Professional Ethics iGuide | www.sllciguide.

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CONTENTS

1. What is Professional Ethics?................................................................................. 1

2. Relevant Articles of the Constitution................................................................ 2

3. Attire of Judges and Attorneys at Law.............................................................. 3

4. Relationship Between Lawyer & Client ........................ .................................... 4

5. Confidential Information..................................................................................... 6

6. Ceasing to Act As An Attorney-At-Law ............................................................ 8

7. Touting and Advertising....................................................................................... 9

8. Disciplinary Action............................................................................................... 11

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WHAT IS PROFESSIONAL ETHICS?

Ethics are standards by reference to which preferable conduct relating to a certain area f
human activity may be determined.

Professional Ethics is a set of standards relating to the activities of professionals

It is important because,
• The number and frequency of ethical violations is increasing thus leading to the
erosion of public confidence in the profession.
• New entrants should be equipped to deal with ethical issues.
• Public insists on high quality service and value for money
- Dr. Amarasinghe

Features of the Profession

With the development of society there have developed groups and within such groups
knowledge was shared in order to accelerate growth, thereby a scientific approach appears
to have developed where those groups eventually are recognised as a profession.

Together they act to strengthen their knowledge and seek recognition as a separate entity.

The fundamental cores of a profession are that (1) the art practices is helpful to others and
(2) the persons engaged in the art govern the practice in a way which is primarily for the
public good

The Legal Profession –

• Consists of persons with the minimum standards of high intelligence, skill and
learning acquired after extensive training
• Provides an essential service to society
• Willing to provide services to those who require it
• Willing to work for a living and belong to an organisation that represents them
• Independent in the exercise of professional judgement
• Voluntarily submits to standards of conduct
• Governed by the Constitution, Supreme Court Rules and other statutory provisions
• Register of Attorneys is maintained by the Supreme Court

Duties of the Lawyer

To his client – he should serve the interests of his client with the best skill, care, diligence,
confidence and should be scrupulous in all financial dealings with the client

To the court – as an officer of the court the lawyer should assist with the administration of
justice and the bringing about of fairness

To members of the legal profession – lawyers are required to maintain and uphold the
dignity and honour of the profession

To the public – lawyers are required to provide a service to the public and command respect
and confidence

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RELEVANT ARTICLES OF THE CONSTITUTION

Article 136 (1) (g) & (h)
Article 169 (11) (12) (13)

Article 136 (1)

Subject to the provisions of the constitution and any law, the Chief Justice with any
three judges of the SC nominated by the CJ, may from time to time, make rules
regulating generally the practice and procedure of court including;

(g) the Admission,

Enrolment,
Suspension and
Removal
Of Attorney at Law
and the rules of conduct, etiquette for such Attorney at Law.

(h) the attire of

Judges,
Attorneys – at – Law
Officers of court
Persons attending the courts in SL
Whether established by the constitution parliament or existing law

Article 169 (11) :

All Attorney at Law admitted and enrolled or demand to have been admitted and enrolled as
Attorney at Law under the provisions of Administration of Justice of Law No 44 of 1973,
Shall subject to the provisions of the constitution be deemed to have been admitted and
enrolled as Attorney at Law of SC created and established by the constitution.

Article 169 (12) :

Oaths or Affirmations
After the date fixed by the Minister of Justice by order published in the Gazette,
No Attorney at Law shall be entitled to represent any party to a proceeding or be given the
right of audience in any court,
Unless he has taken and subscribed the oath or made and subscribed the affirmation,
Set out in the fourth schedule, before a judge of the SC, COA or HC or any other judicial officer
as defined in Ar. 114,
And it shall be the duty of such judge or judicial officer to forward such oath or affirmation
to the,Registrar of the SC who shall cause the same to be entered in the rolls of such court.
Such entry shall be the only proof that such Attorney at Law has taken and subscribed or
made and subscribed such oath or affi’rmation.

Article 169 (13) :

Provision of the Admin of Justice law, relating to AG the legal profession, state attorneys, and
state counsel, shall be deemed to be in operation and every reference to SC in provisions of
Amin of Justice Law shall be deemed to be a reference to the SC established by the
constitution.

