1
An Analysis on Legal Ethics and Professionalism
A Seminar Paper
Submitted To;
Nepal Law Campus
B.A.L.L.B Program
Faculty of Law,
Tribhuvan University
(In the partial fulfillment of the requirement for BA.L.L.B. Degree)
Submitted By:
Bhup Raj Neupane
Nepal Law Campus
Faculty of Law
Tribhuvan University
BA.L.L.B, Roll No. 29/069,
2073
2
Preface
In this world, human beings are such creation who knows the world, knows the right and
wrong, and knows the human and inhuman. If I say every thing is social in this world that
may not be wrong but human being are such social being who has the heart-to-heart and
mind-to-mind connection to each other. We have concern to each other and we have
emotion to each other. This is such a wonderful creation in human being. One may not
simply agree with these points but the conclusion is “every outcome of a person is guided
by its innermost.” One can not easily commit a crime or do the act which is not
recognized by his/her society. There must be founding belief, founding culture, founding
innerbeing which lead a person to behave in a way. These founding principles are/can not
be self regulated but the out comings acts and behaviors can be regulated. Once a person
start to regulate his innerbeing in a good way that person becomes great in his
community. State can not regulate a person’s innerbeing but only restricts its
outcommings. For example if I put medicine and band my leg without taking out the
bullet, I can not get well. Only enactment of laws is like putting medicine without finding
the inner problem. This is not a very idea of solving a problem but we have no alternative
either. The solution is not a quick even in this paper but just a try to show what a problem
is.
Before addressing the subject matter in the preface, I would like to ask some basic
questions about writing of legal ethics. Some critics might wonder why we need to write
a book on legal ethics. Is not the law enough? Is there a need to expand on what the law
already says? Is teaching ethics itself a futile pursuit? These are the foundational
questions which leaded me to prepare a seminar paper on this topic.
The American judge and scholar Richard Posner has questioned the utility of teaching
legal ethics. According to Judge Posner “as for the task of instilling ethics in law
students… I can think of few things more futile than teaching people to be good.”1
Since ethics is very inseparable part of every human kind which reflects their motive,
intention, and outcome of such motives. Not only in professional life, each person is
guided by their ethical value in what they have founded themselves. On the other hand,
the ethics is very important and considerable issue in every professional life. As we see a
medical doctor has his own ethical grounds, a teacher, lawyer, judge, senior officers and
so on. Although their professional nature varies, the core idea of ethics and its application
is similar everywhere in every sector of the world.
1 Richard Posner, (1993). “The Deprofessionalization of Legal Teaching and Scholarship,” 91 Mich. L. Rev.
1921, 1924
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Furthermore, a course on legal ethics and professionalism must go beyond development
of a toolkit for proper conduct. The subject matter entails self-awareness. A student
enrolled in a legal ethics course should engage with bigger questions such as …“Who am
I?” “What do I believe in?” “What is important to me?” “What will I do to make this
world and my nation a better place?” “How will I be remembered?” This textbook
presents the law student with an opportunity to take stock of who they are and look to the
future with their core values in mind. It is easy for advocates to forget who they are and
why they chose to pursue a career in law. Many advocates find themselves working for
money alone. Hopefully this book will help law students to begin the lifelong challenge
of being true to oneself and one’s beliefs in legal practice with an informed head start.
This seminar paper “An Analysis on Legal Ethics and Professionalism” is basically
prepared for the partial fulfillment of the requirement of the BA.LLB degree. It has
covered the six Chapters. Each chapter covers different idea and the introduction to the
various related factors of the topic. The Chapter one deals with the general background
and the introduction to the research paper. The Chapter two deals with the general idea of
the law and ethics by relating them. Similarly the Chapter three deals with the
introduction to legal ethics and professionalism with description of the ethics of the
lawyers and judges of the Nepal. On the other hand this Chapter also specify the legal
consequences of the violation of the code of Conduct. The Chapter four deals with the
principles of the professional ethics of the legal practitioners. Finally, the chapter five
and six deals with the analysis and findings, Conclusion of the chapter and suggestions.
-Bhup Raj Neupane
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Acknowledgements
First of all I would like to express my thankfulness to Seminar Supervisor Mr. Tejman
Shrestha for his intellectual insights and motivation to conduct this paper. Secondly, my
regard goes to the Bibek Kumar Paudel, Director, BA.L.L.B program for allowing me to
carry out this research. Similarly also would like to thank Associate Prof. Karna Bahadur
Thapa, Campus chief, Nepal law campus.
I express my thankfulness to Mrs. Bishnu Maya Bhusal for her intellectual and material
help to prepare this paper. I always get intellectual and inspirational support from her and
I always feel free to thank for her helpfulness. Furthermore I also would like to thank my
all friends for their support and cooperation. I also express my sincere love and respect to
my parents and family for their moral and social encouragements and economic support
as well. Finally, On the other hand all of the readers of this paper are very welcome to
give me kind suggestions for improvement in future.
- Bhup Raj Neupane
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Table of Cases Cases:
1. Johns v. Smith [1999] 1 SCR 455.
2. Suwarna Prajapati vs. Kabhrepalanchowk District Court et al NKP 2046 vol. 6
3. Tuil Maya Chakradhar vs. Chairperson of S.C. Bar Association Shambhu Thapa
NKP 2053, vol, 7
4. Adv. Lila Mani Poudel vs. HMG Council of Minister Secretariat and Others, NKP
2060, vol 5-6, p. 354
5. Pro. Shambhu Thapa, Legal Advisor Forum vs. Chief Commissioner,
Commission on Investigation of Abuse of Authority and others, Supreme Court
2072/9/27
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Table of Contents
Acknowledgements
Preface
Abbreviations Page
No.
Chapter – I: Introduction…………………………………… 1-4
1.1 General Background………………………………………… 1
1.2 Statements of Problems…………………………………….. 2
1.3 Objectives of Study…………………………………………. 3
1.4 Methodology of Study………………………………………. 3
1.5 Significance of Study……………………………………….. 3
1.6 Limitations of Study………………………………………… 3
1.7 Review of the Literature……………………………………. 4
Chapter – II : Law and Ethics…………………………….. 5-
10
2.1 General idea of law……………………………………….. 5
2.2 Introduction to Ethics……………………………………… 5
2.3 Relation between Law and Ethics……………………….... 7
Chapter – III : Legal Ethics and Legal Professionalism…..
11-18
3.1 Meaning of Legal Ethics and Professionalism……………… 11
3.2 Professional ethics of lawyers………………………………. 12
3.3 Violation of Code of conduct and its punishments…………. 16
3.4 Professional ethics of judges………………………………..
17
7
Chapter –IV: Principles of Ethics of legal Practitioners….
19-22
4.1 International standards and norms………………………… 19
4.2 Basic Principles…………………………………………….
20
Principle of Conflict of interest, Independence, Honesty, integrity and
fairness, Confidentiality/professional secrecy, Clients interest, lawyers
undertakings, Clients freedom, property of clients and third party,
Competence, Fees.
Chapter –V: Analysis and Findings………………………… 24-33
5.1 Analysis……………………………………………………... 24
5.1.1 Case Study………………………………………………… 26
5.1.2 Legal Ethics: Common vs. Civil Legal System………….. 30
5.2 Findings…………………………………………………….. 32
Chapter –VI: Conclusion and Suggestions………………. 35-37
6.1 Some suggestions………………………………………….. 35
6.2 Conclusion to the paper……………………………………. 36
Bibliography and References……………………………. 38-39
8
Abbreviations
IBA – International Bar Association
NBA- Nepal Bar Association
NBC- Nepal Bar Council
SC- Supreme Court
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Chapter – I: Introduction
1.1 General Background
If we ask a lawyer what “professionalism” means and we are likely to hear that
professionalism means “putting our client first or acting as an officer of the court.” Only
rarely will a lawyer say that professionalism means “putting justice first.” Never, I think
will a lawyer even suggest that professionalism means putting your profession first. My
entire paper is basically limited to this scenario what all ought to be as Legal
Professionalism with addressing the idea of ethics in it.
