Lawyers vs Legislation

8/3/2019 Lawyers vs Legislation

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Lawyers Vs Legislation

A PROJECTON-

LLAWYERSAWYERS VVSS LLEGISLATIONEGISLATION

SSUBMITTEDUBMITTED BYBY--

SSUBMITTEDUBMITTEDTOTO--

DHIRAJ KUMARDHIRAJ KUMAR DDRR.. ANSHUMANANSHUMANPANDEYPANDEY

RROLLOLL 23 :23 :SEMSEM IXIX

FFACULTYACULTYFORFORPROFESSIONALPROFESSIONALETHICSETHICS

SUBMITTED ON NOVEMBER, 2010

CHANAKYA NATIONAL LAW UNIVERSITY

PATNA.

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA Page 1


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AACKNOWLEDGEMENTCKNOWLEDGEMENT

I take this opportunity to express our humble gratitude and personal regards to

Dr.Anshuman Pandey for inspiring me and guiding me during the course of thisproject work and also for his cooperation and guidance from time to time during the

course of this project work on the topic

The Present Project Report is attempted to explain for the benefit of the general

readers. Dealing with this topic in a material form has naturally involved a great

deal of compression and omission of many matters of interest. I hope that my

selection of material will give a fair outline of the general picture.


I EXPRESS MY GRATITUDETOTHEFACULTYOF, PROFESSIONALETHICSFORTHECONCEPTSGIVENBY

HIMINTHESUBJECTWHICHHASBEENTHEBASEFORTHISSMALLPIECEOFWORK.

YOURS SINCERELY

DHIRAJ KUMAR

ROLLNO 23

5TH YEAR STUDENT

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

NOVEMBER2010.



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RRESEARCHESEARCH MMETHODOLOGYETHODOLOGY

Aims and Objectives:

The aim of the project is to present a detailed study of the topic LAWYERS Vs

LEGISLATION through Case study, suggestions, different writings and articles.

Research Plan

The researchers have followed both Doctrinal method.

Scope and Limitations:

Though the topic LAWYERS Vs LEGISLATION is an immense project and pages can be

written over the topic but because of certain restrictions and limitations I were not able to deal

with the topic in great detail.

Sources of Data:

The following secondary sources of data have been used in the project-

Case Study

Articles/Journals/Law Reports

Books

Websites

Method of Writing and Mode of Citation:

The method of writing followed in the course of this research project is primarily analytical. The

researcher has followed Uniform method of citation throughout the course of this research

project.



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TTABLEABLE OOFF CCASESASES

I. Anil Kumar Sarkar v. Hirak Ghosh,

II. B. M. Verma v. Uttrakhand Regulatory Commission

III. Court of Its Own Motion v. State,

IV. Kishore Chand vs State of H.P. (AIR 1990 SC 2140)

V. R.K. Ananad vs. Registrar of Delhi

VI. SC Bar Association v. Union of India



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TTABLEABLE OOFF SSTATUTESTATUTES

ADVOCATES ACT, 1961

CONSTITUTION OF INDIA



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LIST OFABBREVIATIONLIST OFABBREVIATION

1. AIR-All India Reporter

2. Art. Article

3. Ch Chapter

4. Cr.Pc Criminal Procedural Code

5. Ed. - Edition

6. Ex - Example

7. Govt. Government

8. ICT - information and communication technologies

9. IPC Indian Penal Code

10.MANU Manupatra

11.RMI - Rights Management Information

12.SC - Supreme Court

13.SCC - Supreme Court Cases

14.Sec. - Section

15.UK- United Kingdom

16.USA - United States of America

17.vs.- Versus



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INRODUCTIONINRODUCTION

First we kill all the lawyers

By William Shakespeare

The practice of law is simply a means of earning a living. The court however requires more of

lawyers that we consciously play a broader role in upholding justice. We are enjoined to do so

by tradition, legislation, our social conscience, and a sense of responsibility that arises from the

privilege we have of appearing before the Courts of Law. The role of lawyers extends to being

an integral part of our system of administration of justice, and justice not just in the legal sense

but justice that's social, economic and political as set out in the preamble of our Constitution.

Shakespeares well known statement; first we kill all the lawyers highlights the role that

lawyers play in protecting the rule of law. Eliminating lawyers opens the path to dictatorship

because lawyers serve as a bulwark to arbitrary power and reinforce the importance of justice

and human rights.

Yet, Shakespeares dictum is not entirely accurate. As is all too clear, lawyers can be enlisted by

unscrupulous or negligent officials in processes which defame the rule of law and warp

fundamental values such as human dignity and equality.

Lawyers can and should only be enablers; they simply canvass the range of legal possibilities for

their clients without regard for underlying morality or the impact of their analysis. Morality is

not integral to the lawyers job. Others consider the lawyer-as-enabler paradigm symptomatic of

a larger crisis within the legal profession, a profession which has come to exist largely to

perpetuate profit or court influence without regard for the larger good1. Lawyers in our country

have historically contributed handsomely to each of these areas of justice -- whether it was the

struggle for Independence, the framing of our Constitution or just governance2.

1http://www.ialsnet.org/meetings/role/papers/BahdiReem(Canada).pdf

2http://news.rediff.com/column/2010/may/17/role-of-lawyers-is-not-confined-to-courts-says-

pm.htm

http://www.ialsnet.org/meetings/role/papers/BahdiReem(Canada).pdfhttp://news.rediff.com/column/2010/may/17/role-of-lawyers-is-not-confined-to-courts-says-pm.htmhttp://news.rediff.com/column/2010/may/17/role-of-lawyers-is-not-confined-to-courts-says-pm.htmhttp://www.ialsnet.org/meetings/role/papers/BahdiReem(Canada).pdfhttp://news.rediff.com/column/2010/may/17/role-of-lawyers-is-not-confined-to-courts-says-pm.htmhttp://news.rediff.com/column/2010/may/17/role-of-lawyers-is-not-confined-to-courts-says-pm.htm


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Lawyers must uphold justice in society, and how should this role be protected? Some guidance is

found in the "Basic Principles on the Role of Lawyers" adopted by the 8th United Nations

Congress on the Prevention of Crime and the Treatment of Offences ('the UN Principles') in

1990 and intended to assist member states. Among these internationally recognised principles

are the following:3

a) All persons, in particular those facing arrest or detention for a criminal offence, must

have access to lawyers and legal services.

b) The duties of lawyers include not merely advising and acting for their clients, but also

upholding human rights and fundamental freedoms.

c) The Government must ensure that lawyers are able to perform their functions withoutintimidation, hindrance, harassment or improper interference.

d) The legal profession must have codes of professional conduct and lawyers who breach

the code should be subject to disciplinary proceedings.

