RIGHTS AND PRIVILEGES OF AN ADVOCATE

Advocates have the following rights and privileges provided by law and usage.

(1) Right to Freedom of Speech and Expression:— Article 19(1 )(a) of Indian Constitution provided the right to
freedom of speech and expression to all citizens. An advocate need not fear about police, bureaucrats, legislators
and even the judiciary. But he should oblige the reasonable restriction imposed on this right in the interest of the
sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order,
decency or morality, or in relation to contempt of court, defamation or incitement to an offence. He should not hurt
the religious feelings of one sect. He should speak in decent language.

(2) Right to practise and audience:— According to Section 30 of the Advocates Act, subject to the provisions of
this Act, every advocate whose name is entered in the State roll shall be entitled as of right to practise throughout
the territory,—

(a) in all Courts including the Supreme Court;

(b) before any Tribunal or person legally authorised to take evidence; and

(c) before any other authority or person before whom such advocate by or under any law for the time being in
force entitled to practise.

Only advocates have monopoly right to represent clients in Courts.

(3) Right for Welfare Fund:— As per Section 15 of the Andhra Pradesh Advocates’ Welfare Fund Act, 1987, every
advocate practising in any Court in the State become a member of the Fund. According to Section 16, a member of
the Fund shall, on cessation of practice, be entitled to receive from and out of the Fund an amount at the rate
specified in the schedule after five years of service at the rate of one thousand for a completed year.

(4) Right of fee:— As per Rule 11 of Chapter II of Part VI of the Bar Council of India Rules, he has a right for a fee
consistent with his standing at the bar and the nature of the case.

(5) To enter the Bar:— An advocate has the right to sit in the seats 1 provided for advocates, whether he is
having a case or not and observe the l proceedings.

(6) Privilege of exemption from arrest:— Section 135(2) of Civil Procedure Code, 1908 states thus:

Where any matter is pending before a tribunal having jurisdiction therein, or believing in good faith that it has such
jurisdiction, the parties thereto, their pleaders, mukhtars, revenue-agents, and recognized-agents, and their
witnesses acting in obedience to a summons, shall be exempt from arrest under civil process other than process
issued by such tribunal for contempt of Court while going to or attending such tribunal for the purpose of such
matter, and while returning from such tribunal.

(7) Privilege under the CrPC:— An advocate is exempted from serving in as juror or as assessor under the
Criminal Procedure Code.

(8) Liability of Negligence:— No action can be taken against the advocate if he does any negligence, which an
ordinary and a reasonable man does. Such mere negligent acts are privileged under the Act.

Advocates’ Right to Refuse a Brief:

According to Section 29 of the Advocates Act, 1961 the only one class of persons entitled to practise the profession
of law, namely advocates.

As per Rule 11 of Chapter II of Part VI, an advocate is bound to accept any brief in the Courts or Tribunals or before
any authority in or before 1 which he professes to practise at a fee consistent with his standing at the bar and the
nature of the case. Special circumstances may justify his refusal to f accept a particular brief.

Defending a client known to be guilty neither involves violation of law nor ethics. No person is guilty unless
otherwise proved. Any guilty person has the right to defend himself in court. A client approaches a particular
advocate after satisfying that he has sufficient experience, knowledge and ability to safeguard his interests. No
advocate refuses a brief. But in situation where he could not appear before court lawfully, then he has a right to
refuse a brief and it is his duty also.

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The following are the circumstances where an advocate should not plead in a Court and where he has to refuse a
brief:

According to Rule 4 of Section 1 of Chapter II of Part VI of the Rules of the Bar Council of India, an advocate shall
refuse to represent the client who persists in unfair practices and improper conduct.

According to Rule 6 of Chapter II of Part VI of the Bar Council of India Rules, an advocate shall not enter appearance,
act, plead or practise 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 purpose of this rule, Court shall ban a Court, Bench or Tribunal in which above mentioned relation of the
advocate is a Judge, Member or the Presiding Officer.
According to Rule 8 of Chapter II of Part VI of the Bar Council of India Rules, 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.

According to Rule 9 of Chapter II of Part VI of the Bar Council of India Rules, an advocate should not act or plead in
any matter in which he is himself pecuniarily interested.

(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 a Director.

According to Rule 13 of Chapter II of Part VI of the Bar Council of India Rules, 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 and if 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 if he can retire without jeopardising his client’s interests.

In the case, Allahabad Bank Ltd., Fyzabad v. Thabr Baksh Singh, the Privy Council held, “If a client comes to them with
proper instructions and prepared to pay a fair and proper fee and invites them to undertake a case of a kind which
they are accustomed to do and they refuse, such refusal amounts to professional misconduct, and should be
punished as such. That is to say,

nor has a lawyer any right to reject a brief when offered to him on payment of fee agreed upon the ground of
partisanship for a party to the litigation”.

No advocate should accept a fee less than the fee taxable under the rules when the client is able to pay the same. At
the same time, Article 39-A of Indian Constitution provides that if the arrested person is poor, free legal aid and
equal justice shall be provided to him. Hence no advocate has right to refuse a brief on the basis of fee;

If an advocate refuses to appear on the ground that the fee offered is not adequate enough for him, it is violation of
professional ethics of a lawyer. An advocate should not bargain for higher fee and refuse a brief on that basis.

In India, there is no provision to refuse a brief legally. But it is the general opinion that defending a client known to
be guilty neither involves violation of law nor ethics, and such client must be defended, irrespective of the personal
opinion of the advocate. But, as the advocacy is a noble ’profession an advocate should not counsel or maintain any
suit or proceedings which is unjust and dishonest.