1

An Analysis on Legal Ethics and Professionalism

A Seminar Paper

Submitted To;

Nepal Law Campus

B.A.L.L.B Program

Faculty of Law,

Tribhuvan University

(In the partial fulfillment of the requirement for BA.L.L.B. Degree)

Submitted By:

Bhup Raj Neupane

Nepal Law Campus

Faculty of Law

Tribhuvan University

BA.L.L.B, Roll No. 29/069,

2073

2

Preface

In this world, human beings are such creation who knows the world, knows the right and

wrong, and knows the human and inhuman. If I say every thing is social in this world that

may not be wrong but human being are such social being who has the heart-to-heart and

mind-to-mind connection to each other. We have concern to each other and we have

emotion to each other. This is such a wonderful creation in human being. One may not

simply agree with these points but the conclusion is “every outcome of a person is guided

by its innermost.” One can not easily commit a crime or do the act which is not

recognized by his/her society. There must be founding belief, founding culture, founding

innerbeing which lead a person to behave in a way. These founding principles are/can not

be self regulated but the out comings acts and behaviors can be regulated. Once a person

start to regulate his innerbeing in a good way that person becomes great in his

community. State can not regulate a person’s innerbeing but only restricts its

outcommings. For example if I put medicine and band my leg without taking out the

bullet, I can not get well. Only enactment of laws is like putting medicine without finding

the inner problem. This is not a very idea of solving a problem but we have no alternative

either. The solution is not a quick even in this paper but just a try to show what a problem

is.

Before addressing the subject matter in the preface, I would like to ask some basic

questions about writing of legal ethics. Some critics might wonder why we need to write

a book on legal ethics. Is not the law enough? Is there a need to expand on what the law

already says? Is teaching ethics itself a futile pursuit? These are the foundational

questions which leaded me to prepare a seminar paper on this topic.

The American judge and scholar Richard Posner has questioned the utility of teaching

legal ethics. According to Judge Posner “as for the task of instilling ethics in law

students… I can think of few things more futile than teaching people to be good.”1

Since ethics is very inseparable part of every human kind which reflects their motive,

intention, and outcome of such motives. Not only in professional life, each person is

guided by their ethical value in what they have founded themselves. On the other hand,

the ethics is very important and considerable issue in every professional life. As we see a

medical doctor has his own ethical grounds, a teacher, lawyer, judge, senior officers and

so on. Although their professional nature varies, the core idea of ethics and its application

is similar everywhere in every sector of the world.

1 Richard Posner, (1993). “The Deprofessionalization of Legal Teaching and Scholarship,” 91 Mich. L. Rev.

1921, 1924

3

Furthermore, a course on legal ethics and professionalism must go beyond development

of a toolkit for proper conduct. The subject matter entails self-awareness. A student

enrolled in a legal ethics course should engage with bigger questions such as …“Who am

I?” “What do I believe in?” “What is important to me?” “What will I do to make this

world and my nation a better place?” “How will I be remembered?” This textbook

presents the law student with an opportunity to take stock of who they are and look to the

future with their core values in mind. It is easy for advocates to forget who they are and

why they chose to pursue a career in law. Many advocates find themselves working for

money alone. Hopefully this book will help law students to begin the lifelong challenge

of being true to oneself and one’s beliefs in legal practice with an informed head start.

This seminar paper “An Analysis on Legal Ethics and Professionalism” is basically

prepared for the partial fulfillment of the requirement of the BA.LLB degree. It has

covered the six Chapters. Each chapter covers different idea and the introduction to the

various related factors of the topic. The Chapter one deals with the general background

and the introduction to the research paper. The Chapter two deals with the general idea of

the law and ethics by relating them. Similarly the Chapter three deals with the

introduction to legal ethics and professionalism with description of the ethics of the

lawyers and judges of the Nepal. On the other hand this Chapter also specify the legal

consequences of the violation of the code of Conduct. The Chapter four deals with the

principles of the professional ethics of the legal practitioners. Finally, the chapter five

and six deals with the analysis and findings, Conclusion of the chapter and suggestions.

-Bhup Raj Neupane

4

Acknowledgements

First of all I would like to express my thankfulness to Seminar Supervisor Mr. Tejman

Shrestha for his intellectual insights and motivation to conduct this paper. Secondly, my

regard goes to the Bibek Kumar Paudel, Director, BA.L.L.B program for allowing me to

carry out this research. Similarly also would like to thank Associate Prof. Karna Bahadur

Thapa, Campus chief, Nepal law campus.

I express my thankfulness to Mrs. Bishnu Maya Bhusal for her intellectual and material

help to prepare this paper. I always get intellectual and inspirational support from her and

I always feel free to thank for her helpfulness. Furthermore I also would like to thank my

all friends for their support and cooperation. I also express my sincere love and respect to

my parents and family for their moral and social encouragements and economic support

as well. Finally, On the other hand all of the readers of this paper are very welcome to

give me kind suggestions for improvement in future.

- Bhup Raj Neupane

5

Table of Cases Cases:

1. Johns v. Smith [1999] 1 SCR 455.

2. Suwarna Prajapati vs. Kabhrepalanchowk District Court et al NKP 2046 vol. 6

3. Tuil Maya Chakradhar vs. Chairperson of S.C. Bar Association Shambhu Thapa

NKP 2053, vol, 7

4. Adv. Lila Mani Poudel vs. HMG Council of Minister Secretariat and Others, NKP

2060, vol 5-6, p. 354

5. Pro. Shambhu Thapa, Legal Advisor Forum vs. Chief Commissioner,

Commission on Investigation of Abuse of Authority and others, Supreme Court

2072/9/27

6

Table of Contents

Acknowledgements

Preface

Abbreviations Page

No.

Chapter – I: Introduction…………………………………… 1-4

1.1 General Background………………………………………… 1

1.2 Statements of Problems…………………………………….. 2

1.3 Objectives of Study…………………………………………. 3

1.4 Methodology of Study………………………………………. 3

1.5 Significance of Study……………………………………….. 3

1.6 Limitations of Study………………………………………… 3

1.7 Review of the Literature……………………………………. 4

Chapter – II : Law and Ethics…………………………….. 5-

10

2.1 General idea of law……………………………………….. 5

2.2 Introduction to Ethics……………………………………… 5

2.3 Relation between Law and Ethics……………………….... 7

Chapter – III : Legal Ethics and Legal Professionalism…..

11-18

3.1 Meaning of Legal Ethics and Professionalism……………… 11

3.2 Professional ethics of lawyers………………………………. 12

3.3 Violation of Code of conduct and its punishments…………. 16

3.4 Professional ethics of judges………………………………..

17

7

Chapter –IV: Principles of Ethics of legal Practitioners….

19-22

4.1 International standards and norms………………………… 19

4.2 Basic Principles…………………………………………….

20

Principle of Conflict of interest, Independence, Honesty, integrity and

fairness, Confidentiality/professional secrecy, Clients interest, lawyers

undertakings, Clients freedom, property of clients and third party,

Competence, Fees.

Chapter –V: Analysis and Findings………………………… 24-33

5.1 Analysis……………………………………………………... 24

5.1.1 Case Study………………………………………………… 26

5.1.2 Legal Ethics: Common vs. Civil Legal System………….. 30

5.2 Findings…………………………………………………….. 32

Chapter –VI: Conclusion and Suggestions………………. 35-37

6.1 Some suggestions………………………………………….. 35

6.2 Conclusion to the paper……………………………………. 36

Bibliography and References……………………………. 38-39

8

Abbreviations

IBA – International Bar Association

NBA- Nepal Bar Association

NBC- Nepal Bar Council

SC- Supreme Court

9

Chapter – I: Introduction

1.1 General Background

If we ask a lawyer what “professionalism” means and we are likely to hear that

professionalism means “putting our client first or acting as an officer of the court.” Only

rarely will a lawyer say that professionalism means “putting justice first.” Never, I think

will a lawyer even suggest that professionalism means putting your profession first. My

entire paper is basically limited to this scenario what all ought to be as Legal

Professionalism with addressing the idea of ethics in it.

It is very difficult to leave a picture or create a picture in the minds of scholars or

professional about the professional ethics. The values and the standards associated with

the professional ethics pass the message of ethical accountability and responsibility. It is

not merely a guideline for the professional and the expected behavior associated with the

profession but it is moral values and inner standards which everyone ought to be followed

in respect of field. Professional ethics are standards or codes of conduct set by people for

the people in relation of a specific profession. Democracy has good platform for the

development of the professional ethics with the full realization without any intervention.

