PROFESSIONAL ETHICS
University Of MumbaiNari Gurusahani Law College,
Ulhasnagar-3Three Year Course (semester II)This project is
projected by F.Y.LL.B student namedMr. Shivling Kanni
Roll No. 65
For the concept of PRACTICAL TRAINING
Under the leader
Of
Prof. Nitin Bansode
For the Academic Year 2011-2012
PROFESSIONAL ETHICS
PROFESSIONAL ETHICS
Introduction
Professional ethics is a code of conduct written or oral
regulating the behavior or practicing lawyer towards himself,
client, his opponents in the court etc., It means ethics of legal
profession means the body of rules determine the conduct of members
of bar council.
DUTY TO COURT
Rules mention in Advocates Act 1961. Duties are as follows:
An Advocate is require to maintain towards court the respectful
attitude keeping in mind that the dignity of the judicial public is
essential for the survival of the free community.
No Advocate shall influence the decision of the court by any
illegal or improper peace.
The Advocate must use his best restraint and prevent his client
from resorting to unfair practice or doing anything in relation to
the court opposing council or parties which advocate himself ought
not to do.
An Advocate shall appear in the court in the prescribed dress
and his appearance shall always been presentable.
An Advocate shall not enter, act plead or practice any way
before a court, Tribunal or any other authority, if the sole member
or any member thereof related to the Advocate as a grandfather,
mother, wife, son, sister, uncle, aunt, brother, brother-in-law,
sister-in-law.
An Advocate should not wear bands, gown in public place. An
Advocate shall not act or plead in any matter in which he has
monetary interest.
DUTY TOWARDS HIS / HER CLIENT An Advocate is bound to accept any
brief in the court or in Tribunal or before any other authority
before which is proposed to practice act feel consistent with its
standing at Bar Council and also nature of case at Bar. An Advocate
shall not Ordinary withdraw from engagement once expectance without
sufficient cause and reasonable notice to the client.
An Advocate shall not except the case or appear in a case in
which he has reason believe he will be witness Article 21 of
Constitutional.
It is duty of an advocate to uphold. The interest fearlessly and
by all fair reasonable and sufficient means of his client.
An Advocate shall not commit a breach of obligation imposed by
section 126 of Indian Evidence Act.
It is duty of an Advocate not to act on the instruction of any
person other then client or his authorized agent.
The fee of an advocate depending upon success of suit is
considered as oppose to public policy.
An Advocate shall not directly or indirectly purchase either in
his own name for his own benefit, for benefit of any person any
property sold in the execution of the decree or other proceeding in
which he was professionally engaged.DUTY TO OPPONENT
Rule 34 and 35 framed by the Bar Council of India contain
provisions as to the duties of an advocate to the opponent. Rule 34
provides that an advocate shall not in any way communicate or
negotiate upon the subject matter of controversy with any party
represented by an advocate except through that advocate. Rule 35
provides that an advocate shall do his best to carry out all
legitimate promises made to the opposite party even though not
reduced to writing or enforceable under the rules of the Court.
DUTY TO THE COLLEAGUES
Rules 36, 37, 38 and 39 framed by the Bar Council of India deal
with the duties of an advocate to the colleagues. Rule 36 provides
that an advocate shall not solicit work or advertise (either
directly or indirectly) whether by circulars, advertisement, touts,
personal communications interview not unwarranted by personal
relations, furnishing or inspiring newspaper, comments or producing
his photograph to be published in connection with case in which he
has been engaged or concerned.
Rule 37 provides that an advocate shall not permit his name to
be used in aid of or to make possible the unauthorized practice of
law by any agency.
Rule 38 makes it clear that an advocate shall not accept a fee
less than the fee taxable under the rules when the client is able
to pay the same.
