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Bar Council of India

By James Parker,2014-03-19 03:17
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    India today, is at the threshold of great change. As markets open up around the globe and new businesses make a foray into the country, India’s 1.2 million strong legal community is

    faced with a new set of challenges thrown up by globalization.

    The legal community in India has always played a critical role in shaping the future of the country. Apart from the vital role played by it in the administration of justice to one of the largest populations in the world, it has also been at the helm of several changes in policy. In the course of India’s transition to a global economy, the legal community has continuously

    upgraded its own standards to meet the issues thrown up by India’s unique demography. India’s Bar, with its vast wealth of experience, is without doubt, amongst the most vibrant and tenacious legal communities in the world.

    It is in recognition of this evolution in professional and ethical standards within the legal community that the Bar Council of India wishes to set out the present set of ethical standards of the Indian Bar.

    ETHICAL STANDARDS

    This Code provides a general guide for ethical standards to be adhered to by members of the Bar whether practicing individually or as a law firm and whether engaged in litigation or transactional / corporate work. The expression “advocate” in these rules / Code of Conduct

    shall include to the extent practicable, any lawyer or group of lawyers practising as part of a law firm and the law firm itself.

    An advocate shall, at all times, comport himself in a manner befitting the high standards of the Indian Bar and of his/her status as an officer of the Court and a privileged member of the community, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his/her non-professional capacity may still be improper for an advocate.

    Without prejudice to the generality of the foregoing obligation, an advocate shall fearlessly uphold the interests of his/her client and in his/her conduct, conform to the rules hereinafter mentioned both in letter and in spirit. The rules hereinafter mentioned contain canons of conduct and etiquette adopted as general guides; yet the specific mention

    thereof shall not be construed as a denial of the existence of others equally imperative though not specifically mentioned.

    I. AN ADVOCATES DUTY IN CONNECTION WITH BRIEFS

    1. An Advocate is under an obligation to accept a brief in the Courts in which he/she

    professes to practise, at a proper professional fee, unless there are special

    circumstances which justify his/her refusal to accept a particular brief. In particular,

    every person who is charged before the Court has a right to services of counsel in the

    presentation of his/her defence. Subject to what has been said above, it is the duty of

    every advocate to whom the privilege of practising in Courts of Law is afforded, to

    undertake the defence of an accused person who requires his/her services. Any

    action which is designed to interfere with the performance of this duty is an

    interference with the course of justice.

    2. It shall be the duty of an advocate, when accepting a brief, to record in a letter to

    his/her client, the scope of work to be done in the brief and the services for which the

    client will be charged by the advocate. Any amendment to the scope of work may be

    done with the consent of the client and shall be duly recorded by the advocate. 3. An advocate shall not stipulate for a fee contingent on the results of litigation or agree

    to share the proceeds thereof.

    4. An Advocate may decline a specialist brief if he/she considers himself not competent

    to accept the brief.

    5. An earlier brief, once accepted, takes precedence over a later brief, should any conflict

    arise in regard to the performance of such briefs.

    6. An advocate shall give his/her personal attention to all briefs. In doing so, an Advocate

    must hold requisite conferences/ discussions with clients/ briefing counsel. It is

    improper to hand on a brief received by him to anyone else.

    7. It is improper for an advocate to hold a brief for another advocate, except in the case

    of illness or the intervention of unforeseen and unavoidable contingencies causing the

    latter's absence sine lucri causa or for any other reason which, in the opinion of the

    Bar Council, is good and sufficient in the circumstances. This shall include the absence

    of a member on Bar Council business.

    8. An Advocate shall accept only as many briefs as he/she is sure he/she can

    attend to, and shall refrain from accepting briefs in which he/she is likely not to be

    available owing to his/her preoccupation in other matters.

    9. It shall be improper for an advocate to charge an additional fee to ensure his/her

    presence in a matter, once he/she has accepted a brief.

    10. In a case where an Advocate after obtaining fee in advance is unable to appear in

    Court at the time of hearing of the case, the Advocate shall forthwith refund the entire

    fee, so obtained, to the client.

