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RAYAT COLLEGE OF LAW, ROPAR

PROJECT: - PROFESSIONAL ETHICS

TOPIC: THE ADVOCATES ACT, 1961

SUBMITTED TO:
DR.MONIKA SHARMA
SUBMITTEDBY:
AMAN KUMAR
10TH SEMESTER
ROLL NO. 13306
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ACKNOWLEDGEMENT

I would like to express my special thanks of

gratitude to my teacher Dr.Monika Sharma,

who gave me the golden opportunity to do this

wonderful project on the topic “THE

ADVOCATES ACT, 1961” which also helped

me in doing a lot of Research and I came to

know about so many new things I am really

thankful to her.
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DECALARATION

I hereby declare that the project work entitled “THE

ADVOCTES ACT, 1961 ” submitted to the Rayat College
of, is a record of an original work done by me under the
guidance of Dr.Monika , this project work is submitted in
the partial fulfilment of the requirements for the award of
the degree of law. The results embodied in this thesis have
not been submitted to any other University or Institute for
the award of any degree or diploma.

(SIGNATURE)

AMAN KUMAR

Date: 24TH MARCH, 2020

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TABLE OF CONTENTS

 The Advocates Act, 1961 6

 Reason for the Act 7

 Main Features 7

Bar Council of India 8

Powers 9

Qualifications As an Advocate 10

 Disqualifications 11

 Right to Practice 11

Advocacy: Profession or Business 11

 Fiduciary Relationship 12

 Duty to Clients 13

 Duty to colleagues 13

 Cases 14

Conclusion 15

 Webliography 16
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
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TABLE OF CASES

 Sambhu Ram Yadav v. Hanuman Das

Khatry (AIR 2001 SC 2509)
 N.G. Dastane v. Shrikant S. Shinde AIR
(2001) 6 SCC 135
 Hikmat Ali khan v. ishwar Prasad arya and
others civil appeal no 4240/1986
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ADVOCATES ACT 1961

INTRODUCTION:- 1

A lawyer is “a person learned in the law; as an attorney, counsel or solicitor; a

person licensed to practice law.” In India, the term “lawyer” is often
colloquially used, but the official term is “advocate” as prescribed under the
Advocates Act, 1961
India has the world’s second largest legal profession with more than 600,000
lawyers. The predominant service providers are individual lawyers, small or
family based firms. Most of the firms are involved in the issues of domestic law
and majority work under country’s adversarial litigation system. The conception
of legal services as a ‘noble profession’ rather than services resulted in
formulation of stringent and restrictive regulatory machinery. These regulations
have been justified on the grounds of public policy and ‘dignity of profession’.
The judiciary has reinforced these principles: Law is not a trade, not briefs, not
merchandise, and so the heaven of commercial competition should not vulgarize
the legal profession. However, over the years courts have recognized ‘Legal
Service’ as a ‘service’ rendered to the consumers and have held that lawyers are
accountable to the clients in the cases of deficiency of services.

The Indian Bar Councils Act, 1926 was passed to unify the various grades of
legal practice and to provide self-government to the Bars attached to various
Courts. The Act required that each High Court must constitute a Bar Council.
The duties of the Bar Council were to decide all matters concerning legal
education, qualification for enrolment, discipline and control of the profession.
It was favourable to the advocates as it gave them authority previously held by
the judiciary to regulate the membership and discipline of their profession.

The Advocates Act, 1961 was a step to further this very initiative. As a result of
the Advocates Act, admission, practice, ethics, privileges, regulations, discipline
and improvement of the profession as well as law reform are now significantly
in the hands of the profession itself.

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REASONS FOR INTRODUCTION OF THE ACT:-2

After Independence it was deeply felt that the Judicial Administration in India
should be changed according to the needs of the time. The Law Commission
was assigned the job of preparing a report on the Reform of Judicial
Administration. In the meanwhile the All India Bar Committee went into detail
of the matter and made its recommendations in 1953. To implement the
recommendations of the All India Bar Committee and after taking into account
the recommendations of the Law Commission on the subject of Reform of
Judicial Administration in so far as the recommendation relate to the Bar and to
legal education, a Comprehensive Bill was introduced in the Parliament.