According to Rule 39 an advocate shall not enter appearance in
any case in which there is already a vakalatnama or memo of
appearance filed by an advocate engaged for a party except with his
consent. The object of this Rule is to secured goodwill among the
advocates. BAR COUNCILBAR COUNCILSINTRODUCTION The Advocates Act
provides for the constitution of two types of Bar CouncilState Bar
Councils and Bar Council of India. Section 3 of the Act provides
for the establishment of State Bar Councils and Section 4 of the
Act provides for the establishment of a Bar Council of India.
POWERS AND FUNCTIONS OF THE STATE BAR COUNCIL:
Section 6 of the Advocates Act makes provisions in respect of
the functions of the State Bar Council. It provides that the
functions of the State Bar Council shall be-
Sec 6 (a) To admit persons as advocates on its rolls;
(b) To prepare and maintain such roll;
(c) To entertain and determine cases of misconduct against
advocates on its roll;
(d) To safeguard the rights, privileges and interests of
advocates on its roll;
(e) To promote and support law reform;
(f) To conduct seminar and organize talk on legal topics by
eminent jurists and public journals and papers of legal
interest;
BAR COUNCIL OF INDIA
Section 4(1) of the Advocates Act provides that there shall be a
Bar Council for the territories to which this Act extends to be
known as the Bar Council of India which shall consist of the
following members, namely
(a) The Attorney-General of India, ex officio ;
(b) The Solicitor-General of India, ex-officio ; (c) One member
elected by each State Bar Council from amongst its members.
POWERS AND FUNCTIONS:
Section 7 of the Advocates Act provides that the function of the
Bar Council of India shall be-
i) To lay down standards of professional conduct and etiquette
for advocate
ii) To lay down the procedure to be followed by its disciplinary
committee and the disciplinary committee of each State bar
Council.
iii) To safeguard the rights privileges and interests of
advocates;
iv) To promote and support law reform;
v) To deal with and dispose of any matter arising under this Act
which may be referred to it by a State Bar Council;
vi) To exercise general supervision and control over State Bar
Counsel;
vii) To promote legal education and to lay down standards of
such education in constitution with the Universities in India
imparting such education and the State Bar Councils;
STATE BAR COUNCIL AND ITS DISCIPLINARY COMMITTEE:
Section 35 of the Advocate Act makes it clear that on receipt of
a complaint or otherwise a State Bar Council has reason to believe
that any advocate on its roll has been guilty of professional or
other misconduct, it shall be refer the case for disposal to its
disciplinary committee. It is one of the functions of the State Bar
Councils to entertain and determine the cases of misconduct against
the advocates on its roll. 2)Powers:- Section 35 provides that
after giving the advocate concerned and the Advocate-General an
opportunity of being heard, the disciplinary committee of a State
Bar Council may make any of the following orders:-
(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 same of the advocate from the State roll of
advocates.
BAR
BENCH RELATIONSBENCH BAR RELATION
The Bar and Bench play important role in the administration of
justice. The judges administer the law with the assistance of the
lawyers. The lawyers are officers of the Court. They are expected
to assist the Court in the administration of justice. Actually
lawyers collect materials relating to the case and hereby assist
the Court in arriving at a correct judgment. Since the lawyers are
officers of the Court, they are required to maintain towards the
Court respectful attitude bearing in mind that the dignity of the
judicial office is essential for the survival of the society.
During the presentation of the case and while acting otherwise
before the court an advocate is require is conduct himself with
dignity and self respect. He should not use intemperate language
during arguments in the court. He should avoid scurrilous attacks
in pleadings.
DUTIES OF JUDGES:
Judges must be impartial and must do everything for justice and
nothing for himself or his friend or his sovereign. A judge must
not allow himself to be subjected to any influence other than
influence of the law and justice of the cause. He must discharge
his duties out fear or favors affection or all-will. A judge should
possess calm temper.
He should always bear in mind that where passion is allowed to
prevail, the judgment in dethroned.
Judge should have patience of hearing; he should allow the
advocate on party the fullest opportunity to present his case.
When the judge does not allow the advocate to present his client
case as he considers it, best, the counsel owes to his client to
protest against it.
