Historical Development of the Legal Profession

The legal profession in India has a long and rich history, evolving significantly over centuries, particularly influenced by the British colonial period and post-independence legal reforms. Understanding its historical trajectory provides context for its present structure and role.

Ancient and Medieval India:

In ancient India, during the Vedic period and later kingdoms, the concept of formal legal representation as we know it today was not prominent. Disputes were often resolved through village assemblies (Panchayats), caste assemblies, or by the King and his advisors. Justice was dispensed based on religious texts (Dharma Shastras), customs, and royal decrees. There were learned individuals or advisors who might assist parties, but they did not constitute a distinct, organised legal profession with formal qualifications or regulatory bodies.

During the Mughal period, the judicial system was based on Islamic law, administered by Qazis. Parties would present their cases themselves, or sometimes seek assistance from 'vakils'. These 'vakils' were initially more like agents or representatives who presented a party's case, without formal legal training as understood today.

British Period:

The modern legal profession in India began to take shape under British rule with the establishment of courts based on the English model.

• Early Courts (Mayor's Courts, Supreme Courts): The establishment of Mayor's Courts in the 18th century and later Supreme Courts in Calcutta, Bombay, and Madras introduced the concept of English legal practitioners (barristers) alongside Indian practitioners (Vakils, Attorneys, Pleaders). Initially, there was no uniformity in qualifications or rules of practice.

• High Courts Act, 1861: This Act established High Courts in the Presidency towns, replacing the Supreme Courts and Sadar Diwani Adalats. It empowered the High Courts to enroll advocates, vakils, and attorneys with specific rules for admission and practice. This led to a more structured profession within each High Court's jurisdiction.

• Legal Practitioners Act, 1879: This Act consolidated the law relating to legal practitioners in the mofussil courts (courts outside the Presidency towns). It recognised various classes of legal practitioners (Pleaders, Mukhtars, Revenue Agents) with differing qualifications and areas of practice, often leading to a fragmented profession.

• Indian Bar Councils Act, 1926: This was a significant step towards unifying and regulating the legal profession. It provided for the establishment of Bar Councils for High Courts, with powers to enroll advocates and make rules of professional conduct. It aimed at integrating barristers and vakils into a single class of advocates, particularly for practice in the High Courts.

• Growth of Bar Associations: During the freedom struggle, lawyers and bar associations played a crucial role, becoming centres of political and social activity. Leaders like Mahatma Gandhi, Jawaharlal Nehru, Sardar Patel, and B.R. Ambedkar were trained lawyers.

Post-Independence:

• Advocates Act, 1961: This Act is the cornerstone of the modern legal profession in India. It provided for a unified national bar by abolishing all existing classes of legal practitioners (vakils, pleaders, attorneys, etc.) and creating a single class of Advocates.

• The Act established the Bar Council of India (BCI) at the national level and State Bar Councils in each state. These bodies are responsible for the enrollment, regulation, and discipline of advocates, as well as prescribing standards of professional conduct and legal education.

• The Act laid down uniform standards for entry into the profession (requiring a law degree and enrollment with a Bar Council) and provided reciprocal arrangements with foreign countries.

The legal profession in India today is governed by the Advocates Act, 1961, and the rules framed by the Bar Council of India and the State Bar Councils, representing a unified and regulated bar committed to upholding the rule of law and administering justice.

Role of Lawyers in Society

Lawyers play a multi-faceted and critical role in society, extending beyond merely representing clients in court. Their role is vital for the functioning of the legal system, the protection of rights, and the maintenance of social order.

Key Roles:

• Officers of the Court: Lawyers are considered officers of the court. They have a duty to assist the court in the administration of justice. This involves presenting the case truthfully and efficiently, upholding the dignity and authority of the court, and refraining from practices that obstruct or mislead the court.

• Defenders of Rights and Liberties: Lawyers are the primary advocates for the rights and liberties of individuals. They represent clients in legal disputes, challenging state actions or private conduct that infringe upon rights guaranteed by the Constitution or other laws (e.g., Fundamental Rights).

• Advisors and Counsellors: Lawyers provide legal advice to individuals, businesses, and organisations. They help clients understand their legal rights and obligations, navigate complex legal issues, and plan their affairs to avoid legal problems.

• Advocates and Representatives: They represent clients' interests in various forums, including courts, tribunals, negotiations, and alternative dispute resolution (ADR) processes.

• Guardians of the Rule of Law: Lawyers contribute to upholding the rule of law by ensuring that governmental actions are within legal bounds, that laws are applied fairly and consistently, and that individuals have access to legal remedies when their rights are violated.

