UNIT-II

Professional Ethics

B.L Vidya
Panchami College of Law
Unit-II Panchami College of Law B.L Vidya

UNIT - II

Q.1. What are the duties of an Advocate towards?

a) Duty to the Court:

In the exercise of the rule-making power under Section 49(1)(c) of the Advocates Act, 1961,
the Bar Council of India has made several rules so as to prescribe the standards of
professional conduct and etiquette to be observed by the advocates. Chapter Il of Part VI of.
the Rules framed by the Bar Council of India deals with the standards of professional conduct
and etiquette. It contains several Rules which lay down the standards of professional conduct
and etiquette. These Rules specify the duties of an advocate to the Court, client, opponent,
and colleagues, etc. However, from the Preamble, it becomes clear that these rules contain
canons of conduct and etiquette adopted as general guides, and the specific mention thereof
should not be construed as a denial of the existence of other equally imperative, though not
specifically mentioned.

The Rules mentioned in Chapter II of Part VI of the Rules of the Bar / Council of India may be
discussed as follows:

1. Duty to the Court

The Bar Council of India has made certain rules so as to prescribe the duties of an advocate
to the Court. Such duties may be explained as follows:

1. During the presentation of the case and- while acting otherwise before the Court an
advocate is required to conduct himself with dignity and self-respect. An advocate shall not
be servile and in case of proper ground for serious complaint against a judicial officer, it is
his right and duty to submit his grievance to the proper authorities. The rule empowers the
advocate to make a complaint against a judicial officer, but it should be submitted to the
proper authorities.

2. An advocate is required to 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.
This rule makes it clear that lowering the dignity of the judicial office will be a danger to the
survival of a free community.

3. The rule has made it clear that no advocate shall influence the decision of the Court by any
illegal or improper means. It prohibits private communication with a judge relating to a
pending case. Consequently, if an advocate attempt to influence the decision of a court by
any illegal or improper means it will amount to professional misconduct.

4. The rule requires the advocate to use his best effort to restrain and prevent his client from
resorting to sharp or unfair practice or from doing anything in relation to the Court, opposing
counsel, or parties that the Advocate himself ought not to do. It also requires the

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advocate refusing to represent the client who persists in such improper conduct. The rule
makes it clear that the advocate shall not consider himself mere 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 intemperate language during arguments
in the 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 an appearance, act, plead or practice in any way before a Court,
Tribunal or authority mentioned in section 30 of the Advocates Act, if the sole or any member
thereof is related I to the advocate as the 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 this
purpose of this rule, Court shall mean a Court, Bench, or Tribunal in which the
abovementioned relation of the advocate is a judge, Member, or the Presiding Officer.

The provisions of Section 30 of the Advocates Act are as follows—

Subject to the provisions of the Advocates Act every advocate whose name is entered in the
State roll shall be entitled as of right to practice throughout the territories to which this Act
extends—

1. in all courts including the Supreme Court.

2. before any tribunal or person legally authorized to take evidence; and
3. before any other authority or person before whom such advocate is by or under
any law for the time being in force entitled to practice.

7. The rule requires the advocate not to wear bands or gowns in public places other than in
Court except on such ceremonial occasions and at such places as the Bar Council of India or
the Court may prescribe.

8. The rule provides that 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 a 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 A body of a person which, for the time being, is vested with the general
management of the affairs of the organization or institution or society or corporation.
However, it has been made clear 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 shall not act or plead in any matter in which he is himself pecuniarily
interested. For example, an advocate should not act in a bankruptcy petition when he himself

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is also a creditor of the bankrupt and he should not accept a brief from a company of which
he is a director.

Rules 1 and 2 (stated above) make it clear that an advocate should present the case of his
client before the Court fearlessly. He shall not be servile and in case there is a proper ground
for complaint against a judicial officer, it is not only his right but duty to submit his grievance
to the proper authorities. However, the rule has also made it clear that he must be respectful
to the Court. He must maintain the dignity of the legal profession ‘as well as the dignity of the
Court. He is an officer of the Court and required to uphold the dignity and decorum of the
Court and not to do anything to bring the Court itself to disrepute.