In 1961, Parliament enacted the Advocates Act [12] to amend and consolidate
the law relating to legal practitioners, and to provide for the constitution of State
Bar Councils and an All-India Bar Council. The Advocates Act implements the
recommendations of the Bar Committee and the Law Commission with some
modifications. It repealed the Indian Bar Councils Act, 1926, the Legal
Practitioners Act, 1879, and other laws on the subject. The Act has undergone
several amendments since its enactment in 1961. The Act extends to the whole
of India.

The main features of the Act are:-3

1) Establishment of an All India Bar Council and a number of State Bar

Councils – a federal structure for legal profession. An advocate is initially
enrolled with a State Bar Council and a common roll of all the advocates
in the country is maintained by Ail India Bar Council. An advocate on
common roll has a right to practice in any court of the country including
the Supreme Court.
2) Integration of the bar into a single class of legal practitioners known as
advocates.
3) A uniform qualification for the admission as advocates viz, degree in law.
4) Division of advocates into senior advocates and other advocates based on
merit.
5) No advocate can get himself enrolled with more than one State Bar
Council, though he can get himself transferred from one State Bar
Council to another.

2
www.huffingtonpost.in
3
https://blog.ipleaders.in
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Bar Council of India:-4

Composition – The Bar Council of India consists of

A. The Attorney-General of India ex-officio

B. The Solicitor-General, ex-officio,
C. One member elected by each State Bar Council from amongst its
members.

There are elected Chairman and a Vice-Chairman of the Council, and, a

Secretary and an Accountant the Bar Council of India has been authorised to
constitute one or more of the following committees,

a) Legal Aid Committee

b) Disciplinary Committee
c) Executive Committee
d) Enrolment Committee
e) Legal Education Committee,

Every Disciplinary Committee is to consist of three members, two persons to be

elected from amongst its members and one other to be co-opted from such
members as have at least ten years’ practice. The senior-most advocate from
amongst its members is to be chairman of the committee. The Legal Education
Committee consists of ten members of whom five persons elected by the
Council from amongst its members and the other five are those who are not
members of the Council.

The main source of income of the Bar Council of India is the contribution of
forty per cent out of the fee of Rupees two hundred fifty paid by each applicant
for enrolment to the State Bar Council.

Functions – Main functions of the Bar Council of India include:-5

1) To prepare and maintain a common roll/roster of all the advocates in the

country.
2) To lay down standards of professional conduct and etiquette for
advocates and rules regarding enrolment, suspension, etc., of advocates.
3) To safeguard the rights, privileges and interests of advocates.

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https://law.freeadvice.com
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4) To exercise general supervision and control over State Bar Councils, to

deal with and dispose of any matter arising under Act, which may be
referred to it by a State Bar Council.
5) To promote and support law reforms.
6) To promote legal education and to lay down standards of such education
in consultation with Universities and State Bar Councils.
7) To recognize Universities whose degree will qualify a person to be
enrolled as an advocate and to recognize foreign law degrees,
8) To conduct seminars and talks on legal matters and to publish legal
journals.
9) To organize legal aid to the poor.
10) To manage and invest the funds of the Bar Council.
11) To provide for the election of its members.

Powers:-6

Apart from the powers already enumerated, the Bar Council of India (BCI) has
been specifically conferred special powers,

