Practical 03

Q1: Seven lamps of advocacy

Withal, legal ethics are governed and rooted in the principle of the ‘Seven lamps of Advocacy’ Book authored
by Justice Abbott Parry. Such qualities deal with Integrity, Wittiness, Proficiency, Competency, Braveness, Articulacy,
Rationality, and all other skills that are every legal person needs to be master.

1. Honesty

The statement that has always been used to lambast legal professionals, in general, is “lawyers are liars.” Nevertheless,
one cannot overlook the reality that what layman concludes to be a lie maybe not be a lie in a genuine sense.

Per contra, lawyers are supposed to be honest since they have a fiduciary duty to act in the best interest of their
clients. Such honesty should be reflected in every single act of theirs viz. While delivering the Argument, thoughts,
words, so on.

Primarily, he should be a pioneer to reinforce justice in every possible way, not to be adept at deceiving. He should
provide proper legal guidance to his clients. Honesty in the profession will efficiently help him to succeed in his field.

2. Courage

Good lawyers always combine extraordinary work ethics with compassion. No matter how talented and result-
oriented is an advocate; he can never find himself as an expert in this field unless and until he has courage. Courage
connotes pacifists with a strong moral compass and the capacity to uphold their clients in front of the bench. Thus,
lawyers should not back off his action even it might be a dissent one out of fear or danger advancing towards them.

3. Wit

Wit denotes the keen perception and cleverly apt expression of those connections between ideas that awaken
amusement and pleasure. In other words, it is the capacity to think clearly and speak concisely with an ingenious
expression of thoughts.

Withal, Advocacy is the art of conducting cases in court, which comprises arguments, producing evidence, cross-
examinations, and convincing the jury or the court. Substantially, a planned and prepared speech will never help you
out in court, but quick-wittedness will. But, it is pertinent to note that people often compare law with the spider web
because of its analogy to the latter’s entanglement feature i.e. it only entangles and holds the poor and weak, while
the rich and powerful will easily break through them. An advocate must possess sufficient wit to bridge this gap.

4. Industry

This lamp recommends advocates to be excelled at all the required skill set to sustain or succeed in the field of law.
Law is not static but dynamic as it evolves with the needs of society and adapts to the changing status quo. Pursuant
to this, an advocate should update himself in compliance with the adage ‘There is no alternative to hard work.’

Thus, if the law gets amended in compliance with societal needs, lawyers should also be acquainted with the latest
law.

5. Eloquence

This lamp plays a pivotal role in assessing the abilities of an advocate, which determines his career success rate.
Eloquence is the art of speaking; in fact, it is a panacea for all other incompetence. But, one must know that an
eloquent speech is way more different than mere deliverable speech as it holds a long-lasting effect on the bench as
well as the clients and the listeners.

Steps to bring off this skill,

Noticing other parties faults

Presence of mind

Efficacy in argumentation with justification.

6. Judgement

It is the most important of all the Seven Lamps of Advocacy. Judgment in advocacy is a skill by which an advocate
ascertains the collective case facts by discerning both merits and demerits of the case at hand. Anticipating the possible
counterarguments and tackling the same by having an intellectual capacity to see the right turning point of the case.
Basically, it is the deed of translating good sense into good action.

7. Fellowship

While conducting the lawsuits advocates obviously opposes the other to uphold the interests of their clients. But, such
a battle of words in the court hall shall not bother the friendly relation between them, because they are opponents
but not enemies. To facilitate this interest, after having obtained a Certificate of Enrollment under section 22 of the
Advocates Act, 1961, advocates are made required to obtain membership in bar associations.

Q2: Advocates duties towards public, clients, court, towards other advocates

Duty to the Court

1. Advocate is required to conduct himself with dignity and self respect. Not to complaint against judicial officer
of grievances and to make complaint before the proper authorities.
2. To maintain respect to court and dignity of the judicial officer.
3. Not to influence the decision of the court by any illegal or improper means.
4. Prohibit private communication with Presiding Officer / Judge.
5. Not to encourage client unfair practice or from doing any thing in relation to the court.
6. To appear in the prescribed dress and his appearance shall always be presentable.
7. An advocate shall not either appearance in any way before a Court Trial if the role of any member there of in
related to advocate.
8. Not to wear bonds or grown in public places other then in court.
9. Not to appear if he got any receiving interest or he is a exercise a member on director of a company or
corporations.

