Professional Documents
Culture Documents
I. Introduction
Throughout history, humanity h a s struggled with those aspects of
our values and beliefs that concern the morality of our conduct - what is
right and wrong, good and bad, acceptable and unacceptable behavior.
Questions of personal accountability and public obligation in all spheres
of life are vastly more complex today t h a n they were j u s t few years ago.
As values change and society attempts to cope with a myriad of
problems, m a n y prompted by development in science and technology,
new ethical issues emerge and old ethical issues m u s t be revisited. The
profession of law is the only profession which is generally described a s a
learned and noble profession by the world for several centuries. It is a
learned profession par excellence. No other profession touches h u m a n
life at so m a n y points than law. The people engaged in this profession
while performing their professional duties not only earn their livelihood,
b u t also influence t h e lives a n d conditions of life of many. A lawyer while
lawyering, an advocate while doing advocacy is no doubt making his own
fortune, b u t in addition to that his art of lawyering, his techniques of
advocacy, his skills of argument, his scientific treatment to the law and
the facts in h a n d cast definite shadows on the conditions in society,
lawyers make the most significant contribution to the final outcome of
justice system that is the court verdicts and judgment which ultimately
shape the future path of our society. The role of the lawyer is very central
to the very vital organ of the state that is judiciary. On the stage of
administration of justice, his contribution is of immense importance. The
103
1 C. Rama Swamy Sarma, Lawyer's Role in Present Society, Andhra Law Times 1987
(Journal Section), p. 14
2 Radha Binod Pal, "Professional Ethics," AIR 1961 (Journal Section), p. 6 5
104
3 Sunil Deshta and Kiran Deshta, Practical Advocacy of Law 109 (2006); see also
Justice Ismail, "Profession Ethics and Etiquette," The Law Weekly, 17 J u n e , 1978,
Vol. XCI (91), p. 77
105
8 Ibid.
108
(that which pertains to character, customs), and later, in the 4*^ century
A.D., Romans coined the term moralitas. Etymologically, the Greek
ethica, and the Latin moralitas are the same; they did not evolve inside
popular consciousness but are artificial terms coined to give a n a m e to a
certain field of research. The two terms, ethics and morality, gained
currency throughout Europe, diverging in meaning as cultural
development progressed. The term ethics h a s retained its original
meaning still denotes a scientific discipline, while morality is the
phenomenon study by this discipline - i.e. its subject - matter.
Ethics is the discipline which studies morality. This definition
outlines the field of research into morality but does not pinpoint its
subject. The latter is liable to historical change; it conveys a certain
interpretation of morality and registers a qualitative stage in cognition of
its essence.
In nutshell, ethics are morals. It is the science of morals and
duties. There are the first stage in a society and are seen in every kind of
h u m a n life. In other words, these are inherent in every m a n . Generally
these are found in religions. Ethics are a bundle of habits a n d morals
and are necessary to control and regulate every h u m a n being. If ethics
are violated, there can be no punishment. There shall be no external
enquiry, but only internal regret and confession. The person, who
violates ethics, cannot be expelled from the society or profession. Ethics
have their source from the tradition, culture and heritage. These guard
the society at large and guide the person individually.
13 Id. At 12
14 J a m e s F. Drane, Religion and Ethics 26 (1976)
Ill
the art of thinking, nor is the esthetic to be identified with any of the
particular a r t s by which beautiful objects are called into being. In the
same way, it does not appear to be right to describe ethics a s the art of
conduct. It is, one the whole, even somewhat misleading to describe it as
a science, thought this is p e r h a p s little more than a verbal question. In
studying a science we are seeking to acquire knowledge about some
particular mode of existence. In studying an art we are acquiring the
power of dealing with some particular class of objects. The history of
ethics is a history of views that are more or less erroneous; b u t the errors
cannot be treated a s due merely to h u m a n perversity. They are due
rather to certain difficulties that are inherent in the n a t u r e of the
subject; and it seems well to indicate at the outset the general n a t u r e of
these difficulties.
do his part to keep the law on the level of profession."is The term legal
ethics h a s been defined as "that branch of moral science which treats of
the duties which a member of the legal profession owes to the people, the
court, his professional brethren and his client . . ."i^
Generally speaking, legal ethics denotes that body of principles by
which the conduct of members of legal profession is controlled, more
specifically and practically considered. More specifically and practically
considered, legal ethics may be defined a s that branch of moral science
which treats of duties which an attorney-at-law owes to his clients, to the
courts, to the bar, and to the public, i'^
Legal ethics m e a n s the ethics of the legal profession. It is the body
of rules and practices which determine the profession conduct of the
members of the Bar and of the Bench. The p h r a s e 'legal ethics' shows the
existence of a set of professional n o r m s for lawyers a p a r t from the moral
rules which regulate the conduct of men in general. Legal ethics m e a n s
"usages and c u s t o m s among members of the legal profession involving
their moral and professional duties towards one another, towards clients
and towards the courts; that branch of moral science which treats of the
duties which a member of legal profession owes to the public, to the
court, to his professional brethren, and to his client." ^^ Legal ethics are
not exclusively rules-based. The c u s t o m s and cultures of lawyers, to the
extent that they have some effect on the delivery of legal services should
also be included within an extended definition. ^^ Lawyers allegiance to
these ethical values and canons of conduct have been shaped through
ages. The ethics of the profession developed as the profession grew in the
stature and a s s u m e d its dignified s t a t u s a s a strong arm of our judicial
system. Such canons of conduct serve as a guide to u n d e r s t a n d the
justice ideal) and (4) Rules governing relationship between lawyers within
firms and upholding the integrity of the profession as a whole by
reporting misconduct (the ideal of collegiality). In India u n d e r Section
49(1)(C) of the Advocates Act, 1961 prescribe the Standards of
Professional Conduct and Etiquette of Advocates.21 The violation of these
s t a n d a r d s of conduct will affect the prestigious image of the profession
and hence treated a s professional misconduct. Section 35 of the
Advocates Act, 1961 provides for punishment of advocates for
professional or other misconduct. The relevant rules appear under
Chapter II with the heading S t a n d a r d s of Professional Conduct and
Etiquette u n d e r Part VI of the Bar Council of India Rules. The preamble
of this Code of Conduct clarifies t h a t the standard included in this are
not exhaustive. The other canons of conduct which are equally
imperative but not specifically mentioned are also deemed to be included
in these rules. The Code does not, however, specify in explicit terms a s to
how far these rules are enforceable or a s to how far they are directives
without justiciability. This so because some of the rules are in n a t u r e of
s u m m o n s . Rule 46 describes the obligation to provide legal aid to the
indigent a n d the oppressed, a s the highest obligation of the advocates to
the society. Professor Upendra Baxi, and eminent jurist compares such
directives with the directive Principles of the State Policy meaning
thereby that the obligation is subject to 'economic condition' of the
advocate himself hence not a binding rule, that is an unenforceable
rule. 22 It is revealed from different studies that even the superstar
lawyers, whose economic condition is unconsciously affluent, even refuse
summarily to see and indigent person with urgent need for legal
assistance. It is also seen that most senior lawyers stay away from legal
aid programmes of the State
21 See S. 1 and Rule 1 to 10 under Section 49(C) of the Advocates Act, 1961
22 Upendra Baxi, "The Pathology of Indian Legal Profession," Indian Bar Review 1986,
Vol. 13, pp. 455-457.