A code of ethics is an idea and also parts of the expectations of those involved in many

different types of professions and have tag of professional. No one in the profession want

to condone bad, dishonest or irresponsible behavior in relation of the professional ethics

but if it does occur by someone in their field the perpetrator have to bear the

responsibility and also liability. By setting out expected behaviors in the form of

professional ethics, professionals work together to try to uphold a good reputation.

Professional ethics are commonly known asethical business practices. Respect and

honesty are the two main components of professional ethics. All professionals are

expected to represent a respective profession ethically as they are a part of it. This is why

professional people traditionally speak of "we" or "us" rather than the more personal "I"

10

or “Me “for the most part.2 The question, “what is professional ethics” is straight forward

enough. It would also seem simple enough to answer. We have general image in the mind

regarding the word ethics. When we heard the word ethics certainly a reaction develops

in our brain like good, wrong, moral, immoral another word is professional seems self-

evident. When we mix or combine these two words that become professional ethics. But

it is true to say the meaning and background associated with the phrase “professional

ethics” is differing than the “Professional + Ethics”.

There are various disciplines where each and every discipline has its own ethical

standards. The every sector’s Professional ethics such as ethics of Doctor, Engineer,

Teacher, Professor, Business ethics Judges. Still there are certain standard of the human

ethics. The paper could also be dealing with the ethics of the all professional persons or

the person holding some socially high position. Despite that my paper in the subsequence

chapters will be dealing with specially the ethics of the legal practitioners.

1.2 Statements of Problems

Every research is done to find out something new facts, ideas, or theory which must be

based on some problems. Such Problems are not created but are existing in the area

where the researcher is trying to find out something. This seminar paper is dealing with

the following problems.

1) Whether the Ethics are legally created and binding.

2) Whether the legal ethics are universal in Nature.

3) Whether the legal ethics are properly followed in legal professionalism.

4) Whether the law regulating professional ethics has effective mechanism to implement.

2 American Bar Association Section of Legal Education and admissions to the Bar, “ Report of the

professionalism Committee” teaching and learning professionalism published by American Bar

Association-1996 page-05

11

1.3 Objectives of Study

The very ground reasons of the research is already discussed in the preface and the

introductive chapter previously. Based on such grounds this study carries the following

objectives.

1) To analyze the idea of ethics in respect to the legal professionalism;

2) To analyze the present condition of the implementation of the legal ethics;

3) To Analyze the Nepalese law of professional ethics of the lawyers and judges;

1.4 Methodology of Study

This study has adopted basically the doctrinal method of the research. The secondary data

has been applied and incorporated from the library, books, articles and some other

previous researches. Those principles, ideas and data are analyzed on the legal ground

with reference to the Nepalese scenario. The researcher has given his analysis on the

separate chapter nevertheless also has dealt in the subsequent topics.

1.5 Significance of Study

This research paper has great significance within its coverage and subject matters. The

present scenario of the legal ethics and professionalism is analyzed. It will be very

helpful for not only the upcoming law students but also become a reference for the

lawyers, judges, and other law practitioners to improve the implementation of the

professional legal ethics.

1.6 Limitations of Study

A single research paper may not cover all the necessary subjects in whole. This paper is

basically limited to the introduction of the law and ethics, legal profession and legal

ethics. It covers some international and national legal instruments to analyze the

problems. Besides that some national history is briefly introduced and analysis has been

done to find out the differences and progress. This seminar paper will not cover the all

12

international history of the concerned topic. In other hand, this study only covers the

professional ethics and its law of the lawyers and judges of the Nepal.

1.7 Review of the Literature

Since this is one of the emerging issue and having great role in the administration of the

justice, there are very few researches in this area. Although there are some researches

being done by the law students but are not published. Despite that, we can find lots of

papers done by the international/foreign researchers. Some of the papers which are

prepared by national and international researchers are as follows:

a) “A study of provisions and practices of Accountability in Nepal's Civil Society” a report

prepared by R.K Regmee for Transparency international Nepal, August 2001.

b) “Current Situation And Issues Relating To Ethics And Codes Of Conduct For Judges,

With Special Reference To The Criminal Justice System Of Nepal”, By Bishnu Prasad

Upadhyaya.

c) “Professional Responsibility of Lawyers” an Unpublished article by Yubaraj Sangroula,

Kathmandu school of Law

d) “A Research on Professional Ethics” by Arati Shrestha et.al.

e) “Legal Ethics and Professionalism” A Handbook for Uganda by D. Brian Dennison /

Pamela Tibihikirra-Kalyegira (Editors), 2014

f) “Professional legal ethics: a comparative perspective” Maya Goldstein Bolocan, Editor(

CEELI) Concept Paper Series July 8th, 2002 Central European and Eurasian Law

Initiative (CEELI) 740 15th St., N.W. Washington, D.C. 20005-1022

g) Various articles published in the “The Georgetown Journal of legal Ethics” vol. II, 1998,

h) “United Nations Basic Principles on the Role of Lawyers” (Adopted by the Eighth United

Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana,

Cuba, 27 August to 7 September 1990)

i) “Limits on client autonomy in legal ethics regulation” by Fred c. Zacharias, university of

San Diego law school, 2000

13

Chapter – II: Law and Ethics

2.1 General idea of law

The law is not strictly defined in this paper but it is tried to give a basic concept of the

law in respect to its nature. This is to distinguish the law with the ethics in the following

Chapters. Law is some set of rules which are formulated and created by the state for the

regulation of the behaviors of its citizens.

The law is the systematic set of universally accepted rules and regulation created by

appropriate authority, i.e. government, which may be regional, national and

international.3

The law is described as the set of rules and regulation, created by the government in order

to govern the whole society. The law is universally accepted, recognized and enforced. It

is created with the purpose of maintaining social order, peace, justice in the society and to

provide protection to the general public and safeguard their interest. It is made after

considering ethical principles and moral values.

Law is made by the judicial system of the country. Every person in the country is bound

to follow the law. It clearly defines what a person must or must not do. So, in case of the

breach of law may result in the punishment or penalty or sometimes both.4

As Austin defines law as the Command of sovereign and backed by sanction, it has the

very nature that always authorized by the superior authority which ended and

presupposes the sanction. Whatever the definitions are, the law is ultimately to regulate

the human behaviors and to make them more ethical and moral.

2.2 Introduction to Ethics

Ever since we were kids and became aware of our surroundings, our parents and elders

have instilled in us a fundamental awareness of what is right and wrong. It is actually an

3 Keydifferences.com “Differences between law and ethics”. http://keydifferences.com/difference-

between-law-and-ethics.htmlm (May 18,2016) 4 Id.

14

inherent trait of all humans and grows from our desire to get along well with each other

in order to live a harmonious life. To achieve this goal we understand that we must do to

other people what we expect them to do to us in return. For this, we try very hard to do

what we feel and see as the right things to do in certain situations. This is the foundation

of ethics. They are rules of conduct that shows how our society expects us to behave and

are the guiding principles behind the creation of laws.5

By ethics, we mean that the branch of moral philosophy that guides people about what is

good or bad. It is a collection of fundamental concepts and principles of an ideal human

character. The principles help us in making decisions regarding, what is right or wrong. It

informs us about how to act in a particular situation and make judgments to make better

choices for ourselves. Ethics are the code of conduct agreed and adopted by the people. It

sets a standard of how a person should live and interact with other people.

The principle is that ethical questions are to be resolved in terms of legal doctrine and

that they should be resolved by lawyers collectively in their occupational capacities and

not by lawyers individually in terms of personal or social norms or by broad based

political institutions.

Ethics usually fall into three categories – professional, social and individual. An

employer or company usually defines professional ethics and employees are required to

follow them. The general principles underlying most of the ethical dilemmas you will

confront in your career are addressed in the professional code of ethics defined by the

company or an institution. Professional codes of ethics may not provide detailed guidance

in all possible situations. You must have an inner sense of what is moral to be able to

apply ethics in specific situations. This is where social and individual ethics play an

important role. Social ethics are usually defined by society or a group and the primary

values existing in that group. Individual ethics are usually defined by personal heritage

and integral family values.6

So why is ethics important to the practice of law?

