Legal profession & Ethics

 

Unified Bar in Independent Bangladesh

 

The Indian Bar Council Act of 1926 was passed with a view to unifying the different grades of legal practitioners and to provide some measures of self-government to the profession with a unified Bar. But, however, it did not give desired result in unification of the Bar as the power to enroll advocates continued to remain in the High Courts and the function of the Bar Council was merely advisory.

After partition, The Legal Practitioners and Bar Council Act was passed in 1965. This Act for the first time made the legal profession autonomous but failed to unify the legal profession in true sense by keeping Mukhters outside the ambit of the Act. Mukhters and Pleaders were controlled by Subordinate courts and the advocates and Barristers were controlled by the High Courts.

With the emergence of Bangladesh the Bangladesh Legal Practitioners and Bar Council Order, 1972 was issued by repealing the Legal Practitioner's and Bar Council Act, 1965. This order has provided for a council, a body corporate called the Bangladesh Bar Council which is a statutory body with prescribed constitution, powers and functions. Section 27(1A) provides arrangement for unification of the legal professions in its true sense by making provision that a person who has for at least seven years, been a Mukhter may be admitted as an advocate, if he fulfills the conditions prescribed. Now there is only a single class of legal practitioners known as advocates.

 

Formation of the Bar Council

 

i)    Bar council shall be constituted for 3 years with 15 members. Attorney General is Ex-officio Chairman.

ii)   7 members shall be elected by the advocates on roll

iii)  7 members shall be elected by advocates who are members of Local Bar Associations.

iv) no advocate shall hold the office of the member more than two consecutive terms.

v)   There shall be a chairman a vice chairman. Attorney General shall be Chairman ex-officio. Vice chairman shall be elected by the members.

 

Committees of the Bar Council

 

The Bar Council has four standing committees to discharge its various functions-

1)   5 member executive committee elected by the Council amongst its members

2)   5 member finance committee elected by the Council amongst its members

3)   9 member education committee- 5 from other than members of the Council at least 2 of whom shall be teachers of law in any University or college

4)   5 member enrolment committee- Chairman to be nominated by the CJ from the judges of the AD, one member to be nominated by CJ amongst the judges of the HDC, Attorney General of BD, 2 members elected by the Bar Council amongst its members.

 

Power and functions of the Bar Council

 

i)    to admit persons as advocates on its roll, to hold examinations for purposes of admission, and to remove advocate from such roll

ii)   to prepare and maintain such roll

iii) to lay down standard of professional conduct and etiquette for advocates

iv) to entertain and determine cases of misconduct against advocates on its roll and to order punishment in such cases

v)   to safeguard rights, privileges and interest of advocates on its roll

vi) to manage and invest the funds of the Bar Council

vii) to provide election for its member

viii) to lay down the procedure to be followed by its Committees

ix) to promote legal education

x)   to perform all other functions conferred on it by or under this Order

 

Qualification and conditions for enrolment

 

Under section 27 of the President's Order no. 46 of 1972: The Bangladesh Legal Practitioners and Bar Council Order, 1972, a person shall be qualified to be admitted as an advocate if he fulfills the following conditions-

 

Primary conditions-

i)    he is a citizen of Bangladesh

ii)   he has completed the age of twenty one years

iii) he has obtained-

• a degree on law from any university situated in Bangladesh
• a bachelor's degree in law from any university outside Bangladesh recognized by the Bar Council; or
• he is a barrister

iv)  he has passed such examination as may be prescribed by the Bar Council.          

 

Secondary conditions-

a)   To apply in Form 'A' prescribed by the Bar Council accompanied by the following-

i)    evidence of the applicant's date of birth

ii)   evidence of qualification under article 27

iii) 2 testimonials from persons in good position as to the character and conduct of the applicant

iv) affidavit stating that the statement made in the form is true

v)   a receipt of payment of a fee of Taka 1,200.

b)   To take pupilage for 6 months under a 10 year-experienced advocate

c)   To sit in a 4 hour written examination

d)   To pass the viva voice examination

e)   To take BVC (Bar Vocational Course)

 

Enrolment of an advocate to practise in the High Court Division-

1) Must be enrolled as an advocate by the prescribed manner of the Bar Council

2) Must have any of the following qualification-

• practised as an advocate before subordinate courts in Bangladesh for 2 years
• he is law graduate and practised as an advocate before any court outside Bangladesh notified by the Government in official Gazette
• He was called to the Bar in the UK or obtained higher 2nd class in LL.M and further practised with an advocate for one year
• He has held judicial office for 10 years. He does not require appearing in written test.

