Misconduct and Dilemma in Ethical Legal Practice

Clinical Legal course – 705

Ayaz Ahmaed
2021-342-024

Submitted to – Lavaniya pathak

1. An article published by Cornell Law School- legal ethics- on march [2023]

2. Bar council of India rules chapter II, part IV
3. Para 16 article on legal ethics on ‘lawyers of distinction.com’
Harshad Mehta scam case analysis on Legallock.com
2g scam an article published on News18.com
Acknowledgement
The ethical framework that governs the legal profession plays a crucial role in ensuring justice,
fairness, and the integrity of legal systems worldwide. However, the challenges faced by legal
professionals in upholding these standards, while navigating the often murky waters of
conflicting interests and pressures, are significant.
First and foremost, I would like to acknowledge the pioneering work of legal researchers who
have shared their work on internet which help in understanding of nuances of legal ethics and
misconduct. Their research, case studies, and thoughtful discourse have been invaluable in
shaping my understanding of these critical issues. In particular, the writings on the duty of
loyalty, confidentiality, and the lawyer’s responsibility to the court and to society have been
instrumental in guiding this reflection on ethical behavior.

I also wish to recognize the role of professional bodies and bar associations that set and enforce
ethical standards within the legal profession. Their ongoing commitment to maintaining the
highest standards of conduct and their efforts to educate legal practitioners about ethical
responsibilities cannot be overstated. These organizations are essential in offering guidance and
support for lawyers facing ethical dilemmas, and they ensure that accountability is upheld.
Lastly, I must acknowledge the invaluable input of mentors and professors in the legal field who
have shared their insights, experiences, and perspectives on the difficult challenges involved in
practicing law ethically. Their thoughtful discussions and real-world examples have helped to
illustrate the fine line between acceptable professional conduct and misconduct.

As the legal profession continues to evolve, the examination of misconduct and ethical dilemmas
will remain an essential topic, requiring ongoing reflection and discussion to ensure that the
integrity of the legal system is maintained for the benefit of all.

1. An article published by Cornell Law School- legal ethics- on march [2023]

2. Bar council of India rules chapter II, part IV
3. Para 16 article on legal ethics on ‘lawyers of distinction.com’
Harshad Mehta scam case analysis on Legallock.com
2g scam an article published on News18.com
Introduction:
Legal ethics refers as the lawyer’s responsibility and play an important role in the
society by influencing advocacy as the Nobel profession. Usually this responsibility follows by
the law such as honesty and integrity, respect toward the court and client’s care and
confidentiality. However legal ethics is subjected to the discussion on moral principles that
societies place on lawyers shoulders.
[1]
These are the fundamental principles and values that guide layers in their daily practices,
ensuring they conduct themselves with integrity, honesty and professionalism. These ethics are
crucial inn maintain the trust and confidence of clients, judiciary and society as whole.
Legal profession is the core pillar of the democracy in our country and if it is corrupted by itself,
allowing destruction and demoralizing, sooner or later in time the rescue craft providing justice
to the society will fall. Lawyers and judges holding their office only during good and honest
behavior and this defined the ethical standard of the court resolving disputes, it is necessary to
keep it clean and pure or else the people when they are not receiving fair justice they will try to
find out other ways of resolving disputes which may cause the end of our judicial system.
The ethical standards governing the legal profession help ensure that the legal system operates
justly and fairly, providing equal protection under the law for all individuals. By promoting trust,
accountably and professionalism, legal ethics safeguard the principle of justice and fairness that
are foundational to a functioning democracy.
The professional responsibility of lawyers is also governed by bar council of India and
Advocates act 1961. [2]BCI set rules and regulations regard the disciplinary measurement of
lawyers, such as chapter II of part IV tells the duty of an Advocate to the court, to the client, to
the opponent, to colleagues etc. And the advocate act make advocate liable of any professional
misconduct, guilty under the act of untouchability or any offence involving moral turpitude.

What constitute misconduct in legal practice?

The term misconduct in legal practice refers to any act which constitute damage to the client,
disrespect the court, dishonesty, fraud etc. The following are misconducts by the lawyers:
 Conflict of Interest: A lawyer is expected to avoid situations where their personal
interests or the interests of other clients conflict with their duty to the client. Failing to
disclose or manage such conflicts can lead to misconduct charges.
 Breach of Client Confidentiality: Attorneys have a duty to keep all client information
confidential unless the client gives informed consent to disclosure. Violating this trust
can result in professional sanctions.

