Category Archives: Professional Ethics of Lawyers and Bar Bench Relation

Define ‘Advocate’. What are the persons who are entitled to be enrolled as an Advocate on State Roll ? (2015)

Advocate is the person who argues in the Court of Justice professionally. for this an advocate has to enroll in bar council . Every person cannot be enrolled as an advocate in bar council .
Admission and Enrollment of Advocates-
Section 24(1) of advocate Act, 1961
    According to Section 24(1) of the Advocate Act, 1961, a person is qualified to be admitted as an advocate on a state roll, if he fulfills the following 5 conditions mentioned in a,b, c ,e , f of section 24 (1)
A) He is a citizen of India .
B) He has completed the age of 21 years .
The person who has not attend the age of 21 years is not eligible to be an advocate. In  the advocate act,1961, there is no other age restriction. Hence the bar council of India’s rule whereby all person who had attained the age of 45 years were not qualified to be enrolled as an advocates was considered as ultra vires by the supreme court in Indian Council of Legal Aid and advice vs Bar Council of India ,(AIR1995 Supreme Court 691) .
C ) He has obtained a degree in law –
 (I) before the 12th day of March,  1967,  from any university in the territory of India ; or
(II) before 15th day of August, 1947 , from any university in area which was comprised before that date within India as defined by the government of India Act,1935 ;or
(III) after the 12th day of March 1967, save as provided in sub-clause  (IIIA), after undergoing a three years course of study in law from any university in India which is recognized for the purposes of this act by the bar council of India , ; or
(IIIA) after undergoing a course of study in law, the duration of which is not less than 2 academic years commencing from the academic year 1967-68, or any earlier academic year from any university in India which is recognised for the purpose of this act by Bar Council of India; or
(IV)  in any other case, from any University outside the territory of India if the degree is recognised for the purpose of this act by the bar council of India ; or he is a barrister and is called to the bar bar on or before the 31st day of December, 1976 or has passed the article clerk examination or any other examination specified by the high court at Bombay or Kolkata for enrollment as an attorney of the high court or has obtained search order for in qualification in law as is recognized by Bar Council of India for the purpose of admission as an advocate.
( E ) he fulfills such other conditions as may be specified in the rules made by the state bar council under this chapter;
(F)  he had paid, in respect of enrollment stamp duty, if any chargeable under the Indian stamp act,1899 and an enrollment fee payable to the state Bar Council of 600 rupees and to the bar council of India 150 Rupees by way of a bank draft drawn in favour of that council.
   Provided that where such a person is a member of the schedule caste or Scheduled Tribes and produces a certificate to that effect from Such authority as may be prescribed enrollment fee payable by him to the state bar council shall be 100 rupees and to the bar council of India 25 rupees .

Explanation –for the purpose of this sub-section, a person shall be Deemed to have obtained a degree in law from a university in India on the date on which the results of examination for the degree are published by the University on it’s notice board.  or otherwise declaring him to have passed that examination.