117
V Duties of Lawyers
The Bar Council of India h a s framed a Charter of S t a n d a r d s of
Professional Conduct and Etiquette, containing broadly five t5qDes of
duties to be observed by the advocates : duty to court,^3 duty to client,^^
duty to opponent,25 duty to colleague^^ and miscellaneous duties.^^ It is
essential that every advocate on the roll of a Bar Council follows the
s t a n d a r d s strictly. As a member of the bar, a certain code of conduct is
expected from an advocate a s the public views him with a sense of t r u s t
which he should try to fulfill at all times. The ideals expected from
lawyers are high especially in society where more t h a n half of the
population is ignorant of their rights a n d is dependent on others for the
protection of their own rights.
Unlike United States, India does not have a separate Code of
Conduct to regulate the conduct of lawyers. The Bar Council of India
Rules by virtue of Section 49(1)(C) of the Advocates Act, 1961 prescribes
the canons of conduct and etiquette for advocates. So far, no attempt h a s
yet been made to codify the rules in an authoritative form. It is not
pleadings, or acted for a party, shall not act, appear or plead for
the opposite party.
The appointment of a pleader u n d e r Order III, Rule 4(2) of the Code
of Civil Procedure shall be deemed to be in force until determined with
the leave of the court by a writing, signed by the client or the pleader, as
the case may be, and filed in court or until the client or the pleader dies,
or until all proceeding in the suit are ended so far a s regard the client.
Absence of advocate from the court without informing the client,
on the ground t h a t members of the Bar decided to stay away from
appearing in court, a m o u n t s to negligence of duty towards the client. The
accusing finger of negligence would stand pointed at them if they
deliberately keep away from court a n d allow their party's interest to
suffer by their default.
There is no legal sanctity behind resolution passed by the bar
Association calling u p o n the lawyers to abstain from appearing in Court.
Lawyers have been granted right of audience in courts u n d e r the
Advocates Act and to conduct cases of their clients on getting
remuneration for the same. If they consciously, intentionally and
deliberately abstain from conducting the cases in the courts on behalf of
the clients, they would be committing breach of contract a n d subjecting
themselves to consequences flowing from a breach.
Breach of duty to client renders the counsel open to a charge of
negligence which is actionable tort.
"If a counsel does not want to appear in a particular court, that
too for justifiable reasons, professional decorum and etiquette require
him to give u p his engagement in that court so that the party can
engage another counsel. But retaining the brief of his client and at the
same time abstaining from appearing in that court, that too not on any
particular day on account of some personal inconvenience of the counsel,
but as a p e r m a n e n t feature, is unprofessional a s also unbecoming of the
s t a t u s of an advocate. No court is obliged to adjourn a c a u s e because of
129
gives to his client is the benefit of his learning, talents and reasoning. He
shall not misstate the law or fact for his client's benefit for rescue. It is
true that he is retained and remunerated by the client, b u t he shall never
forget that he is primarily and permanently retained by t r u t h and justice.
It is the duty of an advocate to place their client's case before the
court fearlessly and uphold the lawful interest of his client. This m u s t be
done only by fair and honourable m e a n s .
The advocate shall bear in mind t h a t his loyalty is to the law which
requires that no m a n should be convicted without adequate evidence.
Despite his own personal opinion, it is his duty to protect his client's
interest. T h u s for example, he shall defend a person accused of a crime
regardless of his personal opinion a s to the guilt of the accused. "No
advocate h a s the right still less is it his duty to set himself u p a s his
client's judge and determine whether he is or he is not guilty. To do so
would be to u s u r p the functions of the judge and jury a n d without
having heard all the evidence."
advocate to the opponent (Rule 35 and 35) u n d e r Section III which are as
under:
34. An advocate shall not in any way communicate or negotiate upon
the subject matter of controversy with any party represented by an
advocate except through t h a t advocate.
35. An advocate shall do his best to carry out all legitimate promises
made to the opposite party even though not reduced to writing or
enforceable u n d e r the rules of the court.
Every advocate h a s a right to cross-examination, arguments,
verification of documents, etc. while doing so, h e shall not be interrupted
unnecessarily, a s one would not like to be interrupted, and so one
should not interrupt his opposing counsel. The advocate should not
derogate the performance of the opposing counsel in the presence of the
client. One should not laugh at argument of the opposing counsel. The
advocate should do his best to carry out all legitimate promises made to
the opposite party even though not reduced to writing or enforceable
u n d e r the rules of the court.
An advocate shall not use unfair and malicious tactics, methods or
devices against the opponents. He shall not a b u s e the rules of evidence
and processes of the court in order to injure the opponent or to benefit
himself. He shall not make such allegations which he does not intend to
support by evidence. He m u s t not deliberately convey to the judge
information not admissible in evidence, nor make needless attacks on
the reputation of the opponent or his witnesses, nor otherwise unduly
h a r a s s them. When they are in the witness box, the advocate shall not
make it an opportunity to gratify the anger or malice of his client. An
advocate may make concessions to the convenience of the opponent and
his lawyer. He shall not take advantage of errors that can be cured,
where it will only cause delay or increased costs to the opponents. But
without the client's consent he shall not overlook such errors that are
fatal to the opponents, or that will assist his own client's case.
