Professional Ethics

Prescribed dress code of advocates and law-related

Every profession has a certain dress code, and the people who belong to a particular profession are
recognised by their attire. Dress code is a symbol of confidence, discipline and profession so as Lawyers
dress code. A lawyer’s dress code in India is governed by the Bar Council of India Rules under the
Advocates Act, 1961, which make it mandatory for every lawyer to wear a black robe or coat with a
white shirt and a white neckband. Let a look at the evolution of the Legal dress code.
The History of Evolution of the Legal dress Code
The formal black and white dress that is worn by the legal professionals have a history not so black and
white as the dress itself. The history of the evolution of the dress code of the legal professionals dates
back to the middles ages where lawyers also known as barristers, solicitors, advocates or councillors,
their dress code was similar to that of judges. In Britain, barristers wore gowns with stuffed shoulders
and elbow-length glove sleeves. These gowns were mainly black according to the rules of Inns of Court
responsible for organizing barrister education and membership. The barristers also wore coifs and
skullcaps and bands around their necks. Nevertheless, the dress code of barristers who were not
permitted to present their case before the Courts wore long, open black gowns with winged sleeves.
However, during the seventeenth century, the solicitors were not required to wear a special dress code
and were allowed to wear common business suits.
The Colourful Seventeenth Century
During the seventeenth century, countries decided the dress code of the legal professionals according to
their taste and preferences. In 1602, the dress code of lawyers and judges were decided according to
the Royal mandate which specified the colour, fabric and length of the dresses and gowns of judges,
lawyers and clerks. There were specific colours prescribed according to the seasons and days of the
week. In Britain, the 1635 Decree of Westminster, authorized the Monarch to decide the dress code of
the legal profession. The dress code was decided according to seasons i.e., from spring to autumn,
Judges were required to wear a taffeta lined black or violet silk gown with cuffs made of silk or fur, a
matching hood and a mantle. During the winters, to keep the judges warm the taffeta lining was
replaced with miniver. Britain at that time also regulated the judicial dress code of its American colonies,
however, the dress code of legal professionals in America was comparatively less complex to that of the
British dress code.
The wig system
The introduction of the wig by the British bar and bench gave major fashion goals to the legal
professionals. The first wigs were imported by Charles II in 1660. These wigs were mainly made of
human or horsehair and were predominantly worn by the wealthy class in Britain. However, by the
middle of the eighteenth-century wigs fell out of fashion with the common man and was worn by the
legal professionals as an important part of their dress code.
With time the wig has been done away as part of the judicial dress code, however even in the 21st
Century, High-Court judges and the Queen’s Counsel in Britain and the Commonwealth continues to
wear full-bottomed wigs for ceremonial occasions, and shorter bench wigs are customary for daily
courtroom proceedings. Barristers in Britain wear a tie wig which is placed above the forehead exposing
the forehead from the hairline.
The Black and White 21st Century
The judicial dress code of the 21st century has undergone major transformation not only in style but
there have also been changes in the authority regulating the dress code. In Britain Judges, barristers and
clerks attending the Courts are required to wear black silk gown over their suits, a tie wig and a band
around their necks. Solicitors and lower court officials are not required to wear a wig. The High Court,
District Courts and Circuit courts are now the authority regulating the judicial dress code, unlike the
Monarchs in the seventeenth century.
Different coloured mantles are worn by Judges which changes according to the type of cases and
seasons. Till the seventeenth century, different colours were used for Judicial dress, however, later the
colour black became the traditional colour for the judicial dress. In France, black is the judicial colour of
the dress of Judges and it is said that Britain adopted the colour black for its barristers and judges. In
1684.
Other European countries follow a similar dress code where the Judges judges wear distinctive scarlet or
royal blue judicial robes, although this is governed by tradition rather than written statute. Lawyers and
advocates presenting at the European Courts of Justice wear their national legal costume, whether it be
plain dress or robe.
In the United States of America, levels of the judiciary wear long, black, cloth or silk gowns with bell-
sleeves and yoked necklines. They wear no wig, special headdress or collar, although male judges are
expected to wear a shirt and tie underneath their robes. There is no specific dress code for court clerks
appearing in courts, although the professional dress is assumed or required.
The Regulations of the Bar Council of India Regarding Dress Code
Chapter IV
Form of Dresses or Robes to be Worn by Advocates
Section 49 of the above Rules govern the dress code for the Advocates appearing in the Supreme Court,
High Court, subordinate courts, tribunals or authorities. They shall wear the following as part of their
dress, which shall be sober and dignified.
I. Dress Code for Advocates in India
Part VI: Chapter IV of the Bar Council of India Rules/ Rules Under Section 49(1)(gg) of the Advocates Act,
1961. It says, “the form of dresses or robes to be worn by Advocates, having regard to the climatic
conditions, appearing before any court or tribunal.”
1- Coat
(a) a black buttoned-up coat, chapkan, achkan, black sherwani and white bands with advocate’s
gown, or
(b) a black open breast coat, white-collar, stiff or soft, and white bands with Advocates’ gowns.
In either case long trousers (white, black, striped or grey) or dhoti excluding Jeans:
2- Black Tie
Provided further that in Courts other than the Supreme Court, High Courts, District Courts, Session
Courts or City Civil Courts, a black-tie may be worn instead of bands.
II. Lady advocates:
(a) black full sleeve jacket or blouse, white-collar stiff or soft with white bands and Advocates gowns.
White blouse, with or without collar, with white bands and with a black open breasted coat.
Or
(b) sarees or long skirts (white or black or any mellow or subdued colour without any print or design) or
flares (white, black or black-striped or grey) or Punjabi Dress Churidar-Kurta or Salwar-Kurta with or
without dupatta (white or black) or traditional dress with black coat and bands.
III. Provided that the wearing of advocate’s gown shall be optional except when appearing in the
Supreme Court or a High Court.
IV. Provided further that in a court other than the Supreme Court, High Court, District Court, Sessions
Court or City Civil Court, a black-tie may be worn instead of bands.”
Though the Advocates Act does not prescribe a different gown for the Senior Advocates, however,
Senior Advocates have been seen wearing a different gown which is distinct from the normal gown worn
by all other advocates. They put on Queen’s Counsel gown having a different pattern than the ordinary
gowns worn by advocates.
The dress code of Judges is the same as that of the Senior Advocates. Male Judges wear white shirts and
trousers with a white neckband and a black coat with a gown, whilst female Judges normally choose to
wear the traditional sari and pair it with a white neckband, a black coat and a gown.
As per the rules, An Advocate should not wear bands or gowns in public places other than in Courts,
except on such ceremonial occasions and at such places as the Bar Council of India or as the Court may
prescribe.
Amid the COVID-19 outbreak when the Courts have to follow Video Conferencing system for its
functioning it also brings a change in dress code for lawyers to appear before the court. The Supreme
Court of India has directed Advocates that they may wear “plain white shirt/ salwar-kameez/ saree, with
plain white neckband” during the hearings being done through virtual court. On the same footings
following it, High Courts across the country have notified the change for new dress code of lawyers to
appear through the virtual court. It added that the system will stay in place till the “medical exigencies
exist or until further orders.”

Privileges and restrictions of senior advocate

Restrictions on senior advocates are laid under Sections 16 (3) and 49 (1) (g) of the Advocates Act.
Section 30 in THE ADVOCATES ACT, 1961 describes advocates the right to practice.
Right of advocates to practice.—Subject to provisions of this Act, every advocate whose name is entered
in the 1[State roll] shall be entitled as of right to practice throughout the territories to which this Act
extends,—
(i) in all courts including the Supreme Court;
(ii) before any tribunal or person legally authorized to take evidence; and
(iii) before any other authority or person before whom such advocate is by or under any law for
the time being in force entitled to practice.
Section 16 in THE ADVOCATES ACT, 1961
16. Senior and other advocates.—
(1) There shall be two classes of advocates, namely, senior advocates and other advocates.
(2) An advocate may, with his consent, be designated as the senior advocate if the Supreme Court
or a High Court is of opinion that by virtue of his ability 1[standing at the Bar or special
knowledge or experience in law] he is deserving of such distinction.
(3) Senior advocates shall, in the matter of their practice, be subject to such restrictions as the Bar
Council of India may, in the interest of the legal profession, prescribe.
(4) An advocate of the Supreme Court who was a senior advocate of that Court immediately before
the appointed day shall, for the purposes of this section, be deemed to be a senior advocate:
2[Provided that where any such senior advocate makes an application before the 31st
December 1965 to the Bar Council maintaining the roll in which his name has been entered that
he does not desire to continue as a senior advocate, the Bar Council may grant the application
and the roll shall be altered accordingly.]
49 (1) (g) of the Advocates Act
(g) the restrictions in the matter of practice to which senior advocates shall be subject; 4[(gg) the form
of dresses or robes to be worn by advocates, having regard to the climatic conditions, appearing before
any court or tribunal;]
Senior Advocates shall, in the matter of their practice of the profession of law mentioned in Section 30
of the Act, be subject to the following restrictions:
(a) A Senior Advocate shall not file a vakalatnama or act in any Court, or Tribunal, or before any
person or other authority mentioned in Section 30 of the Act.
Explanation : “To act” means to file an appearance or any pleading or application in any court or
Tribunal or before any person or other authority mentioned in Section 30 of the Act, or to do any act
other than pleading required or authorised by law to be done by a party in such Court or Tribunal or
before any person or other authorities mentioned in the said Section either in person or by his
recognised agent or by an advocate or an attorney on his behalf.
(b) (i) A Senior Advocate shall not appear without an Advocate on Record in the Supreme Court or
without an Advocate in Part II of the State Roll in any court or Tribunal or before any person or
other authorities mentioned in Section 30 of the Act.
(ii) Where a Senior Advocate has been engaged prior to the coming into force of the rules in
this Chapter, he shall not continue thereafter unless an advocate in Part II of the State Roll is
engaged along with him. Provided that a Senior Advocate may continue to appear without an
advocate in Part II of the Sate Roll in cases in which he had been briefed to appear for the
prosecution or the defence in a criminal case, if he was so briefed before he is designated as a
senior advocate or before coming into operation of the rules in this Chapter as the case may be.

