Q. 6. Discuss the rights of advocate.
Or
“Advocates have important partnership with the judicial administration.” Explain this statement giving various rights of the advocates.
Ans. The provisions relating to rights of advocates have been described under Sections 29, 30, 32, 33 and 34 of Advocates Act, which are as follows:
Rights of Advocates
Section 29 of the Advocates Act, 1961 provides that “subject to the provisions of this Act and any rules made thereunder, there shall, as from the appointed day, be only one class of persons entitled to practise the profession of law, namely advocates.”
This section came into operation on 1st June, 1969. Section 29 provides for a unified Bar for the whole of India. This section has been enacted in response to a demand by the legal profession for the unification of the Bar. It may be noted that under this section, only one category of persons, the advocates, are authorized to practise, subject to the provisions of this Act.
In D.A.S. Swami v. Kubendram, AIR 1967 Mad 276, the Madras High Court has laid down that a person who is not an advocate on the role of High Court, has no right to represent the accused.
In Nibaran Bora v. Union of India. AIR 1992 Gau. 54, the Gauhati High Court has held that only advocates can practise in a court of law. The meaning of the word “practise” is, repeated action, habitual performance, a succession of acts of a similar kind.” A person (non-advocate) habitually representing the parties in the Court, would not amount to practicing the profession of law and it would be violation of the provisions of the Act. In other words, it is absolutely clear that any one who is not an advocate cannot, as of right, claim to plead for another. Nevertheless, it is open to a person who is a party to the proceeding to get himself represented by a non- advocate in a particular case as provided under Section 32.
It is relevant to mention Section 55 of this Act, which saves the rights of certain legal practitioners such as, pleaders, vakils, attorneys, mukhtars and revenue agents, who shall continue to enjoy the same rights to practise. as if the provisions of Legal Practitioners Act, 1879, were not repealed. The self-explanatory provisions of Section 55 are as follows:
Notwithstanding anything contained in this Act-
(a) every pleader or vakil practicing as such, immediately before the date on which Chapter IV comes into force (hereinafter in this section referred to as the said date) by the virtue of the provisions of the Legal Practitioners Act, 1879 (18 of 1879), the Bombay Pleaders Act, 1920 (Bombay Act, 17 of 1920) or any other law, who does not elect to be, or is not qualified to be enrolled as an advocate, under this Act;
(b) every mukhtar practicing as such immediately before the said date by virtue of the provisions of the Legal Practitioners Act, 1879 (18 of 1879), or any other law, who does not elect to be, or is not qualified to be. enrolled as an advocate under this Act,
(c) every fevenue agent practicing as such immediately before the said date by virtue of the provisions of the Legal Practitioners Act. 1879 (18 of 1879), or any other law:
shall notwithstanding the repeal by this Act of the relevant provisions of the Legal Practitioners Act, 1879 (18 of 1879), the Bombay Pleaders Act, 1920 (Bombay Act 17 of 1920) or any other law, continue to enjoy the same rights as respects practice in any Court or revenue office or before any authority or person and be subject to the disciplinary jurisdiction of the same authority which he enjoyed or, as the case may be, to which he was subject immediately before the said date and accordingly the relevant provisions of the Acts or law aforesaid, shall have effect in relation to such persons as if they had not been repealed.
Similarly, Section 30 lays down that subject to the provisions of this Act, every advocate whose name is entered in the State Roll shall be entitled as of right to practise throughout the territories to which this Act extends:
(i) in all Courts including the Supreme Court:
(ii) before any Tribunal or person legally authorized to take evidence: and
(iii) before any other authority or person before whom such advocate is by or under any law for the time being in force, entitled to practise.
It may, however, be noted that the Advocates Act, 1961, came into existence for over four decades back, but still Section 30 of this Act. has not been enforced.
Section 32 of the Advocates Act, 1961 says. “Notwithstanding anything contained in this Chapter any Court, authority, or person may permit any person, not enrolled as an advocate under this Act, to appear before it or him in any particular case.”
Advocates alone are entitled to practise
Section 33 of the Advocates Act, 1961 is relevant in this context. The self-explanatory provisions of Section 33 provides that “except as otherwise provided in this Act or in any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practise in any Court or before any authority or person, unless he is enrolled as an advocate under this Act.” It means advocates alone are entitled to practise in a Court, Tribunal or any authority.
But Section 32 of this Act emphatically provides that “notwithstanding anything contained in this Chapter (Section 29 to Section 34) any Court. authority or person, may permit any person, not entitled as an advocate under this Act to appear before it or him in any particular case.
In Hari Shankar v. Giradhari Sharma, AIR 1978 SC 1019. the Supreme Court has held that a private person who is not an advocate, has no right to barge into Court and claim to argue for a party. He must get the prior permission of the Court, for which the motion must come from the party himself. It is open to the Court to grant or withhold permission in its discretion. In fact, the Court may, even after grant of permission, withdraw it half way through, if the representative proves himself reprehensible. The antecedents, the relationship, the reasons for requisitioning the services of the private person and a variety of other circumstances must be gathered before grant or refusal of permission.
