Theme: Labour & Employment

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.^{(( Rule 11, Chapter II, Part VI, Bar Council of India Rules, 1975))} 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.^{(( A.S. Mohammed Rafi v. State of Tamil Nadu, Criminal Appeal No. 2310 of 2010))} 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.^{(( Rule 12, Chapter II, Part VI, Bar Council of India Rules, 1975))}
• Not accept or appear in a case for which the advocate might appear as a witness.^{(( Rule 13, Chapter II, Part VI, Bar Council of India Rules, 1975))}

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.^{(( Rule 14, Chapter II, Part VI, Bar Council of India Rules, 1975))}
• 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.^{(( Rule 15, Chapter II, Part VI, Bar Council of India Rules, 1975))}
• 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.^{(( Rule 16, Chapter II, Part VI, Bar Council of India Rules, 1975))}
• Only work as per the instruction of the client or the client’s agent.^{(( Rule 19, Chapter II, Part VI, Bar Council of India Rules, 1975))}
• 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.^{(( Rule 33, Chapter II, Part VI, Bar Council of India Rules, 1975))}

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.^{(( Rule 20, Chapter II, Part VI, Bar Council of India Rules, 1975))}
• Do not abuse or take advantage of the trust of the client.^{(( Rule 24, Chapter II, Part VI, Bar Council of India Rules, 1975))}
• Keep accounts of the money entrusted to them by the client.^{(( Rule 25, Chapter II, Part VI, Bar Council of India Rules, 1975))}
• Do not accept a fee less than a fee which can be taxed, if the client is able to pay it.^{(( Rule 38, Chapter II, Part VI, Bar Council of India Rules, 1975))}

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.^{(( Section 35, Advocates Act, 1961))} 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.^{(( Noratanmal Chouraria v. MR Murali & Another, Civil Appeal 5476 of 1999))} 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.^{(( Hikmat Ali Khan v. Ishwar Prasad Arya, 1997 (3) SC 131))}

Forum to Complain

The State Bar Council is the appropriate forum to lodge a complaint against an advocate.^{(( Section 35(1), Advocates Act, 1961))} 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.^{(( Section 35(1);Section 35 (1A), Advocates Act, 1961))}

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.^{(( Section 36(2), Advocates Act, 1961))}

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.^{(( Section 36B (1), Advocates Act, 1961))} 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.^{(( Section 37(1), Advocates Act, 1961))} 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.^{(( Section 38, Advocates Act, 1961))}

 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. ^{(( Rule 1, Chapter 1, Part VII, Bar Council of India Rules, 1975))}

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:

1. Reprimand the advocate;
2. Suspend the advocate for the time being;
3. Remove the advocate’s name from the State roll;
4. Dismiss the complaint.^{(( Section 35, Advocates Act, 1961))}