1. An article published by Cornell Law School- legal ethics- on march [2023]

2. Bar council of India rules chapter II, part IV
3. Para 16 article on legal ethics on ‘lawyers of distinction.com’
Harshad Mehta scam case analysis on Legallock.com
2g scam an article published on News18.com
  Dishonesty and Fraud: Lawyers must be truthful and honest in their dealings with clients,
courts, and other parties. Fraudulent behavior, such as falsifying evidence or lying to a
court, is considered a serious violation of legal ethics.
 Failure to Provide Competent Representation: A lawyer must provide competent and
diligent representation. Neglecting client matters, failing to meet deadlines, or
demonstrating inadequate knowledge of the law can be grounds for misconduct.
 Improper or Overbilling: Lawyers are required to charge clients reasonable fees and
maintain transparent billing practices. Overbilling, charging for work not performed, or
failing to disclose fee arrangements can lead to complaints of misconduct.
 Criminal Activity: Any lawyer engaging in criminal activity, whether inside or outside
the scope of their professional duties, may be subject to professional discipline. For
example, theft, drug offenses, or corruption can result in disbarment or suspension.
 Misrepresentation and Fraud in Legal Documents: Lawyers are required to draft legal
documents accurately and truthfully. Misrepresentation, falsifying information, or
submitting fraudulent documents to courts or clients constitutes serious misconduct.
 Incompetence or Negligence: Lawyers must handle cases with the required skill, care,
and diligence. Serious errors, missed deadlines, or failure to investigate facts adequately
could be considered misconduct if they result in harm to a client.
 Exploitation of Clients: Lawyers must avoid exploiting vulnerable clients, especially
those in distress or who are unaware of their rights. Taking advantage of clients for
personal gain or manipulating them into unnecessary legal actions is misconduct.
 Suborning Perjury: A lawyer who encourages or assists a client or witness to lie under
oath is committing a serious ethical violation.
 Insubordination or Disrespect in Court: Lawyers are expected to exhibit professionalism
and respect toward the court and other legal professionals. Rudeness, obstruction, or
inappropriate behavior in the courtroom can lead to disciplinary action.
The consequences of misconduct will cause penalties to the practitioner such as suspension,
permanent removal from the legal profession, criminal charges or civil liabilities.

Ethical Dilemmas Faced by Legal Practitioners:

An ethical dilemma also known as ethical paradox or moral dilemma, is a challenge between two
choices, which none of them is completely permissible from an ethical standpoint.
Conflict of Interest: this is the most frequent dilemmas in legal practice. This happens when a
lawyer’s duty to one client is compromised by their duty to another client or a third party or their
own interests.
Illustration- a suit has been filed against x company for polluting the city and the public
prosecutor is the close friend of the CEO of the company.

1. An article published by Cornell Law School- legal ethics- on march [2023]

2. Bar council of India rules chapter II, part IV
3. Para 16 article on legal ethics on ‘lawyers of distinction.com’
Harshad Mehta scam case analysis on Legallock.com
2g scam an article published on News18.com
In the above scenario either of the duty will affect the prosecutor’s life, if he try to save his friend
company he has to breach integrity and respect toward the court and if he go for the duty toward
the court and have a fair trial then he might lose his friendship.
The right decision is to withdraw from the case and save his friendship and dignity toward the
court.
Duty toward the court vs Duty to the client: this is the fundamental ethical challenge in legal
practice, lawyers have a dual responsibility one is the integrity of the legal system and second is
represent the client zealously which also includes confidentiality.
Illustration- In a case client told his advocate not to disclose certain information in the court
which would be detrimental to his case.
In this case this the advocate is stuck in these duties whether perform the duty toward the client
or perform the duty toward the court to present all relevant facts which is necessary for the fair
trial.
In this case the advocate must perform the duty toward the court and save integrity and prevent
injustice even it harm the client.
Client confidentiality and public safety: it is the core principle in the legal practice, ensuring
that the information shared between a lawyer and their client remains private. However there are
circumstances where maintaining this confidentiality can become ethically challenging
especially when public safety is at risk.
Illustration- there is an accused of an attempt to murder and he disclose to his advocate that he
will try to kill him again after bail out.
Here this is created a dilemma to either protect the client’s speech or help him in bail or a legal
duty to warn and prevent future crime.
[3]
In the case of Tarasoff v. Regents the court held that it is the legal duty to warn threats. It is
also in favor of the client from preventing him from committing big crime in which he end up in
grave penalization or punishment.