    11. Brief includes transactional and non-litigation work entrusted by a client and

    handled by a lawyer or a firm of lawyers.

    II. AN ADVOCATES DUTY TO THE COURT

    PRESENTATION BEFORE A COURT

    12. An advocate shall appear in court at all times only in the prescribed dress, and his/her

    appearance shall always be presentable.

    13. An advocate shall, during the presentation of his/her case, and while otherwise acting

    before a court, conduct himself/herself with honesty, dignity and self-respect. 14. An advocate shall, during the presentation of his/her case, and while otherwise acting

    before a court, address only the Court at all times. He/she shall refrain from making

    any statements to the opposite party or interrupting the opposite party when it is not

    his/her chance to address the Court. An interjection may be made only to respond to a

    question posed by the Court.

    15. An advocate shall maintain, towards the courts, a respectful attitude, bearing in mind

    the dignity of the judicial office. He/she shall, however, not be servile and whenever

    there is proper ground for serious complaint against a judicial officer, it shall be

    his/her right and duty to register his/her protest in Court and submit his/her grievance

    to proper authorities.

    16. An Advocate shall treat the opposing Advocate and all witnesses and officers of the

    Court with dignity and respect and refrain from making any personal statements

    against any of them unless it pertains to the merits of the case.

    17. An advocate shall not influence the decision of a court by any illegal or improper

    means. Private communications with a judge relating to a pending case are forbidden. 18. An advocate must, at the appropriate time in the hearing of the case and if the court

    has not yet been informed of that matter, inform the court of:

    (a) any binding authority;

    (b) any authority decided by an intermediate court of appeal;

    (c) any authority on the same or materially similar legislation as that in question in the

    case, including any authority decided at first instance in the Supreme Court, which

    has not been disapproved; or

    (d) any applicable legislation which the advocate has reasonable grounds to believe to

    be directly in point, against the client’s case.

    19. An advocate must inform the court of a misapprehension by the court as to the effect

    of an order which the court is making, as soon as the advocate becomes aware of the

    misapprehension.

    20. An advocate whose client informs the advocate during a hearing or after judgment or

    decision is reserved and while it remains pending, that, upon an issue which may be

    material the client has lied to the court or has procured another person to lie to the

    Court or has falsified or procured another person to falsify in any way a document

    which has been tendered:

    (a) must refuse to take any further part in the case and formally seek discharge as

    advocate for such client, from the Court unless the client authorises the advocate

    to inform the court of the lie or falsification;

    (b) must promptly inform the court of the lie or falsification upon the client

    authorising the advocate to do so; but

    (c) must not otherwise inform the court of the lie or falsification.

OF MISLEADING STATEMENTS

    21. An advocate must not knowingly make a misleading statement to a court on any

    matter.

    22. An advocate must take all necessary steps to correct any misleading statement made

    by the advocate to a court as soon as possible after the advocate becomes aware that

    the statement was misleading.

    23. The Advocate’s duty to divulge to the Court material facts of which he/she has

    knowledge is governed on the one hand by his/her overriding duty not to mislead the

    Court, and on the other by his/her duty not to disclose to any person, including in a

    proper case the Court itself, information confided to him as a lawyer. The application

    of this principle in particular circumstances and the question of when an advocate

    may be said to have knowledge of facts may be difficult to resolve. However as a

    general rule, an advocate will not have made a misleading statement to a court simply

    by failing to disclose facts known to the advocate concerning the client’s character or

    past, when the advocate makes other statements concerning those matters to the

    court, and those statements are not themselves misleading.

    III. AN ADVOCATES DUTY TO THE CLIENT

    (“Clients” includes a client of the law firm of which the advocate is a partner or

    associate, whether or not the advocate handles the client’s work)

    24. It shall be the duty of an advocate to fearlessly uphold the interests of his/her client by

    all fair and honourable means without regard to any unpleasant consequences to

    himself or any other. He/she shall defend a person accused of a crime regardless of

    his/her personal opinion as to the guilt of the accused; bearing in mind that his/her

    loyalty is to the law which requires that no man should be convicted without adequate

    evidence.

