ADVOCATE AND ADVOCACY

ADVOCACY – NOT A TRADE OR BUSINESS:

As per Rule 47 of Chapter II of the BCI Rules, an
advocate shall not personally engage in any business;
but he may be a sleeping partner in a firm doing
business provided that, in the opinion of the
appropriate SBC, the nature of the business is not
inconsistent with the dignity of the profession.
Rule 50 – who has inherited or succeeded by
survivorship – he may not personally participate in the
management thereof.
Bar Council of Maharashtra vs. MV Dabholkar [AIR
1998 SC 242] Justice Krishna Iyer held :
“The Bar is not a private guild, like that of barbers,
butchers and candlestick makers etc. but, by bold
contrast, a public institution committed to public
justice and pro bono publico* service. The grant of a
monopoly license to practice law is based on three
assumptions:
There is a socially useful function for the lawyer to
perform;
The lawyer is a professional person who will perform
that function; and
His performance as a professional person is regulated by
himself and more formally, by the profession as a whole.
*Pro bono publico - Latin phrase for professional work
undertaken voluntarily and without payment.
Distinction between ‘Legal Profession’ and ‘Trade’:
 The practice of law, however, is a public utility but not the business of
profit.
Legal Profession Trade /Business
1. Advertisement is prohibited 1. Advertisement is proper and
in Legal Profession allowed in Trade / Business
2. Touts cannot be employed 2. Touts (agents or brokers) can
for securing brief. be employed for promoting
Trade /business
3. The relationship of advocate 3. The relationship of trade and
and client is that of trust consumer / customer is not
that of trust.
4. There should not be a 4. There is such competition in
unhealthy competition in legal trade or business
profession
5. The main object is public 5. The main object is to make
service (Service motive) money (Profit Motive)
Elements of Advocacy:
 To accept brief
 Filing the case
 Pleading – The object of pleading is to make both the
parties aware of their cases and allegations made against
each other.
 Examination of witnesses
 Examination in Chief or Chief Examination – no leading
question (which suggests answer) can be put except in certain special
cases.
 Cross-Examination – should not be misused by an
examination which is unnecessarily too long, ambiguous,
improper, aimless and uncertain.
 Re-examination – not as a matter of right, except to explain
any new matters raised in cross examination, but not to prove
any other fact.
 Arguments
 Appeals
Seven Lamps of Advocacy:
Lord Brougham said that ‘a lawyer must know everything
about something and something about everything’.
A good advocate should possess some essential qualities and
equipment.
Abbott Parry in his book entitled ‘The Seven Lamps of
Advocacy’ refers to the qualities which an advocate should
possess. They are:
1. Honesty – means quality of straightforwardness, freedom from
deceit, cheating, stealing or not telling lies.
2. Courage - Courage is the quality that enables a person to control fear
in the face of danger, pain, misfortune etc. An advocate should face
the pressures from outside with courage.
3. Industry – Advocacy is an intellectual profession. Intelligence and
knowledge will be sharpened with hard work and strenuous efforts.
Lord Eldon says ‘An advocate must live like a hermit and work
like a horse’.
4. Wit - Wit means clever and humorous expression of ideas, liveliness
of spirit. Wit flows from intelligence; understanding and quickness of
mind. Wit lessens the workload of an advocate.
5. Eloquence - It means fluent speaking and skillful use of language to
persuade or to appeal to the feeling of others. Eloquence attracts the attention
of the listener. Eloquence is related to the art of oratory.
6. Judgment – form an opinion about the issues with good sense
and ability. Judgment is an intellectual capacity, ‘the inspiration which
enables a man to translate good sense into right action’. An advocate could be
in a position to judge the merits and demerits of the case on hearing the brief
and seeing the document.
7. Fellowship – Daniel Webster says ‘Lawyers on opposite sides of
a case are like the two parts of shears, they cut what come
between them, but not each other’.
Fellowship means the membership in friendly association
or companionship. By keeping the lamp of fellowship burning,
advocates encourage each other by sharing the knowledge
to walk in the light of the Seven Lamps of Advocacy.
In addition to the above seven, K.V.Krishna Swamy
Iyer in his book entitled, ‘Professional Conduct and
Advocacy’ adds one more quality of an advocate ‘Tact’
as the eighth lamp as explained below:
Tact means handling people and situations skillfully and
without causing offence.