(c) He shall not accept instructions to draft pleading or affidavits, advice on evidence or to do any
drafting work of an analogous kind in any Court or Tribunal or before any person or other
authorities mentioned in Section 30 of the Act or undertake conveyancing work of any kind
 whatsoever. This restriction, however, shall not extend to settling any such matter as aforesaid
in consultation with an advocate in Part II of the State Roll.
(cc) A Senior Advocate shall, however, be free to make concessions or give an undertaking in the course
of arguments on behalf of his clients on instructions from the junior advocate.
(d) He shall not accept directly from a client any brief or instructions to appear in any Court or
Tribunal or before any person or other authorities in India.
(e) A Senior Advocate who had acted as an Advocate (Junior) in a case, shall not after he has been
designated as a Senior Advocate advice on grounds of appeal in a Court of Appeal or in the
Supreme Court, except with an Advocate as aforesaid.
(f) A Senior Advocate may in recognition of the services rendered by an Advocate in Part-II of the
State Roll appearing in any matter pay him a fee which he considers reasonable.

Contempt of court
The Contempt of Court means an act or omission which interferes or tends to interfere with the
administration of Justice. The Contempt of Courts Act, 1971 deals with contempt of Court. Section 2(a)
of The Contempt of Courts Act 1971, deals with civil contempt and criminal contempt.
Civil Contempt
Section 2(b) of the act provides that civil contempt means willful disobedience to any judgment, decree,
direction, order, writ, or other processes of a Court or willful breach of an undertaking given to a Court.
Criminal contempt
Section 2(c) of the act provides that criminal contempt means the publication (whether by words,
spoken or written or by signs or by visible representation or otherwise) of any matter or by doing of any
other act whatsoever which:-
(1) Scandalizes or tends to scandalize or lowers or tends to lower the authority of any Court.
(2) Prejudices or interferes or tends to interfere with, the due course of any judicial proceeding or
(3) Interferes or tends to interfere with or obstructs or tends to obstruct, the administration of
justice in any other manner.
However the above definition contained in the contempt of Court act 1971 is not exhaustive.
The following are Courts:
1) Arbitrator appointed by the Court under the Arbitration Act and not by the parties.
2) Election Tribunal constituted under Representation of Peoples Act, 1951.
3) Bar Council of India of State and their Disciplinary Committee constituted under the Advocates
Act.
However, it is to be noted that the Commission of Enquiry constituted under the Commission of Enquiry
Act is not a Court.
In K Shamaroo vs. Assistant Charity Commissioner
The supreme Court has held that in order to contribute a Court initial condition is that the Court should
have, power to give a decision or a definite judgment which has finality and authoritativeness which are
the essential test of judicial pronouncement. The Assistant Charity Commissioner appointed by Public
Trust Act has been held to be a Court for the purpose of The Contempt of Courts Act.
Kinds of contempt of Court
I. Civil Contempt
Civil contempt is taken as act or omission in a procedure involving a private injury by the disobedience of
the judgment, order or other processes of the Court.
To constitute, civil contempt two main elements, the disobedience and breach of undertaking given to
the Court must be willful. The purpose of the proceeding for civil contempt is not only to punish the
contemnor but also to exercise enforcement and obedience to the order of the Court.
Civil contempt actually serves dual purpose-
(1) Vindication of Public Interest by the punishment of contemptuous conduct.
(2) Coercion to compel the contemnor to do what the Court required of him.
It has been made clear that when the Courts order to do something or not to do something, it is
necessary for a person to comply with that order without any doubt or hesitation in his mind. The
excuse that he should consult the higher authorities before complying with the order of the Court can
be of no avail when he is asked to show cause why he should not be committed for contempt of Court.
No official superior can take any action against any office subordinate for complying with the Court's
order. Sometimes the superior officers themselves may be held liable for the contempt if they give
instructions contrary to the order of the Court.
In Courts on its own motion V/s N. S. Kanwar
The Punjab and Haryana High Court has observed that order passed by a Court of Contempt Jurisdiction
is binding on all concern. Everyone, howsoever he may be, is found to carry out the order of the Court.
The Court is under a duty to see that confidence of the public in the Institution of the Court is not
shaken by the executive authority by their disregard to the order of the Court.

