Professional ethics

Importance of legal profession in India:

What is Professional Ethics? Professional ethics means a code of rules which regulates the behaviour and
conduct of a practicing lawyer towards himself, his client, his opposite party, his counsel and of course
towards the court. Ethics means principles of behaviour which are applied to an ordinary citizen in the
society shall be the standards of morals for a lawyer too.
Professional ethics consist of those fundamental values on which the profession has been built. Legal
ethics is one of the professional ethics which lays down certain duties for the observance of its members,
which he owes to the society, to the court, to the profession, to his client and to himself.
The practicing lawyer shall have the social responsibility and dignity of the legal profession and high
standard of integrity and efficient service to his client as well as for public welfare.
Professional ethics demands not to disclose any secrets of his client or indulge in any unfair practice.

Code of Professional responsibility:

The Code of Professional Responsibility consists of three separate but interrelated parts: Canons, Ethical
Considerations, and Disciplinary Rules. The Code is designed to be both an inspirational guide to the
members of the profession and a basis for disciplinary action when the conduct of a lawyer falls below the
required minimum standards stated in the Disciplinary Rules.

Certain amendments in Advocates Act 1961 have been constructed in the light of professional ethics in
the legal profession. It comes up with various conclusions like
(i)Misconduct means “all-inclusive besides drafted in the utmost potential provocative manner.”
(ii)The license of Practice of Lawyers in India can be annulled or suspended on a complaint about his
behaviour or conduct made by a Justice or a Judicial Officer.
(iii)Advocates shall not be able to claim the security of non-receipt of fees while defending themselves
against any proceedings initiated against them.
(iv) The Bill put forward imposition of a fine of Rs. 3 lakh and cost of proceedings in a complaint filed by a
litigant against legal representatives. It addition provides for payment of compensation up to Rs. 5 lakh to
a person aggrieved by a lawyer’s transgression. It also recommends imposing a fine of Rs. 2 lakh on a
lawyer, if he does not cooperate in the disciplinary proceedings.

The Code of Professional Responsibility points the way to the aspiring and provides standards by which
to judge the transgressor. Each lawyer's own conscience must provide the touchstone against which to
test the extent to which the lawyer's actions should rise above minimum standards. But in the last
analysis it is the desire for the respect and confidence of the members of the profession and of the society
which the lawyer serves, that should provide to a lawyer the incentive for the highest possible degree of
ethical conducts. The possible loss of that respect and confidence is the ultimate sanction. So long as its
practitioners are guided by these principles, the law will continue to be a noble profession. This is its
greatness and its strength, which permit of no compromise. Code of conduct for judges An independent
and honorable judiciary is indispensable to justice in our society. A judge should maintain and enforce
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high standards of conduct and should personally observe those standards, so that the integrity and
independence of the judiciary may be preserved. The provisions of this Code should be construed and
applied to further that objective.

Conclusion
The legal profession is a profession of great honor. It has been created not for private gain but for public
good. It is not a money-making occupation but a branch of administration of justice. Since it is not a
business, a lawyer cannot solicit work or advertise either directly or indirectly. An advocate is an officer
of the Court and required to maintain towards the Court a respectful attitude bearing in mind that the
dignity of the judicial office is essential for the survival of the society. Th e Supreme Court has rightly
observed that the legal profession is a partner with the judiciary in the administration of justice.
The legal profession is not a business but a profession. It has been created by the state for the public good.

Qualifications for enrolment as an Advocate:

An advocate is basically the center of the judicial administration around which whole of the process
revolves. Both the parties involved in a case totally rely upon their respective lawyer and expect them to
get them justice. Thus it is clear that the person upon whom whole of the judicial process is based upon,
need to be capable of understanding the pros and cons of the various actions that he/she intends to take
regarding the case.

Case Study:
In Chief Executive Officer, Gujrat Meritime Board versus Patel Gandhu Bhai (AIR 1999 Gujrat 34) Gujrat
High Court said that "advocate have important place in Judicial administration. He is the most competent
person to help court in providing justice to the masses."
So overall we can say that there must be some qualifications for the enrollment of an advocate on the rolls
of state bar council. As lots of people go to an advocate, thus the person must be capable in all respects, so
that he/she can help others in real sense, as advocacy is a social service more than a profession. The word
"Advocate" is defined in Advocate's Act 1961 Section 2(1) as: "Advocate means registered in roll of
advocates under regulations of the act" and legal professional is defined in section 2(1).

