PROFESSIONAL ETHICS AND CONTEMPT OF COURT LAW PRACTICAL TRAINING PAPER-I (LP 0704) — SS ASAMENDEDIN JULY 2019PROFESSIONAL ETHICS AND CONTEMPT (QF Courr LAW Module - 01 Module - 02 Module - 03 History Of Legal Profession In India Norms Of Professional Ethics And Duties | Introduction And Authorities (The Advocates Act, 1961) Module - 04 | ‘Admission And Enrolment Of Advocates (The Advocates Act, 1961) Enrolment And Right To Practice And Limitations Of Such Right (The Advocates Act; 1961) Conduct Of Advocates (The Advocates Act, 1961). | Cases Prescribed For Study On Professional. Ethics Module -08'| The Contempt Of Courts Act, 1971 Modile - 09 | Cases Prescribed For Study On Module --05 Module - 06 Module - 07 ‘Contempt Of Court - Module 10. Question PapersPROFESSIONALLETMICS AND CONTEMPT OPCOURTLAW [Prof Pathan’s SP Law Classes, Pune. Page 12a (Class) 25510256, (Res) 26333908. LP 0704 Practical Training Paper I- Professional Ethics and Contempt of Court Law: Objectives of the Course : The professional ethics encompasses an ethical code governing the conduct of persons engaged in the practice of law as well as persons engaged in the legal sector. The objective of this course is to acquaint the students as to (a) legal profession in India during - ancient, medieval and modern period, (b) professional ethics or duties, : — (c) the provisions of the Advocate Act, 1961, and (@. _ the provisions of the Contempt of Courts Act, 1971. The purpose of the course shall also be to provide or to enhance the practical knowledge of the students and to aequaint them with the link between theory and practice. ‘Scheme of Marking + ; Part A: University Written Examination : 80 Marks Part B : Written Submissions (10 Marks) & Viva voce Examination (10 Marks): 20 Marks PartA, : _ Syllabus for University Written Examination : Module 01. History of Legal Profession in Indi iL Legal profession in India in aricient and medieval period ‘ 2. Changes underwent in Legal profession during British rule Development of Legal Profession in India after Independerice 4. Impact of globalization on legal profession in India Module 02 . Norms of Professional. Ethics and Duties 1+ Need and necessity of Professional ethics in the legal profession 2. Professional ethics and duties of advocates towards his clients, Court, public, his fellow advocates, self; society, duty in imparting training, duty to render legal aid, etc. 3, «Restrictions on other Employments 4, Restrictions on advertising '5, . Form of Dresses or Robes to be worn by Advocate 6. Rules as to Vakalatnama Module 03 Introduction and Authorities (the Advocates Act; 1961) : ~ I, ° Objects of and definitions under the Act 2.° Bar Council of State: a) Establishment of Bar Councils for Each States and Union Territories b) _ Composition of State Bar Council : c) System of Election d) Term of office of Members f State Bar Council and Establishment of Special Committee ‘e) . Disqualification of Member of Bar Council of State © f) Powers and Functions of Bar Council of State<_ PROFESSIONAL ETHICS AND CONTEMPT OF COURTLAW Prof. Pathan’s —S.P, Law Classes, Pune. Page: 3. ‘@ (Class) 25510256, (Res) 26333908. 3. . Bar Councilof India: 8) Composition of Bar Council of India b) Term of office of Members of BarCouncilof India’ ©) Disqualification of Member of Bar Council of India @) Powers and Functions of Bar Council of India ) Membership in International Bodies 4. _ Provisions Common to Bar Council of India and Bar Council of State : a) Bar Council o be Body Corporate b)_ Constitution of Committees of Bar Council c) “Transaction of Business, Staff and Audit of Accounts of Bar Council 4) Power of Bar Council to make Rules Module 04 Admission and Enrolment of Advocates (the Advocates Act, 1961) : 1. Senior and other Advocates Preparation of Roll of Advocates Order of Seniority amongst the Advocates Transfer of Name from one State Roll to another ° Right of Pre-audience © Qualification for Admission of Person as Advocate on State Roll ° Disqualification for Admission of Person as Advocate on State Roll < Disposal of Applications for Admission as Advocate Power of State Bar Council to make rules Enrolment ae Right to Practice and Limitations of such Right (the Advocates. Act, 1961) + . Right of Advocates to Practice Power of Court to Permit Appearances in Particular Cases Advocates alone entitled to Practice Power.of High Court to make rules Skills essential for a lawyer to have a good practice and profession — qualities to succeed in legal profession - honesty, courage, industry, wit, eloquence, judgment, fellowship, etc. Decisions of Courts on Advocate’s right to strike Role of advocate in the administration of justice and duty towards legal reforms SEI AWRY Module 05 BAbST Ep ne Module 06 Conduct of Advocates (the Advocates Act, 1961) : Complaint of Professional or other Misconduct « Punishments for Professional or other Misconduct Disciplinary:Powers of Bar Council of India and State Bar Council : Disposal of Disciplinary Proceedings Review of Orders by Disciplinary Committee Appeal to Bar Counéil of India ‘ Appeal to Supreme Court Stay of Order Alteration int Roll of Advocates SEI MWA my‘PROFESSIONAL ETHICS AND CONTEMPT OFCOURTLAW ‘SP. Law Classes, Pune. Page : 4 "@ (Class) 25510256, (Res) 26333908. Module 07 : Cases Prescribed for Study on Professional Ethics Prof. Pathan’s 1. 2. 3. an : 5. 6. 7. 8. 9. . 10. Module 08 te 2. 3. 4. 5. 6. “7. 8. oF 10. Module 09 1 2. “3, 4 5. 7. 8. 9. 10. Note: 1 ‘Vishram Singh Raghubanshi v. State: of UP, AIR: 201 18C 2275 Vijay Singh v. Murarilal, AIR 1979 SC.1719 SI Chaudhary v. State of Delhi, AIR 1984 SC 618 Chandra Shekhay Soni v. Bar Council of Rajasthan, AIR 1983 $C-1012 Ex-Capt Harish Uppal v. Union Of India, AIR 2003 SC 739 John D'Souza y. Edward Ani, AIR 1994 SC 975 ~ Himalayan Cooperative Group Housing Society v. Balwan Singh, AIR 2015 SC 2867 Brajendra Nath Bhargava v, Ramchandia Kasliwal, AIR 1999 SC 2866 AS Mohammed Rafi v. State of Tamil Nadu, AIR 2011 SC 308 D Saibaba v. Bar Council of India, AIR 2003 SC.2502 The Contempt of Courts Act, 1971: Historical development of law of contempt of court in India Freedom of speech, Law of defamation and contempt of Court - Constitutional perspectives Meaning of contempt - Civil contempt and Criminal contempt Defenses for contempt - Civil and Criminal contempt Punishments for contempt x Procedure for initiating contempt proceeding Contempt by Judges, Magistrate, Lawyers, Companies and others Contempt of Supreme Court, High Court and Subordiniate Court Remedies, Apology, Appeal and Review ‘ Comparison with Order 39 Rule 2A of Civil Procedure Code Cases Prescribed for Study on Contempt of Court InRe Arundhati Roy, AIR 2002 SC 1375 Pushpaben v. Narandas V Badiani, AIR 1979 SC 1536 LD Jaikwal v. State of UP, AIR 1984.SC 1734 Charan Lal Sahu v. Union of India, AIR 1988 SC 107 PN Duda v. VP Shiv Shankar, AIR 1988 SC 1202 6, Noorali Babul Thanewala \: KMM Shetty, AIR 1990 SC 464 Bal Kishan Giri v. State of UP, AIR 2014 SC (Supp) 469 High Court of Judicature of Bombay v. Manisha Koirala, 2003 CriLJ 1634 (Bom HC) - Dr. Subramainian Swany v. Arun Shourie, AIR 2014 SC 3020 - InRe $ Mulgaokar, AIR 1978 SC717_~ * ‘The eollege shall organise Interaction Session(s) of experts in the aréa of professional ethics, contempt of courts, etc. with the students. The purpose of the interaction session(s) should be to provide or to enhance the practical knowledge of the students with respect to the course. The concerned teacher is advised to orient the students, before organisation of interaction’ session, as to purpose of interaction, concerned legal provisions, etc.PROFESSIONAL ETHICS AND CONTEMPT OF COURTLAW (Prof. Pathan’s _S.P. Law Classes, Pune. Page : 5 ‘@ (Class) 25510256, (Res) 26333908, Part B + Contents of Written Submissions Gournal) +The Written Submissions (Journal) shall contain the following : Essay on the topic from law relating to Legal Profession in India, assigned by concerned teacher. Essay on the topic from Law relating to Contempt of Court, assigned by concerned teacher. Report on an Interaction Session(s) of experts with the students, Case Comments on 2 cases on Professional Ethics, assigned by concerned teacher. Case Comments on 2 cases on Contempt of Court, assigned by concerned teacher. A Report on interaction session shall consists of : (a) Purpose of the’ Interaction, (b) Observations / Info1snation Collected by'the stiadent, (c) Relevant Provisions of Law, (d) ‘Comments on Linkage between Law and Practice. The concerned teacher may add in or modify the specified contents of report. ‘The casé comment shall consists of : (a) Citation ot f the case, (b) Facts of the case, (c) Issues of facts and of laivs, (d) Arguments advanced, (e) Decision of the Court, (f) Ratio of the case, and (g) Comments on the decision. Recommended Readings : 8 a 10. i. 12. K.V. Krishnaswamy Iyer, Professional Conduct and Advocacy, Oxford University Press. 