Compendium of PEPA

Professional Ethics and Professional Accounting System
Syllabus
LL.B.
Semester 8
Module 1
Legal Profession, Admission, Enrolment, Rights of Advocate
1.1 Introduction: Origin and Evolution
1.2 Legal Profession – Pre/Post Contemporary, Advocates Act, 1961
1.3 Admission and Enrolment
1.4 Disqualification and Removal of Names
1.5 Rights of Advocates
Module 2
Bar Council - Establishment and Origin
2.1 Introduction – Establishment and Functions
2.2 State Bar Council – Powers and Function
2.3 Bar Council of India – Powers and Function
2.4 Bar Councils and Observance of Principles of Natural Justice
2.5 Right of Advocate to take up Law Teaching
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Dr. Bharat Barowalia 1|Page

Module 3
Ethics of Legal Profession and Accountancy for Lawyers
3.1 Meaning Nature and Need of Professional Ethics
3.2 Standard of Professional Conduct and Etiquette
3.3 Punishment for Professional and other Misconduct
3.4 Conduct of Advocates and Disciplinary Proceedings
3.5 Accounting and Law: Nature, functions and importance
Module 4
Bar- Bench Relationship and Contempt of Court
4.1 Origin, Development and Object of Contempt Law
4.2 Kinds of Contempt- Contempt by Lawyers, Judges and Corporate Bodies
4.3 Contempt by Judges and Magistrates
4.4 Punishment and Remedies
4.5 Defences
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1.1 Reading Material
1.1 Introduction: Origin and Evolution
In England, the admission of lawyers has been regulated since the middle of the 13th century. In
the late 13th century, three critical regulations were adopted – a. the Statute of Westminster I,
chapter 29 (1275); b. The London Ordinance of 1280; and c. the Ordinance of 1292, de
Attornatis et Apprenticiis. During the medieval period, further regulations were enacted, called
the Statute, 4 Henry IV, chapter 18 (1402) and the Ordinance, 33 Henry VI, chapter 7 (1455). In
addition, judges have always used their inherent power to control the admission of lawyers and
check their misconduct.
Legal profession during Edward I’s period (1272-1307)

Legal profession after Edward I
Professional Conduct and the Law Society
Legal profession in America
Legal Profession in India
Legal profession during Edward I’s period (1272-1307)
The legal profession first seems to have emerged in the reign of Edward I (1272-1307). At that
point of time, it included two types of lawyers – the serjeants and attorneys. Serjeants were
pleaders who spoke for the clients while attorneys handled procedural matters. Later, attorneys
also appeared on behalf of litigants.
Initially, both the pleaders and attorneys assisting the litigants were amateurs. However, over
time, these individuals began to appear repeatedly to assist litigants. Thus these individuals
developed expertise as a result of their experience and were sought out by litigants and they
charged for their services.
In the middle of the 12th century, and particularly through the 13th century, famous legal figures
such as Ranulf Glanvill and Ralph de Hengham emerged. Thus, identifiable precursors or
predecessors of professional lawyers emerged in the early 13th century.
The appointment of an attorney was called “responsalis”. The writ for an attorney to act in Court,
in place of his principal was called “ad lucrandum vel perdendum”. Individual attorneys could
appear in Court either as a special attorney, or as a general attorney on behalf of a client for
numerous matters over a period of time. However, by the end of the 13th century, restrictions
limiting the use of the serjeants were removed and litigants commonly used professional
serjeants to plead their cases. Now statutes granted litigants the right to appoint and use
attorneys. In 1268, a Charter of the city of London recognized a similar right for its citizens.
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Thus professional lawyers practising on a full time basis created a budding English legal
profession.
There were major changes in the Court system. New Royal Courts and expert Judges came into
being. Thus, a legal environment was created for the existence of a professional lawyer. Since
serjeants were the aristocrats of medieval lawyers, appointment as a serjeant was a significant
honour. Serjeants were the sole determining authority in case of judicial appointments. Hence,
Chaucer called a serjeant a “man of law”. The term itself was derived from a French expression
serviens, meaning “one who serves”. By the last quarter of the 13th century, the number of
serjeants increased. They then became primary pleaders in the Court of Common Pleas and to a
lesser extent in the other Royal Courts.
In the 1280s, a group called Apprentices of the Common Bench emerged. Initially, apprentices
were individuals studying to become serjeants. They functioned under the supervision of
serjeants or senior apprentices. By the end of the 13th century, the apprentices were also
representing clients and practising law. However, they were essentially practising as attorneys
and not pleaders.
In this period ending with the reign of Edward I, three enactments were critical.
The first was the Statute of Westminster I, chapter 29 (1275). This statute prohibited conduct by
‘any serjeant-counter or other’ in the King’s Court that deceived the Court or a party. A serjeant
who committed this violation was to be punished with imprisonment for a year and a day, and
prohibition on further pleading.
Chapter 29 prohibited misconduct which occurred in a judicial proceeding because of its

negative impact on the justice system. Chapter 29 was applied to attorneys and pleaders with the
same punishment being awarded to them. Conduct such as false pleading, misfeasance, common
law fraud, false recitals in a writ, false statements in a pleading and various forms of defective or
unjustified litigation were covered under the punishment.
The sanctions imposed were those of being disbarred, imprisonment for a year and a day, to
imprisonment only, a shorter imprisonment, temporary suspensions of different lengths or a fine.
The cases involved lawyers committing a wide range of misconduct, such as forgery of writs,
altering, damaging or removing official documents. Various other offences were punished. These
offences were : a. conflict of interest and other breaches of client loyalty, b. making false
statements in Court, to the client, the opponent, and in pleadings and other documents, c. acting
as an attorney without proper authority d. failing to act – an early termination of representation e.
offending judges by unconvincing arguments, over enthusiasm, or not speaking in good faith.
The London Ordinance of 1280 was a long and a detailed enactment. This enactment regulated
both admission to practice and lawyer conduct in the courts of London. The function of a
countor was to stand and plead, and count counts and make propositions at the Bar, which
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prohibited unprofessional pleading. The penalties for violations included short suspensions and
fines. The penalty for violating the simultaneous conflict of interest prohibition was suspension
for three years.
The Ordinance of 1292 dealt with the admission of attorneys and apprentices to the Common
Bench. It directed the Chief Justice and other Justices to regulate the number of attorneys
admitted to practice before the Common Bench. They were also directed to establish quotas for
each county. According to Holdsworth, these Ordinances were issue as there were large
complaints against lawyers by members of the general public. It was believed that the number of
lawyers should be reduced in order to reduce lawyer misconduct.
Most legal historians have accepted that the Ordinance of 1292 was a major stage in the
development of the legal profession in England. In fact, this was the beginning of the long-
standing belief that attorneys were officers of the Court. This was attributed because Judges
directly admitted attorneys. Integrity and competence were both required for admission. This
was because the standard of admission resembled the good moral criterion to modern admission
controls. Statutes like the Statute of Conspirators, 1292, and the 1305 Ordinance of Conspirators
prohibiting false litigation were also steps in that direction.
Legal profession after Edward I
In the early 17th century, the influence of serjeants as a professional group declined. As a result
of this, apprentices became the more important group of pleaders and were the predecessors of
today’s barristers. By the middle of the 14th century, they created the Inns of Court. Although
an attorney was a lawyer who represented the client in Court on the client’s behalf, he was not
allowed to plead. An attorney appeared on behalf of his client. This would be clear from the
French verb attorner, which means ‘to assign or depute for a particular purpose’. The attorneys’
primary function was to appear in Court to manage the litigation of the clients.
Separation between attorneys and serjeants model for solicitor-barrister separation