II. Criminal Contempt

Section 2(c) of the act provides that criminal contempt means the publication (whether by words,
spoken or written or by signs or by visible representation or otherwise) of any matter or by doing of any
other act whatsoever which:-
1) scandalizes or tends to scandalize or lowers or tends to lower the authority of any Court.
2) prejudice or interferes or tends to interfere with, the due course of any judicial proceeding or
3) interface or tends to interfere with or obstructs or tends to obstruct, the administration of
justice in any other manner.
The essence of offense is that the act complained off are likely to result in scandalizing that authority of
the Court or interferes with due course of judicial proceedings or administration of Justice
In the case of Arundhati Roy, the Supreme Court has held that the defense that allegation contained in
reply filed to contempt notice cannot be contempt in view of section 499 of IPC, is not tenable. The law
of defamation under IPC cannot be equated with law of Contempt of Court.
 Function of State Bar council
Introduction
The Advocates Act provides for constitution of two types of BAR council-State Bar Council and Bar
Council of India. Section 3 of the Act provides for the establishment of State Bar Council and Section 4 of
the Act provides for the establishment of a Bar Council of India. The main functions of the State Bar
Councils as specified under Section 6 of the Advocates Act are to act in the interest of the advocates, to
bring in legal reform, to regulate the conduct of advocates, to establish funds and to oversee the Legal
Education in the respective states among others
State Bar Council: Establishment and Organization
Section 3 of the Advocates Act provides that there shall be a Bar Council-
a) for each state of Andhra Pradesh,Bihar, Gujarat, Jammu and Kashmir, Madhya Pradesh, Karnataka,
Orissa, Rajasthan, Uttar Pradesh to be known as the Bar Council of that state.
b) states of Maharashtra and Goa and union territories of Dadra and Nagar Haveli and daman and Diu
to be known as the Bar Council of Maharashtra and Goa.
c) for the Union Territory of Delhi to be known as Bar Council of Delhi .
Section 3 of the Act makes provision in respect of the organisation of BAR council. It provides that a
state bar council shall consist of the following members, namely -
a) in the case of state bar council with an electorate not exceeding 5000, 15 members in the case of
state bar council with an electorate exceeding 5000 but not exceeding 10000,20 members in case of
state bar council with electorate exceeding 10000, 25 members elected in accordance with the
system of proportional representation by means of Single Transferable Vote from amongst advocate
on the electoral roll of the State Bar Council.
b) there shall be Chairman and Vice Chairman of each State Bar Council.
Section 8 provides term of the office of members of State Bar Council: The term of office of an elected
member of State Bar Council shall be of 5 years from date of publication of the result of his election.
Functions of State Bar Council: Section 6
Every Bar Council shall be a body corporate having perpetual succession and a common seal, with power
to acquire and hold property, both movable and immovable, and to contract, and may by the name by
which it is known sue and be sued.
1) admit a person as Advocate on its roll.
2) to prepare and maintain such a roll.
3) to entertain and determine cases of misconduct against Advocate on its roll.
4) to safeguard the rights, privileges and interests of Advocates on its roll.
5) to promote and support law reforms.
6) conduct seminar and organise talk on legal topics by eminent jurist and publish journals and papers
of legal interest.
7) legal Aid to the poor in a prescribed manner.
8) to manage and invest the funds of the bar council.
9) provide for the election of its members.
10) to perform all other functions conferred on it by or under this act.
11) to do all other things necessary for discharging the aforesaid functions.
The Advocates Act, 1961
Section 3 of the Advocates Act establishes the State Bar Councils for the States and Union Territories
mentioned in the Section 3 (1), while Section 3 (2), defines the membership of these state councils. The
later sub-clauses define the chairmanship, vice chairmanship, the grounds for disqualification and other
related matters.
Section 7 of the Act elaborates upon the functions that are to be performed by the State Bar Councils and
the funds that are constituted by it for various purposes. This is discussed in detail below –
1. The State Bar Councils are empowered to admit persons as advocates on roll and maintain such roll.
2. They act upon the complaints made regarding the misconduct of advocates on its roll.
3. The State Bar Councils are responsible for the growth and promotion of the Bar Associations so that it
can effectively administer its functions.
4. The State Bar Councils need to bring in reform in the Legal Profession.
5. They organise and conduct various talks, seminars, workshops, conferences on various topics by
eminent to jurists to better equip the Bar and publish Legal journals and other materials to keep the
Bar updated of the latest developments in the field.
6. The State Bar Councils organize legal aid for the poor and downtrodden and also manage the funds
allocated to or raised by it.
7. They are also tasked with conducting periodic elections for its various posts and also ensure that
these are conducted in a free and fair manner.
8. The State Bar Councils also regulate the Legal Education imparted in the respective State Universities.
Apart from this, the State Bar Councils are also empowered under Section 6 (2) of the act to constitute
funds for many purposes including –
I. For giving financial assistance for welfare schemes meant for the indigent, disabled or other
deserving advocates.
II. For providing Legal Aid or Advice to the people who need.
III. For establishing Law Libraries in the State.
Section 24 defines the minimum qualifications for eligibility for membership of these councils. The State
Councils are also empowered to make rules, which need to approved by the Bar Council of India, to carry
on the purposes under Sections 16 to 28 (Chapter III).
Other functions of Bar council: Enrollment of Advocate- Bar council shall issue a certificate of enrollment
in prescribed form to every person whose name is entered in the role of advocate maintained by it under
this act.
 Principles determining misconduct
The term ‘Professional Misconduct’ in the simple sense means improper conduct. In legal sense it means
an act done willfully with a wrong intention by the people engaged in the profession. It means any
activity or behavior of an advocate in violation of professional ethics for his selfish ends. If an act results
in dispute to his profession and make him unfit of being in the profession, it amounts to ‘Professional
Misconduct’. In other words, an act which disqualifies an advocate to continue in legal profession.
Professional misconduct may consist:-
 in betraying the confidence of a client
 in attempting by means to practice fraud
 to deceive the Court or adverse party or his Counsel
In State of Punjab v. Ram Singh (AIR 1992 SC 2188), The Supreme Court held that the term ‘misconduct’
may involve:-
 moral turpitude
 improper or wrongful behavior
 unlawful behavior
 willful in character
 a forbidden act
 transgression
 carelessness or negligence in performance of duty
 or the act complained of bears forbidden quality or character
Chapter -V of the Advocates Act of 1961 deals with conduct of Advocates it describes provision relating to
punishment for professional and other misconducts. Section 35(1) of the Advocates Act, 1961 provides
for referring any complaint to disciplinary committee for disposal. Though the act as well as Bar Council
are silent in providing the exact definition of professional misconduct, through punishments are provided
on acts of omission and commission by any member of the profession.
In Shambhu Ram Yadav v. Hanuman Das Khatry (AIR 2001 SC 2509), the Supreme Court made it clear that
writing a letter to his client to send money to bribe the Judge is a serious misconduct. It also held that
legal profession is not a trade or business.
Misconduct of an Advocate may be explained with reference to the following –
1. Dereliction of Duty
Dereliction of Duty means handing over brief to another advocate and such transfer is considered as
unprofessional but if he does so with the consent of his client, it is not improper.
Case: V.C Ranga Durai v. D Gopalan (AIR 1979 SC 281)
The Supreme Court in this case held that a lawyer entrusted with a brief must follow the norms of
professional ethics and must protect the interests of his clients.
2. Professional Negligence
An advocate is expected to exercise reasonable skill and prudence and should not be negligent. In order
to constitute misconduct, the negligence must be accompanied by –
 suppression of truth or
 deliberate misrepresentation of facts
Case: Mohd. Ismail v. Balarathna (AIR 1965 Mys. 28)
It was held that it amounts to misconduct if an advocate neglects to furnish requisite documents or
material papers despite of repeated adjournments.
Case: N.G Dastane v. Shrikant S. Shivde (AIR 2001 SC 2028)
The Supreme Court has made it clear that seeking repeated adjournments for postponing examination of
witnesses present in the Court amounts to misconduct and an advocate may be punished.
3. Misappropriation
When an advocate collects money from his clients for court purposes and misuses it is called as
misappropriation which amounts to professional misconduct.
Case: D.S Dalal v. State Bank of India (AIR 1993 SC 1608) In this case there was a complaint against an
advocate that he misappropriated the amount paid to him towards the filing of suit and professional fees.
The advocate pleaded that the suit papers were misplaced by the High Court Registry. It was duly
established that the suit papers were returned to the advocate for removing objections but the advocate
did not refile the suit for a long time. The Disciplinary Committee found him guilty of misappropriation of
money paid to him by his client and therefore, punished him for professional misconduct.
Case: L.C Goyal v. Suresh Joshi (AIR 1999 SC 2222) In this case the advocate misappropriated the money
received as court-fee. He was held guilty of professional misconduct.
4. Contempt of Court and Improper behavior before Magistrate: An advocate must respect the court
and maintain the dignity. Making of false allegations against the judicial officers amounts to gross
misconduct.

5. Furnishing false information: Furnishing false information amounts to ‘professional misconduct’.

Case: Emperor v. K.C.B A Pleader (AIR 1935 Cal. 547). In this case certain tins of ghee were seized by
Municipal authorities on being adulterated and kept under the custody of a Marwari. The advocate
falsely told the Marwari that the Sub-Divisional Office had ordered that the tins to be handed over
the owner. The advocate was held guilty of misconduct.

6. Appearing for both the sides: An advocate is under a duty to do his best to protect the interest of his
clients. He must not represent conflicting interest.

7. Giving Improper Advice: Advocacy being a noble profession, an advocate must give his clients the
benefit of his learning, talent and judgment. An advocate must give his proper advice if he is unable
to take up the brief he should advice the client to consult another counsel but should not give
improper advice. Improper advice amounts to misconduct.
Conclusion
Legal Profession is an epochal in its nature. Bar Council of India plays a vital role in enacting pandect. It
must regularly monitor and accordingly bring about amendments in professional ethics with changing the
aura of the society.

Committee of bar council of India

STRUCTURE OF THE BAR COUNCIL OF INDIA
The Bar Council of India consists of 18 Members. The Attorney General of India and the Solicitor General
of India are Ex-officio Members of the council and the other 16 Members represent the 16 State Bar
Councils in the country. The Members are elected for a period of five years and the Chairman and Vice
-Chairman are elected for a period of two years from among the Members of the Bar Council of India.
The Bar Council further consists of various committees viz., Legal Education Committee, Disciplinary
Committee, Executive Committee, Legal Aid Committee, Advocates Welfare Fund Committee, Rules
Committee and various other Committees formed to look into specific issues arising from time to time.
COMMITTEES OF BAR COUNCIL OF INDIA
- The Bar Council of India has various committees that make recommendations to the Council. The
members of these committees are elected from amongst the members of the Council.

- The Advocates Act mandates the creation of a Disciplinary Committee (under section 9), a Legal
Education Committee, and an Executive Committee (under section 10). Chapter III of the Bar
Council of India Rules permit the Council to appoint from amongst its members, one or more
committees in addition to those specified in the Act. The Council can delegate powers, duties, and
functions to these committees. The term of the members of the committees of the Council has
been specified in Chapter III of the Bar Council of India Rules. A different term can be specified at
the time of election.
LEGAL EDUCATION COMMITTEE
The Legal Education Committee consists of five members of the Bar Council of India and five coopted
members to represent the judiciary, the Law Ministry, the University Grants Commission, and academia.
This committee makes recommendations to the Bar Council of India on all matters pertaining to legal
education in the country. The committee elects its own Chairman.
The Legal Education Committee has the power:
• To make recommendations to the Council for laying down the standards of legal education for
Universities.
• To visit and inspect Universities and report the results to the Council.
• To recommend to the Council the conditions subject to which foreign qualification in law obtained
by persons other than citizens of India may be recognised.
• To recommend to the Council for recognition of any degree in law of any University in the territory
of India.
• To recommend the discontinuance of recognition of any University already made by the Council.
DISCIPLINARY COMMITTEE
The disciplinary committee of the Bar Council of India hears applications for revision by persons against
summary dismissal of their complaints against advocates for professional misconduct, by the State Bar
Councils. Appeals lie before the Bar Council of India against orders of the disciplinary committees of the
State Bar Councils. Every such appeal is heard by the disciplinary committee of the Bar Council of India,
which may pass an order, including an order varying the punishment awarded by the disciplinary
committee of the State Bar Council. Each disciplinary committee consists of three members. The term of
the members of this committee is three years.
EXECUTIVE COMMITTEE
The Executive Committee is the executive authority of the Council, and is responsible for giving effect to
the resolutions of the Council. Members of the Executive Committee are elected from amongst the
members of the Bar Council of India. The committee elects its Chairman and Vice-chairman.
The Executive Committee has the power:
• To manage the funds of the Council,
• To invest the funds of the Council in the manner directed by the Council from time to time,
• To grant leave to members of the staff, other than casual leave,
• To prescribe books of account, registers and files for the proper management of the affairs of the
Council,
• To appoint and supervise the work of the members of the staff and prescribe their conditions of
service
• To appoint auditors and fix their remuneration,
• To consider the annual audit report and place it before the Council with its comments for its
consideration,
• To maintain a library and under the directions of the Council, publish any journal, treatise or
pamphlets on legal subjects,
• To prepare and place before the Council, the annual administration report and the statement of
account,
• To provide for proper annual inspection of the office and its registers,
• To authorise the Secretary to incur expenditure within prescribed limits,
• To fix travelling and other allowances to members of the committees of the Council, and to
members of the staff,
• To delegate to the Chairman and/or the Vice-Chairman any of its aforementioned powers,
• To do all other things necessary for discharging the aforesaid functions.
CONCLUSION
The Bar Council of India has a lot of functions vested within itself, whereby exercising those functions it
can restructure and reframe the entire legal arena in the country. In fact, it can be more predominantly
envisaged that in modern times it has hardly contributed constructively in the improvement of law in
India. There are certain loopholes in the legal arena in India today which the Bar Council must look into,
in order to protect the law standard from degradation and to maintain the same standards.

