An Advocate is a person who argues for the cause of another person in front of any other judicial authority. This could be a civil matter such as a contractual dispute between two individuals, or a criminal matter where the State punishes those who commit crimes with imprisonment etc. The majority of India’s legal professionals represent clients in courts and other judicial bodies.
Qualifications needed to be an advocate
An advocate is simply someone who is enrolled in any roll under the Advocates Act.
A roll is a list prepared and maintained by the State Bar Councils, which contains the names of all advocates registered under the specific Council. The respective State Bar Councils have the duty to prepare and maintain rolls, and admit advocates to be listed on the roll. To qualify, the person applying to be an advocate should:
- Be a citizen of India. However, foreign nationals can also be advocates if they come from countries where Indian citizens can practice law.
- Be at least 21 years of age.
Degree in Law
The person applying should have a degree in Law:
- Before 12th March 1967, from any University in India (Includes Pre-Independent India before 15th August 1947).
- After 12th March 1967, from any University in India recognized by the Bar Council of India, after undergoing a three-year course in law.
- After undergoing a course of study in law (at least two academic years) from the academic year 1967-68 or any earlier academic year from any University in India recognised by the Bar Council of India.
- From any University outside India whose degree is recognized by the Bar Council of India.
- As a Barrister who has been a member of the Bar before 31st December, 1976.
- After passing the examinations specified by the High Courts of Bombay or Calcutta for enrolling as an Advocate in that High Court.
- Any other foreign qualification recognized by the Bar Council of India. See here for the list of recognized foreign universities.
For the purpose of enrolment, the applicant has to pay the required stamp duty to the State Bar Council. The applicant also has to pay an enrolment fee of Rs. 150 to the Bar Council of India, and Rs. 600 to the respective State Bar Council.
Moreover, persons wanting to enrol as advocates may also need to fulfil any other conditions put forward by their respective State Bar Councils. For example, the Bar Council of Delhi requires advocates to make a declaration that they are not engaged in any other trade, business, or profession. In case they are involved in something, they have to disclose the full information about it at the time of enrollment.
An Advocate has to maintain certain standards of professional conduct and etiquette in Courts.
Duties in Court
Some of the duties an advocate has in Court include:
- Behaving in a dignified manner before the Court. Further, whenever there is a proper reason for a serious complaint against a judicial officer, the advocate has a right and duty to submit their grievance to proper authorities. For instance, grievances relating to Advocates, the Bar Council of India, Bar Councils of States, and Notary/Government Counsels need to be sent to the Department of Legal Affairs.
- Showing respect towards the Court.
- Not communicating in private to a judge about any case pending before the judge or any other judge. Advocates should not try to influence the Court’s decision about a matter using any illegal or improper means.
- Appearing in a presentable manner in Court. While in Court, an advocate has to wear appropriate clothing that has been specified to be worn in Court.
- Not appearing/arguing before a judge, if the judge is related to the advocate as:
- First cousin
- Not wearing the advocate’s gown/band in public places other than Courts. Advocates can wear this in public only for ceremonial occasions, and at such places prescribed by the Bar Council of India or the Court.
- Not standing as surety for a client.
Duties while taking on new cases
Some of the duties an advocate has include:
- Not appearing for or against any establishment if the advocate is a member of the Executive Committee which manages the general affairs of that establishment. For example, if an advocate is the Director of a company, they cannot appear for that company in a dispute.
- Not taking up a case in a matter where the advocate has any financial interest.
Duties to other lawyers or other clients
An advocate has a duty to the opposing lawyer and clients. An advocate should not directly negotiate with the opposite party, except through the advocate who is representing the opposite party. Further, advocates should try their best to carry out the legitimate promises made to the opposite party such as appearing on the Court date, drafting petitions on time etc.
Some of the other duties include:
- Not behaving in an illegal or improper manner towards the opposing lawyers and parties. Advocates have to also restrict their clients from doing the same.
- Preventing a client from resorting to unfair practices. Advocates should not allow their client to do anything in relation to the Court or opposing party which the advocates themselves should not do. An advocate has to refuse to represent a client who persists in improper conduct. Advocates have to be dignified in use of their language in correspondence and during arguments in Court. They should not use any improper language during arguments in the Court.
