Importance Of Ethics In Legal Profession : Lecture By Justice AS Oka

Supreme Court judge Justice Abhay S Oka delivered a lecture on the topic "Importance of Ethics In Legal Profession" as part of the Second Annual Lecture organized by the Advocates Association of Western India at Bombay High Court on December 4.

The excerpts from his lecture given below :

Rules Of Professional Ethics

As far as rules of professional ethics are concerned, the emphasis is on: (1) Integrity, (2)Objectivity, (3)Professional Competence, (4) Confidentiality and (5) Due Care.

Another basic principle is that an advocate must behave in a dignified manner not only inside but also outside the court. When I say dignified manner, it includes conduct with self respect. Ultimately ethics is all about duties & obligations of members of the bar.

If you look at the rules of professional ethics by Bar Associations and specifically bar associations abroad, you'll find that there's no conceptual difference. This lecture gave me the opportunity to go through the rules framed by bar associations of various nations.

I found that the core of conduct formulated by the law society of Western Australia, in the form of Legal Profession Conduct Rules, 2010, were very different and interesting.

The society has given a summary of principles of professional ethics for lawyers in the form of some kind of oath. I want to quote that.

It says, "We acknowledge the rule of our profession in serving our community in the administration of justice. We recognise that law should protect the rights and freedoms of members of society. We understand that we are responsible to our community to observe high standards of conduct and behaviour & when we perform our duties to our court, our clients, fellow practitioners our conduct should reflect the character we aspire to have in our profession. This means that as individuals engaged in this profession, we primarily serve the interest of justice. We act competently & diligently in the service of our clients. We advance our client's interest above our own. We act confidentially and in the protection of all our client information. We act together for the mutual benefit of our profession & avoid the conflict of interest & duties. We observe strictly our duties of the court to which we are officers to ensure proper and efficient administration of justice. We seek to maintain the highest standard of integrity & honesty in all our dealings. We charge fairly for our work. We observe faithfully our code of ethical conduct."

Discussion On Fair Charge By The Lawyers

Perhaps, the last clause is very important. We charge fairly for our work. Now what is fair may differ from lawyers in Bombay and Delhi. The amount is different in the lawyers practicing in our States and it's a matter of debate as to what should be the fair charge of an advocate because I agree with this. To charge fairly is also an integral part of professional ethics.  Now what is fair charge should be left for debate to the members of the bar but a very interesting thing I remember.

3 or 4 decades back, a very prominent district court bar association in the State passed a very peculiar resolution. That resolution prescribed what should be a lawyer charging as a minimum standards of fee. What should be a lawyer charging for filing a rent application under the old Rent Act. So the bar association went to the extent of describing minimum fee because there was cut throat competition. Of course, now there's sea change in the legal profession & has become one of the most lucrative professions.

First and Foremost duty of Advocate to follow the philosophy of Constitution

I just want to summarize what I want to say today is that according to me additional rules of ethics which every member of the bar must follow. Perhaps those rules may not exactly find a place in the rules of ethics that are already in existence in those words.

The first & foremost is to follow the philosophy of our constitution. It is the duty of the members of our bar to collectively take a stand. When you see violation of constitutional philosophy and provisions, it is the duty of the members of the bar to not only support but to say what is right.

The second is to do legal aid and pro bono work.

The third is to maintain dignified work not only while conducting the cases but also outside the court. This one has been specifically incorporated in the rules framed by the Bar Council.

The last is, "It is the duty of the advocate to save time of the court as time of the court is very precious."

In the last week there were nationwide celebrations for celebrating Constitution Day. On 26th Nov, 1949 Constituent Assembly passed a resolution approving the draft of the Constitution. The draft of the Constitution was prepared within a time of 2 years 11 months & 17 days. All of us know that within a short time the Assembly gave us the best doc of the world. If you look at the composition of the Constituent Assembly, it was dominated by lawyers & many of them were having close connections with the field of law. If you look at our freedom fighters, many of them were lawyers & some of them had given their lucrative practice. Some of them had joined the freedom struggle by giving a possibility of developing lucrative practice. Therefore the members of the legal fraternity have given a very important role in giving the Constitution & freedom to our nation. It becomes the paramount duty of the legal fraternity to zealously guard what is given to us by the Constitution & to ensure that Constitutional Philosophy is respected by all. That's why I always say that members of the bar must support what is right and what is always correct. It is very difficult to spell out as to what is correct.

I was told by one of my colleagues in Karnataka High Court that when CJI Justice Venkatachaliah was sworn in, after the ceremony was over one of the senior cabinet ministers of Central govt told him that CJ we should ensure that there should be cordial relationship between government & judiciary. The quick response of Justice Venkatachaliah was that I disagree. It cannot be a cordial relationship but it has to be a CORRECT relationship. So the world correct has a great meaning. When I say that the lawyer should stand constitutional values, I must say that this very bar has taken a very strong stand for protecting the judiciary which is created by the Constitution & independence of the judiciary is the basic structure of the Constitution.