It is very difficult to leave a picture or create a picture in the minds of scholars or
professional about the professional ethics. The values and the standards associated with
the professional ethics pass the message of ethical accountability and responsibility. It is
not merely a guideline for the professional and the expected behavior associated with the
profession but it is moral values and inner standards which everyone ought to be followed
in respect of field. Professional ethics are standards or codes of conduct set by people for
the people in relation of a specific profession. Democracy has good platform for the
development of the professional ethics with the full realization without any intervention.
A code of ethics is an idea and also parts of the expectations of those involved in many
different types of professions and have tag of professional. No one in the profession want
to condone bad, dishonest or irresponsible behavior in relation of the professional ethics
but if it does occur by someone in their field the perpetrator have to bear the
responsibility and also liability. By setting out expected behaviors in the form of
professional ethics, professionals work together to try to uphold a good reputation.
Professional ethics are commonly known asethical business practices. Respect and
honesty are the two main components of professional ethics. All professionals are
expected to represent a respective profession ethically as they are a part of it. This is why
professional people traditionally speak of "we" or "us" rather than the more personal "I"
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or “Me “for the most part.2 The question, “what is professional ethics” is straight forward
enough. It would also seem simple enough to answer. We have general image in the mind
regarding the word ethics. When we heard the word ethics certainly a reaction develops
in our brain like good, wrong, moral, immoral another word is professional seems self-
evident. When we mix or combine these two words that become professional ethics. But
it is true to say the meaning and background associated with the phrase “professional
ethics” is differing than the “Professional + Ethics”.
There are various disciplines where each and every discipline has its own ethical
standards. The every sector’s Professional ethics such as ethics of Doctor, Engineer,
Teacher, Professor, Business ethics Judges. Still there are certain standard of the human
ethics. The paper could also be dealing with the ethics of the all professional persons or
the person holding some socially high position. Despite that my paper in the subsequence
chapters will be dealing with specially the ethics of the legal practitioners.
1.2 Statements of Problems
Every research is done to find out something new facts, ideas, or theory which must be
based on some problems. Such Problems are not created but are existing in the area
where the researcher is trying to find out something. This seminar paper is dealing with
the following problems.
1) Whether the Ethics are legally created and binding.
2) Whether the legal ethics are universal in Nature.
3) Whether the legal ethics are properly followed in legal professionalism.
4) Whether the law regulating professional ethics has effective mechanism to implement.
2 American Bar Association Section of Legal Education and admissions to the Bar, “ Report of the
professionalism Committee” teaching and learning professionalism published by American Bar
Association-1996 page-05
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1.3 Objectives of Study
The very ground reasons of the research is already discussed in the preface and the
introductive chapter previously. Based on such grounds this study carries the following
objectives.
1) To analyze the idea of ethics in respect to the legal professionalism;
2) To analyze the present condition of the implementation of the legal ethics;
3) To Analyze the Nepalese law of professional ethics of the lawyers and judges;
1.4 Methodology of Study
This study has adopted basically the doctrinal method of the research. The secondary data
has been applied and incorporated from the library, books, articles and some other
previous researches. Those principles, ideas and data are analyzed on the legal ground
with reference to the Nepalese scenario. The researcher has given his analysis on the
separate chapter nevertheless also has dealt in the subsequent topics.
1.5 Significance of Study
This research paper has great significance within its coverage and subject matters. The
present scenario of the legal ethics and professionalism is analyzed. It will be very
helpful for not only the upcoming law students but also become a reference for the
lawyers, judges, and other law practitioners to improve the implementation of the
professional legal ethics.
1.6 Limitations of Study
A single research paper may not cover all the necessary subjects in whole. This paper is
basically limited to the introduction of the law and ethics, legal profession and legal
ethics. It covers some international and national legal instruments to analyze the
problems. Besides that some national history is briefly introduced and analysis has been
done to find out the differences and progress. This seminar paper will not cover the all
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international history of the concerned topic. In other hand, this study only covers the
professional ethics and its law of the lawyers and judges of the Nepal.
1.7 Review of the Literature
Since this is one of the emerging issue and having great role in the administration of the
justice, there are very few researches in this area. Although there are some researches
being done by the law students but are not published. Despite that, we can find lots of
papers done by the international/foreign researchers. Some of the papers which are
prepared by national and international researchers are as follows:
a) “A study of provisions and practices of Accountability in Nepal's Civil Society” a report
prepared by R.K Regmee for Transparency international Nepal, August 2001.
b) “Current Situation And Issues Relating To Ethics And Codes Of Conduct For Judges,
With Special Reference To The Criminal Justice System Of Nepal”, By Bishnu Prasad
Upadhyaya.
c) “Professional Responsibility of Lawyers” an Unpublished article by Yubaraj Sangroula,
Kathmandu school of Law
d) “A Research on Professional Ethics” by Arati Shrestha et.al.
e) “Legal Ethics and Professionalism” A Handbook for Uganda by D. Brian Dennison /
Pamela Tibihikirra-Kalyegira (Editors), 2014
f) “Professional legal ethics: a comparative perspective” Maya Goldstein Bolocan, Editor(
CEELI) Concept Paper Series July 8th, 2002 Central European and Eurasian Law
Initiative (CEELI) 740 15th St., N.W. Washington, D.C. 20005-1022
g) Various articles published in the “The Georgetown Journal of legal Ethics” vol. II, 1998,
h) “United Nations Basic Principles on the Role of Lawyers” (Adopted by the Eighth United
Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana,
Cuba, 27 August to 7 September 1990)
i) “Limits on client autonomy in legal ethics regulation” by Fred c. Zacharias, university of
San Diego law school, 2000
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Chapter – II: Law and Ethics
2.1 General idea of law
The law is not strictly defined in this paper but it is tried to give a basic concept of the
law in respect to its nature. This is to distinguish the law with the ethics in the following
Chapters. Law is some set of rules which are formulated and created by the state for the
regulation of the behaviors of its citizens.
The law is the systematic set of universally accepted rules and regulation created by
appropriate authority, i.e. government, which may be regional, national and
international.3
The law is described as the set of rules and regulation, created by the government in order
to govern the whole society. The law is universally accepted, recognized and enforced. It
is created with the purpose of maintaining social order, peace, justice in the society and to
provide protection to the general public and safeguard their interest. It is made after
considering ethical principles and moral values.
Law is made by the judicial system of the country. Every person in the country is bound
to follow the law. It clearly defines what a person must or must not do. So, in case of the
breach of law may result in the punishment or penalty or sometimes both.4
As Austin defines law as the Command of sovereign and backed by sanction, it has the
very nature that always authorized by the superior authority which ended and
presupposes the sanction. Whatever the definitions are, the law is ultimately to regulate
the human behaviors and to make them more ethical and moral.
2.2 Introduction to Ethics
Ever since we were kids and became aware of our surroundings, our parents and elders
have instilled in us a fundamental awareness of what is right and wrong. It is actually an
3 Keydifferences.com “Differences between law and ethics”. http://keydifferences.com/difference-
between-law-and-ethics.htmlm (May 18,2016) 4 Id.
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inherent trait of all humans and grows from our desire to get along well with each other
in order to live a harmonious life. To achieve this goal we understand that we must do to
other people what we expect them to do to us in return. For this, we try very hard to do
what we feel and see as the right things to do in certain situations. This is the foundation
of ethics. They are rules of conduct that shows how our society expects us to behave and
are the guiding principles behind the creation of laws.5
By ethics, we mean that the branch of moral philosophy that guides people about what is
good or bad. It is a collection of fundamental concepts and principles of an ideal human
character. The principles help us in making decisions regarding, what is right or wrong. It
informs us about how to act in a particular situation and make judgments to make better
choices for ourselves. Ethics are the code of conduct agreed and adopted by the people. It
sets a standard of how a person should live and interact with other people.
The principle is that ethical questions are to be resolved in terms of legal doctrine and
that they should be resolved by lawyers collectively in their occupational capacities and
not by lawyers individually in terms of personal or social norms or by broad based
political institutions.
