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Accountability of Lawyers and Bar
Bench Relation
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Professional Ethics, Accountability of

Lawyers and Bar Bench Relation

Paper Code: K-3005

Semester 3rd – 2018-19

Submitted to:

Submitted by:
 

Related titlesIndex:

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Sr. No. Topic Page No.

Introduction 

Origin, development and Importance of

Professional Ethics

Composition, Power and Functions of the State Bar

Council

Illustrate the Duties of an Advocate towards the

Court, Clients and his / her Fellow colleagues

Concept and punishment of Professional

Misconduct

Elucidate the historical background of the legal

profession in India

Public Interest and Fundamental Rights

Qualifications of persons who are entitled to be

enrolled as an Advocate in State role.

Discuss the Constitutional Remedies for the

enforcement of Fundamental Rights.

Supreme Court as a Court of Record under Article

129 of the Constitution of India.

Describe the Bar-Bench relation in depth.

Conclusion

Bibliography
 

Introduction

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“In law a man is guilty when he violates the rights of others. In ethics he is
guilty if he only thinks of doing so.”  

 A lawyer’s job is as important as that of a doctor’s as both of them have power to save
the life of a person who comes to seek their professional service.

Legal professionals are also imposed with vast duties and responsibilities to which they
are morally as well as legally bound. Failure of such duty can invite criticism as well as
legal sanctions including suspending such advocate from practicing and removing his
name from the Roll of advocates. Hence, knowledge of such duties, responsibilities and
sanctions is indispensable for an advocate to have a better professional career.
 

1.
Related titles Origin, development and Importance of Professional Ethics

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Origin of Legal Profession in India

The history of the legal profession in India can be track from the establishment of the
First British Court in Bombay in the year of 1672 by respective Governor Aungier. The
admissions of attorneys were placed in hands of Governor-in-Council and not with the
Court. Before the establishment of Mayor’s Courts in 1726 in Madras and Calcutta,
there were no legal experts in India.

Mayor's Courts- There was no established legal profession until the establishment of
the Mayor's Court. Those who practised law were devoid of legal training and some of
the functionaries under the Mayor's courts were dismissed servants of the British East
India Company. There were some years which played important roles in setting up the
courts in India.

The Advocates Act, 1961

 After the establishment of the Advocates Act ,1961 all the old classes of experts and
legal practitioners (vakils, barristers, pleaders of various grades, and mukhtars) were
abolished and were compiled into a single category known as "Advocates" who enjoys
the privilege to practice in courts throughout the India. The Advocates Act also
additionally establish an All India Bar Council for the first time in history of India, with
the Attorney-General and Solicitor General of India as the ex- officio members of Bar
Council.

PROFESSIONAL ETHICS

 Advocates, in addition to being professionals, are also officers of the courts and play a
vital role in the administration of justice. Accordingly, the set of rules that govern their
profession, professional conduct arise out of the duty that they owe the court, the client,
their opponents and other advocates.

Rules on the professional standards that an advocate needs to maintain are mentioned
in Chapter II, Part VI of the Bar Council of India Rules under section 49(1)(c) of the
 Advocates Act, 1961.

Professional ethics means a code of rules which regulates the behavior and conduct of
a practicing lawyer towards himself, his client, his opposite party, his counsel and of
course towards the court.

Professional ethics consist of those fundamental values on which the profession has
been built.

The practicing lawyer shall have the social responsibility and dignity of the legal
profession to ensure efficient service to his client as well as for public welfare.
 

2. Composition, Power and Functions of the State Bar Council

Related titlesThe Advocate Act, 1961, has made provisions for the establishment of Bar Councils.

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The Bar Council will be two patterns - Bar Council of India and State Bar
Council. Under Section 3 of the Act State Bar Council will be established. However,
Under Section 4, a Bar Council of India will be established.