However, in Derby Textiles Ltd. v. Mahamantri, Derby Textiles Karmachari and Shramik Union, (1994) 3 LLJ (Supp) 528 (Rajasthan), it has been held that an office-bearer of a trade union, who is a qualified law graduate but not registered as an advocate, can be permitted to represent the union and argue the case.
However, under Section 34 of the Advocates Act, 1961, the High Court is empowered to make rules about the conditions under which an advocate shall be permitted to practise in the High Court and subordinate courts.
It may, however, be noted that while Section 15 of the Advocates Act. 1961, empowers both the State Bar Council as well as Bar Council of India to make rules to carry out the purpose of the provisions of Chapter II of the Advocate Act, which is entitled as, “Bar Council”. Section 49 empowers the Bar Council of India and not State Bar Councils to make rules for discharging various functions under the Act. The rules framed by the Bar Council of India, are essential for the advocates as the conditions for their right to practise in a Court of law or before any Tribunal or authority established by law.
Q. 7. What qualities a person should have to become able and successful Advocate.
Or
What qualifications a lawyer should possess to be a successful advocate?
Ans. Status and Qualities of an Advocate
An advocate by virtue of his position is an officer of the Court. He belongs to a privileged class of the society enrolled not only for the purpose of rendering assistance to the Court in the administration of justice but also b giving professional advice, for which he is entitled to be paid, by those members of the public who require his services. His position as a lawyer. his training and practice, give him immense influence with public and his example must necessarily have a much greater effect, whether for good or for evil, than those who do not occupy this privileged position.
An important aspect of virtue of an advocate is his courage and straightforwardness. W. R. Riddle, an eminent American lawyer, has said. This courage of an advocate, is not the courage of a prize-fighter, nor of the bully, but the courage that will tackle all the problems, or questions presented to investigate it, to find out the ways, and wherefores, the ins and outs, the pleasing feature as well as those that are undisgraceful and then stand by your guns. In no profession is it more certain that “knowledge is power” and “cowardice is the result of ignorance”
Lord Brougham has observed, “A lawyer must know everything about something and something about everything”
But it must be noted that the knowledge of law as exemplified by distinction in law examinations, is not sufficient in itself to secure success at the Bar. The more comprehensive and thorough knowledge of law cannot be mastered in a couple of years spent at a law college or the law faculty of a University. It is natural that the young advocate should be anxious to get business at once but he should remember that a little knowledge is a dangerous thing and he should wait to learn the mistakes, not at the cost or expenses of his clients but at the cost of his own labour and conscience.
There is a common belief that a boy who talks too much and argues everything, can be a successful lawyer. But it should be noted that talking too much is not a first rate qualification for a lawyer. Ability to talk fluently may be an aid to success. But that is not a guarantee to success. To become a good lawyer, one need not only begin by becoming a good speaker but the power of argument is necessary for legal profession. This power can be achieved by constant labour and experience. What are required of a advocate are the ideas, a world of informations and ready capacity to recall to mind what one knows and put it to use.
Besides, moral equipment is more important for a lawyer than his intellectual trains. G. W. Warvelle has said, “Because of the magnitude of the interests placed in the hands of the members of the Bar, the responsibility which they assume and the confidence in which they are interested, these are demanded of them in the exercise of their duties, an exemplification of the highest qualities of moral excellence. Moral excellence is in fact indispensable element in all forms of human greatness”
Above all, a sine qua non for success is to be industrious. Lord Eldon has said, “One must live like a hermit and work like a horse.” Lord Atkin is of the opinion that success of an advocate depends upon how to develop the capacity for hard and regular work. He says. “Industry is ‘fortune’s’ right hand.”
According to Cicero. “Diligence is capable of effecting almos everything It is the one virtue in which all other virtues are comprehended Industry is the motto of professional life.
Art of Advocacy
To plead a case is an art for the advocate. His duty is to make best use of materials before him which have been provided to him by the client.
The manner and the matter are the two things which make a lawyers successful professional. Even poor matter presented with fine manner weighs too much. Very a few young professional lawyers give prope attention to posture, gesture and Court manners. But these are all importani things for an advocate. Nothing is so ingratiating and invigorating as good manners for a lawyer. Manner goes a long way to make an advocate successful lawyer.
The lawyer must borne in his mind two rules while cross-examining the other party and his witnesses. The first rule is that the witness must be cross-examined on all material facts which are questions of dispute. And the second rule is that the lawyer in cross-examining the other party must pur to the witness the case he is going to set up, so far as it is within the knowledge of the witnesses.
Art of Presenting Citation of Cases. After submission of the case in a Court of law, there comes the process of citation of cases in support of the case. This process plays an important role for winning the case in the Court. A lawyer should be aware of all relevant cases on the points of law involved in that case. A large number of cases need not be quoted rather only the most important and relevant cases should be selected for citation Primarily the cases decided by the highest Court should be cited in the case In case the decision of highest Court on the point of law is not available fo citation, then the lawyer should select the decision of such cases on the E point by the higher Court than the Court where the case is being pursued by the lawyer. In absence of such decisions on the point of law involved, the decision of co-ordinate Courts may be referred to, by the lawyer for deciding the case.
Q. 8. What are the seven Lamps of Advocacy? Discuss.
Ans. Seven Lamps of Advocacy. The “seven Lamps of advocacy which have Leen referred as the qualities for an advocate to be successful a the bar, are as follows:
(1) Honesty,
(2) Courage.
