LawPage

Notes and Articles for Law students

User Tools

Site Tools


professional_ethics:advocates_act_1961

Advocates’ Act, 1961

Admission and Enrolment: Section 16 to 27 of Advocates Act deals with qualification for admission and enrolment before the Bar Council an Advocate.

There are two classes of Advocates

  1. Senior Advocates and
  2. Other advocates.

Senior Advocate

  1. Designated by virtue of his ability standing at the Bar or Special knowledge or experience in law or he is deserving such distinction. The senior Advocates restriction deals in the Bar Council of India and Chapter-I Part (VI) Under Section 49 (1) of Advocate Act.
  2. Shall not appear without an advocate on record in Supreme Court or without an advocate. Shall not accept any brief directly.
  3. Shall not accept instructions to draft pleadings or affidavits, advises evidence or to do any drafting work of an analogous in any court. Junior other Advocate pay him to fee which he consider a reasonable one.

Eligibility for Admission on State Rules

  1. Citizen of India or other Country permitted to practice:
  2. 21 years age or above
  3. Obtained a law decree

Sudeer vs Bar Council of India

In this case1) Supreme Court held the Bar Council of India Rule providing for pre enrolment training and apprenticeship is ultra-vires as per the rule making power of the Bar Council of India available fact under the Advocates Act.

Haniraj L. Chulani v. Bar Council of Maharastra and Goa

The Supreme Court in this case held that a person carrying on another profession is not allowed to practice or enroll as an advocate i.e., Doctor and this rule is not violative of Article 21,14,19,18 of the Constitution of Law of India.

In this case2) Supreme Court held the rule departing person who have completed the age of 45 years is beyond the rule making power of Bar Council of India.

Disqualification of Enrolment

Section 24-A of the Advocates Act provides that no person shall be admitted as an Advocate.

  1. If he is convicted of an offence involving moral
  2. If he is convicted of an offence under the provision of the untouchability offence (Act 1958). But after 2 years is elapsed since his release.

Section 30 Deals with right to practice throughout the teritory to which the Advocates act extends,in all courts including supreme court and tribunals.

But this section have not been brought into effect by the Central Government. Hence the advocate continue to be debarred from appearing in many tribunals such as Industrial Tribunal, Family court etc.

Important Powers of Bar Council and Functions of Bar Council

  1. To admit person an advocates on its rolls.
  2. Preparation and maintenance of such rolls.
  3. To entertain and determine cases of misconduct against advocates.
  4. To promote, safeguard the privileges of advocates.
  5. To promise and support law reforms, supervision and counsel of other state bar.
  6. To promote legal education,
  7. To lay down standards of legal education,
  8. To recognise degrees for enrolment,

Professional Ethics

  • Section 49 (1 ) (c) of the Advocates Act, 1961 empowers the Bar Counsel of India to fix the standard of professional conduct and etiquette to be observed by advocates;

Duty to the Court

  1. Advocate is required to conduct himself with dignity and self respect. Not to complaint against judicial officer of grievances and to make complaint before the proper authorities.
  2. To maintain respect to court and dignity of the judicial officer.
  3. Not to influence the decision of the court by any illegal or improper means.
  4. Prohibit private communication with Presiding Officer / Judge.
  5. Not to encourage client unfair practice or from doing any thing in relation to the court.
  6. To appear in the prescribed dress and his appearance shall always be presentable.
  7. An advocate shall not either appearance in any way before a Court Trial if the role of any member there of in related to advocate.
  8. Not to wear bonds or grown in public places other then in court.
  9. Not to appear if he got any receiving interest or he is a exercise a member on director of a company or corporations.

Duty to client

Rule 11 to 33 deals duties of advocate to his client.

  1. An Advocate is bound to accept any brief,but in special circumstances he may refuse to accept a particular brief.In S. J. Chaudry v. State3) Supreme Court held that if an advocates accepts the brief of a case to attend day to day and if he fails and he does not do so, he will be held liable for breach of professional duty.
  2. He shall not withdraw from engagement. If he does, notice to be given to the client and he is bound to refund such part of fee as has not been spent.
  3. If situation warrants, or in future if he happens to be witness, he should not accept the brief.
  4. To help and make frank disclosure to his client relating to his conviction with the parties any controversies likely to arise at the time of taking brief.
  5. To uphold the interest of his client.
  6. If a advocate appear for prosecution he should not conduct the case so as to lead to conviction of the innocent.
  7. Advocate shall not commit directly or indirectly a breach of the obligation imposed by Section 126 of Evidence Act regarding professional communication.
  8. Not to be a party to fermenting of litigation.
  9. Only act on the instruction of client and not others.
  10. The fee of an advocate depending upon the success of the suit is considered as opposed to the public policy. Also non consistent fee or percentage of the benefit is opposed to public policy.
  11. Shall not buy or traffic in or stipulate for or agree to receive, share or instruct in any actionable claims.
  12. Not to bid or purchase any property he was professionally engaged.
  13. To keep proper account for the money entrusted to him.
  14. Any amount is received on behalf of client that should be given to him.
  15. On demand from client a copy of the account to be furnished.
  16. Rule 32 prohibits an advocate to lend money to his client for the purpose of any legal proceedings or actions.