The formal division of the English legal profession into solicitors and barristers can be traced
back to the separation between the attorneys and the serjeants. Attorneys were the predecessors
of the serjeants.
It may be pointed out that canon and ecclesiastical lawyers (dealing with laws with regard to the
Church) existed both in England and in Continental Europe. Canon lawyers appeared in the
English ecclesiastical Courts. The canon lawyers were also divided like common law lawyers.
The pleader was called the ecclesiastical advocatus while the attorney was called the
ecclesiastical procurator. According to Pollock and Maitland, professional canons for advocates
served to set an example for professional common law pleaders. In England, the ancient
universities of Oxford and Cambridge imparted legal education based on canon and Roman law.
They did not include any instruction in English common law.
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The instruction in English common law appeared only in the 18th century with Blackstone’s
famous Vinerian lectures. However, in Continental Europe, legal instruction was much older.
The oldest were the lectures at the celebrated law school of the University of Bologna in which
Roman and civil law was taught.
The education of pleaders through apprentices who were studying to become serjeants was the
backbone of legal education. They were taught to regularly attend Court and judicially
encouraged to observe the working of Courts as well as serjeants. That is how the Inns of Court
were established.
The regulation of the legal profession incorporated principles of discipline, definition of

malpractice and other civil liability to injured clients, judicial and institutional controls, and
legislative approaches. In England, solely the Judges imposed discipline. Hence, there did not
exist any separate disciplinary authorities and regulatory agencies. Moreover, judicial sanctions
were commonly imposed. These sanctions were imposed to give effect to statutes and
ordinances, as well as inherent judicial power.
Between the end of the reign of Edwards I and the end of 15th century, there was less regulatory
activity. The assault on champerty and maintenance continued. Statutes imposing additional
prohibitions and remedies were passed in 1327, 1331, 1347, 1377 and 1383. By the end of 14th
century, serjeants had a monopoly on pleading in the Common Bench. Thus, the serjeants were
considered to be a guild.
With the development of petitions to Parliament in the early 14th century, petitions became a
vehicle for complaints about lawyers.
Statute 4 Henry IV, Chapter 18 (1402) aimed at regulating admission of regulating attorneys and
misconduct. The statute required that the justices were to examine all attorneys including those
already in practice. The justices were to apply their discretion and enroll only those who were
‘good and virtuous and of good fame…’ It was believed that this statute stressed upon the notion
that attorneys were officers of the Court and that judicial control of admission was important to
limit numbers, ensure competence and eliminate misconduct.
Ordinance 33 Henry VI, Chapter 7 (1455) was aimed at controlling attorney admission in the
counties of Norfolk and Suffolk and the city of Norwich. Thus the previous instances of modern
regulation of lawyers were evident in the medieval regulation of the profession.
The standards in the legal profession, in a certain sense, originated due to the ecclesiastical
Courts (Courts dealing with matters of the Church) – both in England and Europe. Oaths were a
part of ancient tradition. The Roman oath required that an advocate should avoid deception and
circumlocution. An advocate should speak only that which he believed to be true. He was to
avoid the use of injurious language or malicious statements against his adversary. The
ecclesiastical courts in England set an oath for advocates, and the Council in St. Paul’s in 1237
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issued an oath for ecclesiastical advocates that addressed their litigation conduct. The obligation
of a lawyer was to defend his client both according to law and reason. But the decree warned
that advocates who “persuade witnesses, or instruct the parties to give false evidence or suppress
the truth” would be suspended from office and subjected to additional punishment for repeated
violations.
In fact, the oath for advocates in the Court of Arches in London introduced by Archbishop
Kilwardy provided that a lawyer would reject unjust causes, not seek unjust delays and not
knowingly infringe on ecclesiastical liberties. This included the duty of ‘not to charge excessive
fees’. It was in the mid-19th century that the ecclesiastical jurisdiction came to be abolished.
Incidentally, the original speeches from the early 15th century encouraged serjeants to serve the
poor.
The following exhortation of Lord Whitlocke is noteworthy:

“For your duty to particular clients you may consider, that some are rich, yet with such there
must be endeavour to lengthen causes, to continue fees. Some are poor, yet their business must
not be neglected if their cause be honest; they are not the worst clients, though they fill not your
purses, they will fill the ears of God with prayers for you and he who is the defender of the poor
will repay your charity”.
Thus, apprentices who had long trained at the Inns of Court became barristers and received
ethical instruction as part of their training. The special wisdom of decorum and ethics came from
the serjeants. Barristers were governed and disciplined by Courts and the Inns. The barristers,
through educational dialogue, passed on ethical traditions and developed new ones. Barristers
unquestionably developed new standards. The bias against advertisement started as etiquette
handed down in the Inns by barristers. These barristers believed that they were superior to the
mere trade work of attorneys and solicitors. Likewise, barristers developed standards demanding
that they separate themselves from the lay client and not sue lay clients to collect fees.
An attorney was required to take the following oath:

“You shall do no falsehood nor consent to any to be done in the Office of Pleas of this court
wherein you are admitted as an attorney” .
English Courts used their inherent power as well as the 1275 Statute to impose a duty of loyalty
and confidentiality on attorneys. In fact the history of the attorney-client privilege began with
the reign of Elizabeth I.
In 1605, Parliament enacted the 1605 Act which was “an Act to reform the multitudes and
misdemeanours of attorneys and solicitors of law, and to avoid unnecessary suits and charges at
law”. In 1654, the Court of Common Pleas directed that a jury of able and credible officers,
clerks and attorneys be empanelled every three years to oversee discipline of attorneys. This
panel was also to set a table of “due and just fees”.
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In 1729, Parliament enacted an Act for the better regulation of attorneys and solicitors, providing
for strict admission procedures. The 1729 Act required lawyers to swear to a shorter oath. The
new oath provided that “That I will truly and honestly demean myself in the practice of an
attorney, according to the best of my knowledge and ability”.
In England, the position of Serjeant-at-Law was discontinued and was replaced by

the King’s Counsel (or Queen’s Counsel, as the case may be). They were appointed by Royal
patent, were admitted only upon taking an oath, and had a monopoly of all practices. They were
directly answerable to the King as parts of his judicial system.
The earliest form of an attorney’s oath on record is found in the Red Book of the Exchequer.
“The Oath of Attorneys in the Office of Pleas: You shall doe noe Falshood nor consent to anie
to be done in the office of Pleas of this Courte wherein you are admitted an Attorney. And if you
shall knowe of anie to be done you shall give Knowledge thereof to the Lord Chiefe Baron or
other his Brethren that it may be reformed you shall Delay noe Man for Lucre Gaine or Malice
you shall increase noe Fee but you shall be contended with the old Fee accustomed. And further
you shall use your selfe in the Office of Attorney in the said office of Pleas in this Courte
according to your best Learninge and Discrecion. So helpe you God.”
Professional Conduct and the Law Society
The attorneys were expelled from the principal Inns of Court in the 16th century and in 1739
they formed a professional group called “Society of Gentleman-Practicers in the Courts of Law
and Equity”. Thus the Law Society was born, though it was not until 1986 that the Law Society
formed a committee to collect and draft principles of professional conduct. Now there exists the
Guide to Professional Conduct of Solicitors reflecting the ideals of modern solicitors as well.
Both branches of the English legal profession had the same core duties over the centuries of
litigation: fairness, competence, loyalty, confidentiality, reasonable fees and service to the poor.
Nicholas, in Introduction to Roman Law stated that the Roman jurists were not paid for their
work, but were supposed to function due to a keen sense of public service. In Europe, lawyers
were under an oath, which was an essence, a condensed code of legal ethics.
In France, lawyers had to take an oath which included a pledge of care, diligence and an
agreement to support only just causes. In France, the oaths were taken by ecclesiastical lawyers
and the French legal tradition had a lasting influence even outside France in Switzerland and
other parts of Europe.
The concept of a lawyer as an officer of the Court is arises from the Roman idea of a lawyer
being an advocatus, who when called upon by the praetor to assist in the cause of a client, was
solemnly reprimanded to “avoid artifice and circumlocution”.
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The concept of oath was common to Europe. Fredrick the Second of Germany, prescribed the
oath as follows:
“We will that the advocates to be appointed, as well in our court as before the justices and
bailiffs of the provinces, before entering upon their offices, shall take their corporal oath on the
Gospels, that the parties whose cause they have undertaken they will, with all good faith and
truth, without any tergiversation, succour; nor will they allege anything against their sound
conscience; nor will they undertake desperate causes; and, should they have been induced, by
misrepresentation and the colouring of the party to undertake a cause which, in the progress of
the suit, shall appear to them, in fact or law, unjust, they will forthwith abandon it. Liberty is not
to be granted to the abandoned party to have recourse to another advocate. They shall also swear
that, in the progress of the suit, they will not require an additional fee, nor on the part of the suit
enter into any compact; which oath it shall not be sufficient for them to swear to once only, but
they shall renew it every year before the officer of justice. And if any advocate shall attempt to
contravene the aforesaid form of oath in any cause, great or small, he shall be removed from his
office, with the brand of perpetual infamy, and pay three pounds of the purest gold into our
treasury.”
The French recognized the role of a lawyer in the Capitularies of Charlemagne as a professional
lawyer. Nobody should be admitted to the profession except for men, “mild, pacific, fearing God
and loving justice, upon pain of elimination.”
In Denmark and Norway, the Code of Christian V provided as follows:
“Lawyers who are allowed to plead Causes, shall be Men of Probity, Character, and known
Repute.
In cities shall be appointed such a number of lawyers as are really requisite.
No one shall be admitted as a Lawyer to act, who does not take an oath before the Mayor and
Aldermen, that he will undertake no Cause he knows to be bad, or iniquitous; that he will avoid
all Fraud in pleading, bringing Evidence, and the like: That he will abstain from all Cavils,
Querks and Chicanery; and never seek by Absence, Delays, or superfluous Exceptions, to
procrastinate a Suit: That he will use all possible Brevity in transcribing Processes, Deeds,
Sentences, etc. That he will never encourage Discord, or be the least Hindrance to
Reconciliation: That he will exact no exorbitant Fees from the Poor, or others: And that he will
act honestly, and to the best of his Power, for all his Clients. Of this Oath the Judges shall
admonish the Lawyers in dubious Cases, and if they think proper, require a Renewal of it in the
Court: And moreover, command them to abstain from all Manner of Scurrility, and Abuse, in
their Pleadings, especially where the process does not concern the Fame of the Defendant.
A Lawyer defective in this his Duty shall be discarded, rendered incapable of ever after pleading,
and moreover punished in Proportion to his Offense.”
Legal profession in America
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In the United States as well, a lawyer is regarded as an officer of the Court and is admitted to the
Bar only upon taking of an official oath. In America, until 1875, there were no formal academic
requirements to be a lawyer, because there was neither required schooling nor tests.
The first regulatory code was written in 1836 by Judge Hoffman of Baltimore. The Code
touches on most of the problem areas confronting even modern lawyers. Hoffman’s resolution
suggests that justice should be the only motivation of lawyers, including the resolution that
‘lawyers must have humility regarding their own knowledge of the law’. The Hoffman Code
states that lawyers must quote the law objectively with ‘honour’. Their reasoning should be
objective and creative. This was followed by Alabama’s Legal Ethics Code of 1887. The Code
stated that morality was the only safeguard to having a good professional Bar.
The canons of professional ethics was approved by the American Bar Association in 1908 and
continued till 1960s. The preamble stated that public must have confidence in the “integrity and
impartiality of the legal profession”. This was replaced by the 1969 American Bar Association
(“ABA”) Code of Professional Responsibility. In a project called Ethics 2000, the American Bar
Association reorganized its model rules of professional conduct.
The six traditional core duties now identified by ABA are – a) litigation fairness, b) competence,
c) loyalty, d) confidentiality, e) reasonable fees, and f) public service.
The Colonies and early States used oaths, statutes, judicial oversight and procedural rules to
govern behaviour of attorneys. The oath was the most expansive single listing of ethical
standards for early American lawyers. Many of the States enacted laws to regulate attorneys’
fees. The Bar Association later reflected the broader range of substantive concerns and dealt
primarily with admission standards and procedures.
David Dudley Field was the drafter of the highly influential New York Code, popularly called
the Field Code. This Code introduced a new set of uniform standards of conduct for lawyers.
One of the duties of a lawyer was to maintain the respect due to the Courts of Justice as well as
judicial offices. In fact, after the Field Code was drafted, Hoffman and Sharswood were able to
use legal education to develop the standards of conduct for lawyers in the mid 19th century.
(Hoffman was a Professor of Law at the University of Maryland and Sharswood was a Professor
at the University of Pennsylvania. Most academicians believe that the works of Hoffman and
Sharswood are significant in the field of American legal ethics.)
Of course, by the end of the 19th century, a new form of ethical standards began to guide lawyers
in their practice, called the American Bar Association Code of Legal Ethics. It may be pointed
out that although the ABA’s works are merely models and are themselves not binding on any
lawyer, most States have adopted the ABA models with slight local variations. As mentioned
above, the ABA again brought about comprehensive changes to the Model Rules in a project
known as Ethics 2000. There were further amendments in August 2002 and August 2003. As of
2003, 44 States and the District of Columbia had adopted some version of the Model Rules.
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Dr. Bharat Barowalia 10 | P a g e