5 Differencebetween.net “Difference between law and ethics”

http://www.differencebetween.net/miscellaneous/politics/difference-between-law-and-ethics/ 6 Infra note 9

15

First because lawyers are integral to the working-out of the law and the Rule of Law itself

is founded on principles of justice, fairness and equity. If lawyers do not adhere and

promote these ethical principles then the law will fall into disrepute and people will resort

to alternative means of resolving conflict. The Rule of Law will fail with a rise of public

discontent.

Second, lawyers are professionals. This concept conveys the notion that issues of ethical

responsibility and duty are an inherent part of the legal profession. It has been said that a

profession's most valuable asset is its collective reputation and the confidence which that

inspires.

Third, is because lawyers are admitted as officers of the court and therefore have an

obligation to serve the court and the administration of justice.

And finally because lawyers are a privileged class for only lawyers can, for reward, take

on the causes of others and bring them before the courts.

2.3 Relation between Law and Ethics

It is already dealt that what basically the law and ethics are. These two concepts are

different but has very interconnection. Without ethical substance law has no enforcing

power itself and without law ethical standards will have no clear boundary, which will be

seen as blur in society.

Ethics is such moral principles that govern a person's or group's behavior. Sometime

these synonyms are given to understand the ethics although they can also be

differentiated in other grounds. Such terms are: moral

code, morals, morality, values, rights and wrongs principles, ideals, standards (of

behavior), value system, virtues, dictates of conscience. Etc.

Based on society’s ethics, laws are created and enforced by governments to mediate in

our relationships with each other. Laws are made by governments in order to protect its

16

citizens. The judiciary, legislature, and public officials are the three main bodies in a

government that are assigned to the task of the creation of laws. Laws have to be

approved and written by these three branches of government before they are implemented

and enforced by the police and the military, with the help of the legal system consisting

of lawyers and other government servants. While laws carry with them a punishment for

violations, ethics does not. In ethics everything depends on the person’s conscience and

self worth. Â Driving carefully and within the speed limit because you don’t want to hurt

someone is ethical, but if you drive slowly because you see a police car behind you, this

suggests your fear of breaking the law and being punished for it.

Ethics comes from within a person’s moral sense and desire to preserve his self respect.

It is not as strict as laws. Laws are codifications of certain ethical values meant to help

regulate society, and punishments for breaking them can be harsh and sometimes even

break ethical standards.

Take the case of the death penalty. We all know that killing someone is wrong, yet the

law punishes people who break the law with death. With this comes the argument about

whether laws are necessary at all. But it is important to note that without laws people are

aware of the chaos that might reign in society.

Ethics and laws are therefore necessary to provide guidance and stability to people and

society as a whole. 7

We cannot count on the legal system to be a complete and correct guide to moral

behavior, either for us as individuals in society or as members of a profession. Nor can

we expect the professional codes of ethics to be complete, consistent and correct for all

situations. There is no formal monitoring for compliance and little penalty that can be

assessed against violators. Goodness cannot be defined through a legalistic enumeration

of dos and don’ts. People must be able to use their internal sense of ethics to fill the holes

and resolve the conflicts that inevitably occur when following any code of ethics.8

7 Supra note. 4

8 Bowyer, (1996).Ethics & Computing, Computer Society Press,

http://tarlab.usu.edu/htm/et/law-ethics

17

The above sentences have defined all the differences between law and ethics. The very

point to be noted is, they both run in parallel form. But when the conflict arises between

law and ethics the ethics prevail over the law. It is because the ethics is such human

conscience which comes suddenly for the immediate situation.

For Example: If a women borrow some money for her husband’s care by making contract

with the money lender that she will marry with him if her husband will die. Finally, her

husband is died, and then the money lender claims that she must marry with him. Here

the question comes whether to prevail their contract or to prevail the law of ethics and

morality? Obviously, she need not to marry with the man lending money on the ground of

her ethical value neither she has to pay back the money taken with the contract which is

void ab initio.

The major differences between law and ethics are mentioned below:9

1. The law is defined as the systematic body of rules that governs the whole society

and the actions of its individual members. Ethics means the science of a standard

human conduct.

2. The law consists of a set of rules and regulations, whereas Ethics comprises of

guidelines and principles that inform people about how to live or how to behave

in a particular situation.

3. The law is created by the Government, which may be local, regional, national or

international. On the other hand ethics are governed by individual, legal or

professional norms, i.e. workplace ethics, environmental ethics and so on.

4. The law is expressed under the constitution in a written form. As opposed to

ethics, it cannot be found in writing form.

5. The breach of law may result in punishment or penalty, or both which is not in the

case of breach of ethics.

9 Keydifferences.com “Difference between law and ethics”. http://keydifferences.com/difference-between-

law-and-ethics.html (May 19, 2016)

18

6. The objective of law is to maintain social order and peace within the nation and

protection to all the citizens. Unlike, ethics that are the code of conduct that helps

a person to decide what is right or wrong and how to act.

7. The law creates legal binding, but ethics has no such binding on the people.

Law and ethics are different in a manner that what a person must do and what a person

should do. The former is universally accepted while the latter is ideal human conduct,

agreed upon by most of the people. Although, both the law and ethics are made in

alignment so that they do not contradict each other. Both go side by side, as they provide

how to act in a particular manner. Every person is equal in the eyes of law and ethics, i.e.

nobody is superior or inferior. Further, these two allows a person to freely think and

choose.

19

Chapter – III: Legal Ethics and Legal Professionalism

In terms of Law, Professional ethics may be defined as a code of conduct written or

unwritten for regulating the behaviour of a practicing lawyer towards himself/herself,

his/her client, his/her adversary in law and towards the court.10

The main object of ethics of the legal profession is to maintain the dignity of the legal

profession and the friendly relation between bar and bench. Chief Justice Marshall has

observed11

,

“The fundamental aim of legal ethics is to maintain the honour and dignity of the law

profession, to secure a spirit of friendly cooperation between the bar and bench in the

promotion of high standards of justice, to establish honourable and fair dealings of the

council with his/her client, opponent and witnesses, to establish a spirit of brotherhood in

the bar itself and to secure that lawyers discharge their responsibilities to the community

generally.”

This principle states that ethical questions are to be resolved in terms of legal doctrine

and that they should be resolved by lawyers collectively in their occupational capacities

and not by lawyers individually in terms of personal or social norms or by board based

political institutions.12

To understand the term legal ethics and professionalism, the explanation of those terms

felt necessary here. Lawyer and judges are the sole actors of every state to establish the

rule of law. Justice can only be imagined where the legal system and practice is best.

Unless and otherwise a legal system is stronger no people can enjoy their life liberty and

property in a country. In this ground the ethics to guide those professional is called the

professional ethics.

10

Kailash Rai, Legal Ethics, Accountability for Lawyers and Bench Bar Relations, 6th

Edition (Allahabad:

Central Law Publication 2005), 49.

11 Id.

12 Id.

20

3.1 Meaning of Legal Ethics and Professionalism

In modern democratic societies based on the rule of law, lawyers play a paramount role in

the administration of justice and in safeguarding human rights and fundamental freedoms.

In fulfilling their functions, lawyers operate concurrently as representatives of their

clients, officers of the legal system, and public citizens having special responsibilities for

the quality of justice. Virtually all ethical problems faced by lawyers arise from potential

conflicts between these three responsibilities. Maintaining and observing clear ethical

standards is a duty that lawyers owe not only to their clients, but also to the

administration of justice, their profession and the society at large.

When the terms Law, Ethics and their relation are already described above, Now we can

easily understand the term legal ethics. This is just by separating from the ethics of the

other discipline. The ethics applied in the law and concerned with the legal professionals

are legal ethics. Legal professionalism is simply the profession in law. Let’s say legal

practicing as lawyer, Serving as the Judge, Working in some governmental office of legal

field like Attorney general, Government Lawyer, Police prosecutor etc. Here for the

purpose of this paper the terms are dealt in a bit detail.

The terms legal ethics, professional responsibility, and professional legal ethics are used

interchangeably to indicate standards and rules regulating the conduct of lawyers faced

with conflicting moral and legal responsibilities. Such standards and rules are embodied

in the written laws, as well as in the customs, professional rules and judicial decisions of

a country. The creation of codes of ethics which incorporate such standards not only

provides the necessary guidance to lawyers confronted by multiple, competing duties, but

also contributes to fostering the client’s and the public’s trust in the legal profession.1

Lawyers therefore should adhere to clear ethical-professional standards and must be

disciplined when failing to do so.

