Law of Advocacy
Advocates are the preserver of civilization and the Court is the center of civilization, where Judges observes of the progress of civilization…
PROFESSION OF LAW IS NOT TRADE, IT IS A PUBLIC FUNCTION: Advocacy is a calling to some higher satisfaction than a commercial gain. It requires a higher degree of autonomy that lawyers experience from external controls other than those imposed by self-regulation.
Advocates to be the only recognized class of persons entitled to practice law in India and every advocate whose name is entered in the State roll shall be entitled as of right to practice throughout the territories to which this Advocates Act extends. In Supreme Court only an Advocate-on-Record is entitled to file an appearance or act for a party in the Court, no advocate other than an Advocate-on-Record can appear and plead in any matter unless he is instructed by an Advocate on- Record.
No person having an Advocate-on-Record shall be heard in person except by Special Leave of the Court. The Chief Justice and the Judges may, with the consent of an advocate, designate him as Senior Advocate, if in their opinion, by virtue of his ability, standing at the Bar or special knowledge or experience in law, he deserves such a distinction. A Senior Advocate cannot file Vakalatnama or act in any Court or Tribunal in India. He cannot appear, without an Advocate-on-Record, in the Supreme Court, and without a junior in any other Court or Tribunal in India. He cannot accept any brief or instructions directly from the client, to appear in any Court or Tribunal in India. He cannot accept instructions to draw pleadings or affidavits. He cannot advise on evidence or do any drafting work, though he is entitled to settle any matter in consultation with a junior( ch 2 practice & procedure of Supreme Court)
- The attorney’s first duty is to the courts and the public, not to the client, and wherever the duties to his client conflict with those he owes as an officer of the court in the administration of justice, the former must yield to the latter. Clients are also called “wards” of the court in regard to their relationship with their attorneys.
- Advocacy is the means by which a Barrister or an Advocate puts their client’s case to the Court, and may be both written and oral. It is a specialist skill, the quality and excellence of which distinguishes the Bar from other providers of Legal Services. It is in the interests of the public, the court and the profession that barristers and Advocates present their cases to the highest possible standards
“Advocate” means an advocate entered in any roll( state bar council after completion of LLB and citizen of India completed the age of 21 years with clean morality u/s 24A ) under the provisions of Advocates Act 1961. There shall be two classes of advocates, namely, senior advocates and other advocates. (2) An advocate may, with his consent, be designated as a senior advocate if the Supreme Court or a High Court is of opinion that by virtue of his ability 1 [standing at the Bar or special knowledge or experience in law] he is deserving of such distinction. (3) Senior advocates shall, in the matter of their practice, be subject to such restrictions as the Bar Council of India may, in the interest of the legal profession, prescribe( S 16 OF THE ADVOCATES ACT). State Bar Councils to maintain roll of advocates(S 17).The Attorney-General of India shall have pre-audience over all other advocates(S 23)
Legal Practice in India is governed by the Advocates Act 1961 and Bar Council of India being a creature of the Advocates Act, acts as Statutory regulator responsible for the issuance of Licence, regulation of Practice and disciplinary proceeding against an Advocate amongst others.
Bar Council of India has been empowered under section 49 of the Advocates Act to make rules. In exercise of those powers Bar Council of India made rules which were published in the official gazette on 6 September 1975.
Law Commission of India by its 226 Report recommended certain changes in the present Advocates Act. Supreme Court by Mahipal Singh Rana vs. State of Uttar Prades [AIR 2016 SC 3302] recommended for overhaul of Advocates Act so that public can have some faith restored that bar council or a new regulatory body can do the job of punishing violations of standards of conduct by advocates.