The legal system affects nearly every aspect of our society, from buying a home to crossing the

street. Lawyers hold positions of great responsibility and are obligated to adhere to a strict code

of ethics. The more detailed aspects of a lawyers job depend upon his or her field of

specialization and position. Although all lawyers are licensed to represent parties in court, some

appear in court more frequently than others.

Lawyers may specialize in a number of different areas, such as bankruptcy, probate,

international, or elder law. Those specializing in environmental law, for example, may represent

public-interest groups, waste disposal companies, or construction firms in their dealings with the

U.S. Environmental Protection Agency (EPA) and other Federal and State agencies. These

lawyers help clients prepare and file for licenses and applications for approval before certain

activities may occur. In addition, they represent clients interests in administrative adjudications.

3 http://www.projectmalaysia.org/articles/the-role-of-lawyers-in-the-administration-of-

justice.html

http://www.projectmalaysia.org/articles/the-role-of-lawyers-in-the-administration-of-justice.htmlhttp://www.projectmalaysia.org/articles/the-role-of-lawyers-in-the-administration-of-justice.htmlhttp://www.projectmalaysia.org/articles/the-role-of-lawyers-in-the-administration-of-justice.htmlhttp://www.projectmalaysia.org/articles/the-role-of-lawyers-in-the-administration-of-justice.html


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Some lawyers concentrate in the growing field of intellectual property, helping to protect clients

claims to copyrights, artwork under contract, product designs, and computer programs. Still

other lawyers advise insurance companies about the legality of insurance transactions, writing

insurance policies to conform to the law and to protect companies from unwarranted claims.

Most lawyers are found in private practice, where they concentrate on criminal or civil law. In

criminal law, lawyers represent individuals who have been charged with crimes and argue their

cases in courts of law. Attorneys dealing with civil law assist clients with litigation, wills, trusts,

contracts, mortgages, titles, and leases. Other lawyers handle only public-interest casescivil or

criminalwhich may have an impact extending well beyond the individual client.

What Is A Lawyer?

A lawyer is an individual who defends a person or entity in various legal proceedings. The legal

proceedings may fall into a variety of different categories yet most are either considered criminal

litigation or civil litigation. The lawyer is a person who acts on behalf of another and gives the

opinion of their client in a manner which is in their best interest.

DIFFERENT TYPES OF LAWYERS AND THEIR FIELD OF WORKDIFFERENT TYPES OF LAWYERS AND THEIR FIELD OF WORK



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Regarding the classification of lawyers in Section 16 of the Advocates Act 1961 they are mainly

classified into two group i.e. senior and other advocate.

Section 16. Senior and other advocates,-

1. there shall be two classes of advocates, namely , senior advocates and other advocates.

2. An advocate may, with his consent, be designated as senior advocate if the Supreme

Court or a High Court is of opinion that by virtue of his ability[ standing at the Bar or

special knowledge or experience in law] he is deserving of such distinction.

3. Senior advocates, shall in the matter of their practice, be subject to such restrictions as

the Bar Council of India may, in the interest of the legal profession, prescribe.

4. An advocate of the Supreme Court who was senior advocate of that Court immediatelybefore the appointed day shall, for the purposes of this section, be deemed to be a senior

advocate ;

[(Note:- Added by Act 21 of 1964, sec.8) Provided that where any such senior advocate makes

an application before the 31st December, 1965, to the Bar council maintaining the roll in which

his name has been entered that he does not desire to continue as a senior advocate, the Bar

Council may grant the application and the roll shall be altered accordingly].

However, basically lawyers are categorized into civil and criminal lawyers. Others come under

this main classification4.

a) Divorce lawyers- they are specialized in annulment and divorce. They find solutions in

certain hard situations of life. Despite divorce cases, there are certain situations in which

he can help you. These include financial planning, visitation, avoid going to court,

mediation and custody etc.

b) Civil lawyers- they deal with business concerns, individuals, and disputes between

organizations and individuals. They handle property disputes, marriage and divorce,

wrongful death, malpractice etc.

4http://www.boddunan.com/education/43-Careers/15035-lawyer.html

http://www.boddunan.com/education/43-Careers/15035-lawyer.htmlhttp://www.boddunan.com/education/43-Careers/15035-lawyer.html


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c) Bankruptcy lawyers- they helps individuals finance organizations for bankruptcy and

help them to get right solutions for them. They also help to avoid properties being

repossessed.

d) Family lawyers- they handle all the issues related to a family. Domestic violations,

paternity, child visitation rights, adoption and divorce are among those.

e) Criminal lawyers- they work on criminal offences. Sometimes people may have to

defend themselves as they have been charged by a crime. The grade of crime varies from

small cases to large cases such as murder etc.

f) Accident lawyers- they help those who got injury from accidents to get compensation

from the owner of the vehicle.

g) Malpractice lawyers- they fight on medical malpractice which leads to death of patients

or loss of organs.

h) Immigration lawyers- immigration lawyers provide, help for immigration related issues.

Sometimes they work with government agencies.

i) Tax lawyers- they deal with all related issues of taxation.

TYPES OF LAWYERS ORIGINATED FROM VARIOUS LEGAL

SYSTEMS



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Some of the terms are from the English legal system; some are from Scotland and some from the

American legal system. An Attorney is somebody legally empowered to represent another

person, or act on their behalf. A Lawyer is somebody who can give legal advice and has been

trained in the law. Are Attorney and Lawyer are synonyms? Basically yes, but they are not

necessarily Interchangeable terms; we cannot for instance say I give you the Power of a Lawyer,

but you definitely might say I give you the power of Attorney.

