Rights and Duties of an Advocate under Advocates Act, 1961

1) Introduction

“There’s always room for a good lawyer.”- Milas Hale 2

An advocate under the Advocates Act, 1961 is a person who have entered in any roll under the
provisions of this Act. Prior to this Act, there were deviant classes of legal practitioners under the
Legal Practitioners Act. They were Advocates, lawyers, vakils, etc. The Advocates Act has set
aside these classes and has allowed only one class of Advocates. In order to implement the
commendation of All India Bar Committee (endorsed by fourteenth Report of the Law
Commission in 1955), the Advocates Act, 1961 came into being. The Act extends to the whole of
India, except the State of Jammu and Kashmir. The Act aims at rectifying and consolidating the
laws relating to legal practitioners and to administer for the establishment of State Bar Councils
and an All India Bar Council.

Slowly and gradually, it was felt that the Judicial Administration should be switched according to
the needs of the time. The First Law Commission inspected and made a Report on Reforms of
Judicial Administration. The All India Bar Committee also inspected the matter and made its
recommendations in 1953. To implement the recommendations of All India Bar Committee after

1
https://blog.ipleaders.in/wp-content/uploads/2017/02/SalemWitchcraftTrial_large.jpg
2
https://ggreen.com/just-for-fun/famous-quotes-in-law
taking into consideration the Law Commission’s recommendations made in its Fourteenth Report
in so far as they run through to the Bar and to legal education, the Advocates Act was executed.

The Advocates Act, passed by the Parliament acknowledged the compliance of the President on
19th May 1961.

The aim of the Advocates Act is to harmonize and constitute one class of legal practitioners called
"Advocates" and to determine uniform qualification for admission to the Bar.
 2) Rights of an Advocate in India
The provisions relating to rights of advocates have been described under Sections 29, 30, 32, 33
and 34 of Advocates Act, which are as follows:

This section came into operation on 1st June, 1969.

Section 29 of the Advocates Act, 1961 provides that "subject to the provisions of this Act and any
rules made thereunder, there shall, as from the appointed day, be only one class of persons entitled
to practise the profession of law, namely advocates."

In Nibaran Bora v. Union of India,3 the Gauhati High Court has held that only advocates can
practise in a court of law. The meaning of the word "practise" is, repeated action, habitual
performance, a succession of acts of a similar kind."

Similarly, Section 30 lays down that subject to the provisions of this 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:

(a) in all Courts including the Supreme Court;(b) before any Tribunal or person legally authorized
to take evidence; and (c) before any other authority or person before whom such advocate is by or
under any law for the time being in force. entitled to practise.4

It may, yet, be noted that the Advocates Act, 1961, came into being for over four decades back,
but still Section 30 of this Act, is not forced upon.

Under the relevant provisions of the Advocates Act, 1961; Advocates only have the right to
practice before any Court (vide Section 33).5 Although only Advocates have the liberty to
practice/carry on litigation in Courts, there is a provision under the Act which gives the Court
power to allow/deny any person to appear before it. So, as per Section 32 of the Advocates Act,
1961; a person who has not been enrolled under the Advocates Act 1961 has the liberty to appear
before the Court but only on the ground that the Court allows him to do so.6

3
AIR 1992 Gau. 54,
4
https://indiankanoon.org/doc/756229/
5
https://indiankanoon.org/doc/510150/#:~:text=33.,an%20advocate%20under%20this%20Act.
6

https://indiankanoon.org/doc/1577844/#:~:text=Section%2032%20in%20THE%20ADVOCATES%20ACT%2C%2
01961&text=32.,him%20in%20any%20particular%20case.
However, in Derby Textiles Ltd. v. Mahamantri, Derby Textiles Karmachari and Shramik
Union,7 it has been held that an office-bearer of a trade union, who is a qualified law graduate but
not registered as an advocate, can be permitted to represent the union and argue the case.

Under Section 34 of the Advocates Act, 1961, the High Court is legitimized to make rules about
the conditions under which an advocate shall be permitted to practise in the High Court and
subordinate court. Thus, in the mix of judging Sec. 34(1) the courts have negligently laid down
that the words ‘laying down the conditions subject to which an advocate shall be permitted to
practice’ under Sec. 34 must be given a restricted meaning of permitting physical appearance of
the advocate and not his general right to practice.8

At the end of a thoughtful judgment S.N. Variava, J and his brothers concluded that ‘the right to
practice is the genus, of which the right to appear in the Court may be a specie. But the right to
appear and conduct cases in the Court is a matter on which only the court must and does have a
supervisory and controlling power, which does involve the right of an advocate.’9

3) Duties of an Advocate
3.1) Duties of an Advocate’s Towards the Court
• During the presentation of his case and also while acting before a court, an advocate should
act in a dignified manner.

• An advocate should on all occasions show respect towards the court. An advocate has to
keep in mind that the dignity and respect maintained towards judicial office is essential for
the survival of a free community.