2. Dr, Kailash Rai, Legal Ethics Accountancy for Lawyers and Bench = Bar Relations Central Law . Publications, Allahabad, 2015. B.R. Aggarwala, Supreme Court Practice and Procedure, Eastern Book Co. P. Ramanath Iyer, Advocate his Mind and Art, Wadhwa Nagpur, 2003. Dr. $.P.Gupta, Professional Ethics, Accountancy for Lawyers and Bench-Bar Relations, Central Law Agency, Allahabad, 2004. : : MP. Jain, Outline of Indian Legal History, Chapter : Development of Legal Profession, LexisNexis, 2014, MR. Mallick, The Advocates Act, 1961 with Professional Ethics, Advocacy, and BarBench Relationship. Kamal Law House, Calcutta, 2000. ‘Dr B Malik, The Art of a Lawyer The University Book Agency; Allahabad, 1999. - Raju Ramachancran: Professional Ethics for Lawyers, Changing Profession, Changing Ethics, LexisNexis, 2004. Saadiya Suleman, Professional Ethics & Advertising by Lawyers, Universal Law Publishing, New Delhi, 2014; 4 M.K. Gandhi, The Law and the Lawyers, Navjeevan Publication, Ahemadabad. “ Law Commission of India, Report No.274 on Review of the Contempt of Courts Act, 1971, April 2018.‘PROFESSIONALETHICS AND CONTEMPT OF COURTLAW Prof. Pathan’s _S.P. Law Classes, Pune. Page 7 (Glass) 25510256, (Res) 26333908. EXAMINATION PATTERN FOR B.A. LL.B., B.B.A. ‘LL.B. and LL.B. Courses 1. - University Written Examination (80 Marks) : (1). Thete shall be University written examination of 80 marks for each subject at the end of each semester of B.A. LL.B.,B.B.A. LL.B. and LL.B. courses. : (2) There shall not be University written examination for Practical Training Paper IV - Moot Court Exercise and Internship. . ‘ (3) . The University, while conducting a written examination of any subject, may provide a same question paper for the students of B.A. LL.B., B.B.A. LL:B. and LL.B. courses if the concerned subject is common to those courses having same syllabus. Question Paper Pattern for University Written Examination (80 Marks) : The question paper for University writteri examination of each subject, except for Practical Training Papert IV - Moot Court Exercise and Internship, shall be as under : (1) Part A Questions (45 marks) : Part A of question paper shall consist of essay type questions or questions of critical comments depending on the nature of subject. A student has to answer the questions with critical evaluation. ‘There shall be five questions and the student has to answer any three questions. Each question shall be for 15 marks. (2) Part B Questions (20 marks) : Part B of question paper shall consist of short essay type questions depending on the nature of. subject. A student has to answer the questions explaining concepts with illustrations. There shail be four questions and the student has to answer any two questions. Each question shall be for 10 marks. (3) Part C Questions (15 marks) : Part C of question paper shall consist of short answer questions ‘or solving of hypothetical problems, ete. There shall be five questions and the student has to ans Each question shall be for 5 marks. = Note; The question paper pattern given herein inay be changed or altered depending on the nature of subject e-g. non-law subjects. The question paper pattern given herein may also be changed or altered by the University at any time without prior information to the students. 3. Infernal Assessment by College (20 Marks) : (1): The division-of 20 marks for each subject, except for practical training subjects, for internal assessment shall be as under: \ (a) Written Submissions : #10 marks. (b) . Class Performance : 1 marks ver aily three questions.PROFESSIONAL ETHICS AND CONTEMPT OF COURTLAW | Prof. Pathan’s _ S.P. Law Classes, Pune. Page :7-' ‘@ (Class) 25510256, (Res) 26333908. 1 MODULE - 01 HISTORY OF LEGAL PROFESSION IN INDIA. (1) Discuss the development of the legal profession in the Mayor’s Courts. (2) Discuss the development of legal profession in company’s courts. (3) - Discuss the growth of the Legal Profession from 1793 to the Legal Practitioner's Act of 1846. (4) _ Describe the main features of the legal profession established in 1793 and trace its growth till 1846. (5) Describe the development of legal profession in India. (6) Givereasons for the establishment of the legal profession by the company’s government, and its gradual Indianisation. (1) Trace the development of Legal profession in India. (8) Trace the evolution of the Indian Legal profession from 1846 to 1961. (9) Writea detail note on the evolution of the Indian Legal Profession from 1846 to 1961. 1. LEGALPROFESSIONIN INDIA IN ANCIENT AND MEDIEVALPERIOD The Legal Profession is an important limb of the machinery for the administration of justice. Without a well-organized profession of law, the courts would not be in a position to administer justice effectively as the evidence'in favour or against the parties to a suit cannot be properly marshaled, facts cannot be properly articulated and the best legal arguments in support or against the case of the parties cannot be put forth before the couirt. “A well-organized system of judicial administration postulates a properly equipped and efficient Bar.” Itis, therefore, in the fitness of things to take note briefly of the development of the legal profession in ” The legal profession in Pre-British India was not as organized as today. Actually, the legal profession as it exists today was created and developed during the British period. During the Hindu period the Courts derived their authority from the king. The king was considered the fountain-head of justice. The King’s Court was superior to all other courts. The King’s ‘Court was the highest court of appeal. It had original jurisdiction in important cases. The King was advised by his Councillor in hearing and deciding the cases. However, the King was not bound by their advice. The King, thus, made law through their decisions. The institution of lawyer as it exists today was notin existence during this period. ‘The general principle was that the decision should not be given by.aperson singly and therefore a Bench of two judges was always preferred. ‘The plaintiff was required to present the plaint before the court and thereafter; the court could direct the defendant to stibmit his reply. Thereafter, the court was required to investigate the matter and deliver its judgment. The Courts delivered judgment on the facts of the evidence gathered from various sources, e.g., witnesses documents, etc. Ordeal was also recognized as means of proof. In determining the punishment the relevant circumstances were taken into consideration: Thus, in determining the punishment, nature of the offence, time and place, notice ofthe offender, age, strength, ete: were taken into consideration. Even during the Muslim period, the legal profession was not organized. The King was. regarded as fountain of justice. He was regarded as servant of the God on the earth and his duty was to see thatPROFFSSIONAL ETHICSAND CONTEMPT OF COURTLAW Prof. Pathan’s , SP. Law Classes, Pune. Page: 8G (Class) 25510256, (Res) 26333908. his laws were obeyed. It was the pritnary duty of the King to administer justice. He could discharge his duties personally or through his officers. The King was the chief judge of the Emperor aiid keeper of the Gods conscience. The Courts were to be guided by Quran, Sunna, Ijina, etc. The law of evidence was not satisfactory. The evidence of Mohammmedan was given more. weight than that of a Hindu. A Muslim could not be convicted for the offence of a murder on the evidence of a non-Muslim. The evidence of a female was considered inferior to that of amale. ‘Thus, before the British period, the legal profession was not organized. There was no provision for the legal training. Before the rise of the-British power in India the administration of justice in Northern India was in the hand of courts established by the Moghul Emperors or ruling Chiefs owing allegiance-to them. In addition, the big’ zamindars also had courts exercising civil and criminal jurisdiction. There existed a class of persoris called Vakils. They acted moré as agents for principles thanas lawyerro 2; CHANGES UNDERWENT IN LEGAL PROFESSION DURING BRITISH RULE 1). Introduction:- « ‘The history of the legal profession in India tan be traced back to the establishment of the First British Court in Bombay in 1672 by Governor Aungier. The admission of attorneys was placed in the hands of the Govemor-in-Council and not with the Court. Prior to the establishment of the Mayor's Courts in 1726 in Madras and Calcutta, there were no legal practitioners. The Legal Profession is an important limb of the machinery for administration of justice. The Court would not be in a position to administer justice effectively without a well-organised profession of law. An advocate properly appieciated evidence and fact and put forth before the Court. A.well- organised system of judicial administration requires a properly equipped and efficient Bar. 2). Mayor’s Court :— ‘ ‘The Charter‘of 1726, which established the Mayor's Courts at the three Presidency Towns, did not contain any specific provision as to any particular qualifications for the persons who would be entitled to act or plead as legal practitioners in these Courts. It was left these Courts to regulate this ‘matter by rules of practice, which these Courts were authorized to frame. No change was effected in this position when a fresh Charter was issued in 1753. There was no organised legal profession came into being in the Presidency Towns during the period of the Mayor's Courts. Those who practiced Jaw ‘were not having any legal training or any knowledge of law. It was seen that quite few Company's dismissed servant were acting as alawyer. 