An attorney in fact is an agent who conducts business under authority that is controlled and

limited by a written document called a letter, or power, of attorney granted by the principal.

An attorney at law is an officer of a court of law authorized to represent the person employing

him (the client) in legal proceedings.

A Solicitor- One that solicits, especially one that seeks trade or contributions. The chief law

officer of a city, town, or government department but does not act as an advocate in court, as

opposed to the Attorney who pleads in court. (English Law).

A Barrister (Called Advocate in Scotland) presents the case in court. Most senior and

distinguished barristers are designated Kings (Queens) counsel.

A Counselor at law- In the past at least in some U.S states there was a distinction between the

term A Counselor at Law who argued the case in court and an attorney who prepared the case

but didnt argue it.

Nowadays an attorney at law is authorized to exercise all the functions of a practicing lawyer.

All of them must, however, like the ordinary attorney, be admitted to the bar. The term attorney

is also used for county, state, and federal prosecuting officers, as county attorney, district

attorney, and attorney general.

Lawyers, also called attorneys, act as both advocates and advisors in our society. As advocates,

they represent one of the parties in criminal and civil trials by presenting evidence and arguing in

court to support their client. As advisors, lawyers counsel their clients concerning their legal

rights and obligations and suggest particular courses of action in business and personal matters.

Although all lawyers are licensed to represent parties in court, some appear in court more

frequently than others. Trial lawyers, who specialize in trial work, must be able to think quickly



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and speak with ease and authority. In addition, familiarity with courtroom rules and strategy is

particularly important in trial work. Still, trial lawyers spend the majority of their time outside

the courtroom, conducting research, interviewing clients and witnesses, and handling other

details in preparation for trial5.

The Call to the Bar is a term of art in most common law jurisdictions. Such jurisdictions

distinguish two types of lawyers:

a) Barristers are licensed to argue cases in superior courts;

b) Solicitors are licensed for legal practice outside of the courtrooms, e.g. providing legal

advice to lay clients.

Those who are licensed to argue in court are said to have been "called to the bar" or to have

received a "call to the bar". A lawyer may have both types of license. The precise terminology

may vary among the nations.

A call ceremony takes place at the barristers Inn of Court, usually in the lawyers pupillage

year. Call is initially to the utter (outer) bar, in contrast to the inner bar of the Queens Counsel.

For solicitors, the equivalent is to be "admitted as a solicitor", "enrolled as a solicitor" or"admitted and enrolled as a solicitor".

ROLE OF A LAWYER

5http://www.caasf.info/what%E2%80%99s-the-difference-between-a-lawyer-solicitor-

advocate-barrister-counselor-and-an-attorney/

http://www.caasf.info/what%E2%80%99s-the-difference-between-a-lawyer-solicitor-advocate-barrister-counselor-and-an-attorney/http://www.caasf.info/what%E2%80%99s-the-difference-between-a-lawyer-solicitor-advocate-barrister-counselor-and-an-attorney/http://www.caasf.info/what%E2%80%99s-the-difference-between-a-lawyer-solicitor-advocate-barrister-counselor-and-an-attorney/http://www.caasf.info/what%E2%80%99s-the-difference-between-a-lawyer-solicitor-advocate-barrister-counselor-and-an-attorney/


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When people hear the word lawyer being spoken, they usually think of an individual who goes to

court everyday and stands before a judge defending the freedom of another individual. This is

true in some cases; however, there are many different types of lawyers with a variety of job

responsibilities and duties. No matter what type of lawyer one may be they ultimately have an

extremely important role in the lives of others.

Legal profession is monopolistic in character and this monopoly itself inheres certain high

traditions, which its members are expected to upkeep and uphold. Law is an Hon'ble profession

and an Advocate is an Officer of justice and friend of the Court. He is an integral part for the

administration of justice. From the ancient times, the legal obligations of the Advocates to

conduct the case of a poor litigant without reward when so required by the Court has been

recognized not only in our country and in England but also in US and other Countries. However,

in practice, Counsels have been assigned only in criminal cases of serious nature and a few civil

cases.

The critical position enjoyed by an Advocate in administration of justice in fact imposes a

responsibility upon him to ensure that justice is made available to all. Rule 46 of Bar Council of

India Rules in part-VI relating to a standard professional conduct and etiquette reminds

Advocates of the obligation they owe to the society. The Rule reads as under:-

"Every Advocate shall in the practice of the profession of law bear in mind that any one

genuinely in need of a lawyer is entitled to legal assistance even though he cannot pay for it

fully or adequately and that within the limits of an Advocate's economic condition, free legal

assistance to the indigent and oppressed is one of the highest obligations an Advocate owes to

society."

To ensure justice to poor and marginalized sections of the society, an Advocate is required to

provide them legal assistance even when they are not in position either to pay him at all or

adequately pay him for his services. In fact the least duty expected of an Advocate is to play his

role sincerely in implementing the various legal aid schemes available under the Legal Services

Authorities Act, 1987 - be it legal aid to poor and other marginalized sections of the society or

promotion of legal literacy or facilitating resolution of disputes through Lok Adalats. The role of

the Advocates in implementation of these schemes becomes pivotal due to the fact that legal



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profession being monopolistic, the various schemes of legal aid under the Act can only be put

into operation through Advocates.

Assignment of a competent Advocate to take up the case of a poor litigant is the most crucial

component in providing effective and purposeful legal aid to the weaker sections of the society.

The Advocate is paid by the concerned Legal Services Authority but this payment is generally

quite low as compared to the normal fee charged by the Advocate. As such, well established

Advocates are generally reluctant to undertake assignment as an Advocate under the scheme of

legal aid under the Legal Services Authorities Act.

The result is that newly enrolled Advocates or Advocates, who do not have enough cases with

them alone opt for taking up such cases with the result that the poor and marginalized person get

only substandard legal assistance, which is a serious handicap in successfully implementing the

legal aid scheme for weaker sections of the society. The reluctance of senior Advocates in doing

service to the community is becoming a serious constraint in the success of the legal aid scheme

in India. The Supreme Court in the case ofKishore Chand vs State of H.P.6 commented on this

situation as under :-

"Though Article 39-A of the Constitution provides fundamental rights to equal justice and

free legal aid and though the State provides amicus curiae to defend the indigent accused, he

would be meted out with unequal defence if, as is common knowledge the youngster from theBar who has either a little experience or no experience is assigned to defend him. It is high time

that senior counsel practicing in the Court concerned, volunteer to defend such indigent accused

as a part of their professional duty."