Qualifications for Registration in Roll of Advocate (India): (According to Section 24 of Advocate act
1961)
 The person must be citizen of India: The first and most important condition for enrolment in
India is that the person must be citizen of India.
 The nationals of other countries can only be allowed when Indians are allowed to practice in
their country.
 Person must have completed the age of 21 years: It is a vital condition for enrolment that the
person who wants to register must have completed the age of 21 years at the time of enrolment.
Person must be law graduate: Section 24(1)C says about it as under -
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 The person who have got the degree of law from any college/university before 12 March, 1967.
 The person who have got the degree from any university recognized by Bar Council of India after
12 March, 1967.
 The person who have got degree from any university decided by Indian Rule Act 1935.

Payment of decided fees: The decided fees for the enrollment has to be paid by the candidate and if
there is any stamp fees than under Indian Stamp Act 1899, than it should also be paid.
Fulfilment of other Conditions: Other conditions that are decided by the state bar council must be
completed along with the above mentioned conditions.

Disqualifications:

Section 24(A) of the Advocate Act 1961, describes the conditions in which the person cannot be
registered.
 If the person is held guilty for crime related to moral turpitude.
 If the person is held guilty under Untouchability Act 1955.
 If the person has been dismissed from the post from employment office under state on the blame
of moral turpitude. This qualification will remain effective for 2 years from the date of removal.

Rights of an Advocate

By the virtue of sec.30 of Advocates Act, 1961, only advocates are entitled to practice law. Every advocate
whose name is entered on the state rolls has the statutory right to practice throughout the territories to
which the Advocates Act 1961 extends. An advocate may practice in all the courts including the Supreme
Court, before any tribunal or person, legally authorized 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
practice
Advocates have sure privileges as officers of the court, for eg, even if a litigant conducts his case without
the aid of counsel, he cannot claim a right to be seated in court at an equal standing with all advocates.
Even among advocates, certain special privileges have been conferred on those holding special positions
and rankings.
A person who is not an advocate cannot claim to plead for another in court as of right. Any person, who
practices in any court or before any authority or person, in or before whom he is not entitled to practice
under the provisions of the Advocates Act 1961, will be punished with imprisonment for a term which
can be up to six months’.
Case Law: N.K.Bajpai vs Union of India & Anr on 15th march, 2012.
BAR COUNCIL OF INDIA: POWER AND FUNCTIONS:

The Bar Council of India consists of 18 Members. The Attorney General of India and the Solicitor General
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of India are Ex-officio Members of the council and the other 16 Members represent the 16 State Bar
Councils in the country.
The Members are elected for a period of five years and the Chairman and Vice -Chairman are elected for a
period of two years from among the Members of the Bar Council of India.
The Bar Council further consists of various committees viz., Legal Education Committee, Disciplinary
Committee, Executive Committee, Legal Aid Committee, Advocates Welfare Fund Committee, Rules
Committee and various other Committees formed to look into specific issues arising from time to time.

FUNCTIONS OF BAR COUNCIL OF INDIA:

The Bar Council of India was established by Parliament under the Advocates Act, 1961. The following
statutory functions under Section 7 cover the Bar Council’s regulatory and representative mandate for the
legal profession and legal education in India:
1. To lay down standards of professional conduct and etiquette for advocates.
2. To lay down procedure to be followed by its disciplinary committee and the disciplinary committees of
each State Bar Council.
3. To safeguard the rights, privileges and interests of advocates.
4. To promote and support law reform.
5. To deal with and dispose of any matter which may be referred to it by a State Bar Council.
6. To promote legal education and to lay down standards of legal education. This is done in consultation
with the Universities in India imparting legal education and the State Bar Councils.
7. To recognize Universities whose degree in law shall be a qualification for enrolment as an advocate.
The Bar Council of India visits and inspects Universities, or directs the State Bar Councils to visit and
inspect Universities for this purpose.
8. To conduct seminars and talks on legal topics by eminent jurists and publish journals and papers of
legal interest.
9. To organize legal aid to the poor.
10. To recognize on a reciprocal basis, the foreign qualifications in law obtained outside India for the
purpose of admission as an advocate in India.
11. To manage and invest the funds of the Bar Council.
12. To provide for the election of its members who shall run the Bar Councils.
The Bar Council of India can also constitute funds for the following purposes:
1. Giving financial assistance to organize welfare schemes for poor, disabled or other advocates,
2. Giving legal aid, and
3. Establishing law libraries.
The Bar Council of India can also receive grants, donations, and gifts for any of these
purposes.
With respect to the point 6, (stated above) the Supreme Court has made it clear that the question of
importing legal education is entrusted to the Universities in India and not to the Bar Council of India. All
that the Bar Council can do is to suggest ways and means to promote suck legal education to be imparted
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by the Universities and for that purpose it may lay down the standards of education. Sections 7 do not
entitle the Bar Council itself to frame rules laying down pre-enrolment as Advocate.

