Duty to the self, and duty to the public and the State

Professional Ethics · Unit II · Topic 11 of 18 · 5 min read

What an advocate owes himself (independence, learning, integrity, health and a clean practice) and what he owes the public and the State: free legal aid under Rule 46 and the Legal Services Authorities Act, defending the unpopular accused, fairness as prosecutor, law reform and loyalty to the Constitution.

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1. Duty to the self
2. Duty to the public
3. Duty to the State
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The examinable core. The Bar Council of India Rules do not have a section titled “duty to self”; the syllabus takes it from Krishnaswamy Iyer and the older texts. Build it from the Preamble to Chapter II and the rules that protect the advocate’s independence. The duty to the public and the State is anchored in Rule 46 (legal aid), Rule 15 (defending the accused), Rule 16 (the prosecutor) and the Bar Councils’ statutory functions.

1. Duty to the self

An advocate who does not look after his own competence and integrity cannot serve anyone else. The duty to the self covers:

Independence. He must keep the freedom to give honest advice and to refuse improper instructions. That is why he may not be a full-time employee while practising (Rule 49), may not personally carry on business (Rule 47), may not act where he is pecuniarily interested (Rule 9) and may not be a surety for his client (Rule 10). Each of these would give him a personal stake that could cloud his judgment.
Learning. Continuous study of the law. A lawyer who stops reading after enrolment soon misleads his clients.
Character. The Preamble requires him to conduct himself as a gentleman and reminds him that what is lawful for a layman may be improper for an advocate. Section 35 reaches “other misconduct” too; an advocate convicted of an offence involving moral turpitude may be removed, as in Hikmat Ali Khan v. Ishwar Prasad Arya, 1997 INSC 76, (1997) 3 SCC 131, where an advocate convicted of attempt to murder for attacking a person in the court premises was removed from the roll.
Self-respect. Dignity and not servility before the court (Rule 1); no touting or scrambling for work (Rule 36); no undercutting (Rule 38).
Financial discipline. Keeping his own and his clients’ accounts separately and properly (Rules 25 to 30), so that his honesty can be shown.
Health and balance. Practice is demanding; an advocate must manage his work so that he does not accept more briefs than he can attend to, since Rule 12 forbids abandoning them.
Not being a witness in his own case (Rule 13), which would compromise both roles.

2. Duty to the public

Legal aid. Rule 46: every advocate shall bear in mind that anyone genuinely in need of a lawyer is entitled to legal assistance even though he cannot pay for it fully or adequately, and that within the limits of the advocate’s economic condition, free legal assistance to the indigent and oppressed is one of the highest obligations an advocate owes to society.
The statutory scheme. Article 39A of the Constitution directs the State to provide free legal aid. The Legal Services Authorities Act, 1987 sets up the national, State, district and taluk legal services authorities and lists those entitled to free legal services in section 12 (women and children, members of the Scheduled Castes and Scheduled Tribes, persons in custody, victims of disaster, persons with disability, industrial workmen, and persons below the income limit). Advocates serve on panels of these authorities. Section 6(1)(eee) of the Advocates Act makes organising legal aid a function of the State Bar Council, and section 9A allows Bar Councils to form legal aid committees.
Defending the unpopular. Rule 15 requires an advocate to defend an accused regardless of his own opinion of the accused’s guilt. A Bar Association resolution not to defend a particular accused is against the Constitution and professional ethics: A.S. Mohammed Rafi v. State of Tamil Nadu, 2010 INSC 851, (2011) 1 SCC 688.
Accessibility. Rule 11 binds the advocate to accept briefs at a proper fee; he cannot pick only profitable or fashionable clients.
Discouraging needless litigation. Rule 18 forbids fomenting litigation; the advocate should advise settlement or mediation where it serves the client.

3. Duty to the State

Upholding the Constitution and the rule of law. Advocates are the first line of defence of fundamental rights; they also must not use the courts for oppression.
Fair prosecution. Rule 16: a prosecutor must conduct the prosecution so that it does not lead to conviction of the innocent, and must not suppress material capable of establishing the innocence of the accused.
Law reform. Sections 6(1)(e) and 7(1)(e) make the promotion of law reform a function of the Bar Councils. Advocates contribute through Bar Associations, the Law Commission and comments on draft bills; Rule 51 permits paid review of parliamentary bills.
Respect for the administration of justice. No strikes, no obstruction of courts, and no attacks on judges that scandalise the courts. Criticism of a judgment on its merits after it is decided is allowed (section 5 of the Contempt of Courts Act, 1971).
Training the next generation. Rule 45 forbids charging a junior for training; the State relies on the Bar to produce competent lawyers and judges.

Link the duties. The best answers show how the duties fit together: the duty to the self (independence and integrity) is what enables the advocate to perform the duty to the client (fearless advocacy), which serves the duty to the court (a just decision), which is the duty to the public and the State (a working system of justice). Krishnaswamy Iyer’s point is that these duties rarely conflict when the advocate is honest.

How this is examined

The duties to self, public and State appear as parts of a general question on “duties of an advocate” or as short notes on legal aid. In a full answer, give two or three points under each head, quote Rule 46, cite Article 39A and section 12 of the Legal Services Authorities Act, and use Mohammed Rafi for the duty not to refuse an accused.

Now try the real questions: Professional Ethics past question papers.