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juniors can come u p only with proper direction, training and help of the
seniors. Further the professional prestige hitherto enjoyed can be
perpetuated only through the junior Bar. Hence, senior lawyers, in all
age, have to discharge the duty of imparting training to the junior
members of the profession. They are obligated u n d e r Rule 45 provided in
Section V of the S t a n d a r d s of Professional Conduct and Etiquette as
provided by the Bar Council of India. The rule is a s under:
45. It is improper for an advocate to d e m a n d or accept fees or any
premium from any person a s a consideration for imparting training
in law u n d e r the rules prescribed by a State Bar Council to enable
such person to qualify for enrolment u n d e r the Advocates Act,
1961.
In Ram Mohan v. Jayakrishnan, 28 the High Court of Kerala
observed: "the Bench and the senior advocates owe a duty to the junior
in the bar. They should be given all encouragements. They are, in fact, a
trust in the h a n d s of the seniors. A junior is often elated when he files a
joint vakalat with the senior. He gets justifiable satisfaction when his
n a m e a p p e a r s in the law reports with his senior. Encouragement to the
juniors by allowing them to handle cases will, to a large extend, help
courts to cut down the pendency of cases. Most of the juniors are
competent and will prove their mettle if opportunities are given. That will
help to mould their career and creation of an effective second line of
offence and defence in the bar."
In P. D. Khandekar v. Bar Council of Maharashtra, ^^ the
Supreme Court observed : "It is the solemn duty of the Bar Council of
India and the State Bar Councils to frame proper schemes for the
training of the junior members of the bar, for entrusting of work to them,
and for their proper guidance so t h a t eventually we have new generation
of efficiently trained lawyers."
28 1981 KLT745
29 AIR 1984 SCI 10
135
30 Section VI
31 Mukhtiar Singh v. State of Punjab & others, AIR 1991 P & H 20
32 Akhilesh Kumar Misra v. High Court of J u d i c a t u r e , Allahabad, AIR 1995 All 148
136
35 1985 KLT 6; see also Kishore Chand v. State of H. P., AIR 1990 SC 2140
36 Shiv Narayan v. M. P. Electricity Board, AIR 1999 MP 246
140
(A) Honesty
The first prerequisite of a lawyer is that he should be imbued with
honesty. Honesty is the most important quality that an advocate should
possess. He follows a noble profession, which is not in the n a t u r e of a
trade. His thoughts, words a n d deeds should have sincere co-relation to
each other with their origin from genuineness. An advocate should be
dependable and reliable to everyone who seeks his advices and services.
Then only the clients will believe him with confidence. The uprightness,
integrity and honesty of an advocate will accelerate his reputability and
respectability. He m u s t be honest to the cause of his client which he is
espousing before the court. If he is not sincere enough in his effort, the
result would be disastrous. But the honesty of purpose has a
multipronged facet. He m u s t be honest to the cause of his clients. He
m u s t be sincere a n d honest to the court before he practices. Meaning
thereby, he can't deliberately mislead the court.
(B) Industry
Industry denotes the quality of hard working. This quality is
absolutely necessary on the part of an advocate. His knowledge of law
should be upto date. Law changes according to the changing needs of the
society. Changes of law are effected by a m e n d m e n t s of the existing laws,
new legislations and precedents. An advocate shall never be ignorant of
the current law in force. He should get acquainted with the present law
by systematic study a n d word directed to that object. This is the reason
for quoting Edison in relation to the talents of an advocate that "extra
ordinary talent is nothing but two per cent inspiration and ninety eight
per cent perspiration." If one ignores the law, the law is also apt to ignore
him. That is why it is said that "law is a jealous mistress." It requires
regular, constant and systematic care and attention. Lord Eldon
emphasized the need of hard work for a lawyer. He stated t h a t "a lawyer
m u s t live like a hermit and work like a horse." It requires regular,
constant and systematic care and attention. Lawyers will do well to
enshrine in their h e a r t s the well-known maxim, "Industry in fortune's
right-hand." Without industry the armoury of the advocate will lack
weapons on the day of battle.
(C) J u s t i c e
An advocate is an officer of the Court. He should help the judge in
finding out the t r u t h and arriving at the right decision. For this purpose,
he shall point out and submit the proper position of law, facts and
evidence in the case.
Truly speaking, he h a s to protect the interests of the client, but at
the same time he m u s t realize that he is not a mere mouthpiece of the
client. He should be fair to his clients b u t at the same time he should be
fair to the court a n d his predominant business m u s t be to advance the
cause of justice. The most remarkable words of Lord Chief Justice
Cockburn are t h a t the a r m s which a lawyer wields are to be the a r m s of
a warrior and not of the assassin, that his duty is to strive to accomplish
the interest of his client.
(D) Service
No profession can hope to exist in the world u n l e s s it serves the
real needs of the society. Employment in any walk of life, if rightly
understood, is a m e a n s to serve humanity and lawyers are to try their
level best to carry on their profession in a spirit of service to society.
Lawyers shall be willing to protect the defenceless and oppressed. They
shall render their best legal services to such needy litigants. Law and
144
(E) Philosophy
It is suggested that lawyers should have some philosophical
outlook. An advocate h a s to deal with a variety of h u m a n relations in
their conduct, disputes, rights and duties in different causes and
circumstances both favourable and unfavourable. As Plato h a s stated "all
evils of the world would end when lawyers become philosophers and
philosophers become lawyers."
It is, therefore, necessary that lawyers should be guided by some
philosophical principles suitable to his life and profession. The lawyers
should have required capacity and mental fitness to adjust and
accommodate changes. It is, therefore, necessary that lawyers should be
guided by some philosophical principles suitable to his life and
profession.
VI Rights of Lawyers
The m e m b e r s of legal profession, by virtue of law and usage, enjoy
certain rights and privileges. Rights and privileges of advocates in India
are not different from those of Barristers in England. There the advocate
h a s the rights of audience as an Advocate in all the superior and most of
148
the inferior courts. The advocate h a s the right to draw or prepare for or
in expectation of fee or reward i n s t r u m e n t s relating to real or personal
estate or any legal proceeding. Further the advocate h a s the right to
advise on questions of law. The advocate h a s the right of authenticating
by his n a m e the report of case decided in court.
In India too, the researcher find that the advocates have the
following rights provided by law and usage.