 Power to remove name from the rolls– The BCI is empowered, either on
a reference made to it or otherwise, if it is satisfied that any person has
got his name entered in the roll of the Advocates by misrepresentation, to
remove such person from the roll after giving him an opportunity of being
heard. Besides, the name of advocate may be removed from the roll as
punishment for misconduct in disciplinary proceedings.
 Revision- Apart from the power vested in it to remove the name of an
advocate in certain cases, and the power vested in the disciplinary
committee to hear and dispose of the disciplinary matters whether by way
of original hearing or on appeal, the BCI has the power at any time to call
for the record of any proceeding under the Act, which has been disposed
of by a State Bar Council or a Committee thereof, and from which no
appeal lies, for satisfying itself as to the legality or propriety of such a
disposal and may pass such orders thereon as it deemed fit.
 Directives- Section 48B empowers the BCI for the proper and efficient
discharge of the functions of a State Bar Council or any Committee
thereof, to give such directions to the State Bar Council or its Committee
as may appear it to be necessary, and the latter has to comply with the
directions. Where a State Bar Council is unable to perform its functions
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for any reason whatsoever, the BCI may give such directions to the ex-
officio member thereof as may appear to it to be necessary, and such
directions shall have effect, notwithstanding anything contained in the
rules made by the State Bar Council.
 Rule-making power- Section 15 enumerates the powers of the State Bar
Councils/BCI to make rules relating to the Bar Councils. Section 28 gives
power to the State Bar Councils to make rules on some matters connected
with the preparation of rolls, training and examination for admission as
advocates, form of application for enrolment, and conditions for
enrolment. Any rule made by State Bar Council shall have effect only if it
has been approved by the BCI. Section 49 confers on the BCI a general
power to make rules for discharging its functions under the Act. Rules
include rules the statement of the grounds in support of the refusal to the
Bar Council of India, and has to dispose of the application finally in
conformity with such opinion.

Qualifications for Admission as an Advocate:-7

The person has to be a citizen of India and has completed the age of 21 years,
and has obtained a degree in law (LL.B.) from any university in India or of any
university outside India considered equivalent to Indian degree, A person
eligible to pursue the course in law (LL.B.- Three Year Course) should be a
graduate of a university or have other equivalent academic qualification.

The requirement of practical training is now abolished. A law graduate is

required to pay an enrolment fee of Rupees two hundred fifty 250 to the State
Bar Council (in case of SC and STs, fee is Rupees one hundred twenty five).

With regard to a barrister also, the Bar Council of India has specified the same
requirement as to a degree in law. It may be noted that the Advocates Act, one
thousand nine hundred sixty one has done away with the distinction between
advocates and vakils. Now all members enrolled shall be called ‘advocates’. But
among advocates, there shall be Senior Advocates also. Those who were senior
advocates as on 1 12.one thousand nine hundred sixty one shall be deemed to be
senior advocates. Besides, power has been conferred under Section 16 of the
Act to the Supreme Court and the High Courts to designate any advocate as
senior advocate if in its opinion by virtue of his ability, experience (10 years’
practice) and standing at the Bar, he is deserving of such distinction. Senior
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advocates are governed by the rules of the Supreme Court applicable to them,
and are also subject to the restrictions laid down by the Bar Council of India in
the interest of the legal profession.

Disqualification for Enrolment:-8

No person shall be admitted as an advocate .f he is convicted of an offence

involving moral turpitude, if he is convicted of an offence under the provisions
of Unsociability (Offences) Act, 1955, Section 28 of the Advocates Act
generally prohibit the enrolment of a person who, though he may be otherwise
qualified, is in full or part-time service or employment (except when he is a law
officer) or is engaged in any trade, business or occupation (except when he is a
sleeping partner). An advocate may edit legal books at a salary, coach pupils for
legal examinations and subject to the rules against full-time employment,
engage in journalism, lecturing and teaching subjects both legal and non-legal.

Right to Practice:-9

Every advocate, whose name is entered in the State roll, shall be entitled as of
right to practice throughout the territories to which the Act extends-

 In all courts including the Supreme Court

 Before any tribunal or person legally authorised to take evidence (Section
29). Under Section 33, advocates alone are entitled to practise in any
court. However, this right to practice is subject to rules framed by the
High Court under Section 34.
 Persons illegally practising in Courts or before other authorities when
they are not entitled to practise under the provisions of the Act are liable
for punishment with imprisonment for a term which may extend to six
months.

ADVOCACY: PROFESSION OR BUSINESS:-

In a case, it was stated that:

“Members of bar are not a guild of candle makers or butcher’s association. They
are a class separate.”

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Then there is the theory of Professional Paradigm Shift as given by Russell G.

Pierce, which states that the profession should also be treated as a trade as there
is no harm to erase the line between profession and trade.