Duties of advocate to client

Advocate and his clients: Duty towards clients
  Sources of relations between counsel and client:
In India, the counsel’s relations with his client are primarily a matter of contract. The relation is in the
nature of agent and principal. The agreement determines to what extent the counsel can bind his clients
by his acts and statements; what shall be its remuneration, whether he will have a lien on his client’s
property, etc. It is evident, however, that as counsel is also conform to the ethical code prescribed for
him by law and usage, he cannot be a mere agent or mouthpiece of his clients to carry out his biddings.
 The relationship is personal and fiduciary:
It is a relation of trust and confidence. It is confidential requiring a high degree of fidelity and good faith.
o It is a relationship of trust and confidence. All transactions between the advocate and his client
will be watched by the Court with jealousy and suspicion. Even though the transaction is not
illegal, the court will scrutinize it most closely and requires strict proof that no undue advantage
has taken by the counsel of the confidence reposed in him by the client. He should avoid
business with his client not only in regard to Matters in suit but also in relation to other matters.
He should, for instance, neither lend nor borrow.
o The advocate must keep clear and accurate account of all moneys received from and on behalf
of his clients. Money collected by the counsel on behalf of the client should be promptly paid
over to him.
o The counsel should return papers and documents to the client the moment the case has
terminated. No paper should be retained without the client’s consent.
o Counsel also cannot delegate his duties without the client’s consent.
o The counsel while accepting the retainer should disclose to his client any matter which might
affect the relation or the client’s direction in choosing him as his counsel. He should inform him
of any interest in which he may have in a matter concerning which he is employed; any adverse
retainer; or anything which may, in any degree interfere with his exclusive devotion to the cause
confided to him.
o After engagement the counsel must not revise agreement regarding his remuneration, or, while
the business in which he had been employed is unfinished, except present and gifts from the
clients.
o It is the duty of the advocate not to use information which has been confided to him as
advocate to the detriment of the client, and this duty continues even after the relation of
advocate and client has ceased.
o It is the duty of advocate not to appear for two clients whose interest are in conflict.
o It is the right of the client to discharge any time his advocate whom he no longer trusts or on
whose skill and ability he no longer relies.
o The advocate must not divulge his client’s secrets or confidences as these communications are
privileged and protected under section 126 of the Indian Evidence Act.
Advocate’s duty to his clients
A special responsibility rests on the members of the Bar to see that the parties do not misled the courts
by false and reckless statements on material matters. As was observed in that an advocate stands as a
loco parentis towards litigants. A member of a Bar undoubtedly owes a duty to his clients and must
place before a court all that can be fairly and reasonably be submitted on behalf of his clients. Advocate
is not a mere a mouthpiece of client but he is an officer of the court. It is the duty of the court to help
bringing down arrears and to prevent the abuse of the process of the abuse of the court. Their duty to
client should persuade them to advise their clients not to go in futile litigation.
It is expected that an advocate for a party would conduct a case with all its sense of responsibility which
he is expected to have in discharge of his duty to his client. It is the duty of every advocate who accepts
the brief in a criminal case to attend the trial from day to day. He would be committing the breach of his
professional duty if he fails to attend.

A client is entitled to be protected from an advocate who is likely to betray them; the profession cannot
afford to have a member who fails in keeping to the required standard of conduct. It is the duty of an
advocate who has accepted the vakalatnama and filed it in the court to go to court on the day fixed for
the hearing of the case even if he has not received his fees unless the client terminates the contract.
Moreover, the payment of commission to procure client is unprofessional.
What the counsel owes to his client
The first obligation which the advocate owes to his client is to prepare his brief with care, skill and
thoroughness:
Secondly, in giving advice to his client for or against litigation, he should give his candid opinion.
Counsel also owes duty of continuous service to his clients. When the counsel after he has begun the
case leaves the court to attend another case, it amounts to professional misconduct.

Duties of advocate towards Opponent

The advocate should maintain towards his opponent utmost cordiality. Clients and not the counsel are
litigants. Just as it is the right of the advocate not to be interrupted by the court,so it his duty not to
interrupt his opponent. Interruption of the opponent is improper for several reasons:
Each party has a right to impress on the court, its point of view as it considers best, and there should be
no improper interference with this right.
If proper interruption is allowed, it would result in constant wrangling between the advocates and
consequent confusion in the court. This will destroy the dignity of the court and the parties will not be
able to state their cases.
No counsel has the right to prevent a judge from following the course of argument of the opposite side.
By improper interruption your opponent may lose the thread of his argument, or it may spoil the effect
of his cross examination on a vital point.
Moreover, a lawyer should not in any way communicate upon the subject of controversy with a party
represented by counsel; much less should he undertake to negotiate and compromise the matter with
him, but should deal only with his counsel. It is incumbent on the lawyer most particularly to avoid
anything that may tend to mislead a party not represented by counsel.

Duties of advocate towards Opponent

Advocate is an officer of justice and friend of the Court:
The cardinal principle which determines the privileges and responsibilities of advocate in relation to the
court is that he is an officer to justice and friend of the court. This is the primary position. A conduct
therefore which is unworthy of him as an officer of justice cannot be justified by stating that he did it as
the agent of his client. His status as an officer of justice does not mean he is subordinate to the judge. It
only means that he is an integral part of the machinery for the administration of justice.
Co-operation between the bench and the Bar is a necessity:
The first duty which advocates and judges owe to each other is of co-operation. Co-operation between
the bench and the Bar is not a mere conventional statement. It is a fundamental necessity. Without it,
there can be no orderly administration of justice. Says Sir Cecil Walsh in his book called
The Advocate:
“Nothing is more calculated to promote the smooth and satisfactorily administration of justice than
complete confidence and sympathy between Bench and the Bar”.
What the counsel owes to the court:
o The first duty which the counsel owes to the court is to maintain its honour and dignity—this is
the cardinal principle determining the advocate relation in court. The advocate owes courtesy
and respect to the court for the following reasons:
- Because he is the like judge himself, an officer of the court and an integral part of the judicial
machine. The legal position consists of the Bar as well as Bench, and both have common aims
and ideals.
- In theory, it is the King or Sovereign who presides in the court of justice, and 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. Because not only litigants
and witnesses but the general public will get their inspiration in this respect from the examples
of advocates. It is necessary for the administration of justice that judges should have esteem of
the people.
- Because it is good manners, and advocates before anything else are “gentleman of the Bar.”
- Even from the purely practical standpoint, there is nothing to be gained but there is much too
loose by antagonising the Court. Conflict with the judge renders the trial disagreeable to all and
generally an injurious effect on the interests of clients. Because the usual practise in modern
times is to appoint judges from among the members of the Bars, and even where this rule is
not strictly observed the bench is fairly representative of the Bar.
- Because it is necessary for dignified and honourable administration of justice that the court
should be regarded with respect by the suitors and people.
o The advocate should not display temper in court. He will not indulge in any kind of insinuation in
the court against the judge. He should convince the judge by argument and reason and not by
appeal to his sentiments. While the case is going on, the advocate cannot leave the court
without the court’s permission, and without putting another man in charge.
o The advocate must not do anything which lowers public confidence in the administration of
justice:
o It is the duty of the bar to support judges in their independence because in the integrity of
judges lies the greatest safeguard of a nation’s law and liberties. Judicial independence is the
only protection against tyranny and whims of the executive.
o The advocate must not do anything which is calculated to obstruct, divert or corrupt the stream
of justice, for instance, he must not advise disobedience to the courts order and decrees.
o Another duty which the advocate owes to the court is that of fidelity, he must be honest in his
representation of the case. He must not deceive the court.
 o The counsel is under an obligation to present everything to the judge openly and in the court,
and nothing privately. He must not attempt to influence private influence upon the judge: seek
opportunities for the purpose; or take opportunities of social gatherings to make ex parte
statements or to endeavour to impress his views upon him.
o The advocate must not place himself in a position which he cannot effectively discharge his
obligations to the Court as minister of justice. He should not have any personal interest in the
litigation he is conducting. It will be misconduct on his part to stipulate with his client to share in
the results of litigation.
Relations of advocates and judges outside the court:
Advocates and judges are members of same fraternity. They are both officers of state engaged and
united in the common ideal of promoting legal justice. Judges are generally selected from lawyer’s rank
and, have therefore the same lineage. Lawyers are not subordinate officers of the Court
Advocate’s Duties toward court:
It is difficult to lay down any hard and fast rule as to what expression a lawyer can use with impunity
while addressing the court and what should ordinarily be tolerated by it.
Adjournments:
A pleader who asks for adjournments on different occasions to move the High Court for the transfer of a
case and takes no steps at all, on these occasions in either himself or by means of his clients to move the
High Court and it appears that the adjournments were asked for merely to delay the course of justice
with deliberate intention renders himself liable to be punished for grossly improper conduct in the
discharge of his professional duty.
Advice from Court: It is not proper on the part of the counsel to take advice from the court as to the kind
or amount of evidence which is required to be adduced in support of his client’s case.
Drunkenness:
It is highly objectionable on the part of advocate to attend the court in such a drunken state as to enable
to conduct the case properly and keep the decorum of the court. In the above cited case a pleader for
an accused appear in the court of a magistrate and was unable to conduct the case of his client, as he
ought to have done.
Attempt to influence judge:
Where a pleader tried to influence judge before whom he was arguing the case, through a relation of
the latter, it was held that the pleaders act was highly reprehensible and it was in the interest of the
legal profession that serious notice should be taken of such an act.
Conduct in bail matters:
A legal practitioner standing surety to a man arrested under section 420 of the IPC, and convicted under
that section and keeping in possession on behalf of the accused properties held later on to have been
involved in the offence is not guilty of professional misconduct. But advocate who receives money in
furtherance of a contract of indemnity of bail is guilty of grave misconduct and only suitable punishment
for retention by him of the money on pretence that it was his fees is the removal of his name from the
roll as held in.
Apart from these some other ethical conduct requires on the part of advocates are:
 He should not disobey the order requiring payment to the client.
 It is the duty of legal practitioner to assist the court. If he appears in the court and makes the
demonstration which has the effect of interfering with the work of the court and the administration
of justice, then it amounts to misconduct.
 It is the duty of the pleader to bring to court’s notice death of any party.
 An attorney is bound to honour his undertaking in his capacity as a solicitor.
 Lastly, it is the counsel’s right to insist on getting what is truth in the matter.

