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[Column] "Ethics And Moral Values In Legal Profession" : Justice S.Vaidyanathan

Justice S.Vaidyanathan
16 May 2020 7:11 AM GMT
[Column] "Ethics And Moral Values In Legal Profession" : Justice S.Vaidyanathan
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This Article aims to provide a brief about "Legal Profession", which is otherwise called as "Noble Profession", with a view to ensure maintenance of high standards in it. This is the only profession, where genuine practitioners are glorified with the title "Learned", which denotes possession of skills not only in Law, but, also in other areas and having deep knowledge in all fields. The word "learned" has such a significant quality, which is not given to any other professional. In India, leaders, namely, Mahatma Gandhi, Dr.B.R.Ambedkar, etc., who contributed much to our Nation's independence, are learned persons in Law and were the prime cause for the attainment of independence and development of our Nation. Unfortunately, there is a huge murmur and sudden change in the profession, especially after independence, which has considerably damaged the practice of advocacy in our Country

ESSENTIAL REQUIREMENTS OF A GOOD LAWYER

All Law Graduates do not deserve to be called as "learned" and the possession of law degree is only a tool to march forward, and, in order to shine in the legal field, a Lawyer must be equipped with certain qualities. According to Sir Edward Abbott Parry, a British Judge, a Lawyer must always bear in mind seven lamps of advocacy, such as honesty, courage, industry (able to be updated), wit, eloquence, judgment and the lamp of Fellowship, so as to distinguish himself from others. Legal Profession is the only profession, where professionals are honored to be called as 'Gentlemen'.

CO-ORDINATION BETWEEN THE BENCH AND THE BAR:

There are two wings of administration of justice, namely, the Bench and the Bar and in order to arrive at a definite conclusion and render justice, both the wings have to work together, within their limited parameters and legal ethics, which means, "Usages and customs among members of the legal profession, involving their moral and professional duties towards one another, towards clients and the Courts; that branch of moral science which treats the duties which a member of the legal profession owes to the public, to the Court, to his professional brethren, and to his client". In other words, in every field, there is a written/unwritten code of conduct, popularly known as Professional Etiquette for interaction among the members in a professional setting, absence of which can be construed as a book without an author, study without a Guru, a boat without helmsman, etc. When proper professional etiquette is used, all involved will be able to feel more comfortable, and things will tend to flow more smoothly.

In India, before the Advocates Act, 1961 came into force, there was an Act called 'Legal Practitioners Act, 1879'. The following four interwoven ethics or conceptions of what a Lawyer ought to do, can be discovered in Lawyer's ethical debates, treatises and judicial pronouncements, which are the basic chastities found in the U.S. Code of Legal Ethics.

-  The commitment to serve the clients in a legal system where citizens need advice and representation;

-  The faith and gesture towards law and justice, even if the client is willing to pay a lawyer to do anything;

-  The ability to be generous, cooperative and mutually self-disciplined amongst members of the Bar.

-  To be determined to work for the people and take up causes that are usually excluded. 

REGULATORY ACT AND RULES:

The Advocates Act, 1961 along with the Bar Council of India Rules, bridle the conduct for Advocates that are to be adhered to by them in the professional front. The ultimate purpose of such legislation is to bring out stout-hearted persons in the field of advocacy. The real practitioners in this noble profession must be dutiful and conscious to the Court, their clients, etc., so as to recalibrate the inner feelings of the society. The Bar Council of India has laid down Rules to be followed by Advocates as to the Standards of Professional Conduct and Etiquette, in the light of Section 49(1)(c) of the Advocates Act, read with the proviso thereto. The preamble of Chapter II Part VI of Bar Council of India Rules, 1961, reads as follows:

"An advocate shall, at all limits, comfort himself in a manner befitting his status as an officer of the court, a privileged member of the community, and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of a Bar, or for a member of a bar in his non- professional capacity may still be improper for an Advocate. Without prejudice to the generality of the forgoing obligation, an Advocate shall fearlessly uphold the interest of his client, and in his conduct conform to the rules here in after mentioned both in letter and in spirit. The rules hereinafter mentioned contains cannon of conduct and etiquette adopted by general guides; yet the specific mention thereof shall not be construed as a denial of the existence of other equally imperative though not specifically mentioned."