Duty to client

1. Rule 11 to 33 deals duties of advocate to his client.

2. An Advocate is bound to accept any brief,but in special circumstances he may refuse to accept a particular
brief.In S. J. Chaudry v. State3) Supreme Court held that if an advocates accepts the brief of a case to attend
day to day and if he fails and he does not do so, he will be held liable for breach of professional duty.
3. He shall not withdraw from engagement. If he does, notice to be given to the client and he is bound to refund
such part of fee as has not been spent.
4. If situation warrants, or in future if he happens to be witness, he should not accept the brief.
5. To help and make frank disclosure to his client relating to his conviction with the parties any controversies
likely to arise at the time of taking brief.
6. To uphold the interest of his client.
7. If a advocate appear for prosecution he should not conduct the case so as to lead to conviction of the innocent.
8. Advocate shall not commit directly or indirectly a breach of the obligation imposed by Section 126 of Evidence
Act regarding professional communication.
9. Not to be a party to fermenting of litigation.
10. Only act on the instruction of client and not others.
11. The fee of an advocate depending upon the success of the suit is considered as opposed to the public policy.
Also non consistent fee or percentage of the benefit is opposed to public policy.
12. Shall not buy or traffic in or stipulate for or agree to receive, share or instruct in any actionable claims.
13. Not to bid or purchase any property he was professionally engaged.
14. To keep proper account for the money entrusted to him.
15. Any amount is received on behalf of client that should be given to him.
16. On demand from client a copy of the account to be furnished.
17. Rule 32 prohibits an advocate to lend money to his client for the purpose of any legal proceedings or actions.
Duty to Colleagues (other advocates)

1. Rule 36 to 39 of BCI
2. Shall not solicit work or advertise (either direct or indirect) by way of circulars, advertisement, (brokers),
putting slide in cinema theatres.
3. The name board should be a reasonable size.
4. An Advocate shall not permit his name to be used in aid of or to make possible the unauthorised practice of
law by any agency.
5. Shall not accept a fee less than the fee taxable under the rules when the client is able to pay the same.
6. An advocate shall not enter appearance in any case in which there is already a vakalath (Civil cases) or memo
of appearance (Criminal Cases) filed by an advocate engaged for a party except with his consent (change of
vakalath)

Q3: Legal aid

Legal Aid is a development that envisages that the poor have simple access to courts and other government
organizations. It infers that the choices rendered are reasonable and simply assessing the rights and disabilities of
parties. The focus point of legal aid is on distributive justice, viable execution of welfare advantages and elimination
of social structural discrimination against the poor. It was taking these mandatory provisions of the Constitution of
India at the top of the priority list that the Parliament passed The Legal Services Authorities Act, 1987.

Right to free legal aid

The State shall secure that the task of the legal system advances justice, on the basis of equivalent chance, and shall,
specifically, give free legal aid, by appropriate enactment or plans or in some other manner, to guarantee that open
doors for securing justice are not denied to any citizen by reason of financial or any other disabilities.

Provisions of legal aid in the constitution

ARTICLE 39A– It is the obligation of the State to see that the legal system advances justice based on equal opportunity
for its entire citizen. It should therefore give free legal aid to the individuals who can’t get to justice because of financial
and other disabilities.

SECTION 304 OF CODE OF CRIMINAL PROCEDURE,1973

If the accused does not have adequate means to draw in a legal advisor, the court must give one to the protection of
the accused at the expense for the state.

LEGAL SERVICE AUTHORITY ACT, 1987

This act was effectuated with the object to provide justice to all. No citizen should be denied justice because of
economic or any other disabilities.

National legal service authority (Nalsa)

The National Legal Services Authority (NALSA) has been constituted under the Legal Services Authorities Act, 1987 to
monitor and evaluate the implementation of legal services accessible under the Act.