Rules 3 and 4 (stated above) are also of much importance in the fair administration of justice.
These rules require an advocate not to influence the decision of a Court by any illegal or
improper means and 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 while the advocate himself ought not to do. These rules prohibit private
communication with the judge relating to a pending case. An attempt to influence" the
decision of a Court by improper or illegal means and private communication. with the Judge
relating to a case are taken not only professional misconduct but also contempt of Court.
Thus, if an advocate stoops to bribe a Judge to get an order in favor of his client or suggests
his client to bribe the official to obtain a favorable order will amount to professional
misconduct.

An advocate is an officer of the Court and the Court acts on the statements of the advocate. It
is the duty of the advocate to assist the Court in the due administration of justice.
Consequently, an advocate is required to be absolutely fair to the Court. He should make
accurate statements of facts and should not twist the facts. He should not misguide the Court
by suppressing the relevant facts. If an advocate suppresses the fact that earlier an identical
petition has been dismissed by another Bench of the High Court, it will amount to
professional misconduct. It is the duty of the advocate to assist the Court in the
administration of justice and not to cite knowingly and overruled decision or a repealed
statute.

Learned C.L. Anande has observed that the advocate owes respect and courtesy to the Court
for the reasons stated below: —

(a) An advocate is like the Judge, himself, an officer of the Court, and an integral part of the
judicial machine. The legal profession consists of the Bar as well as the Bench and both have
common aims and ideals.

(b) ln theory it is the King or Sovereign who presides in the Court of justice and the Judge is
merely the mouthpiece and representative of the Sovereign. Respect shown to the Court is,
therefore, respect “shown to the Sovereign whose representative the judge is

(c) Not only litigants and witnesses but the public will get their inspirations in time respect
from the example of advocates. It is necessary for the administration of justice that judges
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should have the esteem of the people. If judges are not respected it tends to impair public
confidence in the administrations of justice.

(d) It is good manners and advocates before anything else are "gentlemen of the Bar."

(e) Even from a purely practical standpoint, there is nothing to beg gained but there is much
to lose by antagonizing the Court. Conflict with the judge renders the trial disagreeable to all
and has generally an injurious effect upon the interests of the client.

(f) The usual practice in modern times in to appoint judges from among the members of the
Bar and even where this rule is not strictly observed the Bench is fairly representative of the
Bar.

(g) It is necessary for dignified and honorable administration of justice that the Court should
be regarded with respect by the suitors and people.

In his third Resolution Hoffman has stated—

"To all Judges, when in Court, l will ever be respectful; they are the law’s viceregents; and
whatever may be their character and department, the individual should be lost in the
majority of the office." Resolution Forty-one of Hoffman is also notable. In this Resolution, he
has stated—.

"In reading to the Court or to the jury, authorities, records, documents, or other papers, I
shall always consider myself as executing a trust and as such, bound to execute it faithfully
and honorably. I am resolved, therefore, carefully to abstain from all false or deceptions
readings and from all uncandid omissions of any qualification of the doctrines maintained
by me, which may be contained in the text or in the notes; and I shall ever hold that the
obligation extends not only to words, syllables, and letters but also to the modus legendi. All
intentional false emphasis and even into notions to mislead, are petty impositions on the
confidence reposed and whilst avoided by self, shall ever be regarded by me in others as
feeble devices of an impoverished mind or as pregnant evidence of a disregard truth while
justly subjects them to be watched in more important matters."

In the case of D.C. Saxena, the Supreme Court has made it clear that the counsel or party
appearing before the Court should not indulge in writing in pleadings, the scurrilous
allegations, or scandalization against the judge or Court. He should maintain the dignity and
decorum of the Court. If the reputation or dignity of the judge who decides the case are
allowed to be prescribed in the pleadings the respect for the Court would quickly disappear
and independence of the judiciary would be a thing of the past.

In U.P. Sales Tax Service Association v. Taxation Bar Association, the Supreme Court has
made it clear that if an advocate attends the Court with firearms, his conduct will not be
consistent with the dignity of the legal profession and it should be deprecated. In this case,
an advocate, instead of arming himself with an armory of precedents, was armed with a
licensed revolver and was attending the Courts with the licensed firearm. He pretended to
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provide himself with the revolver to shoot in self-defense. The Court observed 'it is
regrettable that advocates attend Court with firearms, it is not befitting to the dignity of the
legal profession and is a distressing feature."