Though the Advocates Act, 1961, did not make it mandatory for Advocates to provide free legal services, it gives necessary space for the legal practitioners to decide their fee in accordance with the nature and type of the case. The Act is so particular in setting high standards for Advocates to present a case and show intense dedication in terms of representing the case. Even sometimes, a good case will not achieve fruitful result, owing to poor representation or careless preparation of the case. Mere reading of the case is not enough to achieve the object and it should be presented in a fair and pleasing manner with evidence and precedence and those nuances can be attained only by way of practice, and this Art can be mastered by joining a reputed Senior.

ADVOCATES' ETHICS:

There is no difference between Medicine and Legal profession. If a Doctor commits a mistake, the patient will go six feet down the earth; whereas, if a Lawyer commits a mistake, the client will go six feet above the earth (death sentence by hanging). The result is one and the same. When a Doctor commits a mistake, the life of the patient is gone and when a Lawyer commits a mistake, in many cases, litigants may be alive, but, their honour is at stake. Practitioners involved in these two professions must strive hard to achieve the expected results and even slight carelessness will lead to irrevocable loss not only to their clients, but also to their career.

When I was a Lawyer, Justice P.K.Misra asked me as to how I view this profession. I replied that, 'from this profession, a Lawyer can eke out his livelihood easily, but, if he feels that, it is his breath, he can enjoy the profession, as a whole'.

Ethics in this profession are deteriorating and nowadays, some Lawyers think that, the value of life is based on the money they earn. In this profession, you must have lot of patience and you will learn a lot by way of observance. The way of presentation in the Court will give you a good impression amongst Judges, who will remember you forever. Legal Professionals should spend hours together for updating themselves, which alone will help them in excelling practice. Junior Advocates shall be responsible in bringing updates, both in technology and in Law. Juniors shall preferably attach themselves to the offices of Seniors, where they find themselves to be able to equip and commit themselves to the office environment of their Seniors. They must dedicate themselves in reading the briefs and explaining it to their Seniors. They must be ready to seize the opportunity and expose themselves, whenever the Court needs them to argue.

Legal ethics should not be given up for any reason. It is disheartening to note that, nowadays, political ideologies are prevailing over legal morality and it should be remembered that, their political ideologies should not be clubbed with the legal profession and they should strike a balance between Legal profession and politics, as, each profession has its own nature and the nature of the profession should not be contaminated by the act of some miscreants. The Society's view on the Advocates is not healthy, and Advocates must ensure that, the view on the legal professionals, is changed for good. Each member of the Bar is to be self- disciplined and should follow the moral values in the society showing their part of contribution in the progress of the society. It is very painful to state that, on account of entry of some black sheep into the legal profession, the noble profession struggles to survive as well as to maintain the standards created by our propounding professionals. What was learnt gradually and invested, may not pay off immediately, but they are always helpful at a later point of time.

RESPECT SHOWN TO ADVOCATES IN OLDEN DAYS:

Our forefathers practised and lived as per law in such a way that, the society had great respect towards them and their profession and the members of the Bar were considered to be learned persons in those days. In olden days, the respect extended to Lawyers was inexplicable and they were given utmost regard in the society. When I had an occasion to converse with Mr.Meenakshisundaram Panchapakesan, a renowned Lawyer practising at Coimbatore, under whom several Junior Advocates are spread over like branches of a Banyan tree, he recollected his memory, saying that, Thiru.K.Parasaran, Senior Advocate, who had achieved a legendary status in this legal profession and who was engaged by him to appear in a case before the Supreme Court, once firmly refused to accept the Fee for an adjournment, on the ground that, the adjournment was sought for his convenience, even though his client was willing to pay him the Fee for the said day.