I'll share one such incident when the stand was taken by AAWI. In 1990 a special general meeting was convened in this very hall & the bar association passed a resolution expressing reservation about 4 sitting judges of this court. So this bar endeavoured to say very loudly as to what is right. As a junior member of the bar I witnessed the proceedings and all I did was raise my hand to support the resolution.

This is not the only occasion when AAWI has stood firmly to support the ideals of the Constitution & I can cite various instances. The members of the bar on several occasions have taken up the cause for access to justice. One imp example I'll share.. It is the collective efforts of the members of the bar and social workers that resulted in the constitution of Aurangabad Bench of this HC. I request the younger members of the bar to read the books available on the formation of the Aurangabad Bench. It was one of the most historic moments & there's a lot of history. After the decision was taken by Justice Deshpande, one journalist challenged it on the judicial side and the Division Bench of this court said that the decision of CJ was illegal. Ultimately the SC set that right by relying on the Nagpur Pact but the major credit for establishment of the bench at Aurangabad must go to the members of the bar who were very active. There are other instances where I can say that the members of the bar (of our state) took a very firm stand for upholding the Constitutional Values, however I find that though the members are capable of taking a very strong stand.

Worrying Trend Of Resolutions By Bar Association To Not Appear For An Accused

What is worrying is on many occasions there is not only failure to take the stand but some members act contrary to constitutional philosophy or principles.

One such instance I'll give resolution passed by many bar associations that no member of the bar shall appear for a particular accused. Unfortunately there are many such instances & I can share one from Karnataka.

There was an FIR filed against young student allegations that she was involved in anti national activities and many sections were applied. A very active & prominent bar not only passed a resolution that no member should represent that young student but when some lawyers from Bangalore attempted to file bail petition, they were physically prevented from entering that court premises. So I had to take it up on the judicial side while I was sitting in Court hall 1 in Karnataka High Court and pass an order that lawyers who intended to file bail petitions on behalf of that girl should be given full protection from the point they enter the city & come back. I must say that the Learned Advocate General of the state intervened and ensured that the bar passed a unanimous resolution withdrawing the earlier resolution & the matter ended there.

Another instance is that a PIL was filed and that PIL was based on a notice on a notice board in one of the district bar associations, that notice said, "Members of the bar should not appear for accused in a particular case." So immediately we issued a notice. Maybe the members of the bar knew the view of the court & on the very first day they were represented by a ld counsel. They took a very peculiar stand that they had not passed the resolution & we'll conduct an enquiry as to why such notice was put up though there was no such resolution so the matter ended like that.

In my junior days when I started practicing, a reverse situation arose where an eminent member of the bar accepted a brief of an accused who was in a trial for offence u/s 376. Members of one organization barged into the bar room & physically assaulted that lawyer. Unfortunately that led to a boycott of courts by the lawyers. I remember this event was widely reported.

But what I personally feel is that in view of the 2011 judgement of Justice Katju, ANY SUCH RESOLUTION PASSED BY BAR ASSOCIATION IS COMPLETELY ILLEGAL as it infringes right of accused to get legal aid which is under art 21 of the Constitution of India.

This is one area where I find that rules of ethics must be amended. Of Course, there is one rule which says that you cannot refuse a brief and what are the reasons for which they can be refused is also mentioned.

But collectively, as bar association it should be emphasised that it is duty of members of the bar to not pass such resolution but to ensure that everybody who has the right to defend himself is defended by some competent member of the bar.

Advocates Should Shun Court Boycotts

Another area where we need to have rules of ethics. All of you have read that Supreme Court has held that act of boycotting the Courts is nothing less than criminal contempt. In fact directions have been given to the HC to frame rules etc & rules have been framed. Bombay HC has also framed, but unfortunately even today there are instances where members of the bar abstain from the court work for various reasons. Reasons which are not connected with the judiciary. After I assumed the post of CJ of Karnataka HC I was told that resolutions are passed at the drop of hat and courts are boycotted so I made a personal appeal in writing to each & every bar association of the state. I referred to the judgement of the SC & requested them not to use this weapon.

After the first wave was over, I made 1 more appeal referring to the plight of Advs & requested to not boycott the courts.

I can share with you as CJ. I used to go to Taluka Court and had gone to some remote areas of Bidar District, some taluka places, the situation of lawyers was so bad that ration kits had to be given to some members of the bar. I used to go to some Taluka court and young lawyers used to meet me and say that they were starving and that they only had an option of going back to the villages and start doing agricultural activities. So I appealed to the members of the bar not to go on strike. Unfortunately 2/3 bar associations continued to go on strike for various reasons which were not germane to the judiciary & had to take steps to issue suo moto contempt notice to all the bar associations. Fortunately the members of the bar who represented the associations prevailed upon the bar and gave an undertaking that they would not take recourse to this kind of activity.