Section 24 (2) –
notwithstanding anything contained in sub-section (1), a Vakil or a leader who is a law graduate may be admitted as an advocate on state roll if he –
A) makes and application for Such enrolment in accordance with the provisions of this Act, not later than 2 years from the appointed day and
B) fulfilled the conditions  specified in close (A) (D ) (E) and (F ) of sub-section (1)
Section 24 (3) –
notwithstanding anything contained in sub section (1) a person-
A) has  for at least 3 years, been a Vakil or a pleader  or Mukhtar or was entitled at any time to be enrolled under any law as an advocate of a High Court( including a high court of a former Part B state ) or of Council of judicial Commissioner in any union territory; or
AA) before the first day of December,1961, was entitled  otherwise than as an advocate to practice the
profession of law (whether by the way of pleading or acting or both)  by virtue of the provisions of any law or who would have been so entitled he had he not been in public service of the said date; or
C) before the 1st day of April 1937 ,has been an advocate of any High Court in any area which was comprised within Burma as defined in the Government of India Act 1935, or
D) is entitled to be enrolled as an advocate under the new rule made by the bar council of India in this behalf .
  maybe admitted as an Advocate on state roll if he –
I) Makes and application for such enrollment in accordance with the provision of the act. and
II) fulfill the conditions specified in clause (A) (D) (E) and (F) of subsection (1).
Chapter VIII of part II of the bar council of India rules gives additional qualification for enrollment as an advocate thus “any person who has held office as a judge of any High Court in India may on retirement be admitted as an advocate on the role of any state Council where he is eligible to practice.
In the case of L.M. Mahurkar vs Bar Council of Maharashtra, the supreme court held that a person who has not acquired the educational qualifications required for enrollment as an advocate is not entitled to be enrolled through  the person practicing as sales tax practitioner before enforcement of the Advocate Act 1961, by virtue of the provisions of Bombay sales Tax act 1959. (AIR 1996 SC 1602)
The supreme court held that the rule imposed by bar council pre enrollment training and apprenticeship is ultra vires the rule making power of BAR council in V.Sudhir vs Bar Council of India (AIR 1999 Supreme Court 1167 )
The supreme court held that the rule debaring a person who has completed the age of 45 years is beyond the rule making power of the bar council of India .(Indian Council of Legal Aid and advice vs Bar Council of India(AIR 1995 Supreme Court 691).

RULES ON AN ADVOCATE’S DUTY TOWARDS FELLOW ADVOCATES

1. Not advertise or solicit work

An advocate shall not solicit work or advertise in any manner. He shall not promote himself by circulars, advertisements, touts, personal communications, interviews other than through personal relations, furnishing or inspiring newspaper comments or producing his photographs to be published in connection with cases in which he has been engaged or concerned.

2. Sign-board and Name-plate

An advocate’s sign-board or name-plate should be of a reasonable size. The sign-board or name-plate or stationery should not indicate that he is or has been President or Member of a Bar Council or of any Association or that he has been associated with any person or organisation or with any particular cause or matter or that he specialises in any particular type of work or that he has been a Judge or an Advocate General.

3. Not promote unauthorized practice of law

An advocate shall not permit his professional services or his name to be used for promoting or starting any unauthorised practice of law.

4. An advocate shall not accept a fee less than the fee, which can be taxed under rules when the client is able to pay more.

5. Consent of fellow advocate to appear

An advocate should not appear in any matter where another advocate has filed a vakalt or memo for the same party. However, the advocate can take the consent of the other advocate for appearing.

In case, an advocate is not able to present the consent of the advocate who has filed the matter for the same party, then he should apply to the court for appearance. He shall in such application mention the reason as to why he could not obtain such consent. He shall appear only after obtaining the permission of the Court.


RULES ON ADVOCATE’S DUTY TO OPPONENTS

1. Not to negotiate directly with opposing party

An advocate shall not in any way communicate or negotiate or call for settlement upon the subject matter of controversy with any party represented by an advocate except through the advocate representing the parties.

2. Carry out legitimate promises made

An advocate shall do his best to carry out all legitimate promises made to the opposite party even though not reduced to writing or enforceable under the rules of the Court.


RULES ON AN ADVOCATE’S DUTY TOWARDS THE CLIENT

1. Bound to accept briefs

An advocate is bound to accept any brief in the courts or tribunals or before any other authority in or before which he proposes to practise. He should levy fees which is at par with the fees collected by fellow advocates of his standing at the Bar and the nature of the case. Special circumstances may justify his refusal to accept a particular brief.

2. Not withdraw from service

An advocate should not ordinarily withdraw from serving a client once he has agreed to serve them. He can withdraw only if he has a sufficient cause and by giving reasonable and sufficient notice to the client. Upon withdrawal, he shall refund such part of the fee that has not accrued to the client.