It is apposite for me to recall an incident described by my father that, when my father was travelling in a Tram in Madras, a young chap got into it and was standing nearby an old man. The old man asked the chap as to what was his avocation, and upon hearing that, the young chap was a Lawyer, he immediately stood up and requested that chap to sit in his seat. A Lawyer gained that kind of respect in those days and it is a million dollar question as to whether those days will come back.

PRESENT STATUS OF ADVOCATES:

It is a fact that, society by and large, perceives Lawyers with derogatory remarks as liars in all endeavours. In other words, there is an unfortunate misconception that, what lawyers do for a living is 'uttering lies' and that, best lawyers lie as easily as they breathe. Such criticism may have its own reasons in one way or the other, perhaps based on the past experiences of people, who often accuse Lawyers of lying, merely because of the saying that, "good liars make good Lawyers". Of course, there are always a few bad nuts in any profession and the legal profession is not an exception. Little changes in the attitude of Lawyers, especially new entrants, may erase the primitive perception or impression, which the society holds about Lawyers.

It is highly distressing that Advocates are portrayed as Villains in the society, moreso in the movies. Banks are even hesitant to issue Credit Cards to Advocates; there are obstacles in getting a bride/bridegroom for an Advocate; and no house owner is prepared to rent out his premises to Advocates. All these happens on account of intrusion of some black sheep with unethical values in the profession. Even in one of my judgments, I directed an Advocate, who was in illegal occupation of a building owned by a Doctor, for 14 years, to vacate the premises within two weeks, by granting liberty to the landlord to seek the assistance of Police for vacating the premises and also to lodge a complaint before the Bar Council.

I want to emphasize that, though there may be separate proceedings initiated by the Landlord with regard to eviction, fixation of fair rent, non- payment of rent, etc., against an Advocate, who refuses to vacate the premises, still the Bar Council, on receipt of any complaint of such nature, will have to suspend the practice of such Advocate till the proceedings before the appropriate Forum are disposed of, as, both proceedings run parallel to each other. By click of a button, details of such notorious/suspended Advocates can be viewed in the website of the Bar Council. The Bar Council shall also ensure that the landlord gets his/her building back, as those Advocates not only use the status of a Lawyer, but also bring disrepute to the title "learned" or "gentleman".

STRATEGY TO REGAIN THE LOST FAME:

The legal profession is a challenging one, which is also called as 'noble' and its practitioners are regarded as honourable members. The fact always remains that, an institution cannot survive on its name or its past glory alone, and its glory rests on its continuous and uninterrupted performance. Reluctance of a few Senior Advocates in doing service to the community is becoming a serious constraint in the success of the legal aid scheme in India. The Hon'ble Supreme Court in the case of Kishore Chand Vs. State of Himachal Pradesh reported in AIR 1990 SC 2140 had commented on this situation, as under:

"Though Article 39-A of the Constitution provides fundamental rights to equal justice and free legal aid and though the State provides amicus curiae to defend the indigent accused, he would be meted out with unequal defence if, as is common knowledge the youngster from the Bar who has either a little experience or no experience is assigned to defend him. It is high time that senior counsel practicing in the court concerned, volunteer to defend such indigent accused as a part of their professional duty. If these remedial steps are taken and an honest and objective investigation is done, it will enhance a sense of confidence of the public in the investigating agency. We fervently hope and trust that concerned authorities and Senior Advocates would take appropriate steps in this regard."

The responsibility to raise the standards of this under-valued profession lies in the hands of Senior Advocates and Professors, by way of humanitarianism, blended with professionalism and they must preach and pass on this gene to the youngsters, so that they will not be misguided by wrong illusion and they will also work with the spirit to repose confidence into the people, by practising it. A Senior Advocate steps into the shoes of a Teacher and he is regarded as a 'Guru' and he should be a 'Guru' in the literal meaning as observed by the Apex Court in the decision rendered in Avinash Nagra Vs. Navodaya Vidyalaya Samiti and others, reported in 1997(2) SCC 534. Relevant portion of the said decision reads thus:

"10.Mahatma Gandhi, the Father of the Nation has stated that "a teacher cannot be without character. If he lacks it, he will be like salt without its savour. A teacher must touch the hearts of his students. Boys imbibe more from the teacher's own life than they do from books. If teachers impart all the knowledge in the world to their students but do not inculcate truth and purity amongst them, they will have betrayed them. ...