I remember, 1 senior member of the bar said that after the matter was over, everyone accepted and tendered the apology that they had committed wrong. He said that he got hold of orders that we passed in Bombay HC where they suo moto contempt notices have been issued, to 6 bar associations who were boycotting the courts for a long time for establishment of bench at Kolhapur. I was heading the bench there too, so the moment lawyers gave an undertaking the matter was closed. So he said that I used those orders to convince members of the bar that once you tender an apology CJ will not pose any danger & we'll all be free citizens.

But, the problem is with all judgement of SC, why should the problem arise. I appeal to the members of the bar, now we have a very good opportunity to analyse the National Judicial Data Grid. Please study NJDG, even when the court remains closed on 1 day the arrears multiply and ultimately we have to remember that we all exist for the common man. It is litigant as class which suffers if you take recourse to boycotting the courts. Advs who practice on the civil and district side of Taluka and HC get long vacations, I still wonder after getting so many vacations why do they feel like boycotting the courts.

Judiciary And Vacations

Judiciary is being criticised for taking long vacations. Some of my colleagues who are sitting here know my view on vacations & unfortunately, during the last 18 years I was always in the minority on my views on vacations.

Karnataka High Court was the 1st High Court to forgo the summer vacation in 2020 because we wanted to continue by using VC & it was a unanimous decision taken in full court. I could prevail upon my colleagues to curtail Dussehra vacations last year. But everyone agreed to curtail the same. While fixing the calendar for 2021 I prevailed on all colleagues to work one day extra on Saturday. To some extent I could persuade my colleagues with the personal views that I carry about long vacations.

There are lawful methods of making protest as said by Dr BR Ambedkar in his last speech in the Constituent Assembly. If you want to protest there are various lawful methods available & why not, if there are legitimate methods of making protest you should adopt that but never take recourse to boycott. There should be a rule that no lawyer shall boycott the courts & the courts have to function under any circumstances.

The member must take a stand but in a constructive stand and should stand by what is right & correct & stand has to be taken in correct & dignified manner. The issue is a very serious issue & there are large classes of litigants who cannot afford to engage lawyers.

Docket Exclusion the real issue

Litigants suffer injustice by various social situations as they are poor to approach the courts, they find courts costly affairs and now after 75 years of independence members of the bar must ensure that every needy person gets legal aid. Legal aid is not the only function but to also do pro bono work too. "Docket exclusion" is often the real issue than "docket explosion".

As judge of Karnataka & Bombay HCs, whenever we called upon junior or senior to act as amicus, the members of the bar responded 100%. 

There are many criminal cases where legal aid lawyers are junior lawyers but they are unable to represent them properly because they lack experience. There are instances where we see that proper Cross Examination has not been conducted and time has come for the bar to include DUTY OF LAWYER TO DO LEGAL AID WORK & duty of lawyers as collective body to do pro bono work.

We are far behind when it comes to legal literacy. Even educated people don't understand the difference between granting bail and acquittal. They do not understand when it comes to sentencing and they cannot go by the sentiments so there is complete lack of knowledge about the legal process in our society & you can find go to online version of newspaper, please see the remarks. Some of the remarks, you cannot read them at all and comprehend. But this happens because people are not aware of the legal process. time has come for the members to do pro bono work of legal literacy.

Saving Court's Time

It is the bounden duty of the Advocate to ensure that time of court is saved. Court time is very precious. In my court, I never found lawyers delaying the proceeding by long arguments. I must say that all of them were reasonable.

One of the most important reasons was the lengthy cross examination. The amendment to order 18 of CPC by 2002, has worked in a very peculiar manner. If the chief examination was recorded, it could run in 2 Pages.

In Mumbai, it is a very funny way in which cross examination is conducted. Every sentence uttered by the witness in examination in chief, every suggestion has to be given in the cross examination.

In 2007 when Justice Swatantar Kumar was CJ he assigned me old land acquisition references, which were pending for arguments. One area people say is repeated adjournment without valid reasons. But normally I believe that large sections of bar seek adjournment for reasons that are genuine. But one section of the bar does indulge in this. So this is one area where ethics need to be framed.

Earlier there were days when only relevant judgements were cited but today when you click something on SCC, 40 judgements come. I find it very strange that if a point is covered by the SC judgment, the lawyers would refer the case to the HC following the same SC judgement. This is taking a huge time.

In 2010, I was considering an appeal against the order. While going through the files, I realised that the plaintiff had cited 31 judgements and def had cited 33 judgements. When the appeal was called I told the counsels, irrespective of the results I am going to impose a cost on both. If you throw out 70 judgements, what would the poor civil judge do and if they're not considered, it'll be said that the judge didn't consider. So in that case, I imposed a cost. This is delaying the conclusion of cases.

Now if you see the Commercial Courts Act, the court has power to restrict the arguments but the lawyers engage in very heavy arguments.Now when we get those voluminous written submissions, that is delaying the entire thing.

We just have 4/5 hours & the lawyers and judiciary needs to come together & there needs to be a code of ethics dealing with that issue. Unless we work on these areas, there will be delays involved. This is an area where debate is involved. Lawyers should ensure that every minute of court is used constructively.

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