State Bar Councils :

(2) A State Bar Council shall consist of the following members, namely:— 

(a) in the case of the State Bar Council of Delhi, the Additional Solicitor General
of India ex officio
(b) in the case of the State Bar Council of Assam, Nagaland, Meghalaya,
Manipur and Tripura, the Advocate General of each of the State of Assam,
Manipur, Meghalaya, Nagaland and Tripura, ex officio
(c) in the case of the State Bar Council of Punjab and Haryana, the Advocate-
General of each of the State of Punjab and Haryana, ex officio
(d) in the case of any other State Bar Council, the Advocate-General of the State,
ex officio;

 AND

(a) in the case of a State Bar Council with an electorate not exceeding five
thousand - fifteen members
(b) in the case of a State Bar Council with an electorate exceeding five thousand
but not exceeding ten thousand - twenty members
(c) and in the case of the State Bar Council with an electorate exceeding ten
thousand - twenty-five members

elected in accordance with the system of proportional representation amongst

advocates on the electoral roll of the State Bar Council

Powers and functions of State Bar Council are as under

Functions of State Bar Council :

Section 6(1) of the Advocate Act 1961 makes provisions in respect of the functions of
the State Bar Council.

a) General functions - Functions of State Bar Councils

I to admit persons as advocates on its roll;

II to prepare and maintain such roll;
IIIto entertain and determine cases of misconduct against advocates on its roll;
IV to safeguard the rights, privileges and interests of advocates on its roll;
V to promote the growth of Bar Associations for the purposes of effective
implementation of the welfare schemes referred to in clause (a) of sub-section
(2) of this section clause (a) of sub-section (2) of section 7;
VI to promote and support law reform;
 
VI to promote and support law reform;

VII to conduct seminars and organise talks on legal topics by eminent jurists and
publish journals and paper of legal interest;
VIII to organise legal aid to the poor in the prescribed manner;
Related titles IX to manage and invest the funds of the Bar Council;

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X to provide for the election of its members;
XI to visit and inspect Universities in accordance with the directions given under
clause (i) of sub-section (1) of section 7;

b) To Issue Certificates of Enrollment - 

Section 22 of Advocate Act 1961 provides that, There shall be issued a certificate of
enrollment in the prescribed form by the State Bar Council to every person whose
name is entered in the roll of advocates maintained by it under this Act.

c) To Maintain Roll of Advocates -

Section 17. of Advocate Act, 1961 provides that every State Bar Council shall prepare
and maintain a roll of advocates

Each such roll of advocates shall consist of two parts - the first part containing the
names of senior advocates and the second part, the names of other advocates.

Section 19 of the Advocate Act, 1961, requires the State Bar Council to send copies of
rolls of advocates to the Bar Council of India.

Powers of State Bar Council

a) Power to make rules: The State Bar Council has been empowered to make
rules to carry on the purposes of section 16 to Section 27 of the Advocate Act, 196,
dealing with the admission and enrollment of advocate.

b) Power to punish Advocate: The State Bar Council has Power to punish an
advocate for professional misconduct and other misconduct. The Disciplinary
Committee of the State Bar Council may make any of the following order -

(a)dismiss the complaint or, where the proceedings were initiated at the
instance of the State Bar Council, direct that the proceedings be filed;
(b) reprimand the advocate;
(c) suspend the advocate from practice for such period as it may deem fit;
(d) remove the name of the advocate from the State roll of advocates.

c) To appoint Committees and Staff Members: A bar Council establishes

several committees to its function under this Act including the disciplinary committee,
Executive Committee, Enrollment Committee, etc.

d) To Maintain Accounts and Conduct Audit: Section 12. of Advocate Act 1961
provides that every Bar Council shall cause to be maintained such books of accounts
and other books in such form and in such manner as may be prescribed.
 

3. Illustrate the Duties of an Advocate towards the Court, Clients

and his / her Fellow colleagues
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DUTIES OF AN ADVOCATE

ADVOCATE’S DUTY TOWARDS THE COURT OF LAW 

1. Act in a dignified manner: During the presentation of his case and also while acting
before a court, an advocate should act in a dignified manner

2. Respect the court: An advocate should always show respect towards the court

3. Not communicate in private: An advocate should not communicate in private to a

 judge with regard to any matter pending before the judge or any other judge. An
advocate should not influence the decision of a court in any matter using illegal or
improper means such as coercion, bribe etc.