V.C. Rangadurai V.D. Gopalan

In this case Supreme Court observed that the relationship between the advocate and his client is purely personal involving highest personal trust and confidence.

P.O. Gupta v. Ram Murti

An advocate purchased a property at a very low price from his client which is a subject matter of litigation and sold the same to third person and made profit. He was held of professional misconduct.4)

Harish Chand Singh v. Tripathi

In this case a Senior Advocate appointed his own junior as Mukhtar of complaint in a consolidation case. He misguided his junior and tried to dispose of the property in favour of his own father. Senior Advocate held guilty of professional misconduct.

Duty to Opponent

Rule 34 and 35 of BCI

  1. Rule 34 provides that an advocate shall not in any way communicate or negotiate upon the subject matter of controversy with any party represented by an advocate except through that advocate.
  2. Rule 35 deals that an advocate shall do his best to carry out all promises made to the opposite party even though not reduced to writing or enforceable under the rules of the court.

Duty to Colleagues

Rule 36 to 39 of BCI

  1. Shall not solicit work or advertise (either direct or indirect) by way of circulars, advertisement, (brokers), putting slide in cinema theatres.
  2. The name board should be a reasonable size.
  3. An Advocate shall not permit his name to be used in aid of or to make possible the unauthorised practice of law by any agency.
  4. Shall not accept a fee less than the fee taxable under the rules when the client is able to pay the same.
  5. An advocate shall not enter appearance in any case in which there is already a vakalath (Civil cases) or memo of appearance (Criminal Cases) filed by an advocate engaged for a party except with his consent (change of vakalath)

Advocacy

Seven Lamps of Advocacy

A good advocate should possess some essential qualities and equipment.

  1. Honesty: The nobleness of legal profession lies in honesty. Advocate should not do any act which will lead to professional misconduct. He should disclose the real facts and legal profession to his clients frankly.
  2. Courage: An advocate must possess courage which is the quality that enables a person to control fear in the face of danger, pain, misfortune, etc. He should not fear about the executive and politicians. He must perform his duty to safeguard the interests of his client.
  3. Industry: Industry is the quality of being hard-working; being always employed usefully. Advocacy is an intellectual profession. Intelligence and knowledge will be sharpened with hard-work and strenuous efforts.
  4. Wit: Wit means clever and humorous expression of ideas; liveliness of spirit. Wit lessens the work load of an advocate. It relaxes his mental strain.
  5. Eloquence: Eloquence means fluent speaking and skilful use of language to persuade or to appeal to the feelings of others. Eloquence attracts the attention of the listener.
  6. Judgment: Judgment is an intellectual capacity, ‘the inspiration which enables a man to translate good sense into right action’. An advocate could be in a position to judge the merits and demerits of the case on hearing the brief and seeing the document. He should inform his client the legal position openly after judging the issues.
  7. Fellowship: Fellowship means the membership in friendly association or companionship.
  8. (7+1) Tact: Tact means handling people and situations skilfully and without causing offence. An advocate must be in a position to tackle and win his client, opponent party, opponent advocate in a smoother way. An advocate should not quarrel with Court or loose temper over trifle things in the Court and outside.

Other Rules

Rule 40 requires that every advocate to pay certain sum to the State Bar.

Every advocate bear in mind that anyone genuinely in need of lawyer is entitled to legal assistance even though he cannot pay for fully or adequately legal assistance.

Legal aid to the indigent and oppressed is one of the highest obligations as an advocate owes to society.

Restriction on other Employment - Rule 47 to 52 BCI

An Advocate shall not personally engaged in any business but he may be a sleeping partner in a business. An advocate who has inherited or succeeded by survivorship to family business may continue it but may not personally participate in the management thereof.

Right to Lien

An Advocate can claim general lien upon the deeds and papers in his hands for the fee payable to him but there is no general lien.

State v. Narsingh Nair

In this case5) it was held that an advocate in the absence of an express agreement cannot claim a lien to hold, if until his own accounts are settled.

J.S. Jafhar v. Mustafa H.M. Yusur

In this case6) Advocate withdraw certain amount on behalf of his client from the court receiver but did not pay the whole amount to the client. He was held guilty of professional misconduct.

Advertising

It is well recognized rule of etiquette in the legal profession that no attempt should be made to advertise on self directly or indirectly. Such a course of action tends to dignify of the Hon’ble Profession.7)

In England no barrister is allowed to write to solicitors or even to brother practitioners on circuit enrolling his services experience ability or work advertisement of all forms are considered to be highly improper.

Professional or Other Misconduct

Section 35 of the Advocate Act provides for punishment for professional or other misconduct. On receipt of a complaint or otherwise a State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it will be referred to its disciplinary committee.