3.2 Professional ethics of lawyers

A layer as a social engineer has the great role to protect the people’s life, liberty, and

property. Lawyers are the justice fighter of the society. A single mistake and minor

negligence can cause the great loss to a person. That may also destroy the whole social

21

life of a person. So that, a lawyer must be very sensitive of his act. To control some of the

unethical behaviors and to ensure the good morality; the Nepal Bar council has framed

the rules regarding the Code of conduct of the Legal Practitioners. Specially the lawyers

are referred as the legal practitioners by the Nepal Bar Council Act and the Rule framed

under that Act. This is dealt here in detail.

The Code of Conduct for Legal Practitioners, 2051 (1994)

A Legal practitioner shall abide by the following professional conducts:13

(a) A legal practitioner shall not commit any act contrary to the basic

principles of morality.

(b) A legal practitioner shall not induce his client to initiate any false case.

(c) A legal practitioner shall not fabricate a case with an intention to harass or

to avenge any person.

(d) A legal practitioner shall not withhold his cooperation to the court in the

disposal of cases either directly or indirectly.

(e) A legal practitioner shall not abuse or cause to abuse the judicial process.

(f) A legal practitioner shall not prohibit his client from making true

statement before the court.

(g) A legal practitioner shall not spreador disseminate or transmit a false

information of any kind which may bring dishonor to the court or Judge or

legal practitioner during the course of the discharge of judicial function.

(h) A legal practitioner shall not return the brief to his client in such a way

that the service of a new lawyer could not be availed of by him.

13

Code of Conduct for Legal Practitioners, 2051, Sec. 3(1), (2)

22

(i) A legal practitioner shall not misappropriate the funds of any organization

or association.

(j) A legal practitioner shall not act contrary to the following codes of

conduct:

- Shall be punctual to the court;

- shall appear in court in prescribed dress with black coat;

- shall show due respect to the Bench and opposing Counsel;

- shall refrain from making false accusation, expressing hatred or

angers or enmity against opposing counsel and his client;

- shall treat with courtesy to the officers/staffs of the Court;

- shall plead his case with due respect to the Bench only when his

turn comes up.

(k) No precedent to be cited and knowingly pleaded which has been already

overruled and no law be pleaded which is not applicable or is repealed or

which has been amended subsequently, in order to benefit one's client.

(I) A legal practitioner shall not knowingly assert any fact before the Bench

unless the same could be substantiated from the documents from his case

file.

(m) A legal practitioner shall not accept a case involving a document in which

he has reason to believe to be called himself as a witness.

(n) A legal practitioner shall not disclose any information communicated to

him by his client in his professional capacity in any manner.

(o) A legal practitioner shall not raise/use large signboard, no previous

designation or status not related to the legal practice to be published in

23

name card or visiting card or file or letter-pad with an objective of

commercial publicity.

Provided that this restriction shall not apply in case of those documents in

which a legal practitioner's field of specialization or expertise on particular

type of cases are indicated or printed.

(p) A legal practitioner shall not stipulate his fees on percentage or on

contractual basis or by way of bidding from the client.

(r) A legal practitioner shall not appear before a court under the influence of

any intoxicating drinks or drug the course of his professional duty.

(s) A legal practitioner shall not base his fees on the outcome of a case.

(t) A legal practitioner shall not submit any false record/statement to the

council as and when demanded.

(u) A legal practitioner shall not certify or sign any document which has not

been prepared by himself or under his instruction or advise the same is

prepared by his junior working in his firm/chamber.

(v) A legal practitioner shall not use or engage any tout or agent for

commission with a view to solicit any client.

(w) A legal practitioner shall not engage himself in the business/transaction of

transfer of properties as a broker.

(x) A legal practitioner shall not involve in drafting or pleading of the same

case on behalf of both the plaintiff and defendant and also shall not

instruct knowingly any other law practitioner or writer or other persons

who work under/with him.

24

(Y) A legal practitioner shall not prepare/use any blank paper obtained from

the client converting the same into a legal deed or construct a document

with a view to gain benefit for himself and causing harm to the client;

(z) A legal practitioner shall not destroy or otherwise render invalid as

evidence any original document obtained from the client on instance from

the opposite party to the case;

(aa) A legal practitioner shall not make available any original

documents/evidence received from his client to the opposite party with a

motive to bestow benefit to the latter.

(ab) A legal practitioner shall not commit any kind of corruption related

offence.

(ac) A legal practitioner shall not commit any crime related to moral turpitude.

(2) A Senior Advocate shall abide by the following code of conducts in

addition to the codes as referred to above in sub-rule (1):

(a) While pleading before a Bench in any case he shall not appear without

engaging at least one advance with him.

(b) A Senior Advocate, under normal circumstances, shall not appear before

an administrative offices for pleading.

3.3 Violation of Code of conduct and its punishments

In case of the violation of the code of the conduct of the legal practitioners, the

Council and the Disciplinary committee shall initiate and play the further role to

investigate and prosecute the case. The rule no 7 of the Code of Conduct provides

for the following punishments.

25

1. If any legal practitioner is found to have for the first time, violated the conducts

referred to in clause (a) to (u) of sub-rule (1) and in sub-rule (2) or Rule 3, he

shall be admonished.

2. If any legal practitioner is found to have violated the conducts referred to in

clauses (v) and (2) of sub-rule (1) or Rule 3, or violated the conducts after having

been awarded the punishment of admonition once before, his license shall be

suspended restricting him from legal practice for a specific period of time.

3. If any legal practitioner is found to have violated the conducts referred to in

clauses (x) to (ac) of sub-rule (1) of Rule 3 or if he is found to have violated the

conducts again even after having been awarded the punishment of suspension of

the license restricting the practice of law for a specific period of time, the license

of such a law practitioner shall be revoked.

3.4 Professional ethics of judges

“Lawyers are the justice fighter whereas the Judges are the Justice giver.” Having the

honorable position and a statute of justices in hand, the judges have to be very high

morally guided and bounded by the judicial mind. Judges are also the same human beings

as we are. But they have very special and distinctive role and authorities than others.

Judges of the country are, for the first time, getting a code of conduct of international

standard amidst realization that the existing code is obsolete. The nine-page code of

conduct obtained by the Post has eight main heads detailing what judges should and

should not do to uphold judicial independence, impartiality and people’s faith in the

judiciary.14

It says that judges should not come into “inappropriate” contact with members of the

executive and legislature.

14

Nepal America Legal Information Center, Judicial Code of Conduct of international standard ready, by Kiran Chapagain. https://anlus.wordpress.com/2008/03/14/judicial-code-of-conduct-of-int’l-standard-ready/

26

A seven-member committee led by Justice Khil Raj Regmi finalized the code of conduct

last Friday and handed it over to Chief Justice Kedar Prasad Giri. Giri has studied the

code before presenting it to the Full Court, the apex policy making body of the judiciary,

for its endorsement. The Full Court is expected to convene next week. The committee

prepared the code of conduct upon realization that the existing code of 1998 did not meet

international standards.

The code of conduct further says that judges should be impartial not only while passing

verdicts but also in the whole judicial process prior to the verdict. It demands that judges

be committed to judicial work.

“A judge should not let lawyers run their offices at his residence or meet parties to

subjudice cases at his residence,” the code of conduct states. The existing Code of

Conduct for Judges1998 is silent in this regard though the international code of conduct

for judges clearly prohibits judges from meeting with parties to cases at their residences.

In conclusion, “A high ethical and morally guided judge can deliver better justice than

that a judge having huge knowledge of the jurisprudence.”

The OHIO Code of Judicial Conduct, 2009 has specified seven Canons of the conduct of

the judges. Which are:15

1. A judge shall uphold the integrity and independence of the judiciary

2. A judge shall respect and comply with the law and shall act at all times in a

manner that promotes public confidence in the integrity and impartiality of the

judiciary

3. A judge shall perform the duties of judicial office impartially and diligently

4. A judge shall avoid impropriety and the appearance of impropriety in all of the

judge’s activities

5. [Reserved]

6. [Reserved]

7. Judges and judicial candidates should refrain from political activity inappropriate

to judicial office.

15

http://www.supremecourt.ohio.gov/LegalResources/Rules/conduct/judcond0309.pdf

27

Code of Conduct of Judges, 2065

The Banglore Principles of Judicial Conduct, 2002 , and the existing Code of Conduct of

Judges, 2065 has similar provisions about the code of conduct of the judges. It has basic

following principles:

• Independence ( Sec.3)

Independency of the judges is the back bone of the justice. Judges/Judiciary must

be given the power to act without any pressure from any governmental or political

influence. The weaker independency causes the failure of the fair justice. On the

other hand the people’s faith towards court will go down.