44 New India Insurance Company Ltd. v. A. K. Saxena 2003 (9) SCALE 531
154
Hence, they are looked upon a s the protectors and defenders of life,
liberty and property - off course at price. They are expected to act in
honest and upright manner because they have the privilege of
discharging all those duties which those who are not members, of the
legal profession cannot do. Mukherjee, J. in Emperor v. Rajani Kanta
Bose and others,'*^ h a s rightly observed t h a t "the practice of law is not a
b u s i n e s s open to all who wish to engage in it; it is a personal right or
privilege . . . it is the n a t u r e of a franchise from the state . . ." All rights
attached to the office of advocate by virtue of law and usage are in a
sense, his privileges,. The lawyer is given an absolute privilege and this
absolute privilege carried with it a special responsibility t h a t should not
be abused, "that you are a member of the legal profession is your
privilege; t h a t you and represent clients is your privilege; t h a t you can in
t h a t capacity claim audience in courts is your privilege. Yours is a n
exalted profession in which your privilege is your duty a n d your duty is
your privilege. They both coincide.'"^^ The lawyer have the privileges of
audience in the court and he can insist on his right to be heard without
any hindrance, so long a s he act decorously and with due respect to the
court.
It is pertinent to state here t h a t a two day national seminar on
"Privileges, Court Fee and Access to Justice" was held at Hyderabad on
11-12 December, 1982 u n d e r the joint auspices of the Bar Council of
India trust and the Bar Council of Andhra Pradesh. The seminar was
attended by over 300 lawyers from District and Taluka Bars of Andhra
Pradesh besides members of the Bar Council of India and representatives
of State Bar Councils was inaugurated by the then Vice-President of
India Hon'ble Mr. M. HidayatuUah. The speaker u n a n i m o u s l y felt t h a t
the subject was of p a r a m o u n t importance. In his inaugural address, Mr.
Hidayatullah stated that there was a duty owed by advocates to the court
on the one h a n d and their clientele on the other and pointed out that
their privileges did not extend beyond the ends of justice.
On the occasion Mr. Justice P. Rama Rao of the Andhra Pradesh
High Court said that "brilliant advocates contributed to correct
judgement. Advocates had unfettered right in the presentation of the
cases. Arrest of advocates and employment of force against them by the
executive are a sad situation." Learned Counsel F. S. Nariman said that
"law is a profession and not a business. One h a s to be efficient and
honest." He cautioned that mere honesty without efficiency was useless.
He deprecated boycott of courts. He pointed out t h a t advocates privileges
are service oriented." The speaker u n a n i m o u s l y felt t h a t the advocates
are limbs of the administration of justice. Any attempt to interfere with
the freedom of advocates constituted an act of contempt of court. There
was near unanimity on all the following points : (i) Freedom of advocacy
is the most important privilege and any attempt aimed at to curb it will
have to be deprecated; (ii) Amount the Bench and Bar there m u s t be an
element of mutuality in the matter of extending respect an courtesy; and
(iii) cases of professional misconduct have to be examined only by the
statutory Bar Council and should not rest with the courts.
There was difference of opinion surfaced at the seminar as to
whether the privileges of advocates should or should not be codified. The
question h a s been solved by a Joint Conference of Bar Council of India
with the State Bar Councils held at Bangalore on 25'^ and 26'^ February,
1984. "All the State Bar Councils were of the opinion that not only
privileges but rights and interests of the Advocates shall be considered
together according to sub-sections 6(l)(d) and 7(l)(d) of the Advocates
Act, 1961. These State Bar Councils were of the opinion that the
following privileges should be enjoyed by the advocates : (i) The freedom
of advocacy in the courts so long that advocate think it necessary for
pleading the case of his client; (ii) the judges should not interfere at the
157
(x) It is also the advocate's privilege, resulting from the credit due to
the honour and prestige of the profession, to make, on occasions,
statements from your place in the Bar and without being sworn. For
example, it appears sometimes in cases where advocate takes part in
162
50 AIR 1934 All. 1067; also see C. D. Sekkizhar v. Secy. Bar Council, AIR 1967 Mad.
35.
51 AIR 1962 SC 1337
52 Id. at 1340
166
The advocate was punished and was suspended from practice for
five years.
In a landmark case of Bar Council of Maharashtra v. M. V.
Dabholkar,^^ allegation of misconduct against over a dozen advocates
according to the testimony recorded by the State Disciplinary Committee
were t h a t the respondents positioned themselves at the entrance of the
Magistrate's Court, watchful of the arrival of potential litigants. They
snatched away briefs from litigant, fought with each other and even tore
cloths in grim competition, and in various ways showed grave
misconducts in soliciting business. The matters were taken u p in appeal
before the Supreme Court and were considered together. V. R. Krishna
Iyer, J., on behalf of himself and three other J u d g e s (R. S. Sarkaria, A. C.
G u p t a a n d S. Murtaza Fazal Ali, J J ) on the Bench observed "with deep
sorrow" t h a t a lawyer should scrupulously observe the n o r m s of
professional conduct and etiquette provided in Rule 36 of the Bar
Council of India Rules made in this behalf and be worthy of the
confidence of the community and not behave with doubtful scruples and
strive to thrive on litigation. The court also regretted the low standard of
enquiry conducted by the State Council prolonged for 8 years by
clubbing together 16 cases and trying them together though the charges
in each case were different and by misconstruing Rules 36 (which
prohibits soliciting work by circulars, advertisement, touts, etc.) a s
rendering advocates amenable to disciplinary jurisdiction of they have :
(i) solicited work (ii) from a particular person (iii) with respect to a case,
and holding that "mere attempts to solicit is nothing." Considering fully
well, the available evidence, circumstances, assurances, undertakings
and unconditional regrets in each case separately, their Lordship took a
lenient and sympathetic view against the respondents. Justice V. R.
Krishna Iyer noted for his unconventional approach and iconoclastic
This restriction shall last for such period a s the Bar Council directs from
time to time. Hence, restriction on other employment h a s been imposed
with a view that the advocate should devote his whole time and energy to
the learned profession of law which affords vast opportunities for service,
and he should not join vocations in which the principles of conduct may
be contrary to the rules of etiquette at the Bar and there is a possibility
of ethical s t a n d a r d s of the Bar getting lowered by the simultaneous
p u r s u i t s of collateral occupation. The Supreme Court in Haniraj L.