Supreme Court observed in Mahipal Singh Rana vs State Of U.P on 5 July, 2016Corum: Anil R. Dave, Kurian Joseph, Adarsh Kumar Goel as below:-
We may also refer to certain articles on the subject. In “Raising the Bar for the Legal Profession” published in the Hindu newspaper dated 15th September, 2012, Dr. N.R.Madhava Menon wrote:
“……..Being a private monopoly, the profession is organised like a pyramid in which the top 20 per cent command 80 per cent of paying work, the middle 30 per cent managing to survive by catering to the needs of the middle class and government litigation, while the bottom 50 percent barely survive with legal aid cases and cases managed through undesirable and exploitative methods! Given the poor quality of legal education in the majority of the so-called law colleges (over a thousand of them working in small towns and panchayats without infrastructure and competent faculty), what happened with uncontrolled expansion was the overcrowding of ill-equipped lawyers in the bottom 50 per cent of the profession fighting for a piece of the cake. In the process, being too numerous, the middle and the bottom segments got elected to professional bodies which controlled the management of the entire profession. The so-called leaders of the profession who have abundant work, unlimited money, respect and influence did not bother to look into what was happening to the profession and allowed it to go its way — of inefficiency, strikes, boycotts and public ridicule. This is the tragedy of the Indian Bar today which had otherwise a noble tradition of being in the forefront of the freedom struggle and maintaining the rule of law and civil liberties even in difficult times.
In Bar Council of Maharashtra versus M.V. Dabholkar following observations have been made about the vital role of the lawyer in the administration of justice.
Now to the legal issue bearing on canons of professional conduct. The rule of law cannot be built on the ruins of democracy, for where law ends tyranny begins. If such be the keynote thought for the very survival of our Republic, the integral bond between the lawyer and the public is unbreakable. And the vital role of the lawyer depends upon (his probity and professional lifestyle. Be it remembered that the central function of the legal profession is to promote the administration of justice. If the practice of law is thus a public utility of great implications and a monopoly is statutorily granted by the nation, it obligates the lawyer to observe scrupulously those norms which make him worthy of the confidence of the community in him as a vehicle of justice-social justice. The Bar cannot behave with doubtful scruples or strive to thrive on litigation(para 32)
Allahabad High Court in Prayag Das vs Civil Judge, Bulandshahr And Ors. on 14 March, 1973 Equivalent citations: AIR 1974 All 133 observed:-
It is correct that the High Court does not possess the power to take away an Advocate’s right to practice in courts. That power can be exercised only by the Bar Council which may also frame rules under Section 49(ab) of the Advocates Act. But in our opinion, the High Court has the power to regulate the appearance of Advocates in Courts. The right to practice and the right to appear in courts are not synonymous. An Advocate may carry on chamber practice or even practice in court is various other ways, e.g., drafting and filing of pleadings and Vakalatnama for performing those acts. For that purpose, his physical appearance in court may not at all be necessary. For the purpose of regulating his appearance in court the High Court should be the appropriate authority to make rules and on a proper construction of Section 34(1) of the Advocates Act it must be inferred that the High Court has the power to make rules for regulating the appearance of Advocates and proceedings inside the courts.
- The Law Commission has produced The Advocates (Amendment) Bill, 2017, thereby inter alia recommended :
Expanded definition advocate : “advocate” means an advocate entered in any roll under the provisions of this Act and includes an advocate carrying on practice in law with a law firm, by whatever name called, and a foreign lawyer registered under any law in a country outside India and recognised by the Bar Council of India.
Definition of misconduct elaborated :‘misconduct’ includes-an act of an advocate whose conduct is found to be in breach of or non- observance of the standard of professional conduct or etiquette required to be observed by the advocate; or forbidden act; or an unlawful behaviour ;or disgraceful and dishonourable conduct; or neglect; or not working diligently and criminal breach of trust;or any of his conduct incurring disqualification under section 24A
New definition and recognition :‘Law Firm’ means a firm, formed and registered under the Indian Partnership Act, 1932; or under the Limited Liability Partnership Act, 2008; or a private or public limited company incorporated under the Companies Act, 2013 comprising of an advocate or advocates for carrying on practice in law and includes law firms formed and registered under any other law outside India.
Training: The Law Commission has proposed one-year apprenticeship for a new candidate and after enrollment Continuing Legal Education for practicing lawyers, irrespective of the experience.
Ban on Strike and Cease Work :“No association of advocates or any member of the association or any advocate, either individually or collectively, shall, give a call for boycott or abstinence from courts’ work or boycott or abstain from courts’ work or cause obstruction in any form in court’s functioning or in court premises”
Suffering litigants shall be compensated by the lawyer: If any person suffers loss due to the misconduct of the advocate or for his participation in strike or otherwise, then, such person may make a claim for compensation against the advocate in the appropriate forum established under any law for the time being in force.