• Social Engineers: As discussed in sociological jurisprudence, lawyers, through their work in litigation, advocacy for law reform, and advising policy-makers, contribute to shaping the law and its impact on society.

• Mediators and Arbitrators: Many lawyers are increasingly involved in ADR processes, helping parties resolve disputes outside traditional litigation, promoting amicable settlements and reducing the burden on courts.

• Participants in Law Reform: Lawyers, through their experience in applying and interpreting laws, identify shortcomings and advocate for legislative changes. Bar Associations and legal experts contribute to law reform initiatives.

• Educators: Lawyers contribute to legal education and public awareness of the law.

The legal profession is thus integral to the functioning of a democratic society based on the rule of law, serving both individual clients and the broader public interest in the administration of justice.

Regulation of the Legal Profession

To maintain standards of competence, integrity, and conduct, the legal profession in India is regulated by statutory bodies established under the Advocates Act, 1961.

Advocates Act, 1961

The Advocates Act, 1961, is the primary legislation governing the legal profession in India. Its key objectives are:

• To establish a unified national bar.

• To provide for the constitution of Bar Councils at the national and state levels.

• To lay down the procedure for the enrollment of advocates.

• To prescribe standards of professional conduct and etiquette for advocates.

• To provide for disciplinary proceedings against advocates for professional or other misconduct.

• To promote and support law reform.

• To provide legal aid to the poor (a function entrusted to Legal Services Authorities now).

Bar Council of India and State Bar Councils

The Advocates Act, 1961, created a two-tier system of Bar Councils:

• State Bar Councils: Established in each state (or for a group of states). They are statutory bodies consisting of elected members and ex-officio members (Advocate General of the State).

• Functions of State Bar Councils:

  • To enroll persons as advocates on the roll of the State Bar Council.

  • To prepare and maintain the roll of advocates.

  • To entertain and dispose of complaints of professional or other misconduct against advocates on its roll (through its Disciplinary Committee).

  • To safeguard the rights, privileges, and interests of advocates on its roll.

  • To promote the growth of Bar Associations.

  • To perform all other functions conferred on it by the Act.

• Bar Council of India (BCI): The apex statutory body at the national level. It consists of elected members from the State Bar Councils and ex-officio members (Attorney General of India and Solicitor General of India).

• Functions of the Bar Council of India:

  • To lay down standards of professional conduct and etiquette for advocates (these rules are binding on all advocates).

  • To lay down standards of legal education and recognise universities whose degrees qualify for enrollment as an advocate.

  • To prescribe Minimum qualifications for admission to a law degree course and for enrollment as an advocate.

  • To exercise supervision and control over State Bar Councils.

  • To deal with disciplinary matters transferred to it or on appeal from State Bar Councils (through its Disciplinary Committee).

  • To promote law reform.

  • To promote and support law schools.

  • To maintain a common roll of advocates for the whole of India.

These regulatory bodies ensure that advocates meet the required standards of entry, professional competence, and ethical conduct, thereby maintaining the credibility and integrity of the legal profession.

Meaning and Importance of Legal Ethics

Legal ethics refers to the body of moral and professional principles that guide the conduct of lawyers. It encompasses the duties that lawyers owe to the court, their clients, their opponents, their colleagues, and the broader public.

Meaning:

Legal ethics are the rules and standards that define the responsibilities of lawyers in their professional capacity. These standards are often codified in rules of professional conduct (like those framed by the Bar Council of India) but also include broader moral principles that underlie the administration of justice.

Importance:

Legal ethics is of paramount importance for several reasons:

• Maintaining the Integrity of the Legal System: The legal system relies on the honesty and integrity of legal professionals. Ethical conduct by lawyers is essential for the fair and impartial administration of justice.

• Protecting Public Confidence: The public's trust in the legal system and the judiciary depends significantly on the ethical behaviour of lawyers. Misconduct by lawyers erodes this trust.

• Ensuring Justice for Clients: Lawyers have a fiduciary duty to their clients, requiring them to act in the client's best interests within the bounds of the law. Ethical rules ensure that lawyers provide competent, diligent, and loyal representation.

• Upholding the Rule of Law: Lawyers, by adhering to ethical principles, contribute to maintaining the rule of law, ensuring that legal processes are followed and rights are protected.

• Regulating Professional Conduct: Ethical codes provide a framework for regulating the conduct of lawyers, distinguishing acceptable behaviour from professional misconduct.

• Promoting Professionalism: Adherence to ethical standards fosters professionalism within the bar, maintaining a high standard of service and conduct.

