- It must state all the material facts;
- It must state only the facts on which the party pleading relies, and not the evidence; and
- It must state facts concisely but with precision and certainty.
d) Examination-in-Chief Examination-in-chief is the way in which advocates present almost all of the evidence through witnesses, whether as counsel for plaintiff or defendant. Examination of expert witnesses and the admission of expert opinions are also vital part of advocacy for which special skill is to be achieved according to the expert evidence.
e) Cross-examination The examination of a witness by the adverse party shall be called his cross examination. Witnesses shall be first examined-in-chief then cross-examined, later re-examined. The witness may be cross-examined to show his bias or prejudice, to show an interest in the outcome of the case.
f) Re-examination The examination of a witness subsequent to the cross-examination by the party who called him is called re- examination.
g) Arguments In arguing a case strongest points should be emphasised and the weak points should not be raised as far as possible. Arguments on each issue should be written out.
h) Appeals Arguing of appeals in a Court of Law is also of considerable importance. In the judgment, the Judge will have some reasonable ground. A careful study of the case is required to find the points which were not noticed by
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the Court.
VI. SEVEN LAMPS OF ADVOCACY
VII. ADVOCACY IS NOT A CRAFT BUT A CALLING
Advocacy is an honourable profession. Advocates are part and parcel of Court. Their efforts solve the conflicts in the society. Advocates defend the rights and liabilities. They hold unique place in the society. Advocacy is not a craft but a calling; a profession wherein devotion to duty constitutes the hallmark.
Legal profession is regarded to be a noble one. A good advocate should possess some essential qualities and equipment. Judge Abbot parry in his book “The Seven Lamps of Advocacy” called these important characteristics of advocacy as “seven lamps of advocacy” and listed them as honesty, courage, industry, wit, eloquence, judgment and fellowship.
1) Honesty Honesty means the quality of straightforwardness; freedom from deceit, cheating or stealing and not telling lies. The best advocates of all generations have been devotees of honesty. Example for honest character is Abraham Lincoln, who founded his fame and success on what some called ‘preserve honesty’. The nobleness of legal profession lies in honesty itself.
2) Courage Courage is the quality that enables a person to control fear in the face of danger, pain, misfortune, etc.; an advocate must possess courage. He should face the pressures from outside with courage
3) Industry Advocacy is needed a life of industry. An advocate must study his brief in the same way that an actor studies his part. Success in advocacy is not arrived at by intuition but through industry. Industry is the quality of being hard-working; being always employed usefully.
4) Wit Wit means clever and humorous expression of ideas; liveliness of spirit. Wit flows from intelligence;
5) Eloquence The success of an advocate depends upon his eloquence. Eloquence means fluent speaking and skilful use of language to persuade or to appeal to the feelings of others. Fluent speaking impresses the listener
6) Judgment Judgment is an intellectual capacity, ‘the inspiration which enables a man to translate good sense into right action’. In judgment one has to estimate, consider and form an opinion about the issues with good sense and ability.
7) Fellowship Fellowship means the membership in friendly association or companionship. Fellowship is exactly like great public schools, the boys of which have grown older, and have exchanged boyish for manly objects. Though the advocates are opponent parties before the bench but not enemies with each other.
( 7+1) Tact K.V.Krishnaswamy Aiyer, in his book “Professional Conduct and Advocacy” adds one more lamp i.e. tact. Tact means handling people and situations skilfully and without causing offence. An advocate must be in a position to tackle and win his client, opponent party, opponent advocate in a smoother way.
VIII. SUGGESTIONS OF K.V.KRISHNASWAMY AIYER ON MEETING THE CLIENTS :
- Prepare in advance for the meeting.
- Ware suitable cloths.
- Use of board room.
- Start on time.
- Greet clients by name.
- Create an agenda.
- Offer beverages.
- Listen carefully to the clients.
- Give business card.
- Fallow up.
Sec 7
(e) to promote and support law reform;
(ee) to conduct seminars and organize talks on legal topics by eminent jurists and publish journals and paper of legalinterest;
(eee) to organise legal aid to the poor in the prescribed manner;]
(f) to manage and invest the funds of the Bar Council;
(g) to provide for the election of its members;
FUNCTIONS OF BAR COUNCIL OF INDIA.—
(1) The functions of the Bar Council of India shall be—
a. to lay down standards of professional conduct and etiquette for advocates;
b. to lay down the procedure to be followed by its disciplinary committee and the disciplinary committee of each State Bar Council;
c. to safeguard the rights, privileges and interests of advocates;
d. to promote and support law reform
e. (^) to exercise general supervision and control over State Bar Councils;
f. to promote legal education and to lay down standards of such education in consultation with the Universities in India imparting such education and the State Bar Councils;
POWERS OF BAR COUNCILS :
1. POWER TO MAKE RULES.—
SEC 15.