(3) Industry,
(4) Wit.
(5) Eloquence
(6) Judgment, and
(7) Fellowship.
1. Honesty. Honesty is the best policy but in case of an advocate, should be the foremost policy for a professional lawyer
2. Courage Courage is the weapon which is developed through deel knowledge of law and straightforwardness of the advocate. An advocate can be successful through boldness which is developed by him persistently through his inner qualities.
3. Industry-Good advocacy is the life of industry. Only an industrious advocate can become a successful lawyer. The act of industry makes an advocate successful in his profession. An advocate must study his brief in the same way as an actor studies his part of acting before going to perform
4. Wit-Wit is that lamp through which the advocacy enlightens his point of view to the presiding officer of the Court in his favour to win the wit.
5. Eloquence. Eloquence of manner of an advocate is the real eloquence. In eloquence there is physical as well as psychological side of advocacy.
6. Judgment. Through the lamp of judgment, an advocate takes a final decision for his success through perceptions and intuitions.
7. Fellowship. It is through the feeling of fellowship that an advocate encourages his fellow-advocates to walk in the light of seven lamps of advocacy.
8. Tact. The eighth lamp which enlightens an advocate to move on the path of success, is “tact”. Tact is the eighth lamp which enlightens an advocate to move forward in his profession. Tact is the intellenctual quality of an advocate. Through “tact”, human side of putting things into action as a result of his judgment of taking decision is carried on by an advocate.
Q. 9. Discuss the general duties of an advocate.
Or
What do you understand by responsibility for advocates? Explain.
Ans. General duties of an advocate.- General duties of an advocate are reproduced hereunder:
(1) To maintain Cordial and fiduciary Relations with Clients. Due to the confidential relationship between the advocate and his client, it is the duty of an advocate to maintain cordial and fiduciary relationship with his clients. An advocate ought to bear in his mind that he has not to appear before a Court for two clients whose interests clash with each other in a case.
In giving opinions to his clients, an advocate should act as judge and advise soberly, discreetly and honestly to the best of his ability, knowledge and experience. The law requires of an advocate nothing but the honest discharge of his duties to the best of his judgment. By accepting an engagement an advocate promises perfect legal knowledge with respect to subject matter of his employment. But if the advocate discharges his duties with ordinary and reasonable diligence, care and prudence, he will not be liable to the consequences arising thereafter.
An advocate must furnish true and correct account of all the moneys which the advocate receives on behalf of his clients. He should be prompt to undertake communications with his clients to give him full, correct and present position of the case which he is pursuing on behalf of his clients
(2) To observe Rules of Bar Council. It is the duty of an advocate to observe certain legal and mandatory rules prescribed by the Bar Council of India in his dealings with his clients. According to a rule of Bar Council of India, an advocate is bound to accept any brief in the Courts or Tribunals or before any Authority in or before which he professes to practise at a fee consistent with his standing at the Bar and the nature of the case. Special circumstances may justify his refusal to accept a particular brief. Another rule of Bar Council of India presents that an advocate shall not ordinarily withdraw from engagement once accepted, without sufficient cause and unless reasonable and sufficient notice is given to the client. Further. another rule prescribes that an advocate should not accept a brief or appear in a case in which he has reason to believe that he will be a witness and if being engaged in a case, it becomes apparent that he is a witness on a material question of fact, he should not continue to appear as an advocate, if he can retire without jeopardizing his client’s interest. Another rule provitles that it shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair and honourable means without regard to any unpleasant consequences to himself or any other. He shall defend a person accused of crime regardless of his personal opinion as to the uilt of the accused, bearing in mind that his loyalty is to the law which requires that no man should be convicted without adequate evidence. Yet another rule provides that an advocate shall not directly or indirectly commit a breach of the obligations imposed by Section 126 of the Indian Evidence Act.
(3) Duty to maintain account of the clients. According to another rule of Bar Council of India, an advocate should keep accounts of the client’s money entrusted to him, and accounts should show the amounts received from the client or on his behalf, the expenses incurred for him and the debits made on account of fees with respective dates and all other necessary particulars.
(4) Duty to give receipt of the amounts received. Another rule provides that where any amount is received or given to him on behalf of his client, the fact that such receipt must be intimated to the client as early as possible. According to yet another rule after termination of the proceeding. the advocate shall be at liberty to appropriate towards the settled fee due to him any sum remaining unexpended out of the amount paid or sent to him for expenses, or any amount that has come into his hands in that proceeding. Another rule of Bar Council of India provides where the fee has been left unsettled, the advocate shall be entitled to deduct, out of any moneys of the client remaining in his hands, at the termination of proceedings for which he has been engaged, the fee payable under the rules of the Court in force for the time being, or by then settled and the balance. if any, shall be refunded to the client. Further, according to another rule, a copy of the client’s account shall be furnished to him on demand provided the necessary copying charge is paid. An advocate shall not enter into arrangements whereby funds in his hands are converted into loans.
(5) Duty not to lend to the chents. An advocate shall not lend money to his clients, for the purpose of any action or legal proceedings in which he is engaged by such client. It has been provided under Section 11 of the Bar Council of India Rules, under the caption “explanation”, that an advocate shall not be held guilty of 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 proceedings.