Duties of a lawyer to public and to the state.

Duties to the society
- Duty to facilitate legal education, training of young lawyers and research in legal discipline
- Duty to render legal aid to those in need.
 Role of Bar council for promotion of legal education
Under the Advocates Act, 1961 the role allocated to BCI was limited to promote legal education and to
lay down minimum standards necessary for those students who would ultimately enter the legal
profession to practice in the courts.

According to the Supreme Court in India, in O.N Mohindroo v. BCI1 and Bar Council of UP2 the subject
covered by the Advocates Act, 1961 is referable to Entries 77 and 78 in List I of Schedule VII of the
Constitution of India. These two entries deal, among others, with the subject: persons entitled to
practice before the Supreme Court (Entry 77) and persons entitled to practice before the High Court
(Entry 78).

Under section 7(1) (h) of the Advocates Act, the BCI has been entrusted, as stated above, with a limited
role of “promoting legal education and laying down practice”. Section 7(1) (h) requires the BCI to
“consult the universities for the purpose of laying down these standards in legal education”. Section 7(1)
(i) of the Act enables the BCI to grant recognition to universities whose law degrees shall be sufficient
qualification for enrolment as an advocate. The BCI, may for this purpose, visit and inspect the
universities concerned whose degrees in law may be recognized for the purpose of enrolment of law
graduates as lawyers. Similar power is conferred by Section 6(1) (gg) of the Act on the State Bar Councils
in regard to inspection. Section A of Part IV of the Rules made by the BCI deals with the five years
course. Section B deals with the three years course and Section C deals with inspection.

The aim of transnational legal education is not to create individuals who can “practice” law in a number
of jurisdictions. Although graduates of such a program may well wish to do so, such ability should not be
seen as an objective in itself, but merely as an incidental result. Our Legal Education must help students
specialize in international trade practices, comparative law, conflict of laws, international human rights
law, environmental law, gender justice, space law, bio medical law, bio- ethics, international advocacy
etc.; they must also acquire a general knowledge of American, French, German, Chinese and Japanese
Law.

Globalization does not merely mean addition or inclusion of new subjects in the curriculum as stated
above. While that is, no doubt, an important matter, the broader issue is to prepare the legal profession
to handle the challenges of Globalization.

While Indian industry and business have expanded beyond national boundaries into other continents
and while international business investments into India have come to stay, the bulk of our law schools
operate in isolation and focus only on local needs and not even upon the needs of the nation, let alone
regional or international needs. This situation that has been created can be broken only by establishing
an independent regulatory mechanism with an international vision, which can see beyond the
requirements of “entry into the bar.”

In the light of the changed scenario in the last fifty years, the needs of globalization after 1991, and the
gaps and deficiencies in the existing system as referred to above which have to be filed up, it is clear that
the BCI has neither the power under the Advocates Act, 1961 nor the expertise to meet the new
challenges both domestically and internationally. It is therefore, necessary to constitute a new
regulatory mechanism with a vision both of social and international goals, to deal with all aspects of
legal education. However the recommendations of BCI in regard to maintenance of minimum standards
for the purpose of 'practice n courts' will have to be binding on the new Regulator.

Soliciting briefs violates professional ethics?

Q. “Soliciting briefs is against professional ethics". This principle of the Bar Council applicable in India is
not followed in England and the USA. Has the time come to change this rule? What should be the limits
of soliciting? Why?

It is settled position of law that a journalist or lawyer does not have a sacrosanct right to withhold
information regarding crime under the guise of professional ethics_ A Lawyer cannot claim a right over
professional communication beyond what is permitted under Section 126 of the Evidence Act There is
also no law that permits a newspaper or a journalist to withhold relevant information from courts
though they have been given such power by virtue of Section 15(2) of the Press Council Act, 1978 as
against the Press Council."

Do you agree with the legal proposition? Give reasons with special reference to the advantages and
disadvantages of allowing journalists to keep confidential their sources of their information.

Answer: “Supreme Court rejects plea of Advocate Utsav Bains that information provided by him, in the
investigation into the allegations of sexual harassment against the CJI, is privileged under Section 126 of
the Indian Evidence Act.” The Bench referred to the relevant texts and illustrations to Section 126 of the
Indian Evidence Act which states that:

Professional communications.—No barrister, attorney, pleader or vakil shall at any time be permitted,
unless with his client’s express consent, to disclose any communication made to him in the course and for
the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client,
or to state the contents or condition of any document with which he has become acquainted in the
course and for the purpose of his professional employment or to disclose any advice given by him to his
client in the course and for the purpose of such employment:

Provided that nothing in this section shall protect from disclosure—

1. Any such communication made in furtherance of any illegal purpose;

2. Any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as
such, showing that any crime or fraud has been committed since the commencement of his
employment.

The Bench further referred to the Paragraph 38 of the judgment in People’s Union for Civil Liberties and
Another Vs. Union of India, reported in (2004) 9 SCC 580 which held that:
“38. It is settled position of law that a journalist or lawyer does not have a sacrosanct right to withhold
information regarding crime under the guise of professional ethics. A lawyer cannot claim a right over
professional communication beyond what is permitted under Section 126 of the Evidence Act. There is
also no law that permits a newspaper or journalist to withhold relevant information from Courts though
they have been given such power by virtue of Section 15(2) of the Press Council Act, 1978 as against the
Press Council. (See also : M.S.M Sharma V. Shri Sri Krishna Sinha and Sewakram Sobhani V. R.K Karanjia,
which quoted Arnold V. King Emperor with approval and also British Steel Corpn. V. Granada Television
and Branzburg V. Hayes.) Of course the investigating officers will be circumspect and cautious in
requiring them to disclose information. In the process of obtaining information, if any right of citizen is
violated, nothing prevents him from resorting to other legal remedies.”

Further reliance was placed on the judgment of the Allahabad High Court in Ganga Ram Vs. Habib-Ullah
& Anr which stated that ‘the court has discretion in the matter, if it deems fit, to inspect such a
document, even though there is an objection to its production or to its admissibility, provided that it
does not refer to matters of State.’

Holding the inadmissibility of the plea to privilege made by Advocate Utsav Bains, the Bench appointed
Retired Justice A.K. Patnaik to investigate and prepare a report to be submitted to the Bench into the
contents of the affidavits submitted by Advocate Utsav Bains.

Privileged Communications

A "privileged professional communication" is a protection awarded to a communication between the

legal adviser and the client. Professional communications and confidential communications with the
legal advisors have been accorded protection under The Indian Evidence Act, 1872 ("the Act"). If the
privilege did not exist at all, everyone would be thrown upon his own legal resources. Deprived of all
professional assistance, a man would not venture to consult any skilled person, or would only dare to
tell his counsel half his case. We will discuss this topic from the perspective of India and few other
countries in the world. In this article we will discuss the Indian law the way it perceives attorney-client
privilege.

Privileged Communications

In India, Sections 126 to 129 of the Act deal with privileged communication that is attached to
professional communication between a legal adviser and the client.

Section 126 of the Act provides the scope of privilege attached to professional communications in an
attorney-client setting. It restricts attorneys from disclosing any communications exchanged with the
client and stating the contents or conditions of documents in possession of the legal advisor in course of
and for the latter's employment with the client.

The section also provides certain exceptional grounds on which such privilege shall stand denied, being
in furtherance of any illegal purpose or facts coming to the awareness of the attorney showing that
either crime or fraud has been committed since the commencement of the attorney's employment on
the concerned matter. It is immaterial whether the attention of such barrister, [pleader], attorney or
vakil was or was not directed to such fact by or on behalf of his client.
Section 127 extends the privilege provided under section 126 to the interpreters, clerks and servants of
the legal adviser.

Section 128 continues to bind the legal adviser from disclosing any information covered under sec 126
unless the client calls the legal adviser as a witness and questions him on the same.