Ethics usually fall into three categories – professional, social and individual. An
employer or company usually defines professional ethics and employees are required to
follow them. The general principles underlying most of the ethical dilemmas you will
confront in your career are addressed in the professional code of ethics defined by the
company or an institution. Professional codes of ethics may not provide detailed guidance
in all possible situations. You must have an inner sense of what is moral to be able to
apply ethics in specific situations. This is where social and individual ethics play an
important role. Social ethics are usually defined by society or a group and the primary
values existing in that group. Individual ethics are usually defined by personal heritage
and integral family values.6
So why is ethics important to the practice of law?
5 Differencebetween.net “Difference between law and ethics”
http://www.differencebetween.net/miscellaneous/politics/difference-between-law-and-ethics/ 6 Infra note 9
15
First because lawyers are integral to the working-out of the law and the Rule of Law itself
is founded on principles of justice, fairness and equity. If lawyers do not adhere and
promote these ethical principles then the law will fall into disrepute and people will resort
to alternative means of resolving conflict. The Rule of Law will fail with a rise of public
discontent.
Second, lawyers are professionals. This concept conveys the notion that issues of ethical
responsibility and duty are an inherent part of the legal profession. It has been said that a
profession's most valuable asset is its collective reputation and the confidence which that
inspires.
Third, is because lawyers are admitted as officers of the court and therefore have an
obligation to serve the court and the administration of justice.
And finally because lawyers are a privileged class for only lawyers can, for reward, take
on the causes of others and bring them before the courts.
2.3 Relation between Law and Ethics
It is already dealt that what basically the law and ethics are. These two concepts are
different but has very interconnection. Without ethical substance law has no enforcing
power itself and without law ethical standards will have no clear boundary, which will be
seen as blur in society.
Ethics is such moral principles that govern a person's or group's behavior. Sometime
these synonyms are given to understand the ethics although they can also be
differentiated in other grounds. Such terms are: moral
code, morals, morality, values, rights and wrongs principles, ideals, standards (of
behavior), value system, virtues, dictates of conscience. Etc.
Based on society’s ethics, laws are created and enforced by governments to mediate in
our relationships with each other. Laws are made by governments in order to protect its
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citizens. The judiciary, legislature, and public officials are the three main bodies in a
government that are assigned to the task of the creation of laws. Laws have to be
approved and written by these three branches of government before they are implemented
and enforced by the police and the military, with the help of the legal system consisting
of lawyers and other government servants. While laws carry with them a punishment for
violations, ethics does not. In ethics everything depends on the person’s conscience and
self worth. Â Driving carefully and within the speed limit because you don’t want to hurt
someone is ethical, but if you drive slowly because you see a police car behind you, this
suggests your fear of breaking the law and being punished for it.
Ethics comes from within a person’s moral sense and desire to preserve his self respect.
It is not as strict as laws. Laws are codifications of certain ethical values meant to help
regulate society, and punishments for breaking them can be harsh and sometimes even
break ethical standards.
Take the case of the death penalty. We all know that killing someone is wrong, yet the
law punishes people who break the law with death. With this comes the argument about
whether laws are necessary at all. But it is important to note that without laws people are
aware of the chaos that might reign in society.
Ethics and laws are therefore necessary to provide guidance and stability to people and
society as a whole. 7
We cannot count on the legal system to be a complete and correct guide to moral
behavior, either for us as individuals in society or as members of a profession. Nor can
we expect the professional codes of ethics to be complete, consistent and correct for all
situations. There is no formal monitoring for compliance and little penalty that can be
assessed against violators. Goodness cannot be defined through a legalistic enumeration
of dos and don’ts. People must be able to use their internal sense of ethics to fill the holes
and resolve the conflicts that inevitably occur when following any code of ethics.8
7 Supra note. 4
8 Bowyer, (1996).Ethics & Computing, Computer Society Press,
http://tarlab.usu.edu/htm/et/law-ethics
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The above sentences have defined all the differences between law and ethics. The very
point to be noted is, they both run in parallel form. But when the conflict arises between
law and ethics the ethics prevail over the law. It is because the ethics is such human
conscience which comes suddenly for the immediate situation.
For Example: If a women borrow some money for her husband’s care by making contract
with the money lender that she will marry with him if her husband will die. Finally, her
husband is died, and then the money lender claims that she must marry with him. Here
the question comes whether to prevail their contract or to prevail the law of ethics and
morality? Obviously, she need not to marry with the man lending money on the ground of
her ethical value neither she has to pay back the money taken with the contract which is
void ab initio.
The major differences between law and ethics are mentioned below:9
1. The law is defined as the systematic body of rules that governs the whole society
and the actions of its individual members. Ethics means the science of a standard
human conduct.
2. The law consists of a set of rules and regulations, whereas Ethics comprises of
guidelines and principles that inform people about how to live or how to behave
in a particular situation.
3. The law is created by the Government, which may be local, regional, national or
international. On the other hand ethics are governed by individual, legal or
professional norms, i.e. workplace ethics, environmental ethics and so on.
4. The law is expressed under the constitution in a written form. As opposed to
ethics, it cannot be found in writing form.
5. The breach of law may result in punishment or penalty, or both which is not in the
case of breach of ethics.
9 Keydifferences.com “Difference between law and ethics”. http://keydifferences.com/difference-between-
law-and-ethics.html (May 19, 2016)
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6. The objective of law is to maintain social order and peace within the nation and
protection to all the citizens. Unlike, ethics that are the code of conduct that helps
a person to decide what is right or wrong and how to act.
7. The law creates legal binding, but ethics has no such binding on the people.
Law and ethics are different in a manner that what a person must do and what a person
should do. The former is universally accepted while the latter is ideal human conduct,
agreed upon by most of the people. Although, both the law and ethics are made in
alignment so that they do not contradict each other. Both go side by side, as they provide
how to act in a particular manner. Every person is equal in the eyes of law and ethics, i.e.
nobody is superior or inferior. Further, these two allows a person to freely think and
choose.
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Chapter – III: Legal Ethics and Legal Professionalism
In terms of Law, Professional ethics may be defined as a code of conduct written or
unwritten for regulating the behaviour of a practicing lawyer towards himself/herself,
his/her client, his/her adversary in law and towards the court.10
The main object of ethics of the legal profession is to maintain the dignity of the legal
profession and the friendly relation between bar and bench. Chief Justice Marshall has
observed11
,
“The fundamental aim of legal ethics is to maintain the honour and dignity of the law
profession, to secure a spirit of friendly cooperation between the bar and bench in the
promotion of high standards of justice, to establish honourable and fair dealings of the
council with his/her client, opponent and witnesses, to establish a spirit of brotherhood in
the bar itself and to secure that lawyers discharge their responsibilities to the community
generally.”
This principle states that ethical questions are to be resolved in terms of legal doctrine
and that they should be resolved by lawyers collectively in their occupational capacities
and not by lawyers individually in terms of personal or social norms or by board based
political institutions.12
To understand the term legal ethics and professionalism, the explanation of those terms
felt necessary here. Lawyer and judges are the sole actors of every state to establish the
rule of law. Justice can only be imagined where the legal system and practice is best.
Unless and otherwise a legal system is stronger no people can enjoy their life liberty and
property in a country. In this ground the ethics to guide those professional is called the
professional ethics.
10
Kailash Rai, Legal Ethics, Accountability for Lawyers and Bench Bar Relations, 6th
Edition (Allahabad:
Central Law Publication 2005), 49.
11 Id.
12 Id.
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3.1 Meaning of Legal Ethics and Professionalism
In modern democratic societies based on the rule of law, lawyers play a paramount role in
the administration of justice and in safeguarding human rights and fundamental freedoms.
In fulfilling their functions, lawyers operate concurrently as representatives of their
clients, officers of the legal system, and public citizens having special responsibilities for
the quality of justice. Virtually all ethical problems faced by lawyers arise from potential
conflicts between these three responsibilities. Maintaining and observing clear ethical
standards is a duty that lawyers owe not only to their clients, but also to the
administration of justice, their profession and the society at large.
When the terms Law, Ethics and their relation are already described above, Now we can
easily understand the term legal ethics. This is just by separating from the ethics of the
other discipline. The ethics applied in the law and concerned with the legal professionals
are legal ethics. Legal professionalism is simply the profession in law. Let’s say legal
practicing as lawyer, Serving as the Judge, Working in some governmental office of legal
field like Attorney general, Government Lawyer, Police prosecutor etc. Here for the
purpose of this paper the terms are dealt in a bit detail.
