Recently, an interesting case came to me. The wife, Paromita* had been fighting a bitterly contested divorce with her husband Sushant for the past 4.5 years. They were grappling with multiple issues relating to their joint property, which amounted to more than ₹100 crores. Paromita had come to consult me about it eight months ago when she feared she was not being given fair legal representation by her advocate. She felt she was being cheated by him because he kept pressurising her to accept only a portion of what was due to her. Besides, it didn't help that she had also seen her husband and her lawyer together on three social occasions.
An advocate's conduct also depends on the moral and ethical boundaries that they set for themselves — extending beyond formal rules and regulations.
Advocates, in addition to being professionals, are also officers of the court and play a vital role in the administration of justice.
Accordingly, the set of rules that govern their professional conduct arise out of the duty that they owe the court, the client, their opponents and other advocates.
According to rules of the Bar Council of India, an advocate's duties towards a client are as follows:
1. Bound to accept briefs
"An advocate is bound to accept any brief in the courts or tribunals or before any other authority in or before which he proposes to practise. He should levy fees which [are] at par with the fees collected by fellow advocates of his standing at the Bar and the nature of the case. Special circumstances may justify his refusal to accept a particular brief."
2. Not withdraw from service
"An advocate should not ordinarily withdraw from serving a client once he has agreed to serve them. He can withdraw only if he has a sufficient cause and by giving reasonable and sufficient notice to the client. Upon withdrawal, he shall refund such part of the fee that has not accrued to the client."
3. Not appear in matters where he himself is a witness
"An advocate should not accept a brief or appear in a case in which he himself is a witness. If he has a reason to believe that in due course of events he will be a witness, then he should not continue to appear for the client. He should retire from the case without jeopardising his client's interests."
4. Full and frank disclosure to client
"An advocate should, at the commencement of his engagement and during the continuance thereof, make all such full and frank disclosure to his client relating to his connection with the parties and any interest in or about the controversy as are likely to affect his client's judgement in either engaging him or continuing the engagement."
In some cases the advocate may be related to the opposing party — for example, I was approached by a woman who wanted to file a case against her mother-in-law... who also happened to be my mother's sister! I not only disclosed this to the client but also refused to take the case. After all, not only would the client have been uncomfortable with my proximity to the opposing side, I too would have felt morally conflicted about filing a case against my aunt. So a lot of an advocate's conduct also depends on the moral and ethical boundaries that they set for themselves — extending beyond formal rules and regulations.
5. Uphold interest of the client
"It shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair and honourable means. An advocate shall do so without regard to any unpleasant consequences to himself or any other. He shall defend a person accused of a crime regardless of his personal opinion as to the guilt of the accused."
Clients hire advocates to not only represent them in court but also to win cases for them. So the duty of the advocate is to fearlessly represent the client and also use fair and honourable means to do so. As they say in court, the client's interest is supreme, as long as the law is not violated.
6. Not suppress material or evidence
"An advocate appearing for the prosecution of a criminal trial should conduct the proceedings in a manner that it does not lead to conviction of the innocent. An advocate shall by no means suppress any material or evidence, which shall prove the innocence of the accused."
7. Not disclose the communications between client and himself
"An advocate should not by any means, directly or indirectly, disclose the communications made by his client to him... The advocate also shall not disclose the advice given by him in the proceedings. However, he/she is liable to disclose if it violates Section 126 of the Indian Evidence Act, 1872."
This ensures the confidentiality of the client in the matter. In divorce cases that I handle the information is so intimate and personal that the client literally trusts their entire life story with me — it would be absolutely unacceptable to discuss any of these details with others. Since the legal advice given by the advocate is also personal, it should be kept confidential.
8. An advocate should not be a party to stir up or instigate litigation
A number of times the parties may want to settle but the lawyer advises them to litigate further. After all, it is the livelihood of the lawyer which is at stake! However, as I mentioned earlier, the lawyer's conscience should guide him/her towards taking the proper action.
9. An advocate should not act on the instructions of any person other than his client or the client's authorised agent
10. Not charge depending on success of matters
"An advocate should not charge for his services depending on the success of the matter undertaken. He also shall not charge for his services as a percentage of the amount or property received after the success of the matter."
11. Not receive interest in actionable claim
"An advocate should not trade or agree to receive any share or interest in any actionable claim. Nothing in this rule shall apply to stock, shares and debentures of government securities, or to any instruments, which are, for the time being, by law or custom, negotiable..."
12. Not bid or purchase property arising of legal proceeding
"An advocate should not by any means bid for, or purchase, either in his own name or in any other name, for his own benefit or for the benefit of any other person, any property sold in any legal proceeding in which he/she was in any way professionally engaged."
13. Not bid or transfer property arising of legal proceeding
"An advocate should not by any means bid in court auction or acquire by way of sale, gift, exchange or any other mode of transfer (either in his own name or in any other name for his own benefit or for the benefit of any other person), any property which is the subject matter of any suit, appeal or other proceedings in which he is in any way professionally engaged."
14. Not adjust fees against personal liability
"An advocate should not adjust fee payable to him by his client against his own personal liability to the client, which does not arise in the course of his employment as an advocate."
15. An advocate should not misuse or takes advantage of the confidence reposed in him by his client
This reflects the essence of the conduct, behaviour and principles of a lawyer. Once this basic tenet is followed, a lawyer can be said to have earned the privilege of wearing the white collar and black gown.
As a litigant, it is absolutely essential for you to know your rights and exactly what it is that you should expect of your lawyer (other than a bill!).
As far as Paromita's matter? All I can say is that her gut feel was right.
* All names changed.
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