- A Bar Council may make rules to carry out the purposes of this Chapter.
- In particular, and without prejudice to the generality of the foregoing power, such rules may provide for : - The election of members of the Bar Council. - Electing the chairman and the vice-chairman. - (^) The filling of casual vacancies in the Bar Council - Power and duties of chairman, vice-chairman and members. - organisation of legal aid and advice to the poor. - the summoning and holding of meetings of the Bar Council. - (^) the summoning and holding of meetings.
2. POWER TO MAINTAIN BOOKS AND AUDIT :
Sec 15 sub sec-
(l) the maintenance of books of accounts and other books by the Bar Council;
(m) the appointment of auditors and the audit of the accounts of the Bar Council;
(n) the management and investment of the funds of the Bar Council.
3. POWER TO APPOINT COMMITTEES :
- 8A. Constitution of Special Committee in the absence of election.
4. POWER TO GIVE DIRECTIONS :
- Power to give direction to state committees
- Give directions to state bar councils.
5. POWER TO PUNISH THE ADVOCATE FOR MISCONDUCT : SEC 35 —
- Where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee.
(1A) The State Bar Council may, either of its own motion or on application made to it by any person interested, withdraw a proceeding pending before its disciplinary committee and direct the inquiry to be made by any other disciplinary committee of that State Bar Council.
- (^) The disciplinary committee of a State Bar Council shall fix a date for the hearing of the case and shall cause a notice thereof to be given to the advocate concerned and to the Advocate-General of the State.
- The disciplinary committee of a State Bar Council after giving the advocate concerned and the Advocate-General an opportunity of being heard, may make any of the following orders, namely:—
(a) dismiss the complaint or, where the proceedings were initiated at the instance of the State Bar Council, direct that the proceedings be filed;
(b) reprimand the advocate;
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- Privilege of public and political life.
- Right to have access to Judge- any time any day.
- Privilege of independence- not a servant to any one
- Words spoken in professional capacity are privileged.
- Privilege to honor the judgment in Bar Council
- Privilege of being offered judgeship and several other offices under the status.
- As a district judge.
- Magistrate.
- Additional session judge
- Additional judge
- Session judge.
DISABILITIES OF ADVOCATES :
- Advertising oneself and soliciting the client.
- Restriction on taking up a brief.
- Restriction on other employment.
- Advocate must not divulge clients communication.
- Advocate cannot buy or contract any share of interest in a actionable claims- sec 136 of TP act.
XI. Features or objective of passing advocate act :
- To know the procedure for admission and enrollment.
- To get the knowledge about Bar councils.
- To know the rights and privileges.
- To know the disabilities of advocate.
- Contempt of court and its remedies.
- To know the duties of advocate.
- To get knowledge about Professional ethics.
- To know Bar- Bench relation.
- To know Books of accounts to be maintained.
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- (^) To knowledge about Equipment, Lamps, elements of advocate.
XII. RIGHT TO PRACTICE IS A RIGHT BUT NOT A PRIVILEGE :
RIGHT TO PRACTICE
♦ Sec 29. Advocates to be the only recognised class of personsentitled to practise law.—
Subject to the provisions of this Act and any rules made there under, there shall, as from the appointed day, be only one class of persons entitled to practice the profession of law, namely, advocates.
♦ Sec 30. Right of advocates to practice.—
Subject to provisions of this Act, every advocate whose name is entered in the 1[State roll] shall be entitled as of right to practice throughout the territories to which this Act extends,—
- in all courts including the Supreme Court;
- before any tribunal or person legally authorised to take evidence; and
- before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise.
♦ Sec 32. Power of Court to permit appearances in particular cases.—
Notwithstanding anything contained in this Chapter, any court, authority, or person may permit any person, not enrolled as an advocate under this Act, to appear before it or him in any particular case.
♦ Sec 33. Advocates alone entitled to practice.—
Except as otherwise provided in this Act or in any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practice in any court or before any authority
XIII. Application once refused not to be entertained by another Bar Council except in certain circumstances
Sec 27. Application once refused not to be entertained by another Bar Council except in certain circumstances.—
Where State Bar Council has refused the application of any person for admission as an advocate on its roll, no other State Bar Council shall entertain an application for admission of such person as an advocate on its roll, except with the previous consent in writing of the State Bar Council which refused the application and of the Bar Council of India.