    25. An advocate must seek to assist the client to understand the issues in the case and the

    client’s possible rights and obligations, if the advocate is instructed to give advice on

    any such matter, sufficiently to permit the client to give proper instructions,

    particularly in connection with any compromise of the case.

    26. An Advocate shall not make any compromise or concession without the proper and

    specific instructions of his/her client.

    27. An advocate must (unless circumstances warrant otherwise in the advocate’s

    considered opinion) advise a client who is charged with a criminal offence about any

    law, procedure or practice which in substance holds out the prospect of some

    advantage (including diminution of penalty), if the client pleads guilty or authorises

    other steps towards reducing the issues, time, cost or distress involved in the

    proceedings.

    28. An advocate must regularly and promptly update the client on the developments in

    his/her case, as often as possible, and definitely after every hearing in the matter. 29. In civil matters, the advocate may, as far as possible, suggest to the client the option

    of mediation or arbitration as methods of resolving disputes, as an alternative to

    initiating court proceedings.

    CONFIDENTIALITY AND PRIVILEGE

    30. The lawyer has a duty to hold in strict confidence all information concerning the

    business and affairs of the client acquired in the course of the professional

    relationship, and shall not divulge any such information except as expressly or

    impliedly authorized by the client, required by law or otherwise required by this Code.

    Unless,

    (a) Where a lawyer believes upon reasonable grounds that there is an imminent risk

    to an identifiable person or group of death or serious bodily harm, including

    serious psychological harm that would substantially interfere with health or well-

    being, the lawyer shall disclose confidential information where it is necessary to

    do so in order to prevent the death or harm, but shall not disclose more

    information than is required.

    (b) The lawyer who has reasonable grounds for believing that a dangerous situation is

    likely to develop at a court or tribunal facility shall inform the person having

    responsibility for security at the facility and give particulars, being careful not to

    disclose confidential information except to the extent necessary. Where possible

    the lawyer should suggest solutions to the anticipated problem such as:

(i) the need for further security;

    (ii) that judgment be reserved;

    (iii) such other measure as may seem advisable.

    (c) Disclosure may also be justified in order to establish or collect a fee, or to defend

    the lawyer or the lawyer’s associates or employees against any allegation of

    malpractice or misconduct, but only to the extent necessary for such purposes.

    31. An advocate briefed to appear in criminal proceedings, whose client confesses guilt to him, but maintains a plea of not guilty:

    (a) may return the brief, if there is enough time for another legal practitioner to take

    over the case properly before the hearing, and the client does not insist on the

    advocate continuing to appear for the client;

    (b) in cases where the Advocate keeps the brief for the client:

    (i) must not falsely suggest that some other person committed the offence charged; (ii) must not set up an affirmative case inconsistent with the confession; but (iii) may argue that the evidence as a whole does not prove that the client is guilty

    of the offence charged; and

    (iv) may argue that for some reason of law the client is not guilty of the offence

    charged, or

    (v) may argue that for any other reason not prohibited by (i) or (ii) the client should

    not be convicted of the offence charged.

    32. An advocate whose client informs the advocate that the client intends to disobey a court’s order must:

    (a) advise the client against that course and warn the client of its dangers; (b) not advise the client how to carry out or conceal that course; but (c) not inform the court or the opponent of the client’s intention unless -

    (i) the client has authorised the advocate to do so beforehand; or

    (ii) the advocate believes on reasonable grounds that the client’s conduct

    constitutes a threat to any person’s safety.

    CONFLICT OF INTEREST

    33. An advocate shall not ordinarily withdraw from engagements, once accepted, without

    sufficient cause and unless reasonable and sufficient notice is given to the client. Upon

    his/her withdrawal from a case, he/she shall refund such part of the fee as has not

    been earned.

    34. An advocate shall not, at any time, be a party to fomenting of litigation. 35. An advocate shall not act on the instructions of any person other than his/her client or

    his/her authorised agent.

    36. An advocate who has, at any time, advised in connection with the institution of a suit,

    appeal or other matter or has drawn, or advised on, pleadings, or acted for a party,

    shall not act, appear or plead for the opposite party.

