Documente Academic
Documente Profesional
Documente Cultură
SESSION: JANUARY-MAY
PROJECT
ON
ETHICS IN LEGAL PROFESSION
FOR
PHILOSOPHY
UNDER THE SUPERVISION OF: Mrs. PRIYANKA SHARMA
KHANDUJA
Submitted By:
LOVLEEN MISHRA
R450213064
500028447
TABLE OF CONTENTS
JUDICIAL CONDUCT.8
ADVOCATES ETHICS12
CONCLUSION....18
The rules of legal ethics, like other law need to be interpreted when they are silent,
ambiguous or repugnant to the common sense. The study of theory of moral obligation equip
the students of Legal Profession and Ethics with some tools which they can use when they
discover that there is no rule on the point or that the rule on the point is open textured or
that the rules on the point permits or requires conducts that seems morally repugnant.
Raj Kishore Prasad, an Indian justice, described the profession of law as follows.
The profession of law is a great culling, and to discharge the responsibility the member of
this profession must make himself equal to the task law is a great profession of talent and
talent is bound to make headway through many vestibules of circumstances and through
many reversals of fortune. The profession calls for great knowledge high mental capacity and
wide culture
Profession of law is essential in a complex society. It is essential to move the machine of
civilization, according to justice McCarty, the alternative to the reign of law is the chaos of
the jungle. Legal profession unlike other profession, which are generally taken up with the
sole objective of earning money is a profession of high dignity. Legal profession is a
profession, not a business. The distinction between legal profession and business is deep and
fundamental.
The legal professions have sought the enactment of laws that prohibit unauthorized practice
of law in part to protect the public from persons who are not trained to give professional
assistance and who may give substandard treatment. The legal professions and most
legislatures believe that the public interest is best served by restricting the performance of
advocacy services to the members of their professions.
JUDICIAL CONDUCT
one side or another or a particular result. For example, a judge who is predetermined to rule
in favor of the plaintiff despite the merit of the case is subjectively partial. Subjective
impartiality is usually presumed to exist. Its purpose is to preserve the interests of the
litigants.
Objective or perceived impartiality exists when a reasonable observer is free from legitimate
doubt in the impartiality of the court. The personal conduct of the judge does not matter.
Whether the judge is actually biased or not will not be taken into consideration to determine
the existence of objective impartiality. There are persons of high integrity who rules against
their interest or interests of their relatives. Such persons determine the matter impartially. But,
the involvement of the interests of such judges or their relatives may give a reasonable
observer the perception that those judges are not impartial. The purpose of ethical
requirements of objective impartiality is to avoid such perception in the members of the
courts.
Civility is a politeness or courtesy. Intemperate criticism of a fellow judge is incivility.
Incivility implies lack of respect and cooperation among judges. Administration of justice is a
team work. Lack of cooperation among judges seriously undermines team spirit. Thus,
civility among judges is one of the hallmarks of judicial temperament. Judges make opinions
when they decide a case. They make critical comments about other judges or the courts or
judiciary while they decide a case. Judges could also make critical comments of other judges
in public or in private though they are not deciding a case, for example, in media. These
critical comments whether they were given in a court records in the form of the majority or
dissenting opinion or opinion of appellate court judges whether they were given off the court
record in public or private, they usually give rise to issues of civility among judges.
Judges should avoid making personal attack of fellow judges when they write majority
opinions, concurring opinions or dissenting opinions. Thus, it is incivility to derogate the
dissenting opinions as foolish.
Extra judicial activities are activities that have no connection with judicial duties. Judges are
human beings. They have economic, social, political, religious, commercial and other
relationship with other persons. They have live off the bench. Virtually every judge must save
shelter, invest and/or retain funds, whether they were accumulated prior to taking the bench
or simply as a matter of prudent disposition of current income. In some jurisdiction judges are
allowed to carry out certain activities and prohibited from carrying out others In United States
9
judges are prohibited to perform certain activities like practice of law. The principal goal of
prohibiting or restricting judges from engaging in certain extra judicial activities is not to
discourage business arrangements of judges. The purposes of restriction or prohibition are
avoiding the appearance of partiality.
The rules restricting activities that are inconsistent with judicial duties are aimed at avoiding
the activities that might interfere with judicial duties eliminating conflicts of interests
between judges and parties or their lawyers avoiding misuse of judicial office and preserving
judicial dignity. The following are some lists of activities that are allowed or prohibited for
judges.