2. Duty to the client

Rules 11 to 33 deal with the duties of an advocate to his client. These rules may be explained
as follows

(1) Rule 11 provides that an advocate is bound to accept any brief in the Court or Tribunal
or before any other authority in or before which he proposes to practice at a fee consistent
with his standing at Bar and also the nature of the case. The rule makes it clear that in special
circumstances he may refuse to accept a particular brief. In the case of S.J. Chowdhury v.
State, the Supreme Court has made it clear that if an advocate accepts the brief of a criminal
case, he must attend the case day to date and if he does not do so (i.e., if he fails to attend the
case), he will be held liable for breach of professional duty.

(2) Rule 12 provides that an advocate shall not ordinarily withdraw from engagements once
accepted without sufficient cause and unless reasonable and sufficient notice is given to the
client. ln case he withdraws himself from) the case, he is bound to refund such part of the fee
as has not been earned.

(3) Rule 13 makes it clear 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. The rules provide that if, after 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 in case he can retire without jeopardizing his
client’s interests.

(4) 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 connection with the parties and any interest in or about the controversy as are likely _
to affect his client’s judgments in either engaging him or continuing the engagement.

(5) Rule 15 provides that it is the duty of an advocate to uphold the interests of his client
fearlessly by all fair and honorable means without regard to any unpleasant consequence to
himself or any other. It is the duty of an advocate to defend a person accused of a crime
regardless of his personal opinion as to the guilt of the accused and in the discharge of this
duty, he should always bear in mind that his loyalty is to the law which requires that no man
should be convicted without adequate evidence.

(6) Rule 16 provides that an advocate appearing for the prosecution of a criminal trial shall
so conduct the prosecution that it does not lead to the conviction of the innocent. The rule
makes it clear that the suppression of material capable of establishing the innocence of the
accused must be scrupulously avoided.

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(7) Rule 17 provides that an advocate shall not commit (directly or indirectly) a breach of
the obligations imposed by Section 126 of the Indian Evidence Act. This section provides in
relation to professional communications. According to this section, 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 :

Provided that nothing in this section shall protect from disclosure—

(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.

It is immaterial whether the attention of such barrister, pleader, attorney, or vakil was or
was not directed to such fact by or on behalf of his client. The explanation to Section 126
makes it clear that the obligation stated in this section continues after the employment has
ceased.

(8) Rule 18 provides that an advocate shall not, at any time, be a party to fomenting of
litigation.

(9) Rule 19 makes it clear that it is the duty of an advocate not to act on the instructions of
any person other than his client or his authorized agent. It provides that an advocate shall
not act on the instructions of any person other than his client or his authorized agent.

(10) The fee of an advocate depending upon the success of the suit is considered as opposed
to the public policy. A contract for the contingent fee is also hit by Section 23 of the Indian
Contract Act. Agreement to share the proceeds of the litigation may amount to champerty. ln
such conditions the advocate has a direct interest in the subject matter and cannot act with
the sense of detachment or with the attitude of objectivity. Such an agreement degrades the
honorable profession. To prevent such an agreement the rule 20 provides that an advocate
shall not stipulate for a fee contingent on the results of litigation or agree to share the
proceeds thereof.

(11) Rule 21 provides that an advocate shall not buy or traffic in or stipulate for or agree to
receive any share or interest in any actionable claim. However, it has been made clear that
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.

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(12) 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 benefit of any
other person, any property sold in the execution of a decree or other proceeding in which he
was in any way professionally engaged. The rule makes it clear that this prohibition 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 authorized
in writing in this behalf.

(13) Rule 23 provides that 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.

(14) Rule 24 provides that an advocate shall not do anything whereby he abuses or takes
advantage of the confidence reposed in him by his client.

(15) Rule 25 provides that an 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 the debits made, on account of fees with respective dates
and all other necessary particulars.