- When an advocate has accepted the case of a client, another advocate should not appear for the same party. However, the latter can take consent from the former for appearing. If such consent is not obtained, the advocate will have to ask the Court before being allowed to appear for the client.
There are many duties that an advocate has to fulfil towards clients. Some of them include:
Accepting and withdrawing from cases
An advocate should:
- Accept any case, unless exceptional circumstances exist. The Supreme Court has said that a lawyer cannot refuse a brief if a client is willing to pay his fee, and the lawyer is not otherwise engaged. The advocate’s fee will be based on their professional standing and the nature of the case.
- Not withdraw from a case after accepting it. However, the advocate can withdraw if there is sufficient cause, after giving a reasonable and sufficient notice to the client. If the lawyer withdraws from a case, they have to refund any fee that has not been earned.
- Not accept or appear in a case for which the advocate might appear as a witness.
Loyalty to the client
An advocate must:
- Make full and frank disclosure to the client about the advocate’s connection towards the other parties and any other interest in the case.
- Uphold the interests of the client by all fair and honorable means. Advocates should be loyal to this principle and should not let their personal beliefs about a client’s guilt stop them from accepting a case. Regardless of their personal opinion on the guilt of a client, advocates should defend the client.
- Not work for the conviction of an innocent person. For instance, advocates should not suppress material that could establish the innocence of a person in a criminal case.
- Only work as per the instruction of the client or the client’s agent.
- Not act, appear or argue for the opposite party if the advocate has advised, acted, appeared or pleaded for a client at any stage of a lawsuit.
Upholding interests of the client
Advocates have to make sure that they:
- Do not specify a fee that is dependent on the result of the case. An advocate should not agree to share the benefits that a client will get from a case.
- Do not abuse or take advantage of the trust of the client.
- Keep accounts of the money entrusted to them by the client.
- Do not accept a fee less than a fee which can be taxed, if the client is able to pay it.
Failure to obey any of these duties may qualify for ‘Professional Misconduct’ by the Advocate, and a client can lodge a complaint against the advocate in the appropriate forum.
Complaints against an advocate can be with regard to professional or other misconduct by the advocate. Actions that qualify as ‘misconduct’ cannot be defined with an exhaustive list. What should be kept in mind is the nobility of the job of an advocate, and the high standard that is expected of advocates by society. Instances that are not explicitly mentioned in the law have led to disciplinary actions in the past, such as when an advocate tried to assault a client with a knife.
Forum to Complain
The State Bar Council is the appropriate forum to lodge a complaint against an advocate. Upon receiving a complaint, or on its own motion, the State Bar Council can refer a case of misconduct to one of its Disciplinary Committees.
Further, the disciplinary committee of the Bar Council of India also has the power to withdraw any pending proceeding from the State Bar Council and attend to the matter.
If a case has been pending before the State Bar Council for more than a year since the receipt of complaint, the case shall be transferred to the Bar Council of India. If a person is not satisfied with the decision of the State Bar Council, they have the right to appeal to the Bar Council of India within 60 days of the communication of the decision. If the person is still aggrieved by the decision of the Bar Council of India, they can approach the Supreme Court within 60 days of the communication of the decision.
Procedure to complain
State Bar Councils accept complaints against an advocate in the form of a petition, duly signed and verified. If you want to find the format, you can approach your State Bar Council which will have a prescribed standard format of complaint, along with the fees. Additionally, formats used can include languages such as English, Hindi or the language of the respective State.
After a person submits the complaint, the Disciplinary Committee of the State Bar Council will inquire into the matter.
Punishing an Advocate
When a complaint has been made against an advocate, the Disciplinary Committee of the State Bar Council will give an opportunity for the advocate to defend themself. Further, the Advocate General of the State will also be present during the inquiry. After the inquiry, the Committee will either:
- Reprimand the advocate;
- Suspend the advocate for the time being;
- Remove the advocate’s name from the State roll;
- Dismiss the complaint.