Professional Ethics

Unit 1 Professional Ethics

1.1 Meaning and Nature of Professional Ethics

Derivation: The word ‘ethics’ is derived from a Greek word ‘ethos’ meaning
character. Ethics is mainly known as the principle of moral conduct that makes a
distinction between good and bad, right and wrong. Professionals are the persons
who are engaged in a profession for a living.Professional ethics are principles that
govern the behavior of a person or groupnecessary in a workplace. It provides rules
on how a person should act towardsother people. In simple term, it explores the
philosophy of study of the moralproblems that arise within a profession. It gives a
certain set of broad principlesderived in turn from a spectrum of values which are
arrived at after deepphilosophical reflection on the nature and role of the profession.

Need For Ethics

The persons ethical standards may differ from those of society as a whole .
The person may choose to act selfishly.
Thus the need for ethics in society is sufficiently important that many commonly held
ethical values are incorporated into laws.
Ethical behavior is necessary for a society to function in an orderly manner.
Ethics guide the person to place the needs of the society at the higher position that
his/her personal selfishness.

Definitions:
Professional ethics have been defined as ‘Giving of one’s best to ensure that the
client’s interests are properly cared for but in doing so the wider public interest is
also recognized and respected.’The Concise Oxford Dictionary defines ethics as
‘Relating to morals, treating ofmoral questions, morally correct and honorable.’PE
cover the personal ,organizational and corporate standards that are expected of
professionals.Includes issues involving relationships or responsibilities
with:Employees,employers,and other people who use the products or services.PE
includes social,political,and personal issues related with the professionals.Our
society has attached a special meanings to the term professional.Professionals are
expected to conduct themselves at a higher level than most other members of
society.

PE can be defined as professionally accepted standards of p[ersonal and business

behavior,value and guiding principles.Code of Pe are often established by
professional organization to help guide member or staff in performing their job
functions according to consistent ethical principle.In the globalization world,the
developments of many occupations in different fields are rapidly growing.Pe helps a
professional choose what should he/she do when faced with problem,and confine
the enquire to the description.Pe concern to assist with making choices and
approaches called Prescriptive professional ethics.Prescriptive professional ethics
can refer to thought processes use value,virtual,rules,ethical theories,moral
reasons,moral explanation and moral decision.

Components:
1. Honesty
2. Integrity
3. Transparency
4. Accountability
5. Confidentiality
6. Objectivity
7. Respectfulness
8. Obedience to law

Aspects:
Lisa Newton (1988) has distinguished between the internal and external aspects of
ethics in professional practice.

1. Internal aspect: It is ontologically prior to the external aspect. It is the

personal conscience that each professional brings to the professional
enterprise.
2. External aspect: The external aspect consists of the publicly specified moral
requirements of the profession.

Nature:
1. Scientific nature: Ethics is a normative science which determines norms,
moral values in a person and an individuals’s character. It is a systematic
explanation of what is wrong and what is right.
2. Variable nature: It is not static. Human beings change and so do their
morality and ethical perspective.
3. Exclusively for human beings: Ethics can only be applied to human beings
as we are the ones who have the capacity for moral judgment. We cannot
expect ethical behavior from animals as they are not as intelligent as human
Beings.

Conclusion:
Ethics is not compulsory in a person’s life and it is not forced upon anyone but
being ethical is one step forward towards being a good person. But in case of
professional ethics, one who does not follow the ethics and rules at work place are
subjected to disciplinary action.
1.2 PRINCIPLE OF LEGAL ETHICS AND PROFESSIONAL ETHICS

IBA International Principles on Conduct for the Legal Profession

Lawyers throughout the world are specialized professionals who place the interests
of theirclients above their own, and strive to obtain respect for the Rule of Law. They
have to combine a continuous update on legal developments with service to their
clients, respect for the courts, andthe legitimate aspiration to maintain a reasonable
standard of living. Between these elementsthere is often tension. These principles
aim at establishing a generally accepted framework toserve as a basis on which
codes of conduct may be established by the appropriate authorities forlawyers in any
part of the world. In addition, the purpose of adopting these InternationalPrinciples is
to promote and foster the ideals of the legal profession. These InternationalPrinciples
are not intended to replace or limit a lawyer’s obligation under applicable laws
orrules of professional conduct. Nor are they to be used as criteria for imposing
liability, sanctions,or disciplinary measures of any kind.

1. Independence- A lawyer shall maintain independence and be afforded the

protection suchindependence offers in giving clients unbiased advice and
representation. A lawyer shall exercise independent, unbiased professional judgment
in advising a client, including as to the likelihood of success of the client’s case.

2. Honesty, integrity and fairness -A lawyer shall at all times maintain the highest
standards of honesty, integrity and fairness towards the lawyer’s clients, the court,
colleagues and all those with whom the lawyer comes into professional contact.

3. Conflicts of interest- A lawyer shall not assume a position in which a client’s

interests conflict with those of the lawyer, another lawyer in the same firm, or another
client, unless otherwise permitted by law, applicable rules of professional conduct, or,
if permitted, by client’s authorization.

4. Confidentiality/professional secrecy- A lawyer shall at all times maintain and be

afforded protection of confidentiality regarding the affairs of present or former clients,
unless otherwise allowed or required by law and/or applicable rules of professional
conduct.

5. Clients’ interest -A lawyer shall treat client interests as paramount, subject always
to there being no conflict with the lawyer’s duties to the court and the interests of
justice, to observe the law, and to maintain ethical standards.

6. Lawyers’ undertaking- A lawyer shall honor any undertaking given in the course of
the lawyer’s practice in a timely manner, until the undertaking is performed, released
or excused.
7. Clients’ freedom -A lawyer shall respect the freedom of clients to be represented
by the lawyer of their choice. Unless prevented by professional conduct rules or by
law, a lawyer shall be free to take on or reject a case.

8. Property of clients and third parties- A lawyer shall account promptly and faithfully
for and prudently hold any property of clients or third parties that comes into the
lawyer’s trust, and shall keep it separate from the lawyer’s own property.

9. Competence- A lawyer’s work shall be carried out in a competent and timely

manner. A lawyer shall not take on work that the lawyer does not reasonably believe
can be carried out in that manner.

10. Fees -Lawyers are entitled to a reasonable fee for their work, and shall not
charge an unreasonable fee. A lawyer shall not generate unnecessary work.

Charter of Core Principles of the European Legal Profession

In a society founded on respect for the rule of law the lawyer fulfils a special role.
The lawyer’s duties do not begin and end with the faithful performance of what he or
she is instructed to do so far as the law permits. A lawyer must serve the interests of
justice as well as those whose rights and liberties he or she is trusted to assert and
defend and it is the lawyer’s duty not only to plead the client’s cause but to be the
client’s adviser. Respect for the lawyer’s professional function is an essential
condition for the rule of law and democracy in society.” – the CCBE’s Code of
Conduct for European Lawyers, article 1.1

There are core principles which are common to the whole European legal profession,
even though these principles are expressed in slightly different ways in different
jurisdictions. The core principles underlie the various national and international
codes which govern the conduct of lawyers. European lawyers are committed to
these principles, which are essential for the proper administration of justice, access
to justice and the right to a fair trial, as required under the European Convention of
Human Rights. Bars and Law Societies, courts, legislators, governments and
international organisations should seek to uphold and protect the core
principles in the public interest.

The core principles are, in particular:

(a) the independence of the lawyer, and the freedom of the lawyer to pursue the
client’s case;
(b) the right and duty of the lawyer to keep clients’ matters confidential and to
respect professional secrecy;
(c) avoidance of conflicts of interest, whether between different clients or between
the client and the lawyer;
(d) the dignity and honor of the legal profession, and the integrity and good repute of
the individual lawyer;
(e) loyalty to the client;
(f) fair treatment of clients in relation to fees;
(g) the lawyer’s professional competence;
(h) respect towards professional colleagues;
(i) respect for the rule of law and the fair administration of justice; and
(j) the self-regulation of the legal profession.

Basic Principles on the Role of Lawyers

(Adopted by the Eighth United Nations Congress on the Prevention of Crime and the
Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990)
1. Access to lawyers and legal services
2. Special safeguards in criminal justice matters
3. Qualifications and training
4. Duties and responsibilities
5. Guarantees for the functioning of lawyers
6. Freedom of expression and association
7. Professional associations of lawyers
8. Disciplinary proceedings

CORE PRINCIPLES OF THE LEGAL PROFESSION

(Resolution ratified on Tuesday October 30, 2018, during the General Assembly in
Porto)Preamble- The lawyer’s role is to counsel, conciliate, represent and defend.
1. Independence of the lawyer and of the Bar
2. Legal professional privilege and confidentiality
3. Prohibition of conflicts of interest
4. Competence
5. Dignity, probity, loyalty and diligence
6. Respect towards professional colleagues
7. Contribution to the proper administration of justice and respect for the rule of law
8. Right to fair remuneration

Therefore, the following principles can be derived from all of the above:
i) Principles of applicability
ii) Principle of disciplinary power
iii) Principle of honesty
iv) Principle of loyalty
v) Principle of proper care
vi) Principle of secrecy and confidence
vii) Principle of independent professional judgment
viii) Principle of representation
ix) Principle of proper information
x) Principle of proper relationship
xi) Principle of responsibility to state
xii) Principle of well behavior
1.3 Internationnal Standard of the legal Professionals(Lawyers,Judges and
Public Prosecutors)
The maintenance of ethical and moral standard in the legal field is dependent on the
performance of all the involved parties or actors in the adjudication of the case within
the prescribed ethical and moral framework. To maintain a certain level of coherence
, uniformity, and consistency in the practice worldwide, certain international
standards have been formulated.

The three parties involved mainly or namely are:

i. Lawyers
ii. Judges and
iii. Public Prosecutors

A.Lawyers
A lawyer shall at all times maintain the highest standards of honesty, integrity and
fairness towards the lawyer's clients, the court, colleagues and all those with whom
the lawyer comes into professional contact.Lawyers throughout the world are
specialized professionals who place the interests of their clients above their own,
and strive to obtain respect for the Rule of Law. They have to combine a continuous
update on legal developments with service to their clients, respect for the courts, and
the legitimate aspiration to maintain a reasonable standard of living.

1.IBA International Principles on Conduct for the Legal Profession

The International Principles consist of ten principles common to the legal profession
worldwide. Respect for these principles is the basis of the right to a legal defence,
which is the cornerstone of all other fundamental rights in a democracy. 3 The
International Principles express the common ground which underlies all the national
and international rules which govern the conduct of lawyers, principally in relation to
their clients.
1. Independence; A lawyer shall maintain independence and be afforded the
protection such independence offers in giving clients unbiased advice and
representation. A lawyer shall exercise independent, unbiased professional judgment
in advising a client, including as to the likelihood of success of the client’s case.

2. Honesty, integrity and fairness: A lawyer shall at all times maintain the highest
standards of honesty, integrity and fairness towards the lawyer’s clients, the court,
colleagues and all those with whom the lawyer comes into professional contact.

3.Conflicts of interest; A lawyer shall not assume a position in which a client’s

interests conflict with those of the lawyer, another lawyer in the same firm, or another
client, unless otherwise permitted by law, applicable rules of professional conduct, or,
if permitted, by client’s authorisation.
4.Confidentiality/professional secrecy; A lawyer shall at all times maintain and be
afforded protection of confidentiality regarding the affairs of present or former clients,
unless otherwise allowed or required by law and/or applicable rules of professional
conduct.

5.Clients’ interest ;A lawyer shall treat client interests as paramount, subject always
to there being no conflict with the lawyer’s duties to the court and the interests of
justice, to observe the law, and to maintain ethical standards.
6.Lawyers’ undertaking; A lawyer shall honour any undertaking given in the course of
the lawyer’s practice in a timely manner, until the undertaking is performed, released
or excused.

7.Clients’ freedom; A lawyer shall respect the freedom of clients to be represented

by the lawyer of their choice. Unless prevented by professional conduct rules or by
law, a lawyer shall be free to take on or reject a case.

8.Property of clients and third parties; A lawyer shall account promptly and faithfully
for and prudently hold any property of clients or third parties that comes into the
lawyer’s trust, and shall keep it separate from the lawyer’s own property.

9.Competence; A lawyer’s work shall be carried out in a competent and timely

manner. A lawyer shall not take on work that the lawyer does not reasonably believe
can be carried out in that manner.

10.Fees ;Lawyers are entitled to a reasonable fee for their work, and shall not charge
an unreasonable fee. A lawyer shall not generate unnecessary work.

2.UN Basic Principles on role of Lawyer

The Basic Principles on the Role of Lawyers, set forth below, which have been
formulated to assist Member States in their task of promoting and ensuring the
proper role of lawyers, should be respected and taken into account by Governments
within the framework of their national legislation and practice and should be brought
to the attention of lawyers as well as other persons, such as judges, prosecutors,
members of the executive and the legislature, and the public in general. These
principles shall also apply, as appropriate, to persons who exercise the functions of
lawyers without having the formal status of lawyers.

a.Access to lawyers and legal services

b.Special Safeguards in Criminal justice matters
c.Qualification and Training
d.Duties and Responsibility
e.Freedom of expression and association
f.Professional associations of Lawyers
g.Disciplinary proceedings
3.Union Internationale des Avocats(Core Principles of the Legal Profession)

The lawyer fulfils the lawyer’s engagement in the interest of the client while
respecting the rights of the parties and the rules of the profession, and within the
boundaries of the law.The lawyer should respect these rules, which, notwithstanding
their details, are based on the same basic values set forth below.

i.Independence of the Lawyers and of the bar

ii.Legal professional privilege and confidentiality
iii.Prohibition of Conflicts of Interest
Iv.competence
v.Dignity,probity,loyalty and diligence
vi.Respect towards professional colleagues
vii.Contribution to the Proper administration of justice and respect for the rule of law
ix.Right to information

B.JUDGES

The principles of the independence of judiciary entitles and requires the judiciary
to ensure that judicial proceedings are conducted fairly and that the rights of
the parties are respected. 7. It is the duty of each Member State to provide
adequate resources to enable the judiciary to properly perform its functions.”

1.UN Basic Principles on the Independence of the Judiciary

The Preamble of the UN Basic Principles establishes the obligation of government

institutions to respect the independence of the judiciary, as well as their duty to take
all appropriate measures so that judges can decide matters that are submitted
before them, so that judges can decide their cases impartially and without any undue
influence, pressure or interference.The principles declare that justice requires a
fair and public hearing by a competent, independent, and impartial tribunal for
every individual, in accordance with the principles proclaimed in the Universal
Declaration of Human Rights, the International Convenant on Civil and Political
Rights, and other United Nations instruments. Further, an independent
judiciary is indispensable to the implementation of this right. Formulated
principally with professional judges in mind, these basic priciples also apply
equally, as appropriate, to lay judges. The principles address the independence
of the judiciary; freedom of expression and association; qualifications,
selection, and training; conditions of service and tenure; professional secrecy
and immunity; and discipline, suspension, and removal.
The UN Basis Principles recognize:
(i) general questions about the independence of the judiciary;
(ii) judges’ freedom of expression, belief, association, and peaceful assembly rights;
(iii) standards to determine their professional background, selection process, and
training competencies to fill a judicial position;
(iv) conditions of service and tenure;
(v) their duty to keep professional secrecy and judicial immunity; as well as
(vi) disciplinary measures, suspension and removal from office.

2.International Principles on Independencent and Accountability of

Judges,Lawyers and prosecutor

The aim of the guide is to provide legal practitioners and policy-makers with detailed
and practical references on international standards on the independence of the
judicial system.

This second, updated, edition of the ICJ Practitioners Guide No.1 provides practical
insight on the use of international principles on the independence and accountability
of judges, lawyers and prosecutors. Through an analysis of all relevant standards
and jurisprudence, the Guide helps national decision-makers develop policies on the
administration of justice and assists in the evaluation of a country’s judicial system
and the formulation of concrete proposals to implement international standards.

3.The Universal Charter of the Judge (International Association of Judges)

2009:
Focused on the Separation of Power. “There is no freedom if power to judge is not
separated from the legislative and executive powers” wrote Montesquie in his “Spirit
of law”.Article 6 emphasized on the ethical aspects which provided ;

Judges:
a.Independency
b.Impartiality
c.Financial Autonomy and sufficient resources
d.Fundamental Freedoms
e.Appointment
f.Accountability

C.Legal Professionals
International Principles on the Conduct of Legal Profession
It was adopted on 28 May 2011 by the International Bar Association.Lawyers
throughout the world are specialized professionals who place the interest of their
clients above their own and strive to obtain respect for rule of law.

The major principles that were devised by this includes:

i. Independence
ii. Honesty, integrity and fairness
iii. Conflict of interest
iv. Confidentiality
v. Client’s interest
vi. Lawyer’s undertaking
vii. Clients freedom
viii. Property of clients and third parties
ix. Competence
x. Fees

Major legal instruments relating to legal profession, fair and impartial functioning are:
i. Universal Declaration of Human Rights, 1948: Article 10 - Fair and Public hearing
by an independent and impartial tribunal.
ii. International Covenant on Civil and Political Rights, 1966: Article 14 – Fair and
public hearing Human Rights Committee, General Comment NO 32, Article 14
Right to equality before courts and tribunals and to a fair trial 2007
iii. Rome Statute of the International Criminal Court, Article 40 to Article 47.
ii. Basic principles on the Independence of Judiciary (endorsed by the General
Assembly Resolutions 40/32 and 40/146, 1985)
Since Judges are charged with the ultimate decision over life, freedom, rights
and duties and property of citizens, they must perform their function diligently
and with due care so that no miscarriage of justice occurs. Therefore, these
principles stressed on the impartial functioning of judges without any influences,
threats, pressures and inducements and also to exercise freedom of expression and
opinion in a manner so as to preserve the dignity of office and impartiality and
independence of judiciary.
iii. Basic Principles on the Role of Lawyers(1990) General Assembly Res. 45/166
Stressed on the importance of lawyers to have appropriate training and education
and to be alert and aware about the ideals and ethical duties of the lawyers and of
human rights and fundamental freedoms.
iv. Guidelines on the Role of Prosecutors (G.A. Res. 45/166, 1990) To maintain at all
times honor and dignity of the profession.

1.4 Professional responsibility of lawyers towards client, opposite party,

court, society and state:
Professional responsibility is area of legal practice that encompasses the duties of
attorneys to act in a professional manner, obey the law, avoid conflict of interest, and
put the interest of the client ahead their own interest. Lawyer is a person qualified
and authorized to plead and act on behalf of his clients, to engage in the practice of
law and appear before court and advice and represent his client on legal matters.
Professional responsibility of lawyers encompasses the rationale and practical
application of Rules of professional conduct, professional responsibility of lawyers
towards clients, the court, the public, and the other lawyers and moral philosophy
and ethical decision making in context of practice of law.

A. Responsibilities towards client:

UN basic principles on role of lawyers, 1990 in “Principle 13” and Draft Universal
Declaration on Independence of Justice in “Article 82” provide duties of lawyers
towards client as:

a) Advising clients to their legal rights and obligations and as to the working of legal
system in so far it is related to the client’s legal rights and obligations.
b) Assisting the client in every appropriate way and taking legal actions to protect
him and his interest.
c) Representing him before courts, tribunals or administrative authorities.

The council of Europe 2 provide the duties of lawyers towards their clients includes:
a) Advising them on their legal rights and obligations as well as their likely outcome
and consequences of case, including financial costs.
b) Endeavoring first and foremost to resolve case amicably.
c) Taking legal actions to protect, respect and enforce the rights and interest of the
clients.
d) Avoiding conflict of interest.
e) Not taking up more work than they can reasonably manage.

Summarizing:
● The lawyer has the duty of representation. The representation should not be
with political, economic objectives; only with an objective to provide legal aid.
● They must represent their client to the extent they are given to represent by
client.
● The lawyer has to fulfil his duty as an advisor.
● The lawyer plays role as a negotiator and seeks results advantageous to
client but consistent requirement with honest dealing with other.
● Lawyers must act by examining client’s legal affair and reporting about them
toclient.
● Lawyers must work with respect, honesty and fairness.
● No cases should be taken beyond the knowledge and skill of the lawyer.
● There must be communication between lawyer and client. The lawyer should
updateinform every activities of the case, papers prepared to case, days fixed
for hearing.
● Lawyers must answer to every question of the clients.
● Lawyers must avoid conflict of interest.
● Lawyers must maintain confidentiality of the client. They should not use the
personal information of client for their own interest.
 ● Lawyers must meet clients as per requirement. Those who are physically
andmentally disable must be given priorities and lawyer should meet with
them as per their comfort.
● Lawyers must take the reasonable fee as per the rules from their clients on
the basis of time, labor, complexity of the case, special skill used in case.
● Lawyers must protect the evidence.
● Lawyers should do no abuse or private use of the client’s property.
● Avoid advertising.
● Clear and transparent transactions especially from the banking channel.
● Information about law firm should be given to client if it is to be closed or the
address is being changed.
● Information on who will take the responsibility in case lawyer dies or who will
be the successor if client dies before the decision.
● Lawyers must give applicable suggestions and solutions.