Soli J. Sorabjee states his views on this point in Lawyers as Professionals. He

states that at present the public image of lawyers is far from flattering. They are
seen as fortune seekers rather than seeking to serve, a selfish class, who, on
account of the special knowledge and expertise, provide services on such terms
as they please. In short, the profession of law is regarded as a money making
racket. Today people are apt to agree with Dean Swift's description of lawyers
as, "a society of men bred up from their youth in the art of proving by words
multiplied for the purpose, that white is black and black is white according as
they are paid." No longer is the profession of law regarded as a noble one.

FIDUCIARY RELATIONSHIP:-10
Such conduct is generally seen as inappropriate and unethical. Why? The
answer resides in the nature of the relationship between lawyer and client. It is
intimate -- the client reposes trust and confidence in the lawyer. Indeed, the
lawyer is in a fiduciary relationship with the client. More than that, of all the
fiduciary relationships known to the law, the lawyer-client relationship is one of
the most recognizable. The common law system of justice would not function
without it. The public derives, in part, its confidence in the administration of
justice from the fidelity of a lawyer to his or her client. It is for this reason that
courts have required high standards of propriety from a lawyer.

Lawyers have a fiduciary obligation to avoid 'conflicts of duty'. Conflicts arise

when a lawyer who owes a duty to one client undertakes a similar duty towards
another client either simultaneously ('present client conflict') or successively
('former client conflict').

CONFLICT BETWEEN INTEREST AND DUTY – STATUTORY

ANALYSIS DUTY TO THE COURT 11

RULE -1 an advocate shall, during the presentation of his case and while
otherwise acting before a court, conduct him with dignity and self-respect. He
shall not be servile and whenever there is proper ground for serious complaint
against a judicial officer, it shall be his right and duty to submit his grievance to
proper authorities.
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RULE – 4 An advocate shall use his best efforts to restrain and prevent his
client from resorting to sharp or unfair practices or from doing anything in
relation to the court, opposing counsel or parties which the advocates himself
ought not to do. An advocate shall refuse to represent the client who persists in
such improper conduct. He shall not consider himself a mere mouth-piece of the
client, and shall exercise his own judgment in the use of restrained language.

DUTY TO CLIENT:-

RULE – 22 An advocate shall not, directly or indirectly, bid for or purchase,

either in his own name or in any other name, for his own benefit or for the
benefit of any other person, any property sold in the execution of a decree or
order in any suit, appeal or other proceeding in which he was in any way
professionally engaged. This prohibition, however, does not prevent an
advocate from bidding for or purchasing for his client any property, which his
client may, he legally bid for or purchase, provided the Advocate is expressly
authorized in writing in this behalf.

DUTY TO COLLEAGUES:-

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.

RULE – 36 An advocate shall not solicit work or advertise, either directly or

indirectly, whether by circulars, advertisements, touts, personal
communications, interviews not warranted by 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. His
signboard or nameplate should be of a reasonable size. The sign-board or name-
plate or stationery should not indicate that he is or has been President or
Member of a Bar Council or of any Association or that he has been associated
with any person or organization or with any particular cause or matter or that he
specialises in any particular type of worker or that he has been a Judge or an
Advocate General.

RULE – 43 An Advocate who has been convicted of an offence mentioned

under Section 24A of the Advocates Act or has been declared insolvent or has
taken full time service or part time service or engages in business or any
avocation inconsistent with his practising as an advocate or has incurred any
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disqualification mentioned in the advocates Act or the rules made there under,
shall send a declaration to that effect to the respective State Bar Council in
which the advocate is enrolled, within ninety days from the date of such
disqualification. If the advocate does not file the said declaration or fails to
show sufficient cause for not filing such declaration provided therefore, the
Committee constituted by the State Bar Council under rule 42 may pass orders
suspending the right of the advocate to practice.