3)» Supreme Courts:- ‘The first real step in the direction of organizing a legal profession in India was taken in 1774, when the Supreme Court was established at Calcutta. ‘The Regulating Act, 1773, empowered the Supreme Court to frame rules of procedute as it thought necessary for the administration’ of justice and due execution of its powers, The Supreme Court was empowered ‘to approve, admit and enroll such and so many Advocates and Attorneys-at-law’ , as to the Court ‘shall seem meet,’ ‘Attorneys of Record’ were to bé authorized ‘to appeat and plead, and act for the suitors’ in the Supreme Coyjt. The Court was to have power to remove any Advocate or Attorney “on a reasonable cause:’ No otherPROFESSIONAL ETHICS AND CONTEMPL OF COURTLAW [Prof Pathan’s S.P. Law Classes, Pune. Page : 9 ‘B® (Class) 25510256, (Res), 26333908. person whatsoever, but Advocates or Attorneys so admitted and enrolled, were to ‘be allowed-to appear and plead, or act’ in the Court ‘for or on behalf of such suitors’. Thus the persons entitled to practise before the Supreme Court could be Advocates and Atoinieys. The term ‘Advocate’ at the time exterided only to the English and the Irish barristers and the members of the faculty of Advocates in Scotland. ‘The Charter prohibited any other person whatsoever to appear and plead or act; it would appear that the Calcutta Supreme Court was, from its very beginning, a completely exclusive preserve for members of the British legal profession, namely, the British Barristers. Advocates and Attorneys.-The native Indian legal practitioner had no entry in this Court. The Chiarter of 1774 introduced the British systern of legal practice in Calcutta. . Similar position obtained in the two other Supreme Courts at Bombay and Madras. Thus, in the three Supreme Courts the only persons who were entitled to practise were the British Bairisters, Advocates and Attomeys. The Indians ha¢ no right to appear before these Courts. This continued to be the position all through the existence of these Courts, : . The Supreme Court at Calcutta could admit Advocates and Attomeys who could ‘appear, plead and ait for the suitors of the Court’. But the Supreme Court provided for the Advocates and Auomeys to exercise the ordinary powers of their respective professions - Advocates having power to appear and plead and Attorneys to appear and act, for the suitors. Similar was the position in other Supreme Courts aswell. Thus, the two grades of legal practice became distinct and separate as they'were in England. 4) Company’s‘Adalats:- G Lord Cornwallis introduced three judicial reforms, civil reform of 1787, criminal reform of 1790 and civil reform of 1793. The Bengal Regulation VII of 1793 provides that the Vakils were by and large ignorant of the law and were subject to harassment and extortion from the ministerial officers * of the Courts. The professional Vakils charged excessive fees. Regulation VII called itself one ‘for the appointment of Vakils or native pleaders i'the courts of civil judicatute in the Provinces of Bengal, Bihar and Orissa.’ The Regulation stated in its preamble the objects of its enactment as follows~ It is therefore indispensably necessary for enabling the Courts duly to administer and the s to obtain justice, that the pleading of causes should be made a distinct profession; and that no jould be admitted to plead in the Courts but men of.character and education versed in the Mohammedan or Hindu Law, and int the Regulations passed by the British Government; and that they should be subjected to rules and restrictions calculated to securé to their clients adiligent and faithful discharge of trusts. z : ‘The Regulation thus laid emphasis on the useful role, which a sound legal profession’can play in the administration of justice. Thé Regulation was enacted with a view to strengthen thé legal profession in the best interests of the litigant public, the members of the Bar serving as trustees of their clients and thus helping in the sound administration of justice. The Regulation created for the first time a regular legal profession for the Company's Adalats. The Regulation brought some order and a measure of quality to pleading and sought to establish practice of law as aregular profession. It empowered the Sadar Diwani Adalat to entoll from time to time as many pleaders as it thought necessary for all Company’s ..dalats and to fix the retaining fee for pleaders and also a scale of professional fee based on a percentage of the value of the property.-He cotild not demand or accept any fee, goods,PROFESSIONALETHICS AND CONTEMPT OF COURTLAW (Prof. Pathan’s _S.P. Law Classes, Pune. Page : 10, “H (Class) 25510256, (Res) 26333908. | effects or valuable consideration from his clients over and above the sanctioned fees. The ultimate Punishment for such a violation was dismissal of the lawyer. The fees ofthe pleaders were payable only after the decision, and not before, the Court being practically the paymaster, ‘An interesting provision made was that after a party retained a pleader, he was to execute a vakalatnama constituting him pleader in the cause and authorizing him to prosecute or defend the matter aid binding himself to abide by and confirm all acts which such pleadet might do or undertake inhis behalf in the cause, in the same manner as if he has been personally present and consenting. This provision is the genesis of the modern vakalatnama ‘Anextraordinary feature of this Regulation was that only Hindus and Muslims could be enrolled as pleaders. Persons for the purpose were to be selected ‘from amongst the students of the Mohammedan College at Calcutta and the Hindu College at Banaras.’ The Courts exercised several disciplinary powers over the Vakils. A pleader showing disrespect to the Court in open court could be fined up to one hundred rupees by ‘the court. The Court could suspend a pleader if convicted of encouraging litigious suits, frauds, or gross misbehaviours. Further action against the lawyer could be taken by the Sadar Adalat : A Vakil found to charge mote fee than authorised by the Regiilation could be dismissed by the Sadar Adalat. From time to time several other Regulations were passed to regulate the legal profession in the Company's adalats in Bengal, Bihar and Orissa. Regulation XXVilof 1814, passed on 29" November 1814, which consolidated the law on the subject. The purpose of the Regulation was that the Sadar Diwani Adalat was vested with all the power of appointment of Vakil and pleaders. The rule concerning fees, practice were formulated in detail. Preference for enrolment of Vakil was to be given to candidates educated in any of the Mohammedan or Hindu Colleges established or supported by the Government: The power of dismissing Vakils was vested in the Sadar Diwani Adalat as well as the Provincial Court, and a Zillah ard City Court could suspend a Vakil. Regulation V of 1831 prescribed that Vakils need not be Hindu or Mohammedan, but could be persons belonging to any religion. Bengal Regulation XI of 1833 niodified the provisions of the earlier Regulations regarding selection, appointment and remuneration of pleaders. The Regulation permitted any qualified person of whatever nationality or religion to be enrolled as a pleader of the ‘Sadar Diwani Adalat. The parties were also given freedom to settle with the pleaders any fees for their professional services. Similar provisions came to be made in course of time in the Provinces of, Madras and Bombay. ‘A farther consolidation of the Regulations relating to legal practitioners was effected by Regulation I of 1827, which repealed all the previous Regulations on the subject. This regulation went much further than the Bengal Regulations; e.g., every person duly qualified was entitled to get a sanad to practisé without any reference to his religious faith; there was to be no restiiction on the number of pleader’s who were (> be admitted to practise in a court and henceforth any qualified person of good character was entitle¢: to a sanad of practice. For the first time since 1793, the principle of freedom of contract between the Vakil and the client was recognised and a