4. Refuse to act in an illegal manner towards the opposition: An advocate should

refuse to act in an illegal or improper manner towards the opposing counsel or the
opposing parties. He shall also use his best efforts to restrain and prevent his client from
acting in any illegal, improper manner or use unfair practices in any mater towards the
 judiciary, opposing counsel or the opposing parties.

5. Refuse to represent clients who insist on unfair means: An advocate shall refuse
to represent any client who insists on using unfair or improper means. An advocate shall
excise his own judgment in such matters. He shall not blindly follow the instructions of
the client

6. Appear in proper dress code: An advocate should appear in court at all times only
in the dress prescribed under the Bar Council of India Rules and his appearance should
always be presentable.

7. Refuse to appear in front of relations: An advocate should not enter appearance,

act, plead or practice in any way before a judicial authority if the sole or any member of
the bench 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.

ADVOCATE’S DUTY TO HIS OPPONENTS/COLLEAGUES

1. Not to negotiate directly with opposing party: An advocate shall not in any way
communicate or negotiate or call for settlement upon the subject matter of
controversy with any party.
2. Carry out legitimate promises made: An advocate shall do his best to carry out all
legitimate promises made to the opposite party even though not reduced to writing
or enforceable under the rules of the Court. 
3. Not advertise or solicit work: An advocate shall not solicit work or advertise in any
manner. He shall not promote himself by circulars, advertisements, touts, personal
communications, interviews other than through personal relations, furnishing or
inspiring newspaper comments or producing his photographs to be published in
connection with cases in which he has been engaged or concerned. 
 

4. Sign-board and Name-plate: An advocate’s sign-board or name-plate should be of

a reasonable size.
5. Not promote unauthorized practice of law:  An advocate shall not permit his
Related titles professional services or his name to be used for promoting or starting any

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unauthorised practice of law. 
6. Consent of fellow advocate to appear:  An advocate should not appear in any
matter where another advocate has filed a vakalt or memo for the same party.
However, the advocate can take the consent of the other advocate for appearing. 

ADVOCATE’S DUTY TOWARDS HIS CLIENTS 

1. Bound to accept briefs: An advocate is bound to accept any brief in the courts
or tribunals or before any other authority in or before which he proposes to
practise. Special circumstances may justify his refusal to accept a particular brief.
2. Not withdraw from service: An advocate should not ordinarily withdraw from
serving to a client. He can withdraw only if he has a sufficient cause and by giving
reasonable and sufficient notice to the client.
3. Not appear in matters where he himself is a witness: An advocate should not
accept a brief or appear in a case in which he himself is a witness.
4. Not suppress material or evidence: An advocate shall by no means suppress
any material or evidence, which shall prove the innocence of the accused.
5. Not disclose the communications between client and himself: An advocate
should not by any means, directly or indirectly, disclose the communications
made by his client to him. He also shall not disclose the advice given by him in
the proceedings. However, he is liable to disclose if it violates Section 126 of the
Indian Evidence Act, 1872.
6. An advocate should not be a party to stir up or instigate litigation.
7. An advocate should not act on the instructions of any person other than
his client or the client’s authorised agent. 
8. Not charge depending on success of matters: An advocate should not charge
for his services depending on the success of the matter undertaken. He also shall
not charge for his services as a percentage of the amount or property received
after the success of the matter.
9. Not receive interest in actionable claim
10. Not adjust fees against personal liability
11.  An advocate should not misuse or takes advantage of the confidence reposed in
him by his client.
12. Keep proper accounts
 

4. Concept and punishment of Professional Misconduct

PROFESSIONAL MISCONDUCT
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1) Meaning of Misconduct -

Misconduct is the antonyms of conduct. Misconduct represents misbehavior.