UNIT II
PROFESSIONAL ETHICS.
I. DUTIES OF AN ADVOCATE.
DUTIES TOWARDS STATE AND PUBLIC :
- Duty to maintain the integrity of the Nation.
- Duty to fight for individual liberty and socio- economic justice.
- Duty to enshrine and uphold our Constitution.
- To protect law and fight against injustice.
- Public interest litigation.
- Help poor clients with less or no fee.
- Protect fundamental rights.
- Fight against corruption.
DUTIES TOWARDS COURT :
- Duty to respect the court.
- Duty to attend the hearing.
- Duty to receive judgment.
- Duty to obey and respect the judge and the judgment of the court.
- Duty not to mislead the court.
- Duty not to malign the judge.
- Duty to assist the court.
- Duty to have good temper and protect the dignity of the court.
DUTIES TOWARDS THE CLIENT :
- (^) Duty to Know about his client.
- Obtain complete information about the case.
- Provide fair advice to solve the case.
- Loyal and faith full to his client.
- (^) Duty not to represent conflicting interests of the client.
- Maintain confidentiality.
- Duty not to accept compensation or any other advantages from others.
- Duty to take fair fee.
- (^) Duty to keep separate account for client’s money.
- Duty to return the brief of the client at the end of the case.
DUTIES TOWARDS THE OPPONENT :
- Duty to give due respect opponent council.
- Being fair to opponent council and his clients.
- Duty not to interrupt in between the opponent argument.
- Duty not to mislead.
- Duty not to make negotiate with the opponent.
- Duty not to take away others client.
DUTIES TOWARDS PROFESSION :
- To keep best tradition of the bar.
- Not to take profession in the spirit of competition or rivelry.
- Respect to the seniors.
- Kind to juniors
- Fallow seven lamps of advocacy.
DUTIES TOWARDS SELF :
- Maintain self dignity.
- Seven lamps of advocacy.
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the date of the communication of the order to him, prefer an appeal to the Bar Council of India.
- Appeal to the Supreme Court.— Any person aggrieved by an order made by the disciplinary committee of the Bar Council of India may within sixty days of the date on which the order is communicated to him, prefer an appeal to the Supreme Court.
- Stay of order .— An appeal, made shall not operate as a stay of the order appealed against, but the disciplinary committee of the Bar Council of India, or the Supreme Court, as the case may be, may, from sufficient cause, direct the stay of such order on such terms and conditions as it may deem fit.
- Alteration in roll of Advocates.— Where an order is made under this Chapter reprimanding or suspending an advocate, a record of the punishment shall be entered against his name
- Powers of disciplinary committee .—
The disciplinary committee of a Bar Council shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the following matters, namely:—
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring discovery and production of any documents;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copies thereof from any court or office;
(e) issuing commissions for the examination of witness or documents;
(f) any other matter which may be prescribed: Provided that no such disciplinary committee shall have the right to require the attendance of—
(a) any presiding officer of a Court except with the previous sanction of the High Court to which such court is subordinate;
(b) any officer of a revenue court except with the previous sanction of the State Government.
- Review of orders by disciplinary committee .— The disciplinary committee of a Bar Council may of its own motion or otherwise review any order 1[within sixty days of the date of that order passed.
IV. SENIOR AND OTHER ADVOCATES
▲. SENIOR AND OTHER ADVOCATES .—
- There shall be two classes of advocates, namely, senior advocates and other advocates.
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- An advocate may, with his consent, be designated as senior advocate if the Supreme Court or a High Court is of opinion that by virtue of his ability standing at the Bar or special knowledge or experience in law he is deserving of such distinction.
- Senior advocates shall, in the matter of their practice, be subject to such restrictions as the Bar Council of India may, in the interest of the legal profession, prescribe.
- An advocate of the Supreme Court who was a senior advocate of that Court immediately before the appointed day shall, for the purposes of this section, be deemed to be a senior advocate:
RESTRICTION ON SENIORITY :
- Rules under Sections 16(3) and 49(1)(g) of bar council Act.
- Senior Advocates shall, in the matter of their practice of the profession of law mentioned in Section 30 of the Act, be subject to the following restrictions:
a. A Senior Advocate shall not file a vakalatnama or act in any Court, or Tribunal, or before any person or other authority mentioned in Section 30 of the Act.
b. (i) A senior Advocate shall not appear without an Advocate on Record in the Supreme Court or without an Advocate in Part II of the State Roll in any court, or tribunal, or before any person or other authorities mentioned in Section 30 of the Act.