lawyer could agree with his, client for a larger or a smaller fee than the established fee.PROFESSIONALETHICSAND CONTEMPTOF COURFLAW Prof. Pathan’s _S.P. Law Classes, Pune. Page nh "_@ (Class) 25510256, (Res) 26333908. ‘The Legal Practitioners Act, 1846 which was the first All-India law concerning the pleaders in the mofussil, made several important changes, namely - (1). The office of the‘pleader in the courts of the Company was thrown open to all persons of whatever nation or religion provided he was duly certified to be of good character and duly qualified for the office. Thus, religious test was abolished for enrolment as a Pleader. (2). Every Barrister enrolled in any of Her Majesty’s Courts in India was made eligible to plead in the Sadar Adalats subject to the rules of those Courts applicable to pleaders as regards language or any other matter. (3) Vakils were allowed freedom to enter into agreement with their clients for their fees for professional services. This Act is regarded as the ‘first charter of the legal profession’ although it left unsolved the important question of the right of Vakils to practise in the Supreme Courts. ‘The Legal Practitioners Act, 1853, declared every Attorney on theroll of any of Her Majesty’s Supreme Céurts to be entitled to plead in any of the Company’s Sadar Adalats. The Barristers and Attomeys of the Supreme Courts were permitted to plead in the Company’s adalats.as well. Thus, while Barristers and Attorneys were permitted to practise in the Company’s adalats, the indigenous Indian legal practitioners Were rigorously kept out of the three Supreme Coutts. The reason was that the authorities held a poor opinion of the native lawyers and it was thought that appearance of English Barristers in the Company's adalats would improve the situation. 5) ° Pleader, Mukhtar, and Revenue Agents Act, 1865— : For long there functioned non-licensed inferior grades of practitioners in the mofussil, known as Mukhtars, who practised in criminal courts as well as acted as solicitors for the pleaders: There - also functioned revenue agents in revenue offices. All these were recognized and brought under control of the courts for the first time through the Pleader, Mukhtar, and Revenue Agents Act, 1865. The High Courts were authorised to make rules-for the qualifications, admission, and enrolment of proper persons to be Pleaders and Mukhtars, for the fees to be paid for the examination, admission and enrolment of such persons, ard for the suspension and dismissal of Pleaders and Mukhtars so admitted and enrolled. Revenue agents who worked in the revenue offices and Courts were also given status as legal practitioners by this Act. They were deemed to be the lowiest in grade and did not play a significant part in the development of the legal profession. HIGHCOURTS In 1861, legislation was passed by British Parliament to establish Higit Courts at Calcutta, Maairas and Bombay. At this time, there were in existence three bodies of practitioners in the Supreme Couris and the Sadar Adalats - Advocates, Attorneys and Vakils. The Letters Patent of 1865 of the High Court of Calcutta empowered the Court ‘to approve, admit and enroll such and so many Advocates, Vakils and Attorneys as to the said High Court shall seem meet’. These persons were ‘authorized to appear for the suitors of the High Court, and to plead or to act, or to plead and act for the said stitors, according as the High Court may by its rules and directions determine, and subject to such rules and directions.” Similar provisions were made in the Charters of the High Courts of Bombay and Madras._PROFESSIONALETHICS AND CONTEMPT OF COURTLAW Prof. Pathan’s _S.P. Law Classes, Pune. Page : 12, “H_(Class) 25510256, (Res) 26333908. The admission of Vakils to practise before these High Courts put an end to the monopoly, which the Barristers had énjoyed, in the Supreme Courts preceding the High Courts. This very much increased the practice and prestige of the Indian lawyers by giving them opportunities and privileges | equal to those enjoyed for many years by the British lawyers. ‘According to the rules framed by the Charter High Court, speaking broadly, there were three categorie’ of legal practitioners: Attomeys, Advocates and Vakils. Advocates were mainly the Barristers of England or Ireland or the members of the Faculty of Advocates of Scotland. The Vakils were the Indian practitioners. . ‘To begin with, on the Original Side of the High Courts only Advocates were entitled to appear and plead, on instruction of Attorneys. On the original side of the High Court, Solicitors and Advocates remained distinct. This differentiation in the functions of legal practitioners was continued under the notion that the High Courts, in the exercise of its Ordinary Original Jurisdiction, was the successor of the Supreme Couit, On the other hand, the Advocates were entitled both to act and plead on the Appellate Side of the High Court and its subordinate courts. This was because of the feeling that the High Court, on its, appellate ‘side, inherited the jurisdiction and powers of the Sadar Adalats. Because of these distinctions, the Vakils were not allowed to actor plead on the Original Side, but they could both act and plead on the Appellate Side. : Within-a short time, the Madras High Court altered its rules. As early as 1866, this Court peimitted Vakils admitted under the fules of 1863 and Attomeys to appear, plead and act for suitors on the Original Side. The résult, therefore, was that in the Madras High Court there remained rio distinction between Barristers, ‘Vakils and Attorneys as regards their right to appear and plead on the Original Side. Under the new rulés, while the Vakils and Attorneys could also act on the Original Side, the Advocates had to be instructed by an Attorney. ‘The Original Side of the Bombay High Court was initially a close preserve of the Barristers as Barristers.alone could be enrolled as Advocates entitled to appear and plead on the Original Side on the instruction of an Attorney. The Vakils were not originally perm’ ‘ed to act or plead on the Original Side. This position, however, was relaxed in course of time and a non-Bartister, on passing an examination conducted by the High Court, became eligible for enrolment as an Advocate entitled to appear and plead on the Original Side. The only limitation was that the Advocates of the Original Side, whether Barristers or non-Barristers, had to be instructed by an Attorney before they could appear and. plead, ‘The Vakils of the Calcutta High-Court were not entitled to.act or plead on the Original Side or in appeais from the Original Side. The High Court maintained this distinction right up to the year 1932. ‘THE LEGALPRACTITIONERS ACT, 1879 : The Act of 1879, was enacted to consolidate and amend the law relating to legal practitioners in the Mofussil. The Act repealed the Pleaders, Mukhtars and Revenue Agents Act, 1865. Atthis time, there were six grades of practitioners functioning in India: Advocates, Solicitors (Attorneys), and Vakils of the High Court: Pleaders, mukhtars and revenué agents in the lower courts. The High Courts Jaid down standards for admission of Vakils to practice in the High Court; for Zilla Courts, standards were laid down in the Regulations, which were lower for Pleadérs than the High Court Vakils. Thus, Vakils became a distinct grade above the Pleader.5 7 ‘PROFESSIONAL ETHICSAND CONTEMPT OF COURTLAW: Prof. Pathan’s SP. Law Classes, Pune. Page : 13 ‘@_ (Class) 35510256, (Res) 26333908. The Legal Practitioners Act, 1879, brought all the six grades of legal practitioners into one system under the jurisdiction of the High Courts. The Act empowered an Advocate or a Vakil on the roll of any High Court to practice in his own High’Court, in all the courts subordinate there to, in any court in British India other than'a High Court on whose roll he was not entered, or with the permission of the court in any High Court on whose roll he was not entered. This Act conferred power on the High Court to make rules, with the previous sanction of the Provincial Government, to prescribe the qualifications, admission and certificates of proper persons tobe Pleaders and Mukhtars of the High Court as well as of the subordinate courts, and for suspension and dismissal of these persons. But'a Chartered High Court could make suich rules for Pledders and Mukhtars of subordinate courts without the approval of the Provincial Government concemed. Under the rules framed by the High Courts under the Legal Practitioners Act, law graduates who did not - possess the additional qualification to enable them to be enrolled qs the High Court Vakils, and on- law graduates after passing the pleaders examination conducted by the High Court, were enrolled as Pleadets to practice before subordinate courts. These Pleaders could not practice before the High Court unless after a certain number of years’ practice they enrolled themselves as High Court Vakils. In some Provinces, there were Pleaders of several grades, e.g. first, second or even third grades. In course of time, the High Courts framed rules u/s. 6 of the Act permittifig only those who had taken an LL'B. degree from an Indian University to énroll as Vakils. Besides the Pleaders, there were Mukhtars who after passing the Matriculation or equivalent examination passed the Mukhtarship examination held by the High Court, Thé Mukhtars pleaded mainly before the criminal courts, The Revenue Agents were to be regulated by Rules made by the Chief Controlling Revenue Authority. The legal profession in India thus presented a very confused picture. ‘The Pleaders and Mukhtars of the High of the High Courts (except the Attorneys), and of those of the subordinate courts, were subject to the disciplinary jurisdiction of the High Court under the Act. The Attorneys of the three High Courts as officers of the court were, in matters of discipliriey dealt with by the High Courts under their Letters Patent. ‘Legal Practitioners Act, 1884 - ‘ The power to make rules regarding Advocates of the High Court was also conferred on the non-chartered High Courts by the Legal Practitioners Act, 1884, Such a High Court could make rlles, with the previous sanction of the Provincial Government, as to the qualifications and admission of proper persons to be Advocates of the Court, and subject to such rules could enroll so many Advocates a8 it thought fit. The High Court could dismiss any Advocate or suspend him from practice after giving him an opportunity of defending himself: but such an order neéded the confirmation of the Provincial Government. . The Calcutta High Court held that women were not entitled to be enrolled as Vakils or Pleaders of Courts subordinate to the High Court. A similar case came before the Patna High Court. Miss. Hazafa secured a B.L. Degree of the Calcutta University, She was refused enrolments a Pleader. She challenged this in the High Court of Patna. The Court ruled that the sections of the Legal Practitioners” Act referred to maies and not to feriales. This was to be expected as since 1793 no woman had ever been admitted to the roll of pleaders.[PROFESSIONAL ETHICS AND CONTHMIFT OFCOURTLAWY . Prof. Pathan’s _ S.P. Law Classes, Pune. Page : 14 “H (Class) 25510256, (Res) 26333908. Legal Practitioners (Women) Act, 1923 - To remove doubts about the eligibility of women to be enrolled and to practice as legal: practitioners, the Legal Practitioners (Women) Act, 1923, was enacted to expressly provide that no woman would by reason only of hér sex be disqualified from being admitted or enrolled as a legal practitioner or from practicing as stich. Since this enactment, women began getting enrolled as legal "practitioners and their number has been increasing ever since. INDIANBAR COMMITTEE, 1923 (CHAMIER COMMITTEE) The object of this Committee was to remove the distinction as to practice by Barrister and the Vakil. The Barristers of England occupied a prominent position in the legal profession bedause only. barrister could practice on the original side of the Calcutta High Court and Vakils were treated as somewhat inferior to the Barristers. The Vakils started demanding that all distinctions between them and the Barristers be removed ‘and also demanded for creating an All India Bar in the country. The Indian Bar Committee considered the vital question of removing distinction existing at that time: between Barristers, Advocates, Attorneys and Vakils, The Committee made some suggestions towards. _ reducing distinction between Vakils and Advocate to achieve unification of grades of practitioners. The Committee made following proposals = (1) that inall High Courts, a single grade of practitioners entitled to plead, to be called Advocates (not Barristers), should be enrolled, and that the grade of High Court Vakils or Pleaders be. abolished; (2). that when special conditions ae maintained for admission to plead on the Original Side of a High Court, the only distinction should be within that grade which should consist of Advocates : entitled to appear on the Original Side and Advocates not so entitled; (3) _ that Vakils fulfilling certain conditions be admitted to practice on the original side; (4). ~ that in future one-third of the High Court Judges rieed not necessarily be Barristers; and (5) that Advocates of one High Court should be entitled to practice in another High Court subject to the conditions to be imposed by the Bar Council of the latter court, or by the Court where there is no Bar Council. The Committee suggested that Bar Council should be constituted for each High Court. But immediately such Bar Councils were to be established for a few and not all High Courts. The Bar. Council should have power to enquire into matters calling for disciplinary action against lawyer; but that the existing disciplinary jurisdiction of the High Court should be maintained. The High Court should be bound before taking disciplinary action against an advocate to refer the case to the Bar Council for inquiry and report. On receipt of the report from the Bar Council, the Court could either accept the report-or hold a iresh inquiry itself or require the Council to make further inquiry. The disciplinary powers of the Bar Council were to extend only to the Advocates practicing in the High Court and not to the pleaders practicing in the lower Courts: ‘The Committee proposed that Bar Council should have power to make rulés subject to the approval of the High Court concerned in respect of such matters as under - () the qualifications, admission, and certificates of proper persons to be Advocates of the High Court; ‘ Gi) © Jegal education;f PRonrsstowt ETHicSANn CONTEMPT OF COURTLAW [Prof Pathan’s _S.P. Law Classes, Pune, Page : 15 @ (Class) 25510256, (Res) 26333908. |” (ii) matters relating to discipline and professional conduct of Advocates etc.; (iv) _ the term on which Advocates of another High Coutt could appear occasionally in the High Court to which the Bar Council is attached; (v) any other matter prescribed by the High Court. ‘THE INDIAN BAR COUNCILS ACT, 1926 Qtn."The Bar Council’s Act of 1926 was an important step towards creating an Autonomous Legal Profession”. Discuss. To give affect to the recommendations of the Chamier Committee to some extent, the Central Legislature enacted the Indian Bar Councils Act, 1926. The object of the Act- (1) to provide for the constitution and incorporation of Bar Councils for certain Courts in British India; (2). * toconfer powers and impose duties on such Bar Councils, and (3) toconsolidate and amend the law relating to legal practitioners entitled to practice in such Courts. The purpose of the Act thus was to unify the various grades of legal practitioners and to provide some measure of self-government to the Bars attached to the various Courts. “The Act extended to the whole of British India, but it was applied immediately only to the High Courts of Calcutta, Madras, Bombay, Allahabad and Patna, The Act could be applied to such other’ High Court as the Governor-General in Council may, by notification in the Official Gazeite, declare to be High Court, to which the Act applied. ‘This Act dealt with the constitution and inconporation of Bar Council asa body corporate and its Powers of making bye-laws. There was to be Bar Couricil for each High Court, A Bar Council was to consist of 15 members as follows - (1) Advocate-General; (2) fourpersons nominated by the High Court, of whom notmoré than two could be the Judges of that Court; (3) _ tenmembers elected by the advocates of the High Court from amongst themselves. ‘ABar Council was to elect a Chairman and a Vice-Chairman but in Madras, Calcutta and Bombay, the Advocate-General was to be ex-officio Chairman of the Bar Council. A BarCounei coud, with the previous consentof the High Courtmakerules of sich haters as- (1) « thexights and Guties of the Advocates of the High Court and their discipline and professional conduct; (2) _ the giving of facilities for legal’ education and training and the holding and examinations by the Bar Council. ‘The Actalso achieved some unification of the Bar by eliminating the two grades of practitioners, the Vakils and the Pleaders by merging them in the class of Advocates who were ‘entitled as of right to practice’ in the High Court in which they were enrolled and in any other Court ir British India, subject to some exceptions. S. 8 provided that no person was to be entitled to practice in the High Court, unless his name was entered in the roll of the Advocates of the High Court and maintained under this Act. The Attorneys nduct of,-PROFESSIONALETHICS AND CONTEMPT OF COURTLAW Prof, Pathan’s _S.P. Law Classes, Pune, Page + 16 ‘@_ (Class) 25510256, (Res) 26333908. of the High Court, however, were not to be entered if this roll: The High Court was to prepare and maintain