The situation in India is in contrast to the situation existing in Britain. Michael Zander, who

studied the legal system of Britain to suggest law reforms records with satisfaction in his book

"A Master of Justice" that in Britain, a large number of competent senior Barristers are busy in

acting as amicus curiae in courts and in providing legal aid to the poor for which they are paid by

the State. The Advocates in India need to take a lesson from their British counterparts in this

respect and need to inculcate the spirit of dedication to the cause of justice and for community

service so that legal aid movement could succeed in India. Indeed, failure to make justice

available to poor may threaten the very existence of the democracy and the rule of law. The

6AIR 1990 SC 2140



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members of the legal profession would do well to bear in mind the famous words said by

Leeman AbbotYears ago in relation to affluent America -

"If ever a time shall come when in this city only the rich can enjoy law as a doubtful luxury,

when the poor who need it most cannot have it, when only a golden key will unlock the door to

the court-room, the seeds of revolution will be sown' the fire-brand of revolution will be lighted

and put into the hands of men and they will almost be justified in the revolution which will

follow".

There have been many instances where Advocates in India have taken the causes of poor and

downtrodden without any reward and have ensured justice to them. Unfortunately, there have

also been instances where lawyers assigned by public funds have not faithfully played their role

in implementation of the legal aid schemes which has cast a serious doubt on the very credibility

of a scheme of legal aid available to weaker sections of society in India.

The dark side of the legal aid scheme and how the lawyers are swindling the unsuspecting and

ever gullible poor litigants as well as petty criminals and first time convicts, most of whom are

so because of compelling circumstances, was reported by the Indian Express in a news item

under the caption "Free Legal Aid for a Fee". The paper reported how Advocates were abusing

the scheme and funds of free legal aid. The modus operandi reported was that the lawyers

engaged by the Legal Aid Committee were fleecing money from the parties on whose behalfthey had been engaged and holding their cases to ransom by delaying tactics.

In the process, many innocent persons were also being compelled to pay large amounts to the

lawyers, who are supposed to get their fee from the Legal Aid Committee and to be giving a

service for the cause of justice. The phenomenon is not new and has been in existence since the

establishment of the institution of free legal aid and has been flourishing since then. Lawyers can

always be innovative as any other professionals, in fact much more than that. After all they

provide escape routes in people of any hue in trouble. They know how to break laws and get

away with it7.

7http://www.legalserviceindia.com/article/l396-Role-Of-Advocates-In-Implementation-of-

Legal-Aid-Schemes.html

http://www.legalserviceindia.com/article/l396-Role-Of-Advocates-In-Implementation-of-Legal-Aid-Schemes.htmlhttp://www.legalserviceindia.com/article/l396-Role-Of-Advocates-In-Implementation-of-Legal-Aid-Schemes.htmlhttp://www.legalserviceindia.com/article/l396-Role-Of-Advocates-In-Implementation-of-Legal-Aid-Schemes.htmlhttp://www.legalserviceindia.com/article/l396-Role-Of-Advocates-In-Implementation-of-Legal-Aid-Schemes.html


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VARIOUS ROLE OF LAWYER RELATED TO LITIGATION

Basically the term litigation has been defined in various statute but the dictionary define as a

legal proceeding in a court; a judicial contest to determine and enforce legal rights. The litigation

process in India is based on common law. It is largely based on English common law because ofthe long period of British colonial influence during the British Raj. There is a single hierarchy of

courts in India. Much of contemporary Indian law shows substantial European and American

influence. Various acts and ordinances first introduced by the British are still in effect in

modified form today.

During the drafting of the Indian Constitution, laws from Ireland, the United States, Britain, and

France were all synthesized to get a refined set of Indian laws as it currently stands. Indian laws

also adhere to the United Nations guidelines on human rights law and environmental law.

Certain international trade laws, such as those on intellectual property, are also enforced in India.

Each state drafts it own laws, however all the states have more or less the same laws. Laws

directed by the central government and the Supreme Court of India via judicial precedent or

general policy directives are binding on all citizens of each state. Each state has its own labor

laws and taxation rates.

India's judicial system is made up of the Supreme Court of India at the apex of the hierarchy for

the entire country and twenty-one High Courts at the top of the hierarchy in each State. These

courts have jurisdiction over a state, a union territory or a group of states and union territories.

Below the High Courts are a hierarchy of subordinate courts such as the civil courts, family

courts, criminal courts and various other district courts.

The High Courts are the principal civil courts of original jurisdiction in the state, and can try all

offences including those punishable with death. However, the bulk of the work of most High

Courts consists of Appeals from lowers courts and writ petitions in terms of Article 226 of the

Constitution of India. The precise jurisdiction of each High Court varies. Each state is divided

into judicial districts presided over by a 'District and Sessions Judge'. He is known as a DistrictJudge when he presides over a civil case, and a Sessions Judge when he presides over a criminal

case. He is the highest judicial authority below a High Court judge. Below him, there are courts

of civil jurisdiction, known by different names in different states8.

8http://madaan.com/litigation_india.html

http://madaan.com/litigation_india.htmlhttp://madaan.com/litigation_india.html


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LAWYER & ETHICS9

1. Law touches every aspect of life more so in commercialized urban cities for example the

developing branches in matrimonial, consumer, pollution, intellectual property, health,

education, constitutional rights, human rights, taxes fees, revenues, foreign trade, companylaws, telecom laws so on and so forth.

2. Justice is great interest of man of earth. Justice is a supreme virtue. It is in this context a

lawyer come into being. The dictionary meaning of lawyer means the member of legal

fraternity. We find the reference of the role of lawyer in ancient texts. The word Vakil is

Indian nomenclature, which means an agent.

3. The legal profession existed in Hindu and Buddhistic times and during the Mogul Period.

The U.S.A. was the first civilized country to formulate the code of ethics for legal profession.