The non-payment of fees, either in full or part, by a person to his advocate, shall not be a defence available for the advocate against whom such claim for compensation is made.
Doing justice is not the monopoly of the Court, Lawyers or Judges but a sacred privilage that they are called to do so ..
APPEARANCE BY ADVOCATES AND CONTEMPT OF COURT
A lawyer’s duty to the court is a fundamental obligation that defines a lawyer’s role within the adversarial system. A lawyer’s duty to the court relates to his or her status as a professional who serves, not only clients, but also the public interest. Historically, a professional was distinguished from a tradesperson by a public declaration – demonstrated today by the oath taken at admission to the Bar – to serve others and devote their intellect and efforts to the public good.
Harish Uppal vs. Union of India and Another, (2003) 2 SCC 45, examined the question whether lawyers have a right to strike and/or give a call for boycott of Court(s). In paragraph 34 of the decision, the Court made highly illuminating observations in regard to lawyers’ right to appear before the Court and sounded the note of caution for the lawyers. Para 34 of the decision need to be reproduced below:
“34. One last thing which must be mentioned is that the right of appearance in courts is still within the control and jurisdiction of courts. Section 30 of the Advocates Act has not been brought into force and rightly so. Control of conduct in court can only be within the domain of courts. Thus Article 145 of the Constitution of India gives to the Supreme Court and Section 34 of the Advocates Act gives to the High Court power to frame rules including rules regarding condition on which a person (including an advocate) can practice in the Supreme Court and/or in the High Court and courts subordinate thereto. Many courts have framed rules in this behalf. Such a rule would be valid and binding on all. Let the Bar take note that unless self-restraint is exercised, courts may now have to consider framing specific rules debarring advocates, guilty of contempt and/or unprofessional or unbecoming conduct, from appearing before the courts. Such a rule if framed would not have anything to do with the disciplinary jurisdiction of the Bar Councils. It would be concerning the dignity and orderly functioning of the courts. The right of the advocate to practise envelopes a lot of acts to be performed by him in discharge of his professional duties. Apart from appearing in the courts he can be consulted by his clients, he can give his legal opinion whenever sought for, he can draft instruments, pleadings, affidavits or any other documents, he can participate in any conference involving legal discussions, he can work in any office or firm as a legal officer, he can appear for his clients before an arbitrator or arbitrators etc. Such a rule would have nothing to do with all the acts done by an advocate during his practice. He may even file Vakalat on behalf of a client event though his appearance inside the court is not permitted.
Conduct in court is a matter concerning the court and hence the Bar Council cannot claim that what should happen inside the court could also be regulated by them in exercise of their disciplinary powers. The right to practice, no doubt, is genus of which the right to appeal and conduct cases in the court may be a specie. But the right to appear and conduct cases in the court is a matter on which the court must and does have major supervisory and controlling power. Hence courts cannot be and are not divested of control or supervision of conduct in court merely because it may involve the right of an advocate. A rule can stipulate that a person who has committed contempt of court or has behaved unprofessionally and in an unbecoming manner will not have the right to continue to appear and plead and conduct cases in courts. The Bar Councils cannot overrule such a regulation concerning the orderly conduct of court proceedings. On the contrary, it will be their duty to see that such a rule is strictly abided by. Courts of law are structured in such a design as to evoke respect and reverence to the majesty of law and justice. The machinery for dispensation of justice according to law is operated by the court. Proceedings inside the courts are always expected to be held in dignified and orderly manner. The very sight of an advocate, who is guilty of contempt of court or of unbecoming or unprofessional conduct, standing in the court would erode the dignity of the court and even corrode its majesty besides impairing the confidence of the public in the efficacy of the institution of the courts. The power to frame such rules should not be confused with the right to practice law. While the Bar Council can exercise control over the latter, the courts are in control of the former. The distinction is clearly brought out by the difference in language in Section 49 of the Advocates Act on the one hand and Article 145 of the Constitution of India and Section 34(1) of the Advocates Act on the other. Section 49 merely empower the Bar Council to frame rules laying down conditions subject to which an advocate