According to C.L. Anand following are the duties of judges
towards the bar.
i. The Judges owe to the bar is of consideration &
Courtesy.
ii. A Judge owes to the bar is to respect its privileges.
iii. A Judge to the bar is to sit with respective mind.
ADVOCACY Now a day it is often said that the legal profession
has no future. It is overcrowded and usually those persons join
this profession who do not get other job. But this view is not
correct in relation to the persons who join this profession keeping
in mind that they are to devote their whole time to this
profession. For a person who is hard working and devoted to law has
a bright future.
When a person after getting the degree of bachelor of law enters
into the legal procession finds the giants in the profession having
vast experience as his competitors and becomes nervous. In such
conditions he should always remember that the hard - work devotion
and good dealing with the client and Judge will enable him to
complete with the senior lawyers having vast experience and good
reputation.
He should give full attention to his profession. He should see
how the senior advocates conduct the cases. The class room study,
no doubt, provides theoretical knowledge of the law and a good
background for the legal profession, but for success in the legal
profession a careful observation of the proceedings in the Court is
necessary.
CASES ON CONTEMPT OF COURT:
CASES ON CONTEMPT OF COURT E.M.S. Namboodaripad v/s. T.N.
Nambiar
In this case the Supreme Court has made it clear that the
freedom of speech and expression including the press is not
absolute and restriction thereon may be imposed by the State by
making law on any of the grounds specified under Article 19(2).
Contempt of Court is one of the grounds specified in clause (2) of
Article 19 and, therefore, the restriction on freedom of speech and
expression may be imposed, if it amounts to contempt of Court.
In this case the appellant, E.M.S. Namboodaripad who was the
Chief Minister of Kerala at a press conference charged the
judiciary as an instrument of oppression and said that the judges
were guided and dominated by class hatred, class interest and class
prejudice and favored the rich against the poor. He further said
that the judiciary works against workers, peasants and other
sections of the working classes. He was held guilty of contempt of
Court. The Court observed.
Judge from the angle of Courts or administration of justice,
there is not a semblance of doubt that the appellant was guilty of
contempt of Court. Whether he misunderstood the teaching of Marx
and Engles or deliberately distorted them is not too much purpose.
The likely effect of his words must be seen and they have clearly
the effect of lowering the prestige of Judges and Courts in the
eyes of the people. That he did not intend any such result may be
matter for consideration in the sentence to be imposed on him but
cannot serve as a justification.
Thus, the Court held that the statements of the Chief Minister,
E.M.S. Namboodaripad had effect of lowering the prestige of the
Judges and Courts in the eyes of the people and, therefore amounted
to contempt of Court. Consequently, the Court punished him for the
contempt of Court.
Sukumar Mukhoupadhay v/s. T.D. Karamchandani
In this case the Supreme Court has made it clear that if the
order is substantially complies with, the contempt will not lie.
Actually the trivialities are ignored. No Court including the Court
of Contempt is entitled to take frivolities and trivialities into
account while finding fault with the conduct of the person against
whom contempt proceeding is taken. It is, now settled that
trivialities is to be ignored. Trivial means trifling or
inconsiderable. No one should be convicted for trifling and trivial
matters.
In this case the contemnor was the Superintendent of Customs
(Preventive) at the material time. He moved a writ petition in the
Calcutta High Court challenging initiation of the departmental
proceedings against him. The Court directed the Excise and customs
Department to give inspection/supply copies of the documents
demanded by the respondent. The order was as follows
The respondent shall be at liberty to proceed with the impugned
enquiry dated 11th May, 1984 and dated 21st July, 1984 after
supplying the document asked for by the petitioner. Respondents
shall be at liberty to conduct the enquiry, but no final order will
be passed without the leave of this Court.
The copy of the order of the High Court was not personally
served on the appellant. He came to learn the gist of the order of
the High Court from two office notes. The appellant passed the
following order:
I gave permission to allow inspection and /or comply with the
Courts order.