Section 129 lays down that no one shall be compelled to disclose to the court any confidential
communication which has taken place between him and his legal professional advisor, unless he offers
himself as a witness.

To claim privilege under section 126 of the Act, a communication by a party to his pleader must be of a
confidential nature. (Memon Hajee Haroon Mohomed v. Abdul Karim [1878] 3 Bom. 91). Also, there is
no privilege to communications made before the creation of a relationship of a pleader and client.
(Kalikumar Pal v. RajkumarPal 1931 (58) Cal 1379, Para 5)

In India any person who seeks an advice from a practicing advocate, registered under the Advocates Act,
would have the benefit of the attorney-client privilege and his communication would be protected
under section 126 of the Act. This section would also extend to the employees of the advocate/law firm
which could include accountants, paralegals, and such other employees.

Bar Council Of India Rules

The Bar Council of India Rules ("BCIR") stipulates for all advocates (legal advisers) certain standards of
professional conduct and etiquette. Part VI, Chapter II, Section II, Rule 17 of BCIR stipulates that "An
advocate shall not, directly or indirectly, commit a breach of the obligations imposed by Section 126 of
the Indian Evidence Act" thus reiterating the spirit of attorney-client privilege, breach of which will also
lead to violation of the Bar Council Rules.

Position Of An In-House Counsel

The Supreme Court in Satish Kumar Sharma v. Bar Council of Himachal Pradesh (AIR 2001 SC 509) held
"If a full-time employee is not pleading on behalf of his employer, or if terms of employment are such
that he does not have to act or plead but is required to do other kinds of functions, then he ceases to be
an advocate. The latter is then a mere employee of the government or the body corporate".

The judgment also quotes Part VI, Chapter II, Section VII, Rule 49 of the Bar Council of India Rules,
stating that 'an advocate shall not be a full-time salaried employee of any person, government, firm,
corporation or concern, so long as he continues to practice and shall, on taking up any such employment
intimate the fact to the Bar Council on whose roll his name appears, and shall thereupon cease to
practice as an advocate so long as he continues in such employment. An advocate cannot be a full-time
salaried employee. The only exception is if the person is a Law Officer of the Central Government of a
State or of any public corporation entitled to be enrolled in the Bar.'

In Municipal Corporation of Greater Bombay v. Vijay Metal Works (AIR 1982 Bom 6) the court held that
"a salaried employee who advises his employer on all legal questions and also other legal matters would
get the same protection as others, viz., barrister, attorney, pleader or vakil, under Ss.126 and 129, and,
therefore, any communication made in confidence to him by his employer seeking his legal advice or by
him to his employer giving legal advice should get the protections of Ss.126 and 129."
Thus, in India, communications between clients and in-house lawyers would generally have to be tested
whether the in-house counsel is a full time salaried employee as contemplated under Part VI, Chapter II,
Section VII, Rule 49 of BCIR.

Is a lawyer obliged to accept all cases?

The Constitution says about the right of an accused to be defended as per Article 22(1) gives the
fundamental right to every person not to be denied the right to be defended by a legal practitioner of
his or her choice. Article 14 provides for equality before the law and equal protection of the laws within
the territory of India. Article 39A, part of the Directive Principles of state policy, states that equal
opportunity to secure justice must not be denied to any citizen by reason of economic or other
disabilities, and provides for free legal aid.

The Karnataka High Court observed that it is unethical and illegal for lawyers to pass resolutions against
representing accused in court. This was after local bar associations had objected to four students
arrested for sedition being defended in court. The Hubli Bar Association submitted that it would take
back a resolution it had passed on February 15; on Friday, the High Court asked the association to place
on record a resolution withdrawing the earlier one.

This is not the first time that bar associations have passed such resolutions, despite a Supreme Court
ruling that these are “against all norms of the Constitution, the statute and professional ethics”. The
Supreme Court referred to writer Thomas Paine, who had been tried for treason in England in 1792.
Thomas Erskine, The Supreme Court cited other historical examples of accused being defended —
revolutionaries against British rule; alleged assailants of Mahatma Gandhi and Indira Gandhi; Nazi war
criminals at the Nuremberg trials.

The Supreme Court ruled: “In our opinion, such resolutions are wholly illegal, against all traditions of the
bar and against professional ethics. Every person, however wicked, depraved, vile, degenerate,
perverted, loathsome, execrable, vicious or repulsive he may be regarded by society has a right to be
defended in a court of law and correspondingly, it is the duty of the lawyer to defend him.” It said such
resolutions were “against all norms of the Constitution, the statute and professional ethics”, called these
“a disgrace to the legal community”, and declared them null and void.

A writ petition was filed in the Uttarakhand High Court after the Kotdwar Bar Association passed a
resolution stating that anyone who represented the accused in the murder case of an advocate would
have their membership of the Bar terminated. The court held the resolution null and void. It directed the
State Bar Council to initiate action against office-bearers of the Bar Association if such resolutions were
passed in the future. It also said that action under Section 15(2) of the Contempt of Courts Act, 1971,
can be considered against advocates who interrupt court proceedings.

Various bar associations across the country have passed such resolutions over the years. Among the
prominent cases:

* After the 2008 terror attack in Mumbai, a resolution was passed against representing Ajmal Kasab. A
Legal Aid lawyer was assigned the brief but he refused, while another who agreed to defend Kasab faced
threats. Subsequently, a lawyer was appointed and given police security.

* After the 2012 gangrape in Delhi, lawyers in Saket court passed a resolution not to defend the
accused.

* In 2017, the Supreme Court directed lawyers of the Gurgaon District Bar Association not to obstruct
any lawyer defending the accused in the murder of a seven-year-old schoolboy.

Judge accepts hospitality from lawyer?

In India on 7th May 1997 a 16 point code of conduct, for ensuring proper conduct among members of
the higher judiciary was adopted by the Judges of the Supreme Court and the High Courts with the
Gujarat High Court as the sole dissenter, reportedly. The 16 point code which the Judges prefer to
describe as “The Restatement of Values of Judicial Life” is believed to have become effective since then.
It was drafted by a Committee of five Judges, headed by Justice Dr.A.S.Anand, as he then was. The other
members were Justice S.P.Barucha, Justice K.S.Paripoornan, Justice M.Srinivasan and Justice
D.P.Mohapatra.

(1) Justice must not merely be done but it must also be seen as done. The behaviour and conduct of
members of the higher judiciary must reaffirm the people’s faith in the impartiality of the judiciary.
Accordingly, any act of a Judge of the Supreme Court or a High Court, weather in official or personal
capacity, which erodes the credibility of the perception has to be avoided.

(10) A Judge shall not accept gifts or hospitality except from his family, close relations and friends.

Shambhuram Yadav vs. Hanumandas Khatri AIR 2001 SC 2509- The lawyer suggested that his client give
bribe to the judge to get the suit decided in his favour. The Supreme Court held the lawyer guilty of
professional misconduct. (Violation of Rule 3 and 4 of BCI Rules- – Chapter II)

THE BANGALORE PRINCIPLES OF JUDICIAL CONDUCT 2002: Value 4: PROPRIETY

4.14 A judge and members of the judge's family, shall neither ask for, nor accept, any gift, bequest, loan
or favour in relation to anything done or to be done or omitted to be done by the judge in connection
with the performance of judicial duties.

4.15 A judge shall not knowingly permit court staff or others subject to the judge's influence, direction or
authority, to ask for, or accept, any gift, bequest, loan or favour in relation to anything done or to be
done or omitted to be done in connection with his or her duties or functions.
4.16 Subject to law and to any legal requirements of public disclosure, a judge may receive a token gift,
award or benefit as appropriate to the occasion on which it is made provided that such gift, award or
benefit might not reasonably be perceived as intended to influence the judge in the performance of
judicial duties or otherwise give rise to an appearance of partiality

Need of a new law suggested

The only remedy is to provide a legal conscience and for that there is necessity to enact a new law on
the lines of Prevention and Corruption Act, 1988 under the purview of which the judges of the Supreme
Court and the High Courts shall be brought, because neither the impeachment procedure of the Judges
as provided in the Constitution nor the internal judicial machinery to prevent the corruption of Judges of
the Higher Judiciary in India is workable.

Strike by lawyers
According to the constitutional perspective right to strike is a fundamental corollary conferred by part III
of the constitution under the right to freedom of association art 19(c) where a group of people
upholding a common interest can come together and demand of their rights. However freedom of
association under art 19 is not an absolute right, certain reasonable restrictions are imposed on it. Any
deficiency in the system would lead to a violation of the fundamental right to a speedy trial guaranteed
by Article 21 of the Constitution. Therefore, the call to strike by advocates has a negative effect on the
functioning of the judiciary.

The frequent protests and strikes hamper the administration of justice, leading to delays in trial and
ultimately to the pendency of cases. From time to time, the Supreme Court used its right to strike by
lawyers in its various rulings and instructed the litigants to work effectively for justice without any
failures.

The BCI- Bar Council of India has laid down rules regarding professional etiquettes and conduct in Part IV
of Chapter II of the BCI Rules. Under this, the advocates are bound by the rules to perform duties
towards the court and client.

- Section 4 of the Advocates act 1961 mentioned about the establishment of Bar Council of India and
- Section 7 explains about the function of BCI, wherein clause (b) conferees power to BCI to lay
standards of professional conduct and etiquettes of advocates.
- No Bar Council or Bar Association can permit calling of a meeting for purposes of considering a call
for strike or boycott and requisition.