The NALSA issues rules for the State Legal Services Authorities to actualize the Legal Aid Programs and plans all through
the nation.

How to get free legal aid in India

Bodies constituted by the Services Authorities Act

A person who qualifies the eligibility criteria as in S.12 of the LSA Act may approach the appropriate body constituted
under the Act (as mentioned above) to get free legal aid. National Legal Services Authority (Free and Competent Legal
Services) Regulations, 2010 consists of various regulations Supreme Court Legal Services Committee, State Legal
Services Authorities, High Court Legal Services Committees, District Legal Services Authorities, and Taluk Legal Services
Committees in India must abide by.
An application is to be filed by the applicant and shall be preferably presented in the FORM-I present at the end of the
Regulations (download by clicking here). Such an application shall be filed along with the summary of the grievances
for which the applicant seeks legal aid. The form may be filled in the local language or English. Oral requests may also
be entertained similar to an application under FORM-I. The applicant shall attach an affidavit stating that the applicant
qualifies the eligibility criteria as specified under Section 12 of the LSA Act. Application forms are additionally present
at all the said bodies free of expense. After receipt of the application, the board of trustees set up by the foundation
where such application has been recorded will investigate the application to set up whether the candidate is qualified
for free legal aid and shall revert within eight weeks from the date of receipt of such application.

Legal Aid Clinics

All District Legal Services Authorities are required to establish legal aid clinics in villages or clusters of villages
depending upon the size of the village to provide legal aid to individuals, particularly where there is land, social and
different boundaries to access to the legal services institutions. However, it is subjected to the financial resource
accessible to the districts.

Legal Services Clinics in Law Universities/Colleges

Usually, every law university/college sets up, as a part of legal education, by Section 4(k) of the LSA Act, legal services
clinic to give a lawful guide to the neighborhood individuals free of expense. Such legal aid clinics might be drawn
closer to get free legal advice.

Non-Governmental Organizations

Various NGOs give free lawful counsel to individuals concerning the field they work in and help them in getting legal
aid, either their own or those gave by the state/law firms/lawyers, etc.

Online Forums

Different online forums are giving free legal advice to individuals and helping them get associated with law firms’ pro
bono department.

Conclusion

Legal aid to the poor is fundamental for the protection of guideline of law which is important for the presence of the
orderly society. It infers giving free legal services to poor people and needy who can’t manage the cost of the services
of a legal advisor for the proceedings of a case in any court, council or before an expert. The focus point of Legal Aid
is on distributive justice, effective implementation of welfare benefits and disposal of social and basic oppression of
poor people. It works as per the Legal Services Authorities Act, 1987 which goes about as the rule of the rendering of
free equity. Legal aid isn’t a charity or bounty, yet it is an obligation of the state and right of the public. It is the absence
of legal awareness which leads to exploitation and deprivation of rights and benefits of the poor people.

Q4: What is meant by professional misconduct?

Misconduct means any acts which are unlawful in nature even though they are not inherently wrongful. Before the
Advocates Act, 1961, we had the Legal Practitioners Act, 1879. There is no definition given for the term ‘misconduct’
in the Act, but the term ‘unprofessional conduct’ is being used in the Act.

Advocates Act, 1961

The provisions of Section 35 of the Advocates Act deal with professional misconduct of lawyers and advocates in India,
which read as:

A person is found guilty of professional misconduct; it shall refer the case to a disciplinary committee, shall fix a date
of hearing and issue a show cause notice to the Advocate and the Advocate General of the State. The disciplinary
committee of the State Bar Council, after being heard of both the parties, may:

• Dismiss the complaint, or where the proceedings were initiated at the instance of the State Bar Council, directs
that proceedings be filed;
• Reprimand the advocate;
 • Suspend the advocate from practice for such a period as it deems fit;
• Remove the name of an advocate from the state roll of advocates.