B. Responsibilities towards opponent:

There are some responsibilities of lawyers toward the opponent.
They are:
● No provocation, entrapping or threatening to opponent or any person
concerned with opponent.
● Treatment with due respect to lawyer of opponent.
● No enmity or anger should be shown to the opponent.
● No obstacles should be created to appear the witness of the opponent.
● No comment should be done in any way outside from the bench to function or
talks done or happened or done in bench with opponent lawyer.

C. Responsibilities towards court:

The responsibilities of lawyers towards court are:
● No false details or facts should be presented before the court of justice.
● The lawyer must respect the court and obey the decision of the court.
● The lawyer must be in proper dress code.
● Demonstrate respect for legal system and who serve it (judge).
● Respect the judiciary and carry out duties towards court in manner consistent
withrules and professional standards.
● Lawyers should not appear in court in an irrelevant way.
● Should not destroy the evidence.
● Lawyers should not make false paper or evidence.
● Lawyers must use proper language in court.

D. Responsibility towards society and states:

● Lawyers play vital role in preservation of the society which requires
understanding of their relationship to legal system.
● Lawyers should work within ambit of law and rule of the concerned state.
 ● Lawyers should cultivate knowledge of law beyond its use for client and
employ the knowledge in reform of law and justice system and work to
strengthen legal education.
● As prescribed by law and if not prescribed by law, lawyers should provide
legal services free of cost to poor people.
● As a public citizen lawyers should seek improvement of law, access to legal
system,administration of justice and the quality of service rendered by the
legal profession.
● No works should be done by falsely suing or deteriorating prevailing laws and
rules of the state.
● Lawyers should remain within professional code of conduct as well as other
code of conduct to be followed by the general citizen.
● Lawyers should devote professional time and resources and use civic
influence to ensure equal access to system of justice for all those who
because of social and economic barriers cannot afford and secure adequate
legal counsel.

Importance of Ethics For Lawyers

a.Maintaining the Reputation of the Legal Profession

A profession A profession s collection ’a collective reputation is crucial to the
confidence it ve reputation is crucial to the confidence it inspires. The reputation of
the legal profession is linked to how the public views the administration of justice.
Where there is no public confidence in the legal profession,trust in the justice
system itself is undetermined.

b.Accountability
If ethical standards exist and clearly define the duties of lawyers,they can be brought
to account where they fall short of these standards.
In order to achieve accountability, it is also important to ensure that rules of
ethics,once developed are publicized amongst the legal profession and the public.
To ensure that ethics are enforceable the legal profession should also put in place
effective disciplinary procedure.

c.Upholding the Rule of Law and Access to Justice

If lawyers do not adhere to, and promote, principles of justice fairness and equity the
law itself is of justice, fairness and equity, the law itself is brought into disrepute and
public confidence in the law will be undermined, thereby hindering access to
justice.Therefore, the legal profession has a huge responsibility within society as
upholders of the rule of law, and protectors of individual rights against
abuses of power.

1.5 JUDICIAL MANNERISM

The word mannerism has been derived from an Italian term “Maniera” coined by
L.Lanzi which means “manner” or “style” in art.
Mannersim in general sense can be defined as;
- A distinctive behavioral trait
- A Characteristic mode of action, bearing, behavior or treatment of others
- A habitual or characteristics manner, mode or way of doing something
Judicial mannerism;

1.5.1.Court Decorum of the Court Room

Decorum means proper behavior. Proper behavior in a trial means behaving formally
with an emphasis on courtesy. This helps protect your rights. You must treat
everyone in the courtroom with courtesy and respect including the jury, the court
reporter, the clerk, the prosecutor, the judge and the witnesses.Decorum is proper
and polite behavior. If you let out a big belch at a fancy dinner party, you're not
showing much decorum. This noun is from Latin decōrus "proper, becoming,
handsome," from décor "beauty, grace," which is also the source of English décor.

Whereas Court Decorum means Maintaining decorum in and around a courtroom is

not merely a superficial means of protecting the image of lawyers and judges – it is
absolutely essential to the administration of justice.

Simply,Overall All attorneys, litigants, witnesses, and other individuals in the

worldwide courtroom shall abide by the following rules of conduct:

● Always be prompt. Be in the courtroom ready to proceed at the

appointed time.
● Stand when the judge or the jury enters or leaves the courtroom.
● Do not make personal attacks on the opposing counsel or parties.
● Do not interrupt. Wait your turn. Address all remarks to the Court.
Argument between litigants or their attorneys is not permitted.
● After the court has ruled, ask the court's permission before arguing
further.
● Rise when addressing the Court and when making objections as this
calls the Court's attention to you.
● Do not approach a witness or the jury without asking permission of
the Court.
● Dress appropriately to the serious nature of the matters before the
court. Shorts and other kinds of beach apparel are not appropriate.
Clothing advertising alcoholic beverages or illegal drugs are not
 appropriate. Hats are not to be worn in the courtroom unless
required by religious custom and practice.

The Code of Conduct for Legal Practitioners, 2051

Rule 3
1(j) A Legal Practitioner shall not act contrary to the following codes of
conduct:
- Shall be punctual to the court
- Shall show due respect to the Bench and opposing counsel
- Shall refrain from making false accusation, expressing hatred or angers
or enmity against opposing counsel and his client.
- Shall treat with courtesy to the officers/ staffs of the court.
- Shall plead his case with due respect to the Bench only when his turn
comes up.
1(r) A Legal Practitioner shall not appear before a court under the influence
of any intoxicating drinks or drug the course of his professional duty.
2. A Senior Advocate shall abide by the following code of conducts in addition
to the codes as referred to above in sub-rule(1):
(a) While pleading before a Bench in any case he shall not appear without
engaging at least one advocate with him.
(b) A Senior Advocate , under normal circumstances, shall not appear before
administrative offices for pleading.

Indian Code of Conduct

1. An Advocate shall, during the presentation of his case and while otherwise
acting before a court, conduct himself with dignity and self-respect.
2. An Advocate shall maintain towards the courts a respectful attitude bearing
in mind.

Under The Code of Conduct For Legal Practitioners,2051 under Rules 3 following
rules are mention which are regarded as rules need to be followed by legal
Practitioners to maintain decorum of Court Room:

Rule 3:Professional Conduct of the Legal Practitioners:

(1) A Legal practitioner shall abide by the following professional conducts:

(a) A legal practitioner shall not commit any act contrary to the basic principles of
morality.
(b) A legal practitioner shall not induce his client to initiate any false case.
(c) A legal practitioner shall not fabricate a case with an intention to harass or to
avenge any person.
(d) A legal practitioner shall not withhold his cooperation to the court in the disposal
of cases either directly or indirectly.
(e) A legal practitioner shall not abuse or cause to abuse the judicial process.
(f) A legal practitioner shall not prohibit his client from making true statement before
the court.
(g) A legal practitioner shall not spreader disseminate or transmit a false information
of any kind which may bring dishonor to the court or Judge or legal practitioner
during the course of the discharge of judicial function.
(h) A legal practitioner shall not return the brief to his client in such a way that the
service of a new lawyer could not be availed of by him.
(i) A legal practitioner shall not misappropriate the funds of any organization or
association.
(j) A legal practitioner shall not act contrary to the following codes of conduct:

– shall be punctual to the court;

– shall appear in court in prescribed dress with black coat;

– shall show due respect to the Bench and opposing Counsel;

– shall refrain from making false accusation, expressing hatred or angers or

enmity against opposing counsel and his client;

– shall treat with courtesy to the officers/staffs of the Court;

– shall plead his case with due respect to the Bench only when his turn comes
up.

(k) No precedent to be cited and knowingly pleaded which has been already
overruled and no law be pleaded which is not applicable or is repealed or which has
been amended subsequently, in order to benefit one’s client.

(l) A legal practitioner shall not knowingly assert any fact before the Bench unless
the same could be substantiated from the documents from his case file.

(m) A legal practitioner shall not accept a case involving a document in which he
has reason to believe to be called himself as a witness.

(n) A legal practitioner shall not disclose any information communicated to him by
his client in his professional capacity in any manner.

(o) A legal practitioner shall not raise/use large signboard, no previous designation
or status not related to the legal practice to be published in name card or visiting
card or file or letter-pad with an objective of commercial publicity.
(p) A legal practitioner shall not raise/use large signboard, no previous designation
or status not related to the legal practice to be published in name card or visiting
card or file or letter-pad with an objective of commercial publicity.

Provided that this restriction shall not apply in case of those documents in which a
legal practitioner’s field of specialization or expertise on particular type of cases are
indicated or printed.

(q) A legal practitioner shall not stipulate his fees on percentage or on contractual
basis or by way of bidding from the client.

(r) A legal practitioner shall not appear before a court under the influence of any
intoxicating drinks or drug the course of his professional duty.

(s) A legal practitioner shall not base his fees on the outcome of a case.

(t) A legal practitioner shall not submit any false record/statement to the council as
and when demanded.

(u) A legal practitioner shall not certify or sign any document which has not been
prepared by himself or under his instruction or advise the same is prepared by his
junior working in his firm/chamber.

(v) A legal practitioner shall not use or engage any tout or agent for commission with
a view to solicit any client.

(w) A legal practitioner shall not engage himself in the business/transaction of

transfer of properties as a broker.

(x) A legal practitioner shall not involve in drafting or pleading of the same case on
behalf of both the plaintiff and defendant and also shall not instruct knowingly any
other law practitioner or writer or other persons who work under/with him.

(y) A legal practitioner shall not prepare/use any blank paper obtained from the
client converting the same into a legal deed or construct a document with a view to
gain benefit for himself and causing harm to the client;

(z) A legal practitioner shall not destroy or otherwise render invalid as evidence any
original document obtained from the client on instance from the opposite party to the
case;
(aa) A legal practitioner shall not make available any original documents/evidence
received from his client to the opposite party with a motive to bestow benefit to the
latter.

(ab) A legal practitioner shall not commit any kind of corruption related offence.

(ac) A legal practitioner shall not commit any crime related to moral turpitude.

(2) A Senior Advocate shall abide by the following code of conducts in addition to
the codes as referred to above in sub-rule (1):

(a) While pleading before a Bench in any case he shall not appear without engaging
at least one advance with him.

(b) A Senior Advocate, under normal circumstances, shall not appear before an
administrative offices for pleading.

1.5.2 Dress Code

Personal appearance is visible evidence of respect for the law and administration of
justice. Dress reflects the attitude of your role towards the judge. The dress code to
be followed inside courtroom are as follow;
● Black coat as symbol of Power and authority.
● Simple , clean and Professional dress ;Pant above waist , formal suit Grey,
white, brown colored dress are preferred.
● Causal-ness is not appropriate
● Avoid party like get up.

The Code of Conduct for Legal Practitioners, 2051 Rule 3

(J) Shall appear in court in prescribed dress with black coat

Indian Code of Conduct

I. Advocates other than Lady Advocates

A)A black buttoned up coat, chapkan, achkan, black sherwani and white banda
with advocates gowns
B) A black open breast coat, white shirt, white collar, stiff or soft and white bands
with Advocates Gowns
In either case long trousers (white, black striped or grey) or Dhoti

II. Lady Advocates

A) Black and full or half sleeve jacked 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 breast coat Or
B) Sarees of long skirts ( white or Black of any mellow Punjabi dress churidar- kurta (
with or without dupatta) White or black.

Courtroom Participants (i.e., attorneys and their staff, parties, and party
representatives)
Courtroom participants are expected to wear appropriate business attire in the
courtroom. Courtroom participants are expected to dress neatly and to exercise
common sense in selecting clothing and footwear appropriate for court.
Appropriate business attire generally includes the following:
1. A business suit;
2. A dress;
3. A skirt with a blouse or sweater or tailored slacks with a professional
blouse; or
4. A sport coat with dress slacks, a collared dress shirt, and a tie.
Courtroom participants not wearing appropriate business attire may be excluded
from participating in courtroom proceedings.

. Courtroom Visitors
Dress appropriately for court. DO NOT wear shorts, tank tops, ball caps, or Tshirts.
Compliance with the participant rules above is encouraged but not
required. Collared shirts, slacks, nice jeans (no holes or fraying in fabric), and
other business casual attire is generally acceptable. The court reserves the right to
exercise its judgment on the propriety of attire on a case-by-case basis and to make
orders accordingly

Under Neaplese Legal Rules,The Code of Conduct For Legal Practitioners,2051

under rule 3(j) of the code of conduct mentioned about the Dress code in Court
Room:
(j) A legal practitioner shall not act contrary to the following codes of conduct:
– shall appear in court in prescribed dress with black coat;

1.5.3 language

Widely,the English Language is recognized as mostly accepted language of court

room till now.As the language is the most important component of courtroom
proceedings,yet it is assumed that english is the only language through which court
trail is allocated in international litigation process.However in domestic litigation court
procedure every state has its own law regarding the language.One of the best
qualities of Legal practitioner is also determined bu their language and their
vocabulary presentation in the court.Thats why language is a core importance to
communicate and transfer the information about the case to the judges.
It is a human condition that we judge each other based on the use of language
vocabulary, accent, tone and language sensitivity. When you open your mouth
people naturally make valued judgements and attach psychological labels, these
being either positive or negative and thereby influencing their response.

In Context of Nepal,Nepali language is regarded as language of Court room.

The Language to be used while speaking inside the courtroom should be as
follows;
Speak slowly and clearly and correctly
Using title while addressing judge
In the context of US
- High Court (My Lord)
- Judge except HC(Your Honour)
- Magistrate ( Your Worship)
In the context of Nepal
- Shreeman
Be polite and respectful
No side talk and gossips
No non- verbal communications, waving your hands or otherwise make
unnecessary gestures when you are speaking to the judge.
Use polite language , a calm tone and reserved body language

Speak Clearly and loudly enough to be heard but don’t shout

Speak politely and respectfully to the judge and all other court officials
Do not use any phrases that criticize the judge or anyone in the courtroom
Avoid using any words that can be interpreted as threatening towards anyone
in the room
Do not use obscene language
Show respect and avoid offending your judge( a judge can hold you to
contempt of court meaning they can give you for speaking disrespectfully)
Make eye contact, at all times while judge is speaking to you
Code of Conduct for Legal Practitioners, 2051
Rule 3(J)
- Shall show due respect to the Bench and opposing counsel
- Shall treat with courtesy to the officers/ Staffs of the court.

Conclusion
These are the court etiquette that are to be obeyed by each individuals present
inside the courtroom. And these are specially for the Lawyers who are representing
their clients before the Bench.
Unit 2 Code of Conduct For lawyers in Nepal

2.1 Code of Conduct

2.2 Complaints Procedures

According to conduct for legal practitioners, 2051(1994)

Complaints procedure:A complaint may be lodged with the council on the matter of
violation of professional conduct by any legal practitioner. Every complaint to be filed
pursuant to sub-rule
(1) shall accompany with Rs 100 case or bank draft as fees and must specify the
allegation of breach of code of conduct by a particular legal practitioner with
evidential support.Provided that no fee shall be payable on complaints pertaining to
the information or notice forwarded by the court or Bar Association.

3) The disciplinary committee before initiating action in connection with a

compliant may direct the complainant to place further information or document.

5) Confidentiality to be maintained: The council and the disciplinary committee shall

maintain confidentiality as to the name of the complaint.

2.3 Investigation and other Disciplinary Action

6) Investigation and other disciplinary action :The council prior to award a

punishment for violation of the professional conduct against any legal practitioner
shall observe the following procedure:

Where a complaint has been loged with the council against a legal practitioner
or any information has been received in this connection the discilplinary
committee may on the basis thereof, carry out of cause to be carried out an
inquiry as to whether or it was necessary to initate proceeding against the
legal practitioner.

If as result of an inquiry conduct under sub-rule (1) a case is established

against any accused legal practitioner, the disciplinary committee shall give
reasonable opportunity requiring him to explain his position against the
charges.
c) While giving an opportunity to defend the charge leveled against the concerned
legal practitioner,pursuant to sub-rule (2) the ground on which the charge is based
and the punishmnent that may be awarded to him shall also be specified.

2.4 Punishment

7) Punishmnet :
If any legal practitioner is found to have for the first time, violation the
conducts referred to in clause (a) to (u)of sub-rule (1) and in sub-rule (2) or rule
3 he shall be admonished.

If any legal practitioner is found to have violated the conducts referred to in

clauses(v)and (Z) of sub-rule (1)or rule 3 or violated the conducts after having
been awarded the punishment of admonition once before, his license shall be
suspended restricting him from legal practice for a specific period of time.

If any legal practitioner is found to have violated the conducts referred to in

clauses (X) to (ac) of sub-rule (1) of rule 3 or if he is found to have violated the
conduct again even after having been awarded the punishment of suspension
of the license period of time the license of such a law practitioner shall be
revoked.

8) Notice of punishment :The notice to punishment awarded to a legal practitioner

shall be communicated to the court, the judicial council ,the office of the
attorney-general of the government of Nepal and the Nepal bar Association.

2.5 Code of Conduct of Notary Public

A notary public is an official of integrity appointed by state government- typically by

the secretary of state- to serve the public as an impartial witness in performing a
variety of official fraud- deterrentacts related to the singing of important documents.
These official acts are called notarizations or notarial acts."Notary Public" means a
person who holds certificate of Notary Public in pursuant to Section 14. sec 2(a) of
Notary Public Act, 2063 B.S.
A Notary Public is an officer who can administer oaths and statutory declarations,
witness and authenticate documents, and perform certain other acts varying from
jurisdiction to jurisdiction.“ Notary Public is a person, especially a lawyer,
with official authority to be a witness when somebody signs a document and to make
this document valid in law”- oxford Advanced Learner’s Dictionary 7th edition, 2005
Code of Conduct of the Notary Public
The Notary shall, as a government officer and public servant, serve all of the public
in an honest, fair and unbiased manner. The Notary shall act as an impartial witness
and not profit or gain from any document or transaction requiring a notarial act, apart
from the fee allowed by statute. The Notary shall require the presence of each signer
and oath-taker in order to carefully screen each for identity and willingness, and to
observe that each appears aware of the significance of the transaction requiring a
notarial act. The Notary shall not execute a false or incomplete certificate, nor be
involved with any document or transaction that the Notary believes is false,
deceptive or fraudulent

The Notary shall act as a ministerial officer and not provide unauthorized advice or
services. The Notary shall affix a seal on every notarized document and not allow
this universally recognized symbol of office to be used by another or in an
endorsement or promotion.The Notary shall record every notarial act in a bound
journal or other secure recording device and safeguard it as an important public
record.The Notary shall respect the privacy of each signer and not divulge
or use personal or proprietary information disclosed during execution of a notarial act
for other than an official purpose.

● The Notary shall seek instruction on notarization, and keep current on the
laws, practices and requirements of the notarial office
● The Notary Public always maintain their professional respected and dignified
● They always must obey the basic principles of professional ethics.
● They should honor the service seekers and created the situation of
confidence between one another.
● They should perform work protecting public interest and not affecting security.
● Unless observing the original document, no document should be certified.
● They should not certify fake or false document, and while certifying the
document, document should be certified only in the situation that there must
be reasonable basis and cause to completely believe that such document is
true.
● No Notary Public may take fees more than prescribed by theprevailing laws.
● While doing translation, they should translate making exact of original copy.
● Unless being confirmed that translation is exact as original copy, no Notary
Public may certify document in the capacity of translator.
● They must honestly provide service without being bias to the service seeker
and should not partially treat on the basis of gender, caste, community,
religion and any faith or beliefs.
● They updately must obey directions. Laws, practices and other knowledge
related to notarization.
● The Notary Public exactly must maintain record of certified document.
● The Notary Public must honor rule of law, transparency and objectiveness.
 ● Every Notary Public literally must follow and obey circulars and directions
issued by the Notary Public Council.
● They should be in contact with Nepal Notary Public Council about the
Functions to be performed by them.
● No Notary Public may come in office by consuming alcohol or narcotic drugs.
● If the Council asks any detail, then it must be made available within the
time-frame as far as possible.