    37. An advocate should not accept a brief or appear in a case in which he/she has reason

    to believe that he/she will be a witness, and if being engaged in a case, it becomes

    apparent that he/she is a witness on a material question of fact, he/she should not

    continue to appear as an Advocate if he/she can retire without jeopardising his/her

    client’s interests.

    38. An advocate shall at the commencement of his/her engagement and during the

    continuance thereof, make all such full and frank disclosure to his/her client relating

    to his/her connection with the parties and any interest in or about the controversy as

    are likely to affect his/her client’s judgment in either engaging him or continuing the

    engagement.

    39. An advocate shall not advise or represent both sides of a dispute and, except after

    adequate disclosure to and with the consent of the clients, preferably after receiving

    an independent legal advice, shall not act or continue to act in a matter when there is

    a conflicting interest, which gives rise to substantial risk that the advocate’s

    representation of the client would be materially and adversely affected by the

    advocate’s duties to another current client, a former client, or a third person including,

    but not limited to, the duties and loyalties of the advocate or a partner or professional associate of the advocate of the law firm in which such advocate is a partner or associate, to another client, whether involved in the particular matter or not, including the obligation to communicate information.

    40. Before the advocate accepts a brief from more than one client in the same matter, the advocate must advise the clients that the advocate or a partner or professional associate of the advocate has been asked to act for both or all of them, that no information received in connection with the matter from one can be treated as confidential so far as any of the others is concerned and that, if a dispute develops that cannot be resolved, the advocate cannot continue to act for both or all of them with respect to the matter and may have to withdraw completely.

    41. Where a advocate or a partner or professional associate of the advocate has a continuing relationship with a client for whom the advocate or a partner or professional associate of the advocate in the law firm in which such advocate is a partner or associate acts regularly, before the advocate accepts joint briefs for that client and another client in a matter or transaction, the advocate must advise the other client of the continuing relationship and recommend that the other client obtain independent legal advice about the joint retainer. If, following such disclosure, all parties are content that the advocate act for them, the advocate should obtain their consent, preferably in writing, or record their consent in a separate letter to each. The advocate should, however, guard against acting for more than one client where, despite the fact that all parties concerned consent, it is reasonably obvious that a contentious issue may arise between them or that their interests, rights or obligations will diverge as the matter progresses.

    42. If a contentious issue arises between clients on a joint retainer, the advocate, although not necessarily precluded from advising them on other non-contentious matters, would be in breach of this Code if the advocate attempted to advise them on the contentious issue. In such circumstances the advocate should ordinarily refer the clients to other advocates. However, if the issue is one that involves little or no legal advice, for example, a business rather than a legal question in a proposed business

    transaction, and the clients are sophisticated, they may be permitted to settle the issue by direct negotiation in which the advocate does not participate.

    43. An advocate may only act in a matter which is adverse to the interests of a current client provided that:

    (a) the matter is unrelated to any matter in which the advocate is acting for the

    current client; and

    (b) no conflicting interest is present

    44. Where an advocate has acted for a former client and, in that context, has obtained confidential information relevant to a new matter, the advocate’s partner or associate of the law firm in which such advocate is a partner or associate may act in the new matter against the former client if

    (a) the former client consents to the advocate’s partner or associate acting, or

    (b) the new matter does not involve attacking the prior legal work or, in effect,

    changing sides on a central aspect of the prior legal work and the law firm

    establishes that it is in the interests of justice that it act in the new matter, having

    regard to all relevant circumstances, including

    (i) the adequacy and timing of the measures taken to ensure that no disclosure of

    the former client’s confidential information to the partner or associate having

    carriage of the new matter will occur,

    (ii) the extent of prejudice to any party,

    (iii) the good faith of the parties,

    (iv) the availability of suitable alternative counsel, and

    (v) issues affecting the public interest.

    45. An advocate may act against a former client in a fresh and independent matter wholly unrelated to any work the advocate has previously done for that person. An advocate may advise, represent or take a position for or against a particular issue for another client where the immediate interests of the former client are not directly and adversely affected by the advocate’s representation of another client. However, if the

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