(16) According to Rule 26 where sums of money 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.

(17) Rule 27 provides 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, the client
demands the payment of such money and in spite of such demand the advocate does not pay
him, he will be guilty of professional misconduct.

(18) Rule 28 provides that after the termination of the proceeding the advocate shall be at
liberty to appropriate towards the settled fee due to him any sum remaining unexpanded out
of the amount paid or sent to him for expenses or any amount that has come into his hands
in that proceeding.

(19) Rule 29 provides that where the fee has been left unsettled, the advocate can deduct out
of any sums of money 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 shall be refunded to the client.

(20) Rule 30 makes it clear that a copy of the client’s account shall be furnished to him on
demand provided the necessary copying charge is paid.

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(21) Rule 31 requires an advocate not to enter into arrangements whereby funds in his hands
are converted into loans. It makes it clear that an advocate shall not enter into arrangements
whereby funds in his hands are converted into loans.

(22) Rule 32 prohibits an advocate to lend money to his client for the purpose of any action
or legal proceedings in which he is engaged by such a client. It 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 a client. The explanation to this rule makes it clear that an advocate
shall not be held guilty for 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 advocates feel
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.

(23) Rule 33 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.

Duty to Opponent: —

3. Duty to opponent

Rules 34 and 35 framed by the Bar Council of India contain provisions as to the duties of an
advocate to the opponent. Rule 34 provides that 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. Rule 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 not to engage in discussion or argument about the subject of the
dispute with the opposite party without notice to his counsel. Resolution 43 of Hoffman
provides: —

"I will never enter into any conversation with Amy opponent’s client relative to his claim or
defense, except with the consent and in the r presence of his counsel."

Canon 9 of the American Bar Association is also notable. It provides that a lawyer should not
in any way communicate upon the subject of controversy with a party represented by
counsel; much less should he undertake to negotiate or compromise the matter with him,
but should deal only with his counsel.

d. Duty to the Colleagues

4. Duty to the colleagues

Rules 36, 37, 38, and 39 framed by the Bar Council of India deal with the duties of an advocate
to the colleagues. Rule 36 provides that an advocate shall not solicit work or advertise (either
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directly or indirectly) whether by circulars, advertisements, touts, personal communications

interview not unwarranted by personal relations, furnishing or inspiring newspaper,
comments or producing his photograph to be published in connection with a case in which
he has been engaged or concerned. The signboard or nameplate should be of a reasonable
size. The sign-board or stationary should not indicate that he is or has been President or
Member of a Bar Council or of any Association or that he has been associated with any person
or organization or with any particular cause or matter or that he specializes in any particular
type of work or that he has been a Judge or an Advocate-General.

Advertising is prohibited because it may lead to unhealthy competition among advocates.

However, the advertising is considered beneficial in the sense that it will provide information
to the public as to the advocates and their specialized area of law as well. It is better to allow
the advertisement but there must be proper guidelines so that it may not lead to unhealthy
competition and may not result in lowering down the dignity of the legal profession.

Rule 37 provides that an advocate shall not permit his name to be used in aid of or to make
possible the unauthorized practice of law by any agency.

Rule 38 makes it clear that an advocate shall not accept a fee less than the fee taxable under
the rules when the client is able to pay the same.

According to Rule 39, an advocate shall not enter an appearance in any case in which there
is already a vakalatnama or memo of 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 should not be produced and he shall appear only after
obtaining the permission of the Court. The object of this Rule is to secure goodwill among
the advocates. The advantages of the Rule have been well summed up by C.L., Anand, in his
book, General Principles of Legal Ethics. It prevents the temptation of reducing clients from
counsel who has already been engaged. The Counsel already engaged can, in this way,
require that all his remuneration shall be paid to him before the client engages another
counsel. Besides, it is one of the professional obligations, of an advocate to dissuade the client
from changing his counsel unless he has a strong reason for it and to satisfy himself that the
reason is proper and adequate. All lawyers are brothers at the Bar. The ill-feelings of clients
should not affect their cordial relations. An advocate should be courteous to the other
advocates.

Duty towards Public

An advocate is a privileged member of the community and a gentleman besides being a

citizen. He has a greater responsibility to protect the country and lead the community.