.....Dr.S.Radhakrishnan has stated that "we in our country look upon teacher as gurus or, as acharyas. An Acharya is one whose aachar or conduct is exemplary. He must be an example of Sadachar or good conduct. He must inspire the pupils who are entrusted to his care with love of virtue and goodness. "

11. It is in this backdrop, therefore, that the Indian society has elevated the teacher as "Guru Brahma, Guru Vishnu, Guru Devo Maheswaraha". As Brahma, the teacher creates knowledge, learning, wisdom and also creates out of his students, men and women, equipped with ability and knowledge, discipline and intellectualism to enable them to face the challenges of their lives. As Vishnu, the teacher is preserver of learning. As Maheswara, he destroys ignorance. "

In yet another judgment in the case of The Secretary, Sri Ramakrishna Vidhyalayam High School, Tirupparaithurai, Tiruchirapalli District Vs. State of Tamil Nadu, represented by Special Commissioner and Secretary to Government, reported in 1990 (9) WLR 62, this Court has categorically held as follows:

"51.It is very lamentable state of affairs that in this country, a teacher who was considered as equal to God, should fall from the high pedestal to the lowest level. Our scriptures command the students to consider the teacher as a God (Acharya Devo Bhava). The term "Acharya" in Sanskrit means a person who not only teaches lessons to students, but also ensures good conduct of his pupils. The more important part of the definition is that he shall  himself practice what he preaches. In Sanskrit language the term "Guru" also means teacher. The syllable "Gu" represents darkness (symbolishing ignorance). The syllable "Ru" represents the removal thereof. Thus, a Guru is so called as he removes the darkness and the ignorance from the minds of the students. In fact, there is a saying that it is only with the blessings of a teacher that a person blossoms into a full man."

A Junior Advocate must join an Office, where the Senior fits into the said observation of the Apex Court and during the initial years, he must aim for learning and not for earning. Junior Advocates must learn the trade and not the tricks of the trade, which will be detrimental not only to their interest, but also to the interest of the litigants. One of the main accusations levelled against Advocates is that, the compensation awarded to victims/dependants in cases relating to Land Acquisitions, Motor Accident Claims and Workmen's Compensation are taken away by the Advocates without the consent of parties, as Advocate Fee. With a view to curb such practice, a system of transfer of the amount of compensation directly to the account of victims / dependents by NEFT / RTGS was introduced to ensure that, the victims get full compensation in time, in Motor Accident Claims.Even that system needs further modification to the extent that, a new account has to be opened for transfer of the compensatory amount in the name of victims/dependants and in that event, Banks should be strictly instructed to ensure that, no ATM card is provided in respect of such accounts, as several verbal complaints have been mushrooming to the effect that, Advocates take away the ATM card from litigants and draw money, thereby, the purpose of justice rendered to affected persons is defeated.

The role of a lawyer in the society is basically to help an individual to find the best way to redress a dispute or prevent one from occurring and not to loot their money. There should be a feeling in the mind set of clients that, consulting a lawyer promptly should help them avoid a wide range of problems and reduce financial losses and not otherwise, as is prevalent as on date. Legal profession is a service-oriented profession, which lost its charm in the past decade, due to enrolment of some black sheep in it. Some Lawyers accumulate wealth through notoriety, corruption, deception, protection of despicable clients. In this regard, Adolf Hitler uttered that, "I shall not rest until every German sees that, it is a shameful thing to be a Lawyer." 

I think it appropriate to extract one passage from the Constitution Bench decision in the case of Bar Council of Maharashtra vs. M.V.Dabholkar etc., reported in (1975) 2 SCC 702, which reads as follows:

"52. The Bar is not a private guild, like that of 'barbers, butchers and candlestick-makers' but, by bold contrast, a public institution committed to public justice and pro bono publico service. The grant of a monopoly licence to practice law is based on three assumptions: (1) There is a socially useful function for the lawyer to perform, (2) The lawyer is a professional person who will perform that function, and (3) His performance as a professional person is regulated by himself not more formally, by the profession as a whole."

