It is his client’s compelling necessity which he proves by his art of advocacy and reasons.
The charge of insincerity against a lawer disappears once it is realized that the advocate is engaged not in express his own views of the case but he is presenting and marshalling all can be said of his client view of it. Furthermore, legal profession is criticized that it does not add to the economic prosperity of a nation; and consequently a lawer is not an essential member of society. There is no doubt that it is peace which brings prosperity for a country and peace is the result-of law and the lawyer. Had there been no law and lawyers there would have been chaos in society.
However the Indian lawyer’s is a role specialist that is, he confines his occupational role to that of dispute processing in the court. The role specificity of the Indian lawyer promotes him to prolong and perpetuate dispute processing. The reason is because they hardly have any other role to pick on. The profession of law is noble calling.
It is one of the most brilliant learned and attractive professions. It needs not only high depth of learning but also a sense of social responsibilities which calls for the high and noble conduct. The legal profession is an important limb of the machinery for administration of justice.
Without the presence of a well developed and organised profession of law, the courts would not be in a position to administer justice. Law is a noble profession, but it is also an elitist profession. Its ethics, in practice, (not in theory though), leave much to be desired, if viewed as a profession for the people. But law’s nobility as a profession lasts only so long as the members maintain their commitment to integrity and services to the community.
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 that is of great public concern, not merely professional care. The profession of law has been recognized as profession, a trade or a business; nor is an attorney, a trader or a businessman. A lawyer has got to remember that he is expected to be a gentleman in the true sense of the term in every little or big act in his profession. In fact, no government can function without law and without the services of the legal profession. In other words, legal profession is an honourable profession, as ancient as magistracy, as noble as virtu and as necessary as justice. A lawyer, as part of a learned profession, has many obligations and duties of a honourable nature. It was not expected of a lawyer to bargain for any fee or to speculate on the result of litigation so as to determine his fees.
The contingent fee is an innovation of modern legal profession. The legal profession in India, which exists today is the outcome of the legal system introduced by the British during the eighteenth century. The legal profession in India as elsewhere is largely creature of statutes, though in some measures, customs, convention and usages also play an important role.
It is, therefore, necessary to have an acquaintance with the legal framework in order to appreciate the provisions relating to professional ethics and professional responsibility vis-a-vis the Indian Bar. Duty to His Client: In India, the lawer’s relations with his client are primarily a matter of contract. The relation is in the nature of agent and principal. The agreement determines to what extent the counsel can bind his client by his acts and statements; what extent shall be his remuneration, whether he will have a lien on his client’s property etc. It is evident, however, that as lawyer is also to conform to the ethical code prescribed for him by law and usage, he cannot be a mere agent or mouthpiece of his client to carry out his bidding.
A special responsibility rests on the members of the Bar to see that the parties do not mislead the court by false or reckless statements on material matter. An advocate is not the servant of the client that engages him, but the true position is that he is the servant of justice itself. He is thus in a sense a member of the body judicial and hence it follows that he can commit no graver betrayal of his function than to deceive the court by means direct or indirect. An advocate Stands in a loco parent is towards litigant. A member of the Bar undoubtedly owes a duty to his client and must place before the court all that can fairly and reasonably be submitted on behalf of his client. It is the duty of an advocate to welcome his client in the chamber.
The client must also not feel that his presence is unwanted. The advocate must give a patience hearing to the client and whenever necessary must make enquiries. He must reply to the client’s letter and he must not hesitate to communicate to his client even an unfavourable result as promptly as one would like to communicate a favourable result.
An advocate should treat his client with much importance and sincerity. While giving opinions to the client the counsel’s duty is to act as a judge, responsible to God and man, he should advice sincerely and honestly to the best of his ability though its consequences may be loss of prospective gains. If a pending dispute is likely to be settled either by the opponent’s counsel or it is the desire of the presiding judge, the counsel must put his all sincere efforts without bringing any pressure on his client to bring about settlement. But if the client is ready to stand a risk and though he is advised settlement, he desires the case to be fought to an end it is the duty of the advocate to do to the best of his ability, skill, understanding and legitimate means to bring about success. When the litigation ends the lawyer should return the brief to the client and he should not betray the confidence of the client even if he is not engaged in the appellate court.
Though it will amount to repletion it will not be out of place to make mention in that the relation in that the relation between the advocate arid the client is here utmost good faith and confidence. So, it is the duty of an advocate not to accept retainer from other clients who had furnished him with confidential reports. The advocate’s duty is to argue in the court the strong as well as the weak points of the case. Fixation of fees is yet another duty. He shall fix such fees as reasonable and justifiable. It is common practice that if the case is to be tried in a court of far off place or different jurisdiction the clients would incur the expenses of conveyance. The advocate should not utilize this for meeting his own expenses.