a role of Advocates of the High Court. A copy thereof was to be sent to the Bar Council. The High Court was to communicate any changes in the roll to the Bar Council. ‘The application for enrolment as an Advocate was to be made to the High Court. The duties of the Bar Council were to decide all matters concerning legal education, qualifications for enrolment, discipline and control of the profession, The Bar Council was authorised, with the previous Sanction of the High Court, to make rules to regulate the admission of persons as Advocates of the High Court. The rules had to provide for such matters as - the qualifications to be possessed by persons for admission as Advocates; the ~ giving of notice by the High Court to the Bar Council of all such applications; and hearing by the High Court of any objection preferred on behalf of the Bar Council to the admission of any applicant; and the formand manner in which the roll of Advocates was to be maintained. The certificates of enrolment to persons who were admitted as Advocates were to be issued by the Bar Council. ~ AHigh Court was authorised to reprimand, suspend or remove from practice any Advocate of the High Court whom it found guilty of professional or other misconduct. The High Court was enjoined, upon any complaint being made to it by any court or the Bar Council, or by any other person, against any Advocate for misconduct, to refer the case for enquiry to the Bar Council, or after consultation with the Bar Council to the couirt of a District Judge, unless it suramarily rejected the complaint. The High Court was empdwered, of its own motion, to refer any case in which it had otherwise reason to believe that any such Advocate had been guilty of misconduct. The inquiry was to be Gonductéd not by the whole Bar Council but by a conimittee of the Bar Council to be called the Tribunal. The Tribunal was to consist of between 3 to 5 members of the Bat Council appointed for the purpose of the inquiry by the Chief Justice of the High Court. The High Court was to make rules to prescribe the procedure ta be followed by thie Tribunal. The Tribunal was to report its conclusion to the High Court. The High Court could accept or reject the tribunal findings or could ask the ‘Tribunal to reconsider the matter Conclusion - : ; : ‘The power to enroll Advocates continued to remain in the High Courts and the function of the “Bar Councils was merély advisory. The Bar Councils weré not given any substantial authority or an auténomous status. The rules to be made by a Bar Council were subject to the approval of the High Court. The High Court had effective disciplinary power over the Advocates, the role of the Bar Council being inerely advisory. A Bar Council could inquire into a complaint of professional misconduct only when the matter was referred to it by the High Coutt and everrthen the findings of the Bar Council were not binding on the High Court. 3. DEVELOPMENT ‘OF LEGAL PROFESSION IN INDIA AFTER INDEPENDENCE ALL INDIA BAR COMMITTE 951 Introduction:- ; . : Justice $.R. Das of Supreme Court headed this Committee. This committee's reportis landmark in the history of legal profession. Its recommendations fulfilléd the demands of lawyers who wanted “it for years together. Following are the miain proposals made by the committee. In place of the existingSSIONAL ETHICSAND CONTEMPE Or COURTLAW Prof. Pathan’s __S.P. Law Classes, Pune. Page’: 17 ‘@ (Class) 25510256, (Res) 26333908. hierarchy of different grade of legal practitioners in different Courts, with different educational qualificationis etc. there was need of unified Bar consisting of single type of practitioners to be-called as Advocates. : . The legal profession should be given an all India Organisation by constituting an All India Bar Council in addition to the State Bar Councils, ; ‘There was thus a wide-spread demand for establishing an all-India Bar. In this situation, the Government of India took the view that, in the changed circumstances, it was necessaty for it to sponsor a Bill for setting up an all-India Bar Council. Accordingly, in 1951, the Government of India Constitutéd a Committee under the Chairmanship of Justice S.R:Das of the Supreme Courtto éxamine and report on = (a) “The desirability and feasibility of a cmpletely unified Bar for the whole of India: (b) The continuance or abolition of the dual system of counsel and solicitor (or agent) which obtains in the Supreme Court and in the High Courts at Bombay and Calcutta: (c) ~ The continuance or abolition of different classés of legal practitioners, like Advocates of the Supreme Court, Advecates of the various High Courts, District Court Pleaders, Mukhtars (entitled to practice in criminal courts only), revenue agents, income-tax practitioners, etc.; (@) The desirability or feasibility of establishing a single Bar Council : (i... forthe whole of India, or (ii) foreach State: : (©) The establishment of a separate Bar Council for the Supreme Court; (8) The consolidation and revision of the various enactments (Central as well as State) relating to legal practitioners; and ; () ~ Allother connected matters. ‘The Committee reported in 1953 and recommended the creation of a unified national Bar. The Committee recommended that all grades of legal practitioners be abolished and that one integrated and autonomous all-India Bar be formed. There should be a commsnroll of Advocates who would be entitled to practite in all courts in the country. The Committee accordingly suggested compilation and maintenance of one comprehensive common roll of Advocates. . The establishment of a unified All-India Bar necessarily would require the prescription of a minimum qualification to be possessed by the,Advocates. The Committee suggested that the uniform minimum qualification for admission to the roll of Advocates should be a law degree from a University obtained after at least a two-year study of law after graduation. Astegards new entrants, a candidate having the minimum qualification may apply for enrolment as an Advocate to any State Bar Council Onhis name being entered in the register of Advocates of the State, his name-would also be entered in the common roll of Advocates maintained by the All-India Bar Council. ‘The Committee was of the view that different classes of legall practitioners be abolished. The Committee also recommended the creation of an All-India Bar Council and State Bar Councils. The Committee suggested that in the interests of an autonomous national Bar, the power of enrolment, suspension and removal of Advocates be vested in the Bar Councils. The Committee did not feel the need for a separate Bar Council for the Supreme Court. Every Advocate on the common roll to be * maintained by the All-India Bar Council would be entitled as of right to practice in the Supreme Court and be amenable to the jurisdiction of the appropriate State Bar Council and of the All-India Bat CouneilPROFESSIONAL ETHICS AND CONTEMPTOF COURTLAN Prof. Pathan’s _ S.P. Law Classes, Pune. Page +18 @ (Class) 25510256, (Res) 26333908. | LAW COMMISSION REPORT - 1958, : ‘The report of All India Bar Committee, 1951 was not acted upon for a long time by the Government. The Commission of India in its yah report of 1958:again recommended establishment of unified All India Bar and preparation of a common role of Advocates with right to practice in all the Courts. The Commission fully agreed the recommendation of the Bar Committee, 1951. The Commission also emphasised the principle of autonomy of the Bar and therefore the Bar Council ought to.be entirely autonomous bodies consisting only of the miembers.af the profession. ‘The Bar Council would elect their own Chairman. The Law Commission expressed the hope that a unified Ba ‘would bring into existence and influence biotherhood of highly educated persons associated together, ina common profession with common interest and common ideas. j THE ADVOCATESACT, 1961 (1). Discuss the provisions of The Advocates’ Act 1961 with reference to the amendment in the law relating to legal practitioners. . (2) Elaborate upon the background of the enactment of Advocates Actin 1961 (3) Explain the provisions of Advocate’s Act, 1961. 