A lawyer being an officer of the Court enjoys a license to certain special privileges, which
otherwise he would not be entitled to. The advocate is therefore an officer sui generis of the
Court and subject to the rules imposed by the Court in regulation to the practice therein. He is a
quasi officer of the State. The power and responsibility for the administration of justice rests on
him. The fundamental idea underlying the lawyers’ profession has been expressed in a North
Carolina case (In Re Application of Delingham ).
In a book called The Lawyer’s Oath and Office, it was noted that:-
“Why is any oath required for admission to the practice of the law? No oath is required by law
for admission to practice in any other profession, even where qualifications to practice are
prescribed or ascertained by examinations required by law, as in the case of physicians. But an
official oath has always been required for admission to the practice of the law. Why is it
required? What is its significance, and what obligation does it impose?
The significance of the lawyer’s oath is that it stamps the lawyer as an officer of the State, with
rights, powers and duties as important as those of the Judges themselves. ……… A lawyer is not
the servant of his client. He is not the servant of the Court. He is an officer of the Court, with all
the rights and responsibilities which the character of the office gives the imposes.”
In Ex parte Garland, it was decided that the right to practice law was neither property nor a
contract but was a right of which the lawyer could not be deprived of. The lawyer can only be
deprived of this right only when a good cause can be shown after judicial proceedings. It was
observed by Field, J. that:
“The attorney and counsellor being, by solemn judicial act of the court clothed with his office,
does not hold it as a matter of grace. The right which it confers upon him to appear for suitors,
and to argue causes, is something more than a mere indulgence, revocable at the pleasure of the
court, or at the command of the legislature. It is a right of which he can only be deprived by the
judgment of the court for moral or professional delinquency. They hold their office during good
behaviour, and can only be deprived of it for misconduct ascertained and declared by the
judgment of the court after opportunity to be heard has been afforded.”
A lawyer is an officer of the Court because the power of admitting a lawyer to practice law is
judicial in its nature and is vested in the Courts. It is settled law in the United States that
whatever the general jurisdiction of the Courts over the subject may be, the legislature can
exercise police power by prescribing reasonable rules and regulations for admission to the Bar
which will be followed by the Courts.
Selden, J. in Re Cooper observed that:

“Attorneys and counsellors are not only officers of the Court, but officers whose duties relate
almost exclusively to proceedings of a judicial nature, and hence their appointment may with
propriety be entrusted to the courts, and the latter in performing this duty may very justly be
considered as engaged in the exercise of their proper judicial functions.”
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In America, Courts authorized to admit attorneys to the Bar have inherent jurisdiction to suspend
or disbar them for sufficient cause. Such jurisdiction is not dependent upon constitutional
provision or a State enactment.
In Re Lambuth, the Supreme Court of Washington observed that:

“But the power to strike from the rolls is inherent in the court itself. No statute or rule is
necessary to authorize the punishment in any proper cases. Statutes and rules may regulate the
power but they do not create it. It is necessary for the protection of the court, the proper
administration of justice, the dignity and purity of the profession, and for the public good and for
the protection of clients. Attorneys may forfeit their professional franchise by abusing it, and the
power to exact the forfeiture is lodged in the courts which have authority to admit attorneys to
practice. Such power is indispensable to protect the court, the administration of justice, and
themselves; and attorneys themselves are vitally concerned in preventing the vocation from
being sullied by the conduct of unworthy members.”
Sharswood in Legal Ethics notes that:

“With jurisprudence lawyers have most, nay, all to do. The opinion of the Bar will make itself
heard and respected on the Bench. With sound views, their influence for good in this respect
may well be said to be incalculable. It is indeed the noblest faculty of the profession to counsel
the ignorant, defend the weak and oppressed, and to stand forth on all occasions as the bulwark
of private rights against the assaults of power, even under the guise of law; but it has still other
functions. It is its office to diffuse sound principles among the people, that they may
intelligently exercise the controlling power placed in their hands, in the choice of their
representatives in the legislature and of judges, in deciding, as they are often called upon to do,
upon the most important changes in the Constitution, and above all, in the formation of that
public opinion which may be said in these times, almost without a figure, to be the ultimate
sovereign.”
The duties of a lawyer to the Court arise from the relationship which he has with the Court as an
officer in the administration of justice. Law is not a mere private profession but is a profession
which is an integral part of the judicial system of the State. As an officer of the Court, the lawyer
should uphold the dignity and integrity of the Court. The lawyer must exercise at all times
respect for the Court, in both words and actions. He must present all matters relating to his
client’s case openly. He should being careful to avoid any attempt to exert private influence upon
either the judge or the jury. He should be frank and candid in all dealings with the Court, ‘using
no deceit, imposition evasion as by misreciting witnesses or misquoting precedents’.
It may be noted that Warvelle in Legal Ethics records:

But the lawyer is not alone a gentleman, he is a sworn minister of justice. His office imposes
high moral duties and grave responsibilities, and he is held to a strict fulfillment of all that these
matters imply. Interests of vast magnitude are intrusted to him; confidence is imposed in him;
life, liberty and property are committed to his care. He must be equal to the responsibilities
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which they create, and if he betrays his trust, neglects his duties, practises deceit, or panders to
vice, then the most severe penalty should be inflicted and his name stricken from the roll.
The obvious truth is that the lawyer owes a high duty to his profession and to his fellow members
of the Bar. His profession should be his pride, and to preserve its honour should be among his
chief concerns. “Nothing should be higher in the estimation of the advocate” declares Mr.
Alexander H. Robbins, “next after those sacred relations of home and country than his
profession. She should be to him the fairest of ten thousand among the institutions of the earth.
He must stand for her in all places and resent any attack on her honour – as he would if the same
attack were to be made against his own fair name and reputation. He should enthrone her in the
sacred places of his heart, and to her he should offer the incense of constant devotion. For she is
a jealous mistress.”
As regards the Bench, Warvelle remarks that the purity of the Bench also depends upon the
purity of the Bar:
“The very fact, then, that one of the co-ordinate departments of the government is administered
by men selected only from one profession gives to that profession a certain pre-eminence which
calls for a high standard of morals as well as intellectual attainments. The integrity of the
judiciary is the safeguard of the nation, but the character of the judges is practically but the
character of the lawyers. Like begets like. A degraded Bar will inevitably produce a degraded
Bench, and just as certainly may we expect to find the highest excellence in a judiciary drawn
from the ranks of a enlightened, learned and moral Bar.”
Legal Profession in India
The history of the legal profession in India can be traced back to the establishment of the First
British Court in Bombay in 1672 by Governor Aungier. The admission of attorneys was placed
in the hands of the Governor-in-Council and not with the Court. Prior to the establishment of the
Mayor’s Courts in 1726 in Madras and Calcutta, there were no legal practitioners.
The Mayor’s Courts, established in the three presidency towns, were Crown Courts with right of
appeal first to the Governor-in-Council and a right of second appeal to the Privy Council. In
1791, Judges felt the need of experience, and thus the role of an attorney to protect the rights of
his client was upheld in each of the Mayor’s Courts. This was done in spite of opposition from
Council members or the Governor. A second principle was also established during the period of
the Mayor’s Courts. This was the right to dismiss an attorney guilty of misconduct. The first
example of dismissal was recorded by the Mayor’s Court at Madras which dismissed attorney
Jones.
The Supreme Court of Judicature was established by a Royal Charter in 1774. The Supreme
Court was established as there was dissatisfaction with the weaknesses of the Court of the
Mayor. Similar Supreme Courts were established in Madras in 1801 and Bombay in 1823. The
first barristers appeared in India after the opening of the Supreme Court in Calcutta in 1774. As
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barristers began to come into the Courts on work as advocates, the attorneys gave up pleading
and worked as solicitors. The two grades of legal practice gradually became distinct and separate
as they were in England. Madras gained its first barrister in 1778 with Mr. Benjamin Sullivan.
Thus, the establishment of the Supreme Court brought recognition, wealth and prestige to the
legal profession. The charters of the Court stipulated that the Chief Justice and three puisne
Judges be English barristers of at least 5 years standing.
The charters empowered the Court to approve, admit and enrol advocates and attorneys to plead
and act on behalf of suitors. They also gave the Court the authority to remove lawyers from the
roll of the Court on reasonable cause and to prohibit practitioners not properly admitted and
enrolled from practising in the Court. The Court maintained the right to admit, discipline and
dismiss attorneys and barristers. Attorneys were not admitted without recommendation from a
high official in England or a Judge in India. Permission to practice in Court could be refused
even to a barrister.
In contrast to the Courts in the presidency towns, the legal profession in the mofussil towns was
established, guided and controlled by legislation. In the Diwani Courts, legal practice was
neither recognized nor controlled, and practice was carried on by vakils and agents. Vakils had
even been appearing in the Courts of the Nawabs and there were no laws concerning their
qualification, relationship to the Court, mode of procedure of ethics or practice. There were two
kinds of agents – a. untrained relatives or servants of the parties in Court and b. professional
pleaders who had training in either Hindu or Muslim law. Bengal Regulation VII of 1793 was
enacted as it was felt that in order to administer justice, Courts, must have pleading of causes
administered by a distinct profession Only men of character and education, well versed in the
Mohamedan or Hindu law and in the Regulations passed by the British Government, would be
admitted to plead in the Courts. They should be subjected to rules and restrictions in order to
discharge their work diligently and faithfully by upholding the client’s trust.
Establishment of the High Courts
In 1862, the High Courts started by the Crown were established at Calcutta, Bombay and
Madras. The High Court Bench was designed to combine Supreme Court and Sudder Court
traditions. This was done to unite the legal learning and judicial experience of the English
barristers with the intimate experience of civil servants in matters of Indian customs, usages and
laws possessed by the civil servants. Each of the High Courts was given the power to make rules
for the qualifications of proper persons, advocates, vakils and attorneys at Bar. The admission of
vakils to practice before the High Courts ended the monopoly that the barristers had enjoyed in
the Supreme Courts. It greatly extended the practice and prestige of the Indian laws by giving
them opportunities and privileges equal to those enjoyed for many years by the English lawyers.
The learning of the best British traditions of Indian vakils began in a guru-shishya tradition:
“Men like Sir V. Bashyam Ayyangar, Sir T. Muthuswamy Ayyar and Sir S. Subramania Ayyar
were quick to learn and absorb the traditions of the English Bar from their English friends and
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colleagues in the Madras Bar and they in turn as the originators of a long line of disciples in the
Bar passed on those traditions to the disciples who continued to do the good work.”
Additional High Courts were established in Allahabad (1886), Patna (1916), and Lahore (1919).
There were six grades of legal practice in India after the founding of the High Courts – a)
Advocates, b) Attorneys (Solicitors), c) Vakils of High Courts, d) Pleaders, e) Mukhtars, f)
Revenue Agents. The Legal Practitioners Act of 1879 in fact brought all the six grades of the
profession into one system under the jurisdiction of the High Courts. The Legal Practitioners
Act and the Letters Patent of the High Courts formed the chief legislative governance of legal
practitioners in the subordinate Courts in the country until the Advocates Act, 1961 was enacted.
In order to be a vakil, the candidate had to study at a college or university, master the use of
English and pass a vakil’s examination. By 1940, a vakil was required to be a graduate with an
LL.B. from a university in India in addition to three other certified requirements. The certificate
should be proof that a. he had passed in the examination b. read in the chamber of a qualified
lawyer and was of a good character. In fact, Sir Sunder Lal, Jogendra Nath Chaudhary, Ram
Prasad and Moti Lal Nehru were all vakils who were raised to the rank of an Advocate.
Original and appellate jurisdiction of the High Court.
The High Courts of the three presidency towns had an original side. The original side included
major civil and criminal matters which had been earlier heard by predecessor Supreme Courts.
On the original side in the High Courts, the solicitor and barrister remained distinct i.e. attorney
and advocate. On the appellate side every lawyer practiced as his own attorney.
However, in Madras the vakils started practice since 1866. In 1874, the barristers challenged
their right to do original side work. However, in 1916, this right was firmly established in favour
of the vakils. Similarly, vakils in Bombay and Calcutta could be promoted as advocates and
become qualified to work on the original side. By attending the appellate side and original side
Courts each for one year, a vakil of 10 years service in the Court was permitted to sit for the
advocates’ examination.
The Chamier Committee
To remove all distinction enforced by statue or by practice between Barristers and Vakils Munshi
Ishwar Saran moved a resolution in the Legislative Assembly recommending legislation in
February 1921. Though the removal of the distinction between Barristers and Vakils was the
primary focus, the resolution advocated the constitution of a recognized body consisting
exclusively of lawyers in India to provide for legal education and to deal with all others matters
relating to the legal profession.
This was deemed important because many High Courts exercised disciplinary powers over
lawyers on the theory that Vakils were officers of the court. As finally adopted, the opinions
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from all corners were recommended before undertaking legislation in the proposed direction.
Succumbing to the pressures thus generated, the Indian Bar Committee, popularly known as the
Chamier Committee was appointed by the Government of India in 1923. This committee was
constituted under the Chairmanship of Sir Edward Chamier, a retired Chief Justice of the Patna
High court. Four Barristers, one Attorney, one civilian and three representatives of the Vakil Bar
were the members of this Committee. The prevalent questions regarding the constitution of
Indian Bar and the removal of existing distinction between Barristers and Vakils were put onto
table to make a report on that.
Recommendations of the Committee-
that in all High Courts, a single grade of enrolled practitioners, entitled to plead, is to be called
advocates (not Barristers) and Vakils or Pleaders be abolished;
that only special conditions are maintained for admission to Advocates entitled to appear on the
Original Side and Advocates not so entitled;
that Vakils fulfilling certain conditions be admitted to practice on the original Side;
that the future one-third of the High Court Judges need not necessarily be Barristers;
that Advocates of one High Court should be entitled to practice in another High Court subject to
the conditions to be imposed by the Bar Council of the latter court, or by the court where there is
no Bar Council.
Indian Bar Councils Act, 1926.
The Indian Bar Councils Act, 1926 was passed to unify the various grades of legal practice and
to provide self-government to the Bars attached to various Courts. The Act required that each
High Court must constitute a Bar Council made up of the Advocate General, four men nominated
by the High Court of whom two should be Judges and ten elected from among the advocates of
the Bar. The duties of the Bar Council were to decide all matters concerning legal education,
qualification for enrolment, discipline and control of the profession. It was favourable to the
advocates as it gave them authority previously held by the judiciary to regulate the membership
and discipline of their profession.
The Advocates Act, 1961 was a step to further this very initiative. As a result of the Advocates
Act, admission, practice, ethics, privileges, regulations, discipline and improvement of the
profession as well as law reform are now significantly in the hands of the profession itself.
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Legal Profession – Pre/Post Contemporary, Advocates Act, 1961
The Advocates Act, 1961 contains rules and laws pertaining to advocates. The major goal of the
Act is to create a single class of legal practitioners known as “advocates.” Advocates are
permitted to represent clients before all courts and tribunals in all states of Indian territory. The
advocates can only join one state Bar Council [vide Section 17(4) of the Act], although they are
free to move to another State Bar Council. The Indian Bar Councils Act has been replaced by the
Advocates Act, 1961. The Advocate Act of 1961 was created in order to carry out the
recommendations of the All India Bar Committee, which were supported by the Law
Commission’s fourteenth report in 1955. This Act’s primary goal is to unite and create a single
class of attorneys called “advocates.” Their major goals are to establish an All India Bar Council
and State Bar Councils, as well as a common qualification for the bar. It also outlines an
advocate’s obligations and rights.
History of the Advocates Act, 1961
India’s legal profession was managed under the Advocates Act, of 1961, which was set up by
Parliament after Independence. The All India Bar Committee was established in 1953 by the
government to oversee and control the Indian judiciary after Independence in 1947. The
Advocates Act and the Bar Council of India were formed in 1961 as a result of a
recommendation submitted to Parliament by the All-India Bar Committee. Legal practitioners
were divided into various classes under the Legal Practitioners Act of 1879 until the Advocates
Act, 1961 came into effect. They were classified as Advocates, Lawyers, Vakils, Barristers, etc.
After the Act came into effect, several classes of legal practitioners were abolished and
combined into one class of advocates. These advocates were categorised as Senior Advocates
and other subdivision advocates based on their qualifications for expertise and experience.
Senior Advocates are given the title with the Supreme Court’s or the High Court’s confirmation.
The Bill behind Advocates Act, 1961
The Bill was drafted in order to carry out the recommendations of the All India Bar Committee,
which were issued in 1953. After considering the Law Commission’s proposals on Judicial
Administration Reform, as well as the suggestions relating to the Bar and legal education. The
Bill was amended to recognise the dual system in operation in the High Courts of Calcutta and
Bombay by including the necessary provisions, according to the recommendations provided to
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the All India Bar Committee and the Law Commission. If they intend to abolish the dual system
at any moment, it will only be open to two Courts. The Indian Bar Councils Act, 1926, as well as
any other legislation on the subject, may be repealed by this bill because it is a comprehensive
measure. This was published on November 19, 1959, in Section 2 of Part II of the Extraordinary
Gazette of India.
Main features of the bill behind Advocates Act, 1961
The bill’s primary features were:
 The All India Bar Council must be established, there must be a single class of attorneys,
and it must grant attorneys the right to practise in any area of the country, in any High
Court, as well as at the Supreme Court of India.
 Combining the bar together into a single class of legal practitioners known as advocates.
 The procedures of a uniform qualification for admitting individuals as advocates and