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ATTIRE OF JUDGES AND ATTORNEYS AT LAW – RULES 1978

Rule 2 – The attire of the judges of the Supreme Court and Court of Appeal shall be as
determined by the Chief Justice after consultation with other judges of the Supreme Court.

Rule 3 – Attire of Judges of High Court other than women judges of High Court shall be
a) Black gown with red lapel
b) Black Shervani and dark trousers OR black coat, dark trousers and black tie.

Rule 4 – Attire of Judges of District Courts and Magistrates Courts other than women judges
of District Court and Women Magistrates:
a) Black gown with purple lapel
b) Black Shervani and dark trousers OR black coat, dark trousers and black tie.

Rule 5 – Attire of women judges of High Court, District Court and Magistrate Courts
a) Black gown with red/purple lapel
b) Black, white or grey saree and jacket
White/Grey frock

Rule 6 – Attire of Attorneys at Law other than female Attorneys at Law

a) Black coat and dark or white trousers and black tie OR
b) White National costume OR
c) Black Shervani with dark or white trousers

Rule 7 – Attire of female Attorneys at Law

a) White, black, grey or mauve saree and jacket OR
b) White, black, grey or mauve frock

Rule 8 – Attorneys at Law in Supreme Court and Court of Appeal shall also wear a black
gown.

“GENERALLY, ONLY ATTORNEYS MAY PRACTICE LAW” – RULE 70

Rule 70 of the Supreme Court rules of 1978 provides that,

“No person, who has not been duly
• admitted and enrolled as an Attorney at Law OR
• who has been suspended from practice OR
• removed from office after having been so admitted and enrolled
Shall be allowed;
To assist and advice clients AND to appear, plead or act for or on behalf of clients in any
court or other institution established by law for the administration of Justice.
In general, the intention of the State is to exclude the practice of the law by persons who
are not Attorneys at Law.

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RELATIONSHIP BETWEEN LAWYER & CLIENT - CAB RANK RULE

Rule 5: An Attorney-at-Law may not refuse to act on behalf of party or person in any matter
or proceeding before any court, tribunal or other institution established for administration of
justice or in any professional matter at his or her professional fee.

This rule is popularly identified as Cab-Rank Rule. In considering a fleet of cabs, a driver
cannot make choices on customer, when the customer is ready to pay the charge, the drivers
should take him to the expected place.

It is derived from the cab-bank rule which was discussed in Rondel v Worsley – In English
law (and other countries which adopt the rule), the cab-rank rule is the obligation of a
barrister to accept any work in a field in which he professes himself competent to practise, at
a court at which he normally appears, and at his usual rates.

Similarly, when the client is ready to pay his fees, an Attorney-at-Law cannot make
selections of his clients in performing his professional matter.

This rule relates to the fundamental right in a democratic society in which every person has
the right to legal representation

Acceptance of the case does not equate with approval of a client’s conduct

These are the exceptions to the cab-bank rule:

• Where case affects professional independence or otherwise makes acceptance of

matter incompatible with best interests of administration of justice.

• Where there is a personal interest (the lawyer may proceed if he makes full
disclosure and get written consent so as to protect oneself if petition against him
later).

• If conflict of interest with the interest of any other client or connected professional
matter

• Where conflict of interest between two of your clients.

• Any professional matter, which may in his opinion embarrass him by reason of his
holding any office or appointment.

• Any professional matter, unless can attend to it with due diligence.

• If the matter means that the lawyer would be getting involved in the commission of
an offence.

• Where the matters involves the lawyer as a witness. However the lawyer may accept
it if he is a witness in a formal or non-contentious matter such as presenting of
documents as an officer holding a certain post.

• Attorneys, in the same law firm, should not represent two opposing clients unless it
is in the matter of an out of court settlement.

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FEES AND REMUNERATION

Justification for accepting fees

• An Attorney-at-Law is not engaged in charitable activity and not obliged to accept
work unless the client can pay
• Rendering services for a living and charging fees is a characteristic of a professional
• Adequate compensation is necessary to serve clients effectively and preserve the
integrity and independence of the profession

An Attorney must consider the following when naming the fee

• He may not quote excessive fees to avoid unwanted briefs
• Must charge a reasonable fee (a legal aid fee has been said to be a proper fee). If the
client is eligible for legal aid, the Attorney must tell the client
• He must consider his personal interests, his duty as a professional and to provide
justice to those in need
• Charging excessive fees is a ground for discipline

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CONFIDENTIAL INFORMATION

The employment of an attorney places him in a special position that imposes upon him the
duty to maintain inviolate the confidence and at every peril to himself to preserve the secrets
of his clients.