• An advocate should not disclose in private to a judge with regard to any matter pending
before the judge or any other judge.

• An advocate has a duty for refusal to act in an illegal or improper manner towards the
opposing counsel or the opposing parties.

7
(1994) 3 LLJ (Supp) 528 (Rajasthan)
8
Prayag Das v. Civil Judge, Bulandshahr, AIR 1974 All 133
9
Harish Uppal vs Union Of India & Anr on 17 December, 2002
 • An advocate should not disgracefully damage the character of the parties on false grounds
during pleadings. He should also not use unparliamentary language during arguments in
the court.

• He should turn up in court at all times only in the dress ethical under the Bar Council of
India Rules and his representation should always be presentable.

• He should not enter act, appearance, practice or plead in any way before a judicial authority
if the sole or any member of the bench is related to the advocate as son, daughter father,
grandson, grandfather, , first cousin, uncle, nephew, brother, husband, wife, mother, sister,
aunt, niece, father-in-law, mother-in-law, son-in-law, brother-in-law daughter-in-law or
sister-in-law.

• An advocate should not wear bands or gowns in public places other than in courts, except
on such solemn occasions and at such places as the Bar Council of India or as the court
may define.

• If he is a member of the management of the establishment then he should not appear in or

before any judicial authority, for or against any establishment.

• In any matter in which he has financial interests then he should not act or plead in that
matter.

• For the purpose of any legal proceedings an advocate should not stand as a surety, or certify
the soundness of a surety that his client requires.

3.2) Duty of an Advocate’s Towards the Client

• An advocate is obliged to accept any brief in the courts or tribunals or before any other
authority in or before which he asserts to practise.

• Ordinarily an advocate should not withdraw from serving a client once he has decided to
serve them.

• In a case in where he himself is a witness then he should not accept a brief or appear.
 In Kokkanda B. Poondacha v. K.D. Ganpathi,10 the Court has held that one party to
proceedings cannot cite advocate representing the other side as witness without disclosing as
to how testimony is relevant as it will result in depriving the other side of services of the
advocate.

• An advocate should, 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.

• He has a duty defend a person accused of a crime regardless of his personal presupposition
as to the guilt of the accused. It is also a duty of an advocate to dauntlessly uphold the
interests of his client by all fair and honourable means.

• An advocate has also a duty that should conduct the proceedings in a manner that it does
not lead to conviction of the innocent.

• An advocate has also a duty that he should not by any means, directly or indirectly, divulge
the communications made by his client to him. (Exception he is liable to disclose if it
violates Section 126 of the Indian Evidence Act, 1872.)

• He is also duty bound to not be a party to stir up or instigate litigation.

• He should should not act on the direction of any person other than his client or the client’s
authorized agent.

• An advocate should not charge for his services depending on the attainment of success of
the matter undertaken. He also shall not charge for his services as a proportion of the
amount or property acknowledged after the success of the matter.

• An advocate should not trade or agree to receive any share or interest in any actionable
claim.

10
AIR 2011 SC 1353
• An advocate should not by any means 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 any legal proceeding in which he was in any way professionally engaged.

• Not bid or transfer property arising of legal proceeding.

• An advocate should not adjust fee payable to him by his client Against his own personal
liability to the client he has a duty that he should not adjust fee payable to him by his client
which does not arise in the course of his employment as an advocate.

• He should not exploit or take any advantage of the confidence reposed in him by his client.

• An advocate should always keep accounts of the clients’ money entrusted to him.

• He has a duty not divert any part of the amounts received for expenses as fees without
written instruction from the client.

• The advocate has a duty that he must without any delay intimate the client of the fact of
such receipt if any amount is received or given to him on behalf of his client.

• He is also duty bound to adjust fees after termination of proceedings and any amount left
after the deduction of the fees and expenses from the account must be returned to the client.

• An advocate must provide the client with the copy of the client’s account maintained by
him on demand, provided that the necessary copying charge is paid.

• Where funds in advocates hands are converted into loans in that case he shall not enter into
arrangements.

• For the purpose of any action or legal proceedings in which advocate is engaged by client
he shall not lend money to such client.

• If he has advised a party in connection with the institution of a suit, appeal or other matter
or has drawn pleadings, or acted for a party, then he shall be duty bound not to act, appear
or plead for the opposite party in the same matter.
3.3) Duty of Advocate’s to Opponents
• An advocate shall not negotiate directly with opposing party by any means of
communication or negotiate or call for settlement upon the subject matter of differences.

• An advocate is duty bound to carry out legitimate promises made to the opposite party.

3.4) Duty of an Advocate’s Towards Fellow Advocates

• An advocate shall not solicit work or advertise in any manner.

• An advocate’s sign-board or name-plate should be of a reflective size.( 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 organisation or with any particular cause or
matter or that he specialises in any particular type of work or that he has been a Judge or
an Advocate General.)

• He has also a duty that he should not promote unauthorized practice of law.