Among the multitude of factors affecting the ethical conduct of judges noteworthy are
remuneration, resource of the court, workload and off bench activities. A meager
remuneration may expose judges to violation of judicial discipline. Such remuneration may
tempt judges to seek bribes from the litigants or their advocates. Out of the financial
constraints judges may sell justice to the citizens. Meager salary may also lead judges to
conduct other business to supplement their earnings. They may engage themselves in a part
time business and such business may affect the official duties of judges by taking much of the
judges time and energy. Thus, meager remuneration for judges has a bearing on the ethical
independence of judges.
The scarcity of resources in the court affects the ethical conduct of judges. These resources
could be human or material resources. The availability of resources such as computers, books
in the library and other necessary supplies increases the judicial performance. For example, a
judge should be competent by updating his knowledge of the law. But if those laws are not
available for that judge or books are not available it is very difficult for a judge to keep in
touch with the dynamism in the law.
The work load of judges affects their ethical duty to be diligent. It is very difficult to decide
the matters thoroughly. A judge with overload cannot pay attention to the details of the
matter. To render a well-considered decision every judge needs time for research and
contemplation. It is nave to expect a sober decision from a busy judge. Thus, failure to make
research may result in egregious legal error which subject a judge to disciplinary measures.
10
Extra judicial activities may bring a judge in conflict of interest with the parties to the case or
their advocates. As a result, a judge may be regarded as partial even though he/she did not
know the existence of such relationship did not consider as ground of his recusal.
11
ADVOCATES ETHICS
In a narrow sense an advocate is a person who speaks on behalf of other and advocacy
service is speaking for others. The famous special dictionary, blacks law dictionary also
defined it as a person who assists, defends, pleads or prosecutes for another. Even if the word
speaking is narrow and doesnt involve all activities that the advocate does on behalf of
another, it certainly implies some sort of representation. Except its broadness, the Blacks law
dictionary also implies the same. Therefore we can healthily deduce that advocacy is a special
type of agency and an advocate is a special agent. This is because the issue involved is legal
issues, and the agent is a lawyer who is acquainted with knowledge, skill and developed some
sort of attitude in the field of law.
Being distinct from ordinary persons, even other professionals an advocate owes a number of
ethical responsibilities unique to the profession, advocacy. He shall act in accordance with the
rules of the professional conduct, including honor, dignity & integrity. The first and for most
duty is to up hold respect for the profession in general, law; For instance, he must not utter
words or publish writings contrary to recognized laws of the country and preemptory norms
of the world, nor incite any one including his client to violate the law and the jus cogens, but
he may for good reason and by legitimate means, criticize any provision of the law, contest
the application there of or seek to have it amended, even repealed. Secondly, he has the duty
to serve justice, Moreover; he has to cooperate for justice by showing special endeavor for
the administration of the justice machinery. Especially he has to support public authorities
mainly judges. He may not act in a manner which is detrimental to the administration of
justice in particular he may not make a public statement which may prejudice a case pending
before a court and also he must not former dissension nor promote disputes by searching for
flaws imperfections or short comings in titles or document of private nature and bring them to
the attention of others for the purpose of obtaining for himself or any other person a contract
to institute proceedings or to benefit them from. The advocate may undertake the defense of
the client no matter what his personal opinion may be on the liters guilt or liability. In a
similar fashion he has to avoid any procedure of a purely dilatory nature and cooperate with
other advocates to ensure the proper administration of justice .Moreover he must when his
presence is required attend or be represented before the court in a case he has undertaken
12
unless he is prevented by force majeure and has given the earliest possible notice of is
projected absence to the client the court and the opposite party.
Blacks law dictionary also defined as a person or an entity that employs a professional for
advice or help in that professionals line of work .The relationship is established when a
person manifests to an advocate his intent that the latter provides legal services for him; and
the advocate manifests to the client to do the same. The other issue commonly raised in the
client advocate relationship is the repetition of the contact. Even if some legal scholars argue
that to attain the status of a client or to call the bond client- lawyer relationship there should
be a long term or repeated relation; but there seems a common understanding that even a
single contact is sufficient and the practice substantiate this position. Once the relationship is
established there is an old and of course true saying that a client is a king, which connotes
that clients deserve due respect, their interest must be preserved and protected.
This relationship of the advocate is the most sensitive relationship of all relations .Most
clients are laymen, emotional, unfamiliar with the justice system and usually come to get
professional service, advice, and or support including representation. Thus a high degree of
tolerance, farsightedness and conscious understanding is expected from this advocate .He has
to act as a doctor who treats his patient humanly and kindly.