3 (4) Discuss the nature of Bar Council of India and its functions. In 1961, Parliament enacted the Advocates Act to amend and consolidate the law relating to legal practitioners, and to provide for the constitution of Staté Bar Councils and an All-India Bar ‘Council. The Advocates Act implements the recommendation of the Bar Committee and the Law Commission with some modifications. It repeals the Indian Bar Councils Act, 1926, the Legal Prattitioners Act, 1879, and,other laws ort the subject. The Act has undergone several amendments since its enactment in 1961: The Act extends to the whole of India. : ‘The Act establishes an All-India Bar Council for the first tithe. The Attorney-General of India and the Solicitor-General of India are the ex-officio members of the Bar Council of India. Besides, it has one member elected by each State Bar Council from among its members. The Council elects its own Chairman and Vice-Chairman, | Bar Council to be a body corporate, S. 5 ~ Every Bar Council shall be a body corporate, having perpetual succession, a great seal, with * power to acquire and hold property, both movable and immovable, and to contract and they may by the name by which it is known sue and be sued. oe Functions of Bar Council of India - S.7 of the Advocates provides that the function of the Bar Council of India shall be ~ (i) tolay: down.standards of professional conduct and etiquette for advocates; (ii) tolay down the procedure to be followed by it's disciplinary committee and the disciplinary + committee of each State Bar Council; (iii) | to safeguard thé rights, privileges and interests of advocates; (iv) to promote and support law reform; (v) to deal with and dispose of any matter arising under this Act which may be referred to it by. a * State Bar Council; ; (vi) toexercise general supervision and control over State Bar Council; (vii). to'promote legal ¢ducation and to lay down standards of such education in consultation with the Universities in India importing such education aiid the State Bar Councils;PROFESSIONAL ETHICS AND CONTEMPT OF COURTLAW ‘Prof. Pathan’s _ S.P.\Law Classes, Pune. Page : 19 ‘@ (Class) 25510256, (Res) 26333908. (viii), to recognize Universities whose degree in law shall be a qualification for enrollment as an advocate and for that purpose to visit and inspect Universities or cause the State Bar Councils ._tovisit and respect Universities in accotdance with such directions as it may give in this behalf; (ix) - toconduct seminars and organize talk on legal-topics by eminent jurists and publish journals and papers of legal interest; (XJ. to organize legal aid to the poor in the prescribed manner; (xi) torecognize on a reciprocal basis foreign qualifications in law obtained outside India for the purpose of admission as an advocate under this A¢ (xii) ‘to manage and invest the funds of the Bar Counc (xiii) to provide for the election of its members; (xiv) . to perform all other functions conferred on it by.or under this Act; (xv) todo alll other things necessary for discharging, the aforesaid functions. S.7-A of the Advocates Act makes it clear that the Bar Council of India may become a member of international legal bodies, such as, the International bar Association or the Interhational legal Aid Association, contribute such suims.as it thinks fit to such bodies by way of subscription or otherwise and authorize expenditure on the participation of its representatives in any international legal conference or serninar. S.7(2) of the Advocates Act provides that the Bar Council of India may constitute one or more funds in the prescribed manner for the purpose of - (@) giving financial assistance to organize welfare schemes fot indigent, disabled or other advocates; + (b).-* giving legal aid or advice in accérdance with the rules made in this behalf; i (c)~; * establishing law libraries. 2 “ ltmay receive any granis, dorations;giftsor benefactions forall orany of thé purposes specified above and such grants, donations, etc. shall be credited to the appropriate fund or funds constituted underthis-sub section, ‘The Act creates a State Bar Council in‘each State: It is an autonomous body. ‘The Advocate- General of the State is its ex-officio member, and there are 15 t0 25 elected Advocates. ‘These members are to be elected for a period of five years in accordance with the system of proportional representation by means of single transferable vote from amongst Advocates on the Roll of the State Bar Council. ‘The State Bar Council has power to elect its own Chairman. The main powers and functions of the State Bar Council are =" Qn. What are the fuirctions of State Bar Council ? ‘The functiong of a State Bar Council shalll be - (a) tadmit persons as advocates on its roll; (b)” to prepare and maintain such roll; (©) toentertain and determine cases of misconduct against advocates on its roll; (d@) to safeguard the rights, privileges and interests of advocates on its'roll; (e) © promote and support law reform; (ee) to conduict semiinars and organize talks on legal topics by eminent jurists and publish journals and papets of legal interests; . (eee) to organize legal aid to the poor in the prescribed manner; (®). tomanage and invest the funds of the Bar Council; (g) toprovide for the election.of its members; (h) to perform all 6ther functions conferred on it by or under this Act;PROFESSIONAL ETHICSAND CONTEMPT OF COURTLAW Prof, Pathan’s _S.P. Law Classes, Pune. Page ¢ 20 ‘@ (Class) 25510256, (Res) 26333908. | @ _. todo all other things necessary for discharging the aforesaid functions. 2. A State Bar Council may constitute one or more funds in the prescribed manner for the purpose - of - . BE (@).. giving financial assistance to organize welfare schemes for the indigent, disabled or other advocates; , i (>) __ giving financial assistance to organize welfare schemes for the indigent, disabled or + other advocates; 3. AState Bar Council may receive any grants, donations, gifts of benefactions for all or any of the purpose specified in sub section (2) which shall be cteated to the appfopriate fund or “funds, constituted that sub section, ‘Thus, every State Bar Council prepares and maintains a Roll of Advocates and an authenticated copy of the Roll is to be sent io the Bar Council of India. An application for Admission as an Advocate is made tothe State Bar Council within whose jurisdiction the applicant proposes to practice. A State Bar Council has an Enrolment Committee consisting of three mémbers elected by the Council from amongst its members. The Enrolment Committee has to dispose of applications for admission, Where! the Enrolment Committee proposes to refuse any such application, it has to refer the same for opinion to the Bar Council of India. . ‘The Bar Council of India regulates the content, syllabi, duration of the law degree. Subject to the provisions made by the Bar Council, each University can lay down its own provisions and regulations Concerning the law degree. To perform its functions regarding legal education itis assisted by a Legal Education Committee consisting of ten members, five being members of the Bar Council of India, and five co-opted by the Council who are not members thereof. The idea is that the co-opted members would mainly be law teachers. . The finances of the Bar Councils are essentially met out of the enrolment fees of the Advocates. ‘Twenty per cént of the fees realized are paid by each State Bar Council to,the Bar Council of India. Besides, the Bar Councils may receive donations and grants. The Bar Councils can frame rules for carrying out their functions and purposes. ‘The rules made by the State Bar Council have to be approved by the Bar Council of India. The Central Government hhas been given an overriding power of making rules on any matter. There was no such provision originally. ‘This provision was inserted in the Act in 1964. This provision has been criticized as amounting to a threat to the independence and autonomy of the Bar Councils. For instance, the Bar Council of Maharashtra objected through a strongly worded resolution on 23.3.1968, when the Central Government by making rules u/s. 49-A petmitted enrolment as Advocates of persons holding the LL.B. degree without undergoing the course of training and passing an examination as originally prescribed under the Act. : ‘The qualifications for admission as an Advocate are citizenship of India, 21 years of age, and LL.B. Degree from an Indian University, A foreign national can also be enrolled on the basis of reciprocity if an Indian citizen is permitted to practice in that country. Foreign Law Dégrees can also be recognised by the Bar Council of India for the purpose. The privilege of enrolment as an Advocate has also been extended to the earlier Vakils, Pleaders and Mukhtars and to some others under specified conditions.PROFESSIONALEETIICS AND CONTEMPTOR COUR?LAW Prof. Pathan’s _S.P. Law Classes, Pune, Page : 21 ‘@ (Class) 25510256, (Res) 26333908. ‘The Act recognises only one single class of practitioners, namely, Advocates.:An Advocate on the State roll is entitled to practice as of right before any tribunal, or authority in India, or any court including the Supreme Court, ‘AHigh Court may make rules laying down the conditions subject to which an Advocate shall be permitted to practice in the High Court and the subordinate courts. U/s. 49(1)(ah); the Bar Council of India can make rules prescribing the conditions subject to Which an Advocate shall have the right to practice, Advocates have been classified into Senior Advocates and other Advocates. An Advogatemay, «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, experience and standing at the Bar he is deserving of such distinction: Senior Advocates aré, in the matter of their practice, subject to such restrictions as the Bar Cotincil of India may, in the interests of the legal profession prescribe. ‘Thus, admission, practice, ethics, privileges, regulation, discipline and improvement of the profession are now all in the hands of the profession itself. The legal profession has achieved its long cherished object of haying a unified Bar on an All-India basis. 