Chulani v. Bar Council of Maharashtra and Goa,^^ h a s observed t h a t
legal profession requires full time attention and would not countenance
an advocate riding two horses or more at a time. The Court further said
t h a t such a restriction is for ensuring the full time attention of law
practitioners toward their profession a n d with a view to bringing out
their best so t h a t they can fulfill their role as an officer of the court and
give their best in the administration of justice.
In Satish Kumar Sharma v. Bar Council of H. P.,^^ a three
J u d g e s Bench of the Supreme Court speaking through Justice Shivraj V.
Patil held that a law graduate working a s a full time salaried employee in
any organization cannot continue a s a n advocate on the rolls of a State
Bar council. The court, in the instant case upheld the decision of the Bar
Council of Himachal Pradesh withdrawing the enrolment of one Satish
Kumar Sharma, who joined the H. P. State Electricity Board as an
Assistant (Legal) and who was later promoted a s Deputy Secretary
(Legal)-cum-Law Officer on adhoc basis. The court observed t h a t the
profession of law is called a noble profession and it does not remain,
noble merely by calling it a s such u n l e s s there is a continued,
corresponding and expected performance of a noble profession. Its
nobility h a s to be preserved, protected and promoted. An institution
cannot survive in its n a m e or on its past glory alone.
55 (1996) 3 s e c 342
56 (2001) 2 s e c 365; AIR 2001 SC 509
170
(iv) Advocate cannot buy or contract for any share off interest in an
actionable claim
conscience, for the honour and good n a m e of the profession, for the
protection of the client and other concerned with litigation and for the
welfare of the general public.
A lawyer is at times faced with considerable difficulty in
determining what is right or what is wrong in matters of professional
conduct. It is crystal clear that there is not settled traditions as yet,
which may guide the younger e n t r a n t s . The researcher find that there
are n u m e r o u s temptations in the path to swerve from the line of integrity
in which so m a n y delicate and difficult questions of duty are constantly
arising.57 There are n u m b e r of pitfalls a n d m a n t r a p s at the very step,
and the young lawyer at the outset of his career, needs often, the
prudence and self-denial, a s well as the moral courage which belong to
riper years. Knowledge of legal ethics will inspire respect for its ideals.
Knowledge of high ideals of Bar will create in young advocates
satisfaction and pride in his calling.^s
Generally speaking the profession being a noble profession, a
profession of learned persons, noble persons and one would be expected
that the knowledge of these ethics m u s t have been inculcated in them
m u c h before they enter the legal profession. But that ideal situation h a s
never arisen, nor it would arise. The researcher finds t h a t in the present
times lawyers do not come from aristocratic background a s they did
before independence. They are comparable with businessmen of various
sorts who rub shoulders with clients belonging to different sections of
society. However, the top ranking lawyers derive power mainly from their
professional esteem and income. The lawyers at middle a n d lower level
derive power from their hard work, sincerity and professional knowledge.
It is also a fact that some of the lawyers are mediocre, but enjoy power
due to their connections with some professional dons and persons in
57 A. S. Khan Afridi, "Legal Ethics : Traditions and Perspectives," Indian Bar Review,
Vol. 13 (1986), p. 79 at 83
58 Ibid.
174
roll of the respective State Bars. Out of the elected m e m b e r s by the State
Bar Council one is sent to Bar Council of India. These m e m b e r s are
entrusted with the task of disciplining the individual m e m b e r s of the
legal profession. The Councils are also entrusted with the job of
protecting the rights, interests and privileges of the m e m b e r s of the legal
profession u n d e r Sections 6(l)(d) and 7(l)(d) of the Advocates Act, 1961.
It becomes very tricky job to enforce the sanctions for deviance in
professional conduct. Some soft corner does develop among the m e m b e r s
of the Bar Councils to the members of legal profession. There, do come
certain areas, when the two roles, the Bar Councils are entrusted to play,
come into conflict with one another and pull in different directions, if not
in the opposite directions. Such situations are bound to result in
leniency in the enforcement of the legal ethics.
The Bar Councils may be impeded to effectively perform the role of
adjudicatory bodies. The researcher in the following pages tried to
analyse the reported cases of professional deviance and the verdict given
by the Bar Councils or the Bar Council of India.^i
61 Similar kind of analysis h a s also been made by Professor Upendra Baxi in the
"Pathology of the Indian Legal Profession" reported in Indian Bar Review 1986, Vol.
13, p. 455 at 457. The analysis h a s been made between 1979-1989.
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Meaning of Misconduct
Legal Provisions
It is not doubtful that unless and until there is enforcement
machinery, the canons of conduct for disciplining lawyers are fruitless.
The enforcement of regulatory controls for the legal profession may be
divided into many categories : (i) Disciplinary controls (traditional self-
regulation); (ii) liability controls (negligence etc.); (iii) Institutional
controls (enforced by courts and state administrative agencies on lawyers
who practice before them); and (iv) Legislative controls (enforced by a
special independent regulator or commission or even by the
Government). The foregoing study concentrates on the question whether
self-regulation through the disciplinary Committees of the Bar Councils
is sufficient to meet the public policy goals.
63 Prior to the Advocates Act, 1961, the Indian Bar Councils Act, 1926 was in force.
64 Id; Section 10
65 Id; Section 11
66 Id; Sections 35 and 36
197
67 The Kerala High Court Rules, Rule 11 : whereby a n advocate who h a s been
punished for contempt of court is prohibited from practicing unless he h a s
purged himself of the contempt.
198
holds the reigns, the two opponent counsel are the wheels of the
chariot. While the direction of the movement is controlled by the
judge holding the reigns, the movement itself is facilitated by
the wheels without which the chariot of justice may not move
and may even collapse. Mutual confidence in the discharge of
duties and cordial relations between Bench and Bar smoothen
the movement of the chariot. As responsible officer of the court,
as they are called - and rightly, the counsel have an overall
obligation of assisting the courts in a j u s t and proper m a n n e r in
a just and proper administration of justice. Zeal and
enthusiasm are the traits of success in profession but
overzealousness a n d misguided e n t h u s i a s m have no place in
the personality of a professional.
(ii) A counsel, in his zeal to earn success for a client, need not step
over the well-defined limits or propriety, repute and j u s t n e s s .
Independence and fearlessness are not licences of liberty to do
an)^hing in the court and to earn success to a client whatever
be the cost and whatever be the sacrifice of professional n o r m s .
