As with judges, a code of professional conduct for lawyers is an essential tool for the maintenance of the integrity of the profession and, consequently, the quality of access to justice in a country. The UN Basic Principles on the Role of Lawyers state that “codes of professional conduct shall be established by the legal profession through its appropriate organs, or by legislation”. {{134}}
In order to uphold the integrity of the legal profession lawyers must be held accountable in fair proceedings before independent bodies, for breaches of established standards of professional conduct.
Complaints against lawyers for misconduct in their professional capacity should be “processed expeditiously and fairly under appropriate procedures.”{{135}} They should be decided “in accordance with the code of professional conduct and other recognized standards and ethics of the legal profession.”{{136}}
International professional standards prescribe that the body responsible for investigating and adjudicating on allegations of misconduct by lawyers should be independent and impartial, and ensure that proceedings are conducted fairly and following proper procedure.{{137}} A lawyer accused of professional misconduct must have “the right to be assisted by a lawyer of their choice”.{{138}} He or she should be entitled to notice of the complaints against him or her and have adequate time and facilities to prepare and present a defence. Any sanction against a lawyer for misconduct should be proportionate. The lawyer should be entitled to independent judicial review of the disciplinary proceedings.{{139}}
In Myanmar, the Supreme Court has the authority to discipline lawyers for various forms of misconduct. Different rules and procedures apply to higher-grade pleaders and advocates, with the former being governed by the Legal Practitioners Act{{140}} and the latter by the Bar Council Act.{{141}}
In Myanmar, the Legal Practitioners Act empowers the Supreme Court to dismiss or suspend higher-grade pleaders for certain enumerated disciplinary offences, including a criminal conviction “implying a defect of character which unfits him to be a pleader”; taking instruction from a party other than her or his client; or acting in a fraudulent or “grossly improper” manner.{{142}} The Supreme Court may also suspend or dismiss higher-grade pleaders “for any other reasonable cause”.{{143}} Judges in subordinate courts are able to initiate investigations into allegations of misconduct by higher-grade pleaders and make recommendations to the Supreme Court, which is empowered to make a final ruling on suspension or dismissal. Higher-grade pleaders must be given the opportunity to defend themselves in a hearing before the subordinate court, and any evidence they present is to be admitted to the record. {{144}}
The Bar Council Act is less specific about the form of conduct that justifies disciplinary action, granting the Supreme Court power to “reprimand, suspend or remove from practice any advocate of the High Court whom it finds guilty of professional or other misconduct”.{{145}} Disciplinary action against advocates may be initiated by complaints to the Supreme Court by courts, the Bar Council or “any other person”. The Supreme Court may then either dismiss the case or refer it to either a special Bar Council “Tribunal” or (after consultation with the Bar Council) a District Court.{{146}} After receiving the findings of the Bar Council or District Court, the Supreme Court must convene a hearing at which the advocate, Bar Council and Attorney-General are given the opportunity to speak.{{147}}
In practice, save for the fact that lawyers are seldom given an opportunity to defend themselves in contravention of international standards, due to deliberate opacity it is unclear how these procedures are implemented and who holds ultimate responsibility for disciplinary actions. As noted above, Myanmar has a history of politically inspired, arbitrary disciplinary proceedings against lawyers.
[[134]]134. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 26.”]
Codes of professional conduct for lawyers shall be established by the legal profession through its appropriate organs, or by legislation, in accordance with national law and custom and recognized international standards and norms. [/expand] The International Bar Association (IBA), Standards for the Independence of the Legal Profession [expand title=”(Standard 22)”]There shall be established rules for the commencement and conduct of disciplinary proceedings that incorporate the rules of natural justice.[/expand] reserve this task for lawyers’ associations. See Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), [expand title=”Article 102.”]The Bar Association shall establish and enforce in accordance with the law a code of professional conduct of lawyers, Such a code of conduct may also be established by legislation.[/expand][[134]]
[[135]]135. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 27.”]Charges or complaints made against lawyers in their professional capacity shall be processed expeditiously and fairly under appropriate procedures. Lawyers shall have the right to a fair hearing, including the right to be assisted by a lawyer of their choice.[/expand][[135]]
[[136]]136. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 29.”]All disciplinary proceedings shall be determined in accordance with the code of professional conduct and other recognized standards and ethics of the legal profession and in the light of these principles.[/expand][[136]]
[[137]]137. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 27″]Charges or complaints made against lawyers in their professional capacity shall be processed expeditiously and fairly under appropriate procedures. Lawyers shall have the right to a fair hearing, including the right to be assisted by a lawyer of their choice. [/expand] and [expand title=”29;”]All disciplinary proceedings shall be determined in accordance with the code of professional conduct and other recognized standards and ethics of the legal profession and in the light of these principles. [/expand] Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), [expand title=”Article 106;”]Disciplinary proceedings shall be conducted with full observance of the requirements of fair and proper procedure, in the light of the principles expressed in this Declaration.[/expand] International Bar Association (IBA) Standards for the Independence of the Legal Profession, [expand title=”Standard 22.”]There shall be established rules for the commencement and conduct of disciplinary proceedings that incorporate the rules of natural justice.[/expand][[137]]
[[138]]138. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 27.”]Charges or complaints made against lawyers in their professional capacity shall be processed expeditiously and fairly under appropriate procedures. Lawyers shall have the right to a fair hearing, including the right to be assisted by a lawyer of their choice. [/expand][[138]]
[[139]]139. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 28;”]Disciplinary proceedings against lawyers shall be brought before an impartial disciplinary committee established by the legal profession, before an independent statutory authority, or before a court, and shall be subject to an independent judicial review.[/expand] Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), [expand title=”Article 105;”]An appeal shall lie from a decision of the disciplinary committee to an appropriate appellate body.[/expand] International Bar Association (IBA), Standards for the Independence of the Legal Profession, [expand title=”Standard 24.”]Disciplinary proceedings shall be conducted in the first instance before a disciplinary committee of the appropriate lawyers’ association. The lawyer shall have the right to appeal from the disciplinary committee to an appropriate and independent appellate body.[/expand][[139]]
[[140]]140.Legal Practitioners Act 1999, S. 12-15.[[140]]
[[141]]141. Bar Council Act, India Act XXXVIII 1926 (amended 1989), S. 10-13.[[141]]
[[142]]142. Legal Practitioners Act 1999, [expand title=”S. 12-13.”]