The terms legal ethics, professional responsibility, and professional legal ethics are used
interchangeably to indicate standards and rules regulating the conduct of lawyers faced
with conflicting moral and legal responsibilities. Such standards and rules are embodied
in the written laws, as well as in the customs, professional rules and judicial decisions of
a country. The creation of codes of ethics which incorporate such standards not only
provides the necessary guidance to lawyers confronted by multiple, competing duties, but
also contributes to fostering the client’s and the public’s trust in the legal profession.1
Lawyers therefore should adhere to clear ethical-professional standards and must be
disciplined when failing to do so.
3.2 Professional ethics of lawyers
A layer as a social engineer has the great role to protect the people’s life, liberty, and
property. Lawyers are the justice fighter of the society. A single mistake and minor
negligence can cause the great loss to a person. That may also destroy the whole social
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life of a person. So that, a lawyer must be very sensitive of his act. To control some of the
unethical behaviors and to ensure the good morality; the Nepal Bar council has framed
the rules regarding the Code of conduct of the Legal Practitioners. Specially the lawyers
are referred as the legal practitioners by the Nepal Bar Council Act and the Rule framed
under that Act. This is dealt here in detail.
The Code of Conduct for Legal Practitioners, 2051 (1994)
A Legal practitioner shall abide by the following professional conducts:13
(a) A legal practitioner shall not commit any act contrary to the basic
principles of morality.
(b) A legal practitioner shall not induce his client to initiate any false case.
(c) A legal practitioner shall not fabricate a case with an intention to harass or
to avenge any person.
(d) A legal practitioner shall not withhold his cooperation to the court in the
disposal of cases either directly or indirectly.
(e) A legal practitioner shall not abuse or cause to abuse the judicial process.
(f) A legal practitioner shall not prohibit his client from making true
statement before the court.
(g) A legal practitioner shall not spreador disseminate or transmit a false
information of any kind which may bring dishonor to the court or Judge or
legal practitioner during the course of the discharge of judicial function.
(h) A legal practitioner shall not return the brief to his client in such a way
that the service of a new lawyer could not be availed of by him.
13
Code of Conduct for Legal Practitioners, 2051, Sec. 3(1), (2)
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(i) A legal practitioner shall not misappropriate the funds of any organization
or association.
(j) A legal practitioner shall not act contrary to the following codes of
conduct:
- Shall be punctual to the court;
- shall appear in court in prescribed dress with black coat;
- shall show due respect to the Bench and opposing Counsel;
- shall refrain from making false accusation, expressing hatred or
angers or enmity against opposing counsel and his client;
- shall treat with courtesy to the officers/staffs of the Court;
- shall plead his case with due respect to the Bench only when his
turn comes up.
(k) No precedent to be cited and knowingly pleaded which has been already
overruled and no law be pleaded which is not applicable or is repealed or
which has been amended subsequently, in order to benefit one's client.
(I) A legal practitioner shall not knowingly assert any fact before the Bench
unless the same could be substantiated from the documents from his case
file.
(m) A legal practitioner shall not accept a case involving a document in which
he has reason to believe to be called himself as a witness.
(n) A legal practitioner shall not disclose any information communicated to
him by his client in his professional capacity in any manner.
(o) A legal practitioner shall not raise/use large signboard, no previous
designation or status not related to the legal practice to be published in
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name card or visiting card or file or letter-pad with an objective of
commercial publicity.
Provided that this restriction shall not apply in case of those documents in
which a legal practitioner's field of specialization or expertise on particular
type of cases are indicated or printed.
(p) A legal practitioner shall not stipulate his fees on percentage or on
contractual basis or by way of bidding from the client.
(r) A legal practitioner shall not appear before a court under the influence of
any intoxicating drinks or drug the course of his professional duty.
(s) A legal practitioner shall not base his fees on the outcome of a case.
(t) A legal practitioner shall not submit any false record/statement to the
council as and when demanded.
(u) A legal practitioner shall not certify or sign any document which has not
been prepared by himself or under his instruction or advise the same is
prepared by his junior working in his firm/chamber.
(v) A legal practitioner shall not use or engage any tout or agent for
commission with a view to solicit any client.
(w) A legal practitioner shall not engage himself in the business/transaction of
transfer of properties as a broker.
(x) A legal practitioner shall not involve in drafting or pleading of the same
case on behalf of both the plaintiff and defendant and also shall not
instruct knowingly any other law practitioner or writer or other persons
who work under/with him.
24
(Y) A legal practitioner shall not prepare/use any blank paper obtained from
the client converting the same into a legal deed or construct a document
with a view to gain benefit for himself and causing harm to the client;
(z) A legal practitioner shall not destroy or otherwise render invalid as
evidence any original document obtained from the client on instance from
the opposite party to the case;
(aa) A legal practitioner shall not make available any original
documents/evidence received from his client to the opposite party with a
motive to bestow benefit to the latter.
(ab) A legal practitioner shall not commit any kind of corruption related
offence.
(ac) A legal practitioner shall not commit any crime related to moral turpitude.
(2) A Senior Advocate shall abide by the following code of conducts in
addition to the codes as referred to above in sub-rule (1):
(a) While pleading before a Bench in any case he shall not appear without
engaging at least one advance with him.
(b) A Senior Advocate, under normal circumstances, shall not appear before
an administrative offices for pleading.
3.3 Violation of Code of conduct and its punishments
In case of the violation of the code of the conduct of the legal practitioners, the
Council and the Disciplinary committee shall initiate and play the further role to
investigate and prosecute the case. The rule no 7 of the Code of Conduct provides
for the following punishments.
25
1. If any legal practitioner is found to have for the first time, violated the conducts
referred to in clause (a) to (u) of sub-rule (1) and in sub-rule (2) or Rule 3, he
shall be admonished.
2. If any legal practitioner is found to have violated the conducts referred to in
clauses (v) and (2) of sub-rule (1) or Rule 3, or violated the conducts after having
been awarded the punishment of admonition once before, his license shall be
suspended restricting him from legal practice for a specific period of time.
3. If any legal practitioner is found to have violated the conducts referred to in
clauses (x) to (ac) of sub-rule (1) of Rule 3 or if he is found to have violated the
conducts again even after having been awarded the punishment of suspension of
the license restricting the practice of law for a specific period of time, the license
of such a law practitioner shall be revoked.
3.4 Professional ethics of judges
“Lawyers are the justice fighter whereas the Judges are the Justice giver.” Having the
honorable position and a statute of justices in hand, the judges have to be very high
morally guided and bounded by the judicial mind. Judges are also the same human beings
as we are. But they have very special and distinctive role and authorities than others.
Judges of the country are, for the first time, getting a code of conduct of international
standard amidst realization that the existing code is obsolete. The nine-page code of
conduct obtained by the Post has eight main heads detailing what judges should and
should not do to uphold judicial independence, impartiality and people’s faith in the
judiciary.14
It says that judges should not come into “inappropriate” contact with members of the
executive and legislature.
14
Nepal America Legal Information Center, Judicial Code of Conduct of international standard ready, by Kiran Chapagain. https://anlus.wordpress.com/2008/03/14/judicial-code-of-conduct-of-int’l-standard-ready/
26
A seven-member committee led by Justice Khil Raj Regmi finalized the code of conduct
last Friday and handed it over to Chief Justice Kedar Prasad Giri. Giri has studied the
code before presenting it to the Full Court, the apex policy making body of the judiciary,
for its endorsement. The Full Court is expected to convene next week. The committee
prepared the code of conduct upon realization that the existing code of 1998 did not meet
international standards.
The code of conduct further says that judges should be impartial not only while passing
verdicts but also in the whole judicial process prior to the verdict. It demands that judges
be committed to judicial work.
“A judge should not let lawyers run their offices at his residence or meet parties to
subjudice cases at his residence,” the code of conduct states. The existing Code of
Conduct for Judges1998 is silent in this regard though the international code of conduct
for judges clearly prohibits judges from meeting with parties to cases at their residences.