COMMITTEES OF BAR COUNCIL OF INDIA

The Bar Council of India has various committees that make recommendations to the Council. The
members of these committees are elected from amongst the members of the Council.
The Advocates Act mandates the creation of a Disciplinary Committee (under section 9), a Legal
Education Committee, and an Executive Committee (under section 10).

LEGAL EDUCATION COMMITTEE

The Legal Education Committee consists of five members of the Bar Council of India and five co-opted
members to represent the judiciary, the Law Ministry, the University Grants Commission, and academia.
This committee makes recommendations to the Bar Council of India on all matters pertaining to legal
education in the country. The committee elects its own Chairman.
The Legal Education Committee has the power:
• To make recommendations to the Council for laying down the standards of legal education for
Universities.
• To visit and inspect Universities and report the results to the Council.
• To recommend to the Council the conditions subject to which foreign qualification in law obtained by
persons other than citizens of India may be recognised.
• To recommend to the Council for recognition of any degree in law of any University in the territory of
India.
• To recommend the discontinuance of recognition of any University already made by the Council.

DISCIPLINARY COMMITTEE:
The disciplinary committee of the Bar Council of India hears applications for revision by persons against
summary dismissal of their complaints against advocates for professional misconduct, by the State Bar
Councils.
Appeals lie before the Bar Council of India against orders of the disciplinary committees of the State Bar
Councils. Every such appeal is heard by the disciplinary committee of the Bar Council of India, which may
pass an order, including an order varying the punishment awarded by the disciplinary committee of the
State Bar Council.
Each disciplinary committee consists of three members. The term of the members of this committee is
three years.

EXECUTIVE COMMITTEE:
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The Executive Committee is the executive authority of the Council, and is responsible for giving effect to
the resolutions of the Council.
Members of the Executive Committee are elected from amongst the members of the Bar Council of India.
The committee elects its Chairman and Vice-chairman.
The Executive Committee has the power:
• To manage the funds of the Council,
• To invest the funds of the Council in the manner directed by the Council from time to time,
• To grant leave to members of the staff, other than casual leave,
• To prescribe books of account, registers and files for the proper management of the affairs of the
Council,
• To appoint and supervise the work of the members of the staff and prescribe their conditions of service
• To appoint auditors and fix their remuneration,
• To consider the annual audit report and place it before the Council with its comments for its
consideration,
• To maintain a library and under the directions of the Council, publish any journal, treatise or pamphlets
on legal subjects,
• To prepare and place before the Council, the annual administration report and the statement of account,
• To provide for proper annual inspection of the office and its registers,
• To authorise the Secretary to incur expenditure within prescribed limits,
• To fix travelling and other allowances to members of the committees of the Council, and to members of
the staff,
• To delegate to the Chairman and/or the Vice-Chairman any of its aforementioned powers,
• To do all other things necessary for discharging the aforesaid functions.

ADVOCATE WELFARE COMMITTEE:

The Advocates Welfare Committee looks into applications made by advocates through various State Bar
Councils for welfare funds. The committee verifies the application and allocates funds.
The Advocates Welfare committee is empowered by the Advocates Welfare Fund Act, 2001. The State Bar
Council shall pay to the Fund annually, an amount equal to twenty per cent of the enrolment fee received
by it from advocates clause (f) of Section 24 of the Advocates Act.
The members of the Advocates Welfare Committee are elected from amongst the members of the Bar
Council of India. The term of each member in this committee is two years.

The Constitution, Powers and Functions of a State Bar Council

The Advocate Act, 1961, has made provisions for the establishment of Bar Councils. The Bar Council
will be two patterns - Bar Council of India and State Bar Council. Under Section 3 of the Act State Bar
Council will be established. However, Under Section 4, a Bar Council of India will be established.

STATE BAR COUNCILS:

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State Bar Council shall consist of the following members, namely:—

(a) in the case of the State Bar Council of Delhi, the Additional Solicitor General of India ex officio in
the case of the State Bar Council of Assam, Nagaland, Meghalaya, Manipur and Tripura, the Advocate
General of each of the State of Assam, Manipur, Meghalaya, Nagaland and Tripura, ex officio; in the case of
the State Bar Council of Punjab and Haryana, the Advocate-General of each of the State of Punjab and
Haryana, ex officio; and in the case of any other State Bar Council, the Advocate-General of the State, ex
officio;

(b) in the case of a State Bar Council with an electorate not exceeding five thousand, fifteen members,
in the case of a State Bar Council with an electorate exceeding five thousand but not exceeding ten
thousand, twenty members, and in the case of the State Bar Council with an electorate exceeding ten
thousand, twenty-five members, elected in accordance with the system of proportional representation by
means of the single transferable vote from amongst advocates on the electoral roll of the State Bar
Council: Provided that as nearly as possible one-half of such elected members shall subject to any rules
that may be made in this behalf by the Bar Council of India, be persons who have for at least ten years
been advocates on a State roll, and in computing the said period of ten years in relation to any such
person, there shall be included any period during which the person has been an advocate enrolled under
the Indian Bar Councils Act, 1926 (38 of 1926).