(6) Duty not to plead for the opposite party. Another rule provides that an advocate who has at any time, advised 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.
These are in nut-shell a few important duties for an advocate for achieving success in his profession.
Q. 10. What are the duties of an advocate towards the Court? Explain.
Or
Is it proper for an advocate to behave as a subordinate to the Court? Answer this question in reference to professional ethics as framed by the Bar Council of India.
Ans. Duties of an advocate towards the Court. An advocate shall, at all times, comfort himself in a manner befitting to his status as an officer of the Court, a privileged member of the community, and a gentleman, bearing in mind that what may he lawful and moral for a person who is not a member of Bar, or for a member of Bar in his non-professional capacity, may still be improper for an advocate.
The duties of an advocate towards the Court are as follows:
Section I of the Bar Council of India Rules provides an advocate’s duties to the Court, which are as follows:
Rule 1. An advocate shall, during the presentation of his case and while otherwise acting before a Court, conduct himself with dignity and self- respect. He shall not be servile and whenever there is proper ground for serious complaint against a judicial officer, it shall be his right and duty to submit his grievance to proper authority.
Rule 2. An advocate shall maintain towards the Court a respectful attitude, bearing in mind that the dignity of the judicial office is essential for the survival of a free community.
Rule 3. An advocate shall not influence the decision of a Court by an illegal or improper means. Private communications with a judge relating to a pending case are forbidden.
Rule 4. An advocate shall use his best efforts to restrain and prevent his client from resorting to sharp or unfair practices or from doing anything in relation to the Court, opposing counsel or parties which the advocate himself ought not to do. An advocate shall refuse to represent the client who persists in such improper conduct. He shall not consider himself a mouthpiece of the client, and shall exercise his own judgment in the use of restrained language in correspondence, avoiding scurrilous attacks in pleadings and using imperative language during arguments in Courts.
Rule 5. An advocate shall appear in Court at all times only in the prescribed dress, and his appearance shall always be presentable.
Rule 6. An advocate shall not enter appearance, act, plead or practise in any way before a Court, Tribunal or Authority as mentioned in Section 30 of the Act, if the sole or any member thereof 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.
Rule 7. An advocate shall not wear bands or gown in public places other than in Courts except on such ceremonial occasions and at such places as the Bar Council of India or the Court may prescribe.
Rule 8. An advocate shall not appear in or before any Court or Tribunal or any other Authority for or against an organization or an institution, society or corporation, if he is the member of the Executive Committee of such organization or institution or society or corporation. “Executive Committee” by whatever name it may be called, shall include any committee or body of persons which, for the time being, is vested with the general management of the affairs of the organization or institution, society or corporation:
Provided that this rule shall not apply to such a member appearing as “amicus curiae” or without a fee in a matter affecting the affairs of a Bar Council, Incorporated Law Society, or a Bar Association.
Rule 9. An advocate shall not act or plead in any matter in which be is himself pecuniarily interested. For example, (i) He shall not act in a bankruptcy petition when he himself is also a creditor of the bankrupt, (ii) He should not accept a brief from a company of which he is a director.
Rule 10. An Advocate shall not stand as a surety, or certify the soundness of a surety, for his client required for the purpose of any legal proceedings.
The abovementioned self-explanatory provisions enable an advocate to act independently and fearlessly during the course of his duty as a pleader of his client. He has a duty and right to submit his grievance to proper authority against a judicial officer. Besides, he has to aid the Court for due discharge of fair administration of justice by not influencing the decision of the Court by an illegal and improper means. He will not have any private communications with the judge in respect of pending cases in the Court.
In D.C. Saxena v. Chief Justice of India. AIR 1996 SC 2481, the Supreme Court has held that a party or a counsel appearing before the Court should not use in his pleadings, the scurrilous allegations against the judge or the Court in order to maintain the dignity and decorum or the Court, otherwise, the reputation and dignity of the judge would disappear and the independence of the judiciary would be badly affected.
In Smi. Poonam v. Sumit Tanwar, AIR 2010 SC 1384, the Supreme Court has held that in case the counsel for the party is not able to render any assistance, the Court may decline to entertain the petition. In absence of proper assistance to the Court by the lawyer, there is no obligation on the part of the court to decide the case for the simple reason that unless the lawyer renders proper assistance to the Court, the Court is not able to decide the case. Besides, there shall be violation of natural justice because the opposite party will not have opportunity of fair hearing. In such cases, the judgment may be violatives of principle of natural justice.
Q. 11. What are the duties of an advocate towards his client? Explain in detail.
Ans. Duties of an advocate towards his clients. Section II of the Bar Council of India Rules provides for the duties of advocates towards his clients. According to Bar Council of India Rules, following are the duties of an advocate towards his client:
Rule 11. An advocate is bound to accept any brief in the Courts or Tribunals or before any authority in or before which he professes to practise at a fee consistent with his standing at the Bar and the nature of the case. Special circumstances may justify his refusal to accept a particular brief.
In New India Assurance Co. Ltd. v. A. K. Saxena, (2004) 1 SCC 117, the Supreme Court has held that the remedy for an advocate in case of unpaid remuneration cannot be agitated through a writ petition before the High Court or the Supreme Court. An advocate has no lien over the papers of his client. It is to be decided in an appropriate forum.