In conclusion, “A high ethical and morally guided judge can deliver better justice than
that a judge having huge knowledge of the jurisprudence.”
The OHIO Code of Judicial Conduct, 2009 has specified seven Canons of the conduct of
the judges. Which are:15
1. A judge shall uphold the integrity and independence of the judiciary
2. A judge shall respect and comply with the law and shall act at all times in a
manner that promotes public confidence in the integrity and impartiality of the
judiciary
3. A judge shall perform the duties of judicial office impartially and diligently
4. A judge shall avoid impropriety and the appearance of impropriety in all of the
judge’s activities
5. [Reserved]
6. [Reserved]
7. Judges and judicial candidates should refrain from political activity inappropriate
to judicial office.
15
http://www.supremecourt.ohio.gov/LegalResources/Rules/conduct/judcond0309.pdf
27
Code of Conduct of Judges, 2065
The Banglore Principles of Judicial Conduct, 2002 , and the existing Code of Conduct of
Judges, 2065 has similar provisions about the code of conduct of the judges. It has basic
following principles:
• Independence ( Sec.3)
Independency of the judges is the back bone of the justice. Judges/Judiciary must
be given the power to act without any pressure from any governmental or political
influence. The weaker independency causes the failure of the fair justice. On the
other hand the people’s faith towards court will go down.
• Impartiality (sec. 4)
If there is any incidence or conflict occurs then people says ‘I will see you in
Court’. This is all about the faith towards the court that court will give the fair
justice. “One shall not be judge in his own case’ is the principle based on
reasoning of impartiality.
• Integrity (sec. 5)
A judge shall act as to prove ‘Justice is not only given but has done’. The personal
characteristics of the judges itself has to show that the judge is acting fairly.
Integrity of a judge develops the faith towards court.
• Propriety (sec 6)
Propriety is concerned with the moral standards of the person. It is the state or
quality of confirming to conventionally accepted standards of behaviors or
morals. Judges shall always be careful of their behaviors either in court or outside
the court.
• Equality (sec 7)
28
On the due process of the law, all must be treated equally in the court. It is also
related to the principle of impartiality. This principle emphasizes more on non-
discrimination. There are various people from various background and having
different caste, race, color, gender, and region and so on. They must not be
discriminated in any way.
• Competence and Diligence (sec 8)
A judge shall be competence in his task. Incompetency of a judge leads to failure
of other all conducts. He/she must be qualified and has to have proper knowledge
and wisdom. Decision must be from the judicial conscience of own. Secondly a
judge must be diligence of his work. It is meant to comply a judge to attend the
court regularly and feel own self responsible of the function.
29
Chapter –IV: Principles of Ethics of legal Practitioners
Principles of legal ethics, whether written or unwritten, not only regulate the conduct of
legal practice but also reflect the basic assumptions, premises, and methods of the legal
system within which the lawyer operates. They reflect as well the profession’s
conception of its own role in the administration of justice.16
There are various National and international norms, principles regarding the ethics of the
legal Practitioners including judges. Which are dealt following.
4.1 International standards and norms:
Important international standards to address standards and norms for judges, prosecutors
and law enforcement officials are outlined below.
1. UN Convention Against Corruption, 2003 Art 11(1) and (2) opine that State
Parties shall take measures to strengthen integrity and to prevent opportunities for
corruption among members of judiciary and prosecutorial authorities, i.e. rules
relating to conduct of members of judiciary and prosecutors.
2. IBA principles on Conduct for the legal profession, 28 May, 2012
3. Basic Principles on the Independence of the Judiciary, 1985
4. Procedures for the effective implementation of the Basic Principles on the
Independence of the Judiciary, 1989
5. Bangalore Principles of Judicial Conduct, 2002
6. UN Guidelines on the Role of Prosecutors, 1990
7. UN Codes of Conduct for Law Enforcement Officials, 1979
Some National Instruments:
Nepal Bar Council Act, 2051
Nepal Legal Practitioners Act, 2050 and Rules
Nepal Bar Association Act, and Rules
16
Mary Ann Glendon, Legal Ethics, Encyclopedia Britanica, http://www.britannica.com/topic/legal-ethics (May 19)
30
Supreme Court Niyamawali, 2049
Appellate Court Niyamawali,
District Court Niyamawali, 2052
Code of Conduct for Judges, 2055
Code of Conduct for Legal Practitioners, 2051
These all laws are not dealt here in detail but only the basic principles adopted by those
all National and International standards are dealt randomly.
It is obvious that the Case managers must protect the public interest in an increasingly
cost conscious environment. Ethical standards have taken on heightened importance, and
the professional case manager needs to know what’s at stake.17
4.2 The Basic Principles of the legal Professionals ethics:18
1. Principle of Neutrality
According to the principle of neutrality, the lawyer must not allow their own view
of moral status of the client’s objectives or character to affect the diligence or
zealousness with which they pursue the client’s lawful objectives. The
professional relation between the lawyer and the client is not to judge wrong and
right of client, but it is to defend.19
Principle of neutrality is one of the important principles for a lawyer as he/she is a
representative of a client and has special responsibility for the equality of justice.
Principle of neutrality means that the relation between the lawyer and the client
should not be that the lawyer should judge wrong and right of client. It is a pure
professional relation.20
When lawyers believe one thing over another and start to
17
Corin Valliant, Susan Jensen. (2012) Ethical and Legal Issues, Commission for case manager
certification (CCMC), Issue brief, vol 3 Issue 4. 18
International Bar Association, “IBA principles on conduct for the legal profession.” adopted on 28 May
2012. http://www.ibanet.org/Document/Default.aspx?DocumentUid=1730FC33-6D70-4469-9B9D-
8A12C319468C 19
Ronald D. Rotunda, Professional Responsibility, 5th
Edition (West Group), 44.
20 John T. Noonan & Richard W. Painter, Professional & Personal Responsibilities of the Lawyer (New
York: Foundation Press 1997), 374.
31
impose their beliefs, they lose the ability to think clearly because they have
become involved in the case; they want to prove themselves right.
2. Principle of Conflict of interest: A lawyer is at times faced with the question of
whether to represent two or more clients whose interests conflict. Quite aside
from his ethical obligations, the legal systems of the world generally prohibit a
lawyer from representing a client whose interests conflict with those of another,
unless both consent.21
The same principles apply with respect to interests of the
attorney that may detract from the full and faithful representation of his clients.
For example, he may not purchase property that he has been retained to acquire
for his client, nor may he draw a will in which he is a beneficiary.
These conflict-of-interest prohibitions are not absolute. The client may consent to
the representation after full disclosure of the actual or possible conflict. But even
the client’s consent may not suffice if public interest is deemed to be adversely
affected.
3. Independence: A lawyer shall maintain independence and be afforded the
protection such independence offers in giving clients unbiased advice and
representation. A lawyer shall exercise independent, unbiased professional
judgment in advising a client, including as to the likelihood of success of the
client’s case.
4. Honesty, integrity and fairness: A lawyer shall at all times maintain the highest
standards of honesty, integrity and fairness towards the lawyer’s clients, the court,
colleagues and all those with whom the lawyer comes into professional contact.
5. Confidentiality/professional secrecy: A lawyer shall at all times maintain and be
afforded protection of confidentiality regarding the affairs of present or former
clients, unless otherwise allowed or required by law and/or applicable rules of
professional conduct.
Confidentiality is the privilege attached to communication where these contain
confidential information supplied for the benefit of the client and can be weighed
21
id.
32
by the client if he or she chooses. In the case of Johns v. Smith22
, a decision of the
Supreme Court of Canada the privilege was justified on the ground that – "Clients
seeking advice must be able to speak freely to their lawyers secure in the
knowledge that what they say will not be divulged without their consent."
6. Clients’ interest: A lawyer shall treat client interests as paramount, subject
always to there being no conflict with the lawyer’s duties to the court and the
interests of justice, to observe the law, and to maintain ethical standards.
7. Lawyers’ undertaking: A lawyer shall honor any undertaking given in the
course of the lawyer’s practice in a timely manner, until the undertaking is
performed, released or excused.
8. Clients’ freedom: A lawyer shall respect the freedom of clients to be represented
by the lawyer of their choice. Unless prevented by professional conduct rules or
by law, a lawyer shall be free to take on or reject a case.