shall have a right to practise i.e. do all the other acts set out above. However, Article 145 of the Constitution of India empowers the Supreme Court to make rules for regulating this practice and procedure of the court including inter alia rules as to persons practicing before this Court. Similarly, Section 34 of the Advocates Act empowers High Courts to frame rules, inter alia to lay down conditions on which an advocate shall be permitted to practice in courts. Article 145 of the Constitution of India and Section 34 of the Advocates Act clearly show that there is no absolute right to an advocate to appear in a court. An advocate appears in a Court to such conditions as are laid down by the Court. It must be remembered that Section 30 has not been brought into force and this also shows that there is no absolute right to appear in a court. Even if Section 30 were to be brought into force control of proceedings in a court will always remain with the court. Thus even then the right to appear in court will be subject to complying with conditions laid down by courts just as practice outside courts would be subject to conditions laid down by the Bar Council of India. There is thus no conflict or clash between other provisions of the Advocates Act on the one hand and Section 34 or Article 145 Constitution of Indian on the other.”[ Supreme Court of India R.K.Anand vs Registrar,Delhi High Court on 29 July, 2009].
Duties Of Lawyers
Lawyers typically do the following:
- Advise and represent clients in courts, before government agencies, and in private legal matters
- Communicate with their clients, colleagues, judges and others involved in the case
- Conduct research and analysis of legal problems
- Interpret laws, rulings, and regulations for individuals and businesses
- Present facts in writing and verbally to their clients or others and argue on behalf of their clients
- Prepare and file legal documents, such as lawsuits, appeals, wills, contracts, and deeds
Lawyers, also called attorneys, act as both advocates and advisors.
As advocates, they represent one of the parties in criminal or civil trials by presenting evidence and arguing in support of their client.
As advisors, lawyers counsel their clients about their legal rights and obligations and suggest courses of action in business and personal matters. All attorneys research the intent of laws and judicial decisions and apply the laws to the specific circumstances that their clients face.
Lawyers may have different titles and different duties, depending on where they work.
While working in a law firm, lawyers, sometimes called associates, perform legal work for individuals or businesses. Some attorneys who work at law firms, such as criminal law attorneys or defense attorneys, represent and defend the accused.
Attorneys also work for federal, state, and local governments. Prosecutors typically work for the government to file a lawsuit, or charge, against an individual or corporation accused of violating the law. Some may also work as public defense attorneys and represent individuals who could not afford to hire their own private attorney.
Others may work as government counsels for administrative bodies of government and executive or legislative branches. They write and interpret laws and regulations and set up procedures to enforce them. Government counsels also write legal reviews on agencies’ decisions. They argue civil and criminal cases on behalf of the government.
Corporate counsels, also called in-house counsels, are lawyers who work for corporations. They advise a corporation’s executives about legal issues related to the corporation’s business activities. These issues may involve patents, government regulations, contracts with other companies, property interests, taxes, or collective-bargaining agreements with unions.
Legal aid lawyers work for private, nonprofit organizations that work to help disadvantaged people. They generally handle civil cases, such as those about leases, job discrimination, and wage disputes, rather than criminal cases.
In addition to working in different industries, lawyers often specialize in a particular area. The following are just some examples of the different types of lawyers that specialize in specific legal areas:
Environmental lawyers deal with issues and regulations that are related to the environment. They may represent advocacy groups, waste disposal companies, and government agencies to make sure they comply with the relevant laws.
Tax lawyers handle a variety of tax-related issues for individuals and corporations. Tax lawyers may help clients navigate complex tax regulations, so that they pay the appropriate tax on items such as income, profits, or property. For example, they may advise a corporation on how much tax it needs to pay from profits made in different states to comply with the Internal Revenue Service (IRS) rules.
Intellectual property lawyers deal with the laws related to inventions, patents, trademarks, and creative works, such as music, books, and movies. An intellectual property lawyer may advise a client about whether it is okay to use published material in the client’s forthcoming book.
