Sunday, December 23, 2012

Professional Ethics in the Legal Profession:- A Dying Concept?

Also read article on Should Indian Lawyers be Allowed to be Paid on Contingency Basis

Ethics is not definable, is not implementable, because it is not conscious; it involves not only our thinking, but also our feeling.

Professional Legal Ethics Lady Justice Balance Weighing Scale
Open the newspaper on any regular day and you will see news such as doctor being caught in the business of revealing the sex of a foetus or a judge accused of taking a bribe or similar stories. Only a person of the respective profession can understand the shame the members of their profession feel when they read such news.

Professional ethics is basically the standard or code of behavior that a professional must follow. There is no clear definition of the word ‘professional’, but for the purposes of professional ethics it may be safe to assume that a "professional" means any person in an occupation which requires public licensing or
certification. Doctors, lawyers, chartered accountants, teachers are all supposed to keep it in mind at all times.

Many professions in India, such as legal and medical professions have codes of practice that members of the profession must follow. For advocates it is the Advocates Act and Bar Councils Act, whereas for doctors it’s the Indian Medical Councils Act, 1956 and Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002.

These legislation aim at preventing exploitation of clients and patients; and at the same maintaining the integrity of the profession.

This is not only for the benefit of the client but also the benefit of those belonging to the profession. Disciplinary codes allow the profession to define a standard of conduct and ensure that individual practitioners meet this standard, by disciplining them from the professional body if they do not practice accordingly. This allows those professionals who act with conscience to practice in the knowledge that they will not be undermined commercially by those who have fewer ethical qualms. It also maintains the public’s trust in the profession, encouraging the public to continue seeking their services[1].

Professional conduct & Professional ethics
Most people think that professional conduct and professional ethics are one and the same. However, there is a slight difference between the two. In professional conduct the member of the profession acts under some statutory or contractual powers .i.e. legal obligation, whereas in professional ethics a member of profession is expected to follow i.e. moral obligation. Professional ethics is noble and those who remain within it are considered divine.
"I feel the rules governing ethics of lawyers should never have had to be codified but there are black sheep in every profession,''  said Justice P.B. Majmudar[2]
Although codes, policies, and laws of conduct are very essential and constructive, like any set of rules, they do not cover each and every possible incident that may arise, and in some cases they often conflict. They also require substantial amount of interpretation. Most of the decisions that a professional must make in respect of conduct involve the straightforward application of ethical rules[3].

law Yao Ming meme troll legal ethics please that's an oxymoronLegal ethics
Some topics covered in legal ethics include attorney-client privilege, legal billing, disclosures which lawyers are obligated to make, professional and personal relationships with other members of the legal profession, relationships with jurors, situations in which lawyers and judges must refused from taking up a case, ethical conflicts which can arise in the law, and situations in which people can offer legal advice. In many nations, legal ethics also includes mandates to perform volunteer service, or a strong stress on performing pro bono work.

In A S Mohammed Rafi v State of Tamil Nadu Rep by Home Dept & Ors[4] Justice Katju of Supreme Court held, “Professional ethics requires that a lawyer cannot refuse a brief, provided a client is willing to pay his fee, and the lawyer is not otherwise engaged. Hence, the action of any Bar Association in passing such a resolution that none of its members will appear for a particular accused, whether on the ground that he is a policeman or on the ground that he is a suspected terrorist, rapist, mass murderer, etc. is against all norms of the Constitution, the Statute and professional ethics. It is against the great traditions of the Bar which has always stood up for defending persons accused for a crime. Such a resolution is, in fact, a disgrace to the legal community. We declare that all such resolutions of Bar Associations in India are null and void and the right minded lawyers should ignore and defy such resolutions if they want democracy and rule of law to be upheld in this country. It is the duty of a lawyer to defend no matter what the consequences, and a lawyer who refuses to do so is not following the message of the Gita.
The above judgment was circulated in the Bar Associations of all District and High Courts of India.

Some other topics covered in legal ethics include lawyer-client confidentiality, maintaining court etiquettes, when lawyer is permitted to refuse to take up a case, admissions which lawyers are compelled to make, professional relationships with other members of the profession, appearing against a previous client in a related case.

In U.K. or India a lawyer cannot even enter into a contract with a client based on contingent payment. i.e. paying the lawyer a percent of the amount that the lawyer wins in court for the client as fees or paying fees only if the lawyer wins.[5]
One of the judgments given by a Full Bench over which Sir Lawrence Jenkins presided "I consider that for an Advocate of this Court to stipulate for, or receive, a remuneration proportioned to the results of litigation or a claim whether in the form of a share in the subject-matter, a percentage, or otherwise, is highly reprehensible, he will by so acting offend the rules of his profession and so render himself liable to the disciplinary jurisdiction of this Court."[6]

Unlike doctors or chartered accountant, lawyers are more likely to face disciplinary proceedings than criminal or civil liability. Earlier, a lawyer guilty of unethical conduct will usually loose her/his license but will not face imprisonment or be charged huge fines. This old trend does seem to fading away as judges and chairpersons of the disciplinary committee are becoming more and more stringent in upholding the reputation of the noble profession.

Dying Concept
One does not even have to open the newspaper to learn new ways by which professionals betray or take advantage of their clients. An ordinary person in her/his whole life will at least once catch a glimpse of unethical practices by professionals first hand.
Now what can be a possible solution to this problem? More stringent law? As explained earlier, having too tightly knit laws overlooking members of a profession is neither desirable nor practical. The laws can of course be better and should keep improving but their scope will always be limited[8]. Bigger problems involve implementation of already existing laws. Professionals do not violate the code of ethics thinking what they legal, but rather knowing that it is illegal and that they will still never be caught.
There again, there is scope for improvement, but even implementation is not the most important aspect.
What is most important is inculcating a spirit of professionalism. When one believes that it is worth living up to the reputation of the profession one belongs to, then maybe, just maybe, we’ll live in a society where lawyers, doctors, teachers and chartered accountants are not hated, but revered.

1.      Daniel E. Wueste, Professional ethics and social responsibility, Rowman & Littlefield, (1994)
2.      Daryl Koehn, The ground for professional ethics, Routledge, 1994
3.      S. Dinesh Babu, Professional Ethics and Human Values, Firewall Media, 2007

[1]Daniel E. Wueste, Professional ethics and social responsibility, Rowman & Littlefield, (1994)

[2] Times of India, HC judge gives tips on ethics in law, 8th September 2008

[3]Daryl Koehn, The ground for professional ethics, Routledge, 1994
[4] A S Mohammed Rafi v State of Tamil Nadu Rep by Home Dept & Ors. [2010] INSC 1060
[5] K.L. Gauba vs Unknown, AIR 1954 Bom 478, (1954) 56 BOMLR 838, ILR 1955 Bom 11
 Section 11, Attorney's and Solicitors' Act, 1870;
'R, An Advocate, In re', AIR 1939 Mad 772 (E);
Pleader of the Chief Court of the Punjab', 69 Pun Re 1904 (F);
'Ganga Ram v. Devi Das', 61 Pun Re 1907 (FB) (G);
[6] In re Bhandara', 3 Bom LR 102 (H)
[7] Dr. Louis Lasagna, former Principal of the Sackler School of Graduate Biomedical Sciences and Academic Dean of the School of Medicine at Tufts University
[8]S. Dinesh Babu, Professional Ethics and Human Values, Firewall Media, 2007

Keywords: legal profession, lawyers, professional ethics, legal ethics india, dying concept, medical ethics

1 comment:

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