Notary public Act, 2063

Provisions relating to Functions and Duties of the Notary Public

sec19: Functions may be Performed by the Notary

Public: The Notary Public may, subject to the provisions of this Act, perform the
following functions:
(a) Certification of any document;
(b) To translate a paper written in one language into another language, and
(c) To attest the copy of any original paper

Sec:5 Composition of the Council:

Attorney General :- Chairperson
President, Nepal Bar Association :- Member
Secretary, Ministry of law, Justice and
Parliamentary affairs :- Member
Secretary (Law) office of the Prime minister and
Council of Ministers :- Member
Secretary, Nepal Law Commission:- Member
Secretary, Ministry of Land Reform and
Management:- Member
Secretary, Ministry of Foreign Affairs:- Member
Registrar, the Supreme Court:- Member

Sec: 12 Qualification of Notary public:

A law practitioner who has continuously practiced law for a period of Seven years. A
person who has retired from at least Gazetted class two officer of the Nepal judicial
service.

Sec: 13 Disqualification of Notary Public:

● Person who has not passed the examination
● Person who is not qualified pursuant to Section
● Person who has been punished as an offender by the court of law in the
cases of Murder, Theft, Dacoit, Fraud, Fraudulence, Corruption, Rape,
Consumption and trafficking of Narcotic Drug, trafficking in person or serious
offence of similar nature.
 ● Person having not good character.
● Non-Nepali citizen
● Person having declared insolvent.
● Person not having in normal mental condition.

Sec: 20 Activities not to be Performed by the Notary Public

Activities not to be Performed by the Notary Public: The Notary Public shall not
perform the following activities:
(a) To do certification of the document which is not registered in the register book of
his/her office,
(b) To certify any document which itself is an original document,
(c) To do certification of document which is to be done by himself /herself,
(d) To do certification of the document which is concerned to his/her own transaction
and interest,
(e) To do certification of the document which is concerned to his/her close relatives,
Explanation: For the purpose of this Clause "close relatives" shall mean relatives as
prescribed,
(f) To disclose any known fact received in the course of certification of the
documents, without the consent of the concerned person, except as provided in the
law,
(g) To add and delete or amend or alter in the Document or Paper which is laying
safely with the Notary Public, (h) To do certification of a document without fulfilling
the procedure prescribed in Section 27,
(i) To do certification of any document unauthorisely or negligently,
(j) To take excess fees for certification or translation of document than fixed for it ,
(k) To translate doubtful paper,
(l) To translate differing the stated date, number or content of the document,
(m) To do the function of Notary Public beyond the jurisdiction,
(n) To do certification of document without presenting the person who has to make
the document before himself/herself.
(o) To function against the Code of Conduct.
(p) To function in contravention of this Act or Rules made thereunder, and
(q) To do other work as prescribed.

Complain, Inquiry and Suspension:

Anyone who knows the misconduct of any Notary Public, may complain to the
Council, within two years from the date of cause of action.

Penalties and Compensation

A person, who practice as a Notary Public without obtaining Certificate pursuant this
Act, shall be punished with an imprisonment for a period of three years or fined up to
One Hundred Fifty Thousand Rupees or with both. A Notary Public who, commits
misconduct shall be punished with the imprisonment for up to Four years or a fine
upto of Two Hundred Thousand Rupees or with both. If the content written in the
document brought for certification is proved false, it shall be punished with
imprisonment for a period up to four years or a fine up to Two Hundred Thousand
Rupees or with both.

If the proved false, such person shall be punished with the imprisonment up to three
months or a fine up to Fifteen Thousand Rupees or with both.
if a person who becomes a witness the certification of the document, confirms
wrong person or gives wrong description or statement or makes wrong written
statement shall be punished with imprisonment for a period up to six months or be
fined up to Twenty Five Thousand Rupees or with both.
if a person who causes for certification of a document fraud with ,fraudlelent or
deceptively accompanying with the Notary Public such person shall be punished
with the imprisonment up to one year or a fine up to Fifty Thousand Rupees or with
both.
if a person, who translates or causes for translation changes the date , numerical or
content, such person shall be punished with imprisonment up to three Months or
fined not exceeding Fifteen Thousand Rupees or with both.
If, a person who commits any act against this Act or Rule framed thereunder, except
as provided in this Section, shall be punished with the imprisonment upto Three
Months or a fine upto Fifteen Thousand Rupees or with both.

Compensation:
if a person who suffers harm or losses due to the misconduct of the Notary Public,
the aggrieved person may file suit for compensation in the concerning District Court
within two years from the date of occurrence of the misconduct.

Unit 3 Background of Legal Profession in Nepal

3.1 Contribution and Importance of Legal profession in the nepali Society

The Legal Profession, which has evolved into a more professional and advanced
field, has played an important role in this country and around the world, as an
advisor, an upholder of the rights of common people and as a professional.First of
all, the Legal Profession is important because it helps in solving disputes between
various entities, whether it be a feud between two individuals, between the
governments, between the government and common people, or anyone for that
matter. They advise their clients on the right path and legal remedy to take, and at
the same time help in achieving that remedy in the courts of law. Of course, they
charge their clients for this, but monetary benefit is necessary for sustainence and
survival of any profession.
Secondly, the lawyers help the common people in upholding their basic rights. They
do this with the help of public interest litigations, through pro bono litigation and other
forms of litigation. They help in preserving the Grundnorm, the basic or fundamental
part, of law, that is the Constitution. They also help in maintaining a balance between
the legislature, executive and judiciary. Thus, the Legal Profession is fundamentally
important for the Administration of Justice in the country through various means.

Contribution and importance of legal profession

The legal profession is arguably the single most researched aspect of law in legal
scholarship and socio-legal studies. It is also one of the most challenging
professions in the world because legal professional, for the most time, has to pass
through tough process of thinking, contemplating and reasoning whether he/she is in
a policymaking role, advisory service, justice dispensing role or simply representing
clients at court.

A lawyer is a privileged class not only in Nepal but in other countries as well. Their
profession is a noble calling. There is no match to the status of lawyers from other
professionals like doctors, engineers, architects, chartered accountants etc. Lawyers’
role is not limited to represent their clients in the Court. This class of people in
statutory robe plays a greater role in the society. Outside the Court premises the
lawyers play a leadership role in the civil society.

Karl Marx, Mahatma Gandhi and Nelson Mandela are the seasoned lawyers among
others who passed their whole life in pursuit of emancipation of the human beings.
Former President of Cuba, Fidel Castro and Former Prime Minister of Singapore,
Lee Kuan Yew were also the law practitioners.

In Nepal, lawyers played a central role in drafting of constitution. The proceeding

clearly show the part played by the lawyers in elaborating the basic concept of
secularism, democracy and egalitarianism. It was because lawyers understood the
than society in reality rather than substantive term. They also introduced well known
ambiguities such as the uncertainty about fundamental rights and directive principles
of state policy which were primary. Even after the constitution was adopted lawyers
continued to play an important role in national politics.
Lawyers have played an important role in the revolution and democratic movements
in many countries.

But,The image of lawyers in the contemporary era is however facing a great

challenge. Russell G. Pearce, an associate professor of law at Fordham University
Law School, in his article “Teaching Legal Ethics Seriously” daringly opines:
“Society’s respect for lawyers has dropped during the past twenty years far more
than society’s respect for comparable occupations”Today, the concerns about
increasing trend of legal profession being transformed into a business are mounting.
The emergence of the corporate law firms is phenomenal all across the world. The
corporate law firms take law practice as a business and opine that anything
acceptable in the business is acceptable in the law practice too. This trend is making
the legal profession most lucrative in terms of earning and it in turn making education
most expensive as joining law schools is considered an investment in the business
career itself.

Conclusion
Among all the professions of the world, the Legal Profession is called the Noble
Profession. This is because it often acts for noble causes for the common people
and very basic foundation of this profession is noble. The Law is an instrument
which, through its rules and regulations, maintain order and peace in the society and
without it the society would plunder into chaos. The Legal Practitioners act as the
keepers and protectors of this very law. Hence, they play a very important role in the
society and with the changes being brought into the legal system of the country, their
role is set to become more important than ever before.

3.2 History of Nepalese Legal Profession

Historically, legal profession in all societies enjoyed a great respect, particularly in

Western societies as an elitist profession. In 19th century, lawyers in UK and USA
were treated as icons or role models of the emerging democratic societies. Lawyers
exploiting their positive and elitist image had been able to register their strong
presence in politics and state affairs. The Western model of legal profession entered
in South Asia with colonial rule. With it came the system of legal education. New
institutions of legal education were established and production of lawyers was
formally introduced. The legal professionals in South Asian continent during the
colonial regime entertained the same image as in its western counterparts. Most elite
families were attracted to legal education. Moreover, it became a fashion for such
families to go UK for obtaining the degree of laws. Most importantly, these people
also played a crucial role in the ‘quit movement’ against colonial rulers from South
Asia. Mahatma Gandhi, Jahawarlal Neharu, Jihna, Jyoti Basu, Bishweshwor Prasad
Koirala and many more lawyers. The higher profile obtained by them in politics
engendered further greater glamour for being lawyers.

3.3 Legal Profession Under Nepal Professional Lawering Related laws and
regulations
3.4 Legal Professiona under Supreme Court Regulation

3.5 History of Nepal Bar Association

3.6 Nepal Bar Council Act,2050 BS and its regulation,2051 BS

Nepal Bar Council is an independent legal institution established by the Nepal Bar
Council Act, 1993. The main objectives of the Council are to promote, protect and
regulate the activities of the law practitioners in a more professional manner. It
discharges its duties and responsibilities in accordance with this Act and the rules
and regulations framed thereunder in areas of internal Management, Financial
Administration, Rules of Employees, code of Conduct for Lawyers, Curriculum for
examination and conducting the examinations for law practice etc.

The eleven-member executive body of the Bar Council comprises a host of dignified
and responsible people from the legal field. The Attorney General of Nepal and the
Chairman of the Nepal Bar Association are the ex-officio Chairman and the
Vice-Chairman of the Council, respectively. Apart from this, the Registrar of the
Supreme Court of Nepal and the Dean of the Faculty of Law, Tribhuvan University,
Nepal are the ex-officio Councilors. Out of the remaining nine councilors seven are
elected, one each from seven provinces of Nepal and two are nominated by the
Nepal Bar Association. The post of the Secretary to the Council is filled by the Nepal
Government with a Gazetted IInd Class Officer from its Judicial Service until the
Council has its own Secretary.

The working areas of the council:

From its establishment in 1995, the Council has been working tirelessly to achieve its
objectives mainly concentrating in the following areas:
1.Conducting examination for issuing license for law practice.
2. Keeping the records of the law practitioners and working effectively for their
professional development.
3. Reviewing and Investigation the adherence to the code of conduct by the law
practitioners.
Nepal Bar Council Act, 2050 B.S
It is an act made to establish and manage for the Nepal Bar Council.
It is enacted by Parliament in the Twenty Second year of the reign of His Majesty
King Birendra Bir Bikram Shah Dev.
it is expedient to provide for more accountable service to the society upon
establishing and managing for Nepal Bar Council and securing the interest of the
Legal Practitioners;

3.6.1 Establishment and Formation

Chapter 2 of The Nepal Bar Council Act 2050 deals with Establishment and
formation of Legal Bar Council

3. The Establishment of the council:

A Council named as Nepal Bar Council shall be established.
The Council shall be an autonomous body corporate with perpetual succession.
The Council shall have a separate seal of its own.
The Council may, as an individual, acquire, use, sell and dispose of, or otherwise
manage any movable and immovable property.
The Council may, as an individual, sue by its name and be also sued by the same
name.
The Office of the Council shall be located in Kathmandu Valley.

4. Formation :
(1)Nepal Bar Council shall have following Councilors:
The Attorney General of Nepal; President, Nepal Bar Association;Registrar,Supreme
court of Nepal; Dean, Institute of Law, Tribhuvan University; Senior Advocates/
Advocates elected from among the Legal Practitioners of the Five Development
Region of Nepal by an electoral college, one representing each Region, and Two
Senior Advocates or Advocates nominated by Nepal Bar Association
(2) The Attorney General of Nepal shall be the Chairperson and the president of
Nepal Bar Association shall be the Vice-Chairperson of the Council.
(3) The tenure of office of the Councilor elected pursuant to Clause (e) of Section 1
shall of Five years and the Councilors nominated pursuant to Clause (f) shall be of
Two years.
(4) A Legal Practitioner who has completed a period of Ten years after receiving
his/her license shall only be eligible to be a Councilor pursuant to Clauses (e) and (f).
(5) Nepal Bar Association may nominate Five Legal Practitioners of their respective
region for a maximum period of One year till the Councilors pursuant to Clause (e)
are elected.
(6) The Vice-Chairperson shall perform the duties of the Chairperson in his/her
absence

3.6.2 Functions,Powers and Duties

8. The functions, powers and duties of the council: (1) The functions, duties and
powers of the Council shall be as follows:
To take examinations of the persons entering into the Legal Profession;
To make procedural provisions regarding the registration of names of Legal
Practitioners;
To register a person who is qualified as a Legal Practitioner;
To monitor whether the Legal Practitioners are working in accordance with the
prescribed professional code of conduct or not
(e) To entertain a complaint about the work carried out by Legal Practitioner against
the professional code of conduct and send to the disciplinary committee for action
(f) To determine procedure for the disciplinary committee and other committees;
(g) To file a case against the person who violates the provision of this Act;
(h) To protect the prestige, dignity, security, rights, welfare and facilities of Legal
Practitioners;
i. To recommend for proper educational standard of the legal profession in
consultation with the university to increase the standard of legal education;
(j) To appoint necessary staffs and make provisions for their remuneration and
facilities;
(k) To make provisions for necessary training to maintain the legal profession
prestigious by providing practical experience to the Legal Practitioners;
(l) To make provision for education, discussion, seminars, work-shops and
talk-programmes etc. to promote the right and welfare of Legal Practitioners and
manage for publication;
(m) To arrange for the funds of the Council;
(n) To carry out other works as mentioned in this Act; and
(o) To carry out other functions necessary to meet the objectives of this Act.
(2) The Council may, as per necessity, delegate any or all of the powers conferred on
it pursuant to this Act to any Councilor, Secretary, Committee or the member of any
Committee.

3.6.3 Disciplinary Committee

11. Disciplinary Committee: (1) The Council may form Disciplinary Committee on the
Chairpersonship of a Councilor to examine and take action on any complaint or
information received to the Council against any Legal Practitioner who violates this
Act or Rules framed thereunder or the code of conduct.
(2) The Disciplinary Committee shall have equal powers as to the Court regarding to
issue summons and examinations of evidence.
(3) The Disciplinary Committee may issue a decision to be done as following if a
Legal Practitioner is found guilty: (a) To reprimand; (b) To suspend from practicing
law for a specific period of time; and (c) To cancel the license of the Legal
Practitioner.
(4) While conducting proceeding pursuant to Sub-section (3), the concerned Legal
Practitioner shall be given an opportunity to defend him/herself.
(5) The Legal Practitioner who is not satisfied with the decision of the Disciplinary
Committee may appeal before the Supreme Court within Thirty Five days after the
receipt of such information

3.6.4. Examination of Legal Practitioners

Chapter-3 Examination of Legal Practitioner

Section 15. Examination of Legal Practitioners:
(1) The Council shall carry out Legal Practitioner examination at least once a year.
Such an examination shall be written and oral and the marks for the oral test shall
not be more than Ten percent of the total marks.
(2) The Council shall form a Legal Practitioner Examination Committee including
concerned specialists for the purpose of Sub-section (1). The Council shall appoint
one of the members of the Committee as the Chairperson of the committee.
(3) The Examination Committee shall make necessary arrangements to conduct the
examinations. (4) The procedures relating to the Examination shall be as determined
by Examination Committee itself.
Section 16. Course of Study for the Legal Practitioner Examination:
(1) The Council shall determine the course, standard and system of such
examination. Provided that, the course of study of the examination to be taken to the
persons referred to in Clause (a) and (b) of Sub-section (1) of Section 17 shall be
determined separately as prescribed by the Council based on their experience.
(2) The Council may consult to seek cooperation from the Supreme Court and the
Institute of Law, Tribhuvan University for determining the courses of study, standard
and system of the Legal Practitioner Examination.

3.6.5 Registration of Legal Practitioners

Chapter 4 Registration as a Legal Practitioners

Section 17. Legal Practitioners to be Registered:
(1) A Nepali Citizen with the following qualifications having passed the Legal
Practitioner examination and who is not convicted of any criminal offence inflicting
moral turpitude shall only be registered as a Legal Practitioner:
 (a) A person who has worked for at least Five years after having a certificate of
Bachelor's Degree in Law as a judge, government advocate, or as Gazetted Officer
in the Legal Service or as a teacher of Law; or
(b) A person who has practiced as a Pleader (Abhivakta) for Seven years and having
the Bachelor's Degree in Law; or
(c) A person who has practiced as a Pleader for Fifteen years; or
(d) A person having Bachelor's Degree in Law.
(2) A Nepali Citizen with the following qualifications, having passed the Legal
Practitioner Examination and not convicted of any criminal offence inflicting moral
turpitude shall be registered as a pleader for a period of Nine years from the date of
commencement of this Act:
(a) A person having the Intermediate Certificate in Law;
(b) A person practicing as an Agent (Abhikarta) for a period of Five years.
Section 18. Application for Registration:
(1) A person having qualification as referred to in this Act and intending to be
registered as an advocate may submit his/her application before the Council in a
format specified by it

(2) If the person submitting an application is found qualified to be a Legal

Practitioner, the Council shall register such a Nepali citizen as a Legal Practitioner
and issue a license thereof in a prescribed format and forward the information of the
same to the Supreme Court.
Section 19. Cancellation of the License: If it is proved later on that the person was
disqualified to be a Legal Practitioner before he/she has received his/her license, the
Council may cancel the license of such a Legal Practitioner.
Section 20. Inventory of the Legal Practitioners:
(1) The Council shall maintain an inventory of the person who received the license.
(2) The Council shall up to date the inventory referred to in Subsection (1).
(3) If a Legal Practitioner is dead or if he/she submits an application to remove
his/her name from the inventory or if a decision is made to cancel the license of a
Legal Practitioner after being taken disciplinary action, the name of such legal
practitioner shall be removed from the inventory and the information for the same
shall be forwarded to the Supreme Court.
(4) If the Council decides to suspend the license of any Legal Practitioner after taking
an action on the grounds of discipline, such a detail shall be recorded in the
inventory.

Section 21. Title of Senior Advocate:

(1) If the Supreme Court finds that an advocate has helped to the courts and Society
by practicing as a Legal Practitioner in the Supreme Court or Court of Appeal for at
least Fifteen years, it may confer the title of Senior Advocate to such a Legal
Practitioner as an honor and such a Senior Advocate shall have to maintain good
conducts as prescribed.
 (2) The Supreme Court shall take consent of the Advocate while conferring him/her
the title of a Senior Advocate.

3.6.6 Right to legal profession and privileges

Chapter-5 The Right to Legal Profession

Section 22. Right to be Present, Plead and advocacy (argue):
(1) A Senior Advocate and advocate shall be entitled to be present, plead and argue
before the Supreme Court or any Office or Court or Authority of Nepal.
(2) A Pleader shall be entitled to be present, plead and argue in Courts, Offices and
Authority except the Supreme Court of Nepal.
Section 23. The Right to Address:
(1) If there are more than one Legal Practitioners in a case, the right and order to
address before the authority, for a hearing of the case, shall be as follows:
(a) If the Legal Practitioners are of the same category on the basis of seniority of the
date of the receipt of the license; and
(b) If there are different categories of Legal Practitioners, as follows: (1) Senior
Advocate (2) Advocate (3) Pleader
(2) Notwithstanding contained anything in Sub-section (1), the Legal Practitioner who
has to address later, in the order of precedence may also address earlier after taking
permission from the Authority for the hearing and the Legal Practitioner who has
right to address earlier.
(3) If there are more than one Legal Practitioners of the same category and having
the license on the same date, a Legal Practitioner may address earlier based on
their mutual consent.
Section 24. Special Privilege of a Legal Practitioner:
(1) No Legal Practitioner shall be arrested in a civil case concerning any claimed
amount or penalty, when he/she is on the way to present, plead and argue in a case
on behalf of a party to the case.
(2) No petition may be filed against a Legal Practitioner on slander on the basis of
what he/she has said during the course of argument.
Section 25. Unauthorized Persons not to Practice Legal Profession:
(1) No one shall be present in a Court or Office and plead on behalf of any party a
case without holding the license of a Legal Practitioner.
(2) Notwithstanding anything contained in Sub-section (1), a Legal Practitioner who
has received a license from any foreign country may plead (argue) in a particular
case, on behalf of the party to a case upon receiving permission of the court.
(3) Notwithstanding anything contained in Sub-section (1), in a case, government
advocate, party to a case and in a district where Legal Practitioners under this Act
are less than in a total number of Ten, any other person may present in a Court or
Office on behalf of a party to a case.
(4) If a person commits an act against the provision of Sub-section (1), he/she may
be liable for a punishment of a fine up to Two Thousand Rupees or an imprisonment
up to Six months or both.