Misconduct is of infinite variety; this expression must be understood in a broad meaning, such that it extends the
meaning under natural law, and there is no justification for restricting their natural meaning. Section 49 of the
Advocate Act empowers the Bar Council of India to frame rules and standards of professional misconduct. Under the
Act, no person has a right to make advertisement or soliciting; it is against advocate’s code of ethics. He is also not
entitled to any advertisement through circulars, personal communications or interviews, he is not entitled to demand
fees for training and to use name/service for unauthorized purposes.

Contempt of Court as professional misconduct

Contempt of court may be defined as an offense of being disobedient or disrespectful towards the court or its officers
in the form of certain behaviour that defies authority, justice, and dignity of the court. In various cases involving
contempt of court, the court held that if any advocate or legal practitioner is found guilty of the act of contempt of
court, he/she may be imprisoned for six years and may be suspended from practicing as an advocate (In re Vinay
Chandra Mishra). The court also held that license of the advocate to practice a legal profession might be canceled by
the Supreme Court or High Court in the exercise of the contempt jurisdiction.

Conclusion

From the analysis of various cases and certain facts and circumstances, it will be clear that unlike any other profession,
advocacy is regarded as a noble profession and professional ethics must be maintained. Courts have dealt with various
cases of professional misconduct wherein attempt of murder by the advocate towards his client have also been
reported. Hence, there must be interference from concerned authorities so that persons with a criminal background
are kept away from this profession. Even though there are guidelines dealing with the social background of the person
enrolling in this profession, i.e. the person enrolling must be free from any criminal cases, it does not prove that the
person has a criminal nature of his own. So Bar Council can implement certain rules and regulation so that the conduct
of the person who is showing criminal behaviour can be controlled strict guidelines ensuring that the person no longer
acts unlawfully against his profession. There must be various career guidance and development programs conducted
by the Bar Council immediately after enrolment so that new legal professionals they will be aware of the do’s and
don’t of this profession and there will be a better group of advocates in the coming decades.

Q5: State the functions of Bar Council of India and State Bar Council

Functions of Bar Council of India

Section 7 of the Advocates Act mentions the functions of the Bar Council of India. Further amendment to the Act in
1973 added more functions to the list.

1. The Bar Council lays down the standards of professional conduct and the etiquette required to be followed by
the advocates
2. It also lays down the procedure which is to be followed by the various committees of the Bar Council
3. The advocates are also accorded certain rights, privileges and interests, which need to be safeguarded by the
Bar Council
4. Reforms in the existing law of the country are also worked upon by the Council
5. Whenever a state Bar Council refers a matter to the All India Bar Council, it has to look into the details of the
same
6. Legal education and any such standards to be achieved in the field of legal education are regulated by the
Council
7. The universities the law degrees of which are to be recognized are also selected by the Bar Council
8. Legal knowledge is also to be promoted by the Council, in ways of seminars on legal topics by jurists and
publishing of journals and papers on legal issues
9. Right to legal aid, which is a right guaranteed by the Constitution, is also to be provided by the Bar Council, to
the poor
10. Foreign qualifications for law are also to be recognized and regulated by the Council, in case an advocate
obtains education outside the country
 11. The funds of the Council are structured and managed by the Council itself
12. The various members who shall run the state Bar Councils are also elected by the All India Bar Council

Apart from granting legal aid to the poor, the Bar Council can also organize welfare schemes, for the poor, differently
abled or certain advocates. The Council can also establish libraries for the sole purpose of propagating legal education.
For these purposes, the Bar Council can receive grants, gifts or donations.

Functions of State Bar Council

Section 6 of the Act lays down the important functions of a State Bar Council.

They are:

• To admit persons as Advocates on its roll.

• To prepare and maintain such roll.
• To entertain and determine cases of misconduct against Advocates on its roll.
• To safeguard the rights, privileges and interests of Advocates on its roll.
• To promote and support law reform.
• To conduct seminars and organise talks on legal topics by eminent jurists and publish journals and papers of
legal interest.
• To organise legal aid to the poor.
• To manage and invest the funds of the Bar Council.
• To provide for the election of its members.
• To visit and inspect Universities in accordance with the rules for imparting legal education.
• To promote the growth of Bar Associations for the purpose of effective implementation of welfare schemes
introduced by the Council.
• To perform any other functions as prescribed by the Act.
• The time within which and form in which an Advocate shall express his intention for the entry of his name in
the roll of State Bar Council.
• The form in which an application shall be made to the Bar Council for admission as an Advocate on its roll.
• The conditions subject to which a person may be admitted as an Advocate on any such roll.
• The instalments in which the enrolment fee may be paid.