As far as back in 1873, the East India Company had appointed the pleader for civil suits and

from time to time their various acts, enactment and regulations were formulated for the legal

profession. The Legal Practitioner Act 1879 was enacted for the legal profession. In 1923

Indian Bar Committee was constituted. In 1951 All India Bar Committee was constituted to

look into various enactments. Gradually the Code of Conduct was also evolved from time to

time for the members of legal profession. And now Advocates Act 1961 is enacted by

Government of India. The Bar Association of India announced on 15.1.1962 code of ethics

for the legal profession. Under the Advocates' Act an Advocate means an Advocate enrolled

under the Act.

4. Law streams from Soul of people, like national poetry. It is as holy as national religion. It

grows and spreads like language. The religions ethics and political elements of contribute to

its vital force. It is distilled essence of civilization of people. It reflects the People's soul

more clearly than organism. It is said that the civilization of any country is tested by the fact

as to how the administration of justice for criminals is administered.

5. He who practices law is not merely a lawyer but acts as moral agent and that character he

cannot shake off by any other character on any professional character. He derives from the

belief that he shares sentiment of all mankind. This influence of his morality is one of his

possessions, which like all his possessions he is bound to use for moral ends. He makes it the

supreme object of his life. To cultivate his moral being is his higher aim. Members of the Bar

9http://www.legalcells.com/articles02_in.html

http://www.legalcells.com/articles02_in.htmlhttp://www.legalcells.com/articles02_in.html


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like Judges are the officers of the Court and like Judges, he should be of good behaviour.

Nothing, which is morally wrong, can be professionally right.

6. A lawyer shall not act contrary to basic principles of morality and at all times shall act

honestly. He should not render any service or give advice involving breach of law or

implying disrespect to the established judiciary. He should conduct himself with due dignity

and self-respect and shall assist in the enforcement of law and administration of justice. He is

the backbone of the society. In each field and on each step in the legal field we require the

morality of the Advocate. Please consider it very seriously. As I said the country need men

of character and virtues. We only preach and do not practice. The lawyer and the legal

profession and laws have been neglected. Since independence and we are now facing break

down of administrative machinery that we have to file proceedings for enforcement of duties.

7. The lawyer who is moralist spends sleepless night as his conscience pricks him in many

ways. More often, member of the public doubt the morality of the advocacy. The

professional conduct of the advocate had been the focus of the society on several occasions.

Generally a lawyer is perceived as defender of the accused and the general concept of law is

only confined to criminals but that is not true. As I said the role of lawyer is very important

in each and every field of the life. One of the very important role is that the lawyers are also

responsible for teaching of law. In fact, the Bar Council is responsible for imparting law

education. The practicing lawyers therefore, teach in law collages. They also play importantrole in law reform. By reason of his experience gained in the daily application and

interpretation of laws, lawyers are best aware of its imperfection of the legal system. And

they constitute the most competent class of men to advise on law reform.

8. Advocacy is the respectable noble profession on the principles. Firstly, the Advocate is

not expressing his own opinion. Secondly, Advocate performs on behalf of his client.

Thirdly, his primary function is to assist to Court to determine his clients' rights. In fact,

Supreme Court in case of the Bar Council of Maharashtra and Goa has observed "Legal

Profession is a partner with judiciary in the administration of the justice".

9. The Advocate owes duty to the client, court, to the society and to the profession.

10. The Advocate owes a very substantial duty to the person who puts his life, liberty,

finances, reputation, or general happiness into his hands. The client 'must rely on him at

times for fortune and character and life'. His obligation is to represent his client, any client,



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no matter how unmeritorious the case, 'no matter how great a ill-reputed the man may be, no

matter how undeserving or unpopular his cause'.

11. When counselling the client, a lawyer can and should express his opinions fully and

frankly about all aspects of the case, legal and ethical. The client can insist on having clear

and definite advice as to what is going to happen in court and, in many cases, what is going

to be reported in the newspapers.

12. In giving the advice, he should act honestly and in good faith and shall not take

advantages of ignorance of the client. He shall devote to the client's cause is executed and

skill to the utmost of his ability. An Advocate shall not disclose any matter communicated to

him in his professional capacity nor use any knowledge obtained in any other proceedings

except with the consent of his client. An Advocate is bound to accept any proof unless there

are special circumstances justifying his refusal. An Advocate shall decline to accept a brief,

in a case where he believes or likely to be called as a witness. An Advocate shall not refuse

the defence of a person accused of crime if he personally feels that he is guilty of crime and

once accepted, he has to conduct and defend to the best of his ability.

13. An Advocate shall not deal with the client's property so as to acquire any interest for

personal benefit or gain by taking advantage of confidence, repose in him by his client. He

should not lend any money, to the client for any action or legal prosecution. He should not

acquire in any manner whatsoever any interest in the subject matter of the litigation. Heshould not stand surety for his client.

14. An Advocate shall conduct himself with due dignity and self-respect. He should show

due respect to the Judiciary Office and shall not act so as to undermine confidence in

Judiciary. He is not supposed to exert any personal influence on the Court nor gives any

impression that he possesses personal influence with the Court of Judge.

15. He shall not render any services or give advice to imply disrespect to the establishment of

judiciary. He shall assist in the administration of justice. He should be respectful to the

judicial officers and shall not act in any manner to undermine confidence in Judiciary. He

should be frank and fair with the Court. He should not make a deliberate wrong statement or

deliberately misquote the contents of the document, testimony of the witness, the opinion or

argument of opposing Counsel, any of decision or a context in the book, to cite authority and

decision, or that has been overruled or statute that has been repealed or amended. An



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Advocate shall not include any fact, which he knows to be false in drawing up pleadings,

petitions or affidavits. An Advocate shall not claim as a fact unless upon evidence on record.

An Advocate shall not speak ill of judges or making disparaging remarks or by law unless he

is satisfied himself. A prosecution with hostility to the Accused or to secure a conviction at

all cause. An Advocate shall try to avoid any remark or question purely calculated to

scandalize, humiliate or embarrass.