(i) Duty towards country

(1) An advocate shall endeavor to make the laws suitable to the wellbeing of the people.

(2) An advocate shall guard the liberty and freedom of the people.
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(3) An advocate should protect the fundamental and human rights and respect the
constitution of the nation.

(4) An advocate should strive for social legislations to accelerate the advent of the socialistic
pattern of society in India by dedicating to public service.

(5) An advocate shall uphold the integrity and unity of the nation.

(6) An advocate shall educate the people to respect the law and respect for the courts and
the Judges.

(ii) Duty towards community

(1) An advocate shall establish Legal Aid Societies for the purpose of rendering legal
assistance to really poor and deserving persons, tree of any charge.

(2) An advocate shall help the local bodies such as Panchayats in villages to function on
sound lines, so that people may discharge their functions in an enlightened and responsible
manner.

(3) An advocate shall provide legal education to the illiterate and working people by
informing them of their rights and legal provisions in simple language.

(4) An advocate shall compose family differences and settle petty disputes and controversies
by amicable settlement.

(5) Ari advocate shall educate the masses or the right limes to come out of many social ills
from which people are suffering.

(6) An advocate shall work with social welfare committees to promote a social order in which
justice, political, economic, and social, will be assured to one and all.

Other Duties

(1) Rule 40 requires every advocate on the rolls of the State Bar Council to pay a certain sum
to the State Bar Council. Rule 41 provides that all the sums so collected by the State Bar
Council shall be credited in a separate fund honor as "Bar Council of India Advocates Welfare
Fund for the State" and shall be deposited in the bank as provided thereunder.

According to Rule 41(2), 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 by the end of every month which shall be credited by 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 Welfare Fund". This fund shall be managed by the Welfare

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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.

According to Rule 41(3), the rest 80% of the total sum so collected by the Bar Council of India
Advocate Welfare Fund 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 deals with the consequences of non-payment of the said amount by the advocate. It
provides that 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 practice is not suspended. ln case the advocate
pays the amount together with late fee of rupees five per month or a part a month subject to
a maximum of rupees thirty within the period specified in the 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. However, the order of suspension
shall cease to be in force when the advocate concerned pays the amount along with a late fee
of rupees fifty and obtains a certificate in this behalf from the State Bar Council.

Rule 43 provides that an advocate who has been convicted of an offense 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 advocate 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 90 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 therefor, the Committee constituted by the
State Bar Council under Rule 42 may pass orders suspending the right of the advocate to
practice. However, it shall be open to the Committee to condone the delay on an application
being made in this behalf. Along with it, an advocate who had after the date of his enrolment
and before the coming into force of time rule, becomes subject to any of the disqualifications
mentioned in this rule, shall within a period of 90 days of the coming into force of this rule
send declaration referred to in this rule to the respective State 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.

As Rule 44 provides, an appeal shall lie to the Bar Council of India at the instance of an
aggrieved advocate within a period of 30 days from the date of the order passed under Rules
42 and 43 (stated above).

Rule 44-A provides that 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.
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It provides further that every State 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 the member, Bar Council of India, from the State concerned who shall be the
ex-officio Chairman of the committee 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 Bar Council of India. The term of the members elected from
the State Bar Councils shall be two years. The Rule makes it clear that two members of the
committee shall form a quorum of any meeting of the committee.

The Rule requires every State Bar Council to open an account in the name of the Bar Council
of India Welfare Committee for the State in any Nationalized Bank. No amount shall be
withdrawn from the Bank unless the cheque is signed by the Chairman of the Welfare
Committee and its Secretary.

The Rule also provides that the State Bar Council shall implement Welfare Scheme approved
by the Bar Council of India through advocates Welfare Committee so constituted, The State
Bar Councils may suggest suitable modifications in the welfare Schemes as suggesting more
schemes, "but such modifications or such suggested schemes shall have effect only after
approval by the Bar Council of India.

The Rule requires the State Bar Council to maintain a separate account in respect of the
Advocate Welfare Fund which shall be audited annually along with other accounts of the
State Bar Council and send the same along with the auditor's report to the Bar Council of
India.

