What Professional Ethics Means, and Where the Bar Council Gets the Power to Impose It

Morality is wider than all of them and is not the test. This is where students go wrong, and the distinction is examinable in both directions.

• Something immoral may not be misconduct. Conduct in a purely private capacity may not attract section 35, as Module III shows from the decided cases on misconduct outside professional work.
• Something moral may still be misconduct. Rule 11 obliges an advocate to accept a brief even where he believes the client is guilty, and rule 15 requires him to defend a person accused of a crime regardless of his personal opinion as to the guilt of the accused. A lawyer who refused briefs he found distasteful would be acting on his conscience and breaking a rule.

The Preamble, which is where the Bar Council states the meaning

MU asks for the meaning, and the Bar Council supplies one in the Preamble to Part VI Chapter II. It is short and worth having in the words used.

"An advocate shall, at all times, comport himself in a manner befitting his status as an officer of the Court, a privileged member of the community, and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may still be improper for an advocate. Without prejudice to the generality of the foregoing obligation, an advocate shall fearlessly uphold the interests of his client and in his conduct conform to the rules hereinafter mentioned both in letter and in spirit. The rules hereinafter mentioned contain canons of conduct and etiquette adopted as general guides; yet the specific mention thereof shall not be construed as a denial of the existence of others equally imperative though not specifically mentioned."

Four things in it decide questions.

"An officer of the Court." The advocate is not simply the client's agent. He has a standing duty to the court which can override what the client wants, and every rule in Section I flows from it.

"What may be lawful and moral... may still be improper for an advocate." The Bar Council says in terms that its standard is higher than the general law and different from morality. That sentence answers the "why is this law" question directly.

"Fearlessly uphold the interests of his client." The duty to the court does not make the advocate a second prosecutor. Rule 15 repeats the word "fearlessly".

"Shall not be construed as a denial of the existence of others equally imperative though not specifically mentioned." The list of rules is not exhaustive. This is the sentence that makes the open-ended words of section 35, "professional or other misconduct", workable: an advocate cannot defend himself by showing that no numbered rule covers what he did.

The scope of the power, and its one limit

Section 49(1)(c) has a proviso, and the Chapter's own heading refers to it: rules made under this clause shall not come into force until they are approved by the Chief Justice of India. The Chapter's heading says the rules are made under section 49(1)(c) read with the Proviso thereto, which records that the approval was given.

That proviso is the answer to a question about how far the profession really governs itself. The standards by which advocates are judged were written by the Bar Council but could not take effect without the Chief Justice's approval.

The wider limit on the same power is the case in chapter [What the Supreme Court May Not Do: Supreme Court Bar Association and the Limits of Article 142], from the other direction: in Supreme Court Bar Association v. Union of India, AIR 1998 SC 1895, a Constitution Bench held that the Supreme Court cannot itself exercise the disciplinary jurisdiction the Act confers on the Bar Councils.

Why the profession has ethics at all

An examiner may ask for justification rather than for content, and there are four reasons worth stating.

The client cannot judge the work. A client cannot tell whether an argument was well made, whether the file was read, or whether a limitation point was missed until it is too late. Ordinary market discipline does not operate.

The advocate holds the client's money and papers. That is a position of trust, and trust requires rules about accounts, which is why the accounts rules sit inside the duty to the client and are dealt with in Module IV.

The court relies on what the advocate says. A judge cannot verify every proposition of law put to him. The system works only because advocates may be relied on, which is why the duty to the court is Section I and comes before the duty to the client.

The public interest in the administration of justice. In In Re: Sanjiv Datta, (1995) 3 SCC 619, the Supreme Court set out the standards the profession is expected to maintain and the consequences of their decline, and it is that public dimension, rather than the interest of any client, which justifies a profession policing its own members.

A worked example

Aditi is briefed for a defendant. Four questions arise, and each is answered by locating it on the chain.

The client asks her to telephone the judge, whom he knows socially, to explain the case informally. Rule 3 forbids private communications with a judge relating to a pending case. That rule was made under section 49(1)(c), so it is a rule, and breaching it is misconduct under section 35. This is not a matter of taste.