Ex-Capt. Harish Uppal v Union of India and Another (2003) 2 SCC 45

The Court held that lawyers have no right to go on strike or give a call for boycott, not even on a token
strike. The protest, if any is required, can only be by giving press statements, TV interviews, carrying out
of court premises banners and/or placards, wearing black or white or any color armbands, peaceful
protest marches outside and away from court premises, etc. In another landmark case,

Hussain v Union of India (2017) 5 SCC 702

The court had clearly stated that the lawyers strike and suspension of the court is illegal and it is high
time that legal fraternity realizes its duty to the society which is foremost.

However, Section 7 clause (d) of the advocate's act 1961explains the functions of Bar Council of India to
safeguard the rights, privileges, and interest of advocates therefore abiding by the rules grievances of
lawyers must be heard and further steps should be taken to tackle their issues that they are facing.

In 266th report of law commission of India a suggestion has been made that at every district
headquarters, the District Judge may constitute an Advocates Grievance Redressal Committee headed
by a Judicial Officer which will deal with the day to day routine matters, a large number of issues and
grievances arise in the smooth working of the advocates. In this regard, the High Court may issue a
circular in an exercise of its power under article 235 of the Constitution providing for redressal of
grievances of the Advocates which will help in improving their efficiency. In case there is some grievance
against a Judicial Officer, the Bar may raise the grievance before the Chief Justice of the concerned High
Court. Taking these suggestions into consideration. Taking these suggestions into consideration the
grievances of advocates can be construed to a greater extent that will ultimately help in curbing the
menace of strikes by lawyers.

Right to practice and limitation of rights

Chapter-IV of the Advocates Act, 1961 is titled “Right to practice”. Section 29 states that only advocates
are entitled to practice the profession of law and this right under section 30 extends to all courts,
tribunals and other authorities mentioned therein. Section 33 states that only a person enrolled as an
advocate can practice in any court or before any authority or person. Section 32 enables the court to
permit even a person not enrolled as an advocate to appear before it in any case.

The word “advocate” is defined in section 2A and on a reading of other clauses in the definition in
section 2 means advocate who has enrolled with any State Bar Council. In the absence of a definition in
the Advocates Act, 1961, ‘practice the profession of law’ would mean taking into consideration the
historical evolution of this legislation to mean, practicing before courts and tribunals and would not
apply to non-litigation work.

Article 220 of the Constitution of India restricts a retired judge from practicing in the court in which he
was a judge. However, he is entitled to practice in any other High Court and the Supreme Court. The
Advocates Act, 1961 and Bar Council Rules requires such a retired judge to re-enroll himself before a Bar
Council so as to re-acquire right to practice.

Several retired judges give extensive legal opinion, which is a non-litigation work. Similarly, deciding
disputes as an arbitrator is a mixture of both litigation and non-litigation. Now, according Bombay High
Court in Lawyers Collective 2010 (2) BomCR 753 was confirmed recently by Supreme Court of India in
Bar Council of India v AK Balaji (2018) 5 SCC 379 (popularly known as the entry of Foreign Law Firms into
India matter) ruling, retired judges performing all the aforesaid activities are engaged in practice the
profession of law but it would be illegal unless they are enrolled as advocates.
DISQUALIFICATIONS:

Section 24 of the Advocates Act, 1961, lays down certain conditions on fulfilment of which a person is
qualified to be appointed as an Advocate on a state roll[16] but this is subject to the disqualifications
laid down under Section 24A[17] of the Advocates Act,1961, which has been inserted by the
Amendment in the year 1973.

“It provides that no person shall be admitted as an advocate if:

 He has been convicted of an offence which involves moral turpitude; or

 He has been convicted of an offence under the Untouchability (Offences) Act,1955; or
 He has been removed from employment under the State on the charge involving moral
turpitude.[18]”

It was held in the case of Ramnath Lathi v. State of Madhya Pradesh 1997(1) MPLJ 579 (India) that an
Advocate who does not suffer any disqualification under the provisions of Advocates Act and rules of the
High Court, he has right to plead, act and do all necessary things for an accused in a criminal
prosecution.

b) MISCONDUCT:

Section 35 covers professional and other misconducts which make the advocates unworthy to wear the
robes of this noble profession. The disciplinary committee will fix a date for hearing and give notice of
the same to the Advocate concerned and Advocate General of the state.

In the case of Dastane v. Srikant 2001 KHC 497 (India)., it was held that if the complaint is genuine and is
not filed for the purpose of causing harassment to the advocate, then it is the statutory duty of the Bar
Council to refer the complaint to the disciplinary committee.

“Section 35(3) of the Act lays down the orders that the Disciplinary committee may pass after hearing
the concerned Advocate and Advocate-general. Such orders are:-

 Dismiss the complaint

 Reprimand the Advocate
 Suspend the Advocate for a certain period as it considers fit
 Remove his name from the State rolls of Advocate.”

The exclusive power to punish an advocate for professional misconduct has been conferred on the State
Bar Council and Bar Council of India. It was held in the case of Supreme Court Bar Association v. Union of
India that the Court cannot in the case of professional misconduct punish an advocate under the Article
129 of the Constitution of India and he can be punished by the Bar Council only under the Advocates
Act.

“According to Section 37 of the Act, the order passed by the Disciplinary Committee under Section 35 is
appealable. Any person aggrieved by such order can within a period of 60 days appeal to the Bar Council
of India and it will be heard by the Disciplinary Committee of the Bar Council of India. If any person is
further aggrieved by the order of the Disciplinary Committee of Bar Council of India, then an appeal can
be made within a period of 60 days to the Supreme Court.”
c) RESTRICTION ON THEIR EMPLOYMENT:

Under Chapter II of Part VI of Bar Council of India Rules, 1975[29] the following restrictions have been
put on the employment of the Advocates.

 He cannot personally engage in any business but he is entitled to be a sleeping partner in a

business firm. The only restriction, in this case, is that such business should not be inconsistent
with the dignity of the profession in the opinion of the State Bar Council.
 He cannot be a Director or Secretary of any Company.
 He cannot be a full-time salaried employee of any government, person, and corporation.
 He cannot personally manage a family business which he has inherited or has succeeded but he
can continue to hold his share in such business.
 He may become a Director or Chairman of the Board of Directors of a company only if duties are
not of executive nature.

On July 14 2020, the top court had issued notice to BCI on a PIL seeking a direction to BCI to allow them
to advertise to get work and to take up other assignments to survive during COVID19 crisis asking it to
respond in two weeks. As common lawyers find it difficult to earn a decent living during COVID19
pandemic, a PIL had sought a direction to BCI to allow them to advertise to get work and to take up
other assignments to survive.

Advocate entitled to maintain website?

The Bar Council of India, pursuant to its functions mentioned under Section 7(1)(b) of the Advocates
Act,1961 read with its powers to make rules under Section 49(1)(c),has framed Rule 36 of the Bar
Council of India Rules under Section IV(Duty to Colleagues) of Chapter II (Standards of Professional
Conduct and Etiquette) of Part IV(Rules Governing Advocates).

In 2008 , The Bar Council of India passed a resolution on 30th April, 2008 in front of a three-member
bench of the Supreme Court headed by Justice B N Aggarwal that advocates will be allowed to advertise
on the internet. The bench was hearing a petition filed by an advocate, V B Joshi, in the year 2000,
challenging Rule 36, Section IV of the BCI rules which prohibits the legal fraternity from advertising their
services.

- Resolution passed by the Bar Council of India on 30th April, 2008 to amend Rule 36 of the Bar
Council of India Rules: “PROVIDED that this rule will not stand in the way of advocates furnishing
website information as prescribed in the Schedule under intimation to and as approved by the Bar
Council of India. Any additional other input in the particulars than approved by the Bar Council of
India will be deemed to be violation of Rule 36 and such advocates are liable to be proceeded with
misconduct under Section 35 of the Advocates Act, 1961.”
In 2008, the complete ban on advertising by lawyers was lifted and relaxed to a certain extent. The
amendment allowed advocates to mention their names, telephone numbers, email IDs and professional
and educational qualifications on the websites of their choice which listed legal service providers.

Legal profession is a dignified profession?

This was recognised in Indian Council of Legal Aid and Advice v. Bar Council of India [(1995) 1 SCC 732]
where the Apex Court enunciated that the duty of a lawyer is to assist the court in the administration of
justice, the practice of law has a public utility and, therefore, he must strictly by the Code of Conduct.

The judiciary has reinforced these principles, which can be reflected in words of Justice Krishna Iyer,
when he noted, 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. In the case of Srinath V. Union of India (AIR 1996 Mad
427) Madras High Court held that, in view of Sec. 3 of Consumer Protection Act, 1986. Consumer
redressal forums have jurisdiction to deal with claims against advocates. Sec. 2 (U) of competition Act,
2002 defines the term ‘Service’ along the lines of consumer protection Act, 1986. Thus it may be
concluded that legal services are becoming subject of trade related laws where consumerism and
market forces should be given adequate spac .