3.6.7 Restriction on law practice

Chapter-6 Miscellaneous
Section 26. Recognition of existing Legal Practitioners: Senior Advocates, Advocates
and a Pleader as recognized pursuant to Legal Practitioners Act, 2025 (1968), shall
retain their recognition according to this Act.
Section 27. Right to Frame Rules:
(1) The Council may frame Rules to fulfill the objectives of this Act.
(2) Without prejudice to the generality of the powers conferred by Sub-section (1),
the Council may frame such Rules particularly for any of the following matters:
(a) The Professional Code of Conduct of Legal Practitioners;
(b) The hearing on complaints against violations of Code of Conduct and other
activities;
(c) The Internal Procedure of the Council;
(d) The Rules of procedure of the committees formed under the Council;
(e) The provision of disqualification of the Councilor;
(f) The provisions of fees for an application and license of a Legal Practitioner;
(g) The provision for the appointment of staff for the Council and tenure of office;
(h) The provision of funds of the Council, accounts and Audit;
(i) The provisions to be followed by those who have received certificate to prepare
documents (Lekhapadi) in Courts and Offices.
(3) The Rules framed by the Council pursuant to Clauses (a), (b) and (i) of
Sub-section (1) shall come into force only after being approved by Supreme Court.
Section 28. Certificate for Preparation of Documents in Office and Court:
(1) The District Court shall distribute Certificate for preparation of documents in an
Offices and a Courts.
(2) A Certificate received for preparation of documents pursuant to Legal
Practitioners Act, 2025 (1968) shall be deemed to have been received pursuant to
this Act.
(3) The provisions regarding functions, terms and conditions and cancellation of
certificate so received pursuant to this Section, shall be as prescribed.
Section 29. Repeal and Saving:
(1) The Legal Practitioners Act, 2025 (1968), is, hereby, repealed.
(2) It shall not be deemed to have caused any hindrance to continue Legal Practice
by the person so registered as an Agent pursuant to Legal Practitioners Act, 2025
(1968)
Unit 4 Advocacy skills

4.1 Communication Skills for lawyers

Lawyers and the professionals involved in the law field has to use the legal
communication day to day to perform their tasks.
• Legal Communication involves, among others:
» Listening skills
» Intercultural communication skills
» Running an effective meeting with clients
» Interviewing the clients
» Oral Presentation before the Court
» Readability strategies for legal documents
» Techniques for effective drafting
» Complaints and Answers

• One of the most important skill for a lawyer to develop is effective communication.
• From the initial job interview to the courtroom or conference room, almost
everything a lawyer does involves some form of communication.
• Even when you’re not speaking, you’re still communicating through body language.
• To communicate effectively and create a positive impression on your listeners,
whether they are partners, judges, clients, opposing counsel, or assistants, consider
the following skills:
• 1. Be courteous to all
• 2. Less is more
• 3. Speak in ordinary language
• 4. Adopt the good communication habits of successful senior lawyers
• 5. Clarify Instructions
• 6. Confirm in writing important agreements with opposing counsel
• 7. Keep a hard copy of all important communications and documents
• 8. Let your office know about where you are during the business day

Interviewing in Legal Communication

• The distinctions between interviewing as a means of information gathering and
interviewing as a means of counseling to help the client understand a legal issue are
somewhat blurred.
• Interviewing may be thought of as a broader communication category of purposeful
conversation, while counseling may involve a type of interview geared toward
helping someone.
• Freeman suggests the following as comparisons:
• (1) interviewing as information-getting, counseling as advice-giving;
• (2) interviewing as procedure, counseling as substance;
• (3) interviewing as a tool, counseling as a process;
• (4) interviewing as the preliminary step, counseling as the final stage;
• (5) both as an interpersonal relationship with activity flowing in two directions;
• (6) both as methods for the solution of problems revealed.

Adversarial Courtroom Advocacy

• Lawyers tend to associate advocacy with the adversarial pleading and arguing of
their clients’ cases in courts or tribunals, through both written and oral submissions.
• Advocacy of this type is fundamental to the independent role of the legalprofession.
• Together with an independent judiciary, the lawyer advocate of this kind,
• Adversarial courtroom advocacy is of seminal importance to the legal profession
and the community.
• It is central to the legal profession’s institutional role in a democracy, ensuring
access to the rule of law.

Importance of Adversarial Advocacy

• Courtroom Advocary ensures the rule of law is upheld and that all litigants, no
matter how unpopular or disadvantaged, can exercise their legal rights and have
their freedoms protected.
• This advocacy ensures that the third arm of State, the courts, when necessary, can
curtail abuses of power by the legislature and executive.

4.2 Client Interviewing and Legal Counselling

Client interviewing is one of the most important skills required of a lawyer – it is the
practice of communicating with, and advising a client on a legal matter.Client
interviewing allows you to develop the skills needed when conducting a legal
interview,such as how to establish a relationship with the client, how to identify the
nature of the legal problem and then how to obtain the relevant information from the
client in order to reach a potential solution. Interviewing the client is the starting point
for the establishment of Advocate-Client relationship. Interviewing techniques
promote inter-personal communicative skills which are critical for lawyering
process.Helps in effective presentation of clients case- proper documentation. Highly
useful for lawyering outside the court or to undertake alternate dispute resolution. It
is useful projective technique.
Interviewing the client is defined as an effective informal verbal or non verbal
conversation, initiated either by the client or advocate, in order to ascertain the legal
problem of the client for which the solution is to be found.The aim of interview is to
describe the legal problem comprehensively looking from the outside in and looking
from inside out.

TYPES OF CLIENT
Informed/smart client
Laymen
Client without a problem

THE VERY BASICS OF LEGAL INTERVIEWING

Motivate the client’s participation(develop rapport through active listening)
Meet and greet
Formalities – names, personal details, confidentiality and the interview process.
Use questioning techniques appropriate to your purpose(open-ended, narrow,
yes-no, leading questions)
Allow the client to tell the story initially.
Structure the interview
Preliminary problem
Chronological overview stage-information gathering
Theory development and verification stage
Conclude the interview

SEVEN STAGES OF INTERVIEWING THE CLIENT

Attending-initiating-responding-building trust and rapport with the client
Listening process-with empathy
Facts gathering
Setting and identifying the claim and legal problem.
Assessment of the claim
Counselling the client about the action to be taken
Establishing advocate-client relationship

STRUCTURING THE INTERVIEW

Preliminary identify the problem
Ask the client for a general description of the underlying transaction and the relief
desired.
When the client has completed his description of the problem, summarize your
understanding of it.(reflective statements)
Chronological overview of the problem
Ask the client for a detailed step-by-step chronological description of what has
happened.
Prompt the client with open-ended, non-leading questions like “what happened next”
But do not Probe for detail at this stage.
Listen carefully –this is the client’s chance to tell his story.
You will obtain full information if you let him focus on his concerns at this stage.

Concluding the interview

Give the client a brief summary of the law governing his legal rights, and the
questions that you must research.
Tell the client what you will do next and when you will get back to the client.

LEGAL COUNSELLING
The word 'Counsel' has its origin in the Latin word 'consilium' which means advice.
According to Blacks' Law Dictionary, counsel means advice and assistance given by
one person to another in regard to a legal matter, proposed line of conduct, claim or
contention. As a matter of fact lawyers are also legal counsels. Counsellor is an
attorney; lawyer; member of the legal profession who gives legal advice and handles
the legal affairs of client, including if necessary appearing on his or her behalf in civil,
criminal or administrative action and proceedings.

The process of counselling has two functions:

1. To help the person talk about, explore and understand his or her thoughts and
feelings and workout that what he or she might do before taking action.
2. To help the person decide on his or her own solutions.
Lawyers counsel the client in deciding how his problem can be sorted out under the
laws. Legal counselling is the process by which a lawyer communicates advice to a
client. Counselling is the activity in which one person seeks and in one way or
another, pays for help from another person. It is characterized by need on one side
of the relationship, by willingness to help on the other, and by and inter personal
contract based on mutual attraction. Counselling as a professional activity will
involve competence and expertise in addition to mere willingness. Legal counselling
is fairly considered a 'service' under the Consumer Protection Act, 1986 making the
lawyer accountable for deficiency.

In a counselling relationship the client has to open himself to help and the lawyer has
to protect the best interests of his client. Legal interviewing and counselling is what
lawyers do in an office where they see clients one or two at a time, with the door
closed. Lawyers elicit information from their clients, which information forms the
basis for their advice. Legal counselling can be for litigation or for planning. Clients
may seek advice as to proper legal course of action before Courts or as to estate,
tax or business planning.
The lawyer shall understand the following before counselling a client
1. The facts pertaining to the clients' situation
2. Clients' perspectives and expectations
3. Clients' concerns as to costs, consequences and risks
4. Law applicable
5. Considerations of justice, fairness and morality
6. Bar Council Code of Ethics

4.3 TAKING CARE OF THE CLIENT

1) Improve communication

Ask any experienced attorney what they do to keep clients happy, and almost all of
them will say they maintain good communication. Communication is a process, and
attorneys must remain consistent in the frequency and style of their communication.
It’s important to carefully review your communication habits and always think of ways
you can improve communication with your clients.Keep in mind that your preferred
method of communicating might not work for everyone so you must take the time to
tailor your communication according to your client’s preferences. For example, one
client might want communication weekly while another might want it daily. Some
clients would rather communicate by phone, and some even request in-person
meetings for everything. Be sure to embrace your client’s communication
preferences so you can forge a better relationship with them.

2) Handle money matters immediately

Costs and billing issues are some of the most sensitive topics when it comes to legal
matters. From the beginning, you should have a clear outline of your costs to avoid
any confusion and ensure your client knows what he or she is getting into financially.
Once the client has agreed to the fees, remember to update them on costs that arise
throughout their case. Also, make sure you have an adequate billing system in place
and keep your invoicing as simple as possible to prevent potential confusion.

3) Own your mistakes

As in any firm, mistakes can happen in solo law practices. Whether it’s from a
miscommunication or administrative errors, everyone knows it’s how we handle our
mistakes that really matters. The best way to handle mistakes with a client is to
simply admit it and apologize. Never underestimate your client’s capacity for being
understanding. They do not expect you to be perfect.In fact, it’s very likely your
clients may even respect you more for owning up to your mistakes. However, what
they definitely won’t appreciate are lies or excuses. Clients want to know that you
care more about your relationship with them than your own pride.Owning a mistake
demonstrates humility, while as denying a mistake is often a sign of arrogance.No
one wants to work with someone who can’t admit when they’re wrong.

4) Show appreciation

Client appreciation is critical for keeping clients happy. Studies show that 68% of
customers leave a business relationship because of a perceived indifference on the
part of the company. The same can happen in an attorney-client relationship. If you
don’t show your client you care, then you risk losing them to your competitors.
Showing appreciation not only keeps your clients happy, but it also creates loyalty
Appreciation doesn’t always mean going out and buying gifts. It simply means
treating clients like human beings and not numbers. Show your clients you care and
be sincere.

5) Be selective
It can sometimes be easier to keep a client happy if they are easy to work with and
have reasonable expectations, which is why you need to be selective about who you
represent.Many solos fall into the trap of thinking they HAVE to represent every
person that comes to them, but you have to keep your firm’s reputation in mind. You
never want to put yourself in a position where you know your client is going to be
impossible to please. If a client doesn’t seem like a good fit for your practice, then
you have the option of declining.

4.4 Organisation of Argument

Organization of Arguments

• While making oral arguments before the court, it will be quite convenient if
arguments are organized systematically.
• We have to make a detail points of the case in written before making the oral
arguments.
• The synopsis of the case should be prepared in the bullet forms and those points
can be elaborated one by one before the bench.
• The statement of the conclusion can also be written within the legal briefs.
• The statement of the rules to support the claims and conclusion should also be
noted.
• The relevant cases in which the supreme court has laid some principles should also
be listed with details decision number
• Citation to the authority, explanation of new authority, analysis of the policy and
counter analysis should also be written in detail.
• Supporting authorities and the relevant documents should also be noted in the legal
briefs or synopsis where the arguments are organized.

4.5 Oral Argument

Usually, people will start their oral argument before the appellate court with the
words "May it please the court." If you want to save some of your time to respond to
the other side, then you must tell the court this immediately. Even though the
appellate court cannot give you special treatment just because you do not have a
lawyer, you should still tell the judges that you are self-represented.

Remember that the judges will be familiar with your case and will have already read
the briefs, so you do not need to restate the facts of the case or repeat parts of the
brief. It is more helpful to just highlight what you think is most important in your case
or ask the judges if they have any questions you could answer. The judges may
interrupt you (and the other side) to ask questions about your case and authorities
(published court decisions, constitutions, statutes, court rules or
other legal authorities) that you cited or should have cited. Remember to stay calm
and respectful, even if you get frustrated or are interrupted. Whenever you are asked
something you should stop what you are saying and answer as directly as possible.
If you do not know the answer, then just say so. Also, remember that you cannot
present new arguments orally unless you discussed them in your brief.

Oral Arguments Skills

• Always reach the court at time and remain prepared for your turn.
• If there are senior lawyers, provide them their turn first.
• Note the points that is already mentioned by the senior advocates, you need not to
repeat same thing again.
• You have to speak politely but strongly and also you can support the points
highlighted by the speaker before your presentation on your side.

(1) Reread the briefs and the trial court’s ruling.

• By the time the court sets your case for argument, many months may pass since
you filed your briefs.
• To prepare for argument, one good starting point is simply to reread the briefs, in
order, as some judges have told us they do.
• Doing this provides a good overview that balances the big picture and the fine
points.
• Other judges tell us they begin by reading the trial court’s rulings or statement of
decision. That makes sense, too. If you’re the appellant, focus on where the court
went wrong;
• otherwise, remind yourself of the key law and evidence that led the court to reach
the right conclusion. Once you’ve read the briefs and the trial court’s opinion, you’re
ready to take the next step.

(2) Re-familiarize yourself with what is (and isn’t) in the record

• Next, review the “record,” i.e., the appendix (or clerk’s transcript or excerpts of
record) and the reporter’s transcript (or at least the summaries).
• You don’t have to read every word, but pay special attention to the evidence and
any rulings by the trial court.
• It’s amazing what you will discover by going to the next level of detail in recalling
what your case is about.
• In terms of building confidence, there’s no substitute for getting back in touch with,
for example, the actual language of the disputed contract provision, and the overall
chronology of events.
• Rereading the closing arguments at trial can also be helpful in reconstructing the
key issues and what the “fight” was all about. Reviewing the record can also help
you avoid the dreaded question, “Counsel, where is that in the record?”

(3) Make an outline (but not a “script”)

• Almost never, of course, will an appellate court allow you to make an uninterrupted
“presentation” of your argument.
• Nonetheless, it could happen. Even if it doesn’t, preparing an outline will help you
organize your thoughts and decide which issues are really the most important.
• By “outline,” we don’t mean a script or a word-for-word prepared speech. Or even a
lengthy document with detailed headings and subheadings.
• An effective outline is more like a thematic summary of your most important points
in the order that, given sufficient time, you will make them.
• Even if you don’t end up using the outline, the exercise of preparing it will help you
focus and feel prepared and confident. And if the unexpected happens and you do
encounter Mount Rushmore, you’re all set.

(4) Prepare “greatest hits —facts” and “greatest hits — law”

• On one page, write down the five to 10 best facts in your case, complete with
record citations and perhaps even short quotations.
• Then, do the same with your three or four best legal authorities, again with pin cites
and verbatim quotes of the particularly helpful language from the opinions.
• As with the outline, this exercise may or may not actually help you, in the moment,
in argument.
• Given the right question from your panel or assertion by your opponent, however,
having the key facts and law at your fingertips — with pertinent citations — can build
great credibility.
• Even if that opportunity doesn’t arise, going through this exercise is a great way to
help you focus on what’s most important about your case.

(5) Review and update your most important authorities

• However obvious this may seem, it’s still essential to review your most important
cases.
• You don’t have to read every case. But rereading the most important four or five,
from start to finish, is a good idea.
• Make sure you also update the key cases. There’s nothing worse than emphasizing
a case and how important it is than to have your opponent point out it has been
overruled or superseded by new authority. Alas, we’ve seen this happen.

(6) Write a “questions and answers” memorandum

• A great way to prepare is to pose questions — and write short answers — on as
many questions as you reasonably think might come up at argument.
• Try to keep your answers as short as possible and create answers that are more
like “thought bites” than paragraphs. (At the argument, you just won’t have time for
lengthy answers.)
• Doing this may help you look at your case in a new way and distill your key points
to their essence.
• If time permits, you might also write a similar memorandum from your opponent’s
perspective.
• Warning: despite all your best efforts, it’s almost guaranteed the court will ask a
question that wasn’t on your list. When that happens, just look the panel in the eye,
and do the best you can.

(7) Know your panel

• Most times, although not always, you’ll know who the members of your appellate
panel will be.
• If you do, check their judicial biographies, talk with other lawyers who have
appeared before them, and find out if they’ve written opinions on the key issue or
issues in your case.
• If you’ve not appeared before the panel before, you might also observe them in
action on another day before your case is scheduled. Being prepared is a great way
to feel prepared. And feeling prepared builds confidence.
• In rare cases, you may also be able to remind a panel member of a case where he
ruled in your favor. On the other hand, if a panel member has previously taken an
unhelpful position on an important issue in your case, you might as well know that
going in.

4.6 General Presentation

When you enter a courtroom, you want to believe that the person with the best
argument will walk away with a verdict on their side. Although this is generally true, a
great trial presentation can help sway the outcome of a case.

Presentation – Communication a topic, idea to group of people or audience.

Discussing General Presentation within Advocacy communication Skills:
Presenter must have:
A. Humbleness and Courtesy
B. Self- Confidence
C. Study and Research
D. Ethical
What must Presentation include?
A. Context
B. Research
C. Analysis- relating with Facts and Case laws
D. Presentable approach
For General Presentation, Advocate/ Lawyer/ Law student must consider following
points for effective presentation:
Rehearse
It goes without saying that preparing and rehearsing your presentation
is important, but not nearly as important as the way you actually
practise. Claire Vogelpath- De Longh, an admitted attorney and legal
recruitment says, "If you pigeon learn your lines then the moment you
lose your path the whole presentation can fall apart leaving you red
faced. The trick is to sit back and think what your audience really
wants from you, then deliver that. Think about why they are there,
think about them and you'll have a satisfied audience."
Preparing and Rehearsing the contents of the topic
Preparing for possible questions
Body Language
Dress decently

Don't let your body language let you down. Do not act in an uncomfortable way:
facing opposite to the audience or turning your back against audience, turning over
books time and again, playing with your watches or spectacles, taking phone calls as
such.
Do make eye contact with your audience
Do take your time when speaking, rush and you will make mistakes
Do move around a bit. By moving around a bit you will stay relaxed
and appear confident

Avoid relying on visual aids

Steve Jobs instituted a rule at Apple that banned all PowerPoint
presentations. Similarly, Sheryl Sandberg instituted a PowerPoint ban
at face book. As they both realized power point presentation can
hinder rather than help communication.
Be prepared to use words, compelling storytelling and nonverbal cues
to communicate your point to the audience. Avoid using Visual aids
unless absolutely necessary.

Learn to listen
If we expect you to react properly to what is said to you then you have
to give it the correct attention.
The hard part is to be able to focus both on listening and preparing the
answer. If you don’t want to forget an idea you just thought about
when listening, you can ask for the moment write it down quickly and
focus back on your interlocutor. It can only lead to healthier
discussion.