An advocate must be in a position to tackle and win his
client, opponent party, opponent advocate in a smoother
way.
Tact involves and is in reality founded on judgment but
more properly refers to the human side of putting into
action the result of one’s judgment.
 ETHICS OF LEGAL PROFESSION
Meaning, Nature and Need:
Professional ethics may be defined as a code of
conduct written or unwritten for regulating the
behavior of a practicing lawyer towards himself, his
client, his adversary in law and towards the Court.
An advocate should be dignified in his dealings to the
court, to his fellow lawyers and the litigants.
He should faithfully abide by the standards of
professional conduct and etiquette prescribed by the
BCI in Chapter II, Part VI of the BCI Rules.
Professional Ethics:
The codification of the canons of the professional
ethics may give impression that the Code is exhaustive
while in reality it cannot be exhaustive.
Under Sec.49(1)(c) the BCI has made several rules so as to
prescribe the standards of professional conduct and
etiquette to be observed by the advocates.
Etiquette distinguished from Ethics:
Ethics (of the profession) is the Code, by which the
actions of the members of the legal profession are
regulated.
The etiquette, on the other hand, is the pattern of
behavior or the mode, in which a person (a legal
professional) acts.
Distinction between Ethics and Etiquette: Ethics (of
the profession) is the code, by which the actions of the
members of the legal profession are regulated. The
etiquette, on the other hand, is the pattern of behavior or
the mode, in which a person (a legal professional) acts.
Duty to the Court:
During the presentation of the case and while acting
otherwise before the Court an advocate is required to
conduct himself with dignity and self-respect.
An advocate is required to maintain towards the Court a
respectful attitude bearing in mind that the dignity of the
judicial office is essential for the survival of a free
community.
No advocate shall influence the decision of the Court by
any illegal or improper means.
An advocate is required to use his best effort to restrain
and prevent his client from resorting to unfair practice in
relation to the Court, opposing counsel or parties.
An advocate shall appear in court at all times only in the
prescribed dress and his appearance shall always be
presentable.
An advocate shall not enter appearance, act, plead or
practice before a Court, tribunal or authority, if the sole or
any member thereof is related to the Advocate as father,
grand-father, son etc.
The rule requires the advocate not to wear bands or gowns
in public places other than in Court, except on such
ceremonial occasions and at such places as the BCI or the
Court may prescribe.
An advocate shall not appear in or before any Court or
Tribunal or any other authority for or against an
organization or an institution, society or corporation if, he
is a member of the Executive Committee.
An advocate shall not act or plead in any matter in which
he is himself pecuniarily interested.
Learned C.L.Anand has observed that the advocate owes
respect & courtesy to the Court for the following reasons:
An advocate is like the judge, himself, an officer of the
Court and an integral part of the judicial machine. The
legal profession consists of the Bar as well as the Bench
and both have common aims and ideals.
In theory it is the King or Sovereign who presides in the
Court of Justice and the Judge is merely the mouthpiece
and representative of the Sovereign.
Respect shown to the Court is, therefore, respect shown to
the Sovereign whose representative the Judge is.
It is necessary for dignified and honorable
administration of justice that the court should be
regarded with respect by the suitors and people.
In UP Sales Tax Service Association vs. Taxation Bar
Association – an advocate, instead of arming himself
with armoury of precedents, was armed with licensed
revolver and was attending the Courts with licensed fire-
arm. He pretended to provide himself with the revolver
to shoot in self-defence. The Court observed, “it is
regrettable that advocates attend Court with firearms, it
is not befitting to the dignity of the legal profession and
is a distressing feature”
In Re (= in the matter of) D.C.Saxena – should not
indulge in writing in Pleadings, the scurrilous allegations
or scandalization against the Judge or Court.
Duty towards witnesses:
He should not involve in any malpractice or corrupt
practice with the witnesses.