9. Property of clients and third parties: A lawyer shall account promptly and
faithfully for and prudently hold any property of clients or third parties that comes
into the lawyer’s trust, and shall keep it separate from the lawyer’s own property.
10. Competence: A lawyer’s work shall be carried out in a competent and timely
manner. A lawyer shall not take on work that the lawyer does not reasonably
believe can be carried out in that manner.
11. Fees: Lawyers are entitled to a reasonable fee for their work, and shall not charge
an unreasonable fee. A lawyer shall not generate unnecessary work to get more
fees. Law does not specify the fee of the lawyer. It is because they could
sometime serve the society free of cost or with very low charges. It seems from a
lawyer’s behavior of charging fees whether he/she is highly ethical or not.
These principles are equally and universally applied in all legal profession of all kind
of legal system. Since these principles has covered most of the area of the legal
practicing. But in case of the judges the principles and the terms could be difference
due to the different nature of the work. There are various duties of the lawyer which
22
Johns v. Smith [1999] 1 SCR 455.
33
shall be fulfilled towards the court. Honoring court, bench, Being polite, not
misbehaving with defense lawyer, Being sincere to the Cross-examination, No
leading question, No false counseling to own client and so on.
34
Chapter –V: Analysis and Findings
5.1 Analysis
From the very ideas/ contents mentioned above the legal ethics are in any way guided by
the laws and regulations. But the reality is whatever the laws are made those laws can not
interfere a innerbeing of a human neither it can influence a basic conduct. Although it
creates some obligations and duty which is socially not accepte and creates some fear
before people to disobey it. The thing is it always depends upon the particular lawyer’s
belief, nature, practise and behaviors. How a lawyer is influenced by the activity of other,
how he/she is motivated by the money and so on.
Money is the root cause for most of the problems. Here I am trying to explain about the
money and the justice. Justice can not be measured in monetary value. Justice is
something which comes in a persons heart which makes feel happy with something
about. In this way if a lawyer put justice first then all other things goes right. A lawyers
God is Justice, he must always seek, respect, and honor it. To clearify the unethical
behavior of a lawyer we can take an example as following:
Husband and wife of a family were kept in a police custody and were accused of
homicide. They had 3 children aged 5, 6 and 8 years respectively and they ere taking
care by relatives. Who were undertaking the guardianship of the children were suggested
by the defence lawyer not to provide food to the children for two days before appearing
in the court so that the judge might be influenced by the pathetic condition of the
children.
On the very date, parents and children were brought together in the court room and while
the parents appeared to the bench the lawyer suggested to their relatives to pinch the
children and made them to cry so that the judge would be influenced and release either of
the parents from the bailment.
We can easily say that the lawyer had very motive to win the case instead of giving real
justice to the children. He could find out out some legal ground to decrease the
punishment for their parents. Nobody can file suit and prove against that lawyer that he
made those children looking pathetic and cry in the court.
35
In this background ethics are basically not to be created but are developed inside a
person’s heart. It can not be created neither be destroyed by state law. While saying this,
I am not totally avoiding the law made by the state authority to regulate the ethical
behaviors of the lawyers but those laws are still meaningless unless and otherwise a
lawyer do follow it. Still thoses laws are strictly binding to all the legal Practitioners.
Another benefit of those created legal mechanish is to punish and make aware of the
other lay people.
One of the much unidentified problem in a lawyer is that he can not find and differentiate
between his Role and Identity. In this regards Dr. Yubaraj Sangraula states that:
“If I close my eyes and imagine a ‘lawyer’, I expose myself to a role. If I close my eyes
and see ‘me’, I expose myself to an identity. And If I close my eyes and see ‘myself as a
lawyer’, I expose myself to the conflict between my role and identity. The role concept is
sociological- seen from the outside in; the identity concept is psychological-seen from the
inside out.”23
Role is something seen in a person by the society, Such as my role is to plead the case or
to represent a client. Identity is something which is seen in oneself, such as I am a normal
person as other are there in society or I am someone who don’t like football. In this
perception, a Lawyers role is to represent client, do justifiable favor to client, to practice
law, to follow court procedure, etc. but the identity of every lawyer is different. That
identity is determined by what s/he believes in, what s/he follows, to whom s/he is
responsible and by whom he/she is guided. Once the identity and role is determined then
a lawyer can be able to adjust with his job and interest. This rule is not only applied to the
lawyer but also to judge and other professionals. Finally the ethics comes/generated from
the identity issue. It is determined by the factor which determines its identity.
In this way the laws are always created to guide and regulate the role of the lawyer but
his behaviors and role are more guided his identity. So that to be a highly honored, ethical
and renounced lawyer or legal practitioner one must be familiar with his role and identity.
23
Dr. Yubaraj Sangroula, “Professional Responsibility of Lawyers” (KSL) Lecture note
36
5.1.1 Case Study:
In this chapter some of the cases decided by the Supreme court has been analyzed. There
are many cases to be considered but here are only few cases which are taken as the
reference to find out the judicial status of the legal ethics.
Case 1. Suwarna Prajapati vs. Kabhrepalanchowk District Court et al.24
Supreme Court
Hoborable Judge Mahesh Ram Bhakta Mathema.
Facts: Suwarna Prajapati was a legal writer. He wrote a sale deed between Maya
Tamangni and Lal Bahadur Yonjan to sell the land of Maya Tamangni. It was found that
while signing the deed, there was Mahili Tamangni Instead of Maya Tamangni. Suwarna
himself made to sign by the Mahili Tamangni by taking the benefit of absence of Maya
Tamangni. The district court has decided to seize the license of the Suwarna Prajapati.25
So his license was so seized. Then after Suwarna Prajapati goes to supreme court by writ
petition claiming that he was unknown about who is Maya and Who is Mahili. He Just
believed that she was Maya Tamangni. Still he did not denied that the deed was written
by himself. On the ground of not knowing the person he claim to repeal the decision of
the district court which violated the fundamental right of occupation of the petitioner.
Supreme Court Held: The legal Practitioner’s Rules, 2025 sec 27 prohibits any
practioner to cause sign the documents other than by the original person. Similarly sec 28
provides the punishment to seize the license of the practioner for such conduct. Since the
applicant has not given sufficient proof of his good acts with good intention. And he also
agree with the document that was written by him, the petitioner is found guilty of
violating the rule of legal practioner. The decision of the district court is approved and the
writ has been quashed.
Case 2:
24
NKP 2046 vol. 6 25
The given case does not explain about who filed the case to district court of Kabhrepalanchowk. Since this case is the writ petition filed by the Suwarna Prajapati.
37
Tuil Maya Chakradhar vs. Chairperson of S.C. Bar Association Shambhu Thapa et al.26
Honorable Justice : Krishna Jung Rayamajhi.
Facts: The plaintiff so claimed that, Shambhu Thapa has pleaded a case in 2052/2/4 in
Supreme Court Bench no 1. The sentence so pleaded was itself against his own client.
That was against the principle of best interest of the client. At that time case is filed
against him but the Nepal legal Practitioner Council did not issued summon in the name
of Shambhu Thapa which was against the Article 11(1), 16 and 17 of the Constitution of
the Kingdom of Nepal. On the other hand that was also against the 11(a)(5) of the Legal
Practioner Act 2050. The defendant must be summoned and charged with violation of the
code of ethics.
The second claim was, since the 11(5) of the Legal practitioner Act, did not give the right
to appeal against the legal practitioner to ordinary person. Only legal Practitioner has the
right to file appeal against the violation of the Conduct. In this ground that provision is
contradictory with the Constitution of Kingdom of Nepal and the Right to Justice. It was
claimed to repeal the provision.
From the side of defendant including Nepal legal practitioner council and disciplinary
Committee, it was stated that the petition has no legal ground and Shambhu Thapa has
not pleaded against his client’s interest. From the prior investigation, the Disciplinary
Committee did not find any violation of the legal ethics so that it was not necessary to
issue the summon in the name of defendant.