Use PIP Approach

P- Purpose
I- Importance
P- Preview
Using PIP approach to presentation introduction; following this
approach the speaker first states the purpose of the presentation, and

then shares why presentation is important by reviewing implications

and possible outcomes. Finally, the presenter gives a preview of the
topics that will be discussed.
This framework is useful way to get audiences excited about the
presentation, helping them you focus on your contents and on key
takeaways.

Start & End with key points

Clear communication is of paramount importance. To ensure that the
audience understands the key takeaways from the presentation,
reiterate key points at the start and finish.
This can also be accomplished by providing attendees with a one
pager that includes key points the audience should consider
throughout the presentation.
Ask for honest feedback
Constructive and critical feedback enhances becoming better
communicator.
If u solicit feedback, others will help you discover areas for
improvement that you might have otherwise overlooked. Therefore,
considering feedbacks helps you improve your presentation in future.

4.7 Concept of Rule of Advocacy

4.7.1 Art of Advocacy

Advocacy is the act of pleading for or arguing in favor of something or actively

supporting a cause or proposal . Advocacy is a process of supporting and enabling
people to ; express their views, thoughts and concerns,access information,advice
and guidance,explore choices and option for services and care. Advocacy is
considered an art in which lawyers are trained.The art of advocacy is effective
communication to the canvas of the mind through the artwork of four brushes,
effective speaking, effective writing, effective reading and effective listening.
Advocacy begins when you meet a client and continues as you research the case,
prepare documents for trial and finally present the case in court. Advocacy
encompasses a range of abilities including case analysis, drafting and using
skeleton arguments, making oral submissions, cross-examining witnesses and being
able to put forward a strong and persuasive case.In short, advocacy is a skill. When
a legal advisor puts forward a particular argument to a court with a view to
persuading the court to come to a decision favorable to their client, that is advocacy.
However, advocacy can be both written and oral, and in actual fact it encompasses a
whole range of skills which are invaluable to lawyers.

Advocacy is the art of convincing others, that is to say, the art or persuasion. Its is
the art of conducting cases in the court, both by argument and by the manner of
bringing out the evidence, so as to convince the court or jury, as the case may be.
Advocacy is not something which one acquires inherently or genetically. It all starts
with hours and hours of diligent work and dedication.

Advocacy seeks to ensure that all people in society are able to:
* Have their voice heard on issues that are important to them
* Protect and promote their rights
* Have their views and wishes genuinely considered when decisions are being
made about their lives.

Good Advocacy Characteristics

a) Honesty :
Honesty to me is the most important quality that an advocate should possess. His
thoughts, words and deeds should have sincere co-relation to each other with
genuineness. The uprightness, integrity and honesty of an advocate will increase his
reputation and respect in the society.

b) Courage :
It is the duty of an advocate to fearlessly uphold the interests of his client by all fair
means without fear of any unpleasant consequences to himself or any other person.

c) Wit :
The lamp of wit is necessary to lighten the darkness of advocacy. Wit means a clever
and humorous expression of ideas; the liveliness of spirit. It flows from intelligence,
understanding, and quickness of mind. Having a smart wit works in reducing the
workload.

d) Industry
Industry indicates hard work which is absolutely necessary for an advocate. The
legal knowledge of an advocate should be up to date and not ignorant of the current
law in force and to gain the required knowledge, an advocate must do a systematic
study to get acquinted with the latest law.

e) Eloquence
Eloquence is related to oratory art, which means fluent oral communication and
skilful use of language with persuasion to appeal to others’ feelings. The eloquence
quality plays a crucial role in the success of advocates in their profession as the
fluent speak. Strong vocabulary is one of the powerful weapons, which an advocate
should possess. Strong vocabulary gives him assurance, builds his self-confidence
and increases his personality.

f) Fellowship
The lamp of fellowship means the membership in friendly association or
companionship. It is pertinent to remember that although advocates are adversary
parties before the bench, they are not enemies and their conflict should ends right
after they come out of the court’s doorsteps.

4.7.2Trial Advocacy Skill (Pre and Post Trial Stage)

Case Oriented Legal Research : A careful study of a subject, especially in order to

discover new facts or information about it and the research should be connected with
law.

Case Preparaton: The following things should be considered while doing case
preparation.

a) facts related to the content of the case d) jurisdiction

b) things related to burden of proof e) limitation
c) locus standi f) claim

Trial advocacy is the branch of knowledge concerned with making attorneys and
other advocates more effective in trial proceedings. The skills of trial advocacy can
be broken into two categories: skills that accomplish individual tasks (tactical skills)
such as selecting jurors, delivering opening statements and closing arguments, and
examining witnesses, and those skills that integrate the individual actions to achieve
greater effects and to drive unfolding events toward the advocate's desired outcome
(strategy) .

Organization of arguments : Logical arguments should be used. Facts and

arguments should be organized in chronological order and logical sequence

Pre Trial Stage

Pretrial advocacy refers to various tasks that are required to be accomplished before
litigation. It involves litigation planning, fact and legal investigation followed by case
evaluation and designing litigation strategy. It also involves efforts to amicably settle
the case through alternative dispute settlement mechanisms such as negotiation.

a) Litigation Planing :
A lawyer who decides to take a case primarily makes sure that the terms of
client-attorney relationship is determined. This involves material facts regarding the
representation and determination of mutual obligations. Secondly, the lawyer
examines (short and long-term) needs and priorities of the client. The third element
in litigation planning is analysis of potential claims and remedies along with an
equally important analysis of possible defences and counterclaims of the other party.
Fourth, the lawyer is required to assess likely sources of proof that are evidence in
favour of the client. This involves interviewing witnesses, obtaining documents and
records and other data, expert review, and other pertinent reliable and valid
evidence.

b) Fact Investigation : Truth is either material (i.e. empirical which can be perceived
and proved) or logical (which can validly be drawn from valid reasoning and true
premises) .Fact investigation needs a structure and a roadmap. The accuracy of
facts including facts that are not favourable to the client determine the outcome of a
given case. The sooner facts that are relevant to a case are gathered, the more
reliable would interviews become owing to their proximity to the event or occurrence,
and the lesser would be the risk of losing some physical evidence.The lawyer is
expected to identify potential sources of proof (client, witnesses, experts, documents,
pictures …) and methods of acquiring them (client interviews, witness interviews,
gathering material evidence, expert review, etc.).

c) Legal investigation, case evaluation & litigation strategy: Legal investigation

involves identification of legal issues and retrieval of relevant laws that can enable
the lawyer to arrive at a conclusion regarding the legal issue/s under consideration.
Case evaluation is one of the pretrial tasks of a lawyer that follows the investigation
of facts and identification and analysis of the relevant laws that are applicable to the
case. It is unethical to take a case where it is clear that the client’s claims and
remedies are not based on facts that can be proved and where they are not
supported by the relevant laws.

d) Pre-trial Negotiation and Settlement:

It focus on lawyering skills that are required during the negotiation to settle disputes
before trial. There are two basic approaches that are followed today. The first is
competitive: the lawyer makes an initial high offer, keeps the pressure on the
opponent, and makes as few concessions as possible. The atmosphere is entirely
adversarial, and the projected attitude is one of strength. The other approach is
cooperative: the lawyer emphasizes the parties’ shared interests, shows a
willingness to make concessions, and makes a more realistic initial offer. The
atmosphere is conciliatory, and egos are kept on the sidelines.

e) Pleading :
Preparation of pleadings marks the last phase of pretrial lawyering and is a prelude
to trial advocacy. After the completion of fact investigation and research on the legal
issues involved, and after having exhausted efforts to settle the dispute through
negotiation, the lawyer resorts to filing her case at court. Pleadings are “formal
written statements made to the court by the parties to a suit of their respective claims
and defenses as to the suitDrafting : Jurisdiction, Locus Standi ,Limitation , Claim,
Evidence, Relevant laws & precendent
Lawyer may appeal the case for her client if the trial goes badly. In post trial
advocacy lawyer should draft post-trial motions, identify and preserve issues for
appeal, develop appellate strategies, gather evidence for the appellate record,
research procedural issues, draft appellate documents, and present oral arguments
before appellate courts..

4.7.2 Trial Advocacy Skill ( Pre-Trial Stage and Post-Trial Stage)

Case Oriented Legal Research

• Case oriented legal research is necessary for the preparation of the trial.
• During the trial, at the court of first instance, the facts, evidences to prove any facts,
laws related with facts, case law related with the particular case, foreign judgment
related with the cases are taken into consideration by the court.
• These points of facts and law, case laws should be identified by the lawyer to
advocate on behalf of the clients and pursue the interests of the clients.
• Conducting a thorough reference interview will allow you to more effectively identify
the legal resources that may provide answers to the client’s questions.
• It is necessary to identify the legal issues by conducting a thorough reference
interview and by using the TARP method.
• Analaytical, comparative, critical or mixed methods of legal research can be utilized
as per the necessity for case oriented research.

Identifying the Legal Issues

• During interviewing your clients, your duty is to analyze the information provided in
order to identify the relevant facts and to weed out the irrelevant.
• To determine the relevant facts, you will usually need to ask additional questions. At
this point, it is appropriate to briefly address concerns about the unauthorized
practice of law.

TRAP Method
• Many legal researchers use a systematic approach called the TARP method to
analyze fact situations
• T for THING or subject matter, place, or property (e.g., divorce, contested will, dog
bite)
• A for Cause of ACTION or ground for defense (e.g., breach of contract, mistaken
identity)
• R for RELIEF sought or type of lawsuit (e.g., monetary damages, injunction)
• and P for PERSONS or PARTIES involved & their relationship to each other (e.g.,
husband-wife, employer-employee, landlord-tenant)
• These issues should be analysed.
Unit 5 Public Interest,Lawyering Skills and Legal Aids

5.1 Concept,Development and Practices of Public Interest Lawyering

The term 'Public Interest Litigation' ordinarily means a legal action which is
initiated before a court of law for the purpose of enforcement of general
interest of the public.PIL means to the benefit or advantage of the com munity as on
whole.Litigation means process of taking legal action in a court of law with the object
of enforcing a right or seeking a remedy.Public interest litigation is the use of the law
to advance human rights andequality, or raise issues of broad public concern. It
helps advance the cause ofminority or disadvantaged groups or individuals. Public
interest cases may arise from both public and private law matters. In simple terms, a
PIL is a petition that an individual or a non-government organization or citizen
groups, can file in the court seeking justice in an issue that has a larger public
interest.

Development of PIL

Actioo popularis is a Latin term that means a lawsuit brought by a third party in
the interest of the public as a whole. It derives from Roman penal law.
The term PIL originated in the United States in the mid-1980s. Since the
nineteenth century, various movements in that country had contributed to
public interest law, which was part of the legal aid movement. The first legal
aid office was established in New York in 1876.

In India, prior to the 1980s, it was only the aggrieved party that could seek
justice in the Court of law and a person who was not affected personally could
not approach the Court as a representative of the aggrieved party. Thus, the
locus standi was vested only in the aggrieved affected party to file a case in
the Courts. As a result of this, there was a huge gap in the rights guaranteed
by the Constitution on one hand and the laws on the other and it was the rights
of the poor, illiterate and underprivileged that remained neglected and
abandoned by the entirely legal system.

In December 1979, Kapila Hingorani filed a petition in regards to the condition

of the prisoners detained in the Bihar jail, whose suits were pending in court.
The petition was signed by prisoners of the Bihar jail and the case was filed in
the Supreme Court of India before the bench headed by Justice P. N.
Bhagwati. The petition was filed under the name of a prisoner, Hussainara
Khatoon, and the case was therefore named Hussainara Khatoon Vs State of
Bihar. The Supreme Court decided that prisoners should receive free legal aid
and fast hearings. As a result, 40,000 prisoners were released from jail.
Thereafter many similar cases have been registered in the Supreme Court. It
was in the case of SP Gupta vs Union of India that the Supreme Court of India
defined the term "public interest litigation" in the Indian context.

In context of Nepal, the introduction of the Ninth Amendment to the National

Civil Code (Muluki Ain) in1986 can be taken as the starting point of the
concept of PIL in the Nepali legal regime. Although Radheshyam Adhikari v.
Secretariat of the Council of Ministers & Others (1991), also popularly known
as the Ambassador's Appointment case, was the first case dealing with the
concept of public interest and 'locus standi' to move the court for enforcement
of any public interest, it is, in fact, Surya Prasad Dhungel v. Godabari Marble
Industries Pvt. Ltd. & Others (1995) which is generally believed to have
initiated the practice of PIL in Nepal (by extending the meaning of right to life
as also incorporating the right to a clean and healthy environment) and setting
the trend for asking the concerned authorities to make suitable arrangements
for protecting public interest.

The Constitution of Nepal, 2072 has mentioned about the provision related to
PIL in Article 133 (2):

The Supreme Court shall, for the enforcement of the fundamental rights
conferred by this Constitution or of any other legal right for which no other
remedy has been provided or for which the remedy even though provided
appears to be inadequate or ineffective or for the settlement of any
constitutional or legal question involved in any dispute of public interest or
concern, have the extraordinary power to issue necessary and appropriate
orders, provide appropriate remedies, enforce such right or settle such dispute.

Role of lawyers in PIL

Advocate on behalf of vulnerable population such as women, children,

indigenous people, Dalit & other marginalized section of the society

As Nepal has experienced with problems related with Economic, social and
cultural rights over the history, adequate attention must be given to enhance
such rights through Public interest advocacy.

Lawyers are special guardian of justice so they should seek improvement of

law.
Lawyer should not mislead the public interest

Basic duty to be honest /honourable.

Lawyers involvement is mostly important in PIL case so they must raise issue
which has great importance in public regard.

They should provide legal services in the public interest inorder to

change the law or accomplish a public interest goal.

Lawyers must take their profession as a administration of justice

not a mere money getting trade.

5.2 Legal Aid

5.2.1 Concept and Meaning and Principles of Legal Aid

In general sense, Legal aid is free or inexpensive legal services provided to people
who are unable to afford legal representation and access to court system.
Black’s Law Dictionary defines it as, "Free or inexpensive legal services provided to
those who cannot afford to full price".
Oxford Advanced Learner’s Dictionary defines it as, "Money that is given by the
government or another organization to somebody who needs help to pay for legal
advice or a lawyer".Legal Aid Act, 2054 has defined it as, "Legal Aid" means Legal
Aid to the indigent person under this Act and the term also includes counseling and
other legal services such as correspondence pleadings, preparation of legal
documents and proceedings in the courts or offices on behalf of indigent person.
There is provision of a fund for the works related to legal aid in section 8 of legal aid
act, 2054 ; and in that fund, the following amount will be deposited:
- Amount received as grant from Nepal Government.
- Amount received as grant, donation and help from any person, association or
organization, and
- Amount received from other sources.
There is provision of Central legal aid committee in Nepal in section 6 of Legal Aid
Act, 2054 ; The function of the committee shall be:
- To make policy and programmes about legal aid.
-To arrange the required amount for the function of legal aid.
 - To publish books, booklets, etc and distribute to the public to inform about law
and legal aid.There is provision of District legal aid committee in Nepal in section 7 of
Legal Aid Act, 2054 ; The function of the committee shall be:
- To make available legal aid to the helpless persons, of particular district.
- To make list of lawyers who make available legal aid to the helpless persons.
Person to obtain legal aid
- Only the person may obtain legal aid according to this act who has low income
than the specified annual income.
- Concerned committee has power to make decision to make or not to make
available legal aid to any person .
While making decision about to make available
legal aid , the concerned committee must consider not to incourage the tendency to
provide unnecessary troubles to any other persons and to do baseless cases.

United Nations principles on Access to Legal Aid in Criminal justice system

Principle 1: Right to legal aid
Recognizing that legal aid is an essential element of a functioning criminal justice
system that is based on the rule of law, a foundation for the enjoyment of other
rights, including the right to a fair trial, and an important safeguard that ensures
fundamental fairness and public trust in the criminal justice process,14 States should
guarantee the right to legal aid in their national legal systems at the highest possible
level, including, where applicable, in the constitution.

Principle 4: Legal aid for victims of crime

Without prejudice to or inconsistency with the rights of the accused, States should,
where appropriate, provide legal aid to victims of crime.

Principle 5: Legal aid for witnesses

Without prejudice to or inconsistency with the rights of the accused, States should,
where appropriate, provide legal aid to witnesses of crime.

Principle 4: Legal aid for victims of crime

Without prejudice to or inconsistency with the rights of the accused, States should,
where appropriate, provide legal aid to victims of crime.
Principle 5: Legal aid for witnesses
Without prejudice to or inconsistency with the rights of the accused, States should,
where appropriate, provide legal aid to witnesses of crime.

Principle 7: Prompt and effective provision of legal aid

States should ensure that effective legal aid is provided promptly at all stages of the
criminal justice process.
 Effective legal aid includes, but is not limited to, unhindered access to legal aid
providers for detained persons, confidentiality of communications, access to case
files and adequate time and facilities to prepare their defence.

Principle 10: Equity in access to legal aid

Special measures should be taken to ensure meaningful access to legal aid for
women, children and groups with special needs, including, but not
limited to, the elderly, minorities, persons with disabilities, persons with mental
illnesses, persons living with HIV and other serious contagious diseases, drug users,
indigenous and aboriginal people, stateless persons, asylum seekers, foreign
citizens, migrants and migrant workers, refugees and internally displaced persons.
Such measures should address the special needs of those groups, including
gender‑sensitive and age-appropriate measures.

Principle 11: Legal aid in the best interests of the child

In all legal aid decisions affecting children,15 the best interests of the child should be
the primary consideration.
Legal aid provided to children should be prioritized, in the best inter‑ests of the child,
and be accessible, age‑appropriate, multidisciplinary, effective and responsive to the
specific legal and social needs of children.
Principle 12: Independence and protection of legal aid providers
States should ensure that legal aid providers are able to carry out their work
effectively, freely and independently. In particular, States should ensure that legal aid
providers are able to perform all of their professional functions without intimidation,
hindrance, harassment or improper interference

Principle 13: Competence and accountability of legal aid providers

States should put in place mechanisms to ensure that all legal aid providers
possess education, training, skills and experience that are com‑mensurate with the
nature of their work, including the gravity of the offences dealt with, and the rights
and needs of women, children and groups with special needs.
Disciplinary complaints against legal aid providers should be promptly investigated
and adjudicated in accordance with professional codes of ethics before an impartial
body and subject to judicial review.

In conclusion, Legal aid is the provision of assistance to people who are unable to
afford legal representation and access to the court system. Legal aid is regarded as
central in providing access to justice by ensuring equality before the law, the right to
counsel and the right to a fair trial. In order to follow the principles of legal aid there is
provision of legal aid act, 2054 ; Legal aid rules 2055 etc in Nepal.

Legal Aid Rules 2055

Under Chapter 2 :Provision related to provide the Legal Aid
3. Application has to be submitted to be entitled to Legal Aid:
4. Examination of the Application
5. Decision of the of the committee and information:

6. Legal Aid shall not be entitled: (1) The committee shall not entitle
any person who has the Annual income more the Forty Thousand, for
legal aid.
(2) The committee shall not entitle the convicted party of the
following cases, for legal aid:-
(a) Under the Espionage Act, 2018 (1962),
(b) Under the Human Trafficking (Control) Act, 2043,
(c) Cases under Ancient Monument Preservation Act, 2013,
(d) Cases which has the punishment under Chapter on Rape of
the General Code (Muluki Ain),
(e) Cases under Prevention of Corruption Act, 2017 and
Commission for the Investigation and Abuse of Authority
Act, 2048,
(f) Cases under the Revenue Leakages Control Act, 2052,
(g) Cases under Drug (Control) Act, 2033,
(h) Other cases prescribed on time and again by central
committee.

7. The expenditure for Legal Aid have to be reimbursed : (1) If any

person receives some property or economic benefit in consequence of
the entitlement of Legal Aid, such person shall reimburse the
expenditure made by the committee, in the course of providing Legal
Aid to him/her.