He should not misguide the witnesses
He should pay due respect to witnesses at every stage
He should not misuse the privileges of cross-
examination
He should not cause embarrassment to the witnesses by
putting objectionable questions
He should not deliberately prolong the cross-
examination of the witnesses
He should not do aimless backing
He should not appear as a witness when he himself is
pleading the case of a party
2. Duty to the client: (Sec.III, Chapter II of Part VI of the
Rules of Bar Council of India)
Rules 11 to 33 deal with the duties of an advocate to this
client. They are as follows:
Rule 11 : An Advocate is bound to accept any brief.
Rule 12: An advocate shall not ordinarily withdraw
from engagements once accepted without sufficient
cause
Rule 13: An advocate should not accept a brief or appear
in a case in which he has reason to believe that he will be
a witness.
Rule 14: An advocate shall, at the commencement of his
engagement and during the continuance thereof, make
all such full and frank disclosure to his client relating
to his connection with the parties and any interest in the
case.
Rule 15: It is the duty of an advocate to uphold the
interests of his client fearlessly by all fair and
honorable means.
Rule 16: An advocate appearing for the prosecution of a
criminal trial shall so conduct the prosecution that it
does not lead to conviction of the innocent.
Rule 17: An advocate shall not commit a breach of the
obligations imposed by Sec.126 of the Indian Evidence
Act. [No advocate shall disclose any secrets of his clients].
Rule 18: An advocate shall not at any time, be a party to
fomenting of litigation.
Rule 19: It is the duty of an advocate not to act on the
instructions of any person other than his client or
his authorized agent.
Rule 20: An advocate shall not stipulate for a fee
contingent on the results of litigation or agree to share the
proceeds thereof.
Rule 21: An advocate shall not buy or traffic in or stipulate
for or agree to receive any share or interest in any actionable
claim.
Rule 22: An advocate shall not directly or indirectly, bid
for or purchase either in his own name or in any other
name, any property sold in the execution of a decree or
other proceeding in which he was in any way professionally
engaged.
Rule 23: An advocate shall not adjust fee payable to him
by his client against his own personal liability to the
client which liability does not arise in the course of his
employment as an advocate.
Rule 24: An advocate shall not do anything whereby he
abuses or takes advantage of the confidence reposed in
him by his client.
Rule 25: An advocate should keep accounts of the
client’s money entrusted to him.
Rule 26: The entries in the accounts should contain a
reference as to whether the amounts have been
received for fees or expenses.
Rule 27: If any money is received or given to him
(advocate) on behalf of his client, the fact of such
receipt must be intimated to the client as early as
possible.
Rule 28: After termination of the proceedings, the
advocate shall be at liberty to appropriate towards the
settled fee due to him.
Rule 29: Where the fee has been left unsettled, the
advocate can deduct out of any moneys of the client
remaining in his hands.
Rule 30: A copy of the client’s account shall be
furnished to him.
Rule 31: An advocate shall not enter into arrangements
whereby funds in his hands are converted into loans.
Rule 32: An advocate is prohibited to lend money to his
client for the purpose of any action or legal proceedings.
Rule 33: An advocate who has, at any time, advised in
connection with the institution of a suit, appeal or
other matter or has drawn pleadings or acted for a party,
shall not act, appear or plead for the opposite party.
Duties to his client:
Not to accept compensation or advantage
To give frank/proper advice
To do his best
Not to represent conflicting interests [Appearance on prosecution side and
also preparation of a draft of Written Statement amounts to breach of professional conduct]
Not to divulge confidential communication
Fiduciary duties:
The relation between an advocate and his client is
fiduciary. It is of confidential nature requiring a high
degree of fidelity and good faith.
Advocate’s fee – Fixation of fee – (Quantum meruit
rule applicable)
Contingent fee – It is against public policy
Right of lien: An advocate cannot claim lien over the
litigation files entrusted to him for his fees.[R.D.Saxena v.
Balram Prasad Sharma (AIR 2000 SC 2912)]
New India Assurance Co. Ltd., v A.K.Saxena [AIR 2004 SC
311] – The advocate cannot retain files of his client on
the ground that his fee has not been paid by him.
Prohibition as to appearance for opposite party and
use of information to the detriment of the client –
The duty continues even after the relation between them
ceased.
Duty to opponent: Rules 34 and 35 of BCI – Rule 34 says -
An advocate shall not communicate or negotiate upon
the subject matter of controversy with any party
represented by an advocate except through that
advocate.