16. For the third category, the Advocate shall uphold the Constitution, helping the

maintenance of the rules and of law, promote the advancement of justice and assist in the

enforcement of fundamental rights of the people. He shall act honestly. The lawyer's right to

live and to live by application of his brain operates in the protection of every right and in the

maintenance of every defence authorized by the law of the land is a part of our Constitution.

When that right is surrendered, those principles will also suffer. We have seen the era after

Independence and seen the development of basic fundamental rights. We have also

experience the importance of duties and rights of committed lawyers during Emergency.

Subsequently a number of important national issues have been taken up by lawyers and have

been effective in maintaining ethics of law. The law must be maintained and enforced, it

must be vindicated, but this must be for the healing of the rule of law not for the vengeance

upon the individual.

17. The fourth duty of an Advocate towards the profession is that he shall not speak ill of theprofession but shall conduct himself in such a way as to enhance regard, respect sympathy

and strive to maintain the honour and dignity of the profession. An Advocate shall not

discuss case or appeal, should not divert or solicit work by advertisement. An Advocate shall

not engage intermediaries for procuring work. An Advocate shall not engage himself in any

other business or he should not be a full time salaried employee of any firm, corporation,

concern. An Advocate may act as an arbitration or umpire. An Advocate is not supposed to

wear his uniform, robes or a gown in public or when appearing as witness. He should be fair

to his opponents. He should not adopt sharp practices. He should be polite to be opponents.



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PROFESSIONAL MISCONDUCT OF LAWYER

An advocate is the most accountable, privileged and erudite person of the society and his act arerole model for the society, which are necessary to be regulated. Professional misconduct is the

behaviour outside the bounds of what is considered acceptable or worthy of its membership by

the governing body of a profession. Professional misconduct refers to disgraceful or

dishonourable conduct not befitting an advocate. Chapter V of the Advocate Act, 1961, deals

with the conduct of Advocates. It describes provisions relating to punishment for professional

and other misconducts. Section 35(1) of the Advocate Act, 1961, proviso says, is relevant in this

context.

This proviso say, where on receipt of a complain otherwise a State Bar Council has reason to

believe that any advocate on its roll has been guilty of professional or other misconduct, it shall

refer the case for disposal to it disciplinary committee. In depth the provisions are discussed in

the later part. Generally legal profession is not a trade or business, its a gracious, the noble, and

decontaminated profession of the society. Members belonging to this profession have not to

encourage deceitfulness and corruption, but they have to strive to secure justice to their clients.

The credibility and reputation of the profession depends upon the manner in which the members

of the profession conduct themselves. Its a symbol of healthy relationship between Bar and

Bench. There is heavy responsibility on those on whom duties are vested by the virtue of being

a part of my most credible as plausible profession of the society 10. The Advocates Act, 1961 as

well Indian Bar Council are silent in providing exact definition for profession misconduct

because of its scope, though under Advocate Act, 1961 to take disciplinary action punishment

are prescribed when the credibility and reputation on the profession comes under a clout on

account of acts of omission and commission any member of the profession.

10http://jurisonline.in/2010/04/%E2%80%98professional-misconduct%E2%80%99/

http://jurisonline.in/2010/04/%E2%80%98professional-misconduct%E2%80%99/http://jurisonline.in/2010/04/%E2%80%98professional-misconduct%E2%80%99/


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WHAT IS THE CODE OF CONDUCT PRESCRIBED FOR AN ADVOCATE?

The Bar Council Rules prescribe a strict code of conduct for advocates, it has to follow:

No advertising or soliciting work, it is against an advocates code of ethics to solicit or advertise

work and amounts to a misconduct on the part of the advocate. Both direct and indirect

advertising is prohibited. An advocate may not advertise his services through circulars,

advertisements, touts, personal communication or interviews not warranted by personal relations.

Similarly, the following forms of indirect advertising are prohibited: (i) by issuing circulars or

election manifestos by a lawyer with his name, profession and address printed on the manifestos,

thereby appealing to the members of the profession practising in the lower courts who are in a

position to recommend clients to counsel practising in the HC. (ii) Canvassing for votes by

touring in the province or sending out his clerk or agents to the various districts, which must

necessarily mean directly approaching advocates practising in subordinate courts. Further, the

signboard or nameplate displayed by an advocate should be of reasonable size. It should not

refer to details of an affiliated by the advocate i.e. that he is or has been president or member of a

bar council or of any association, or he has been a Judge or an Advocate-General, or that he

specialises in a particular kind of work, or that he is or was associated with any person or

organisation or with any particular cause or matter.

Not demand fees for training; An advocate is restrained from demanding any fees for imparting

training to enable any person to qualify for enrolment.

Not use name/services for unauthorised practice; An advocate may not allow his professional

services or his name to be associated with, or be used for any unauthorised practice of law by

any lay agency.

Not enter appearance without consent of the advocate already engaged: an advocate is

prohibited from entering appearance in a case where there is already another advocate engaged

for a party except with the consent of such advocate. However if such consent is not produced,

the advocate must state the reasons for not producing it, and may appear subsequently, only with

the permission of the court.

Duty to opposite party:- While conducting a case, a lawyer has a duty to be fair not only to his

client but also to the court, and to the opposite party. An advocate for a party must communicate

or negotiate with the other parties regarding the subject matter of controversy, only through the



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opposite partys advocate. If an advocate has made any legitimate promises to the opposite party,

he should fulfil the same, even if the promise was not reduced to writing or enforceable under

the rules of the court.

Duties of an advocate towards his client: The relationship between a lawyer and a client is

highly fiduciary and it is the duty of an advocate fearlessly to uphold the interests of the client by

fair and honourable means without regard to any unpleasant consequences to himself or any

other person.