5.2.2 Role of Nepal Bar Association,Courts,Civil Society organization and

Legal Aid Committee

Nepal Bar Association

Nepal Bar Association is an organization of private or defense lawyers which is

similar to civil society and Non-governmental organizations. Institutionalization of
legal aid service came across with Nepal Bar Association’s initiation.
Nepal Bar Association and its branches of all the courts of Nepal are important
source of legal aid in Nepal which provides legal aid in support of different partners
and donors mainly Norwegian Bar and European Commission funded legal aid
projects.
Access to Justice is one of the principal programs of Nepal Bar Association based
on the agreement between Nepal Bar Association and Norwegian Bar Association.
The targeted group of the project are the poor, indigent Nepali people including
women, children, Dalit, Janajati, Madheshi and marginalized community who cannot
afford the cost of the lawyer.

Objectives of Access to justice project

To strength the concept of Rule of law
To enable access to justice of targeted persons/ groups
To protect human rights intervening policy making bodies of the government.
To provide professional training of District legal Aid
To enhance legal education through the development of school level curriculum
To provide legal aid for Women , Dalit, janajati, Madheshi and other marginalized
community.

Role of Courts in Legal Aid

Court is one of the sources of providing legal aid in Nepal. There are three tires of
court in Nepal i.e. District court, High court and Supreme Court. Legal aid is available
in all courts through stipendiary lawyer (Baitanik Wakil).
There is provision of stipendiary lawyer in Rule 143 of Supreme Court Regulation,
2074 B.S., Rule 157 of High Court Regulation 2073 B.S. and Rule 101(1) of District
Court Regulation 2075 B.S. Stipendiary lawyer provides legal aid including
counselling, preparation of legal documents and pleading before the bench The
Supreme Court Regulation 2074 B.S. make provision of legal aid.
It has authorized the Register of the Supreme Court of Nepal to appoint a
stipendiary lawyer from among the advocates on the basis of seniority through open
and fair competition. The stipendiary lawyer is required to work in the legal aid
section of the Supreme Court of Nepal. There are similar provisions of stipendiary
lawyer in High Court and District Court Regulation.
Both Regulations of High Court and District Court prescribe that the stipendiary
lawyer will be appointed among the applicant advocates available. According to High
Court Regulation 2073 B.S. the Chief Judge, concerned Bench or Registrar are
authorized to make decision of stipendiary lawyer.
In the District Court either a Judge or the Chief Judicial Officer (Shrestedar) decides
on managing stipendiary lawyer and legal aid. Presently there are two stipendiary
lawyers in the Supreme Court, one stipendiary lawyer in each High Court and District
Court.
The remuneration of stipendiary lawyer of all three tires of court is prescribed by the
Government of Nepal. The duty of stipendiary lawyer according to these various
Regulations is to provide legal aid to the helpless, unable, children, poor or prisoner
litigants .

Role of Civil Society Organization in Legal Aid

Society and Non-Governmental Organizations (NGOs)After the restoration of
democracy in 1990, the constitution adopted the open policy and significant number
of voluntary organizations were established in the form of NGOs. Civil society is
broadly defined as all organizational activity that falls outside the orbits of the
government or for-profit sector.
Civil society means the entire range of organized groups and institutions that are
independent of the state, voluntary and at least to some extent self-generating and
self-reliant. It includes non-governmental organizations (NGOs) like independent
mass media, think tanks, universities and social and religious groups.
It is most commonly said that civil society may be heard more loudly in a democratic
process. In democracy participation is a key for achieving consensus on reform and
that consensus provides greater ownership of all.
Citizens are the users of the legal and judicial system, and they rely on the system
to enforce their property and individual rights. It is, therefore, imperative that civil
society groups are key actors in judicial reform, as it can act as a voice for the
concerns of the public . As a group, civil society and NGOs can make governments
listen to the voice of destitute victims who are deprived from their rights and who are
in search of legal aid and quest of justice.

It raises the voice of the voiceless, helpless, handicapped, marginalized, vulnerable

and poor in the concerned levels for their access in the justice system. It also
monitors for accountable, conscious, responsive, participative, transparent,
equitable, inclusive, effective, efficient and independent judiciary and contributes to
good governance.
There are various civil society organizations that have been providing legal aid in
different parts of the country, especially in support, funding and partnership of
various national and international donor agencies.
They conduct various awareness, trainings and legal literacy, research programmes
in the legal aid, human right issues, justice system and so on. They make
partnership with the government for sharing the legal problems Legal Aid
At present time some of the organizations are established and working in the field of
law, human rights, justice, freedom, development, legal aid, rights of the prisoners
and other several areas of law in Nepal.
They are providing services to the deprived groups of the prisoners and other in
need of legal services. Legal Aid & Consultancy Centre (LACC), Centre for Victim of
Torture Nepal (CVICT), Central Women Legal Aid Committee (CWLAC), Centre for
Legal Research and Resource Development (CeLRRd), Access to Justice and
Advocacy of Rights (AJAR) Nepal, Forum for Protection of People’s Rights (PPR)
Nepal, Advocacy Forum etc. are some non-governmental organizations working in
the area of legal aid in Nepal

Role of Legal Aid Committee

Chapter-3 of Legal Aid Act 2055

Procedures Related to the Functions, Duties and Power and Meeting of the Central
Legal Aid Committee
8. Functions, duties and powers of the central Legal aid committee: In addition to the
functions, duties and powers mentioned in Section 6 of the Act, the Central Legal Aid
Committee shall have the following functions, duties and powers:-

(a) If many persons having less income than that specified pursuant to Sub-rule (1)
of rule 6 have applied for the legal Aid, then to formulate the required policy for
determining the priority list of the persons who shall be entitled for legal aid and to
determine the priority list of the persons to be entitled for legal aid subject to the
provisions of thus formulated policy.
(b) To formulate the policy for partial or full waiver of the expenditure made by the
committee in the course of providing Legal Aid to a person, pursuant to the proviso
Section 4 of the Act.
(c) To formulate the required policy in relation to determination of the amount of
remuneration shall be given to the lawyer providing the legal aid, pursuant to the
Sub-section (4) of Section 5 of the Act and to determine the remuneration of the
lawyer providing the legal aid subject to the provisions of thus formulated policy.
(d) To formulate the policy in relation to the evaluation of the total property or
economic benefit received by a person in reimbursing the expenditure made by the
committee pursuant to Sub-rule (2) of Rule 7, and to evaluate the total economic
benefit received by the person entitled for legal aid subject to the provisions of the
thus formulated policy.
(e) If any lawyer designated (appointed) by the committee to providethe legal aid
pursuant to the Act or these Rules makes negligence or carelessness in providing
legal aid and in consequence the concerned person losses the case, then to
recommend the Bar Council to take appropriate action against such lawyer pursuant
to prevailing laws.
(f) To pass the annual program and budget of the central committee.
9. Procedure relating to the meeting of the Central Legal Aid Committee: (1) The
central committee meeting shall held four times every year in the date, time and
place stipulated by the chair person and may be held more than that if needed.
(2) Central committee as per the need may invite any official or expert to participate
in central committee meeting as an invitee or Observer.
(3) The quorum for the central committee meeting deemed to be completed if the
Fifty percent members of the total number of members of the central committee
present.
(4) The chairperson of the committee shall chair the meeting of the central
committee. In absence of the chairperson, the member selected among the
members themselves shall chair the meeting.
(5) The majority's opinion shall be valid in the central committee meeting and if the
vote ties then the person who is chairing the meeting shall be entitled for decision
vote.
(6) The decision of the central committee meeting shall be written in the minute and
authenticated by the member secretary of the committee then shall be provided for
information to all members.
(7) The other procedures relating to the central committee meeting shall be
determined by the central committee itself.

Chapter-4

Function, Duties Powers and Procedure related to the Meeting of the District Legal
Aid Committee

10. Functions, Duties and Power of the District Legal Aid Committee: In addition to
the functions, duties and powers (articulated) mentioned in Section 7 of the Act, the
district legal aid committee shall have the following functions, duties and powers:-

(a) If many persons having less income than that specified pursuant to Sub-rule (1)
of Rule 6 have applied for the legal aid then to formulate the required policy for
determining the priority list of the persons who shall be entitled for legal aid and to
determine the priority list of the persons to be entitled for legal aid subject to the
provisions of thus formulated policy.
(b) For providing legal aid to the indigent persons in appellate court, district court or
other Agency, to prepare the list of panel of lawyers in coordination with conceived
bar unit.
(c) To make the required decision subject to the provisions of policy formulated by
central committee on partial or full waiver of the expenditure made by the committee
in the course of providing legal aid to any persons pursuant to the provision of
Section 4 of the Act,
(d) To determine the remuneration of lawyers providing the legal aid, subject to the
provision of policy formulated by the central committee in determination of amount of
remuneration shall be given to the lawyers providing the legal aid, pursuant to the
Sub- section (4) of Section 5 of the act.
(e) To evaluate the total economic benefit received by the person entitled for legal
aid subject to the provisions of the policy formulated by central committee in relation
to the evaluation of the total economic benefit received by a person in reimbursing
the expenditure made by the committee pursuant to Sub-rule (2) of Rule 7.
(f) If any lawyer appointed by the committee to provide the legal aid to a person
pursuant to the Act or these Rules makes negligence or carelessness in providing
the legal aid and in consequence the person losses the case then to request the
central committee to recommend the Bar Council to take action against such lawyer
pursuant to prevailing laws.
(g) To send the annual program and budget after passing it, to the central committee
for approval.
5.2.3 Mandatory Pro-Bono

Probono is the short version of the Latin phrase pro bono public. This phrase means
“for the public good the motivation behind pro bono work is to benefit society as
opposed to making money. Pro bono work often refers to legal services offered
without taking a fee. In countries such as the United States and the United Kingdom,
it is recommended by professional law associations that legal practitioners volunteer
a certain number of hours for pro bono service each year. ”
In simple terms, pro bono work is the service a professional renders to an individual
without any compensation before or after offering the service.
Even though pro bono is applicable to all professions, the term is popularly used in
legal profession.
The American Bar Association’s Model Rule 6.1 states that every Lawyer “has a
professional responsibility to provide legal services to those unable to pay.”
According to American Bar Association “Pro bono legal services are personally
performed, without charge or expectation of fee, to persons of limited means or
organizations that serve persons of limited means.
From this definition, free legal service offered with the aim of turning the client into a
paying client in the future is not a pro bono service.
Likewise, a legal service carried out with an expectation to get paid at the beginning
but changing your mind later can’t be classified as pro bono.

Probono in Nepal
robono work restores faith in the legal system by providing access to justice to those
who have financial and social constraints.
Article 18 of the Constitution of Nepal ,2015 (B.S. 2072) provides equality before the
law and equal protection of the Law as a fundamental right.
Similarly, Article 20(2) of the Constitution states that any person arrested shall have
the right to consult a legal Practitioner of his/her choice from the time of arrest, and
that the advice given by the legal practitioner shall remain Confidential. Thus,
providing access to justice and the principles of the rule of Law and equality before
Law are fundamental rights of the utmost value, enshrined by the constitution of
Nepal.
Even though the Law recognizes the importance of Legal aid, in practice there is lack
of infrastructure to grant it. This increases the importance of probono work in Nepal
to impart to the masses their fundamental right to access Justice.

Nature of Probono
The unpaid work done for these families would be considered to be pro bono work,
because the attorney is providing his services solely for the benefit of the less
fortunate in the community.
< Suppose an attorney provides some legal service to low-income families in his
community free of charge.
< The altruistic nature of pro bono work can be thought of as more important that the
actual work. Attorneys, for instance who engage in pro bono work donate their time
and expertise in order to help improve the lives of others in their community.

According to Model Rule 6.1 of Professional Conduct of the American Bar

Association, “a lawyer should aspire to render at least fifty (50) hours of pro bono
publico legal services per year.” Rule 6.1 further urges that lawyers provide a
substantial majority of those hours without fee or expectation of fee to persons of
limited means or charitable, religious, civic, community, governmental and
educational organizations in matters designed primarily to address the needs of
persons of limited means. Additionally, lawyers are encouraged to contribute
financially to organizations that provide legal services to the poor.

Law Firm Pro Bono Challenge Statement of Principles (excerpt)

Recognizing the growing severity of the unmet legal needs of the poor and
disadvantaged in the communities we serve, and mindful that major law firms
must--in the finest traditions of our profession-- play a leading role in addressing
these unmet needs, our firm is pleased to join with other firms across the country in
subscribing to the following statement of principles and in pledging our best efforts to
achieve the voluntary goals described below. Our firm recognizes its institutional
obligation to encourage and support the participation by all of its attorneys in pro
bono publico activities. We agree to promulgate and maintain a clearly articulated
and commonly understood firm policy which unequivocally states the firm’s
commitment to pro bono work.

Firm benefits
• Lawyering skills development
• Help recruit and retain new associates
• Improve firm-wide morale
• Enhance firm’s reputation
• Community connections
Encourages Diversity of experience

Importance of Pro Bono

The Importance of Pro Bono Work in Professional Development
During this poor economy, pro bono work provides an excellent means to develop
one’s craft.
Client Interaction
Lead Counsel Experience
Broader Substantive Experience
pro bono work can provide early opportunities for substantial and meaningful direct
interaction with clients; (2) it often offers young litigators the opportunity to develop
skills through experiences that simply would not be available to them from paying .
Probono work helps to provide benefit to the community.
Good quality probono certainly help to develop as a lawyer and a person.

5.3 Legal Literacy

Legal literacy constitutes of two words; Legal and literacy. Literacy can be defined as
both the ability to read and write in any language. Programme for the International
Assessment of Adult Competencies (PIAAC) - "Literacy is the ability to identify,
understand, interpret, create, communicate and compute, using printed and written
materials associated with varying contexts.” Literacy involves a continuum of
learning in enabling individuals to achieve their goals, to develop their knowledge
and potential, and to participate fully in their community and wider society Legal
Literacy, sometimes called public legal education or Legal awareness, is the
empowerment of individuals regarding issues involving the law. Legal awareness
helps to promote consciousness of legal culture, participation in the formation of laws
and the rule of law.

The need for legal literacy is inevitable because it is a necessary tool for truthful
implementation of legal provisions and brings about a needed change from the
grassroots level. For this purpose, non-governmental organizations, legal
professionals or even students of law could proclaim the responsibility to give their
effort on spreading basic legal knowledge to public at large which would help erase
exploitation and manipulation of any sort. If the recipient themselves are unaware
regarding the relief provided to them by law, not only the legal system, but the nation
in itself would have failed in providing needful justice as provided by the constitution.
1. Fighting Injustice and Women Empowerment
2. Understanding the Scope of Rights and Challenging their Violations
3. Transparency and Accountability in the Governance.
4. Empowering the Poor
5. Increase in knowledge about law

❖ Things to be noted while providing legal literacy

1. Proper Research:
The person providing the legal literacy must do a proper research regarding that
specific topic. He/She must have proper knowledge regarding the laws amended,
precedents established in that specific topic.
2. Language:
One providing the legal literacy ought to speak in the language understandable by
the audience where they are conducting the program. Proper Nepali language must
be spoken. One ought to simplify the legal language and provide the awareness in a
simple language.

3. Communication skills:
The person providing legal literacy must have communication skills such as listening,
straight talking, non-verbal communication, Stress management, emotion control.
He/ She must be clear, concise, concrete, correct, coherent, complete and
courteous.

4. Time Management:
While providing the legal literacy one has to be able to do time management. One
shall not exceed the time that has been provided and should provide all the
knowledge regarding the topic in that given time.

❖ Conclusion:
Legal literacy is an ability to understand the rights offered by legal system of the
country, which aims to make people aware of laws enacted for welfare of the citizens
and prevents exploitation and victimization of people in absence of such awareness.
It is the first step towards knowledge of the law, and access to justice which can
transform people's lives. One ought to know about their right to know that their rights
have been violated. So, legal literacy is very important. Hence, legal literacy should
be provided to every citizen of Nepal for proper implementation of law.

5.4 Concept of Para Legal Services and its Importance

Para legal is someone who, while not a professional lawyer, has a basic knowledge
of the law and its procedures as a result of close association with lawyers and/ or
legal affairs.
According to Black’s Law Dictionary, ‘ A person who has some education in law and
assist a lawyer in duties related to the practice of law but who is not a licensed
attorney is called paralegal; or legal assistant; or legal analyst.’
Canadian Law defines, ‘ a non lawyer who is legally qualified through experience or
special training and is licensed to provide limited legal service in certain fields.
Paralegals may assist in representing clients in both civil and criminal matters.’

A paralegal worker is a person with basic knowledge of law and procedures with
motivation, attitude and skills to:-
Conduct education programmes to enable disadvantage people to become aware of
their rights
Facilitate the creation of people’s organization to enable them to demand their rights
Assist in securing mediation and reconciliation in matters in dispute
Conduct preliminary investigation in cases which have to be referred to a lawyer
Assist the lawyer with written statements required evidence and other relevant
information necessary for dealing with such a case.
The groups which are engaging paralegals in their legal services programmes
have trained the following persons as paralegals:-
Community leaders
Trade union leaders
Rural youth
Social workers
Young lawyers
Literacy teachers
Development workers
Representation of specific disadvantaged group such as tribal etc.

In some cases those who are trained as paralegals are not associated with any
particular agency or organization and they function on their own and render their
services when their assistance is sought by a community or by individuals in the
community.

Roles of paralegal workers:-

Facilitating formation of a people’s organization
Education and conscientisation
Social analysis
Counselling, mediation and conciliation
Legal first aid
Networking
Documentation
Assisting the lawyers
Drafting Document
Enabling people to represent their demands

Qualification and qualities or attitudes required of paralegals

Lack of formal education qualifications should not prevent a person from being
trained as a paralegal
An objective and analytical mind
Self criticism and the ability to analyse the short coming of their works
Self confidence to establish links and relate with different sections of the society,
such as the confidence to deal with police officials, researchers, journalist etc.
Capacity to make risk analysis and not endanger their security nor that of the people
they work with.
Ability to foresee potential problems or issues in the community with which they work
and deal with them instead of waiting for problems to emerge.

Skills and knowledge required of a paralegal workers:-

Ability to work with people
Communication skills
Writing and drafting skills
Ability to conduct research
Ability to render advice or counselling
Negotiation skills
Evaluating skills

Knowledge
Minimum knowledge of the political and legal system
Need to know the various judicial and quasi judicial forum that exist as to seek legal
remedies for problems faced by the community and by individual members of a
community

Types of organizations and agencies that train paralegals

Independent lawyers organization
Bar associations
Non governmental organizations
law faculties other educational institutions
Governmental agencies

Trainers
Lawyers play major role in training paralegals
According to section 27(2) (i) of Nepal Bar Council Act, 2050, the council may frame
rules making the provisions to be followed by those who have received certificate to
prepare documents (lekhapadhi) in courts and offices.
Rule 2(d) of rules related to paralegal professional (lekhapadhi byabasayi) defines
paralegal as follows:-
The person who has obtained certificate to prepare documents in courts and offices
according to rule 3 of these rules.

Unit 6 Law Firm Management and Accountancy of Lawyers

A law firm is a business entity formed by one or more lawyers to engage in the
practice of law. The primary service rendered by a law firm is to advise clients about
their legal rights and responsibilities, and to represent clients in civil or criminal
cases, business transactions, and other matters in which legal advice and other
assistance are sought.

Composition Of Law Firms.

•Single Attorney.
•Several Attorney.
•Paralegal Service.
•Secretariats.
Law Firm Management
•It is a business Administration.
•Workload.
•Staff Management.
•Financial Management.
•Office Management.
•Marketing And Legal Advertisement.

How to Manage a Law Firm

A. Law firm has to be clear, documented systems and procedures that reflect your
core business model and you follow them.
B. Documented procedures include both administrative and client services workflows
and have a system for regularly reviewing those workflows to find opportunities to
automate or improve them.
C. Should follow good personal productivity and time management practices.

Managing Law firm or office doesn’t have to take the bulk of your time. With sharp
processes in place, proper law office management, and a mind open to automation
for systems and processes, you can run your practice with efficiency and get back to
doing what you do best: practicing law.

Law Firm Systems and Procedures.

In any office, processes and procedures are the solid road map. In the law firm,
processes ensures that you can easily locate contacts, tasks, emails, documents,
and more associated with your clients. They also help legal officers to use their time
and resources efficiently and ensure theirr staff does the same. Approximately 20 to
30% of revenue is lost due to inefficiencies in law firms processes each year.In law
firm, these inefficiencies might include employees hunting answers to simple
questions or documents put in the wrong places. You can solve these issues with
documented procedures, both freeing up your time and keeping your operations
consistent.

How to Craft Law Office Management Procedures.