Fair treatment with opposite party [avoid use of abusive words or
any reckless charges of fraud]
Non-indulgence in discussion of the case with opposite
party – without client’s permission.
Avoid misuse of the weakness of the opposite party
Avoid suppression of facts – He should always try to do
only what is just and fair.
Avoid blackmail or corrupt practice with opposite party
or its counsel.
Duty to the colleagues (Professional Brethern): Rules
36, 37, 38 and 39 of BCI deal with duties of an advocate to
the colleagues.
To maintain high confidence of the colleagues and
juniors – [Good opinion of the professional brethern is the best guarantee of a
lawyer’s success]
To extend mutual co-operation.
Not to take-up a case in which his colleague is already
engaged.
To extend mutual understandings with his fellow
Advocates
To have equal consideration for all colleagues.
To help the juniors – [Refusal to give proper advice or to
give wrong advice or to misguide a junior will be
unethical act of such a senior lawyer]
To safeguard the dignity and honor of the legal
profession
Other Duties:
Rule 40 requires every advocate on the rolls of the
State Bar Council to pay a certain sum (specified in
this Rule) to the State Bar Council.
Rule 41(1) provides that all the sums so collected by
the State Bar Council shall be credited in a separate
fund to be known as “Bar Council of India Advocates
Welfare Fund for the State” and shall be deposited in
the bank as provided thereunder.
According to Rule 41 (2) the BCI Advocates Welfare
Fund Committee for the State shall remit 20% of the
total amount collected and credited to its account, to
the BCI by the end of every month which shall be
credited by the BCI and the BCI shall deposit the said
amount in a separate fund to be known as “Bar
Council of India Advocates Welfare Fund”.
Duty in imparting training : Rule 45 framed by the
BCI makes it clear that it is improper for an advocate to
demand or accept fees or any premium from any person
as a consideration for imparting training in law under the
rules prescribed by a SBC to enable such person to
qualify for enrolment under the Advocates Act, 1961.
Duty to render Legal Aid (Rule 46) : Every advocate
shall in the practice of the profession of law bear in mind
that any one genuinely in need of a lawyer is entitled to
legal assistance even though he cannot pay for it fully or
adequately.
Restriction on other employments: Rules
47,48,49,50, 51 and 52 deal with restrictions on other
employment.
Duty towards witnesses:
He should not involve in any malpractice or corrupt
practice with the witnesses.
He should not misguide the witnesses
He should pay due respect to witnesses at every stage
He should not misuse the privileges of cross-
examination
He should not cause embarrassment to the witnesses by
putting objectionable questions
He should not deliberately prolong the cross-
examination of the witnesses
He should not do aimless backing
He should not appear as a witness when he himself is
pleading the case of a party
RIGHTS AND PRIVILEGES OF AN ADVOCATE:
Rights:
i) Right to practice – (Secs.29 to 34 of Chap. IV)
ii) Right to refuse brief – An Advocate shall refuse to
represent the client who persists in unfair practices and
improper conduct., or when any member sitting as a
Court, tribunal or authority is related.
iii) Right of fee – It does not depend upon winning or
losing of the case. An Advocate has right to his fee, this
right is absolute and not conditional.
iv) Right of lien – Once an advocate has filed his Vakalat
in a case it is his privilege that no one else can step in
without his consent.
v) Privileges: (means ‘a peculiar advantage or some
special benefit conferred by virtue of sex or one’s
position’ – a qualified advantage.
i) Privilege to claim audience – This is an exalted
profession in which privilege is duty and duty is
privilege.
 It is privilege of the member to represent his clients in the Court
of law, it is his privilege to claim audience in courts so long as he
acts decorously .
ii) Free from arrest - A lawyer while going to the Court to
attend a matter or while returning from the Court is
exempt from arrest under civil process other than a process
issued by such Court for contempt of Court.
iii) Immunity from Liability – No action can be taken
against the advocate if he shows any negligence,
which an ordinary and a reasonable man does.
Such mere negligent acts are privileged under the Act.
iv) Privilege of being offered Judgeship
v) Privilege of political life
vi) Privilege of independence – He is frank, fearless and
independent.
vii) Privilege of communication – No Advocate shall be
permitted to disclose any communication (secrets of
clients). This privilege continues to exist even after their
relationship ends.