Rule 44-B makes it clear that the Bar Council of India shall utilize the funds received under
Rule 4l (2), stated above, in accordance with the schemes which may be framed from time to
time.

(2) Duty in imparting training.--Rule 45 framed by the Bar Council of India makes it clear
that it is improper for an advocate to demand or accept fees or any premium from any person
as consideration for imparting training in law under the rules prescribed by a State Bar
Council to enable such person to qualify for enrolment under the Advocates Act, 1961.

(3) Duty to render Legal Aid.--Rule 46 provides that every advocate shall in the practice of
the profession of law bear in mind that anyone genuinely in need of a lawyer is entitled to
legal assistance even though he cannot pay for it fully or adequately and that within my limits
of an advocate’s economic condition, free legal assistance to the indigent and oppressed is
one of the highest obligations, as an advocate owes to the society.
(4) Restriction on other employments. —Rules 47, 48, 49, 50, 51, and 52 deal with the
restrictions on other employment.

Rule 47 provides that ani advocate shall not personally engage in any business but he may
be a sleeping partner in a firm doing business provided that in the opinion of the appropriate
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State Bar Council the nature of the business is not inconsistent with the dignity of the
profession Rule 48 makes it clear that an advocate maybe the 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. Rule 49 provides that an advocate shall not be a full-time salaried
employee of any person, government, firm, corporation or concern, so long as he continues
to practice 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 practice as an advocate so long
as he continues in such employment. However, nothing in Rule 49 shall apply to a law officer
of the Central Government or the Government of a State or of any public corporation or body
constituted by statute who is entitled to be enrolled under the Rules of his 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 for this purpose law officer means a person who is so designated by
the terms of his appointment and who, by the said terms, is required to act and/ or plead in
Courts on behalf of his employer.

In a case, a person was enrolled as an advocate despite being a full-time salaried employee
as a Law Officer. The State Bar Council (Bar Council of Himachal Pradesh) had not made any
Rule entitling full-time salaried Law Officers for practicing as an advocate, The work of the
person so enrolled was not mainly or exclusively to act or plead in Court as ’Law Officer'. He
was not entitled to be enrolled as an advocate. His name may be removed from the Roll of
the State Bar Council. Such removal was not taken as punishment but the rectification of.
mistake. Thus, the cancellation or withdrawal of enrolment was not taken as punishment
and therefore, in such condition, the procedure to be followed in the case of punishment for
professional or other misconduct was not required to be observed.

If in the rules of any State Bar Council, a provision made entitling Law Officers of the Central
Government or a State or any Public Corporation or body constituted by a statute, the bar
contained in Rule 49 shall not apply to such Law Officers despite they being full-time salaried
employees. The Court has observed further that not every Law Officer, but only a person who
is designated as Law Officer by terms of his appointment and who, by the said terms is
required to act and/ or plead in courts on behalf of his employer can avail the benefit of the
exception contained in the aforesaid Rule 49.

Rule 50 provides that an advocate who has 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 the others in any business which has
descended to him by survivorship or inheritance or by will provided he does not personally
participate in management thereof.

According to Rule 51, an advocate may review Parliamentary Bills for a remuneration, edit
legal textbooks at a salary, do ’press-vetting’ for newspapers, coach pupils for legal
examination, set and examine question papers and subject to the rules against advertising
and full-time employment, engage in broadcasting journalism, lecturing and teaching
subject, both legal and non-legal.
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Rule 52 makes it clear that 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 the employment does not conflict with his
professional work and is not inconsistent with the dignity of the profession. This rule shall
be subject to such directives if any as may be issued by the Bar Council of India from time to
time.

2. Fiduciary duties: —

Fiduciary duties. —The relation between an advocate and his client is fiduciary. It is of
confidential nature requiring a high degree of fidelity and good faith. In V.C. Rangadunri v.
D. Gopalan Justice Seen has observed that the relation between the advocate and his client is
purely personal involving the highest personal trust and confidence.