(iii) A lawyer m u s t not hesitate in telling the court the correct
position of law when it is undisputed and admits of no
exception. A view of the law settled by the ruling of a superior
court or a binding precedent even if it does not serve the cause
of his client, must be brought to the notice of court
unhesitatingly. This obligation of a counsel flows from the
confidence reposed by the court in the counsel appearing for
any of the two sides. A counsel, being an office of court, shall
apprise the judge with the correct position of law whether for or
against either party.
(iv) A charge of misconduct is a serious matter for a practicing
advocate. Therefore, an allegation of misconduct h a s to be
proved to the hilt. The evidence adduced should enable a
200
73 (1997) 1 s e c 100
74 (1995) Suppl. 3 s e c 717
75 (1994) 2 s e e 64; AIR 1994 SC 975
76 (2003) 9 SCALE 531
202
objection' and sign on the file, and then he h a s to handover the file to the
concerned client. If an advocate withdraws from the appearance V i t h o u t
giving any notice' to the client, it will certainly a m o u n t to 'professional
misconduct'.
While disposing Tahil Ram Isardas Sadarangani v. Ramchand
Issardas Sadarangani,'^^ the Supreme Court held, "the legal profession is
degrading decade by decade. The general impression which the
profession gives today is t h a t the element of service is disappearing and
the profession is being commercialised. It is for the m e m b e r s of the Bar
to act and take positive steps to remove this impression before it is too
late."
In D. S. Dalai v. State Bank of India,^^ appellant advocate and
his friend advocate established a firm of advocates. State Bank of India
appointed t h e m a s their standing counsel. In one occasion the b a n k
entrusted a case, a n d also handed over the necessary fees amounting to
Rs. 11,475 a n d connected records of the firm. One of the advocates of the
firm h a d filed the case. It was returned by the Court pointing out certain
defects a n d with instructions to correct them and then file. The appellant
received the file duly acknowledging in the court records. Neither he nor
his friend corrected the defects and informed the same to the bank.
After some time the b a n k authorities came to know this. Bank
authorities cancelled their vakalatnama and appointed another advocate
for t h a t case. Further they filed a complaint to the State Bar Council
against the Firm of Advocates.
After enquiry, the Disciplinary Committee gave decision that
m e m b e r s of the firm did professional misconduct, and thereby ordered
for the removal of their n a m e s from the Roll of State Bar Council. They
appealed to the Supreme Court. The Supreme Court upheld the decision
of the Disciplinary Committee.
the Bar Library solicited and secured work for themselves; such
conducts are serious misconduct.^'*
(ix) An advocate was charged t h a t in a trial for rape he attempted to
put to the prosecutrix some indecent and unnecessary
questions which were disallowed by the court. On appeal the
Supreme Court held t h a t the advocate exceeded his privilege to
some extent. The advocate was let off with a warning. ^^
(x) The failure to a pleader to appear to conduct the case before he
h a s discharged himself in the m a n n e r prescribed by law unless
such an act can be justified, renders him liable to disciplinary
action. The advocate cannot justify for his action of his absence
on the ground t h a t his presence at the time of recording the
statement of the accused was not necessary. This action is not
mere negligence b u t dereliction of or deviation from duty. The
absence of necessary remuneration does not absolve the legal
adviser from his obligation u n l e s s the matter is brought to the
notice of the client.^^
(xi) An advocate filed a writ petition, knowingly suppressing the fact
that earlier and identical writ petition was dismissed before
another Bench. Conduct of the advocate deserves stern
condemnation. The matter was referred to the State Bar Council
for disciplinary action.^"^
(xii) Advocate retaining client's money inspite of d e m a n d s of guilty of
misconduct.5^
(xiii) An advocate not returning the will which was entrusted to his
custody by his client (the testatrix), despite d e m a n d s from the
the Bar Council of India based on the subsequent event of the telephone
booth having been surrendered. Vide order dated 2 6 . 8 . 2 0 0 1 , the Bar
Council of India h a s rejected the petition for review on the ground that
the same was barred by time. As against the order dated 26.8.2001 the
appellant h a s filed appeal by special leave. As against the order dated
31.3.2001 the appellant h a s filed a statutory appeal u n d e r Section 38 of
the Advocates Act, 1961 and also a n appeal by special leave. The
Supreme Court after due examination set aside the orders of the Bar
Council and restored the enrolment of the advocate.
In Re: Bineet Kumar Singh.no while dealing with a case dealing
with the case of false or misleading or a wrong statement deliberately and
willfully made by the advocate the Supreme Court held a s under:
"....The sole object of the court wielding its power to p u n i s h for
contempt is always for the course of administration of justice. Nothing
is more incumbent upon the courts of justice t h a n to preserve their
proceedings from being misrepresented, nor is there an5Athing more
pernicious when the order of the court is forged a n d produced to gain
u n d u e advantage. Criminal contempt h a s been defined in Section 2(c) to
mean interference with the administration of justice in any manner. A
false or misleading or a wrong statement deliberately and willfully made
by a party to the proceedings to obtain a favourable order would
undoubtedly t a n t a m o u n t to interference with the due course of judicial
proceedings. When a person is found to have utilised an order of a court
which he or she knows to be incorrect for conferring benefit on persons
who are not entitled to the same, the very utilisation of the fabricated
order by the person concerned would be sufficient to hold h i m / h e r guilty
of contempt, irrespective of the fact whether he or she himself or herself
is the author of fabrication "
112 (1998) 4 s e c 409 (1998 AIR SCW 1706 : AIR 1998 SC 1995)
219
114 J T 2 0 0 9 (10) SC 1; (2010) 5MLJ 1377 (SC); 2009 (10) SCALE 164; (2009) 8 SCC
106
222
The Supreme Court in the case observed that "every High Court
should have rules framed u n d e r section 34 of the Advocates Act in order
to meet with such eventualities b u t even in the absence of the Rule the
High Court cannot be held to be helpless against such threats. In a
matter a s fundamental and grave as preserving the purity of judicial
proceedings, the High Court would be free to exercise the powers vested
in it u n d e r section 34 of the Advocates Act notwithstanding the fact that
Rules prescribing the m a n n e r of exercise of power have not been framed.
But in the absence of statutory Rules providing for such a course an
advocate facing the charge of contempt would normally think of only the
p u n i s h m e n t s specified u n d e r section 12 of the Contempt of Courts Act.