3. Not appear in matters where he himself is a witness

An advocate should not accept a brief or appear in a case in which he himself is a witness. If he has a reason to believe that in due course of events he will be a witness, then he should not continue to appear for the client. He should retire from the case without jeopardising his client’s interests.

4. Full and frank disclosure to client

An advocate should, at the commencement of his engagement and during the continuance thereof, make all such full and frank disclosure to his client relating to his connection with the parties and any interest in or about the controversy as are likely to affect his client’s judgement in either engaging him or continuing the engagement.

5. Uphold interest of the client

It shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair and honourable means. An advocate shall do so without regard to any unpleasant consequences to himself or any other. He shall defend a person accused of a crime regardless of his personal opinion as to the guilt of the accused. An advocate should always remember that his loyalty is to the law, which requires that no man should be punished without adequate evidence.

6. Not suppress material or evidence

An advocate appearing for the prosecution of a criminal trial should conduct the proceedings in a manner that it does not lead to conviction of the innocent. An advocate shall by no means suppress any material or evidence, which shall prove the innocence of the accused.

7. Not disclose the communications between client and himself

An advocate should not by any means, directly or indirectly, disclose the communications made by his client to him. He also shall not disclose the advice given by him in the proceedings. However, he is liable to disclose if it violates Section 126 of the Indian Evidence Act, 1872.

8. An advocate should not be a party to stir up or instigate litigation.

9. An advocate should not act on the instructions of any person other than his client or the client’s authorised agent.

10. Not charge depending on success of matters

An advocate should not charge for his services depending on the success of the matter undertaken. He also shall not charge for his services as a percentage of the amount or property received after the success of the matter.

11. Not receive interest in actionable claim

An advocate should not trade or agree to receive any share or interest in any actionable claim. Nothing in this rule shall apply to stock, shares and debentures of government securities, or to any instruments, which are, for the time being, by law or custom, negotiable or to any mercantile document of title to goods.

12. Not bid or purchase property arising of legal proceeding

An advocate should not by any means bid for, or purchase, either in his own name or in any other name, for his own benefit or for the benefit of any other person, any property sold in any legal proceeding in which he was in any way professionally engaged. However, it does not prevent an advocate from bidding for or purchasing for his client any property on behalf of the client provided the Advocate is expressly authorised in writing in this behalf.

13. Not bid or transfer property arising of legal proceeding

An advocate should not by any means bid in court auction or acquire by way of sale, gift, exchange or any other mode of transfer (either in his own name or in any other name for his own benefit or for the benefit of any other person), any property which is the subject matter of any suit, appeal or other proceedings in which he is in any way professionally engaged.

14. Not adjust fees against personal liability

An advocate should not adjust fee payable to him by his client against his own personal liability to the client, which does not arise in the course of his employment as an advocate.

15.An advocate should not misuse or takes advantage of the confidence reposed in him by his client.

16.Keep proper accounts

An advocate should always keep accounts of the clients’ money entrusted to him. The accounts should show the amounts received from the client or on his behalf. The account should show along with the expenses incurred for him and the deductions made on account of fees with respective dates and all other necessary particulars.

17. Divert money from accounts

An advocate should mention in his accounts whether any monies received by him from the client are on account of fees or expenses during the course of any proceeding or opinion. He shall not divert any part of the amounts received for expenses as fees without written instruction from the client.

18. Intimate the client on amounts

Where any amount is received or given to him on behalf of his client, the advocate must without any delay intimate the client of the fact of such receipt.

19. Adjust fees after termination of proceedings

An advocate shall after the termination of proceedings, be at liberty to adjust the fees due to him from the account of the client. The balance in the account can be the amount paid by the client or an amount that has come in that proceeding. Any amount left after the deduction of the fees and expenses from the account must be returned to the client.

20. Provide copy of accounts

An advocate must provide the client with the copy of the client’s account maintained by him on demand, provided that the necessary copying charge is paid.