• Impartiality (sec. 4)

If there is any incidence or conflict occurs then people says ‘I will see you in

Court’. This is all about the faith towards the court that court will give the fair

justice. “One shall not be judge in his own case’ is the principle based on

reasoning of impartiality.

• Integrity (sec. 5)

A judge shall act as to prove ‘Justice is not only given but has done’. The personal

characteristics of the judges itself has to show that the judge is acting fairly.

Integrity of a judge develops the faith towards court.

• Propriety (sec 6)

Propriety is concerned with the moral standards of the person. It is the state or

quality of confirming to conventionally accepted standards of behaviors or

morals. Judges shall always be careful of their behaviors either in court or outside

the court.

• Equality (sec 7)

28

On the due process of the law, all must be treated equally in the court. It is also

related to the principle of impartiality. This principle emphasizes more on non-

discrimination. There are various people from various background and having

different caste, race, color, gender, and region and so on. They must not be

discriminated in any way.

• Competence and Diligence (sec 8)

A judge shall be competence in his task. Incompetency of a judge leads to failure

of other all conducts. He/she must be qualified and has to have proper knowledge

and wisdom. Decision must be from the judicial conscience of own. Secondly a

judge must be diligence of his work. It is meant to comply a judge to attend the

court regularly and feel own self responsible of the function.

29

Chapter –IV: Principles of Ethics of legal Practitioners

Principles of legal ethics, whether written or unwritten, not only regulate the conduct of

legal practice but also reflect the basic assumptions, premises, and methods of the legal

system within which the lawyer operates. They reflect as well the profession’s

conception of its own role in the administration of justice.16

There are various National and international norms, principles regarding the ethics of the

legal Practitioners including judges. Which are dealt following.

4.1 International standards and norms:

Important international standards to address standards and norms for judges, prosecutors

and law enforcement officials are outlined below.

1. UN Convention Against Corruption, 2003 Art 11(1) and (2) opine that State

Parties shall take measures to strengthen integrity and to prevent opportunities for

corruption among members of judiciary and prosecutorial authorities, i.e. rules

relating to conduct of members of judiciary and prosecutors.

2. IBA principles on Conduct for the legal profession, 28 May, 2012

3. Basic Principles on the Independence of the Judiciary, 1985

4. Procedures for the effective implementation of the Basic Principles on the

Independence of the Judiciary, 1989

5. Bangalore Principles of Judicial Conduct, 2002

6. UN Guidelines on the Role of Prosecutors, 1990

7. UN Codes of Conduct for Law Enforcement Officials, 1979

Some National Instruments:

Nepal Bar Council Act, 2051

Nepal Legal Practitioners Act, 2050 and Rules

Nepal Bar Association Act, and Rules

16

Mary Ann Glendon, Legal Ethics, Encyclopedia Britanica, http://www.britannica.com/topic/legal-ethics (May 19)

30

Supreme Court Niyamawali, 2049

Appellate Court Niyamawali,

District Court Niyamawali, 2052

Code of Conduct for Judges, 2055

Code of Conduct for Legal Practitioners, 2051

These all laws are not dealt here in detail but only the basic principles adopted by those

all National and International standards are dealt randomly.

It is obvious that the Case managers must protect the public interest in an increasingly

cost conscious environment. Ethical standards have taken on heightened importance, and

the professional case manager needs to know what’s at stake.17

4.2 The Basic Principles of the legal Professionals ethics:18

1. Principle of Neutrality

According to the principle of neutrality, the lawyer must not allow their own view

of moral status of the client’s objectives or character to affect the diligence or

zealousness with which they pursue the client’s lawful objectives. The

professional relation between the lawyer and the client is not to judge wrong and

right of client, but it is to defend.19

Principle of neutrality is one of the important principles for a lawyer as he/she is a

representative of a client and has special responsibility for the equality of justice.

Principle of neutrality means that the relation between the lawyer and the client

should not be that the lawyer should judge wrong and right of client. It is a pure

professional relation.20

When lawyers believe one thing over another and start to

17

Corin Valliant, Susan Jensen. (2012) Ethical and Legal Issues, Commission for case manager

certification (CCMC), Issue brief, vol 3 Issue 4. 18

International Bar Association, “IBA principles on conduct for the legal profession.” adopted on 28 May

2012. http://www.ibanet.org/Document/Default.aspx?DocumentUid=1730FC33-6D70-4469-9B9D-

8A12C319468C 19

Ronald D. Rotunda, Professional Responsibility, 5th

Edition (West Group), 44.

20 John T. Noonan & Richard W. Painter, Professional & Personal Responsibilities of the Lawyer (New

York: Foundation Press 1997), 374.

31

impose their beliefs, they lose the ability to think clearly because they have

become involved in the case; they want to prove themselves right.

2. Principle of Conflict of interest: A lawyer is at times faced with the question of

whether to represent two or more clients whose interests conflict. Quite aside

from his ethical obligations, the legal systems of the world generally prohibit a

lawyer from representing a client whose interests conflict with those of another,

unless both consent.21

The same principles apply with respect to interests of the

attorney that may detract from the full and faithful representation of his clients.

For example, he may not purchase property that he has been retained to acquire

for his client, nor may he draw a will in which he is a beneficiary.

These conflict-of-interest prohibitions are not absolute. The client may consent to

the representation after full disclosure of the actual or possible conflict. But even

the client’s consent may not suffice if public interest is deemed to be adversely

affected.

3. Independence: A lawyer shall maintain independence and be afforded the

protection such independence offers in giving clients unbiased advice and

representation. A lawyer shall exercise independent, unbiased professional

judgment in advising a client, including as to the likelihood of success of the

client’s case.

4. Honesty, integrity and fairness: A lawyer shall at all times maintain the highest

standards of honesty, integrity and fairness towards the lawyer’s clients, the court,

colleagues and all those with whom the lawyer comes into professional contact.

5. Confidentiality/professional secrecy: A lawyer shall at all times maintain and be

afforded protection of confidentiality regarding the affairs of present or former

clients, unless otherwise allowed or required by law and/or applicable rules of

professional conduct.

Confidentiality is the privilege attached to communication where these contain

confidential information supplied for the benefit of the client and can be weighed

21

id.

32

by the client if he or she chooses. In the case of Johns v. Smith22

, a decision of the

Supreme Court of Canada the privilege was justified on the ground that – "Clients

seeking advice must be able to speak freely to their lawyers secure in the

knowledge that what they say will not be divulged without their consent."

6. Clients’ interest: A lawyer shall treat client interests as paramount, subject

always to there being no conflict with the lawyer’s duties to the court and the

interests of justice, to observe the law, and to maintain ethical standards.

7. Lawyers’ undertaking: A lawyer shall honor any undertaking given in the

course of the lawyer’s practice in a timely manner, until the undertaking is

performed, released or excused.

8. Clients’ freedom: A lawyer shall respect the freedom of clients to be represented

by the lawyer of their choice. Unless prevented by professional conduct rules or

by law, a lawyer shall be free to take on or reject a case.

9. Property of clients and third parties: A lawyer shall account promptly and

faithfully for and prudently hold any property of clients or third parties that comes

into the lawyer’s trust, and shall keep it separate from the lawyer’s own property.

10. Competence: A lawyer’s work shall be carried out in a competent and timely

manner. A lawyer shall not take on work that the lawyer does not reasonably

believe can be carried out in that manner.

11. Fees: Lawyers are entitled to a reasonable fee for their work, and shall not charge

an unreasonable fee. A lawyer shall not generate unnecessary work to get more

fees. Law does not specify the fee of the lawyer. It is because they could

sometime serve the society free of cost or with very low charges. It seems from a

lawyer’s behavior of charging fees whether he/she is highly ethical or not.

These principles are equally and universally applied in all legal profession of all kind

of legal system. Since these principles has covered most of the area of the legal

practicing. But in case of the judges the principles and the terms could be difference

due to the different nature of the work. There are various duties of the lawyer which

22

Johns v. Smith [1999] 1 SCR 455.

33

shall be fulfilled towards the court. Honoring court, bench, Being polite, not

misbehaving with defense lawyer, Being sincere to the Cross-examination, No

leading question, No false counseling to own client and so on.