Contempt Of Court As Misconduct

In the recent case ofB. M. Vermav.Uttrakhand Regulatory Commission court noted that, it

was given the wide powers available with a Court exercising contempt jurisdiction, court quoted

several he Delhi HC, in the case ofCourt of Its Own Motion v. State, dealing with the

contempt proceedings involving two senior advocates, observed that given the wide powers

available with a Court exercising contempt jurisdiction, it cannot afford to be hypersensitive and

therefore, a trivial misdemeanor would not warrant contempt action. Circumspection is all the

more necessary because as observed by the SC inSC Bar Association v. Union of India the

Court is in effect the jury, the judge and the hangman; while in M.R. Parashar H. L. Sehgal it

was observed that the Court is also a prosecutor.Anil Kumar Sarkarv.Hirak Ghosh, reiterates

this.In the most controversial and leading case of R.K. Ananad vs. Registrar of DelhiHCfacts,on 30th May, 2007 a TV news channel NDTV carried a report relating to a sting

operation. The report concerned itself with the role of a defence lawyer and the Special Public

Prosecutor in an ongoing Sessions trial in what is commonly called the BMW case. On 31st

May, 2007 a Division Bench of this Court, on its own motion, registered a writ Petition and

issued a direction to the Registrar General to collect all materials that may be available in respect

of the telecast and also directed NDTV to preserve the original material including the CD/video

pertaining to the sting operation. ISSUE :The question for our consideration is whether Mr. R.K.

Anand and Mr. I.U. Khan, Senior Advocates and Mr. Sri Bhagwan Sharma, Advocate have

committed criminal contempt of Court or not. It was observed that prima facie their acts and

conduct were intended to subvert the administration of justice in the pending BMW case and in

particular influence the outcome of the pending judicial proceedings. Accordingly, in exercise of

powers conferred by Article 215 of the Constitution proceedings for contempt of Court (as



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defined in Section 2(c) of the Contempt of Courts Act, 1972) were initiated against Mr. Anand,

Mr. Khan and Mr. Sri Bhagwan Sharma and they were asked to show cause why they should not

be punished accordingly. HELD : court said that Courts of law are structured in such a design as

to evoke respect and reverence for the majesty of law and justice. The machinery for

dispensation of justice according to law is operated by the court. Proceedings inside the courts

are always expected to be held in a dignified and orderly manner. The very sight of an advocate,

who was found guilty of contempt of court on the previous hour, standing in the court and

arguing a case or cross-examining a witness on the same day, unaffected by the contemptuous

behaviour he hurled at the court, would erode the dignity of the court and even corrode the

majesty of it besides impairing the confidence of the public in the efficacy of the institution of

the courts. This necessitates vesting of power with the HC to formulate rules for regulating the

proceedings inside the court including the conduct of advocates during such proceedings. That

power should not be confused with the right to practise law. Thus court held that there may be

ways in which conduct and actions of a malefactor who is an advocate may pose a real and

imminent threat to the purity of court proceedings cardinal to any courts functioning, apart from

constituting a substantive offence and contempt of court and professional misconduct. In such a

situation the court does not only have the right but also the obligation to protect itself. Hence, to

that end it can bar the malefactor from appearing before the courts for an appropriate period of

time. In the present case since the contents of the sting recordings were admitted in the presentcase, there was no need for the proof of integrity and correctness of the electronic materials.

Finally the SC upheld HCs verdict making Anand guilty on the same count. On the other hand,

the SC let off I.U Khan, who was found guilty by the HC11.

11 ibid



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WHAT ARE THE GENERAL RESPONSIBILITIES OF A LAWYER?

There are many different general responsibilities of a lawyer. This individual will represent

clients in court, mediations, business transactions and other important legal proceedings orarrangements where the law will be discussed. The lawyer meets with the clients before, during

and after legal proceedings to ensure that the client fully understands all aspects of their case. In

general, the lawyer is the individual who represents another in all issues where legal

representation is advised and deemed necessary.

What Are The Specific Duties of Lawyers?

A lawyer has many duties relevant to their occupation. One important duty that the lawyer must

perform in their profession is maintaining client contact. Lawyers always represent someone,

whether it be an individual or entity, and therefore it is important that the lawyer report all

progress and pertinent information to their client in order to keep them well informed.

Another specific duty of lawyers is to provide in-person representation at court hearings and

other legal proceedings. Whether the lawyer is involved with criminal litigation or civil

litigation, there is most likely going to be some form of legal proceeding that they must attend on

behalf of their client. The lawyer in this duty will speak on behalf of the client and advise the

client on how to proceed.

As stated earlier, the role of a lawyer is not simply to appear in court and argue passionately on

behalf of the client. There is a multitude of background work which lawyers must do in order to

adequately prepare a case or pursue a legal matter. There are many legal documents that need to

be drafted and although paralegals and legal secretaries can draft some of these documents, there

are still many lawyers who choose to do so themselves.

Contact with clients is not the only type of conversation which lawyers must have with

individuals. Lawyers spend a great deal of time talking on the phone, negotiating, sending email

and mail correspondence and faxing pertinent documents to and from involved parties. Again,

paralegals and legal secretaries can help with this voluminous task but lawyers should try to do



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as much as they can themselves whenever possible and be sure to review all documents before

they leave their office. There are certain duties which must be performed by the lawyers

themselves, such as negotiating with opposing parties, for example.

Another important duty which lawyers engage in on a frequent basis is research. There are many

different forms of research which lawyers can do such as researching statutes, procedural rules,

evidence, pertinent documentation and more. A large portion of a lawyers time is spent

reviewing and compiling research to aid them in the representation of a client.

LAWYERS IN THE LEGISLATIVE PROCESS AND LEGAL EDUCATION

The focus of legal education and the institutions concerned with the practice of law is on judicial

decisions. According to legal historian J. Willard Hurst, Dealing with Statutes, 1983 held that:

"More than constitutional law or common law, legislation and interpretation of legislation by

lawyers, executive and administrative officers, and judges provide the bases for those parts of

legal order which enter most broadly into people's everyday lives as well as into grand designs of

public policy. Statute law directly embodies governing standards and rules for major sectors of

life in society."

In "Lawyers and the Legislative Process," (1973) Richard B. Stewart Quoting John Landis There

has been historic disregard "both for the content of the statute book and the manner of its

making. While statutes have increased importance, the second half of Landis' complaint is still

valid. Which laid down that:-

"A statute does not spring full blown from the legislature, but the lawyer often acts as if it had.