An advocate should not be considered merely an agent or servant of his client. He is more
than a mere agent or servant of his client. Rule 14 makes it clear 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 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 provides that it shall be the duty of an advocate
fearlessly to uphold the interests of his client by all fair and honorable means without regard
to any other. 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 benefit
of any other person, any property sold in the execution of a decree or order in any suit, appeal
or other proceedings 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 authorized in writing in this behalf. Rule 24 makes it clear that an advocate shall
not do anything whereby he abused or takes advantage of the confidence reposed in him by
his client.

In the case of P.D. Gupta v. Ram Murti, an advocate purchased the property which was the
subject matter of litigation from his client at a throwaway price. There was a doubt cast on
the client’s title to the property and the advocate was aware of this fact. He sold the property
to a third person and made a profit. He was held guilty of professional misconduct.

In Vikas Deshpande v. Bar Council of India, the appellant advocate took advantage of the
situation that the complainants facing a death sentence and obtained the power of attorney
on misrepresentation in his favor and sold the property of the complainants. Besides, the
appellant advocate fraudulently appropriated the sale-proceeds for his gain. The Court held
that he had committed grave professional misconduct. The Disciplinary Committee of Bar
Council of India permanently debarred him from practicing as an advocate. The punishment
was upheld by the Supreme Court. The State Bar Council could not complete the proceeding
within a period of one year and therefore the complaint was transferred to the Bar Council
of India under Section 36B of the Advocates Act and thereupon the Disciplinary Committee
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of the Bar Council of India passed the aforesaid order for permanently debarring him from
practice and this order was found proper by the Supreme Court.

In Harish Chand Singh v. S.N. Tripathi, a senior advocate appointed his own junior as
mukhtar of the complainant in a consolidation case. He misguided his junior and tried to
dispose of the complainant’s property in favor of his own father, the senior, the advocate was
held guilty of professional misconduct. He was suspended from practice for two years.

In Prahalad Saran Gupta v. Bar Council of India, a certain amount was deposited with the
advocate for decree-holder in connection with the settlement in execution proceedings
under negotiation between decree-holder and judgment-debtor. The settlement was not
fructified and the property of the judgment-debtor was auctioned but the advocate retained
the money deposited with him and, thus, did not return the amount either to the decree-
holder or to the judgment-debtor. The Court held that the action of the advocate in not
returning the amount either to the decree-holder or to the judgment debtor and retaining
the same with himself was not in consonance with the standards of the professional ethics
expected from an advocate. The conduct of the advocate was taken as professional
misconduct.

Q.2. State the rules relating to financial dealings between an Advocate and a client.

(2) Advocate's Fee—Fixation of fee.—The rules framed by the Bar Council of India do not
prescribe the fee to be claimed by the advocates for their professional services and it has
been left to be settled by the private agreements. However, Rules 11 and 38 are notable. Rule
11 provides that an advocate is bound to accept any brief in the Courts or Tribunal or before
any authority in or before which he proposes to practice at a fee consistent with his standing
at the Bar and the nature of the case. However legal profession is not a business but
profession and therefore in fixing the fees should be kept in mind that the profession is a
branch of the administration of justice and not a mere money-getting trade. According to the
canons of professional ethics of the American Bar Association in fixing fees, the lawyers
should avoid charges which over-estimate their advice and services as well as those which
undervalue them. In fixing the fees it should never be forgotten that the profession is a
branch of the administration of justice and not a mere money-getting trade. The canon also
makes it clear that the controversies with clients concerning fees are to be avoided by the
lawyers so far as shall be compatible with his self-respect and with his right to receive
reasonable recompense for his service and lawsuit, with clients should be resorted to only
to prevent injustice, impositions or fraud.

Carter has stated that in fixing the fees it is fair to consider the time used and the skill
employed, the amount involved and the result of the services as well as the customary charge
for similar services by the lawyers in general practice. He has made it clear that any lawyer
who cares for his reputation would prefer to reduce his charges rather than engage in
litigation for their collection.

C.L. Anand has ably summed up the matters to be taken into consideration in fixing the
amount of fee there are as follows—
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(i) The qualification and standing of the advocate who is asked to render professional
service. It is evident that a service rendered by a person of superior education and rich
experience is likely to be more valuable and of better quality than the advice given by a
person who is less qualified,

(ii) The difficulty of the problem involved in the case. The more intricate the case, the greater
will be the degree of skill and amount of labor required.