The client asks her to drop the case because he now admits he is in the wrong. She may withdraw, but rule 12 requires sufficient cause, reasonable and sufficient notice, and a refund of the part of the fee not earned.

She personally believes the client's case is unattractive. Rule 15 requires her fearlessly to uphold her client's interests by all fair and honourable means, and to defend a person accused of a crime regardless of her personal opinion as to guilt. Her private morality is not the test.

She does something the numbered rules do not mention. The Preamble answers it: the specific mention of these canons is not a denial of others equally imperative though not specifically mentioned, and section 35 speaks of professional or other misconduct. She cannot rely on the absence of a numbered rule.

What beginners get wrong

Professional ethics is not advice. It is delegated legislation, breach of which is punishable.

The Advocates Act does not contain the duties. They are rules made under it.

Ethics is not morality. The Preamble says the standard is higher in one direction and different in another.

The rules are not exhaustive. The Preamble and the words "or other misconduct" in section 35 both say so.

Etiquette is not trivial. Rule 36 on advertising is a rule of etiquette and it is one of the most heavily enforced rules in the Chapter.

Quick revision

• The chain: section 7(1)(b), the function, to section 49(1)(c), the power to make rules, to Part VI Chapter II of the Bar Council of India Rules, to section 35, misconduct.
• The Chapter is headed "Standards of Professional Conduct and Etiquette" and states that it is made under section 49(1)(c) read with the Proviso thereto; the proviso requires the approval of the Chief Justice of India.
• Preamble, four load-bearing ideas: the advocate is an officer of the Court; what is lawful and moral for others may still be improper for an advocate; he shall fearlessly uphold his client's interests; and the rules are canons adopted as general guides whose specific mention is not a denial of others equally imperative.
• Ethics binds members of a profession and is enforced by its own machinery; etiquette is the part concerning manner and form; morality is neither the test nor the limit.
• Section 35 covers "professional or other misconduct", which is what makes the non-exhaustive list workable.
• The disciplinary jurisdiction belongs to the Bar Councils, not to the courts: Supreme Court Bar Association v. Union of India, AIR 1998 SC 1895.

Test yourself

1. Trace the source of an advocate's duty not to advertise. Section 7(1)(b) makes laying down standards of professional conduct and etiquette a function of the Bar Council of India; section 49(1)(c) gives it power to make rules prescribing those standards; rule 36 of Part VI Chapter II is such a rule; and breach of it is professional misconduct punishable under section 35.

2. What limit does the Act place on the Bar Council's power to make these rules? The proviso to section 49(1)(c): rules made under that clause do not come into force until they are approved by the Chief Justice of India. The Chapter's own heading records that it is made under section 49(1)(c) read with that proviso.

3. Distinguish professional ethics from morality, with an example each way. Ethics binds advocates as members of a profession and is enforced under section 35; morality binds everyone and is not the test. Conduct in a purely private capacity may be immoral without being professional misconduct. Conversely, rule 15 requires an advocate to defend an accused regardless of his personal opinion as to guilt, so refusing on grounds of conscience would be moral for him and a breach of the rules.

4. Are the Bar Council's rules an exhaustive statement of an advocate's duties? No. The Preamble states that the rules are canons of conduct and etiquette adopted as general guides and that their specific mention is not to be construed as a denial of others equally imperative though not specifically mentioned; and section 35 speaks of professional or other misconduct.

5. Why does the Preamble call the advocate an officer of the Court? Because his duties are not owed to the client alone. As an officer of the Court he owes the court a duty of candour and assistance which can override the client's wishes, and the whole of Section I of the Chapter, rules 1 to 10, flows from that position.

6. Give two reasons why a profession needs enforceable ethical rules. Because the client is not able to judge the quality or honesty of the work until it is too late, and because the court relies on the advocate's word for propositions it cannot independently verify, so the administration of justice depends on the profession being trustworthy.