In India, the Bar Council of India has framed rules under the Advocates Act, 1961, titled "Standards of Professional Conduct and Etiquette", which lay down the ethical duties of advocates.

Professional Misconduct

Failure by a lawyer to adhere to the prescribed standards of professional conduct and etiquette constitutes professional misconduct, which can lead to disciplinary action by the Bar Councils.

Definition:

The Advocates Act, 1961, does not explicitly define 'professional misconduct'. However, it includes any conduct of an advocate that is such as renders him unfit to be an advocate in the opinion of the disciplinary committee of a Bar Council. It includes not only professional misconduct but also 'other misconduct' that might affect the advocate's fitness to practice.

Professional misconduct typically involves actions that are dishonest, deceitful, negligent, or disrespectful in the course of professional practice. Examples include misleading the court, fabricating evidence, neglecting a client's case, misappropriating client funds, or engaging in behaviour that brings disrepute to the profession.

Standards of Professional Conduct and Etiquette

The Bar Council of India Rules provide a detailed code of conduct for advocates. These rules specify the duties of advocates towards various entities, outlining acceptable and unacceptable practices. Adherence to these standards is mandatory for every advocate.

Disciplinary Powers of Bar Councils

The Advocates Act, 1961, vests disciplinary powers in the Bar Councils to take action against advocates found guilty of professional or other misconduct.

• State Bar Council Disciplinary Committee: A complaint of misconduct is first filed with the State Bar Council. The State Bar Council's Disciplinary Committee inquires into the complaint.

• Punishments the State Bar Council Disciplinary Committee can impose (Section 35):

  • Reprimand the advocate.

  • Suspend the advocate from practice for a specified period.

  • Remove the name of the advocate from the State roll of advocates (disbarment).

• Bar Council of India Disciplinary Committee: Appeals against the orders of the State Bar Council Disciplinary Committee lie to the Bar Council of India (BCI) (Section 37). The BCI's Disciplinary Committee also has original jurisdiction in certain cases or when complaints are transferred to it by a State Bar Council.

• Appeal to the Supreme Court: A further appeal lies to the Supreme Court against the order of the Bar Council of India's Disciplinary Committee (Section 38).

This disciplinary mechanism is crucial for self-regulation within the legal profession and for ensuring accountability for misconduct.

Duties of Lawyers

The Bar Council of India Rules on professional conduct and etiquette lay down the specific duties that advocates owe to various stakeholders in the legal system.

Duties to the Court

• To maintain towards the Courts a respectful attitude.

• To appear in court in the prescribed dress.

• To use sober and dignified language.

• To not appear in matters where the advocate has a pecuniary interest.

• To not act or plead in any manner in which they are a witness.

• To refuse to act in an illegal or improper manner towards the opposite counsel or parties.

• To not mislead the court or withhold relevant information.

• To conduct oneself in a dignified manner during court proceedings.

Duties to the Client

• To be bound to accept any brief in the courts or tribunals or before any other authority in or before which he professes to practice at a fee consistent with his standing at the Bar and the nature of the case.

• To not withdraw from engagements once accepted, without sufficient cause and reasonable notice.

• To fearlessly uphold the interests of his client by all fair and honourable means.

• To not directly or indirectly commit a breach of the obligations imposed on him by Section 126 of the Indian Evidence Act, 1872 (professional communication and confidentiality).

• To not, at any time, be a party to fomenting of litigation.

• To not acquire any interest in the property which is the subject matter of the litigation.

• To not adjust fees contingent on the result of litigation.

• To keep proper accounts of client's money.

• To not charge fees lower than the fees fixed by the rules of the Bar Council.

• To not appear for parties on opposite sides in the same suit or matter.

Duties to the Opponent

• To conduct frankly and fairly towards the opposite party.

• To not communicate or negotiate with a party represented by another advocate directly, but only through their advocate.

• To carry out all legitimate promises made to the opponent party or their advocate.

Duties to Fellow Advocates

• To treat all fellow advocates with courtesy and respect.

• To not solicit work or advertise in a manner prohibited by the rules.

• To not accept a fee less than the minimum prescribed by the Bar Council.

• To not enter appearance in a case where the client is already represented by another advocate, without the consent of the other advocate (unless there is a valid reason).

Duties to the Public

• To provide legal aid to the poor and weaker sections of society (now a function of Legal Services Authorities, but remains a moral obligation).

• To assist in the promotion of justice and rule of law in society.

• To conduct oneself in a manner that maintains the honour and dignity of the profession.

Adherence to these ethical duties is crucial for the legal profession to effectively fulfil its role in the administration of justice and serve the interests of both individuals and society.