(iii) The amount of time required to render professional service.

(iv) The amount involved in the suit.

(v) The result expected to be accomplished as a consequence of the lawyer’s exertion.

(vi) The customary charges of the Bar for such services.

Actually, there is no hard and fast rule as to the fixation of the fees. It depends on the
agreement between the advocate and the client. ln, the absence of such agreement an
advocate is entitled to a reasonable fee on the basis of the qumitum meruit rule. If the fee
payable to him is not paid, he may file suit for its recovery to avoid the controversy the
advocates should settle the fee at the time of engagement. It would be better if the exact
terms of the contract relating to the fee are reduced into writing. ln the case of Ranjit Singh,
ln re, Suleiman C.J., has observed—

"It would increase the dignity of the profession as well as its purity of a common practice
grew up under which exact terms of the contract of engagement of counsel were reduced
into writing preferably signed by the client and maintained in the Advocate’s office. Such a
contract would make it impossible for any dispute or misapprehension to arise in the future.

Rule 38 framed by the Bar Council of India, with the object to prevent unhealthy competition,
provides that an advocate shall not accept a fee less than the fee taxable under the rules when
the client is able to pay the same.

Contingent fee. — The fee depending upon the success of the suit or proceeding (i.e.,
contingent fee) is regarded as against the public policy. The agreement for the contingent fee
is hit by Section 23 of the Indian Contract Act. Rule 9 framed by the Bar Council of India
expressly provides that an advocate should not act or plead in any matter in which he is
himself be pecuniarily interested. Besides rule 20 makes it clear that an advocate shall not
stipulate for a fee contingent on the result of litigation or agree to share the proceeds thereof.
in such a condition, an advocate cannot be expected to act with a sense of detachment or
objectivity. In such a condition an advocate makes himself as a client in the grab of an
advocate. Such an agreement, thus, degrades the honorable legal profession. On this issue,
the canon of the professional ethics of American Bar Association provides that a contract for
a contingent fee, where sanctioned by law, should be reasonable under all the circumstances
of the case including the risk and uncertainty of the compensation, but should always be
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subject to the supervision of a court, as to its reasonableness. However, another canon makes
it clear that the lawyer should not purchase any interest in the subject-matter of the litigation
which he is conducting. ln England an agreement for a contingent fee is not valid.

The reasons for the disfavor of an agreement for a contingent fee has been well summed up
by C.L. Anand. He has rightly stated that it terms the counsel from being an officer of the
Court to that of a party litigating his own claim and having a personal interest in the event of
the controversy. Having acquired such interest, he becomes blind to the merits of the case,
and success becomes the sole end of his exertions. Instead of remaining an agent and legal
adviser responsible to the client for the conduct of the case, the advocate acquires a private
interest in the suit which gives him a right to speak as principal. It reduces the law practice
to a short of lottery and lower, professional character and honor.

Thus, the agreement for a contingent fee is looked upon with disfavor, and later as
inconsistent with the high ideals at the Bar.

Q.3. Write a note on:

(a) Right of lien:

Right of lien.

In the case of R.D. Saxena v. Balram Prasad Sharma, the Supreme Court has held that an
advocate cannot claim a lien over the litigation files entrusted to him for his fees. The Court
has held that no professional can be given the right to withhold the returnable records
relating to the work done by him with his client’s matter on the strength of any claim for
unpaid remuneration. The alternative is that the professional concerned can resort to other
legal remedies for such unpaid remuneration.

In New India Assurance Co. Ltd. v. A.K. Saxena, the Supreme Court has made it clear that
advocate has no lien over the papers of their client. Therefore, the advocate cannot retain
files of his client on the ground that his fee has not been paid by him. The question as to
whether fees are payable or not to the advocate cannot be decided in proceedings filed by
the client claiming the return of his papers or files. However, the advocate may resort to legal
remedies for unpaid fees or remuneration. It has been held that the dispute regarding fees is
a list to be decided in an appropriate proceeding in the Court.

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