34

Chapter –V: Analysis and Findings

5.1 Analysis

From the very ideas/ contents mentioned above the legal ethics are in any way guided by

the laws and regulations. But the reality is whatever the laws are made those laws can not

interfere a innerbeing of a human neither it can influence a basic conduct. Although it

creates some obligations and duty which is socially not accepte and creates some fear

before people to disobey it. The thing is it always depends upon the particular lawyer’s

belief, nature, practise and behaviors. How a lawyer is influenced by the activity of other,

how he/she is motivated by the money and so on.

Money is the root cause for most of the problems. Here I am trying to explain about the

money and the justice. Justice can not be measured in monetary value. Justice is

something which comes in a persons heart which makes feel happy with something

about. In this way if a lawyer put justice first then all other things goes right. A lawyers

God is Justice, he must always seek, respect, and honor it. To clearify the unethical

behavior of a lawyer we can take an example as following:

Husband and wife of a family were kept in a police custody and were accused of

homicide. They had 3 children aged 5, 6 and 8 years respectively and they ere taking

care by relatives. Who were undertaking the guardianship of the children were suggested

by the defence lawyer not to provide food to the children for two days before appearing

in the court so that the judge might be influenced by the pathetic condition of the

children.

On the very date, parents and children were brought together in the court room and while

the parents appeared to the bench the lawyer suggested to their relatives to pinch the

children and made them to cry so that the judge would be influenced and release either of

the parents from the bailment.

We can easily say that the lawyer had very motive to win the case instead of giving real

justice to the children. He could find out out some legal ground to decrease the

punishment for their parents. Nobody can file suit and prove against that lawyer that he

made those children looking pathetic and cry in the court.

35

In this background ethics are basically not to be created but are developed inside a

person’s heart. It can not be created neither be destroyed by state law. While saying this,

I am not totally avoiding the law made by the state authority to regulate the ethical

behaviors of the lawyers but those laws are still meaningless unless and otherwise a

lawyer do follow it. Still thoses laws are strictly binding to all the legal Practitioners.

Another benefit of those created legal mechanish is to punish and make aware of the

other lay people.

One of the much unidentified problem in a lawyer is that he can not find and differentiate

between his Role and Identity. In this regards Dr. Yubaraj Sangraula states that:

“If I close my eyes and imagine a ‘lawyer’, I expose myself to a role. If I close my eyes

and see ‘me’, I expose myself to an identity. And If I close my eyes and see ‘myself as a

lawyer’, I expose myself to the conflict between my role and identity. The role concept is

sociological- seen from the outside in; the identity concept is psychological-seen from the

inside out.”23

Role is something seen in a person by the society, Such as my role is to plead the case or

to represent a client. Identity is something which is seen in oneself, such as I am a normal

person as other are there in society or I am someone who don’t like football. In this

perception, a Lawyers role is to represent client, do justifiable favor to client, to practice

law, to follow court procedure, etc. but the identity of every lawyer is different. That

identity is determined by what s/he believes in, what s/he follows, to whom s/he is

responsible and by whom he/she is guided. Once the identity and role is determined then

a lawyer can be able to adjust with his job and interest. This rule is not only applied to the

lawyer but also to judge and other professionals. Finally the ethics comes/generated from

the identity issue. It is determined by the factor which determines its identity.

In this way the laws are always created to guide and regulate the role of the lawyer but

his behaviors and role are more guided his identity. So that to be a highly honored, ethical

and renounced lawyer or legal practitioner one must be familiar with his role and identity.

23

Dr. Yubaraj Sangroula, “Professional Responsibility of Lawyers” (KSL) Lecture note

36

5.1.1 Case Study:

In this chapter some of the cases decided by the Supreme court has been analyzed. There

are many cases to be considered but here are only few cases which are taken as the

reference to find out the judicial status of the legal ethics.

Case 1. Suwarna Prajapati vs. Kabhrepalanchowk District Court et al.24

Supreme Court

Hoborable Judge Mahesh Ram Bhakta Mathema.

Facts: Suwarna Prajapati was a legal writer. He wrote a sale deed between Maya

Tamangni and Lal Bahadur Yonjan to sell the land of Maya Tamangni. It was found that

while signing the deed, there was Mahili Tamangni Instead of Maya Tamangni. Suwarna

himself made to sign by the Mahili Tamangni by taking the benefit of absence of Maya

Tamangni. The district court has decided to seize the license of the Suwarna Prajapati.25

So his license was so seized. Then after Suwarna Prajapati goes to supreme court by writ

petition claiming that he was unknown about who is Maya and Who is Mahili. He Just

believed that she was Maya Tamangni. Still he did not denied that the deed was written

by himself. On the ground of not knowing the person he claim to repeal the decision of

the district court which violated the fundamental right of occupation of the petitioner.

Supreme Court Held: The legal Practitioner’s Rules, 2025 sec 27 prohibits any

practioner to cause sign the documents other than by the original person. Similarly sec 28

provides the punishment to seize the license of the practioner for such conduct. Since the

applicant has not given sufficient proof of his good acts with good intention. And he also

agree with the document that was written by him, the petitioner is found guilty of

violating the rule of legal practioner. The decision of the district court is approved and the

writ has been quashed.

Case 2:

24

NKP 2046 vol. 6 25

The given case does not explain about who filed the case to district court of Kabhrepalanchowk. Since this case is the writ petition filed by the Suwarna Prajapati.

37

Tuil Maya Chakradhar vs. Chairperson of S.C. Bar Association Shambhu Thapa et al.26

Honorable Justice : Krishna Jung Rayamajhi.

Facts: The plaintiff so claimed that, Shambhu Thapa has pleaded a case in 2052/2/4 in

Supreme Court Bench no 1. The sentence so pleaded was itself against his own client.

That was against the principle of best interest of the client. At that time case is filed

against him but the Nepal legal Practitioner Council did not issued summon in the name

of Shambhu Thapa which was against the Article 11(1), 16 and 17 of the Constitution of

the Kingdom of Nepal. On the other hand that was also against the 11(a)(5) of the Legal

Practioner Act 2050. The defendant must be summoned and charged with violation of the

code of ethics.

The second claim was, since the 11(5) of the Legal practitioner Act, did not give the right

to appeal against the legal practitioner to ordinary person. Only legal Practitioner has the

right to file appeal against the violation of the Conduct. In this ground that provision is

contradictory with the Constitution of Kingdom of Nepal and the Right to Justice. It was

claimed to repeal the provision.

From the side of defendant including Nepal legal practitioner council and disciplinary

Committee, it was stated that the petition has no legal ground and Shambhu Thapa has

not pleaded against his client’s interest. From the prior investigation, the Disciplinary

Committee did not find any violation of the legal ethics so that it was not necessary to

issue the summon in the name of defendant.

Supreme Court Held: The sec 11(2) of the Nepal Legal Practitioner Council Act, 2050

states that, if any petition is filed against any legal practitioner, the Council and its

disciplinary committee shall conduct the investigation and if the offender is found guilty

by the Committee then he/she must be summoned and sued. In this case, defendant was

not found guilty by the investigation of the disciplinary committee. So it was not

necessary to sue against him.

26

NKP 2053 , Vol.7. p611

38

Dealing with the Second question, The Nepal Legal Practitioner Act from its preamble is

made to protect and promote the rights of the Legal Practitioner not of the other’s right.

Sec 11(5) gives the appeal right only to the legal practitioner. Since the petitioner is not a

legal practitioner he has no appealing right. This is the special privilege given to the legal

practitioners. In this ground that law is not inconsistent with Constitution or any other

laws. So the decision of the Disciplinary Committee is not against any prevailing laws.

This decision is basically on the ground that the lawyers are believed to be highly ethical

persons. On the other hand its basic jurisprudence is that lawyer’s can not do serious

violation of the law.

Case 3:

Adv. Lila Mani Poudel vs. HMG Council of Minister Secretariat and Others,27

Facts: The Legal Aid Act and Rules so formulated had the provision not to provide legal

aid for some of the Crimes like Rape, Murder or other highly moral turpitude offences.

The applicant Adv, Lila mani Poudel has filed writ and pleaded that, by the principle of

Criminal law unless and otherwise proved, the accused is presumed to be innocent. It is

not so fair to decide not to provide legal aid before deciding whether he/she is guilty. So

that, the law must be amended.