The Council may constitute funds for the purpose of:

• Giving financial assistance to organise welfare schemes for the indigent, disabled or other Advocates.
• Giving legal aid or advice in accordance with the rules.

The State Bar Council may receive gifts, donations or any grants for the purposes mentioned above and such amount
may be credited to the welfare funds constituted accordingly.

Q6: Explain Disciplinary Committee

1. Introduction :

Section 42 of Advocates Act 1961, provides the Powers of Disciplinary Committee of a Bar Council. The
Provisions of this Section are same for both, the State Bar Council as well the Bar Council of India.
2. Constitution / Composition of Disciplinary Committee

According to Section 9 of Advocates Act 1961 A Bar Council shall constitute one or more disciplinary
committees, each of which shall consist of three persons of whom two shall be persons elected by the Council from
amongst its members and the other shall be a person co-opted by the Council from amongst advocates who possess
the qualifications specified in the proviso to sub-section (2) of section 3 and who are not members of the Council,
and the senior-most advocate amongst the members of a disciplinary committee shall be the Chairman thereof.

3. Powers of Disciplinary committee

 1) The disciplinary committee of a Bar Council shall have the same powers as are vested in a civil court under the
Code of Civil Procedure, 1908 (5 of 1908), in respect of the following matters, namely —

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring discovery and production of any documents;

(c) receiving evidence on affidavits;

(d) requisitioning any public record or copies thereof from any court or office;

(e) issuing commissions for the examination of witness or documents;

(f) any other matter which may be prescribed:

Provided that no such disciplinary committee shall have the right to require the attendance of —
(a) any presiding officer of a Court except with the previous sanction of the High Court to which such court
is subordinate;

(b) any officer of a revenue court except with the previous sanction of the State Government.

2) All proceedings before a disciplinary committee of a Bar Council shall be deemed to be judicial proceedings
within the meaning of sections 193 and 228 of the Indian Penal Code, 1860, and every such disciplinary committee
shall be deemed to be a civil court for the purposes of sections 480, 482 and 485 of the Code of Criminal Procedure,
1898.

3) For the purposes of exercising any of the powers conferred by sub-section (1), a disciplinary committee may
send to any civil court in the territories to which this Act extends, any summons or other process, for the attendance
of a witness or the production of a document required by the committee or any commission which it desires to
issue, and the civil court shall cause such process to be served or such commission to be issued, as the case may be,
and may enforce any such process as if it were a process for attendance or production before itself.

4) Notwithstanding the absence of the Chairman or any member of a disciplinary committee on date fixed for the
hearing of a case before it, the disciplinary committee may, if it so thinks fit, hold or continue the proceedings on the
date so fixed and no such proceedings and no order made by the disciplinary committee in any such proceedings
shall be invalid merely by reason of the absence of the Chairman or member thereof on any such date:

Provided that no final orders of the nature referred to in sub- section (3) of section 35 shall be made in any
proceeding unless the Chairman and other members of the disciplinary committee are present.

5) Where no final order of the nature referred to in sub-section (3) of section 35 can be made in any
proceedings in accordance with the opinion of the Chairman and the members of a disciplinary committee either for
want of majority opinion amongst themselves or otherwise, the case, with their opinion thereon, shall be laid before
the Chairman of the Bar Council concerned or if the Chairman of the Bar Council is acting as the Chairman or a
member of the disciplinary committee, before the Vice-Chairman of the Bar Council, and the said Chairman or the
Vice Chairman of the Bar Council, as the case may be, after such hearing as he thinks fit, shall deliver his opinion and
the final order of the disciplinary committee shall follow such opinion.