Misconduct as explained in the Dictionary is 'improper conduct'.

In State of Panjab V. Ram Singh (AIR 1992, SC 2188) the Supreme Court held that the
term may involve moral turpitude,

In re Tulsidas Amanmal Karim it has been held that any conduct which in any way
renders a person unfit for exercise of his profession or is likely to tamper or embarrass
the administration of justice by the High Court or any other court subordinate thereto
may be taken as misconduct.

In the matter of an advocate, if the conduct of an advocate is such as to make him

unworthy to remain a member of the honorable legal profession and unfit to perform his
responsible duties, he will be guilty of misconduct and may be punished therefore

Instances of Misconduct

Legal Practioners act 1879 has not defined the word Misconduct. The word
Unprofessional conduct is used in the act. Even the Advocates Act 1961 has not
defined the term misconduct because of the wide scope and application of the term.
Hence to understand the instances of misconduct we have to rely on decided cases.
Some of the instances of Professional misconduct are as follows,
1) Dereliction of duty
2) Professional negligence
3) Misappropriation
4) Changing sides
5) Contempt of court and improper behaviour before a magistrate
6) Furnishing false information
7) Giving improper advice
8) Misleading the clients in court
9) Non speaking the truth
10) Disowning allegiance to court
11) Moving application without informing that a similar application has been rejected
by another authority
12) Suggesting to bribe the court officials
13) Forcing the procecution witness not to tell the truth.
 

Punishment for Misconduct:

In exercise of powers under Section 35 contained in Chapter V entitled “conduct

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of advocates If the State Bar Council has ‘reason to believe’ that any advocate
on its roll has been guilty of “professional or other misconduct”, disciplinary
proceeding may be initiated against him.
The Disciplinary Committee of the State Bar Council is authorised to inflict
punishment, including removal of his name from the rolls of the Bar Council and
suspending him from practice for a period deemed fit by it, after giving the
advocate concerned and the ‘Advocate General’ of the State an opportunity of
hearing.
 

5. Elucidate the historical background of the legal profession in India

Related titlesDuring the Hindu Rule and Mughal Dynasty period the administration of justice was in

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the hands of the King and the Kings court.

The first time in India, the legal profession was recognized by the Charter Act of
1774.This Act has permitted the English lawyers to practice in the Supreme Court of
Calcutta, later on, the English lawyers were allowed to practice in the Madras Supreme
Court and in the Bombay Supreme Court, but Indian Lawyers were not allowed to
Practice in those courts. (In 1826 these 3 Supreme Courts were abolished and in that
place High Courts were Created)

Development:

In 1865, the Special Rights Act has conferred the right to the Madras, Bombay and
Calcutta High Courts to frame rules for the recognition of Advocates and for preparing
the Advocates roll.

In 1879, the legal practitioner’s Act has conferred the similar power to the other High
court. As per this Act Persons studied Law in England Were called as Advocates and
persons studied Law in India were called as “Vakils”.The “Vakils” were not allowed to
practice before the High Courts.

The Advocates Committee, constituted under the leadership of Sir. Edward in 1923 has
recommended for the creation of Bar Councils in each High Court and allowing the
“Vakils” to practice before the High Court. 

 Accepting the recommendation Bar Council Act was passed in 1926.

After Independence: The Advocates Committee, constituted under the chairmanship

of Justice C.R. Das in 1951 has made the following recommendations.

a. All India level, one Bar Council namely Bar Council of India and in each state,
State Bar Council should be created.
b. Power to enroll Advocates and disciplinary power against the Advocates should
be entrusted with the Bar Council.
c. Advocates should be allowed to practice throughout India without any
discrimination.

 Accepting these recommendations, the Central Govt. passed the Advocates Act in the
year 1961 giving suitable provision for creation of Bar Councils and the Bar Councils
are entrusted with the power of regulating the legal profession.
 