Rule 12. An advocate shall not ordinarily withdraw from engagements once accepted without sufficient cause and unless reasonable and sufficient notice is given to the client. Upon his withdrawal from a case, he shall refund such part of the fee as has not been earned.
Rule 13. An advocate should not accept a brief or appear in a case in which he has reason to believe that he will be a witness and if being engaged in a case, it becomes apparent that he is a witness on a material question of fact, he should not continue to appear as an Advocate of that case, if he can retire without jeopardizing his client’s interests.
Rule 14. An advocate shall, at the commencement of his engagement and during the continuance thereof, make all such full and frank disclosures 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 judgment in either engaging him or continuing the engagement.
Rule 15. It shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair and honourable means 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, bearing in mind that his loyalty is to the law which requires that no man should be convicted without adequate evidence.
Rule 16. An advocate appearing for the prosecution in a criminal trial shall so conduct the prosecution that it does not lead to conviction of the innocent. The suppression of materials capable of establishing the innocence of the accused, shall be scrupulously avoided.
Rule 17. An advocate shall not directly or indirectly, commit a breach of the obligations imposed by Section 126 of the Indian Evidence Act.
Rule 18. An advocate shall not, at any time, be a party to fomenting of litigation.
Rule 19. An advocate shall not act on the instructions of any person other than his client or his authorized agent.
Rule 20. An advocate shall not stipulate for a fee contingent on the results of litigation or agree to share the proceeds thereof.
Rule 21. An advocate shall not buy or traffic in or stipulate for or agree to receive any share or interest in any actionable claim. Nothing in this Rule shall apply to stock, shares and debentures or 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.
Rule 22. An advocate shall not, directly or indirectly, 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 the execution of a decree or order in any suit, appeal or other proceeding in which he was in any way professionally engaged. This prohibition, however, does not prevent an advocate from bidding for or purchasing for his client any property which his client may himself legally hid for or purchase, provided the advocate is expressly authorized in writing in this behalf.
Rule 23. An advocate shall not, adjust fee payable to him by his client against his own personal liability to the client, which liability does not arise in the course of his employment as an advocate.
Rule 24. An advocate shall not do anything whereby he abuses or takes advantage of the confidence reposed in him by his client.
Rule 25. An advocate should keep accounts of the clients, money entrusted to him, and the accounts should show the amounts received from the client or on his behalf, the expenses incurred for him and the debits made on account of fees with respective dates and all other necessary particulars.
Rule 26. Where moneys are received from or on account of a client, the entries in the accounts should contain a reference as to whether the amounts have been received for fees or expenses, and during the course of the proceedings, no advocate shall, except with the consent in writing of the client concerned, be at liberty to divert any portion of the expenses towards fees.
Rule 27. Where any amount is received or given to him on behalf of his client, the fact of such receipt must be intimated to the client as early is possible.
Rule 28. After the termination of the proceeding, the advocate shall be at liberty to appropriate towards the settled fee due to him any sum remaining unexpended out of the amount paid or sent to him for expenses, or any amount that has come into his hands in that proceeding.
Rule 29. Where the fee has been unsettled, the advocate shall be entitled to deduct, out of any moneys of the client remaining in his hands, at the termination of the proceedings for which he had been engaged, the fee payable under the rules of the Court in force for the time being, or by then settled and the balance, if any, shall be refunded to the client.
Rule 30. A copy of the client’s account shall be furnished to him on demand provided the necessary copying charge is paid.
Rule 31. An advocate shall not enter into arrangements whereby funds in his hands are converted into loans.
Rule 32. 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 clients.
Explanation – An advocate shall not be held guilty of 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 proceedings.
Rule 33. An advocate who has at any time, advised 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.
The above are the provisions of Bar Council of India Rules with regard to the duties of an advocate towards his clients.
Q. 12. Discuss the fiduciary relationship of advocate with his clients.
Ans. Fiduciary Relationship with the Client:
An Advocate has fiduciary relationship with his client. He has to serve the interest of his client by protecting him in the litigation to the best of his capacity and ability in the Court of law. He is not only an agent for his client rather something more than that. Although the relationship of an advocate with his client is of contractual nature still it involves the highest order of trust and confidence. Although their relationship is akin to that of an agent and principal, but it is essentially a relationship of faith and fidelity. The self-explanatory provisions of Bar Council of India Rules 14, 15, 22 and 24 describe the relationship of an Advocate with his client. Rule 14 provides that “an Advocate shall, at the commencement of his engagement and during the continuance thereof, make all such full and frank disclosure to his client relating to his conviction with the parties and any interest in or about the controvercy as are likely to affect his client’s judgment in either engaging him or continuing the engagement.” It means that it is the Advocate’s duty toward, his client to state all such full and frank disclosure and also any interest in the suit, which may affect his client’s judgment in engaging or continuing his services as an Advocate. This duty of disclosure on the part of the Advocate is of vital importance from the point of his professional ethics.
The next important duty which an Advocate owes to his client is described under Rule 15 of the Bar Council of India. Accordir.g to Rule 15. it shall be the duty of an Advocate fearlessly to uphold the interests of his client by all fair and honourable means 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, bearing in mind, that his loyalty is to the law which requires that no man should be convicted without adequate evidence.