In such away he has to listen all the ideas of his client and diagnose the case in line with the
pertinent provisions of the law, asses probative value of pieces of evidence of the case, asses
the probability of win or loss; and suggest ADR whenever he thinks that the desired result can
be obtained if his clients case is resolved by amicable settlement rather than judicial one.
Generally, a client usually seeks legal assistance to deal with unfamiliar circumstances and
relationships. The clients position is ordinarily one of need and frequently one of adversity;
the clients problem may involve significant personal and property interests, individual
freedom and responsibility, or even life itself. To obtain effective advice and assistance in
such matters, the client must place trust in the advocate. To provide such advice and
assistance the lawyer must be skillful, diligent, and trustworthy. At the same time, the
advocate must be faithful to the requirements of law and the rules of professional Conduct.
These responsibilities commence when a lawyer is asked to assist a client. They should
continue in all the functions that a lawyer may perform on behalf of a client.
Lack of openness is one of the major sources of misunderstanding in the advocate client
relationship. Thus, the advocate should be transparent to his client as much as practically
13
possible being confident that they owe duty of confidentiality that information will be
maintained secretly. Accordingly, he shall keep a client reasonably informed about the status
of a matter and promptly comply with reasonable requests for information. He shall explain a
matter to the extent reasonably necessary to permit the client to make informed decisions
regarding the representation. The client should have sufficient information to participate
intelligently in decisions concerning the objectives of the representation and the means by
which they are to be pursued; to the extent the client is willing and able to do so. For
example, an advocate negotiating on behalf of a client should provide the client with facts
relevant to the matter, inform the client of communications from another party and take other
reasonable steps that permit the client to make a decision regarding a serious offer from
another party. An advocate who receives from opposing counsel an offer of settlement in a
civil controversy or a proffered plea bargain in a criminal case should promptly inform the
client of its substance unless prior discussions with the client have left it clear that the
proposal will be unacceptable. Even when a client delegates authority to the advocate, the
client should be kept advised of the status of the matter. Adequacy of communication depends
in part on the kind of advice or assistance involved. For example, in negotiations where there
is time to explain a proposal, the advocate should review all important provisions with the
client before proceeding an agreement. In litigation a lawyer should explain the general
strategy and prospects of success and ordinarily should consult the client on tactics that might
injure or coerce others. On the other hand, an advocate ordinarily cannot be expected to
describe trial or negotiation strategy in detail. The guiding principle is that he should fulfill
reasonable client expectations for information consistent with the duty to act in the clients
best interests, and the clients overall requirements as to the character of representation.
Confidential client information consists of information about a client or a clients matter
contained in oral communications, documents, or other forms of communications, other than
information that is generally known, if the lawyer or the lawyers agent learns or comes into
possession of the information. During the course of representing a client or consulting with a
prospective client, regardless of the relationship of the information to the matter involved in
the representation or consultation; or at a time before a representation begins or after it ends,
the information concerns a specific client (other than a prospective client whom the lawyer
never represents as a client), and the information is entrusted to the lawyer under
circumstances reasonably indicating that the lawyer is to employ and safeguard the
information on behalf of the client whom the information concerns.
14
Moreover, legal representation should not be denied to people who are unable to afford legal
services, or whose cause is controversial or the subject of popular disapproval. By the same
token, representing a client does not constitute approval of the clients views or activities.
The objectives or scope of services provided by a lawyer may be limited by agreement with
the client or by the terms under which the lawyers services are made available to the client.
For example, a retainer may be for a specifically defined purpose. Representation provided
through a legal aid agency may be subject to limitations on the types of cases the agency
handles. When a lawyer has been retained by an insurer to represent an insured, the
representation may be limited to matters related to the insurance coverage. The terms upon
which representation is undertaken may exclude specific objectives or means. Such
limitations may exclude objectives or means that the lawyer regards as repugnant or
imprudent.
An agreement concerning the scope of representation must accord with the rules of
Professional Conduct and other law. Thus, the client may not be asked to agree to
representation so limited in scope as to violate codes of conduct or to surrender the right to
terminate the lawyers services or the right to settle litigation that the lawyer might wish to
continue.
15
16
As far as the relationship between the public prosecutor and the person suspected is
concerned, the public prosecutor may conduct certain investigative activities. There are
certain rights recognized by the law that are given to the person suspected. Whenever he
conducts investigation, the public prosecutor is expected to clearly disclose the rights of the
suspect recognized by the law. For example, if it is the public prosecutor who conducts
interrogation of the suspect, the former is expected to tell the latter that he has the right to
keep silent and whatever he tells will be used as evidence against him in the court. Therefore,
it is unethical to withhold what is in favor of the suspect in the process of investigation.