Family lawyers handle a variety of legal issues that pertain to the family. They may advise clients regarding divorce, child custody, and adoption proceedings.
Securities lawyers work on legal issues arising from the buying and selling of stocks, ensuring that all disclosure requirements are met. They may advise corporations that are interested in listing in the stock exchange through an initial public offering (IPO) or in buying shares in another corporation.
Litigation lawyers handle all lawsuits and disputes between parties. These could be disputes over contracts, personal injuries, or real estate and property. Litigation lawyers may specialize in a certain area, such as personal injury law, or maybe a general lawyer for all types of disputes and lawsuits.
Some attorneys become teachers in law schools.
ROLE OF A LAWYER AS OBSERVED
Supreme Court of India in O.P.Sharma & Ors vs High Court Of Punjab & Haryana on 9 May, 2011(extract)
The role and status of lawyers at the beginning of Sovereign and Democratic India is accounted as extremely vital in deciding that the Nation’s administration was to be governed by the Rule of Law. They were considered intellectuals amongst the elites of the country and social activists amongst the downtrodden. These include the names of galaxy of lawyers like Mahatma Gandhi, Motilal Nehru, Jawaharlal Nehru, Bhulabhai Desai, C. Rajagopalachari, Dr. Rajendra Prasad and Dr. B.R. Ambedkar, to name a few. The role of lawyers in the framing of the Constitution needs no special mention. In a profession with such a vivid history it is regretful, to say the least, to witness instances of the nature of the present kind. Lawyers are the officers of the Court in the administration of justice.
13) Section I of Chapter-II, Part VI titled “Standards of Professional Conduct and Etiquette” of the Bar Council of India Rules specifies the duties of an advocate towards the Court which reads as under:
“Section I – Duty to the Court
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 authorities.
2. An advocate shall maintain towards the courts a respectful attitude, bearing in mind that the dignity of the judicial office is essential for the survival of a free community.
3. An advocate shall not influence the decision of a court by any illegal or improper means. Private communications with a judge relating to a pending case are forbidden.
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 advocates 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 mere mouth-piece of the client, and shall exercise his own judgment in the use of restrained language in correspondence, avoiding scurrilous attacks in pleadings, and using intemperate language during arguments in court.
5. An advocate shall appear in court at all times only in the prescribed dress, and his appearance shall always be presentable.
6. An advocate shall not enter appearance, act, plead or practice in any way before a court, Tribunal or Authority 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.
For the purposes of this rule, Court shall mean a Court, Bench or Tribunal in which above mentioned relation of the Advocate is a Judge, Member or the Presiding Officer.
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.
8. An advocate shall not appear in or before any court or tribunal or any other authority for or against an organisation or an institution, society or corporation, if he is a member of the Executive Committee of such organisation 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 organisation or institution, society or corporation.
Provided that this rule shall not apply to such a member appearing as “amicus curiae” or without a fee on behalf of a Bar Council, Incorporated Law Society or a Bar Association.
9. An Advocate should not act or plead in any matter in which he is himself peculiarly interested.
Illustration I. He should 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 Director.
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.”
Advocacy touches and asserts the primary value of freedom of expression. It is a practical manifestation of the principle of freedom of speech. Freedom of expression in arguments encourages the development of judicial dignity, forensic skills of advocacy and enables protection of fraternity, equality and justice. It plays its part in helping to secure the protection or other fundamental human rights, freedom of expression, therefore, is one of the basic conditions for the progress of advocacy and for the development of every man including legal fraternity practicing the profession of law. Freedom of expression, therefore, is vital to the maintenance of free society. It is essential to the rule of law and liberty of the citizens. The advocate or the party appearing in person, therefore, is given liberty of expression. But they equally owe countervailing duty to maintain dignity, decorum and order in the court proceedings or judicial processes. Any adverse opinion about the judiciary should only be expressed in a detached manner and respectful language. The liberty of free expression is not to be confounded or confused with licence to make unfounded allegations against any institution, much less the judiciary [vide D.C. Saxena vs. The Hon’ble Chief Justice of India, (1996) 5 SCC 216].