• An advocate shall not accept a fee less than the fee, which can be taxed under rules when
the client is able to pay more.

• An advocate should not show up in any matter where another advocate has filed a vakalt
or memo for the same party (he can do so only with the consent of the other advocate.)

4) Judicial Decisions and the Law

The legal profession is required to look after the moral standards. As an officer of the court, a
lawyer has a duty and commitment towards the court towards his profession and to the public.
Since the foremost duty is commitment is to assist the court in dispensing justice, the members of
the Bar cannot perform in a manner which is doubtful, or has a lot of doubts or which strives to
thrive on litigation. Lawyers needs to keep in mind that they are to assist the court in the
administration of justice. If lawyers do not perform their duty properly then it would be depressive
to the rule of law.

The Supreme Court, through its decision in the matter of Bar Council of India v. Board of
Management, Dayanand College of Law11, surveyed the statutory powers available to BCI under

11
AIR 2007 SC 1342.
the provisions of the Advocates Act, as well as the Rules framed thereunder, and concluded that
BCI was concerned with the standards of the legal profession and legal education in the country.

Professional misconduct refers to disgraceful or dishonorable conduct, not befitting to the

profession concerned. Legal profession is not a trade or business. Therefore, it must remain a de-
contaminated profession. Advocates have a duty to uphold the integrity of the profession and to
discourage corruption so that justice may be secured by the citizenry in a legal manner.12 A lawyer
must strictly adhere to the norms of profession which make him worthy as an officer of court 13.
Dignity of the judiciary is to be maintained, failing which the institution itself will collapse.14
Indulging in practices of corrupting the judiciary or offering bribe to the Judge 15 ; retaining money
deposited with the advocate for the decree holder even after execution proceedings 16 ; scandalizing
the Judges 17 ; constant abstention from the conducting of cases; misappropriation of the amount
18 19 20
paid ; attesting forged affidavit ; failure to attend trial after accepting the brief ; taking
money from client in the name of the Judge21; gross negligence involving moral turpitude 22
;
indecent cross examination23; breach of trust24; conducting fraud and forgery25 by the advocates,
have been held to be serious misconduct by the Supreme Court.

5) Conclusion and Suggestions

The legal profession as it exists today was refined during the British period. It is notable that
in preceding days of the British period the legal profession was not paid due consideration and
it was not well formulated.

12
Shambhu Ram Yadav v. Hanuman Das Khatry, AIR 2001 SC 2509.
13
Noratanmal Chouraria v. M R Murli & Anr., AIR 2004 SC 2440.
14
In Re : Vinay Chandra Mishra, AIR 1995 SC 2348.
15
Shanbhu Ram Yadav Supra.
16
Prahlad Saran Gupta v. Bar Council of India, AIR 1997 SC 1338.
17
Dr. D C Saxena v. Chief Justice of India, AIR 1996 SC 2481.
18
D S Dalal v. State Bank of India, AIR 1993 SC 1608; and J S Jadhav v. Mustafa Haji Mohamed Yusuf, AIR 1993
SC 1535.
19
M Veerabhadra Rao v. Tek Chand, AIR 1985 SC 28
20
S J Chaudhary v. State, AIR 1984 SC 618.
21
Chandra Shekhar Soni v. Bar Council of Rajasthan, AIR 1983 SC 1012.
22
In the matter of P an Advocate, AIR 1963 SC 1313; and V P Kumaravelu v. the Bar Council of India, AIR 1997 SC
1014
23
Shiv Narain Jafa v. The Hon’ Judges of the High Court, Allahabad, AIR 1953 SC 368.
24
Bapurao Pakhiddey v. Suman Dondey, AIR 1999 SC 916
25
LC Goyal v. Nawal Kishore, (1997) 11 SCC 258; and Devender Bhai Shanker Mehta v. Ramesh Chandra Vithal
Dass Seth, AIR 1992 SC 1388; See also: Dr. Elbe Peter, MDS, LL.B, DCR, Professional misconduct of lawyers in
India.
The enactment of the Advocates Act, 1961 was the consequences changes to the legal
profession after Independence. There was need for a unified bar, rules governing the State Bar
Councils and most primarily, the formulation of an All India Bar, all of which was is the freshly
enacted law.

In 1961, parliament enacted the Advocates Act to amend in strengthen the law relating to the
legal practitioner, and to administer for the constitution for the All India Bar Council and State
Bar Council. The Advocates Act put into effects the recommendation of the Bar Committee
in the Law Commission with some modifications. It repeals the Indian Bar Council Act, 1926,
the Legal Practitioners Act, 1879, in other laws under subject. The act has endured several
amendments since its enactment in 1961. The Act extends to the whole of India. Having gone
through varied enactments, judgments and cases that have been referred the author suggests
that there must be various career conveyance and advancement programs conducted by the Bar
Council promptly after enrolment so that new legal professionals they will be aware of the do’s
and don’ts of this profession and there will be a greater degree of group of advocates in the
coming decennary.