Term of Office of the Members of State Bar Council: Section 8 Provides term of the office of the Members
of the State Bar Council -

The term of office of an elected member of a State Bar Council (other than an elected member thereof
referred to in section 54) shall be five years from the date of publication of the result of his election:

Provided that where a State Bar Council fails to provide for the election of its member before the
expiry of the said term, the Bar Council of India may, by order for reasons to be recorded in writing,
extend the said term, the Bar Council of India may, by order, extend the said term for a period not
exceeding six months.
Powers and functions of State Bar Council are as under
Functions of State Bar Council :
a) General functions -
Section 6(1) of the Advocate Act 1961 makes provisions in respect of the functions of the State Bar
Council.
Functions of State Bar Councils
(1) to admit persons as advocates on its roll;
(2) to prepare and maintain such roll;
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(3) to entertain and determine cases of misconduct against advocates on its roll;
(4) to safeguard the rights, privileges and interests of advocates on its roll;
(5) to promote the growth of Bar Associations for the purposes of effective implementation of the welfare
schemes referred to in clause (a) of sub-section (2) of this section clause (a) of sub-section (2) of section
7;
(6) to promote and support law reform;
7) to conduct seminars and organise talks on legal topics by eminent jurists and publish journals and
paper of legal interest;
(8) to organise legal aid to the poor in the prescribed manner;
(9) to manage and invest the funds of the Bar Council;
(10) to provide for the election of its members;
(11) to visit and inspect Universities in accordance with the directions given under clause (i) of sub-
section (1) of section 7;
(12) to perform all other functions conferred on it by or under this Act; (i) to do all other things necessary
for discharging the aforesaid functions.
Section 22 of Advocate Act 1961 provides that, There shall be issued a certificate of
enrollment in the prescribed form by the State Bar Council to every person whose name is
entered in the roll of advocates maintained by it under this Act.
Every person whose name is so entered in the State roll shall notify any change in the place of his
permanent residence to the State Bar Council concerned within ninety days of such change.
Admission as an Advocate on a State Roll -
A person may be enrolled as an advocate by the State Bar Council if he fulfills the
Conditions required for admission as an advocate Under section 24 of the Advocate Act, 1961.
Conditions laid down in this section for admission as an advocate, may be enrolled as an advocate
by the State Bar Council, namely :
a) He is a citizen of India.
b) He has completed the age of twenty-one years.
c) He has obtained the degree of Law.
d) He fulfils such other conditions as may be specified in the rules made by the State Bar
Council.

Maintenance of Roll of Advocates:

Section 17. of Advocate Act, 1961 provides that every State Bar Council shall
prepare and maintain a roll of advocates in which shall be entered the names and
addresses of all persons who were entered as advocates on the roll of any High Court
under the Indian Bar Councils Act, 1926, immediately before the appointed day including
persons, being citizens of India, who before the 15th day of August, 1947, were enrolled
as advocates under the said Act in any area which before the said date was comprised
within India as defined in the Government of India Act, 1935, and who at any time
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express an intention in the prescribed manner to practice within the jurisdiction of the
Bar Council also enroll all other persons who are admitted to be advocates on the roll of
the State Bar Council under this Act on or after the appointed date.
Each such roll of advocates shall consist of two parts -
the first part containing the names of senior advocates and the second part, the names of other advocates.

Powers of State Bar Council:

a) Power to make rules :
The State Bar Council has been empowered to make rules to carry on the purposes of section 16
to Section 27 of the Advocate Act, 196, dealing with the admission and enrollment of advocate, Section
28(1) provides that the State Bar Council may make rules to carry out the purposes of chapter III (Section
16 to section 28) of the Act but this rules shall not effective unless approved by Bar Council of India.

b) Power to punish Advocate

The State Bar Council has Power to punish an advocate for professional misconduct and other
misconduct. The Disciplinary Committee of the State Bar Council may make any of the following order -
(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;
(c) suspend the advocate from practice for such period as it may deem fit;
(d) remove the name of the advocate from the State roll of advocates.
(c) To appoint Committees and Staff Members
(d) To Maintain Accounts and Conduct Audit