(ii) Where a Senior Advocate has been engaged prior to the coming into force of the Rule in this Chapter, he shall not continue thereafter unless an Advocate in Part II of the State Roll is engaged along with him.
c. (^) He shall not accept instructions to draft pleading or affidavits, advice on evidence or to do any drafting work of an analogous kind in any Court or Tribunal, or before any person or other authority
(cc) A Senior Advocate shall, however, be free to make concessions or give undertakings in the course of arguments on behalf of his clients on instructions from the junior Advocate.
d. He shall not accept directly from a client any brief or instructions to appear in any Court or Tribunal, of before any person or other authority in India.
(b) if he is convicted of an offence under the provisions of the Untouchability (Offences) Act, 1955 (22 of 1955);
(c) if he is dismissed or removed from employment or office under the State on any charge involving moral turpitude.
(2) Nothing contained in sub-section (1) shall apply to a person who having been found guilty is dealt with under the provisions of the Probation of Offenders Act, 1958 (20 of 1958).
▲ Power to remove names from roll .—
A State Bar Council may remove from the State roll the name of any advocate who is dead or from whom a request has been received to that effect.
VII. RESTRICTION ON OTHER EMPLOYMENTS
▲ An advocate shall not personally engage in any business; but he may be a sleeping partner in a firm doing business provided that in the opinion of the appropriate State Bar Council, the nature of the business is not inconsistent with the dignity of the profession.
▲ An advocate may be Director or Chairman of the Board of Directors of a Company with or without any ordinarily sitting fee, provided none of his duties are of an executive character. An advocate shall not be a Managing Director or a Secretary of any Company.
▲ An advocate shall not be a full-time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practise, and shall, on taking up any such employment, intimate the fact to the Bar Council on whose roll his name appears and shall thereupon cease to practise as an advocate so long as he continues in such employment.
▲ An advocate who has inherited, or succeeded by survivorship to a family business may continue it, but may not personally participate in the management thereof. He may continue to hold a share with others in any business which has decended to him by survivorship or inheritance or by will, provided he does not personally participate in the management thereof.
▲ An advocate may review Parliamentary Bills for a remuneration, edit legal text books at a salary, do press-vetting for newspapers, coach pupils for legal examination, set and examine question papers; and subject to the rules against advertising and full-time employment, engage in broadcasting, journalism, lecturing and teaching subjects, both legal and non-legal.
▲ Nothing in these rules shall prevent an advocate from accepting after obtaining the consent of the State Bar Council, part-time employment provided that in the opinion of the State Bar Council, the nature of the employment does not conflict with his professional work and is not inconsistent with the dignity of the profession. This rule shall be subject to such directives if any as may be issued by the Bar Council India from time to time.
VIII. RESTRICTION ON TAKING BRIEF
- An advocate may, at the outset of the brief and at reasonable times prior to the termination of the same, require the client to make a payment or payments on account of fees, costs and disbursements to be incurred.
- An advocate's fee shall be reasonable and may be established either by the advocate himself or by agreement between the advocate and the client. The factors to be considered in determining the reasonableness of a fee (whether agreed or otherwise) include the following:
2.a. the time required, the novelty and difficulty of the issues involved, and the dedication requisite to perform the legal service properly;
2.b.the responsibility undertaken, with particular reference to the amount involved;
2.c. the time limitations imposed by the client or the circumstances;
2.d.the nature and length of the professional relationship with the client;
2.e. the experience, reputation and ability of the advocate performing the services;
2.f. in litigation matters, the fees recoverable from the other party;
2.g.the likelihood that the acceptance of the particular brief will preclude the acceptance of other briefs by the advocate.
- An advocate shall not, either directly or indirectly, enter into any agreement or stipulation qualities.
- An advocate shall not share or agree to share his of her professional fees with any person except:
2.h.a practicing advocate;
2.i. (^) a retired partner or predecessor of the advocate or the dependents of Personal representatives of a deceased partner or predecessor.
- An advocate shall not enter into any professional partnership or other professional arrangement, other than arrangements specifically allowed by aw, with any person other than an advocate.
- Advocates shall not by themselves or with any other person set up, operate, actively participate in or control any business, which offers any of the following services:
2.j. advocacy before any court, tribunal or inquiry;
2.k.acting as executor;
2.l. drafting any contract, including the memorandum and articles of association f companies;
2.m. drafting any will;
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