Thereafter the appellant went to Delhi in connection with his
official duty on return from Delhi he was intimated that the
respondent was verbally requested to take inspection but he did not
do so on account of non-availability of a particular document. The
Court held that the appellant could not be held guilty of contempt
because there was substantial compliance of the order of the Court.
The Court made it clear that the appellant has substantially
complied with the Courts order and he could not be held guilty for
contempt on the ground of non-supply of copies of documents.
It was more so when the copies of the documents were also
subsequent by given to the respondent, though after the time
allowed by the order. The principal and substantial demand was
inspected and that was admittedly allowed within time. Consequently
non-supply of copies of document could not be a ground for holding
the appellant to have deliberately disobeyed the order. In case the
appellant intended to disobey the order he would have not even
permitted inspection. By inspection the appellant could copy out
the documents. The Court has observed that no court including the
Court of Contempt is entitled to take frivolities and trivialities
in to account while finding fault with the conduct of the person
against whom contempt proceeding is taken.
T.R.Dhananjay v/s. J. Vasudevan
In this case the petitioners claim for promotion as the Chief
Engineer was accepted by the High Court in contradistinction with
that of the then incumbent and the decision of the High Court was
affirmed by the Supreme Court. The fact that the Petitioner was not
eligible under relevant rules for promotion as the Chief Engineer
was not brought to the notice of the Court. When the claim inter se
had been adjudicated and the claim of the petitioner had become
final, the Government did not promote the petitioner in accordance
with the Courts order on the ground that he could but be promoted
under the relevant rules. The Court held that the refusal amounted
to contempt of Court. When the order has been passed by the Court
the Government or authority or person to whom the order has been
made has no option but to give effect to the order as passed by the
Court.
If there is any doubt, he should ask for clarification. The
respondent was held liable for contempt of Court.
PLEADINGS:
In civil case a suit is required to be instituted by presenting
a plaint to the Court or such officer as it appoints on his behalf.
Suit is, thus commenced by presentation of the plaint. Section 26
of the Code of Civil Procedure provides that every suit shall be
instituted by the presentation of a plaint or in such other manner
as may be prescribed. In every plaint facts shall be proved by
affidavit. The statement of a plaintiff regarding his claim is
taken as a plaint. Actually through the plaint the plaintiff
present his case along with cause of action, etc. After the plant
being filed the party against which it has been filed is also given
opportunity to admit or deny the facts stated in the plaint and
present his own case. This is called written statement.
The object of the pleading is to make both the parties aware of
their cases and allegations made against each other.
The main function of the pleading is to ascertain with precision
the matters on which the parties differ and the points on which the
parties agree.
Writ Jurisdiction of the Supreme Court (Articles 32)
Article 32 provides for enforcement of fundamental rights
guaranteed by the Constitution. Article 32(1) provides that the
right to move the Supreme Court by appropriate proceedings for the
enforcement dof the fundamental rights is guaranteed. It means that
in the case of infringement of the fundamental rights, the right to
move the Supreme Court is itself a fundamental right. It is the
duty of the Supreme Court to enforce the fundamental rights
guaranteed by the Constitution. The Supreme Court has thus been
made the protector and guarantor of the fundamental rights.
What is guaranteed by article 32 is the right to move the
Supreme Court by appropriate proceedings for the enforcement of the
fundamental rights guaranteed by the Constitution. An application
under Article 32 cannot be where no fundamental right has been
infringed. No question other than relating to a fundamental right
can be determined in a proceeding under Article 32. The freedom of
inter-State and intra-State trade or business guaranteed by Article
301 is not a fundamental right guaranteed by Part III of the
Constitution and therefore, it is not enforceable under Article 32.
If the petitioner make out a prima facie case that their
fundamental rights are either threatened or violated their petition
will be entertained by the Supreme Court.
CONTEMPT OF COURT
CONTEMPT OF COURT:The contempt of courts Act, 1971 define
Contempt of court for the first time. Before it, there was no
statutory definition of the concept, contempt of court. Even the
definition of contempt of court given in the contempt of court Act,
1971, is not a definition, but only the classification or
categories of contempt of courts.