21. An advocate shall not enter into arrangements whereby funds in his hands are converted into loans.

22. Not lend money to his client

An advocate shall not lend money to his client for the purpose of any action or legal proceedings in which he is engaged by such client. An advocate cannot be held guilty for a breach of this rule, if in the course of a pending suit or proceeding, and without any arrangement with the client in respect of the same, the advocate feels compelled by reason of the rule of the Court to make a payment to the Court on account of the client for the progress of the suit or proceeding.

23. Not appear for opposite parties

An advocate who has advised a party in connection with the institution of a suit, appeal or other matter or has drawn pleadings, or acted for a party, shall not act, appear or plead for the opposite party in the same matter.


RULES ON AN ADVOCATE’S DUTY TOWARDS THE COURT

1. Act in a dignified manner

During the presentation of his case and also while acting before a court, an advocate should act in a dignified manner. He should at all times conduct himself with self-respect. However, whenever there is proper ground for serious complaint against a judicial officer, the advocate has a right and duty to submit his grievance to proper authorities.

2. Respect the court

An advocate should always show respect towards the court. An advocate has to bear in mind that the dignity and respect maintained towards judicial office is essential for the survival of a free community.

3. Not communicate in private

An advocate should not communicate in private to a judge with regard to any matter pending before the judge or any other judge. An advocate should not influence the decision of a court in any matter using illegal or improper means such as coercion, bribe etc.

4. Refuse to act in an illegal manner towards the opposition

An advocate should refuse to act in an illegal or improper manner towards the opposing counsel or the opposing parties. He shall also use his best efforts to restrain and prevent his client from acting in any illegal, improper manner or use unfair practices in any mater towards the judiciary, opposing counsel or the opposing parties.

5. Refuse to represent clients who insist on unfair means

An advocate shall refuse to represent any client who insists on using unfair or improper means. An advocate shall excise his own judgment in such matters. He shall not blindly follow the instructions of the client. He shall be dignified in use of his language in correspondence and during arguments in court. He shall not scandalously damage the reputation of the parties on false grounds during pleadings. He shall not use unparliamentary language during arguments in the court.

6. Appear in proper dress code

An advocate should appear in court at all times only in the dress prescribed under the Bar Council of India Rules and his appearance should always be presentable.

7. Refuse to appear in front of relations

An advocate should not enter appearance, act, plead or practice in any way before a judicial authority if the sole or any member of the bench is related to the advocate as father, grandfather, son, grandson, uncle, brother, nephew, first cousin, husband, wife, mother, daughter, sister, aunt, niece, father-in-law, mother-in-law, son-in-law, brother-in-law daughter-in-law or sister-in-law.

8. Not to wear bands or gowns in public places

An advocate should not wear bands or gowns in public places other than in courts, except on such ceremonial occasions and at such places as the Bar Council of India or as the court may prescribe.

9. Not represent establishments of which he is a member

An advocate should not appear in or before any judicial authority, for or against any establishment if he is a member of the management of the establishment. This rule does not apply to a member appearing as “amicus curiae” or without a fee on behalf of the Bar Council, Incorporated Law Society or a Bar Association.

10. Not appear in matters of pecuniary interest

An advocate should not act or plead in any matter in which he has financial interests. For instance, he should not act in a bankruptcy petition when he is also a creditor of the bankrupt. He should also not accept a brief from a company of which he is a Director.

11. Not stand as surety for client

An advocate should not stand as a surety, or certify the soundness of a surety that his client requires for the purpose of any legal proceedings.


RELATION TO THE CLIENT AND TO THE CASE

1. – The lawyer as a provider of legal services and performer of public authorizations
should give legal assistance, represent or defend the client, every time when clients refer
to him/her for that purpose.
The lawyer may refuse to give a legal service or perform a public authorization
only because of justified reasons, as for example: if the lawyer is overloaded with work;
if he/she finds that there are very small chances to win the case; if the client is not
capable to pay the costs and the remuneration to the lawyer; if the litigant is
irresponsible etc.
Refusing to give legal services in criminal cases (defense) should be considered
under rigorous criteria. – This is allowed only in exceptional cases of objective or
subjective nature, as for example: lawyer’s illness; if the accused didn’t pay for the
previous defense in the same case etc. However, in all these cases the accused shouldn’t
be left without defense.