Put together your office procedures so that, as you grow, you have a foundation in
place for each new employee or member of your firm. You’ll want to compile all
procedures into a law office procedure manual for safekeeping and
reference. This includes your plan for contingencies like natural disasters or remote
working policies.

To get started, following these steps would be beneficial for Law firms:
1.Identify your processes. Consider each task you complete on a daily basis. Include
simple as well as complex processes. Some example law office processes include:
a. Client intake
b. Document filing
c. Using a CRM tool
d. Using phones, task management software, and other tech tools.
e. Sending an email.

2. Break your processes down into steps.

Take each process and break it down into simple steps. Use numbers for each step,
ensuring the process is quick and easy to follow. You can use flowcharts or
screenshots to make this easier to visualize, especially if different individuals are
responsible for certain steps.

3. Test, test, test.

Don’t miss a step or important rule of thumb as you delineate each process. Ask an
employee or a colleague to follow the process once you complete it and get their
feedback. Make any changes needed to further clarify and simplify your steps.

4. Revisit and revise.

Processes will change over time. It’s best to revisit your manual and revise as often
as needed or at least each quarter.

How to Manage Law Firm

In your law firm, the most common projects are client cases that have a definite
beginning and a close. Yet, you might also come across other projects such as
internal projects, pro bono work, and more. Proper project management ensures
your team remains productive, regardless of the size or type of project at hand.
● Creating a timeline. Create a timeline that outlines the steps you must take to
reach the goal, including deadlines for each task or step.
● Defining who’s responsible. Identify who’s responsible for each task or step,
as well as who’s responsible for bringing the project to final completion.
● At the end of each project, you and the rest of your firm should communicate
what went well and what you can improve next time. This will ensure you’re
moving forward, increasing efficiencies with each project.
● As a busy attorney with a new law firm, it’s easy to lose sight of the bigger
picture or the goals you set for your firm. It’s easy to go with the flow of client
meetings and other tasks without considering how they connect to your firm,
your career, and your life. To stay the course, you need a personal
productivity system.
6.1 Organizational Structure (Private Firm,Partnership and Company)

Organisational Structure

Private Firm

Those who want the ultimate in flexibility should consider a sole

proprietorship. It is common for a solo legal practitioner to set up their law
firm as a sole proprietorship. When a business is managed and owned by
one person, it is considered an unincorporated business entity. According to
the law, the owner of a sole proprietorship and the business are not
separate. This is what provides the flexibility of management. It is
considered a significant benefit to the sole proprietor. The owner of a sole
proprietorship can set their own hours and choose what area of the law they
want to practice. They are in control of their earnings and can determine
the clients they want to take on and which ones they feel are best to turn
away. A sole proprietorship does have challenges. There could be a
limitation on funding sources as well as dealing with an excessive
administrative burden. It could require a significant amount of effort to
obtain a sufficient number of clients to sustain this type of law practice. A
sole proprietor does not have the advantage of being protected by a
corporate shield.

Partnership

This is a popular option for two or more attorneys who want to

have a law practice together. A general partnership will be
owned by two or more people. Each person will share equally
in the liabilities of the partnership as well as the profits. The
affairs of the partnership, in theory, should be able to be
managed by any of its members. This can become a problem if
the members of the partnership have not agreed on the specific
roles associated with managing it. This makes it possible for
one partner to bind the partnership to a legal obligation without
obtaining agreement for it from the other partners. There is also
the real possibility of dual taxation that needs to be considered.

Company

Many law firms prefer to use the limited liability structure in

their firm. This is attractive because it is considered a hybrid
entity. It provides the ability to be as flexible as a sole
proprietor and also provide the safety shield associated with a
professional corporation. Unfortunately, there are some
jurisdictions that don’t permit a law firm to practice using a
limited liability structure. This is something important to know
before starting the process. Some states require the formation
of a limited liability company to be announced. It is often done
using a newspaper or other similar publication. Doing this will
add some expense to a startup law firm’s budget.

6.2 Technical Aspect

Legal Technology and the Modern Law Firm

Law technology has impacted every aspect of the legal field, from the law firm and
corporate practice to courtroom operation and document management.

Law Firm Technology

In law firms, electronic billing (“e-billing”) is gradually replacing

traditional paper invoices. Technology has also become an important
legal marketing tool and new law firm websites, and legal blogs spring
up daily in cyberspace.

Electronic case management has also changed how documents are

handled. Firms are now storing voluminous case files electronically and
employing databases to track, edit, search, distribute, and archive
documents.

Technical Aspect

How to choose the right technology for your law firm

Step 1: Identify the problems with your law firm’s current tech solutions

Step 2: Thoroughly research, test, and get demos of alternative software options

Step 3: Select platforms that allow for easy app integration and tech consolidation

Use of technology in law firm has the following benefits:

It helps maximise resources (time and finance) while handling

client’s projects and accelerates innovation through automation.
It improves coordination of people (employees, clients and vendors)
and business. It aids quick service delivery. It improves
communication and sharing of information within and outside the
law firm- tools such as email.

It enhances business performance, growth and scalability of the law

firm in the global market. It will help small firms stay competitive.

It boosts the overall human capital development of employees.

6.3 Human Resource Aspects

Human Resources in Law Office Management

For most law firms, law office management is how they track
personnel issues and find solutions for those issues on behalf of the
human resources department.

Why Hire a Law Office Manager?

The fact of the matter is that even the most fantastic lawyer is going to
have to admit at some point that they are human and cannot do it all. A
law office is a business and there is going to be a lot involved for it to
work. Constraints of ability and time can make it problematic for a
single person to divide their attention on multiple tasks. Without a
manager handling things in the office, a lawyer may be too distracted
to put the right amount of effort into a case.

Human Resource Aspects

The Hiring Process

The hiring process can be broken down into roughly four stages.
Each stage can be adjusted as needed and the following covers
the general events that occur during a particular stage.

Application-Employers, in this case the senior staff or

administrative management staff, will compile a list of
requirements potential candidates must have for the position they
are hoping to fill. Those requirements are going to need to be
relevant to the position and reasonable enough for there to
actually be applicants.
Job postings with the details of the position are shared through
hiring agencies, advertisements, the internet, etc.

Human Resource Aspects

Interviews-The next step is go through the list of applicants who meet the
requirements of the position and begin scheduling interviews. Depending on
how many people are chosen and the schedules of all those involved, this can
be the longest step in the entire hiring process. Some employers choose to have
multiple stages in the interview process, narrowing down the candidates at
each point.

Background Checks-An in-depth background check may be conducted after

the interview stage and before a final decision is made. This way, employers
can check to see if information gathered about a candidate during their
interview is true. It can also allow them to check for anything that may prove
problematic.

Training-The training portion of the hiring process will depend on what the
position is within the firm. Training is designed to acclimate new employees to
the daily operations of a business. Employees in a law office that are not
practicing law may need instruction for things that are used as a part of those
daily operations.

Human Resource Aspects

Termination Policies-Termination polices are often

explained to employees through an employee handbook or
during an employee's training. The policy should be clearly
laid out, and any reasons that are for immediate
termination should be thoroughly explained. Some
employers choose to have the termination process broken
down into steps, a mirror to the hiring processes.

Employee Policies and the Employee Handbook-A law

office is still a business and parts of it will need to be
treated as such. Establishing policies and creating an
employee handbook that contains those policies and other
information is a fairly common business practice that law
offices adapt.
6.4 Administrative Procedure
Administrative procedures are a set or system of rules that govern the procedures for
managing an organization. These procedures are meant to establish efficiency,
consistency, responsibility, and accountability. Administrative procedures are
important because they provide an objective set of rules by which an organization is
governed. They also help establish the legitimacy of management action by ensuring
the application of management rules and decisions is done in an objective, fair, and
consistent manner. Finally, they help ensure that managers are held accountable for
decisions that deviate from the procedures.

According to Waldo, “it is procedure that governs the routine inter­nal and external
relationships between one individual and another; between one organizational unit
and another; between one process and another, between one skill or technique and
another; between the organisation and the public and between all combinations and
permutations of these.”

Types of Administrative Procedures:

Institutional Procedures : Institutional procedures pertain to staff, housekeeping

service or auxiliary function. Such procedures are prescribed by statute though they
vary considerably from agency to agency.

Working Procedures: Procedures meant for accomplishing an agency’s particular

objectives are of two types, viz., those publicly issued and those not publicly issued.
Publicly issued procedures constitute a body of ground rules for the agency and
any individual affected by the statute. Ideally, they tell all persons af­fected “what,
where, when and how” of things. For example, how to lodge a report with the police,
get a student admitted to the school, make an appeal against tax-assessment,

Criteria for Good Administrative Procedure

Generally speaking, procedure should be simple ensuring prompt decision. It should

not be too rigid as to leave no discretion in exceptional cases. Its language should be
unambiguous and clear easily under­standable by a common
citizen.

It should try to cut short the channels so far as possible. It

should help rather than hinder the progress of the work. It may
not be even forgotten that procedure is a means to an end and
not an end in itself. Too much insistence on the letter of the
procedural rule leads to red-tapism and many other
concomitant evils.
6.5 File Management

File management is the process of administering a

system that correctly handles digital data. Therefore, an
effective file management system improves the overall
function of a business workflow. It also organizes
important data and provides a searchable database for
quick retrieval.

Legal documents need careful management that

complies with industry regulations and standards.
Although many legal departments need an advanced
management system like document control software,
some can get away with a document management
system designed to handle legal matters.

Benefits Of File Management

1. It centralises important documents in one place.

2. It reduces rework.

3. It minimises project delays.

4. It cuts down on emails.

5. It makes reviewing and approving content easier

6. It supports communication.

7. It gives you control over information access.

8. It helps you maintain document versions.

How to Choose the Best Document Management Software for Your Law Firm

a. Law firms and legal departments need document management solutions that
comply with industry regulations and standards.
b. Important legal document management system (DMS) features to look for include
matter-centric software, email linking, integrations, document tagging, compliance
and security.
c. Expert-recommended legal document management systems include platforms like
Legal Files, Laserfiche, CaseFox, Filevine, LexWorkplace, M-Files and Repstor.
6.6 Client Management and Confidentiality

Client management and Confidentiality

A client is anyone who purchases a product or professional service.
● Clients do not buy services, they buy what your services do for them.
● They buy good feelings and solutions to their problem.
Client management is a method of managing the relationship between a company
and its
customer base, regardless of the industry.
The purpose of Client management is:
➔ The client relationship management (CRM) builds social capital. Existing, former
or
repeated clients may do a word of mouth marketing and referral business which is
essential in a saturated legal market and the situations where do-it-yourself legal
products
are increasing.
Major Principles of client management are:
● Transparency,
● Communication,
● Alignment (align services with client expectations)
Client Management can be broken into four parts:
● Knowing the client’s needs and what they’re asking for

● Delivering on those needs and responding to their queries

● Figuring out what the client needs before they know it
● Having targeted communications that respond to client need se

★ Initial Lawyer – Client Meeting:

The initial Intake Meeting between the Lawyer and Client is extremely important. The
Lawyer has to obtain all relevant information for handling the case, identify the legal
problem(s), determine whether there are any limitations in the scope of the legal
services or representation, identify any potential conflicts of interest, make a
preliminary assessment of what can and should be done, and decide what the initial
steps should be. For this purpose, the Lawyer should have excellent communication,
interviewing, and listening skills. At the Intake Meeting, the Lawyer should provide
full information concerning the Client’s rights and responsibilities. This includes, but
is not limited to:
● The Client’s right to be kept informed about the work of the Lawyer and any
developments or progress achieved
● The Client’s right to contact the Lawyer at any reasonable time to obtain
information or advice. For this purpose, contact information has to be provided
● The means and frequency of communication between Lawyer and Client. This
needs to be addressed in some detail if the Client faces objective difficulties, such as
a lack of telephone service, no fixed address, difficulties in reading, etc.
● The Client’s responsibility to update the Lawyer concerning any developments
● The Client’s responsibility to help find evidence, locate witnesses, keep records,
etc.
● The Client’s responsibility to pay costs not covered by the Provider or another
● The Client’s potential obligation to reimburse the costs of representation out of any
settlement or recovery that is obtained
● The Lawyer’s responsibility to zealously represent the Client, and take all
appropriate measures to protect the Client’s legal interests
● The Lawyer’s responsibility to maintain the confidentiality of information provided
by the Client during the representation, unless the Client authorises disclosure
● What steps the Client should take regarding any legal issues or tasks that are not
being performed by the Lawyer
● What steps the Client should take if additional legal matters arise, and whether
they will be handled by the same Lawyer
● What to do if the Client has problems with the representation or the Lawyer’s work

It is strongly recommended that the discussion of these issues and the conclusions/
agreements
reached be documented, in a written memorandum, for the file. The best practice is
to cover
these issues, plus the scope of representation, in a Retainer Agreement, Letter of
Engagement, or
perhaps even a “Client’s Bill of Rights”. However, it may be advisable not to require
them to
sign such a legal document. In these circumstances, it is probably sufficient to a)
present the
Client with a General Information Sheet that covers these points, and b) document
the file after
the meeting. The General Information Sheet should be short, concise, and written in
plain
language that the Client can understand. Even if the Client has difficulties reading,
this document
serves for future reference, and can be utilised by other parties who are assisting the
Client.
★ Formalisation of the Attorney – Client Relationship:

6
The attorney – client relationship must be correctly documented and formalised, by
execution of
the appropriate/applicable legal document. The format for a Power of Attorney
required by the
Courts of Nepal is found in Section 9 of the Code of Conduct for Lawyers. Lawyers
handling
Legal cases should explain the importance of this document to their Clients, and
secure its
execution in a timely manner, whenever court proceedings may be required.
★ Establishing a Professional Attorney – Client Relationship based upon Trust:
Lawyers need to be trusted by their Clients in order to obtain all required information
and
effectively carry out their duties. Establishing Client trust is particularly important in
Legal
cases. Clients often start out with mistrust for officials, official institutions, and
bureaucracies.
They may view the Lawyer as part of an unfriendly legal system. This can be
especially
problematic if the Client’s status is vulnerable, if official institutions have not been
helpful in the
past, and if rights have been violated. Such sentiments are common amongst
incarcerated
persons. Therefore, Lawyers must show respect, sympathy, and genuine concern for
their
Clients, and try to overcome their anxieties. Hospitality in the office, good
communication and
listening skills, and effective use of body language are very important. Trust is also
enhanced
when the Lawyer takes time to fully counsel the Client, and explain the benefits and
risks
associated with various options for handling the case.
★ Zealous Representation of the Client:
Zealous handling of the case is the key factor in successful and professional
representation of
Legal cases Clients. Zealous representation means that the Lawyer diligently takes
all
appropriate and available measures to promote and protect the interests of the
Client, on the basis
of complete loyalty. This includes, but is not limited to:
ully investigating the facts and circumstances of the case
● Locating and interviewing all witnesses and individuals having relevant information
● Obtaining evidence, and assessing/challenging evidence presented by other
parties
● Conducting any appropriate inspections, examinations, tests, or experiments
● Carrying out detailed case planning, and updating the planning as required. The
planning
should identify all possible strategies and avenues for handling the case, and help
select
the most appropriate one. It should cover legal issues, practical issues, remedies,
and
objectives. Possibilities for Alternative Dispute Resolution procedures should be fully
evaluated.
● Establishing a realistic timetable, based upon the case planning and court
deadlines
● Pursuing discovery/disclosure from opposing counsel
● Negotiating with opposing counsel, when this is in the best interests of the Client
● Securing expertise, expert opinions, and expert witnesses, as required
● Securing the assistance of Paralegals and other legal professionals, as required
● Determining the exact status of the law relating to the case
● Performing all required legal research
● Conducting full legal analysis
● Drafting any required legal documents, motions, memoranda, and briefs
● Fully working up the case file
● Making all preparations required for trial, and
● Professionally carrying out all dealings with the court and other officials
Zealous handling of the Client's case is the essence of professional representation.
★ Client – Oriented Representation, and Control of the Case by the Client:

It is imperative for Lawyers to understand and base their work on the principle that
the case
belongs to the Client. Thus, legal services have to be focused on the Client. The
Lawyer is
responsible for achieving results that are in the best interest of the Client, as
articulated by the
Client, after being meaningfully informed about all relevant issues and possible
alternatives.
Legal strategies should be carried out by the Lawyer only after full and frank
deliberations with
and authorisation from the Client. Tactical actions and routine procedures are
generally within
the competence and responsibility of the Lawyer. Many Clients lack experience with
or are
uncomfortable with the legal system and official institutions. Therefore, Lawyers
handling Legal
cases should make an extra effort to

a) explain different options and the probable consequences thereof,

b) fully involve the Clients in strategic decisions, and
c) demonstrate that the interests of the Client are being given full priority.
★ Client Counselling:
Legal counselling is an essential part of effective legal representation. It should take
place at all
appropriate times throughout the course of the representation. Essentially, the
Lawyer should
offer candid guidance based on the state of the law and the specific circumstances
of the Client,
taking account of both favourable and damaging laws and facts. Legal counselling
should not be
overly technical. Rather, it should be provided in a manner that enables the Client to
understand
the options for handling the case, the benefits and risks inherent thereto, and the
prospects for
success. Legal counselling should be practical as well as legally correct. Accordingly,
it can be
based upon moral, economic, social, political, and practical considerations as well as
legal

analysis. It is important that legal counselling not include promises to achieve a

specific outcome
which is outside the control of the Lawyer.
★ Representing Clients with Diminished Capacity:
Lawyers should try to maintain a normal attorney – client relationship with all Clients.
However,
they must be attentive to circumstances which affect the Client’s capacity and
capability to make
sound or legally binding decisions relating to the representation. This can be the
case with
minors, the elderly, disabled, and the infirm. In such cases, extra time may be
required, along
with assistance from other professionals. Lawyers should arrange their work with
Clients having
diminished capacity in such a way as to ensure that all professional obligations
continue to be
fulfilled.

★ Client Feedback:

Feedback and information from Clients is extremely valuable for determining how
well
Providers and Lawyers are performing their work. Therefore, it is good practice to
provide
Clients with a standard questionnaire upon completion of their services. The
questionnaire
should address specific topics concerning the services provided and legal
assistance, and include
general questions about the level of satisfaction, what can be done to improve
services, etc. Both
rating systems using numbers and descriptive answers using words are helpful.
Unfortunately,
Clients may be hesitant to directly comment upon their legal representation, or
provide frank
criticism. Therefore, anonymous questionnaires and/or independent interviewers
may be
appropriate. However, this makes it difficult to assess the results in specific cases.
Nonetheless,
Providers should always incorporate Client feedback and information concerning
Client
satisfaction into their evaluation procedures

10

★ Conflicts of Interest:

Providers must take all necessary measures to prevent and eliminate conflicts of
interest. Written
guidelines concerning the nature of conflicts of interest and procedures for handling
them should
be developed and made available. To avoid conflicts of interest, it is necessary to
maintain
complete records concerning cases and consultations, with mechanisms for cross
references and
checks. In addition, transparent internal communication concerning legal activities is
required.
Lawyers and staff should be trained and sensitised concerning conflicts of interest,
and be
provided with written copies of relevant documents.
Confidentiality:
Lawyers should not divulge the confidential information of their Clients. Section 3.1
(n) of the
Code of Conduct for Lawyers establishes absolute protection for confidential Client
information.
This is necessary because candid communication between the Lawyer and Client
can only be
maintained through trust based upon respect for confidentiality. For this reason,
confidentiality
applies to Client information provided in the course of seeking representation, even if
the
Lawyer does not end up taking the case. In addition, confidentiality continues to
apply even after
the case is resolved or closed. Lawyers should be aware of limited circumstances
where it may
be appropriate to disclose confidential information. For example, during the course of
representation it may turn out to be in the Client’s interest to release certain
confidential
information. In such cases, the Lawyer should fully brief the Client first, and then
obtain his/her
willing and informed consent. Clients always have to power to authorise the release
of their
personal information. Only under extremely limited circumstances can Lawyers
release
confidential Client information without the Client’s approval. For example, disclosure
may be
appropriate to prevent substantial harm to others, or to comply with a court order.
These

11

circumstances are addressed in the Law on Evidence. Finally, Lawyers should work
with
Providers to ensure the confidentiality of Client information.
Providers must take all required measures to protect the confidentiality of Client
information.
This includes security provisions for electronic information, restricted access for
documents, and
procedures for deleting electronic files and destroying documents that are no longer
needed. Care
is necessary when interpreters are utilised. Confidentiality policies and procedures
should be
documented, and provided to all Lawyers and staff members. Training may also be
appropriate.