A lawyer cannot be a mere mouthpiece of his client and cannot associate himself with his client in maligning the reputation of judicial officer merely because his client failed to secure the desired order from the said officer. A deliberate attempt to scandalize the Court which would shake the confidence of the litigating public in the system and would cause a very serious damage to the name of the judiciary. [vide M.Y. Shareef & Anr. Vs. Hon’ble Judges of Nagpur High Court & Ors., (1955) 1 SCR 757 In Lalit Mohan Das vs. Advocate General, Orissa & Another, AIR 1957 SC 250, this Court observed as under:
“A member of the Bar undoubtedly owes a duty to his client and must place before the Court all that can fairly and reasonably be submitted on behalf of his client. He may even submit that a particular order is not correct and may ask for a review of that order. At the same time, a member of the Bar is an officer of the Court and owes a duty to the Court in which he is appearing. He must uphold the dignity and decorum of the Court and must not do anything to bring the Court itself into disrepute. The appellant before us grossly overstepped the limits of propriety when he made imputations of partiality and unfairness against the Munsif in open Court. In suggesting that the Munsif followed no principle in his orders, the appellant was adding insult to injury, because the Munsif had merely upheld an order of his predecessor on the preliminary point of jurisdiction and Court fees, which order had been upheld by the High Court in revision. Scandalizing the Court in such manner is really polluting the very fount of justice; such conduct as the appellant indulged in was not a matter between an individual member of the Bar and a member of the judicial service; if brought into disrepute the whole administration of justice.”
Advocates Role and Ethical Standards:
An advocate’s duty is as important as that of a Judge. Advocates have a large responsibility towards society. A client’s relationship with his/her advocate is underlined by utmost trust. An advocate is expected to act with the utmost sincerity and respect. In all professional functions, an advocate should be diligent and his conduct should also be diligent and should conform to the requirements of the law by which an advocate plays a vital role in the preservation of society and the justice system. An advocate is under an obligation to uphold the rule of law and ensure that the public justice system is enabled to function at its full potential. Any violation of the principles of professional ethics by an advocate is unfortunate and unacceptable. Ignoring even a minor violation/misconduct militates against the fundamental foundation of the public justice system. An advocate should be dignified in his dealings to the Court, to his fellow lawyers and to the litigants. He should have integrity in abundance and should never do anything that erodes his credibility. An advocate has a duty to enlighten and encourage the juniors in the profession. An ideal advocate should believe that the legal profession has an element of service also and associates with legal service activities. Most importantly, he should faithfully abide by the standards of professional conduct and etiquette prescribed by the Bar Council of India in Chapter II, Part VI of the Bar Council of India Rules.
As a rule, an Advocate being a member of the legal profession has a social duty to show the people a beacon of light by his conduct and actions rather than being adamant on an unwarranted and uncalled for the issue.[Supreme Court of India O.P.Sharma & Ors vs High Court Of Punjab & Haryana, para 30, 31]
THREE KEY DUTIES OF A LAWYER WHICH IS ESSENTIAL FOR TRUE ADVOCACY :
(A) to use tactics that are legal, honest and respectful to courts and tribunals;
- A lawyer cannot knowingly offer or rely on false evidence or misstate evidence.
- Not to knowingly mislead the court on evidentiary issues, a lawyer cannot misstate the law. Lawyers are under a positive duty to make full disclosure of all the binding authorities relevant to a case.
(B) to act with integrity and professionalism while maintaining his or her overarching responsibility to ensure civil conduct;
- Lawyers are officers of the court and as such, must act with integrity and professionalism while maintaining their overarching responsibility to ensure civil conduct. (1) avoiding sharp practice; (2) having respect for the court(A lawyer should not abuse the court process. A lawyer should not unreasonably raise or defend an action for which there is no legal justification, similarly, a lawyer should not waste time on irrelevancies, even if prompted to do so by the client and should not make frivolous and vexatious objections. In addition, requests for adjournments should not be taken lightly and (3) maintaining civility in dealing with others. A lawyer’s duty to be civil to opposing counsel, includes the following conduct: a) the duty not to engage in acrimonious exchanges with opposing counsel or otherwise engage in undignified or discourteous conduct; b) the duty to be honest and truthful with opposing counsel; and c) to be accommodating and flexible regarding scheduling and routine matters. A lawyer also has a duty to maintain an honest relationship with opposing counsel.