An Attorney at Law should not disclose the information received by the client to a third party
nor should he utilize them for his own benefit.

Private information is imparted by a client with a complete reliance and faith in the attorney
and a firm trust that he will not fail them.
The principle of confidentiality rests on two bases:
1. The Attorney-Client privilege embodied in the Law of Evidence Sec 126 of the
Evidence Ordinance states that there is an obligation to keep the information in strict
confidence.
2. The rules of confidentiality established in Professional Ethics Supreme Court Rules
31-38

The SC rules on confidentiality can be identified as follows;

Rule 31 – An Attorney at Law should keep in strict confidence all information whether oral
or documentary, acquired by him from the client.

Rule 32 - However the Attorney at Law should disclose such information if it is authorized
by the client or in the event of the death of his client by the legal representatives of the client.
Even then the Attorney at Law should be careful to disclose any such information as is
necessary.

Rule 33 - It is the duty of the Attorney at Law to keep the information in strict confidence
during the existence of his professional relations with the client. And as well as after the said
Attorney at Law ceased to act for the client, in the event of the death of the client.

Rule 34 – This duty extends to any partner or assistant of the Attorney at Law in profession.
It is the duty of Attorney at Law to take reasonable steps to prevent the disclosure of any such
information by such persons even after the termination of his relationship with such persons.

Rule 35 – an Attorney at Law shall not undertake professional work from the opposite party
of his client and possessing his information. Such information shall not be used to prejudice
his former client.

Rule 36 – where Attorney at Law had not received confidential information from his former
client he can work on behalf of his former clients’ opposite party.

Rule 37 – these rule apply when one law firm amalgamates with another firm or when a new
law firm is formed.

Rule 38 – On following occasions information can be disclosed w/o the consent of the client.

1. In order to defend himself, his associates or employees against any allegation of

misconduct or malpractice made by his client.
2. To prevent the commission of crime, fraud or illegal act.

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3. In the case of a joint retainer or where client has joint interest with others,
information can be disclosed to such members of the joint retainer or joint interest.

Other instances where confidential information can be disclosed;

1. Where the information becomes public knowledge.
2. The circumstances give rise to a public duty of disclosure.
3. Attorney at Law subsequently obtains info, outside his relationship with the
client.

The rules of the profession require an Attorney at Law to be faithful, loyal and trustworthy.
That is the reason why the law has declared that such information is privileged from
disclosure.

Instances in which the Attorney-Client confidentiality is overridden by duty to court –

1. There is a duty to disclose whether the client is on probation or under a suspended
sentence.
2. There is a duty to disclose when client is on bail and evading arrest.

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CEASING TO ACT AS AN ATTORNEY-AT-LAW (RULE 19 – 26)

The general rule stipulates as follows:

Rule 19 –An Attorney-at-Law on accepting instructions from a client is under a duty not to
withdraw his services in respect thereof except for a good cause.

Dr. Amarasinghe – “good cause means that the lawyer should be able to adduce supporting
material justifying ceasing to act for the client”

Some of the circumstances are –

o Coming into possession of documents belonging to another party by means
other than proper channels
o If he comes to know of certain facts which, if he knew of at the beginning, he
would have refused to accept the brief
o Where he is not competent to handle the matter or there is a conflict of
interest
o Where the client insists on an unethical or illegal course of action
o Where client refuses to accept advice and insist on pursuing a course of
action which the attorney considers is inconsistent with his duty to the court
o Where the attorney cease to practice his profession
o In criminal matters there is no duty to withdraw except in very serious
matters – there is a duty to see it to the end except in very compelling
circumstances
o Attorney should never pass the case to another Attorney without client’s
approval
o Must make arrangement for smooth transition of work to another Attorney
where required

Rule 21 – An Attorney-at-Law may cease to act for his client if the client being requested to
do so, declines or neglects to give further instructions in circumstances where the Attorney-
at-Law would be left with no authority to take further action on behalf of his client in any
professional matter or proceeding