6. Public Interest and Fundamental Rights

Related titlesFundamental Rights are the basic rights of the common people and inalienable rights

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of the people who enjoy it under the charter of rights contained in Part III(Article 12 to
35) of  Constitution of India. 

The six fundamental rights recognised by the Indian constitution are

The right to equality  – It includes equality before law, prohibition of discrimination on

grounds of religion, race, caste, gender or place of birth, and equality of opportunity in
matters of employment, abolition of untouchability and abolition of titles

The right to freedom – It includes freedom of speech and expression, assembly,

association or union or cooperatives, movement, residence, and right to practice any
profession or occupation, right to life and liberty, protection in respect to conviction in
offences and protection against arrest and detention in certain cases.

The right against exploitation – It prohibits all forms of forced labour, child labour
and trafficking of human beings. 

The right to freedom of religion – It includes freedom of conscience and free

profession, practice, and propagation of religion, freedom to manage religious affairs,
freedom from certain taxes and freedom from religious instructions in certain
educational institutes. 

The cultural and educational rights – It preserve the right of any section of citizens
to conserve their culture, language or script, and right of minorities to establish and
administer educational institutions of their choice. 

The right to constitutional remedies. – It is present for enforcement of Fundamental

Rights. The right to privacy is an intrinsic part of Article 21(Right to Freedom) that
protects life and liberty of the citizens.[1] 
 

7. Qualifications of persons who are entitled to be enrolled as an

Advocate in State role.
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Section 24 in THE ADVOCATES ACT, 1961

Subject to the provisions of this Act, a person shall be qualified to be admitted as an

advocate on a State roll, if he fulfills the following conditions, namely:— 

 A.he is a citizen of India:

B.he has completed the age of twenty-one years;
C.he has obtained a degree in law— 
D.he fulfils such other conditions as may be specified in the rules made by the
State Bar Council
E. he has paid stamp duty, if any, in respect of the enrolment and an enrolment
fee payable to the State Bar Council of
F. He makes an application for such enrolment in accordance with the provisions
of this Act, not later than two years from the appointed day.
 

8. Discuss the Constitutional Remedies for the enforcement of

Fundamental Rights.
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 Article 32 under the Constitution of India – Right To Constitutional Remedies

 Article 32 of the Indian Constitution gives the right to individuals to move to the Supreme
Court to seek justice when they feel that their right has been ‘unduly deprived’. The apex
court is given the authority to issue directions or orders for the execution of any of the
rights bestowed by the constitution as it is considered ‘the protector and guarantor of
Fundamental Rights’. 

Therefore, we can say that an assured right is guaranteed to individuals for enforcement
of fundamental rights by this article as the law provides the right to an individual to directly
approach the Supreme Court without following a lengthier process of moving to the lower
courts first as the main purpose of Writ Jurisdiction under Article 32 is the enforcement
of Fundamental Rights.

Dr. Ambedkar stated that:

“If I was asked to name any particular article in this Constitution as the most important-
an article without which this Constitution would be a nullity— I could not refer to any
other article except this one. It is the very soul of the Constitution and the very heart of
it and I am glad that the House has realized its importance.” 
 

9. Supreme Court as a Court of Record under Article 129 of the

Constitution of India.
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Article 129 in The Constitution Of India 1949

129. Supreme Court to be a court of record The Supreme Court shall be a court of
record and shall have all the powers of such a court including the power to punish for
contempt of itself

Dr. Ambedkar said that it is important to define the status of the Supreme Court. He
said

that:... a court of record is a court the records of which are admitted to be of

evidentiary value and they are not to be questioned when they are produced before
any court.

 A court of record is a court whose acts and proceedings are enrolled for perpetual
memory and testimony. These records are used with a high authority and their truth
cannot be questioned. In Indian constitution article 129 make the Supreme Court the
‘court of record”. Article 129 says: Supreme Court to be a court of record.-The Supreme
Court shall be a court of record and shall have all the powers of such a court including
the power to punish for contempt of itself.
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