Misconduct: Means a dereliction of duty.

The term professional misconduct is found in Section 10 of Indian Bar Council Act, 1926 and explained in Section 35 of the Advocates Act 1961.The expression professional misconduct has been well explained by the Supreme Court in the following case

State of Punjab v. Ramsingh

Misconduct may involve moral turpitude it must be mis-proper or wrong behaviour unlawful behaviour willful in character for bidden act a transgression of established definite rule of action or code of conduct, but no mere error of Judgement, ,carelessness or negligence in performance of duty, the act accompanied of bears for bidden quality or character.8)

V.P. Kumaravelu v. BCI

The court observed that whether negligence will amount to professional misconduct or not will depend upon the facts of each case; gross negligence in the duties practice of sheds of delinquency and would undoubtedly amount to professional misconduct.9)

Rama Bannerisi v. Ushapati Banerjee Mukhtar

The Bar Council on receipt of complaint or otherwise is not transmit it to its disciplinary committee but it is obligatory on the part of the council to see if there is reason to believe that an advocate on its roll is guilty of unprofessional act. The requirement of ‘Reason to believe’ cannot be converted into a formalized procedural road block. It being essentially a borrower against frivolous enquiries. It is implicit in resolution of the Bar council when it says that it has considered the complaint and decided it to refer the matter for the disciplinary committee that it has reason to believe as prescribed by the statute.10)

Kr. Amarsingh of Sahalpose vs Madanmohan Lal

Charges of professional misconduct must be clearly proved and should not be inferred from ground for suspicion or what may be the error of judgement or indiscretion.11)

Kasinath Ratho v. U.C. Patnaick

roving facts and circumstances giving rise to give suspicion is not sufficient to establish a charge fraudulent or grossly improper conduct in the discharge of professional duties. Negligence without moral turpitude or delinquency may not amount to professional misconduct.12)

P.O. Khanfelkar v. Bar Council of Maharashtra

There is a word of difference between giving of improper legal advise and giving of wrong legal advice mere negligence unaccompanied by any moral delinquency in the part of a legal practitioner in the exercise of this profession does not amount to professional misconduct.13)

Case amounting to professional misconduct

  1. Executing vakalth himself by Advocate instead of the party
  2. Money withdrawn with ulterior motive from the client account/ court proceedings.
  3. Writing letter to magistrate / presiding officer.
  4. Advising clients in the court room that they could not justice from the court.
  5. Moving applicating before any court or authority without informing that a similar application has been presented or rejected by any authority.
  6. Not speaking the truth.
  7. Making unfolded allegations against a Judge.
  8. Tampering with witness is a serious offence for a advocate.
  9. Making charges of bribery against judicial officers knowing it to be false.
  10. Asking advocate clerk to take documents from record to his house / office.
  11. Stating and invoking wrath of Gods in open court by a lawyer.
  12. Suggesting to bribe the official in the court amounts to professional misconduct.
    Eg. Asking clerk to give money to record clerk for supplying information with regard to case.
  13. Bringing influence on the judge to get decision in favour of the clients. Including prosecution witness not to tell the truth.

Mahabir Prasad Singh v. Mis. Jacks Aviation Pvt. Ltd.

Boycott call resolution to boycott particular court. Advocate abstaining from court and reporting he will not appear the court in further. Advocate also refused to return the brief. Advocate’s conduct is unprofessional and unbecoming of status of advocates.14)

Authorities to empower to punish Professional Misconduct

Under Section 38 of the Advocates Act on receipt of a complaint or otherwise State Bar Council can sumato also if reason, is thereof that misconduct present, It will refer to the disciplinary committee.

Bar Council can constitute one or more disciplinary committee. The disciplinary committee consists 3 members.

Power (Punishment)

After giving notice, opportunity to the advocate the State Bar council may make the following orders:

  1. If no prima facie case then dismiss the complaint.
  2. Reprimand the Advocate; Suspend the advocate from practice for such period it may deem fit.
  3. Remove the name of the advocate from state roll of advocate.

The effected person can also file appeal to the Bar council of India from state Bar under section 37 of the Advocates Act.

Appeal to Supreme Court: Under Section 38 of the Advocates Act appeal can be filed within 60 days to the Supreme Court.

1)
AIR 1999 SC 1167
2)
AIR 1995 SC 1691
3)
AIR 1996 SC 98
4)
AIR 1998 SC 283
5)
AIR 1955 Orissa Page 105
6)
AIR 1993 SC Page 1335
7)
In the matter of thirteen advocate Alahabad AIR 1934 1067.
8)
AIR 1992 SC 2188
9)
AIR 1997 SC 1014
10)
AIR 1958 Cal 692
11)
AIR 1956 Raj. 58
12)
AIR 1939 Pat. 343
13)
AIR 1984 SC 110
14)
AIR 1999 SC P 287


Navigation: Home»Professional Ethics