qualifying them as advocates.
 According to their merit, senior advocates and other advocates must be divided.
 There must be the establishment of autonomous Bar Councils, one for all of India and
another for each State.
Implementation of Advocates Act, 1961 in India
On May 19, 1961, in the twelfth year of the Republic of India, Parliament passed The Advocates
Act, 1961. The Act has a total of 60 sections split into 7 chapters. The Advocates Act, 1961 was
implemented by the Central Government. This Act is applicable across India. The Indian legal
profession experienced a lot of changes as a result. Its goal was to establish the legality and
utility of the legal profession across the whole of India. The Act amends and unifies the law
relating to legal practitioners, according to the preamble of this Act. The primary goal of the Act
was to promote uniformity in the legal profession, including uniformity in the academic
qualifications for advocates, in the registration process for state-level Bar Councils, in the
restrictions put on enrollment, in the disqualification of legal practitioners, etc.
Features or the characteristics of the Advocate Act, 1961
The Advocates Act, 1961 had the following features:
 It established the Bar Council of India and State Bar Councils and paved the way for their
formation.
 Even though advocates may be transferred from one state to another, advocates are not
permitted to enrol in more than one State-Bar Council.
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 A self-governing authority has been given to the Bar Council.
 Additionally, the Act has made it possible for advocates to work in positions that are
similar all across the world.
 It also included provisions that allowed for the consolidation of all legal system
legislation into a single class or document.
 Various Bar Council regulations have been implemented in both state and central laws.
 A single title called ‘advocate’ replaced the several titles that were previously granted to
advocates such as legal practitioners, vakils, attorneys, etc.
 On the basis of their qualifications, experience, and level of expertise, there are senior
advocates and other advocates as legal practitioners.
 The act primarily focuses on the consolidation of existing legal laws for the legal
profession.
 The Bar Council was given control over an autonomous body that has been assigned
certain duties.
 It may be seen that the Bar Council is a member of a number of international