Rule 22 – An Attorney-at-Law may withdraw from any professional matter on the failure of
the client to pay his fees or provide for disbursements in respect of such professional matter

Rule 25 – An Attorney-at-Law shall cease to act on behalf of his client if so requested by the
client

Rule 26 – An Attorney-at-Law shall preserve and safeguard all property of the client
entrusted to him

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TOUTING AND ADVERTISING (39-49)

An attorney’s primary concern should be public service and not making money. He ought
therefore not to publicize his services and seek business as persons who are engaged in
trades, businesses and other primarily money making occupations.

When an attorney advertises his services or the service of his firm to the public – he must do
so in a manner consistent with the maintenance of proper professional standards in the
manner permitted by the rules of the supreme court.

Some guidelines on advertising:

1. Such publication must not contain any material misrepresentation or omission
2. Information must be objective.
3. Reference must not be made to quality of service which cannot be verified or
objectively measured by the person to whom it is addressed.
4. What is said must be relevant and understandable.
5. Information must be communication without undue emphasis.

There is no absolute prohibition on advertising, however, an attorney cannot directly or

indirectly procure to attract business through a newspaper/magazine/book/pamphlet
either by himself or through another person or organization.

Touting can be identified as,

Applying to a potential client for professional business by contact in person/ by telephone
or other methods of communication directed to a specific person by the attorney himself or
through another.

Elements of touting can be identified as:

1. Engaging any person to solicit clients
2. For a commission, payments or consideration or
3. Advertising unfairly for attracting clients.

It must be noted that touting is a serious offence and can even result in disenrollment.

Re. A V. De Silva: Expelled an attorney for touting.

Rules are made to keep independence of each advocate, he should be able to succeed on his
own merits.

The rules relating to touting and advertising is provided for in Supreme Court (Conduct
of and Etiquette for Attorneys-at-Law) – Rules 1988 from Rule 39 to 49

Rule 39 - An Attorney at Law shall not under any circumstances, by himself or through
another directly or indirectly resort to the practice of touting.

The expression ‘touting’ shall include the following acts or conduct:

1. Engaging in any manner for any commission, payment or consideration the services
of any person to solicit clientele
2. Advertising in any manner, for the purpose of unfairly attracting clientele for
himself.

Rule 40 - An Attorney-at-Law may display his professional name plate at his office and/or
residence.

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Such name plate can only contain the following information:

1. Name of the Attorney-at-Law/ Law Firm
2. Professional Qualifications of the attorney/partners of law firm. (Eg: Attorney-at-Law.
Notary Public, Solicitors, JP, Commissioner of Oaths)
3. Academic Qualifications such as universitydegrees
4. Office hours

Illuminated name plates or boards showing the directions to the office of an attorney-at-Law
shall not be used.

The professional or law firm name plate shall be of a reasonable size sufficient only to enable
clients to find the office or residence of the Attorney-at-Law.

Exceptions:

Rule 41 – if changes premises can leave notice for reasonable length of time in former premises
giving new address.

Rule 42 – Attorney at Law may have professional stationary – may contain following
information:
1. Name of Attorney at Law/law firm, address and residential address telephone
number, P.O. Box number etc.
2. Name of partners and members of law firm
3. Professional/academic qualifications of Attorney at Law, including partners
and members
4. In case of law firm maybe described as “Attorneys at Law & Notaries Public” or
“Attorneys at Law and Solicitors”.

Rule 43 – Attorney at Law / Law firm may have its address on envelopes, cheques and
documents.

Rule 44 – Attorney at Law may use card which may contain:

1. Name
2. Professional/residential address
3. Telephone number
4. Professional/academic qualifications
5. Name of legal firm of which he maybe a member

Rule 45 – Attorney at Law/Law firm may have its name , address description in any legal
directory including telephone directory

Rule 46 – Attorney at Law may broadcast on radio/TV/deliver lecture/give talk/ interview/or

write articles or letters on any legal or professional matter.

Rule 47 – if Attorney at Law knows, believes his name would be advertised should take steps to
see that it wouldn’t offend rule/etiquette against advertising.