The Supreme Court held that, The issue raised by the applicant is genuine. Legal aid is

such a system which is basically ensures the fairness and equal justice. So that every

accused must be provided the legal aid.

Connecting to the issue of Legal ethics, every lawyer has similar minimum ethical

standards specified by the law. If any lawyer would say that he does not plead case for

the accused, its upto the lawyer. But by the professional ethics, it is not illegal to for the

criminal. Now it is constitutionally guaranteed the fundamental right to access the legal

aid. So State must provide the legal aid through its lawyers.

27

NKP 2060, vol 5-6, p. 354

39

Case 428

:

Pro. Shambhu Thapa, Legal Advisor Forum vs. Chief Commissioner, Commission on

Investigation of Abuse of Authority and others,

Supreme Court: Honorable Chief Justice Mr. Kalyan shrestha and Honorable Justice

Mrs. Sushila Karki.

Here it is found that, without the official decision of CIAA, without the sufficient proof,

and without the proper investigation but only by the directive letter of 2070-5-21, the

Revenue investigation Department has searched out (Khaan Talaasi) inside the firm of

the applicant/ legal practitioner, and seized/took some computer and paper documents. In

fact, there was even not done a minor investigation on how much tax and revenue was

due to pay by the Firm? How much tax evasion was done? But directly entering into the

firm and taking some documents and computers is very irrational. This work done by the

defendant Revenue Investigation Department has also violated the special right to privacy

among those legal practitioners and their clients.

It is clear that it is the legal and professional duty of the legal Practitioner to pay the tax

specified by law or any payment to be made to the state. In case of the payment of the

due tax, the Income Tax Act and other laws has provided the sufficient legal mechanism.

It is also proved that the applicant’s firm has paid all the tax up to the fiscal year

2070/071 and there is no dispute on this. In this regard, since the CIAA has not made any

decision which is to prosecute against the applicant’s firm, the work done against the

firm without any investigation but only with the directive letter, does not seem legal. All

works done and the letter also hereby declared void by the order of the certiorari.

After this, unless and otherwise having proper investigation under and within the

jurisdiction provided by the law, the works like Search out (Khaan talaasi) which

prejudice and interferes with the jurisdiction, fundamental and legal rights of others must

not be conducted or cause to conduct only with the directive letters and hereby the order

28

A recent case decided by supreme court in 2072/9/27 (the full text of this case has not been published yet. Only the summary of the decision has been dealt here)

40

of mandamus is issued in the name of the defendants. Furthermore, the defendants are

also ordered that, without a minimum investigation and decision, no irrational

interference shall be done which violates a person’s occupational special rights, ethics

and privacy.

This case has great importance in establishing the coordination between any

governmental officers, legal Practitioners, and People. It has addressed the legal duty of

the lawyer on the other hand also emphasized to rule of law and due process of Law. May

be the full text of the case would address in detail about most legal ethical and procedural

part.

In Conclusion, the main role of implementation of the laws regulating code of conduct

really depends upon the lawyer’s association, Bar Council, Disciplinary Committee of

The legal Practitioner’s Council and so on. Form above cases, the basic mechanism to

implement the code of conduct is the procedural part of the prosecution.

The main challenge to implement the code of conduct and to prosecute the legal

Practitioners is, the members of the Bar, Bar Council, Disciplinary Committee (who

holds the authority to prosecute )are same those of Legal Practitioner. I case of the Tuil

Maya Chakradhar vs. Shambhu Thapa, It is decided that there was no violation of the

conduct by the defender Shambhu Thapa. Since he was the Chairperson of S.C. Bar

Association at that time, by the authority the court and all proceedings could go in favor

of him. May be there was no such misconduct but my point is, a same person being

prosecutor and offender never gives the faith of fair hearing and proceedings.

5.1.2 Legal Ethics: Civil vs. Common Law system

Lawyers’ codes of conduct respect the same core values almost in all legal systems.

Similarly in both in Europe and in the United States: independence of professional

judgment, confidentiality of client communications, loyalty, and the avoidance of

conflicts of interest. Nevertheless, there are remarkable differences, especially when the

analysis focuses on the United States and European countries of civil law tradition. These

41

inconsistencies reflect fundamental differences existing in the perception of the role of

lawyers, the values attached to the legal profession, and legal systems of these countries.

The similarities and dissimilarities in the understanding of professional legal ethics in the

common and civil law systems is best addressed by contrasting the codes of conduct, the

legal systems, and the disciplinary regimes in the United States and several countries in

western Europe.

While distinguishing the legal ethics in civil and common legal system, we must

understand first that about the source of law, codification process, practice, status of

judges and lawyers, legal education system and so on. Considering these factors, the legal

ethics are determined in a legal system.

First, the drafting styles of the codes in the United States and European civil law

countries are remarkably distinct. While codes in the United States are more legalistic

and formal, and their principles are more likely to be expressed as rules rather than

standards, civil law codes frame their norms in more general, less precise terms.

Moreover, unlike ethics codes in the United States, civil law codes include provisions

emphasizing the collegiality of the Bar, the duties that lawyers owe to one another, and

the responsibilities of lawyers for the training and education of lawyer-aspirants.29

Looking at another difference that shapes ethical behavior, judges from civil law and

common law legal regimes have different career trajectories and roles that influence

attorneys' advocacy and create different expectations about fairness and justice. In our

common law system, service as a "judge" is a high honor awarded to lawyers who have

advanced in their legal careers and won the respect of their brethren. As we know all too

well, judges who practice in common law regimes have "broad interpretive powers, and

in fact, distinguish themselves by using these broad interpretive powers to re-interpret

29

Maya Goldstein Bolocan, Professional legal ethics: a comparative perspective”( CEELI) Concept Paper Series July 8th, 2002 Central European and Eurasian Law Initiative (CEELI)

42

precedent and create new case law. However, judges in the civil law system are civil

servants and do not have the stature accorded to judges in the common law system.30

Third, the approach taken by the United States and European civil law countries to

conflicts of interest is remarkably different. In the United States, codes permit a client to

waive most conflicts, provided that the client is fully informed and voluntarily assents.

By contrast, civil law codes generally do not contain waiver provisions. Consequently, if

a lawyer does not perceive a conflict, there is no need to withdraw from a representation.

In other words, lawyers in civil law systems tend to view conflicts as “a matter of

personal ethics, not law. Conflicts are a matter of your relationship with your client.”31

The International Bar Association Code of Ethics is one such attempt to harmonize the

divergent ethical codes. However, other ethics commentators, including this author,

believe that a true global theory of ethics is aspiration and not readily achievable in any

meaningful way. As we have discussed, there remain fundamental ethical differences that

will not be eradicated with an international code of ethics.

5.2 Findings

While describing and analyzing all the facts, these are the findings of the researcher

which are concerned to whether the statements of problems are solved.

Lawyers are the officers of the court and fighter for the Justice and Judges are the final

deliverer of the Justice. Legal system of a country, peace, justice, life, liberty, and

property of people is totally depended on these two professionals.

Legal Ethics are the matter of the personal behaviors and inner conscience of the legal

practitioners. Principally ethics are not legally created but the laws created to regulate the

30

Elayne E. Greenberg, (2011) “The Globalized Practice of Law: Part Two” NYSBA New York Dispute Resolution Lawyer Vol.4 No.3 http://www.stjohns.edu/sites/default/files/documents/law/greenberg-the-ethical-compass-globalized-practice.pdf (May 26, 2016) 31 Justin Castillo, ((1992).International Legal Practice in the 1990s: Issues of Law, Policy, and

Professional Ethics, 82 American Society Of International Law Proceedings 272, 283

43

ethical conduct are important to harmonize and settle the dispute arisen, which are

binding in nature.

Every legal system follows certain legal norms, ethics and the conduct. Although some of

the factors may vary in every legal system but the legal ethics is the first concern of

establishment of justice universally. In this way the legal ethics are universal in nature.

The practice of a particular rule of ethics may vary.

Legal ethics which are specified by the law are strongly binding, no matter whether one

can follow or not.

While analyzing the cases it is found that, legal ethics are knowingly unknowingly

violated by the legal practitioners. Even the judge can be influenced by the circumstance

created by the lawyer.

For the effective implementation code of ethics and establishment of the justice, it is

provided the right to file suit against the violator of the conduct, although there is no

appeal right for ordinary people (against legal practitioners) in Nepal.

Since the main mechanism to prosecute is the Legal Practitioner’s Disciplinary

Committee which consists the Chairperson and member among legal practitioners, it is

hard to believe that the prosecution against a legal practitioner is fair.