In contrast to judge-made law, where the origins and development of a rule elicit close attention,

statutory law is typically taken as a "given" with scant professional concern for the social,

economic, and political soil out of which the statute grew or the parliamentary procedures and

strategic compromises which shaped its content."



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CONCLUSION

Lawyers are individuals who have a wide range of responsibilities and duties when it comes to

their profession. Their role in society is even more important as they are acting as a voice for

others. The above mentioned items are just a few of the many duties which lawyers complete ona daily basis.Law is not a brooding omnipresence in the sky, but a flexible instrument of social

order. Law influences every human activity in a civilized society. Almost all the nations are to

give importance on value based pragmatic legal education which would ensure and foster

economic development and to provide social justice to the people.

The legal fraternity of our globe is to revamp their methodology and curriculum to make their

legal education humanistic, modern, contemporary and socially relevant. In the era of science

and technology, law is being studied as a branch of science. It is to be tested through a method

by which it is either proved or disproved. From the dawn of human civilization the desire of the

society is peace and prosperity. A constant effort is being taken to check the brutal exploitation

of man by man and also to improve their condition.

The role of the lawyers in the society is of great importance. They being part of the system of

delivering justice holds great reverence and respect in the society. Each individual has a well

defined code of conduct which needs to be followed by the person living in the society. A lawyer

in discharging his professional assignment has a duty to his client, a duty to his opponent, a duty

to the court, a duty to the society at large and a duty to himself. It needs a high degree of probity

and poise to strike a balance and arrive at the place of righteous stand, more so, when there are

conflicting claims.

While discharging duty to the court, a lawyer should never knowingly be a party to any

deception, design or fraud. While placing the law before the court a lawyer is at liberty to putforth a proposition and canvass the same to the best of his wits and ability so as to persuade an

exposition which would serve the interest of his client and the society.



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BIBLIOGRAPHY

BOOKS/ARTICLE

Law of Contempt, samaraditya Pal, 3rd ed., 2005, wadhwa, Nagpur.

Student Professional Ethics, by Raju Ramachandran, Lexis Nexis, Butterworth Wadhwa,

Nagpur.

Ethics in Practice: Lawyers' Roles, Responsibilities, and Regulation, by Deborah L.

Rhode

Criminal and Civil Contempt: Some Sense of a Hodgepodge, Journal article by Lawrence

N. Gray; St. John's Law Review, Vol. 72, 1998

K.J. Aiyar's Law Of Contempt Of Courts, Legislatures And Public Servants, by Justice

V.R. Krishna Iyer & R.P. Srivastava, 9th ed.

Criminal and Civil Contempt: Some Sense of a Hodgepodge, by Lawrence N.

Gray; St. John's Law Review. Volume: 72. Issue: 2., 1998.

INTERNET SOURCES

www.manupatra.com

www.google.co.in

http://www.questia.com/app?component=$coreweb$search$searchResultsComponent.

$coreweb$search$resultsNavigator.navigatePage&page=coreweb/search/searchResultsPage&ser

vice=direct&session=T&sp=11&sp=Sbook

http://www.ethicsweb.ca/books/index-profl.htm
http://www.questia.com/read/5037511220?title=Criminal%20and%20Civil%20Contempt%3A%20Some%20Sense%20of%20a%20Hodgepodgehttp://www.questia.com/SM.qst?act=adv&contributors=Lawrence%20N.%20Gray&dcontributors=Lawrence%20N.%20Grayhttp://www.questia.com/SM.qst?act=adv&contributors=Lawrence%20N.%20Gray&dcontributors=Lawrence%20N.%20Grayhttp://www.questia.com/SM.qst?act=adv&contributors=Lawrence%20N.%20Gray&dcontributors=Lawrence%20N.%20Grayhttp://www.lexisnexis.in/k.j.-aiyars-law-contempt-courts-legislatures-public-servents.htmhttp://www.manupatra.com/http://www.google.co.in/http://www.questia.com/app?component=$coreweb$search$searchResultsComponent.$coreweb$search$resultsNavigator.navigatePage&page=coreweb/search/searchResultsPage&service=direct&session=T&sp=11&sp=Sbookhttp://www.questia.com/app?component=$coreweb$search$searchResultsComponent.$coreweb$search$resultsNavigator.navigatePage&page=coreweb/search/searchResultsPage&service=direct&session=T&sp=11&sp=Sbookhttp://www.questia.com/app?component=$coreweb$search$searchResultsComponent.$coreweb$search$resultsNavigator.navigatePage&page=coreweb/search/searchResultsPage&service=direct&session=T&sp=11&sp=Sbookhttp://www.questia.com/app?component=$coreweb$search$searchResultsComponent.$coreweb$search$resultsNavigator.navigatePage&page=coreweb/search/searchResultsPage&service=direct&session=T&sp=11&sp=Sbookhttp://www.ethicsweb.ca/books/index-profl.htmhttp://www.questia.com/read/5037511220?title=Criminal%20and%20Civil%20Contempt%3A%20Some%20Sense%20of%20a%20Hodgepodgehttp://www.questia.com/SM.qst?act=adv&contributors=Lawrence%20N.%20Gray&dcontributors=Lawrence%20N.%20Grayhttp://www.questia.com/SM.qst?act=adv&contributors=Lawrence%20N.%20Gray&dcontributors=Lawrence%20N.%20Grayhttp://www.lexisnexis.in/k.j.-aiyars-law-contempt-courts-legislatures-public-servents.htmhttp://www.manupatra.com/http://www.google.co.in/http://www.questia.com/app?component=$coreweb$search$searchResultsComponent.$coreweb$search$resultsNavigator.navigatePage&page=coreweb/search/searchResultsPage&service=direct&session=T&sp=11&sp=Sbookhttp://www.questia.com/app?component=$coreweb$search$searchResultsComponent.$coreweb$search$resultsNavigator.navigatePage&page=coreweb/search/searchResultsPage&service=direct&session=T&sp=11&sp=Sbookhttp://www.questia.com/app?component=$coreweb$search$searchResultsComponent.$coreweb$search$resultsNavigator.navigatePage&page=coreweb/search/searchResultsPage&service=direct&session=T&sp=11&sp=Sbookhttp://www.ethicsweb.ca/books/index-profl.htm

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