Rule 48 – Attorney at Law should not give any interview/broadcast/permit publication of

matter relating to client/former clients business without latter’s consent.

Rule 49 – Attorney at Law should not cause/permit to be published particulars of –

i. His practice
ii. A matter in which he has instructed (unless he can do so without disclosing
confidential info pertaining to the matter).

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DISCIPLINARY ACTION

Suspension & Removal of Attorney at Law from office

It is a characteristic of a profession that the activities of its members are subject to some form
of discipline.

Accordingly, an Attorneys’ admission to the profession is conditional upon his agreement to

observe the rules of conduct of the profession.

His franchise is revocable if his conduct renders him unfit to belong to the legal profession.

Under Article 136 of the Constitution, the Chief Justice with any three judges of the
Supreme Court may make rules for:
- Admission
- Enrollment
- Suspension &
- Attire of Attorneys at Law

Important Sections of the Judicature Act regarding suspension & removal of Attorney at
Law from office:

Section 42
42(1) The Supreme Court shall have the power to refuse to admit and enroll any person as
an Attorney at Law.
- And shall, if so required to do so by such person applying, assign &
declare in open court the reasons for such refusal.
42(2) Every person admitted and enrolled as an Attorney at Law who shall be guilty of any
- Deceit
- Malpractice
- Crime
- Offence
Maybe suspended from practice or removed from office by any 3 judges of the
Supreme Court sitting together.

The word offence in S. 42(2) of the Judicature Act has been interpreted to have a wider
meaning than that given to it in the Penal Code and CPC.

Amarasinghe J in Chandrathilake V Munasinghe held that the word offence means disciplinary
offences. Thus if upon consideration, of all the circumstances if the court is of the view that
although the Attorneys’ conduct is not personally disgraceful it amounts to a failure to
observe standards of the profession Supreme Court may exercise disciplinary jurisdiction.

The notice of such Rule should be given to the Bar Association and the Attorney General.
The Chief Justice may appoint three judges to have a trial before the Supreme Court. Either
AG or his representative should assist the court.

After hearing of the evidence, cross examinations and submissions and if the charges are
proved, the Supreme Court shall take a suitable action such as suspend/dismiss from the
service or on the other hand if the charges are not proved to acquit him from the charges
against him.

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Re Wilbert Fernando – Proceedings are not criminal or penal but are intended to protect the
public, litigants and the legal profession itself.

Re Dematagoda Don Harry Wilbert – By way of a forged certificate entered Law College. After
this fact was disclosed, he was dismissed from the profession.

Re Brito – Posting a Postcard to a lady with untrue words imprisoned for Six months by
Magistrate Court. Upon reporting this matter to the Supreme Court, the Attorney at Law
was removed from his office.

42(3) Before any such Attorney at Law is suspended or removed, a notice containing a copy
of the charge/charges against him and Calling upon him to show cause within a reasonable
time as to why he should not be suspended or removed, Shall be personally served on him.

Provided however, that every such Attorney at Law maybe suspended by any judge of the
Supreme Court on such cause, pending the final decision of the Supreme Court.

42(4) It is the duty of every court before which the Attorney at Law was found guilty of any
offence to bring it to the notice of the Supreme Court.

The Supreme Court may suspend an Attorney at Law from practice pending the final
decision.

Section 43
43(1) Chief Justice or any Supreme Court judge has the power to direct a preliminary
inquiry to be held by Disciplinary Committee of the Bar Association of Sri Lanka into the
alleged misconduct of the Attorney at Law.

43(2) This is not mandatory. The discretion whether to refer to a preliminary inquiry or to
institute action is directly on the Supreme Court.

43(3) The members and secretary of the disciplinary committee are not liable to any action/
prosecution in respect of any act or omission in the capacity as a member.

Section 44
The disciplinary committee is chosen from a panel consisting of 15 members of the Bar
Association appointed by the Chief Justice for a period of 3 years.

When a matter is referred to the disciplinary committee three members of the disciplinary
committee may be nominated by the Chief Justice.

Once the disciplinary committee conclude the inquiry it will report it’s findings to the
Supreme Court. The Supreme Court is not bound to accept those recommendations and it
will then determine whether further proceedings should be taken against the attorney
concerned.

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