4. IMPACT OF GLOBALIZATION ON LEGAL PROFESSION IN INDIA New Delhi the Supreme Court held that foreign law firms and lawyers cannot practice in the country, even ast allowed “casual visits” by foreign lawyerson a fly i and flyout” basis forrendering legal advice toclients in India. In the process, a bench comprising Justices Adarsh Kumar Goel ‘and U.U.Lalit modified a Madras High Court order permitted foreign lawyers and law firms to come to India on “ly in and fly out” basis for rendering legal services here on offshore laws and diverse international legal issues. “We hold that the expression ‘fly in and fly out’ will only cover a causal visit not amounting to practice’, In case of a dispute (over) whether a foreign lawyer was limiting himself to ‘fly in and fly out’ on (a) Casual basis for the purpos¢ of giving legal advice to clients in India regarding foreigh law or thefr own system of law and on diverse international legal issues or whether in substance he was doing practice which is prohibited can be determined by the Bar Council of India (BCD,” the bench ruled. ‘The Court shi that the BCT or the central goverriment would be “at liberty to make appropriate rules in this regard iricluding extending the code of ethics being applicable” to foreign lawyers and, entitles, Referting to the Advocates Act and the Bar Council Rules, the court said, “‘ we uphiold the view of the Bombay High Court and Madras High Court in para 63 (i) of the judgment to the effect that foreign law firms/ companies or foreign lawyers cannot practice profession of law in India, either in the litigation or in non-litigation side.” ‘The Court clarified that foreign lawye#s could not be barred from coming to India for conducting arbitration proceedings in disputes involving international commercial arbitration, but added that they would be stibject tothe code of conduct applicable othe legal profession in India. Rus of instititional arbitration will apply to them, the court said. Italso modified provisions of the Advocates Act; 1961, debarring foreign lawyers completely from conducting intemational commercial arbitration in the country. Similarly, it held that BPO__ PROFESSIONAL ETIICSAND CONTEMPT OF COUR LAW 3 [Prof. Pathan’s _S.P. Law Classes; Pune. Page 222 ‘@_(Class) 25510256, (Res) 26333908. companies providing services ; and proof-reading services did hot come within the purview of the Advocates Act. The ruling came on an appeal by the Bar Council of India against the 2012 judgment of the Madras High Court. * While the ruling does not permit globalizatién of the legal sector for now, it shifts the onus on the government to do so. Lalit Bhasin, president of the Society of Indian Firms (SIF),a’ body of. corporate law firms, said, “India is committed-to open up its services sectors under World ‘Trade. Organisation (WTO), which includes law firms as well. The government ha called up from time to time’and we have made our representations as well as but now the balls in the government's court"? V.Lakshmikumaran, mariaging partner of Lakshmikumaran and Sridharan Attorneys, a law firm specializing in international trade matters, said, “ we expect that the Bar Council of India and central government will frame appropriate rules for phased entry of law firms and simultaneously ease the restrictions on domestic law. firms to provide a level playing ficld, so that the ultimate benefit percolates ‘The Madras High Court ruling of 2012 has said that there was no bar on foreign lawyers, under Indian laws and regulations, visiting India on.a““fly iti and fly out’ basis for rendering legal advice to their clients in India. It was added that foreign lawyers could not be barred from coming to India for ° conducting arbitration proceedings in disputes involving international commercial arbitration. On similar lines, the 2009 ruling of the Bombay High Court said that foreign law/firms/ companies or foreign lawyers could not practice law in India either in th litigation or non- litigation side ~ -In January, the centre told theApex.Court that the BCI should consider framing rules to open up the legal sector to foreign lawyers and law firms, failing which it would step in to assist the process. BCI, 6n its part, showed reservations to opening up the legal field to foreign players, it maintained that although it isnot averse to the idea of practice of law by foreign lawyers and firms, it should be based on reciprocity and regulated by'the Advocates Act. The “fly in fly out” policy also should be subject to the Indian regulatory framework'practice law in India, i.e., advocates admitted on the State Bar Cotincil rills.” Senior advocate C.U.Singh, appearing for BCI, had said. Itwas also BCI’s contention that arbitration must also be subject to BCI regulations, as it was the top reguilating body for legal practices in India, ‘This was opposed by Dushant Dave, counsel for London Council of Arbitration, who argued that this would result in being a dampener for commercial arbitration: He quoted examples of Indian lawyers participation in commercial arbitration proceedings in other countries like Singapore and the UK without the need to acquire any special permissions. os Arvind Datar, who represented six UK-based law firms, said as of today, there wasno regulatory mechanism under the Advocates Act, 196] to allow or disallow foreign lawyers/firms as the trend of cross-border, international commercial law had not been anticipated under it.PROFESSIONAL ETHICS AND CONTEMPTOF COURTLAW Prof. Pathan’s S.P. Law Classes, Pune. Page : 23 @ (Class) 25510256, (Res) 26333908) 9 : to MODULE - 02 NORMS OF PROFESSIONAL ETHICS AND DUTIES ‘Qin. Why there is needdind necessity to have Professional Ethics in Legal Profession? 1. NEED AND NECESSITY OF PROFESSIONALETHICS IN THE LEGALPROFESSION. Preamble to the UN Basic Principles on the Role of Lawyers “an independent legal profession is integral to upholding the rule of law. Whereas adequate protection of human rights and fundamental freedoms to which all persons are entitled, be they “economic, social and cultural, or civil and political, requires that all persons have. effective access to Tegal services provided by an independent legal profession.” : ‘Ethics are principles and values, which together with rules of conduct and laws, regulate a profession, stich as the legal profession. They act as an important guide to ensure right and proper * conduct in the daily practise of the law. Areas covered by ethical standards iriclude: + ‘Independence, honesty and integrity. . + ‘The lawyer and clienit relationship, in particular, the dutiés owed by the lawyer to his or her client. This includes matters such as client care, conflict of interest, confidentiality, dealing with clientmoney, and fees. : . The lawyer as an advocate, in particular, a Jawyer’s duties to the court. + Competence, which encompasses academic qualifications and training, and meeting other practising requirements such as holding a valid practising certificate or licence. + © Alawyer's duties to persons other than aclient. + Alawyer’s duties to other lawyers. . Advertising of legal services. + \, Human rights and access to justice. The profession of law is a great profession with serious responsibilities. It is a learned profession: The profession of a lawyer is a profession arid not a business. Why Professional ethics, two questions are primarily to be answered. 1) Why acode of ethics is necessary, 2), Why this code of legal ethics cannot be reduced into legal enactment and be made laws of conduct of lawyer. 7 Followings are the some of the reasons of nced of legal ethics - 1 ‘As justice is the great interest of men on the earth and as the lawyer is the high priest'at the shrine of justice, the quality of justice to a very great extent depends on the moral quality of the lawyer. It is on his integrity and fairness that the sanctity of administration of justice depends. 2. With the growth of complex nature of modern societies, the complexity of law also grow and with the growth of complexity of laws, the opportunities and temptation of lawyer has to depart from the path of right conduct are many. This may take him away from the right conduct, ‘Therefore there must be always ar ethical rules which vigilantly draws attention of members of the profession and prevent them from being distracted. 3. ‘The code of ethics is particularly advisable to new. cntzants into the profession. It will draw