An advocate must maintain a respectful attitude while at court and shall respect the dignity of the
judicial office: In the case of U.P. Sales Tax Service Association v Taxation Bar Association (1995) it was
stated that the survival of a free community is endangered if an advocate doesn’t show respect or
recognises the dignity of the judicial officer. The Advocates Act, 1961 and Bar Councils Act, 1926 lay
down the professional ethics that need to be followed by lawyers. It brings upon accountability upon the
legal professionals for dishonest, irresponsible and unprofessional behaviour. Furthermore, advocates
can lose their license (to practice at court/firm) if they resort to unethical practices that endanger and
tarnish the dignity of the legal profession.

Section 35 (1)
The term ‘Professional Misconduct’ in the simple sense means improper conduct. In legal sense it
means an act done willfully with a wrong intention by the people engaged in the profession. It means
any activity or behavior of an advocate in violation of professional ethics for his selfish ends. If an act
results in dispute to his profession and make him unfit of being in the profession, it amounts to
‘Professional Misconduct’. In other words, an act which disqualifies an advocate to continue in legal
profession. State of Punjab v. Ram Singh 1992: The Supreme Court held that the term ‘misconduct’ may
involve –

 moral turpitude
 improper or wrongful behavior
 unlawful behavior
 willful in character
 a forbidden act
 transgression
 carelessness or negligence in performance of duty
  or the act complained of bears forbidden quality or character

Chapter-V of the Advocates Act of 1961 deals with conduct of Advocates it describes provision relating
to punishment for professional and other misconducts. Section 35(1) of the Advocates Act, 1961
provides for referring any complaint to disciplinary committee for disposal.

Though the act as well as Bar Council are silent in providing the exact definition of professional
misconduct, through punishments are provided on acts of omission and commission by any member of
the profession. In Shambhu Ram Yadav v. Hanuman Das Khatry 2001, the Supreme Court made it clear
that writing a letter to his client to send money to bribe the Judge is a serious misconduct. It also held
that legal profession is not a trade or business.

Misconduct of an Advocate may be explained with reference to the following –

1. Dereliction of Duty

Dereliction of Duty means handing over brief to another advocate and such transfer is considered as
unprofessional but if he does so with the consent of his client, it is not improper.
V.C Ranga Durai v. D Gopalan 1974: The Supreme Court in this case held that a lawyer entrusted with a
brief must follow the norms of professional ethics and must protect the interests of his clients.

2. Professional Negligence
An advocate is expected to exercise reasonable skill and prudence and should not be negligent. In order
to constitute misconduct, the negligence must be accompanied by:-
- suppression of truth or
- deliberate misrepresentation of facts
Mohd. Ismail v. Balarathna 1965: It was held that it amounts to misconduct if an advocate neglects to
furnish requisite documents or material papers despite of repeated adjournments.
N.G Dastane v. Shrikant S. Shivde 2001: The Supreme Court has made it clear that seeking repeated
adjournments for postponing examination of witnesses present in the Court amounts to misconduct and
an advocate may be punished.
3. Misappropriation

When an advocate collects money from his clients for court purposes and misuses it is called as
misappropriation which amounts to professional misconduct.

D.S Dalal v. State Bank of India 1993: In this case there was a complaint against an advocate that he
misappropriated the amount paid to him towards the filing of suit and professional fees. The advocate
pleaded that the suit papers were misplaced by the High Court Registry. It was duly established that the
suit papers were returned to the advocate for removing objections but the advocate did not refile the
suit for a long time. The Disciplinary Committee found him guilty of misappropriation of money paid to
him by his client and therefore, punished him for professional misconduct.

L.C Goyal v. Suresh Joshi 1997: In this case the advocate misappropriated the money received as court-
fee. He was held guilty of professional misconduct.

4. Contempt of Court and Improper behavior before Magistrate

An advocate must respect the court and maintain the dignity. Making of false allegations against the
judicial officers amounts to gross misconduct.

5. Furnishing false information

Furnishing false information amounts to ‘professional misconduct’.

Emperor v. K.C.B A Pleader 1935: In this case certain tins of ghee were seized by Municipal authorities
on being adulterated and kept under the custody of a Marwari. The advocate falsely told the Marwari
that the Sub-Divisional Office had ordered that the tins to be handed over the owner. The advocate was
held guilty of misconduct.

6. Appearing for both the sides

An advocate is under a duty to do his best to protect the interest of his clients. He must not represent
conflicting interest.

7. Giving Improper Advice

Advocacy being a noble profession, an advocate must give his clients the benefit of his learning, talent
and judgment. An advocate must give his proper advice if he is unable to take up the brief he should
advice the client to consult another counsel but should not give improper advice. Improper advice
amounts to misconduct.

Advantages and disadvantages of allowing journalist or lawyer to keep confidentiality

Professional communication between a legal adviser and a client is accorded protection under the
Indian Evidence Act, 1872 (the Act), the Advocates Act, 1961 (Advocates Act) and the Bar Council of
India Rules (BCI Rules). Sections 126 to 129 of the Act is a codification of the principles of common law
on professional communications between attorneys and clients. Any person who seeks advice from a
practicing advocate, registered under the Advocates Act, would have the benefit of the attorney-client
privilege and his or her communication would be protected. Attorneys cannot, without the express
consent of the client:

 Disclose any communication made during the course of or for the purpose of his or her employment
as such attorney, by or on behalf of his or her client;
 State the contents or condition of any document with which he or she has become acquainted in the
course of and for the purpose of his or her professional employment; or
 Disclose any advice given by him or her to his or her client in the course and for the purpose of such
employment. There are certain limitations to the privilege and the law does not protect the
following from disclosure:
 Disclosures made with the client’s express consent;
 Any such communication made in furtherance of any illegal purpose; or
 Any fact observed by any attorney in the course of his or her employment, showing that any crime
or fraud has been committed since the commencement of his or her employment. The fact that the
attention of the attorney was or was not directed to such fact by or on behalf of his or her client in
not material in this regard

Further, under section 129 of the Act, no one shall be compelled to disclose to the court any confidential
communication that has taken place between him or her and his or her attorney, unless they have
offered themselves as a witness in which case they may be compelled to disclose any communication as
may appear to the court necessary to be known in order to explain any evidence that they have given,
but no other.

(Kalikumar Pal v Rajkumar Pal 1931 (58) Cal 1379): Communications between an attorney and client are
privileged even if they contain information from third parties. Prohibition of disclosure also extends to
any interpreters, clerks or servants of the attorney. While the attorney-client privilege continues even
after the employment has ceased, there is no privilege to communications made before the creation of
an attorney-client relationship

The BCI Rules stipulate certain standards of professional conduct and etiquette for all attorneys. These
provide that ‘An advocate shall not, directly or indirectly, commit a breach of the obligations imposed by
section 126 of the Act’, thus reiterating the spirit of attorney-client privilege (Rule 17, Chapter II, Part VI).

Further, Rules 7 and 15 of the BCI Rules on An Advocate’s Duty Towards the Client provides as follows:

• Rule 7. Not disclose the communications between client and himself: 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.
• Rule 15. An advocate should not misuse or takes advantage of the confidence. A breach of the
above Rules would subject an advocate to disciplinary proceedings. In view of the above, privileged
communication between an attorney and a client are not admissible as evidence.

Exclusions from Advocate-Client Privilege.

Under section 129 of the Act, no one shall be compelled to disclose any confidential communication to
the court, which has taken place between a client and his or her attorney, unless the client offers himself
or herself as a witness in which case he or she may be compelled to disclose any such communication as
may appear to the court necessary to be known in order to explain any evidence which he or she has
given, but no other.

- To claim privilege, the communication must be of a private and confidential nature, and must have
been provided sub sigillo confessionis (ie, in confidence). Where the communication is made in the
presence of third parties, the court will examine whether the person intended it to be confidential
or not. The position occupied by the third party and whether the third party had the same interests
is relevant.
In Bhagwani Choithran v Deoram, AIR 1933 Sind 47, a client made a statement to his attorney in the
presence of the client’s friends. The court held that since the friends occupied more or less the same
position as the client, and had the same interests, privilege was not destroyed; however, the court held
that it could be evidence that communication was not being made in confidence.

Under section 91 of the (Indian) Code of Criminal Procedure, a court can compel the production of any
document, and the person in whose possession it is, if the document is necessary or desirable for the
purpose of any inquiry, trial or other proceeding.

Journalism

The Law Commission of India, in its Ninety-Third Report on Disclosure of Sources of Information by Mass
Media, submitted to the Government of India on September 9, 1983, considered this question at some
length in the light of legal developments in the law in Britain, the United States and elsewhere and
recommended the insertion of an explicit provision in the Indian Evidence Act, 1872 (Section 123A), in
recognition of the right. It reads as follows: “132A. No court shall require a person to disclose the
sources of information contained in a publication for which he is responsible, where such information
has been obtained by him on the express agreement or implied understanding that the source will be
kept confidential.”

The Press Council of India Act, 1978, also contains an explicit provision on the protection of sources in
inquiries by the council. Section 15(2) reads thus: “15(2) Nothing in sub-section (1) shall be deemed to
compel any newspaper, news agency, editor or journalist to disclose the source of any news or
information published by that newspaper or received or reported by that news agency, editor or
journalists.”

Press Council of India: NORMS OF JOURNALISTIC CONDUCT, Section 3: Public Interest and Public Bodies
Sub-section (xvi) The media and the authorities are two very important pillars of our democracy and for
the government to function successfully in public interest a press as responsible as watchful is an
essential pre-requisite.