Supreme Court Held: The sec 11(2) of the Nepal Legal Practitioner Council Act, 2050
states that, if any petition is filed against any legal practitioner, the Council and its
disciplinary committee shall conduct the investigation and if the offender is found guilty
by the Committee then he/she must be summoned and sued. In this case, defendant was
not found guilty by the investigation of the disciplinary committee. So it was not
necessary to sue against him.
26
NKP 2053 , Vol.7. p611
38
Dealing with the Second question, The Nepal Legal Practitioner Act from its preamble is
made to protect and promote the rights of the Legal Practitioner not of the other’s right.
Sec 11(5) gives the appeal right only to the legal practitioner. Since the petitioner is not a
legal practitioner he has no appealing right. This is the special privilege given to the legal
practitioners. In this ground that law is not inconsistent with Constitution or any other
laws. So the decision of the Disciplinary Committee is not against any prevailing laws.
This decision is basically on the ground that the lawyers are believed to be highly ethical
persons. On the other hand its basic jurisprudence is that lawyer’s can not do serious
violation of the law.
Case 3:
Adv. Lila Mani Poudel vs. HMG Council of Minister Secretariat and Others,27
Facts: The Legal Aid Act and Rules so formulated had the provision not to provide legal
aid for some of the Crimes like Rape, Murder or other highly moral turpitude offences.
The applicant Adv, Lila mani Poudel has filed writ and pleaded that, by the principle of
Criminal law unless and otherwise proved, the accused is presumed to be innocent. It is
not so fair to decide not to provide legal aid before deciding whether he/she is guilty. So
that, the law must be amended.
The Supreme Court held that, The issue raised by the applicant is genuine. Legal aid is
such a system which is basically ensures the fairness and equal justice. So that every
accused must be provided the legal aid.
Connecting to the issue of Legal ethics, every lawyer has similar minimum ethical
standards specified by the law. If any lawyer would say that he does not plead case for
the accused, its upto the lawyer. But by the professional ethics, it is not illegal to for the
criminal. Now it is constitutionally guaranteed the fundamental right to access the legal
aid. So State must provide the legal aid through its lawyers.
27
NKP 2060, vol 5-6, p. 354
39
Case 428
:
Pro. Shambhu Thapa, Legal Advisor Forum vs. Chief Commissioner, Commission on
Investigation of Abuse of Authority and others,
Supreme Court: Honorable Chief Justice Mr. Kalyan shrestha and Honorable Justice
Mrs. Sushila Karki.
Here it is found that, without the official decision of CIAA, without the sufficient proof,
and without the proper investigation but only by the directive letter of 2070-5-21, the
Revenue investigation Department has searched out (Khaan Talaasi) inside the firm of
the applicant/ legal practitioner, and seized/took some computer and paper documents. In
fact, there was even not done a minor investigation on how much tax and revenue was
due to pay by the Firm? How much tax evasion was done? But directly entering into the
firm and taking some documents and computers is very irrational. This work done by the
defendant Revenue Investigation Department has also violated the special right to privacy
among those legal practitioners and their clients.
It is clear that it is the legal and professional duty of the legal Practitioner to pay the tax
specified by law or any payment to be made to the state. In case of the payment of the
due tax, the Income Tax Act and other laws has provided the sufficient legal mechanism.
It is also proved that the applicant’s firm has paid all the tax up to the fiscal year
2070/071 and there is no dispute on this. In this regard, since the CIAA has not made any
decision which is to prosecute against the applicant’s firm, the work done against the
firm without any investigation but only with the directive letter, does not seem legal. All
works done and the letter also hereby declared void by the order of the certiorari.
After this, unless and otherwise having proper investigation under and within the
jurisdiction provided by the law, the works like Search out (Khaan talaasi) which
prejudice and interferes with the jurisdiction, fundamental and legal rights of others must
not be conducted or cause to conduct only with the directive letters and hereby the order
28
A recent case decided by supreme court in 2072/9/27 (the full text of this case has not been published yet. Only the summary of the decision has been dealt here)
40
of mandamus is issued in the name of the defendants. Furthermore, the defendants are
also ordered that, without a minimum investigation and decision, no irrational
interference shall be done which violates a person’s occupational special rights, ethics
and privacy.
This case has great importance in establishing the coordination between any
governmental officers, legal Practitioners, and People. It has addressed the legal duty of
the lawyer on the other hand also emphasized to rule of law and due process of Law. May
be the full text of the case would address in detail about most legal ethical and procedural
part.
In Conclusion, the main role of implementation of the laws regulating code of conduct
really depends upon the lawyer’s association, Bar Council, Disciplinary Committee of
The legal Practitioner’s Council and so on. Form above cases, the basic mechanism to
implement the code of conduct is the procedural part of the prosecution.
The main challenge to implement the code of conduct and to prosecute the legal
Practitioners is, the members of the Bar, Bar Council, Disciplinary Committee (who
holds the authority to prosecute )are same those of Legal Practitioner. I case of the Tuil
Maya Chakradhar vs. Shambhu Thapa, It is decided that there was no violation of the
conduct by the defender Shambhu Thapa. Since he was the Chairperson of S.C. Bar
Association at that time, by the authority the court and all proceedings could go in favor
of him. May be there was no such misconduct but my point is, a same person being
prosecutor and offender never gives the faith of fair hearing and proceedings.
5.1.2 Legal Ethics: Civil vs. Common Law system
Lawyers’ codes of conduct respect the same core values almost in all legal systems.
Similarly in both in Europe and in the United States: independence of professional
judgment, confidentiality of client communications, loyalty, and the avoidance of
conflicts of interest. Nevertheless, there are remarkable differences, especially when the
analysis focuses on the United States and European countries of civil law tradition. These
41
inconsistencies reflect fundamental differences existing in the perception of the role of
lawyers, the values attached to the legal profession, and legal systems of these countries.
The similarities and dissimilarities in the understanding of professional legal ethics in the
common and civil law systems is best addressed by contrasting the codes of conduct, the
legal systems, and the disciplinary regimes in the United States and several countries in
western Europe.
While distinguishing the legal ethics in civil and common legal system, we must
understand first that about the source of law, codification process, practice, status of
judges and lawyers, legal education system and so on. Considering these factors, the legal
ethics are determined in a legal system.
First, the drafting styles of the codes in the United States and European civil law
countries are remarkably distinct. While codes in the United States are more legalistic
and formal, and their principles are more likely to be expressed as rules rather than
standards, civil law codes frame their norms in more general, less precise terms.
Moreover, unlike ethics codes in the United States, civil law codes include provisions
emphasizing the collegiality of the Bar, the duties that lawyers owe to one another, and
the responsibilities of lawyers for the training and education of lawyer-aspirants.29
Looking at another difference that shapes ethical behavior, judges from civil law and
common law legal regimes have different career trajectories and roles that influence
attorneys' advocacy and create different expectations about fairness and justice. In our
common law system, service as a "judge" is a high honor awarded to lawyers who have
advanced in their legal careers and won the respect of their brethren. As we know all too
well, judges who practice in common law regimes have "broad interpretive powers, and
in fact, distinguish themselves by using these broad interpretive powers to re-interpret
29
Maya Goldstein Bolocan, Professional legal ethics: a comparative perspective”( CEELI) Concept Paper Series July 8th, 2002 Central European and Eurasian Law Initiative (CEELI)
42
precedent and create new case law. However, judges in the civil law system are civil
servants and do not have the stature accorded to judges in the common law system.30
Third, the approach taken by the United States and European civil law countries to
conflicts of interest is remarkably different. In the United States, codes permit a client to
waive most conflicts, provided that the client is fully informed and voluntarily assents.
By contrast, civil law codes generally do not contain waiver provisions. Consequently, if
a lawyer does not perceive a conflict, there is no need to withdraw from a representation.
In other words, lawyers in civil law systems tend to view conflicts as “a matter of
personal ethics, not law. Conflicts are a matter of your relationship with your client.”31
The International Bar Association Code of Ethics is one such attempt to harmonize the
divergent ethical codes. However, other ethics commentators, including this author,
believe that a true global theory of ethics is aspiration and not readily achievable in any
meaningful way. As we have discussed, there remain fundamental ethical differences that
will not be eradicated with an international code of ethics.