Rule 22 of the Bar Council of India Rules, is also of great importance Rule 22 provides that an Advocate shall not, directly or indirectly, bid for or purchase either in his own name or in any other name, for his own benefit or for the b nefit of any other person, any property sold in the execution of a decree or order in any suit, appeal or other proceeding in which, he was in any way professionally engaged. This prohibition, however, does not prevent an Advocate from bidding for or purchasing for his client any property which his client may himself legally bid for or purchase, provided the Advocate is expressly authorised in writing in this behalf. Rule 24 which is of general significance, provides that an Advocate shall not do anything whereby he abuses or takes advantage of the confidence reposed in him by his client.
In P.D. Gupta v. Ram Murti and another, AIR 1998 SC 283, the Supreme Court has held that an Advocate buying disputed property under litigation at a throw-away price from his client, whose title to the property was in doubt and selling the same to a third party for profit, was unbecoming of his legal profession, which brought the process of administration of justice into disrepute. The Court further held that the Advocate was guilty of professional misconduct and punished him by suspending him for one year from legal practice.
Keeping Accounts of the Client’s Money
Other Rules of Bar Council of India regarding the Advocate’s duties for keeping accounts of his client’s money are also of great importance. Rule 25 provides that the Advocate should keep accounts of the client’s money entrusted to him, and the accounts should show the amounts received from the client or on his behalf, the expenses incurred for him and debits made on account of fees with respective dates and all other necessary particulars. According to Rule 26, where the moneys are received from or on account of a client, the entries in the accounts should contain a reference as to whether the amounts have been received for fees or expenses, and during the course of the proceedings, no Advocate shall, except with the consent in writing of the client concerned, be at liberty to divert any portion of the expenses towards fees.
In State of Orissa v. Nalini Kant Muduli, AIR 2004 SC 4272, the Supreme Court has held that as the members of the Bar are officers of the Court, they have bounden duty to assist the Court and not to mislead it. The court further held that citing the judgment of a Court which has been overruled by a Larger Bench of High Court or Supreme Court without disclosing the fact that it has been overruled, is a matter of great concern and amounts to professional misconduct.
Rule 27 imposes an obligation on the part of the Advocate by providing that “where any amount is received or given to him on behalf of his client the fact of such receipt must be intimated to the client as early as possible.” According to Rule 28, after the termination of the proceeding, the Advocate shall be at liberty to appropriate towards the settled fee due to him any sum remaining unexpended out of the amount paid or sent to him for expenses, or any amount that has come into his hands in that proceeding. Rule 29 deals with clearance of client’s accounts with the Advocate. It provides that where the fee has been left unsettled, the Advocate shall be entitled to deduct, out of any moneys of the client remaining in his hands, at the termination of the proceeding for which he had been engaged, the fee payable under the rules of the Court in force for the time being, or by then settled and the balance, if any, shall be refunded to the client. However, according to Rule 30, a copy of the client’s account shall be furnished to him on demand provided the necessary copying charge is paid.
The Bar Council of India Rule 31 prohibits an Advocate to enter into arrangements whereby funds in his hands are converted into loans Further, Rule 32 provides that 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. But “explanation” of this Rule provides an exception to this Rule that “An Advocate shall not be held guilty of 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 payment to the Court on account of the client for the progress of the suit or proceedings.
Q. 13. Discuss the Restrictions on Appearance for the Opposite Party by an Advocate.
Ans. Restrictions on appearance for the opposite party by an advocate. According to Rule 33, an Advocate who has, at any time. advised 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. This duty of the Advocate does not remain only upto the duration of that suit rather it continues even after that. Under Section 126 of the Indian Evidence Act, 1872, it has been provided that “No barrister. attorney, pleader or vakil shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment.”
The object behind providing privileged communication to the Advocate is, that he may defend his client with all his knowledge and power while discharging his functions effectively. However, following two exceptions have been provided to his rule, where disclosure may be allowed:
(1) Any such communication made in furtherance of any illegal purpose.
(2) Any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such showing that any crime or fraud, has been committed since the commencement of his employment.
However, an Advocate is advised not to appear for the opposite side in any subsequent proceeding during the course of that case. In this respect, Rule 33 is relevant which provides that an Advocate who has, at any time. advised 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 Baijnath v. S. An Advocate of Unnao, AIR 1934 Oudh 58, it was held that it would be unprofessional for an Advocate to appear on the other side. In order to prevent counsel appearing for a party, he must have a definite retainer with a fee paid, or he must have such confidential instructions from one of the parties as it would make it proper for him to appear for the other party. Charges of misconduct must be clearly proved.
Q. 14. Discuss the duties of an Advocate towards his opponent parties.
Ans. Duties of an advocate towards opponent parties. Duties of an advocate towards his opponent parties are as follows :
Section III of Bar Council of India Rules provides regarding the duties of an Advocate towards the opponent party. According to Rule 34 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. Rules 35 provides that 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.
It is the duty of an Advocate that he should be fair to his opponent. He should give due importance to his opponent Advocate. He should not mislead by concealing or withholding facts to his opponent. The Advocate must not forget that he is not fighting the battle of his client but he is also assisting the court in the administration of justice.