It is found that the legal mechanism is adequate to establish the better highly ethical

justice system, but the Procedural part such as to investigate, prosecute, implement the

judgments, is weak. We can take the example of the case Badri Bahadur Karki vs,

CIAA32

, in which it was held that Badri Bahadur as Attorney General can exercise his

power in certain discretion and this is not questionable. But it was not found whether

discretionary power was purely exercised under the legal principle.

There is the problem in most of the legal practitioners that they don’t find their Roles and

Identity in special. The personal idea, faith, thinking, likes should not directly affect a

lawyers Role. Rather there should be the professional, ethical, and legal basis to act as a

lawyer. 32

Supreme Court Full bench, NKP 2058 vol. 5/6 p.239

44

In fact the practice of the ethical behaviors always depends upon the belief, culture, social

system, education of the practitioner. For example : If a lawyer is Muslim then he/she

may think abortion as the serious crime, and may influence a person not to abort in any

condition. Since it is legal to abort in certain cirumtances, the lawyer may not go through

the legal way but may go through his belief. Similarly the education system of the

different legal system varies.

45

Chapter –VI: Conclusion and Suggestions

Lawyers have played a prominent part, not only in the freedom struggle, but in earlier

days also, in shaping the Nepalese history. The legal profession has been aptly

summarized by justice P.B Sawant in an important judgment of the supreme court of

India as follows.33

” The legal profession in solemn and serious occupation. It is a noble

calling and all those who belong to it are its honorable members. Although the entry to

the profession can be had by acquiring merely the qualification of technical competence,

the honor as a professional has to be maintained by its members by their exemplary

conduct both in and outside the court. The legal profession is different from other

professions in that what the lawyers do. After not only an individual but the

administration of justice which is the foundation of civilized society. Both as a leading

member of the intelligentsia of the society and as responsible citizen the lawyer has to

conduct himself as a model for others both in his professional and in his private and

public life. The society has a right to expect of him such ideal behavior”

The profession of law is called a noble profession. It does not remain noble merely by

calling it as such, unless there is continued corresponding and expected performance of a

noble profession. Its nobility has to be preserved, protected and promoted. An institution

cannot survive on its name or on its past glory alone. The glory and greatness of an

institution depends on its continued and meaningful performance with grace and dignity.

The profession of law seeing noble and an honorable one, it has to continue it’s

meaningful, useful and purposeful performance inspired by and keeping in view the high

and rich traditions consistent with its grace, dignity, utility and prestige.

It is recognized that the ethical rules of the legal profession are designed to guarantee the

performance of the function of the lawyers. “In a democratic society, the profession of

lawyers has to be regulated by its members; consequently, lawyers should respect the

discipline of their own law society or bar and the practice in accordance with the general

principles governing the profession.”34

33

Keshav Dayal, Reflecting of lawyer, Universal law publishing, Co. Pvt. Ltd ( 6) 34

http 8//pdc.ceu.hce/archieve/00002351/01/full-text_of _kyr.pdf

46

Apart from knowing the importance of professional ethics, the most important thing

which we should point out is the falling standard in legal profession in respect of

following ethics. Lawyers should not violate their professional ethics to protect the

dignity and honor of their profession. Therefore we can conclude that it is necessary to

take corrective steps in time to protect the dignity of legal profession

Suggestions

From the above finding and analysis I conclude that the lawyers often fail to follow the

professional ethics as set by national and international laws. But in case of judges we

rarely find who violates the code of ethics. May be that is due to the role only as an

umpire. The Lawyer code of conduct, 2051 set by national legislation of Nepal has not

been fully effectively implemented. Despite that the court is playing prominent role to

implement the code instead of the other subordinate bodies like Bar association, bar

Council and so on. Lawyers are not very serious about following the code of conduct.

Even we can find some of the renounced lawyers in whose cases there is biasness in

decisions. So from this we can see falling standard in legal profession in following

ethics. Therefore for the effective implementation of lawyers’ code of conduct and the

Code of conduct of the Judges, in context of Nepal I have got some recommendations

which are as follows:

1. For the effective implementation of code of conduct, the primary essence is the

sense of internalizing the professional responsibilities by both professionals ie

lawyers and judges.

2. Secondly the lawyers should differentiate between their role and identity. In this

way the laws are always created to guide and regulate the role of the lawyer but

his behaviors and role are more guided his identity. So that to be a highly

honored, ethical and renounced lawyer or legal practitioner one must be familiar

with his role and identity.

3. There must be direct and exclusive judicial control mechanism for regulating

lawyers disciplinary.

47

4. State must provide adequate number of prosecutors as per the reciprocity of the

load of the cases.

5. Lawyers shall be a Good researcher for well preparation of their case.

6. Judges must more close his eyes and open his ears to hear the dispute. In this

sense, judge should not only focus on the lawyer’s argument, rather he/she must

go beyond this and with the judicial mind. He must find out whether a lawyer is

convincing or confusing the judge.

Although we are finding that our world gets smaller and smaller, our globalized legal

practice requires us to be more culturally attuned to our international brethren if we are to

effectively engage in dispute resolution. Legal ethics are the embodiment of the cultural

values of a legal system and its broader society. To fully appreciate the meaning of the

ethical differences between us and our colleagues from civil law countries, we have to get

beyond the actual written word and understand the context. The limited allocated space of

this column forced me to distill a complex and nuanced topic in a few short pages. Yes,

there remain many unanswered questions. Optimistically, I believe that awareness of the

complexity of this topic, as with any cultural learning, makes for a good beginning.

48

Bibliography and References

1) Regmee R.K,“A study of provisions and practices of Accountability in Nepal's Civil

Society” a report prepared for Transparency international Nepal, August 2001.

2) Upadhyaya, Bishnu Prasad “Current Situation And Issues Relating To Ethics And

Codes Of Conduct For Judges, With Special Reference To The Criminal Justice

System Of Nepal” (2014)

3) Sangroula, Yubaraj, “Professional Responsibility of Lawyers” an Unpublished article,

Kathmandu school of Law

4) Shrestha Arati,“A Research on Professional Ethics” (Ksl)

5) Dr. Dennison, Brian “Legal Ethics and Professionalism” A Handbook for Uganda by

/ Pamela Tibihikirra-Kalyegira (Editors), 2014

6) Goldstein Bolocan, Maya “Professional legal ethics: a comparative perspective”

Editor( CEELI) Concept Paper Series July 8th, 2002 Central European and Eurasian

Law Initiative (CEELI) 740 15th St., N.W. Washington, D.C. 20005-1022

7) Various articles published in the “The Georgetown Journal of legal Ethics” vol. II,

1998,

8) “United Nations Basic Principles on the Role of Lawyers” (Adopted by the Eighth

United Nations Congress on the Prevention of Crime and the Treatment of Offenders,

Havana, Cuba, 27 August to 7 September 1990)

9) Zacharias, Fred c., “Limits on client autonomy in legal ethics regulation” by,

university of San Diego law school, 2000

10) Keydifferences.com “Differences between law and ethics”.

http://keydifferences.com/difference-between-law-and-ethics.htmlm (May 18,2016)

11) American Bar Association Section of Legal Education and admissions to the Bar, “ Report of the

Other References

International Bar Association, “IBA principles on conduct for the legal

profession.” adopted on 28 May 2012.

http://www.ibanet.org/Document/Default.aspx?DocumentUid=1730FC33-6D70-

4469-9B9D-8A12C319468C

49

Ronald D. Rotunda, Professional Responsibility, 5th

Edition (West Group), 44.

John T. Noonan & Richard W. Painter, Professional & Personal Responsibilities

of the Lawyer (New York: Foundation Press 1997), 374.

Maya Goldstein Bolocan, Professional legal ethics: a comparative perspective”(

CEELI) Concept Paper Series July 8th, 2002 Central European and Eurasian

Law Initiative (CEELI)

Elayne E. Greenberg, (2011) “The Globalized Practice of Law: Part Two”

NYSBA New York Dispute Resolution Lawyer Vol.4 No.3

http://www.stjohns.edu/sites/default/files/documents/law/greenberg-the-ethical-

compass-globalized-practice.pdf (May 26, 2016)

Justin Castillo, ((1992).International Legal Practice in the 1990s: Issues of Law,

Policy, and Professional Ethics, 82 American Society Of International Law

Proceedings 272, 283