He may not even imagine that at the end of the proceeding he might end
u p being debarred from appearing before the court. The rules of n a t u r a l
justice, therefore, demand that before passing an order debarring an
advocate from appearing in courts he m u s t be clearly told t h a t his
alleged conduct or actions are such that if found guilty he might be
debarred from appearing in courts for a specific period. The warning may
be given in the initial notice of contempt issued u n d e r section 14 or
section 17 (as the case may be) of the Contempt of Courts Act. Or such a
notice may be given after the proceedee is held guilty of criminal
contempt before dealing with the question of punishment."
In Supreme Court Bar Association v. Union of
India, 115 regarding professional misconduct the Supreme Court observed
and held as under:
"In a given case, an advocate found guilty of committing contempt
of court may also be guilty of committing "professional misconduct",
depending upon the gravity or n a t u r e of his contumacious conduct, b u t
the two jurisdictions are separate and distinct and exercisable by
different forums by following separate and distinct procedures. The
115 (1998) 4 S S C 4 0 9
224
118 In re Jivan Lai Desai, AIR 1920 Bom 168; In the matter of a Second Grade Pleader
of R a m a c h a n d r a Nagar, AIR 1924 Mad 129; Emperor v. Rajani Kanta Bose, AIR
1922 Cal 515; and Emperor v. Kishori Mai, AIR 1923 Cal 853.
227
(B) Issues relating to one section of the bar and another section:
(i) Withdrawal of jurisdiction and conferring it to other courts
(both pecuniary and territorial)
(ii) Constitution of Benches of High Courts. Disputes between
the competing District and other Bar Associations.
(C) Issues involving dignity, integrity, independence of the Bar and
Judiciary.
(d) Legislation without consultation with the Bar Councils
(E) National issues and regional issues affecting the public at large.
On July 25, 2003 t h o u s a n d s of litigants h a d to r e t u r n home
without their cases heard at Delhi High Court a s their lawyers abstained
from Courts in protest against e n h a n c e m e n t of the pecuniary jurisdiction
of High Court from Rs. 5 lakhs to Rs. 20 lakhs. The call for abstaining
from courts was given by the Delhi High Court bar Association in protest
against the Union Government's J u l y 16, notification enhancing the
pecuniary jurisdiction of the High Court. Following the increase in the
pecuniary jurisdiction, t h o u s a n d s of civil cases of the value of upto Rs.
20 lakhs will now had to be transferred to three lower courts - Tis hazari,
Patiala House and Karkardooma. i ^^ Further, the lawyers have protested
against the Delhi Government's move of setting u p for Permanent Lok
Adalats in the capital, the Bar Associations at Patiala House, a n d Tis
Hazari announced one day strike, ^^o fj-^g Vice-President (Civil, Delhi Bar
Association h a s said that the provision of the Lok Adalats are being
grossly misused by Magistrate to get an extra unit. The fact is that the
cases that go to the Lok Adalat can be compounded and decided by the
121 Ibid.
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122 Hindustan Times, March 9, 1988, also see Times of India, March 8, 1988
123 Times of India, March 8, 1988
124 Ibid
243
125 Asha S. Joshi, 'Lawyers Strike - Abortive Quest for Dignity', 3 Lex Et Juris 30
(1988)
126 P. P. Rao, "Boycott of Courts by Lawyers" in K. Gururaja Chari, Advocacy and
Professional Ethics, 699 (2000)
127 Upendra Baxi, "Professional Terrorism : Lawyers Strike," Lex Et Juris, August
1986, pp. 10-11
244
130 Atul Shetalvad, "Courts Boycotts : Are they Proper?" Lex Ext Juris, April 1987,
p. 13
246
rules. These are not exhaustive also. No mention of any rule, which is
equally imperative does not mean, that it is not applicable to advocates.
The Preamble of the Chapter on S t a n d a r d s of Professional Conduct and
Etiquette clearly mention this: "an advocate shall, at all times, comfort
himself in a m a n n e r befitting his s t a t u s a s an officer of the court, a
privileged member of the community, a n d 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, a
lawyer owes duty to client to defend his case fearlessly in the court and
simultaneously, he m u s t bear in mind that the dignity of the judicial
office is essential for the survival of a free community. In India, the
counsel's relations with his client are primarily a matter of contract. The
relation is in n a t u r e of agent and principal. In other words, the advocate
enters into a contract with a client on payment of fee to defend his
client's case. An advocate occupies a position of t r u s t in relation to his
client. He is to protect the interest of his client. The relation between
them is highly fiduciary in its n a t u r e , and of a very delicate, exacting and
confidential character requiring a high degree of fidelity a n d good faith.
An advocate is not permitted to withdraw from an engagement once he
h a s accepted without sufficient notice is given to the client. Absence of
Advocate from the court without informing the client, on the ground that
members of the Bar decided to stay away from appearing in court,
a m o u n t s to negligence to duty towards the client. There is no legal
sanctity behind the resolution passed by the Bar Association calling
upon the lawyers to abstain from appearing in court. Lawyers have been
granted right of audience in courts u n d e r the Advocates Act and to
conduct cases of their clients on getting remuneration for the same. If
they consciously, intentionally and deliberately abstain from conducting
the cases in the courts on behalf of the clients, they would be committing
248
concerned. The court added that the litigant who suffers entirely on
account of his advocate's non-appearance in court, he h a s also the
remedy to sue the Advocate for damages.
This judgement of the Supreme Court is a milestone and clear
m a n d a t e in the matter and the subordinate judiciary in case of lawyers
strike h a s now no option b u t to proceed with the case u n l e s s there are
some cogent and justifiable reasons to adjom the case.
Five-members Constitution bench of the Supreme Court in Ex
Capt. Harish Uppal v. Union of India, i'^'* h a s expressed serious concern
a n d anguish over lawyers going on strike in different p a r t s of the country
and held that strike by lawyers are illegal and they have no right to go on
strike or give a call for boycott, not even on a token strike. The protest, if
any is required, can only be by giving p r e s s statements, T. V. interviews,
carrying out on court premises b a n n e r s a n d / o r placards, wearing black
or white or any colour arm b a n d s , peaceful protest m a r c h e s outside and
away from court premises, going on dhamas or rally, fast etc. It is held
t h a t lawyers holding vakalats on behalf of their clients cannot attend
courts in p u r s u a n c e to a call for strike or boycott. All lawyers m u s t
boldly refuse to abide by any call for strike or boycott. No lawyer can be
visited with any adverse consequences by the Association or the Council
a n d no threat or coercion of any n a t u r e including that of expulsion can
be held out. It is held that no Bar Council or bar Association can permit
calling of a meeting for purpose of considering a call for strike or boycott
and requisition, if any, fur such meeting m u s t be ignored. But this
prohibition is not absolute. In the rarest of rare cases where the dignity,
integrity and independence of the Bar or the Bench are at stake, court
may ignore (turn blind eye) to a protect abstention from work for not
more t h a n one day is permissible. In such cases the President of the bar
144 2002 (9) SCALE 357 (the Five member Constitution Bench comprised of Justice
G.B. Pattanaik,. Justice M. B. Sood, Justice Doraiswamy Raju, Justice S. N.