CASES:-
12
Sambhu Ram Yadav v. Hanuman Das Khatry

A complaint was filed by the appellant against an advocate to the Bar Council
of Rajasthan, that while appearing in a suit as a counsel, he wrote a letter stating
that the concerned judge, before whom the suit is pending accepts bribes, and
asked for Rs. 10,000 to bribe and influence the judge to obtain a favourable
order. The Disciplinary Committee, holding that the advocate was guilty if
“misconduct”, stated that such an act made the advocate “totally unfit to be a
lawyer.” The Supreme Court, upholding the finding of the Rajasthan Bar
Council held that the legal profession is not a trade or business. Members
belonging to the profession have a particular duty to uphold the integrity of the
profession and to discourage corruption in order to ensure that justice is secured
in a legal manner. The act of the advocate was misconduct of the highest degree
as it not only obstructed the administration of justice, but eroded the reputation
of the profession in the opinion of the public.

N.G. Dastane v. Shrikant S. Shind13

Where the advocate of one of the parties was asking for continuous
adjournments to the immense inconvenience of the opposite party, it was held
by the Supreme Court that seeking adjournments for postponing the
examination of witnesses who were present without making other arrangements
for examining such witnesses is a dereliction of the duty that an advocate owed
to the Court, amounting to misconduct.

12
(AIR 2001 SC 2509)
13
AIR (2001) 6 SCC 135
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Hikmat Ali khan v. ishwar Prasad arya and others civil appeal no
4240/198614

FACTS: - Ishwar Prasad arya was an advocate practising at badaun in U.P he

assaulted his opponent, radhey shyam in the court-room of munsif as badaun
with a knife. After investigation he was prosecuted for offences u/d section 307
IPC and section 25 of the Arms Act and he was sentenced for 3 years
imprisonment.

The appellant Hikmat Ali khan complained against the advocate and prayed for
fresh inquiry. In the said proceedings, the advocate appeared and files his return
statement but thereafter he did not appear. Hence, the bar council of U.P
proceeded ex-parte against him and the disciplinary committee of the state bar
council of U.P debarred for a period of 3 years. The advocate again appealed to
the bar council of India and it had set aside the punishment. Then Hikmat Ali
filed appeal to the Supreme Court.

JUDGEMENT: - The Supreme Court held that his conduct was such that his
name should be removed from the state rule of advocate as he was found guilty
of an offence attempting to commit murder and convicted for it and as he was
unworthy of remaining in the profession. The defendant assaulted his opponent
with a knife. Prosecuted under Section 307 of IPC and Section 25 of the Arms
Act. Conviction suspended on basis of a letter from the governor. Supreme
Court held that his conduct was such that his name should be removed from the
state role of advocates as he was unworthy of remaining in the profession after
the conviction. (Rule 7A of Chapter III of BCI Rules).

Conclusion:-

Where a lawyer is guilty of a conflict of interest in representing a client he will

have committed a breach of duty. That duty is usually expressed as a fiduciary
obligation arising out of the relationship between solicitor and client. But there
is similar duty owed by the lawyer to the court (as well as an ethical duty). The
duty to the court arises from the court‟s concern that it should have the
assistance of independent legal representation for the litigating parties. The
integrity of the adversarial system is dependent on lawyers acting with perfect
good faith. This is central to the preservation of public confidence in the
admission of justice.

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civil appeal no 4240/1986
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The usual basis for restraining a lawyer from acting for a client on the ground of
conflict of interest is that a conflict is perceived between the continuing duty of
the lawyer (owed to his former client) not to disclose or use the latter‟s
prejudice that which he learned confidentiality, and the interest he has in
advancing the case of his new client.

Every counsel has a duty to his client fearlessly to raise every Issue, advance
every argument and ask every question, however distasteful, which he thinks
will help his client's case. As an officer of the Court concerned in the
administration of justice, he has an overriding duty to the Court to the standards
of his profession, and to the public which may and often does lead to a conflict
with his client's wishes or with what the client thinks are his personal interests.

Webliograpghy

 www.huffingtonpost.in
 https://shodhganga.inflibnet.ac.in
 https://blog.ipleaders.in
 www.latestlaws.co
 https://law.freeadvice.com
 http://www.legalserviceindia.com
 www.investopedia.com
 https://criminal.findlaw.com
 https://www.livemint.com
 https://legalpoint-india.blogspot.com
 https://www.lawaudience.com