organisations, including the international bar organisation. The Bar Council is a
recognised legal entity with the ability to acquire both moveable and immovable property
through litigation.
 Additionally, there are several state Bar Councils that are under the control of the All-
India Bar Council.
 They also have the same responsibilities as the All-India Bar Council, but they solely
look after their particular states. The Bar Council was granted an autonomous entity that
is entrusted with these responsibilities.
 According to the Act, State Bar Councils must exist in every state.
Definitions under the Advocate Act, 1961
 Advocate: The term ‘advocate’ is discussed under Section 2(1)(a) of the Act. A person
who has registered on any roll created by this Act is an advocate. There were various
classifications of legal professionals known as pleaders, vakils, lawyers, and attorneys
before the enactment of this Act.
 Appointed day: The term ‘appointed day’ is discussed under Section 2(1)(b) of the Act.
The term ‘appointed day’ refers to the day the Provisions took effect.
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 Bar Council of India: The word ‘Bar Council’ is covered by Section 2(1)(e) of the
Act. Section 4 of the Act establishes the Bar Council for the territories to which the Act
applies.
 Law graduate: The word ‘law graduate’ is discussed under Section 2(1)(h) of the Act. A
person is referred to as a law graduate if they have completed a bachelor’s degree in law
from any university recognised by Indian law.
 Legal practitioner: The word ‘legal practitioner’ is covered by Section 2(1)(i) of the
Act. A legal practitioner is a person who is an advocate or vakil in any High Court, as
well as a pleader, mukhtar, or tax agent.
 High Court: The term ‘High Court’ is covered by Section 2(1)(g) of the Act. The term
‘High Court’ does not include a court for Judicial Commissioner, except in
Sections 34(1) and 34(1A), as well as Sections 42 and 43. The term High Court in
relation to a State Bar Council means:
1. If a State Bar Council is established for a state or for a state and one or more
union territories, the High Court for the state.
2. If a Bar Council is constituted for Delhi, the High Court of Delhi.
 Roll: The term ‘roll’ is discussed under Section 2(1)(k) of the Act. Under this Act, rolls
are recorded and maintained. It is a list of advocates or legal practitioners who practise in
a court or who are frequently present in court.
 State: The term ‘State’ is discussed under Section 2(1)(l) of the Act. A state is a country
or territory that is organised as a political community and has a single state government
under the territory. The union territory is not included as a state
 State roll: The term ‘State roll’ is discussed under Section 2(1)(n) of the Act. According
to Section 17, a State Bar Council must record, prepare, and maintain a state roll, which
is a list of advocates.
THE JAMMU AND KASHMIR REORGANISATION ACT, 2019
76. (1) On and from the date referred to in sub-section (1) of section 75, in the Advocates Act,
1961, in section 3, in sub-section (1),—
(a) in clause (a), the words “Jammu and Kashmir” shall be deleted.
(b) after clause (f), the following clause shall be inserted, namely— -
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(g) - for the Union territory of Jammu and Kashmir and Union territory of Ladakh, to be
known as the Bar Council of Jammu and Kashmir; and Ladakh.
(2) Any person who immediately before the date referred to in sub-section (1) of section
75 is an advocate on the roll of the Bar Council of the existing State of Jammu and Kashmir and
practising as an advocate in the High Court of Jammu and Kashmir, may continue to be members
of the “Bar council of Jammu and Kashmir; and Ladakh’’, notwithstanding anything contained in
the Advocates Act, 1961 and the rules made thereunder.
(3) The persons other than the advocates who are entitled immediately before the date
referred to in sub-section (1) of section 75, on and after that date, be recognised as such persons
entitled also to practise in the common High Court of Jammu and Kashmir or any subordinate
court thereof, as the case may be.
(4) The right of audience in the common High Court of Jammu and Kashmir shall be
regulated in accordance with the like principles as immediately before the date referred to in sub-
section (1) of section 75, are in force with respect to the right of audience in the High Court of
Jammu and Kashmir
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Admission and Enrolment
The Advocates Act of 1961, Sections 16 to 28, govern the admission and enrolment of
advocates. Advocates are divided into two categories under Section 16 of the Advocates Act:
Senior Advocates and Other Advocates.
If the Supreme Court or a High Court believes that an Advocate's talent, standing at the Bar, or
unique knowledge or expertise in the law merit such distinction, the court may designate him as
a Senior Advocate with his consent. An Advocate is given this honour and privilege. A senior
Advocate's preeminence in the profession entails the highest duties, and they should serve as a
role model for the profession's younger members.
The requirements for designating an Advocate as a Senior Advocate in the Supreme Court and
their terms of practice are found in Order-iv, Rule-2 of the Supreme Court Rules,1966. Each
High Court has established its own set of procedures for appointing a Senior Advocate. In the
matter of a Senior Advocate's practice, the Bar Council of India has imposed the following
restrictions.
1. A senior Advocate may not file a vakalatanama, a memo of presence, a pleading, or an