 

Secondary conditions-

1) To fulfill the following conditions-

• A certificate from the concerned Bar Association stating that the advocate is a regular member of it and been in practice for 2 years
• A certificate showing that the advocate was called to the Bar in the U.K or obtained higher second class LL.M and further worked with a senior advocate of SC for 1 year.
• A list of 25 cases, civil or criminal, which the advocate appeared
• A receipt/ bank draft of High Court permission fee of Tk. 5,000
• One copy passport size photo of the advocate

2) Must sit for both written and viva voice test and pass.

 

Advocate on Record

 

Advocate on Record is an advocate practicing in the Appellate Division who has exclusive right to file an appeal in the Appellate Division. One cannot file a case in the Appellate Division without engaging an Advocate on Record. A senior advocate or any other advocate can only appeal in the Appellate Division only under the instruction of an Advocate on Record.

A senior Advocate can become an Advocate on Record if he fulfills the following conditions-

i)    has been for not less than seven years enrolled as an Advocate of the court subordinate to the Appellate Division including at least three years standing as an Advocate of the High Court Division.

ii)   has an office at the seat of the Registry of the Court

iii)  has telephone installation at his office at the seat of the Registry of the Court

iv)  signs the Roll of Advocate on Record maintained for the purpose

v)   has to submit proper documents

 

 

Code of Conduct of the Judges of the SC of BD

 

i)    A judge should uphold the integrity and independence of the judiciary

ii)   Should avoid impropriety (Conduct that is not considered correct)

iii) Should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

iv) Should not allow family, society or others to influence judgment.

v)   Should not hold membership in any organization that practices unjust discrimination.

vi) Should perform the duties of the office impartially and diligently.

vii) Should be faithful to and maintain professional competence in the law.

viii) Should hear and decide matters assigned, unless disqualified.

ix)  Should be patient, dignified, respectful and courteous to litigants, lawyers and others.

x)   Should give full right to be heard according to law.

xi)  Should dispose of quickly without excessive delay.

xii) Should avoid public comment on the merits of a court case.

 

General disqualification to hear a matter-

The code of conduct is only restatement of values of judicial life and is not meant to be exhaustive but illustrative of what is expected of a judge.

i) If in a proceeding the judge's impartiality is reasonably questioned

ii) If he served the case pending before him as a lawyer or had association as a lawyer

iii) If the judge knows that he, his wife or any minor child of his has interest in the controversial matter

iv) The judge or the spouse or any person relating them is a party or an officer or director

v) If the judge has expressed an opinion concerning the merits of the particular case in controversy.

                                                                  

 

Importance of Legal Ethics

 

Ethics is the study of moral standards and how they affect conduct. The legal ethics is related to moral standards of legal professionals.

• It makes the legal professionals reasonable with others
• It helps to maintain the dignity of the profession
• One of the rules of professionalism is to not to express one's own anger and emotion on others.

 

Canons of Professional Conduct

 

Conduct with Regard to other Advocates

 

1.   To uphold the dignity of the profession.

2.   Advertisement is prohibited except professional cards, name plates etc.

3.   Shall not employ another for soliciting for him

4.   Shall not communicate with a party represented by an Advocate in a controversial matter in the absence and without the consent of such advocate.

5.   Shall not communicate with or argue with a judge when the opposing advocate is absent.

6.   Should decline association as a colleague unless the dues of the Advocates first retained are paid.

7.   All personal clashes between advocates should be avoided.

8.   The fees should not be divided for legal services.

9.   To maintain the order of precedence.

10. Should be respectful to the senior members and the latter should be courteous and helpful to juniors.

11. The senior advocate shall lead the case and the junior should assist him.

 

Conduct with regard to Clients

 

1.   Should not have any interest in a property involved in the case.

2.   Should not take any case adverse to a client or former client, where a confidential matter is related.

3.   Shall not accept employment adverse to a client.

4.   Shall not represent conflicting interest.

5.   Shall not purchase any property in which he appears for a party.

6.   Shall not commingle the property of a client with his own.

7.   Shall not advise the commencement of prosecution or defense of case.

8.   Shall not advise to violate any law.

9.   To undertake the defense of a person accused in crime as to the guilt of the accused regardless of his personal opinion.