5.2 Findings
While describing and analyzing all the facts, these are the findings of the researcher
which are concerned to whether the statements of problems are solved.
Lawyers are the officers of the court and fighter for the Justice and Judges are the final
deliverer of the Justice. Legal system of a country, peace, justice, life, liberty, and
property of people is totally depended on these two professionals.
Legal Ethics are the matter of the personal behaviors and inner conscience of the legal
practitioners. Principally ethics are not legally created but the laws created to regulate the
30
Elayne E. Greenberg, (2011) “The Globalized Practice of Law: Part Two” NYSBA New York Dispute Resolution Lawyer Vol.4 No.3 http://www.stjohns.edu/sites/default/files/documents/law/greenberg-the-ethical-compass-globalized-practice.pdf (May 26, 2016) 31 Justin Castillo, ((1992).International Legal Practice in the 1990s: Issues of Law, Policy, and
Professional Ethics, 82 American Society Of International Law Proceedings 272, 283
43
ethical conduct are important to harmonize and settle the dispute arisen, which are
binding in nature.
Every legal system follows certain legal norms, ethics and the conduct. Although some of
the factors may vary in every legal system but the legal ethics is the first concern of
establishment of justice universally. In this way the legal ethics are universal in nature.
The practice of a particular rule of ethics may vary.
Legal ethics which are specified by the law are strongly binding, no matter whether one
can follow or not.
While analyzing the cases it is found that, legal ethics are knowingly unknowingly
violated by the legal practitioners. Even the judge can be influenced by the circumstance
created by the lawyer.
For the effective implementation code of ethics and establishment of the justice, it is
provided the right to file suit against the violator of the conduct, although there is no
appeal right for ordinary people (against legal practitioners) in Nepal.
Since the main mechanism to prosecute is the Legal Practitioner’s Disciplinary
Committee which consists the Chairperson and member among legal practitioners, it is
hard to believe that the prosecution against a legal practitioner is fair.
It is found that the legal mechanism is adequate to establish the better highly ethical
justice system, but the Procedural part such as to investigate, prosecute, implement the
judgments, is weak. We can take the example of the case Badri Bahadur Karki vs,
CIAA32
, in which it was held that Badri Bahadur as Attorney General can exercise his
power in certain discretion and this is not questionable. But it was not found whether
discretionary power was purely exercised under the legal principle.
There is the problem in most of the legal practitioners that they don’t find their Roles and
Identity in special. The personal idea, faith, thinking, likes should not directly affect a
lawyers Role. Rather there should be the professional, ethical, and legal basis to act as a
lawyer. 32
Supreme Court Full bench, NKP 2058 vol. 5/6 p.239
44
In fact the practice of the ethical behaviors always depends upon the belief, culture, social
system, education of the practitioner. For example : If a lawyer is Muslim then he/she
may think abortion as the serious crime, and may influence a person not to abort in any
condition. Since it is legal to abort in certain cirumtances, the lawyer may not go through
the legal way but may go through his belief. Similarly the education system of the
different legal system varies.
45
Chapter –VI: Conclusion and Suggestions
Lawyers have played a prominent part, not only in the freedom struggle, but in earlier
days also, in shaping the Nepalese history. The legal profession has been aptly
summarized by justice P.B Sawant in an important judgment of the supreme court of
India as follows.33
” The legal profession in solemn and serious occupation. It is a noble
calling and all those who belong to it are its honorable members. Although the entry to
the profession can be had by acquiring merely the qualification of technical competence,
the honor as a professional has to be maintained by its members by their exemplary
conduct both in and outside the court. The legal profession is different from other
professions in that what the lawyers do. After not only an individual but the
administration of justice which is the foundation of civilized society. Both as a leading
member of the intelligentsia of the society and as responsible citizen the lawyer has to
conduct himself as a model for others both in his professional and in his private and
public life. The society has a right to expect of him such ideal behavior”
The profession of law is called a noble profession. It does not remain noble merely by
calling it as such, unless there is continued corresponding and expected performance of a
noble profession. Its nobility has to be preserved, protected and promoted. An institution
cannot survive on its name or on its past glory alone. The glory and greatness of an
institution depends on its continued and meaningful performance with grace and dignity.
The profession of law seeing noble and an honorable one, it has to continue it’s
meaningful, useful and purposeful performance inspired by and keeping in view the high
and rich traditions consistent with its grace, dignity, utility and prestige.
It is recognized that the ethical rules of the legal profession are designed to guarantee the
performance of the function of the lawyers. “In a democratic society, the profession of
lawyers has to be regulated by its members; consequently, lawyers should respect the
discipline of their own law society or bar and the practice in accordance with the general
principles governing the profession.”34
33
Keshav Dayal, Reflecting of lawyer, Universal law publishing, Co. Pvt. Ltd ( 6) 34
http 8//pdc.ceu.hce/archieve/00002351/01/full-text_of _kyr.pdf
46
Apart from knowing the importance of professional ethics, the most important thing
which we should point out is the falling standard in legal profession in respect of
following ethics. Lawyers should not violate their professional ethics to protect the
dignity and honor of their profession. Therefore we can conclude that it is necessary to
take corrective steps in time to protect the dignity of legal profession
Suggestions
From the above finding and analysis I conclude that the lawyers often fail to follow the
professional ethics as set by national and international laws. But in case of judges we
rarely find who violates the code of ethics. May be that is due to the role only as an
umpire. The Lawyer code of conduct, 2051 set by national legislation of Nepal has not
been fully effectively implemented. Despite that the court is playing prominent role to
implement the code instead of the other subordinate bodies like Bar association, bar
Council and so on. Lawyers are not very serious about following the code of conduct.
Even we can find some of the renounced lawyers in whose cases there is biasness in
decisions. So from this we can see falling standard in legal profession in following
ethics. Therefore for the effective implementation of lawyers’ code of conduct and the
Code of conduct of the Judges, in context of Nepal I have got some recommendations
which are as follows:
1. For the effective implementation of code of conduct, the primary essence is the
sense of internalizing the professional responsibilities by both professionals ie
lawyers and judges.
2. Secondly the lawyers should differentiate between their role and identity. In this
way the laws are always created to guide and regulate the role of the lawyer but
his behaviors and role are more guided his identity. So that to be a highly
honored, ethical and renounced lawyer or legal practitioner one must be familiar
with his role and identity.
3. There must be direct and exclusive judicial control mechanism for regulating
lawyers disciplinary.
47
4. State must provide adequate number of prosecutors as per the reciprocity of the
load of the cases.
5. Lawyers shall be a Good researcher for well preparation of their case.
6. Judges must more close his eyes and open his ears to hear the dispute. In this
sense, judge should not only focus on the lawyer’s argument, rather he/she must
go beyond this and with the judicial mind. He must find out whether a lawyer is
convincing or confusing the judge.
Although we are finding that our world gets smaller and smaller, our globalized legal
practice requires us to be more culturally attuned to our international brethren if we are to
effectively engage in dispute resolution. Legal ethics are the embodiment of the cultural
values of a legal system and its broader society. To fully appreciate the meaning of the
ethical differences between us and our colleagues from civil law countries, we have to get
beyond the actual written word and understand the context. The limited allocated space of
this column forced me to distill a complex and nuanced topic in a few short pages. Yes,
there remain many unanswered questions. Optimistically, I believe that awareness of the
complexity of this topic, as with any cultural learning, makes for a good beginning.
48
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3) Sangroula, Yubaraj, “Professional Responsibility of Lawyers” an Unpublished article,
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4469-9B9D-8A12C319468C
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Ronald D. Rotunda, Professional Responsibility, 5th
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CEELI) Concept Paper Series July 8th, 2002 Central European and Eurasian
Law Initiative (CEELI)
Elayne E. Greenberg, (2011) “The Globalized Practice of Law: Part Two”
NYSBA New York Dispute Resolution Lawyer Vol.4 No.3
http://www.stjohns.edu/sites/default/files/documents/law/greenberg-the-ethical-
compass-globalized-practice.pdf (May 26, 2016)
Justin Castillo, ((1992).International Legal Practice in the 1990s: Issues of Law,
Policy, and Professional Ethics, 82 American Society Of International Law
Proceedings 272, 283