In case when the client is poor, his/her incapability to pay completely the
remuneration to the lawyer, should not affect the provision of legal services or
providing of public authorizations, because the lawyer’s vocation is traditional and
honorable.
2. – If the lawyer accepts to perform public authorization or give legal assistance,
representation or defense, he/she is obliged to establish a relation of confidence with
his/her client and to remain loyal to him. The lawyer may cancel the representation,
defense or giving other legal assistance, because of the same reasons aforementioned in
item 1, but only if he/she found out about the existence of these reasons after he/she had
accepted to pursue the case. – However, in this case the lawyer is obliged to represent
his client until he finds another legal representative, but no longer than 30 days.
3. – The lawyer may not perform public authorization or represent clients who are colitigants
or co-accused in the same case, if they have opposite mutual interests. If a case
like this arises in the course of the representation, or defense, the lawyer is obliged to
cancel the representation, or defense towards one of his/her clients.
4. – When composing bilateral legal deeds (contracts or other), the lawyer is obliged
to protect the interests of the two parties conscientiously, regardless of the fact who
asked for the legal assistance and who is paying the remuneration. – If a dispute
regarding the contract composed by the lawyer arises between the parties, the same
lawyer may not represent either of them.
5. – The lawyer is obliged to represent and defend his/her client conscientiously, using
all necessary means which are permitted by the Law or by other regulations. – But, the
lawyer should avoid submitting unnecessary briefs or proposals. – The lawyer should
insist on concentrating all evidence and facts in small number of briefs. – The lawyer
may not identify himself with his client; he should act from the height of his function –
representative or defender of his client.
6. – Representing his client, the lawyer should accept neither the offer to represent the
opposite party in the same case, nor other activities which are opposite to his client’s
interests, during the litigation.
7. – If the lawyer accepts the offer to represent or defend the client, he should get
detailed information with all possible evidence from his client, and to caution the same
that in his/her interest is to inform the lawyer about all facts. On the other hand, the
lawyer is obliged to research and study conscientiously the case that he accepted to
represent and to act upon that case on the same way, as well to inform his client
honestly about his personal opinion about the expected outcome of the litigation.
The lawyer is also obliged to familiarize his client with the actual situation of the
case – from factual and legal point of view.
8. – When accepting the offer to represent the client, the lawyer is obliged to inform
him, if possible, about the amount of expenses and the remuneration for the
representation or performing of public authorization. – If the client is in bad financial
condition, the lawyer should adjust the remuneration with the financial condition of his client, that is, to decrease the remuneration even under the minimum which is
determined by the tariff. Also, the lawyer should not demand any remuneration from a
client who is extremely poor, taking care for the old ethical principle of the lawyers:
nobody should be left without an expert lawyer’s legal assistance only because of his/her
incapability to pay the remuneration.
9. – The lawyer should not accept to perform public authorization, to represent, defend
or render other legal assistance in so many cases at the same time, if that would make
him overloaded to the extent that he could not handle conscientiously and thoroughly
each of the cases. If the lawyer is overloaded, he should refer the client to other
colleagues he trusts.
10. – The lawyer should not see the opposite party as an enemy but as an average
adversary, who may be as confident in his right as the client he represents. Thus, the
lawyer’s relation to the opposite party should be concrete. – Nevertheless, this should not
affect the representation of his client. The lawyer should act energetically and without
fear, but still in the framework of the provisions of the law. – The lawyer should avoid
any contact with the opposite party without knowledge of his client and the opposite
party’s representative.
The lawyer should inform his client about his friendly relation with the opposite
party, before he agrees to represent the client. This would eliminate any suspicion
regarding the regular/correct performance of the lawyer’s duty