Role of professional organizations

Organization like bar council and law universities play a crucial role in shaping, promoting, and
enforcing legal ethics. Organizations provides the frameworks, guidance, and oversight
necessary to ensure that lawyers adhere to ethical standards and principles, thus maintaining
public trust in the legal system.
1. An article published by Cornell Law School- legal ethics- on march [2023]
2. Bar council of India rules chapter II, part IV
3. Para 16 article on legal ethics on ‘lawyers of distinction.com’
Harshad Mehta scam case analysis on Legallock.com
2g scam an article published on News18.com
BCI established ethical rules and guidelines that governs the conduct of attorneys. Under the rule
36-39 BCI framed standards of conduct, these rules emphasize the importance of maintaining
professional standards, avoiding unhealthy competition, and refraining from unauthorized
practice of law (code of conduct, prevent from advertisement, conflict of interest, disciplinary
proceedings).
Colleges and law universities helps their students in building up a healthy mind set of practice in
legal field, the add subjects like continuing legal education (CLE), clinical legal education, moral
and ethical practice in the course of LLB or BALLB.

Impact of misconduct

The impact of misconduct will cause damages in various methods like impact on client bearing
the burnt, impact on attorney’s legal profession and bad influence to the society.
Impact in client: when an attorney violates the professional rules or ethical code, their client have
to bare the damages, it can be financial losses from fraud or theft of clients fund etc. legal cases
may suffer irreparable damages when evidence is mishandled or deadlines are missed due to
attorneys negligence or impairment, attorney is absent during the trial etc. The client have spent
time and money on the cases to have justice and the attorney didn’t made up to the court. The
client will lose the trust in legal profession and will try to find other ways to solve the dispute
which may be through wrongful act.
Impact on legal profession: the misconduct of an attorney in legal profession will cause him
various damages like losing the public trust in lawyers and legal system, that attorney may suffer
issues in getting future cases, may suffer financial loses and may be sentenced of suspension for
several years or revocation of license.
Impact on society: the society may looking lawyers as fraud and dishonest person, losing
Nobility in profession, later in time when the trust is fully gone the people will try to find other
ways of resolving disputes.

Cases
Harshad Mehta Scam case: also known as 1992 securities scam, was a massive financial fraud
perpetrated by Harshad Mehta a stockbroker and businessman. Mehta’s scheme involved
manipulating the Indian stock market using fraudulent bank receipts, leading to a market crash
and widespread financial losses, amount involved is estimate to be around 5000 crores. In which
Ram Jethmalani a renowned lawyer defending as not guilty by his aggressive defense tactics.

1. An article published by Cornell Law School- legal ethics- on march [2023]

2. Bar council of India rules chapter II, part IV
3. Para 16 article on legal ethics on ‘lawyers of distinction.com’
Harshad Mehta scam case analysis on Legallock.com
2g scam an article published on News18.com
2G Spectrum Scam case: this case was widely regarded as one of the India’s largest corruption
scandals. The estimated loss to the government was reported to be anywhere between 1.76 lakh
crores according to the comptroller and Auditor General of India. The Supreme Court cancelled
122 licenses of lawyers as they are accused of fraud and corruption and performing unethical
conduct, malpractice, or violation of legal and professional standards.

Conclusion
While misconduct is a serious threat to the integrity of legal practice, the ethical dilemmas
lawyers face are part of the complexity and challenge of the profession. It is essential that legal
practitioners uphold their ethical obligations and navigate these challenges with integrity, always
seeking to serve both their clients' interests and the greater good of justice.

1. An article published by Cornell Law School- legal ethics- on march [2023]

2. Bar council of India rules chapter II, part IV
3. Para 16 article on legal ethics on ‘lawyers of distinction.com’
Harshad Mehta scam case analysis on Legallock.com
2g scam an article published on News18.com
Reference:
Legal information institute article on legal ethics published on March 2023,
The role of ethics in criminal justice by Johnson and Wales University,
Professions rules of conduct and ethics- an article published on
05/November/2018 by website ‘college of law’,
Ethical Dilemmas in Legal practice by lawcrossing.com,
Legal ethics by lawyersofdistinction.com,

1. An article published by Cornell Law School- legal ethics- on march [2023]

2. Bar council of India rules chapter II, part IV
3. Para 16 article on legal ethics on ‘lawyers of distinction.com’
Harshad Mehta scam case analysis on Legallock.com
2g scam an article published on News18.com