6.8 Information Management

● The infrastructure used to collect, manage, preserve, store and deliver information
● The guiding principles that allow information to be available to the right people at
the
right time
● The view that all information, both digital and physical, is an asset that requires
proper
management
● The organizational and social contexts in which information exists

The purpose of information management is to:

● design, develop, manage, and use information with insight and innovation
● support decision making and create value for individuals, organizations,
communities,
and societies
★ Providing Documentation for Clients:

Lawyers should provide Clients with copies of all important documents relating to the
representation. This includes but is not limited to the Power of Attorney, Pleadings,
Motions, and
Reports. Lawyers should explain the meaning and importance of these documents to
their
Clients. This is particularly important in Legal cases, where Clients may not have
experience
with or understanding of legal documents.

★ Record Keeping:

Lawyers should maintain comprehensive and well-organised case files that contain
all required
and relevant documents. Lawyers should make written records of important phone
conversations
and meetings, and document any important developments in the file. The basic
principle is that
the file should be complete enough to enable another Lawyer to pick it up and
continue the
representation, if this were to be necessary. Lawyers are prohibited from signing
documents for
their colleagues handling other cases under Section 3.1 (u) of the Code of Conduct
for Lawyers.

★ Retention of Information and Documentation:

Providers should have policies and procedures concerning what information and
documents should be developed, maintained, and retained. It is also necessary to
determine how long information and documents should be kept, in accordance with
the law and good practice. At the appropriate time, and when no longer required,
electronic information and regular documents should be disposed of in a secure
manner.

6.9 Financial Management including Income Tax

Financial Management
● Acquisition of fund at optimum cost and its utilization to minimum financial risks
According to Jason P. Grunfeld, head of business development at Kleinberg, Kapal,
Wolff &
Cohen P.C., “For most lawyers, the two primary obstacles to business development
are fear and
lack of time. The fear comes when lawyers are asked to step outside of their comfort
zones and
engage in new activities. Lack of time causes lawyers to push business development
to the back
burner, never giving it the chance to mature into a habit.”
According to Solomon, financial management is concerned with efficient use of
economic
sources.
The Purpose of financial management are:
● Profit maximization,
● wealth maximization,
● maintenance of liquid assets,
● ensure financial discipline, etc

6.10 Time Management

● The predictable control an individual can make over a series of events

● Managing time effectively so that the right time is allocated for right activity
● Making the best use of time as time is limited

How to manage time?

● Consolidate similar tasks,
● tackle tough jobs first,
● delegate and develop others,
● learn to use idle time,
● get control of the paper flow,
● avoid cluttered desk syndrome,
● get started immediately in important tasks,
● reduce meeting time,
● learn to say no to unimportant things, etc

Lawyers should manage their time in order to be able to fulfil all of their
responsibilities in a
professional manner. Lawyers should always have sufficient time to zealously handle
each and
every case, and serve each and every Client. In the event that Lawyers do not have
sufficient
time to handle a case, they should return it to their Client in such a fashion that
avoids prejudice.

Section 3.1 (h) of the Code of Conduct for Lawyers states that A legal practitioner
shall not
return the brief to his client in such a way that the service of a new lawyer could not
be availed
of by him. If a Lawyer is assigned a case in such a manner that there is insufficient
time to meet
the Client, work on the file, or zealously advocate on behalf of the Client, he/she
should register
a complaint with the appropriate party (be it an official institution or a Provider), and
notify the
Client as soon as possible.

Relevant Cases

1.Advocate Lila mani poudel Vs.Council of Minister and others, NKP

(2060) , No.5/6 P 354
Facts of the case

The Constitution of Kingdom of Nepal, 2047 has provided Social, Political and
Economic Justice to all Nepali Citizen, Protection of fundamental human rights, adult
franchise, parliamentary system, constitutional supremacy, multi-party democracy,
free and impartial judiciary as well Rule of law are some of the basic concept
adopted by the Constitution.

Art. 11 provides the provision related with Right to Equality. It states that all citizens
shall be equal before the law. No person shall be denied the equal protection of the
laws. It also provides that no discrimination shall be made against any citizen in the
application of general laws on grounds of religion, race, sex, caste , tribe or
ideological conviction or any of these.

Similarly Art. 14(5) provides that no person who is arrested shall be detained in
custody without being informed, as soon as may be, of the grounds for such arrest,
nor shall be denied the right to consult and be defended by a legal practitioner of his
choice.
Similarly Art. 26(14) also provides that the State shall, in order to secure justice for
all, pursue a policy of providing free legal aid to indigent persons for their legal
representation in keeping with the principle of the Rule of Law.

To meet the objectives of the above mentioned concepts of the Constitution the state
has enacted Legal Aid Act, 2054. The Act has been enforced all over Nepal from
2056/1/26.

Similarly Central Legal Aid Committee under the power provided by Sec. 12 of Legal
Aid Act has enacted Legal Aid Rules, 2055, which has been passed by Law and
Justice Ministry.

Preamble of Legal Aid Act: Whereas, it is expedient to make legal provisions

regarding legal aid for those persons who are unable to protect their legal rights due
to financial and social reasons to provide for equal justice to all according to the
Principle of Rule of Law.

Sec. 3(1) of the Act provides that a person having less than the specified annual
income shall only be entitled to Legal Aid under this Act.

Sec. 3(2) provides that the Concerned Committee shall be authorized to grant or
deny Legal Aid to a particular person.

Sec. 6 deals with the Constitution, functions, duties and powers of Central Legal Aid
Committee.
Similarly Sec. 7 deals with the Constitution, functions, duties and powers of District
Legal Aid Committee.

The party who falls under the standards mentioned in of Sec. 3(1) should be
provided free legal aid without any pre-conditions but the Central and District Legal
Aid Committee formed under Sec. 6 and 7 has been given power to decide to whom
to grant or deny legal aid (Sec. 3(2)).Thus this provision of law is unconstitutional as
well as against the Preamble and Sec. 3(1) of the Act.Similarly the provision has
provided extra discretionary power to the committee which is against the Art.
14(3)(d) of ICCPR, 1966.So, Sec. 3(2) of the Act should be void ab initio as per Art.
88(1) of the constitution.

Rule 6(1) of Legal Aid Rules, 2055 provides that the committee shall not entitle to
provide legal aid to any person who has the Annual income more the Forty
Thousand.Rule 6(2) provides that the committee shall not entitle the convicted party
of the following cases, for legal aid:-

(a) Under the Espionage Act, 2018 (1962),

(b) Under the Human Trafficking (Control) Act, 2043,
(c) Cases under Ancient Monument Preservation Act, 2013,
(d) Cases which has the punishment under Chapter on Rape of the General Code
(Muluki Ain),
(e) Cases under Prevention of Corruption Act, 2017 and Commission for the
Investigation and Abuse of Authority Act, 2048,
(f) Cases under the Revenue Leakages Control Act, 2052,
(g) Cases under Drug (Control) Act, 2033,
(h) Other cases prescribed on time and again by central committee.

In this context the provision of Rule 6(2) of the Legal Aid Rules is discriminatory as
well as has directly challenged the impartiality and fair trial guaranteed by the
Constitution and international standards.Thus the provision is against the Art. 11 i.e.
Right to Equality, Art. 14 i.e. Right to Criminal Justice of the Constitution and
Preamble of the Legal Aid Act.
As per the Rule, a person will not be eligible to receive any legal aid only on the
basis that he/she has been charged or accused of any specific/particular case, so it
is against the universal principle of Criminal justice and even there will be
discrimination between the people accused of specific case.

Thus Sec. 3(2) of the Act and Rule 6(2) of the Rules clearly restricts the fundamental
rights so it should be void ab initio. The applicant request the court to issue
Mandamus or any other favorable order or memo to provide free legal aid to all
under the prescribed standard of Sec. 3(1) of the Act.

Legal Questions
Whether the applicant has locus standi or not?
Whether Sec. 3(2) of Legal Aid Act, 2054 is contradictory with Art. 11 of the
Constitution, 2047 or not ?
Whether Rule 6(2) of Legal Aid Rules, 2055 is opposite to the right to form/make
rules delegated by the Constitution and Legal Aid Act or not?

Decision of the court

The issue raised by the applicant in this case is not a subject matter of any specific
person or caste and for his/her benefit but it is related with the common people and
collective rights and interest.So the applicant has locus standi to file this writ.The
fundamental objective of the Act is to provide legal aid to the poor, helpless people.
So it is always necessary to make distinction between capable and incapable group.
For this District Legal Aid Committee has been authorized and the committee has to
make decision as per the standards. Thus Sec. 3(2) of Legal Aid Act is not
contradictory with Art. 11 of the Constitution.The extra discretionary power provided
to the Legal Aid committee under Rule 6(2) of Legal Aid Rules, 2055 which is
against the delegated power provided by the Act effects the fundamental rights and
against the aim and objectives of the Act. So, the Rule 6(2) has been void as per Art.
88(1) of the constitution.

Established Principles

It is not a characteristic of a competent Justice system that a higher/rich people and

group knowledgeable of legal process are only able to participate in court
proceedings and those poor, helpless and weak people stay outside the access to
justice administration system. To provide access to justice to all and to end the
condition/situation of lack of representation and provide impartial justice is the duty of
the state. So, it cannot be said that it is not the subject matter of public rights and
interest.
If any Nepali citizen feels that any law illegally restricts/prohibits the fundamental
right guaranteed by the Constitution then he/she will have no restriction to file an
application in this court to make such law unconstitutional and invalid. This this is the
subject matter of public interest.The Act has provided the provision for the
establishment of Legal Aid Committee and has provided the power to the Committee
to make distinction between capable and incapable person and the committee has
make decision as per the standards set out. So Sec. 3(2) of Legal Aid Act,2054 is
not contradictory with Art.11 of the Constitution.

3.Harihar Dahal v. Man Bahadur Gurung et.al. ( N.K.P. 2050 (A) Vol. 1
D. N. 4684 )
Advocate Mithlesh Kumar Singh was representing the accused, Rajni Sherchan, in a
murder trial in Kaski District Court. The environment of the court room was tensed.
People were razed to have immediate justice by blood of the accused. When
Advocate Singh starts pleading, people started shouting as a result the judge
adjourned the court. Judge requested peoples to keep clam and leave the court
room. The judge also asked lawyers to remain within the court room, however,
Advocate Singh went out at his own, where he was manhandled and attacked
by the crowd.

Claim of Applicant:
The case was filed by the secretary of Nepal Bar Association, Mr. Harihar Dahal,
against District judge Indra Man Karmacharya, Chief District Officer (C.D.O.)
Chudamani Adhikari, Deputy Supridentant (D.S.P.) of Police Kiran Gautam and six
other individuals, namely: Man Bahadur Gurung, Ram Jindagi Gurung, Shant
Bahadur Gurung, Padhma Gurung &amp; Kumar Gurung.Applicant claims that,
Advocate Singh was attacked inside the courtroom in the presence of judge. Judge
Karmachary otherthan showing sympathy directly went to his residence. The C.D.O.
and D.S.P. failed to maintain security in the courtroom and provide security to Mr.
Singh. Further, the six individuals were involved in snatching coat &amp; bag of the
victim, attempting to destroy book, and attacking Mr. Singh.

Claim of Respondents:
1. Judge Karmacharya: The incident took place outside the courtroom. I had
requested Mr. Singh to stay within the room; however, he went out on-his-own
resulting the incident. As I came to know about the incident, I sent police to take
control of situation outside.
2. Joint response of C.D.O. &amp; D.S.P.: We have ensured security to the accused
to the court. We had no knowledge about the possibility of the incident. Police saved
him from the crowd. He was carried to the hospital on the vehicle of C.D.O. He and
his wife were provided security by the police in hospital. We also asked the victim to
register a FIR against perpetrators to initiate investigation. However, he himself
refrained to make any complain.
3. Other respondents: All of them made the plea that we were not present on the
place of incident, when it took place.

Observation of the Court:

1. The report of petitioner and the statement of parties prove that the incident took
place inside the courtroom. The court came to this conclusion in absence of
evidence.
2. The court acquitted Judge Karmacharya, CDO and DSP on the ground that they
had performed their respective duty after the incident, hence they cannot be held
liable for contempt.
3. The court held that, lawyers are the learned who helps court, with their knowledge
of law, to provide justice to people. Lawyers play an important role in the fair,
independent, and impartial justice of the judiciary, therefore, free and safe
environment must be ensured for lawyers to carry on their duty.
4. The administration of justice act provides district courts to initiate contempt
proceedings against individuals for obstructing the administration of justice of the
court. The court, in these types of conditions, should not remain as a silent observer.
However, while initiating contempt proceeding the court should be precious of its
effect. As, contempt power is a double edges sword; which if used properly may
enforce the authority and dignity of the court, however, if used unnecessarily may
ramshackle the public confidence over it.
5. The court acquitted District Judge, CDO &amp; DSP, however, held the six other
guilty of contempt of court and penalized each of them rupees one hundred. They
were held guilty on the ground that they didn’t showed respect to court by appearing
before it and defending itself against the charge.

4.Rabilal Chaudhary Vs.Nepal Bar Council,NKP (2053) No.10,P 711

Subject : Certiorari along with necessary order as per needed. (उत्प्रेषण लगायत
जो चाहिने अन्य आज्ञा आदे श वा पर्जि
ू जारी गरीपाऊं।)

Legal Provisions
Constitution of Kingdom of Nepal, 2047 Article 1. Constitution as the Fundamental
Law
(1) This Constitution is the fundamental law of Nepal and all laws inconsistent with it
shall, to the extent of such inconsistency, be void.
(2) It shall be the duty of every person to uphold the provisions of this Constitution.

Article 11 Right to Equality

Article 12 Right to Freedom (1) (2) (a) freedom of opinion and expression
(e) Freedom to practice any profession, trade, occupation, industry.

Nepal Bar Council Act, 2050

Section 17: Legal Practitioners to be registered
Section 25 (1) No one shall be present in a court on behalf of party without holding
license.
(4) If he/she does so then he/she shall be liable for fine up to two thousand and
imprisonment for 6 months.

Applicant’s Claim (Rabilal Chaudhary Tharu)

Nepal Bar Council Act, 2050 Section 17 Legal Practitioners to be registered Section
25(1) No one shall be present in a court on behalf of party without holding license.
(4) If he/she does so then he/she shall be liable for fine up to two thousand and
imprisonment for 6 months are contradict with the Constitutional Provisions i.e.
Article 1, 11 and 12 (1) (2) (a) (e).
Unequal Treatment which is against Article (1) Hindrance to Freedom to practice
their legal profession.

Defendant's Claim (Nepal Bar Council)

Laws, rules are made by legislation and making of laws and rules does not fall under
jurisdiction of NBC. NBC always respect and consider the Constitution and no any
Sections of the Nepal Bar Council act are in contradict with the Constitutional
provisions.So there are no any reasonable ground to file writ petition against us.
Therefore writ petition filed by applicant must be quashed as there are no any valid
reasons.

Decision

How Section 17, 25 (1) (4) of Nepal Bar Council Act, 2050 ids contradictory to
Constitution ?
Article 12 (2) (a) of Constitution states about freedom of expression of opinion in
public speaking or seminars but not in case of legal practice. सार्वजनिक सभा वा
समारोहमा आफ्नो विचार व्यक्त गर्न पाउने वाक तथा प्रकाशन स्वतन्त्रता सम्वन्धी व्यवस्था गरे को
छ ।वहस गर्न पाउने कुरामा होइन।Has not infringed freedom to practice trade, profession,
industry, occupation.Equal treatment for each and every individuals as per their
qualifications mentioned under Section 17 of NBC Act, 2050 so it cannot be claimed
as unequal treatment. Thus, the writ petition filed by applicant must be quashed.

5.Advocate Narayan Koirala vs.Syangja District ,NKp (2058).No p.542

Case: writ of Mandamus, certiorari, quo warranto, and other necessary order to be
done by the court under Article 22/88 (1) and (2) of Constitution of Nepal, 2047

Related laws:
Article 23/88 (1) and (2) of Constitution of kingdom of Nepal,2047
Nepal Bar Council Act, 2050
The Code of Conduct for Legal Practitioner, 2051
Evidence Act, 2031
Section 11 of legal practitioner Act 2025(repealed)
Rule 7 of legal practitioner Act, 2025 (repealed)

Fact of the case:

Appellant has been working as an Abhikarta since 2047 under the legal practitioner
Act,2025. In the case of Sakur Khaa v. Jamilun Khaa, appellant had submitted
Vakalatnama on behalf of his party i.e. sakur khaa and was conducting cross
examination in the witness testimony of other party; when the defendant lawyer
argued that the applicant had no right to conduct cross- examination in the witness
testimony. Appellant had written firadpatra from the side of sakur khaa. Syangja
court on this particular issue gave its verdict under Nepal Bar Council act, 2050
stating that Avhikarta do not possess right to plead the case by taking Vakalatnama
and therefore, can’t conduct witness testimony and cross examination. But court also
gave order to do accordingly if the party writes wareshnama. Appellant then had
taken this case to Pokhara appellate court which follows the decision of Syangja
District court.

Applicant claim:
Schedule 3 related with rule 7 of legal practitioner regulation Act 2025 had given
rights relating to Abhikarta to submit the Vakalatnama, section 2 definition part (kha)
of legal practitioner act, 2025 had defined right to advocacy as the right to plead the
case of the client party in the presence of judge or required authority. But, the part
(gha) section 2 and section 12(2) of legal practitioner act, 2025 can’t be interpreted
as Abhikarta not to conduct witness testimony and cross examination.Whereas
present Nepal Bar council act, 2050 doesn’t seem to have hindered the function
of abhikarta under the present law. Section 29(2) of the Nepal bar council Act, 2050,
states that, “it shall not be deemed to have caused any hinderence to continue legal
practice by the person so registered as an agent pursuant to legal practitioners Act,
2025”.

As he wrote the complaint paper (firadpatra) and if he donot cross examine , then the
casewill be break. Therefore in this condition abhikarta can file the Vakalatnama and
work as per section 12(2) of legal practitioner act 2025 and as per its regulation can
conduct the witness testimony and cross- examination. The trial and appellate court
had decided neglecting the above provision so, appellant ask such verdict to be
repealed. Rule 9 of the code of conduct for legal practitioner Act, 2051 is
inconsistence with the section 29(2) of the Nepal Bar council act 2050 as the former
states in order to define and to plead in a case before any court a legal practitioner
shall submit the letter of appointment as a law practitioner in the form as prescribed
in schedule 1 of this code. Also it is inconsistence with the article 11, 12(2) of
constitution of kingdom of Nepal,2047. Therefore, the appellant had file the writ to
repel lower court’s decision and for court to give necessary order.

Statement of respondent:
The syangja district court responded that since, the trial and appellate court had
rendered same decision, so the contention of respondent is null. Just because the
appelate had prior pleaded the court doesn’t mean it is written in the law to do so. As
part (gha) section 2 and section 12(2) of legal practitioner act 2025 doesn’t provide
Abhikarta to conduct witness testimony and cross examination, it is baseless to
show loophole in existing law. The court had given verdict based on its jurisdiction
and hasn’t violated appellant’s fundamental right.

Fact in issue:
Why not to issue the order as claimed by the applicant?
Decision of court:
The court didn’t entertain the writ as it found that the appellant fundamental right had
not been violated and the mentioned act didn’t contradict with the constitution of
Nepal, 2047.

Established Precedent:
There is no legal provision regarding Abhikarta to plead the case as a legal
practitioner in the court of law. Abhikarta to conduct witness testimony by questioning
and cross-examining in the presence of the bench and representing the party as a
legal practitioner can’t be stated in accordance with the Evidence Act, 2031. In such
condition, the appellant stating to have been working as a legal practitioner doesn’t
allow him to advocate the case which he had already taken (vakalatnama) and cross
examine the witness testimony. The present Nepal Bar Council Act, 2050 and
provision of stated code of ethics doesn’t seem to have hindererd the function of
Abhikarta under the present law. In this context, it can’t be said that the appellant’s
fundamental rights has been violated. So, the verdict given by the syangja court and
appellate court that his position as Abhikarta can’t conduct the proceeding as to be
done by a legal practitioner i.e. appellant not to cross examine the witness testimony
can’t be regarded as unlawful verdict.