12. The High Court may suspend or dismiss any pleader holding a certificate issued under section 7 who is convicted of any criminal offence implying a defect of character which unfits him to be a pleader.
13. The High Court may also, after such inquiry as it thinks fit, suspend or dismiss any pleader holding a certificate as aforesaid—
(a) who takes instructions in any case except from the party on whose behalf he is retained, or some person who is the recognized agent of such party within the meaning of the Code of Civil Procedure, or some servant, relative or friend authorized by the party to give such instructions, or
(b) who is guilty of fraudulent or grossly improper conduct in the discharge of his professional duty, or
(c) who tenders, gives or consents to the retention, out of any fee paid or payable to him for his services, of any gratification for procuring or having procured the employment in any legal business of himself or any other pleader, or
(d) who directly or indirectly procures or attempts to procure the employment of himself as such pleader through, or by the intervention of, any person to whom any remuneration for obtaining such employment has been given by him, or agreed or promised to be so given, or
(e) who accepts any employment in any legal business through a person who has been proclaimed as a tout under section 36, or
(f) for any other reasonable cause.
[/expand][[142]]
[[143]]143. Legal Practitioners Act 1999, [expand title=”S. 13(f).”]The High Court may also, after such inquiry as it thinks fit, suspend or dismiss any pleader holding a certificate as aforesaid— … (f) for any other reasonable cause. [/expand][[143]]
[[144]]144. Legal Practitioners Act 1999, [expand title=”S. 14.”]If any such pleader practising in any subordinate Court or in any revenue-office is charged in such Court or office with taking instructions except as aforesaid, or with any such misconduct as aforesaid, the presiding officer shall send him a copy of the charge and also a notice that, on a day to be therein appointed, such charge will be taken into consideration. Such copy and notice shall be served upon the pleader at least fifteen days before the day so appointed. On such day, or on any subsequent day to which the enquiry may be adjourned, the presiding officer shall receive and record all evidence properly produced in support of the charge, or by the pleader, and shall proceed to adjudicate on the charge. If such officer finds the charge established and considers that the pleader should be suspended or dismissed in consequence, he shall record his finding and the grounds thereof, and shall report the same to the High Court; and the High Court may acquit, suspend or dismiss the pleader. Any District Judge, or with his sanction any Judge subordinate to him, any District Magistrate, or with his sanction any Magistrate subordinate to him, and any authority not inferior to a Collector, or with the Collector’s sanction any revenue-officer subordinate to him. may, pending the investigation and the orders of the High Court, suspend from practice any pleader charged before him or it under this section. Every report made to the High Court under this section shall – (a) when made by any civil Judge subordinate to the District Judge, be made through such Judge ; (b) when made by a Magistrate subordinate to the District Magistrate, be made through the District Magistrate and the Sessions Judge; (c) when made by the District Magistrate, be made through the Sessions Judge ; (d) when made by any revenue-officer subordinate to the Financial Commissioner, be made through such revenue-authorities as the Financial Commissioner may, from time to time, direct. Every such report shall be accompanied by the opinion of each Judge, Magistrate or revenue-authority through whom or which it is made.[/expand][[144]]
[[145]]145. Bar Council Act, India Act XXXVIII 1926 (amended 1989), [expand title=”S. 10(1).”]The High Court may, in the manner hereinafter provided, reprimand, suspend or remove from practice any advocate of the High Court whom it finds guilty of professional or other misconduct.[/expand][[145]]
[[146]]146. Bar Council Act, India Act XXXVIII 1926 (amended 1989), [expand title=”S. 10(2)”]Upon receipt of a complaint made to it by any Court or by the Bar Council or by any other person that any such advocate has been guilty of misconduct, the High Court shall, if it does not summarily reject the complaint, refer the case for inquiry either to the Bar Council or, after consulattion with the Bar Council, to the Court of a District Judge (hereinafter referred to as a District Court), and may of its own motion so refer any case in which it has otherwise reason to believe that any such advocate has been so guilty.[/expand] and [expand title=”11.”](1) Where any case is referred for inquiry to the Bar Council under section 10, the case shall be inquired into by a committee of the Bar Council (hereinafter referred to as the Tribunal). (2) The Tribunal shall consist of not less than three and not more than five members of the Bar Council appointed for the purpose of the inquiry by the Chief Justice of the High Court, and one of the members so appointed shall be appointed to be the President of the Tribunal.[/expand][[146]]
[[147]]147. Bar Council Act, India Act XXXVIII 1926 (amended 1989), article 12.[[147]]