KINDS OF CONTEMPT OF COURTS:
Section 2(a) of the contempt of courts Act, 1971, provides that
Contempt of Court means civil contempt or criminal contempt. It,
thus, classifies the contempts of court into two categories, civil
contempt and criminal contempt.
CIVIL CONTEMPT:
Civil contempts are taken as acts and omissions in procedure
involving a private injury by the disobedience of the judgment,
order or other process of the court.
According to Section 2(b) of the Contempt of courts Act,1971
Civil Contempt means willful disobedience to any judgment, decree,
direction order, writ or other process of a court or willful breach
of undertaking given to a court. For civil contempt there must be
disobedience to the order, etc, Of the court or breach of
undertaking given to the court and the disobedience or breach must
be willful. To constitute civil contempt both these element must be
proved. The purpose of the proceeding for the civil contempt is not
only to punish the contemnor but also to exercise enforcement and
obedience to the order of the court.CRIMINAL CONTEMPTIn India the
definition of contempt of Court is found in clause (c) of section 2
of the contempt of Courts Act, 1971. It provides that Criminal
Contempt means the publication whether by words, spoken or written
or by signs, or by visible representations, or otherwise of any
matter of the doing of any act whatsoever which
i) Scandalizes or tends to scandalize or lower or tends to lower
the authority of any Court ; or
ii) Prejudice or interferes or tends to interfere with the due
course of any judicial proceeding ; or
iii) Interferes or tends to interfere with, or obstructs or
tends to obstruct, the administration of justice in any other
manner.
CONTEMPT JURISDICTION OF THE HIGH COURT AND SUPREME COURT
An issue is as to whether the contempt jurisdiction is based on
some statutory provisions or it is inherent jurisdiction available
to them on account of being the Court of record. The contempt law
in India has been developed mainly on the basis of English contempt
law. In England a superior Court of record has been exercising the
power to indict a person for its contempt in a summary manner. This
power is taken as a necessary attribute of a superior Court of
record have inherent power to punish the contempt of court. Even in
America a Court of record has inherent power to punish for the
contempt of Court. This power has been given by the Constitution
and therefore it cannot be materially interfered or taken away by
the law made by the Legislature. In India the constitution declares
the Supreme Court and High Court as the Court of record. Article
129 of the Constitution provides that the Supreme Court shall be a
Court of record and shall have all powers of such a Court including
the power to punish for contempt of itself.
DEFENCES IN CRIMINAL CONTEMPT:Sections 3 to 7 of the contempt of
court Act, 1971 make provision in respect of the defence available
to the contemnor in the proceeding for criminal contempt. The
defences may be discussed under the following headings:
Fair and accurate report of judicial proceeding:
Section 4 of the contempt of courts Act, 1971 provides that a
person shall not be guilty of contempt of court for publishing a
fair and accurate report of a judicial proceeding or any stage
thereof. This provision is subject to the provisions contained in
Section 7 of the said Act.
Fair criticism of judicial act:
Section 5 of the contempt of courts Acts, 1971 provides that a
person shall not be guilty of contempt of court for publishing any
fair comment on the merit of any cases which has been and finally
decided.DEFENCES IN CIVIL CONTEMPT:Important defences open to a
contemnor in civil contempt may be discussed under the headings,
stated below:
Disobediences or Breach was not willful:
For civil contempt the disobedience of the order, decree, etc.
Of the court or breach of undertaking given to the court must be
willful. Consequently, it would be a defence in the contempt
proceeding that the disobedience or breach has not been willful.
However the words willful disobedience should not be taken to mean
that for constituting civil contempt the act must, in all cases, be
designed and deliberate.
Order disobeyed is vague or ambiguous:
It would be a defence in the contempt proceedings that the order
is vague or ambiguous.
COURT REPORTPAGE 4