It is also not proper if the public prosecutor encroaches in the legally recognized rights of the
person prosecuted. As we have seen earlier, the mere fact that a person is suspected and
prosecuted of a given crime does not mean that such person has committed the crime. The
final result would be either conviction or acquittal. Be whatever it is, the public prosecutor is
expected to observe the rights of the person prosecuted. Not only himself, but also the
personnel under the public prosecutor should observe the rights of the suspect.
17
The activities of the public prosecutor also continue in the process of trial of the case. Where
the public prosecutor has instituted a charge against a certain person suspected of committing
crime, he should always be present in the court. In every public hearing, the public
prosecution should be represented. Ethically, what is expected from the public prosecutor is
that he should respect adjournments. If the public prosecutor is unable to be present for a
reason beyond his scope (force majeure) he has to notify to the office of prosecution as early
as practically possible. This is directly or indirectly related to the rights of the person
suspected. Apart from presence in the court, the public prosecutor should respect the
principles of public and adversarial debate. Unless it is in the exceptional cases provided by
the law, court debates should be open and in public. The public prosecutor has to dress
socially acceptable clothes, recreate in dignified places outside his office. Any public
prosecutor shall, at all the time, exhibit good behavior and conduct in and outside office in
order to win the respect and confidence of the public. CONCLUSION
Law is a calling and legal counselors have specific commitments to their customers and to the
court. These commitments are by and large explained in a Code of Ethics or Rules of
Practice.
There have been procurements for the control of legal advisors on the grounds of offense.
The standards make procurement for a claim or protest of expert unfortunate behavior or
amateurish behavior. The moral commitments of legal counselors have not been particularly
characterized and explained thusly but rather it would along these lines be left to the Court, in
view of the case law, to figure out if an attorney was in break of expert morals.
The public must be able to have self-reliance in the legal profession and the administration of
justice. To this end it is desirable that clearly articulated rules of conduct are introduced - not
only so that the profession is aware of their ethical obligations but also because this is in the
public interest. In the present framework it would be exceedingly difficult and most unlikely
for a lawyer who is abusing their position of trust or who is in breach of their ethical
obligations to their client to be disciplined. In most cases the client will be unaware that what
has happened is a breach of professional ethics. In other cases, without clear rules or
regulations, misconduct, unless gross and obvious, will go unnoticed and unpunished.
Professional Codes of Ethics are one of the most important characteristics of a profession.
18
People in general must have the capacity to have independence in the lawful calling and the
organization of equity. To this end it is alluring that obviously explained standards of
behavior are presented - not just so that the calling is mindful of their moral commitments
additionally in light of the fact that this is in the general population interest. In the present
system it would be exceedingly troublesome and most improbable for a legal advisor who is
misusing their position of trust or who is in break of their moral commitments to their
customer to be trained. As a rule the customer will be uninformed that what has happened is a
break of expert morals. In different cases, without clear guidelines or regulations, offense,
unless gross and self-evident, will go unnoticed and unpunished.
Expert Codes of Ethics are a standout amongst the most vital attributes of a calling.
Proficient morals are for the most part ordered in different codes and regulations for expert
morals which outline the elevated expectations on which notorieties for demonstrable skill
rest. These codes or guidelines are planned to some degree to help console people in general
of two conditions. These conditions are that any specific situated of expert administrations is
being given not just by (i) appropriately qualified or in fact master persons additionally (ii) by
persons whose expert measures justify the high degrees of open reliability which are
commonly needed of experts.
In those spots where exhaustive regulations have been produced, the emphasis ought to be on
nature and purpose behind their implementation. In the event that 'open interest' then the
inquiry 'what are you shielding general society from?' is the fate of awesome signifance.
Besides, if attorneys are not open to tolerating the significance of regulation in people in
general intrigue then the experience of different spots is that it will be forced - either by the
courts or by government.
At long last, there is a developing concern over the downgrade of administration and
demonstrable skill to benefit, individual points, childish intentions and desire. We have to
help ourselves to remember the fair way of the calling generally there is little point discussing
morals. It is the substance and not the structure that matters here.
It is to be borne as a top priority that all legal counselors are individuals from a calling as
unmistakable from being occupied with an exchange. An exchange or business is an
occupation or bringing in which the essential article is the quest for financial addition.
Genuineness and good managing are, obviously, anticipated from each man, whether he be
19
occupied with expert practice or in some other beneficial occupation. Anyhow, in a calling,
monetary achievement is not by any means the only objective. Administration is the perfect,
and the acquiring of compensation must dependably be subservient to this principle reason"
20