According to Rule 34 of the Bar Council of India, an Advocate, shall not in any way communicate or negotiate upon the subject-matter of controversy with any party represented by an Advocate through that Advocate. Further, according to Rule 35, an Advocate shall do his best to carry out all legitimate promises made to the opposite party even not written or enforceable under the rules by the court. These two obligations of an Advocate would enhance his image in the eye of his opponent Advocate.
To sum up, the advocate’s duty towards his opponent rests on the pattern of equality and fairness in dealings.
Q. 15. What are the duties of an advocate towards his colleagues ?
Ans. Duties of an advocate towards his colleagues. The duties of an advocate towards his colleagues are as follows :
Section IV of the Bar Council of India Rules, describes the duties of an advocate towards his colleagues. Under Rules 36, 37, 38 and 39 these duties of an advocate have been enumerated. Under Rule 36, an Advocate shall not solicit work or advertise (either directly or indirectly) whether by circulars or advertisement, touts, personal communications, interview not warranted by personal relations, furnishing or inspiring newspaper comments or producing his photograph to be published in connection with cases in which he has been engaged or concerned. His 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 he has been associated with any person or organisation in 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. Rule 37 provides that an advocate shall not allow his professional services or his name to be used in aid of or to make possible, the unauthorised practice of law by any law agency.
According to Rule 38, an advocate shall not accept a fee less than the fee taxable under the rules when the client is able to pay the same.
Rule 39 provides that an Advocate shall not enter appearance. In any case in which there is already a Vakalatnama or memo or appearance filed by an Advocate engaged for a party except with his consent. In case such consent is not produced, he shall apply to the court stating reasons why the said consent could not be produced and he shall appear only after obtaining the permission of the court. The purpose behind the provisions of Rule 39 is that an Advocate has to keep goodwill among his fellow Advocates. It is a matter of professional ethics that an Advocate should discourage any client from changing his counsel. He should advise such clients that without proper reasons or necessity they should not do so for the sake of fair administration of justice. It means that the Advocate has to maintain cordial relationship with his brethren counsels in discharge of his duties.
Q. 16. What are residual duties of an Advocate.
Ans. Residual Duties of an Advocate. Residual duties of an advocate are as follows:
(i) Duty to pay Membership Subscription. The residual duties of an Advocate have been described under Section IV-A of Bar Council of India Rules. Under section IV-A, Rule 40 provides that every Advocate borne on the rolls of the State Bar Council shall pay to the State Bar Council a certain amount every third year. According to Rule 41, all sums so collected by the State Bar Council in accordance with Rule 40 shall be remitted to the Bar Council of India by the end of every month which shall be credited by the Bar Council of India in a separate fund to be known as “Advocate Welfare Fund” to be untilised for the welfare of the Advocates of that State, and shall be deposited in the bank as provided thereunder.
Rule 41 (2) provides that the Bar Council of India Advocates’ Welfare Fund Committee for the State, shall remit 20% of the total amount collected and credited to its account, to the Bar Council of India and the Bar Council of India shall deposit the said amount in a separate fund to be known as “Bar Council of India Advocates Fund.” This fund shall be managed by the Welfare Committee of the Bar Council of India in the manner prescribed from time to time by the Bar Council of India for the welfare of the Advocates.
Rule 41 (3) provides that the rest 80% of the total sum so collected by the Bar Council of India Advocates Welfare Committee for the State, shall be utilized for the welfare of advocates in respect of welfare schemes sponsored by the respective State Bar Councils and this fund shall be administered by the Advocates Welfare Committee for the State which shall submit its report annually to the Bar Council of India.
Rule 42 provides that an Advocate may be suspended due to non- payment of subscription. According to Rule 42, if an Advocate fails to pay the aforesaid sum within the prescribed time as provided under Rule 40, the Secretary of the State Bar Council shall issue to him a notice to show cause within a month, why his right to practise be not suspended. In case the advocate pays the amount together with late fee of Rs. 5/- per month, or a part of a month subject to a maximum of Rs. 30 within the period specified in notice, the proceedings shall be dropped. If the advocate does not pay the amount or fails to show sufficient cause, a committee of three members constituted by the State Bar Council in this behalf may pass an order suspending the right of the advocate to practice:
Provided that the order of suspension shall cease to be in force when the advocate concerned pays the amount alongwith a late fee of Rs. 50 and obtains a certificate in this behalf from the State Bar Council.
According to Rule 43, an Advocate who has been convicted of an offence mentioned under Section 24-A of the Advocates Act or has been declared insolvent or has taken full time service or part time service or engages in business or, any avocation inconsistent with his practicing as an Advocate or has incurred any disqualification mentioned in the Advocates Act or the rules made thereunder, shall send a declaration to that effect to the respective State Bar Council in which the Advocate is enrolled, within ninety days from the date of such disqualification. If the Advocate does not file the said declaration or fails to show sufficient cause for not filing such declaration provided therefore, the committee constituted by the State Bar Council under Rule 42 may pass orders suspending the right of the Advocate to practice.