10. Shall fix reasonable fees.

11. Controversies with clients concerning compensation are to be avoided.

12. To do whatever may enable him to succeed in winning his client's cause.

13. If the advocate becomes the witness for his client, he should leave the trial of the case to other advocates.

14. No Advocate shall force the opposing Advocate to trial knowing that latter has problem in that day and no harm will result from a trial at a different day.

 

Duty to the Court

 

1.   To maintain towards the court a respectful attitude.

2.   Shall not advise a person, whose testimony could establish a fact, to avoid it or conceal or make the testimony unavailable.

3.   Shall not misquote the testimony of a witness or any book, statute or decision.

4.   Marked attention and unusual hospitality to a judge or judicial officer should be prohibited.

5.   The suppression of facts or concealing of witnesses capable of establishing the innocence of the accused is highly reprehensible (highly unacceptable).

6.   Should not make Publication in newspapers about a case pending which may interfere a free trial.

7.   To endeavor to prevent political considerations from outweighing judicial fitness in the appointment of judges.

8.   To appear in court when a matter is called.

9.   Should not express his legal opinion voluntarily in cases he is not engaged.

 

Conduct with Regard to the Public Generally

 

1.   Shall not conduct any case to harass someone.

2.   Should always treat adverse witnesses and parties with fairness and due consideration.

3.   If the Advocate is convinced that the case is filed to harass the adverse party, he should not conduct the case.

4.   The Advocate has the right to decline professional employment and to decide what business he will accept.

5.   Shall not render any service or advice involving disloyalty to the law.

6.   Shall not communicate with nor appear before a public officer, board or committee without first disclosing that he is an Advocate representing interests that may be affected by the action of such officer, board or committee.

7.   Should not accept any employment in any matter of which he has previously acted in a judicial capacity.

8.   Shall not perform any other job or business.

International Code of Ethics, 1956

adopted by

International Bar Association

 

The International Bar Association is a federation of National Bar Association and Law Societies with full organizational members and individual members. In some jurisdictions these codes are imposed on all practitioners by their respective Bar Associations or Law Societies or by the Courts. This code applies to any lawyer of one jurisdiction in relation to his contacts with a lawyer of another jurisdiction or to his activities in another jurisdiction.

Rules-

i) Lawyers shall all times maintain the honour and dignity of their profession.

ii) Shall preserve independence in the discharge of their professional duty

iii) Shall treat their professional colleagues with utmost courtesy and fairness.

iv) Lawyers shall always maintain due respect towards the court.

v) A lawyer should not advertise or solicit business.

vi) Shall at all times give clients a candid (honest) opinion on any case.

vii) Should not acquire a financial interest in the subject matter of a case.

viii) Should never represent conflicting interests in litigation.

 

Tribunal of Bar Council and Disciplinary proceedings

 

Bar council may constitute one or more Tribunals. Tribunal shall consist of-

• 3 members
• 2 shall be elected by the Council from amongst its members
• The other shall be a person co-opted by the Council from amongst the advocates on the roll
• The senior most advocate of them shall be its chairman.

 

Under Article 32 of the Order the Bar Council has the power to reprimand, suspend or remove from practice any advocate if he is found guilty of misconduct.

 

Attorney General

 

Supreme Court   > Attorney General   > Additional Attorney General >   Deputy Attorney General > Asst. Attorney General

• The President shall appoint the Attorney General who is qualified to be appointed as a judge of the Supreme Court
• The AG shall perform such duties as may be assigned to him by the President.
• In the performance of his duties, the AG shall have the right of audience in all courts of Bangladesh.
• The AG shall hold the office during the pleasure of the President, and shall receive such remuneration as the President may determine.

 

Role of the Judiciary

 

i) The courts follow the laws of the land

ii) The courts enforce respective rights of the citizens

iii) The courts give punishment to the wrongdoers

iv) The judges interpret the meaning of the rules of the existing law made by the legislature

v) The judges, sometimes modify the legislative law or recognize the custom as binding law.

 

Function of the Judiciary

 

i) Investigation and determination of the facts in issue by preponderance of evidence produced by the witnesses

ii) Application of relevant law to the facts established by the witnesses

iii) Advisory function of the highest court of justice

iv) Non-legal functions-such as administration of oath, granting licence and solemnising (perform a marriage ceremony) marriage etc.