Variava and J u s t i c e D. M. Dharmadhikari).
252
grievances of the District Bar Association in the matter does not fall in
the exception to the general rule as indicated by the Supreme Court in
the case of Ex-Capt. Harish Uppal v. Union of India and others, 2003(2)
s e c 45. The action is contrary to the dictum of the Supreme Court a s
indicated in para 35 of the judgment in the case of Ex-Capt. Harish
Uppal (supra). Petitioner also points out that the Court h a s already taken
cognizance of the original prayer made in this writ petition a n d inspite of
notice again a call for strike is given. The Supreme Court observed that,
"the action of the Bar Associations being in violation to the law laid down
by the Supreme Court, the same prima facie a m o u n t s to contempt of
Court, violation of Supreme Court m a n d a t e and a case for taking action
against the office bearers. Not only they are rendered themselves liable to
be proceeded against for contempt b u t also to pay the cost a n d daraiages
to the litigants, who have suffered because of non hearing of their cases
today. However, the principles of n a t u r a l justice and process of law
requires t h a t before taking any action as indicated by u s herein above,
the law m a n d a t e s u s to issue notice to all concerned a n d thereafter
proceed in accordance with law. Accordingly, we direct the office to issue
notice to all the office bearers of M.P. High Court Bar Association and the
District Bar Association, along with a copy of this order directing t h e m to
show cause a s to why action a s contemplated by the Supreme Court in
the case of Ex-Capt. Harish Uppal (supra) should not be taken against
them. That apart, a copy of the order be also forwarded to the Chairman
of M.P. State Bar Council and the Chairman of Bar Council of India
asking them to show cause on the next date and to indicate as to why
further action should not be taken as prayed for by the petitioners in the
matter of frequent call for boycott being given by the Bar Association in
the State of M.P. and any action to be taken for restraining them and
prohibiting them from doing so. The case is yet to be decided by the
HonTDle Supreme Court.
255
Constitutional Protection
The Constitution of India recognized the importance of advocates
in protecting the life and liberties of individuals. The fundamental right
to be defended by a legal practitioner is one's choice guaranteed u n d e r
Article 22(1) is a clear testimony to this. But the important point is that
whether the Constitution provides any safeguards to an accused person,
so far a s criminal jurisprudence is concerned. When a lawyer is engaged
by an accused person, in concert with others, boycotts the court a n d
adds to his misery by his increased incarceration. The Constitution of
India appears to be silent on this. But the Constitution a s prescribed and
inerpreted by the apex Court of the land does show some hope. There is
no fundamental rights, righter u n d e r Article 21 of the Constitution,
which permits or authorizes a lawyer to abstain from appearing in court
in a case in which he holds a vakalat for a party in t h a t case. On the
other hand, a litigant h a s a fundamental right of speedy trial of his case,
because, speedy trial, a s held by the Supreme Court in Hussainara
Khatoon v. Home Secretary, State of Bihar, I'^s is an integral part of
the fundamental right to life and liberty enshrined in Article 21 of the
Constitution. Strike by lawyers will infringe the above mentioned
fundamental right of the litigants a n d such infringement cannot be
permitted. Assuming that the lawyers are trying to convey heir feelings of
sentiments and ideas through the strike in exercise of their fundamental
right to freedom of speech and expression guaranteed by Article 19(1)(a)
of the Constitution. It is crystal clear t h a t the exercise of the right u n d e r
Article 19(1)(a) will come to an end when such exercise threatens to
infringe the fundamental right of another. Such a limitation is inherent
in the exercise of the right u n d e r Article 19(1)(a). Hence, the lawyers
cannot go on strike infringing the fundamental right of the litigants for
speedy trial. The right to practice any profession or to carry on any
XIII Sum-Up
The foregoing study leads the researcher to conclude t h a t all is not
well with the enforcement machinery for the legal ethics. It h a s definitely
fallen in public esteem. The time h a s come when legal profession m u s t
think of active involvement of talents from other disciplines and
participative cooperation from the c o n s u m e r s of justice to help the legal
profession to tide over its problem, which are not exclusively legal, but
are the product of complex modern realities. Such a change does not
necessarily require the law reforms as condition precedent. There is a
need to t u n e ourselves according to the system with dynamism and with
a foresight on the future.
The study reveals that the Advocates Act, 1961 is not free from
infirmities. It contains major defects and contradictory provisions which
require immediate amendment. For example, the Bar Council of India is
given power to receive a complaint about an advocate whose n a m e is not
entered on any state rolls. But such a person is not an advocate a s per
Section 2(1)(a) of the Act and is outside the disciplinary jurisdiction of
the Bar Council. The ignorance of the public regarding the duties of
advocates and the indifference and fear of the clients have only
contributed to taking the system further away from the people and to
deterioration of the standard of performance of the advocates. It is only
when the public become aware of their legal rights and d e m a n d better
performance from the advocates that we can even think of raising the
standard of the legal profession and transforming it into an i n s t r u m e n t of
justice.
The foregoing study further indicates t h a t frequent and prolonged
strikes by lawyers directly hit the public interest, the people's faith or
confidence in the administration and last but not the least, the legal
profession itself The abstention of courts should be a desperate step of
last resort, even if justified. The legal implications of abstention of
lawyers is that it is reprehensible for an advocate a s an officer of the
259
is that lawyers should abstain from such strikes. Strike is never a good
solution in any profession. When a lawyer resorts to strike he commits
the greatest injustice towards his client who sets all his hopes upon him
to get justice. He commits injustice to the court t h a t expects him to be
vigilant in administration of justice. But above all, he commits the
greatest injustice to the legal profession that expects him to take it to a
more reputed and high attitude.