In the same way the money received from the client, other than fees and expenses, for the purpose of procuring any documents or proof shall be reasonable. Trough Indian Vakalatnama form empowers the advocate to do all that is necessary including com pro mi seethe case, but it does not mean that in view of the express authority his client’s concern is endorsable. He should be prompt in communicating to the client the happening of the court, reply to his queries and the result of the case, irrespective of the defeat or success. He should also act judiciously and wisely like a judge while handling the client’s case. One must not forget that an advocate is a .representative of the client and not an agent. After the case is over, it is the duty of the advocate to carefully return the brief to the client with all documents and certificates.
The Bar Council of India has laid down the following duties of an advocate to his client: 1. An 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. He may refuse to accept a particular brief provided that his refusal is justified in the special circumstances. 2.
An advocate shall not ordinarily withdraw from engagements once accepted, without sufficient cause and unless a reasonable and sufficient notice is given to the client upon his withdrawal from a case he shall refund such part of the fee as has not been earned. 3. 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 after being engaged in a case, it becomes apparent that he is a witness, he should not continue to appear as advocate. It is his duty to retire, if he can without jeopardizing his client’s interests. 4. An advocate should at the commencement of his engagement and during the continuance thereof, make all such full and frank disclosures to his client relating to his connection with the parties and any interest in or about the controversy as are likely to affect his client’s judgement in either engaging him or continuing the engagement.
5. It shall be the duty of an advocate, fearlessly, to uphold the interests of his client by all fair and honourable means without regard to any unpleasant consequences to himself or any other. He shall defend a person accused of a crime regardless of his personal opinion as to the accused, bearing in mind that his loyalty is to the law which requires that no man should be convicted without adequate evidence. 6. An advocate appearing for the prosecution in a criminal trial shall so conduct the prosecution that it does-not lead to conviction of the innocent. The suppression of material capable of establishing the innocence of the accused shall be scrupulously avoided. 7.
An advocate shall not directly or indirectly, commit a breach of the obligations imposed by section 126 of the Indian Evidence Act. 8. An advocate shall not, at any time, be a party to fomenting of litigation. 9. An advocate shall not act on the instruction of any person other than his client or his authorized agent.
10. An advocate shall not stipulate for a fee contingent on the results of litigation or agree to share the proceeds thereof. 11. An advocate shall not buy or traffic in or stipulate for or agree to receive any share or interest in any actionable claim. Nothing in this Rule shall apply to stock shares and debentures or government securities, or to any instruments which are, for the time being, by law or custom negotiable or to any mercantile document or title to goods. 12. An advocate shall not, directly or indirectly, bid for or purchase, either in his own name or in any other name, for his own benefit or for the benefit of any person, any property sold in the execution of a decree or order in any suit, appeal or other proceeding in which he was in any way professionally engaged. This prohibition however, does not prevent an advocate from bidding for or purchasing for his client any property which his client may himself legally bid for or purchase provided the advocate is expressly authorized in writing in this behalf.
13. An advocate shall not adjust fees pays payble to him by his client against his own personal liability to the client, which liability does not arise in the course of his employment as an advocate. 14. An advocate shall not do anything whereby he abuses or takes advantage of the confidence reposed in him by his client. 15. An advocate should keep accounts of the client’s money entrusted to him, and the accounts should show the amounts received from the client or on his behalf, the expenses incurred for him and the debits made on account of fees with respective dates and all other necessary particulars.
16. Where money are received from or an account of a client, the entries in the accounts should contain a references, and during the course of the proceedings, no advocate shall, except with the consent in writing of the client concerned, be at liberty to deliver any portion of the expenses towards fees. 17. Where any amount is received or given to him on behalf of his client the fact of such receipt must be intimated to the client as early as possible. 18.
Where the fee has been left unsettled, the advocate shall be entitled to deduct, out of any money of the client remaining in his hands, at the termination of the proceeding for which he had been engaged, the fee payable under the rules of the courts in force for the time being, or by then settled arid the balance if any, shall be refunded to the client. 19. After the termination of the proceeding the advocate shall be at liberty to appropriate towards the settled fee due to him any sum remaining unexpected out of the amount paid or sent to him for expenses, or any amount that has come into his hands in that proceeding. 20.
A copy of the client” s account should be furnished to him on demand provided the necessary copying charge is paid. 21. An advocate shall not enter into arrangements whereby funds in his hands are converted into loans. 22. An advocate shall not lend money to his client, for the purpose of any action or legal proceedings in which he is engaged by such client.
23. An advocate who has, at any time, advised in connection with the institution of a suit, appeal or other matter or has drawn pleadings or acted for a party, shall not act, appear or plead for the opposite party. 24.
Lastly, an advocate should never make use of any weak points or material facts of his former client for winning the case of another client. In all circumstances the advocate should strive to earn the good faith and confidence of the client by his honest, sincere and effective discharge of duties.