According to Justice Spigelman, Chief Justice, Supreme Court of Australia, "Lawyers perform a critical role in the promotion of social order by the administration of the law in a manner, which answers the fundamental requirements of justice, namely fair outcomes arrived by fair procedures."

It should always be remembered that, a Lawyer is a representative of clients or a neutral third party, an Officer of the legal system and a public citizen having special responsibility for the quality of justice. Though, it is difficult for a 

Lawyer to protect the interests of their clients in toto, independence is the key for providing unbiased advice and representation to a client. Lawyers must also maintain the highest standards of honesty, integrity and fairness towards clients, Court, other lawyers and members of the public, including fulfilment of any undertaking given in the course of their practice.

Dr.A.P.J.Abdul Kalam, former President of India said, "Mistake increases your experience and experience decreases your mistakes. If you learn from your mistakes, then others learn from your success." It does not mean that, mistakes should often be committed to justify the act.

Bhagavad Gita says: "Whatever happened has happened for good; whatever is happening, is happening for good and whatever will happen, will also happen for good."

At this moment, my humble advice to young Advocates is that, as rightly said by Dr.A.P.J.Abdul Kalam that, experience decreases your mistakes, Juniors must learn a lesson from their Seniors, who had committed mistakes in the course of their advocacy, and work hard to excel in the profession, so as to safeguard the dignity of the profession, litigants and the Nation as a whole. They shall sow the fertilizer in the form of experience not only for their growth, but also to the future generation of our Country and contribute much to the society, as responsible citizens.

My earnest appeal to Junior Advocates is that, utmost, sincere and honest efforts should be put in, to render justice to their clients under the guidance of their Seniors. Whether they succeed in the case or not is of secondary importance and by any necessary means, they, at the first blush, should bring fame to their Seniors and whatever knowledge/experience gained from them must also be extended to the future generation in remembrance of their Seniors.

Last, but not the least, in the medical profession, it is obligatory on the part of every student to work as a house surgeon for a period of eighteen months, as, on passing the final MBBS examination at the end of 5years, a medical student would be awarded only a Provisional Registration Certificate by the Medical Council of India or the State Medical Council to enable them to start their internship. Likewise, a Law Graduate, on his/her successful completion of the course, must be forced to work as an Apprentice for a certain period under a Senior Counsel (having a high and reputed integrity and continuous practice of not less than 10 years) and upon production of necessary certificate in proof of his / her apprenticeship, he or she should be allowed to be enrolled for practice and the seniority can be given effect to, from the date of passing of the examination conducted by the respective Bar Council. The apprenticeship period can commence on and from the date of obtaining a Law Degree, so that, there is no waste of time to take up the Bar Council examination, whenever it is scheduled.

Similarly, it is high time for us to think of amending the Advocates Act and Rules, Bar Council Guidelines/ Regulations, as the case may be, in such a way that, only after clearance of the Bar Council examination, there would be enrolment, as there are no ways and means at present, to identify whether the Advocate, who appears before Courts, has cleared the Bar Council Examination within the prescribed time limit. An amendment will surely help us to ensure that, there is no enrolment prior to clearance of the examination that is conducted by the Bar Council.

We are in the era of modern technology and everyone is techno-savvy, and the details of all Advocates along with their photographs and complete particulars should be made available in the Bar Council website and the Mobile Number furnished by them initially, shall not, at any cost, be allowed to be altered and at the same time, there is no bar for them to change their portability/service provider, so as to ensure speedy communication and contact, as well.

Before parting with, I would like to recollect the words uttered by my father to me on the day of my enrolment (27.08.1986), "Your student life begins now; a Lawyer is always a student till he breathes last".

Views are personal only

(Author is a Judge at Madras High Court)







 

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