(C) to educate clients about the court processes in the interest of promoting the public’s confidence in the administration of justice. Below is a discussion of these three duties.
These rules have been placed thereunder. Some of the basic and crucial duties are summed up below:-
RULES ON AN ADVOCATE’S DUTY TOWARDS THE CLIENT-Chapter II, Part VI of the BCI RulesU/S 49(1) (c) of the Advocates Act, 1961
• Bound to accept briefs.
• Not appear in matters where he himself is a witness.
• Full disclosure to the client.
• Uphold the interest of the client.
• Not suppress material or evidence.
• Not disclose the communications between the client and himself.
• An advocate should not be a party to stir up or instigate litigation.
• An advocate should not act on the instructions of any person other than his client or the client’s authorized agent.
• Not charge depending on the success of matters.
• Not bid, purchase or transfer property arising from legal proceeding.
• Not adjust fees against personal liability.
• An advocate should not misuse or takes advantage of the confidence reposed in him by his client.
• Keep proper accounts.
• Adjust fees after termination of proceedings.
• Not appear for opposite parties.
The Bar is independent of the State and all its influences. It is an institutional safeguard lying between the ordinary citizen and the power of the government. The right to counsel, which as mentioned, is inter-related with the law of privilege, depends for its efficacy on independence.
In the United States, the duty to the client is generally seen as the lawyer’s primary duty, while in Britain the duty to the court is preeminent. In our Indian system, the two duties are given equal prominence. We follow the Buddhist Middle Path.
What Judges Can Expect from a Counsel
- Judges are entitled to expect that counsel will treat the court with heartfelt manner, fairness and courtesy.
- Judges are entitled to expect that a counsel is by training and experience competent to handle the matter before the court.
- Notwithstanding that the parties are engaged in an adversarial process, judges are entitled to expect that counsel will assist the court in doing justice to the case. Judges are entitled to expect counsel to assist in maintaining the dignity and decorum of the courtroom and their profession and avoid disorder and disruption. Judges are entitled to expect counsel to be punctual, appropriately attired and adequately prepared in all matters before the courts.
- Judges may expect counsel to properly instruct their clients as to behaviour in the courtroom, and any court-related proceedings. Counsel are expected to take what steps are necessary to dissuade clients and witnesses from causing disorder or disruption in the courtroom.
- Judges are entitled to expect that counsel, in their public statements, will not engage in personal attacks on the judiciary or unfairly criticize judicial decisions.
- A lawyer, well equipped in the art of advocacy, would, by intuition as also from experience, realise that there is no purpose served in intimidating a judicial officer. But, often righteous indignation and flaring up of tempers, at the heat of a moment; results in such rich experience, being shrouded by emotions. That is human nature, but a judicial officer entrusted with the process of adjudication cannot afford to succumb to such coarse, baser instincts. A judicial officer should always realise that a lawyer’s indiscretion should not influence the adjudication process, thus resulting in the litigant’s claim being negatived; by reason of such bias alone. [ KERALA HIGH COURT in VINOD KUMAR Vs. A. SASI [(2014) 4 KHC 631]
The Lawyer as Witness
The lawyer who appears as an advocate should not submit the lawyer’s own affidavit to or testify before a tribunal save as permitted by local rule or practice, or as to purely formal or uncontroverted matters. This also applies to the lawyer’s partners and associates; generally speaking, they should not testify in such proceedings except as to merely formal matters. The lawyer should not express personal opinions or beliefs, or assert as fact anything that is properly subject to legal proof, cross-examination or challenge. The lawyer must not in effect become an unsworn witness or put the lawyer’s own credibility in issue. The lawyer who is a necessary witness should testify and entrust the conduct of the case to someone else. Similarly, the lawyer who was a witness in the proceedings should not appear as an advocate in any appeal from the decision in those proceedings. There are no restrictions upon the advocate’s right to cross-examine another lawyer, and the lawyer who does appear as a witness should not expect to receive special treatment by reason of professional status.
Supreme Court Rules on Advocates
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