Provided that it shall be open to the committee to condone the delay, on an application being made in this behalf :
Provided further that an Advocate who had after the date of his enrolment and before the coming into force of this Rule, become subject to any of the disqualifications mentioned in this Rule, shall within a period of ninety days of the coming into force of this Rule, send declaration referred to this rule to the respective Bar Council in which the Advocate is enrolled and on failure to do so by such Advocate all the provisions of this Rule would apply.
Rule 44 lays down that an appeal shall lie to the Bar Council of India at the instance of an aggrieved advocate within a period of ninety days from the date of the order passed under Rules 42 and 43.
According to Rule 44-A, there shall be a “Bar Council of India Advocates Welfare Committee” consisting of five members elected from amongst the members of the Council. The term of the members of the Committee shall be co-extensive with their term in the Bar Council of India.
This Rule further provides that every Bar Council shall have an Advocate Welfare Committee known as “Bar Council of India Advocates Welfare Committee for the State.” The Committee shall consist of member Bar Council of India, from the State concerned who shall be the ex-officio Chairman of the Committee, and the two members elected from amongst the members. The Secretary of the State Bar Council concerned will act as ex-officio Secretary of the Committee. The term of the member. Bar Council of India in the Committee, shall be co-extensive with his term in the Bur Council of India. The term of the members elected from the State Bar Council shall be of two years. The rule makes it clear that two members of the committee shall form quorum of any meeting of the committee.
This rule further provides that every State Bar Council is required to open an account in the name of the “Bar Council of India Welfare Committee for the State” in any Nationalised Bank. No amount shall be withdraw from the Bank, unless the cheque is signed by the Chairman and Secretary of the Welfare Committee.
According to this Rule, every State Bar Council shall implemen Welfare Schemes approved by the Bar Council of India through Advocates Welfare Committee so constituted. The State Bar Council may suggest suitable modifications in the welfare schemes and suggest more schemes bu such modifications or such suggested schemes shall have effect only after approval by the Bar Council of India. According to this Rule, the State Bay Council is required to maintain separate account in respect of the Advocat Welfare Fund which shall be audited annually alongwith other accounts of the State Bar Council and send the same alongwith the auditor’s report to the Bar Council of India.
Rule 44-B provides that the Bar Council of India shall utilise the funds received under Rule 41 (2), in accordance with the schemes which may be framed from time to time.
(ii) Duty in imparting training. Rule 45 provides that it is improper for an Advocate to demand or accept fees or any premium from any person as a consideration for imparting training in law under the rules prescribed by a State Bar Council to enable such person to qualify for enrolment under Advocates Act, 1961.
(iii) Duty to render Legal Aid. Rule 46 provides that every Advocate shall. in the practice of the profession of law, bear in mind that any one genuinely in need of a lawyer is entitled to legal assistance even though he cannot pay for it fully or adequately and that within the limits of an Advocate’s economic condition. Free legal assistance to the indigent and oppressed is one of the highest obligation an Advocates owes to the society.
(iv) Restriction on other Employment. Rules 47, 48, 49, 50, 51 and 52 of Bar Council of India Rules prescribe restrictions on other employment of an Advocate. Rule 47 provides that an Advocate shall not personally engage in any business but he may be sleeping partner in a firm doing business provided that, in the opinion of the appropriate State Bar Council the nature of the Business is not inconsistent with the dignity of the profession.
Rule 48 lays down that an Advocate may be Director or Chairman of the Board of Directors of a Company with or without any ordinary sitting fee, provided none of his duties are of an executive character. An Advocate shall not be a Managing Director or a Secretary of any Company.
According to Rule 49, an Advocate shall not be a full-time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practise and shall, on taking up any such employment intimate the fact to the Bar Council on whose roll his name appears and shall thereupon cease to practise as an Advocate so long as he continues in such employment.
Nothing in this Rule shall apply to a law officer of the Central Government or the Government of a State or of a Public Corporation or body constituted by statute who is entitled to be enrolled under the rules of this State Bar Council made under Section 28 (2) (d) read with Section 24 (1) (e) of the Act despite, his being a full time salaried employee.
“Law officer” for the purpose of this Rele, means a person who is so designated by the terms of his employment and who, by the said terms, is required to act and/or plead in Courts on behalf of his employer.
Rule 50 provides that an Advocate who is inherited or succeeded by survivorship, to a family business may continue it, but may not personally participate in the management thereof. He may continue to hold a share with others in any business which has descended to him by survivorship or inheritance or by will, provided he does not personally participate in the management thereof.
Rule 51 lays down that an Advocate may review Parliamentary Bills for a remuneration, edit legal text books at a salary. do “pressvetting” for newspapers, coach pupils for legal examinations, set and examine question- papers, and subject to the rules against advertising any full time employment, engage in broadcasting, journalism, lecturing and teaching subjects, both legal and non-legal.
According to Rule 52, nothing in these Rules shall prevent an Advocate from accepting, after obtaining the consent of the State Bar Council, part time employment provided that in the opinion of the State Bar Council, the nature of employment does not conflict with his professional work and is not inconsistent with the dignity of the profession. This rule shall be subject to the directives, if any, as may be issued by the Bar Council of India from time to time.
To sum up, these above mentioned provisions describe various duties of an Advocate, which he has to discharge during the course of his legal profession. By performing the abovementioned duties, an Advocate will not only maintain the dignity of his profession rather he will put distinguished services for the welfare of the society.