Theme: Professional Ethics

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^{(( Section 24(1), Advocates Act, 1961))}

An advocate is simply  someone who is enrolled in any roll under the Advocates Act.^{(( Section 2(1)(a), Advocates Act, 1961))}

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.^{(( Section 6(1)(a); 6(1)(b), Advocates Act, 1961))} 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.^{(( Section 24(1)(a), Advocates Act, 1961))}
• Be at least 21 years of age.^{(( Section 24(1)(b), Advocates Act, 1961))}

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).^{(( Section 24(1)(c)(i); Section 24(c)(ii), Advocates Act, 1961))}
• After 12th March 1967, from any University in India recognized by the Bar Council of India, after undergoing a three-year course in law.^{(( Section 24(1)(c)(iii), Advocates Act, 1961))}
• 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.^{(( Section 24(1)(c)(iiia), Advocates Act, 1961))}
• From any University outside India whose degree is recognized by the Bar Council of India.^{(( Section 24(1)(c)(iv), Advocates Act, 1961))}
• As a Barrister who has been a member of the Bar before 31st December, 1976.^{(( Section 24(1)(c)(iv), Advocates Act, 1961))}
• After passing the examinations specified by the High Courts of Bombay or Calcutta for enrolling as an Advocate in that High Court.^{(( Section 24(1)(c)(iv), Advocates Act, 1961))}
• Any other foreign qualification recognized by the Bar Council of India.^{(( Section 24(1)(c)(iv), Advocates Act, 1961))} See here for the list of recognized foreign universities.

Other conditions

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.^{(( Section 24(1)(f), Advocates Act, 1961; Rule 15(1), Part IX, Bar Council of India Rules, 1975))}

Moreover, persons wanting to enrol as advocates may also need to fulfil any other conditions put forward by their respective State Bar Councils.^{(( Section 24(1(e), Advocates Act, 1961))} 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.^{(( Rule 104, The Rules of the Bar Council of Delhi, 1963))}

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.^{(( Rule 1, Chapter II, Part VI, Bar Council of India Rules, 1975))} 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.^{(( Guidelines of Grievances Received in the Department of Justice, https://doj.gov.in/sites/default/files/GUIDELINES.pdf))}
• Showing respect towards the Court.^{(( Rule 2, Chapter II, Part VI, Bar Council of India Rules, 1975))}
• 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.^{(( Rule 3, Chapter II, Part VI, Bar Council of India Rules, 1975))}
• 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.^{(( Rule 5, Chapter II, Part VI, Bar Council of India Rules, 1975))}
• Not appearing/arguing before a judge, if the judge is related to the advocate^{(( Rule 6, Chapter II, Part VI, Bar Council of India Rules, 1975))} as:
  • Father/mother
  • Grandfather
  • Son/daughter
  • Grandson
  • Uncle/aunt
  • Brother/sister
  • Nephew/niece
  • First cousin
  • Husband/wife
  • Father-in-law/mother-in-law
  • Son-in-law/daughter-in-law
  • Brother-in-law/sister-in-law
• 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.¹
• Not standing as surety for a client.^{(( Rule 10, Chapter II, Part VI, Bar Council of India Rules, 1975))}

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.^{(( Rule 8, Chapter II, Part VI, Bar Council of India Rules, 1975))} 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.^{(( Rule 9, Chapter II, Part VI, Bar Council of India Rules, 1975))}

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.^{(( Rule 34, Chapter II, Part VI, Bar Council of India Rules, 1975))} Further, advocates should try their best to carry out the legitimate promises made to the opposite party^{(( Rule 35, Chapter II, Part VI, Bar Council of India Rules, 1975))} 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.^{(( Rule 4, Chapter II, Part VI, Bar Council of India Rules, 1975))}
• 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.^{(( Rule 4, Chapter II, Part VI, Bar Council of India Rules, 1975))}
• 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.^{(( Rule 39, Chapter II, Part VI, Bar Council of India Rules, 1975))}

1. Rule 7, Chapter II, Part VI, Bar Council of India Rules, 1975 [↩]

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))}