application before any court, tribunal, or authority.
2. A Senior Advocate in the Supreme Court shall not appear in court unless accompanied by
an Advocate on Record in the Supreme Court.
3. A Senior Advocate in the High Court shall not present unless accompanied by an
Advocate from the state roll.
4. He shall not take directions to prepare pleadings or affidavits, or to perform any similar
drafting activity.
5. He shall not perform any conveyancing work of any type.
6. He shall not directly accept a client's case or directions to appear in any court or tribunal.
The registrar of the Supreme Court or the High Court, as the case may be, should notify all High
courts and the secretary of the State Bar Council and the Bar Council of India when an Advocate
is recognized as a Senior Advocate. The Advocate's name and the date on which he was
recognized as the Senior Advocate should be noted in the correspondence.
Advocates roll
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Every State Bar Council is required under Section 17 of the Advocates Act to establish and
maintain a roll of Advocates. It will be divided into two sections. The list of Senior Advocates is
in the first section, while the other Advocates are in the second. When more than one Advocate
enrols on the same day, their names will be put in the order of their seniority in age.
A person cannot register as an advocate with more than one Bar Council. For appropriate
reasons, a person whose name is enrolled in one state roll may appeal to the Bar Council of India
to have his name moved to another state roll. If there is no reasonable reason for the transfer or
disciplinary proceedings against him are pending, the application will be refused. When new
Advocates are added to the roll or names are removed from the roll, the State Bar Council shall
transmit an authorized copy of the Advocates Roll.
Certificate for enrollment
According to Section 22 of the Advocates Act, the State Bar Council shall provide a certificate
of enrollment in the proper form to any individual whose name is listed in the roll of Advocates
maintained by it under this Act. Any person whose name is on the state roll must notify the State
Bar Council concerned of any change in their place of business or permanent residence within 90
days.
Prerequisites for Enrollment
The Advocates Act, Section 24, stipulates the following requirements for becoming an
Advocate.
1. He must be an Indian citizen.
2. He had to be at least 21 years old.
3. He must have completed either a 3-year legal course ((regular university studies after
graduation) or a 5-year integrated law course after 10 +2. If the legal degree is from a
foreign university, it must be recognized by the Bar Council of India under the Advocates
Act.
4. He must pay an enrollment fee that the State Bar Council may impose.
5. He must also meet any additional requirements set down by the State Bar Council for
enrolling.
Disqualification of enrolment
Section 24 A provides for enrolment disqualification and, accordingly, The following people are
ineligible to become Advocates.
1. A person who has been convicted of a moral turpitude violation.

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2. A person convicted under the Untouchability (Offenses) Act of 1955.
3. A person who has been fired or removed from government employment due to an
accusation of moral turpitude. The disqualification becomes null and void two years after
his release from prison or removal from service.
4. A person found guilty in the foregoing instances and receiving benefits under the
Probation of Offenders Act, 1958 is not disqualified.
If an application for enrolment is denied on any of the aforementioned grounds of

disqualification, the State Bar Council must notify all other State Bar Councils of the fact,
including the applicant's name, address, and reasons for denial, and he will be barred from
applying for enrolment.
In Hani Raj L.Chulani v. Maharashtra Bar Council, it was determined that a person cannot
practise another profession in addition to the legal profession. As a result, a person with a legal
degree who works in another field is ineligible to become an Advocate. The Delhi High Court
ruled in Anees Ahmad v. University of Delhi that no full-time law professor earning a regular
salary can practice as an advocate and It was decided in Sathish Kumar Sharma v. Bar
Council of Himachal Pradesh that a full-time salaried law officer is not eligible to enrol as an
advocate.
Disposal of application for admission as an advocate
According to Section 26 of the Advocates Act, the State Bar Council shall send every
application for admission as an advocate to its enrollment committee, which shall, subject to any
written directives granted by the State Bar Council in this regard, dispose of the application in a
specified way. However, if the Bar Council of India is satisfied, either through a referral or
otherwise, that any person has obtained the role of an advocate through misrepresentation as to
an essential fact, fraud, or undue influence, the name of that person may be removed from the
role of advocate after allowing him to be heard.
Removal of name from the Roll
According to Section 26-A of the Advocates Act, the State Bar Council has the authority to
remove from the state roll the name of any advocate who has died and for whom a request has
been made.
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Disqualification and Removal of Names
The application for enrolment is scrutinised by the Enrolment Committee of the State Bar
Council. The State Council may refuse to admit an application provided that they shall refer the
application to Bar Council of India for their opinion.
The State Council shall intimate the Bar Council, its grounds for refusing the application. The
application shall be finally disposed in conformity with the opinion made by the Bar Council of
India.
Once a State Bar Council has refused to entertain an application for enrolment, the Council shall
intimate the details of the applicant, reasons for refusal etc to other State Bar Councils. And if
the requirements are met, the applicant will be admitted as an Advocate in the State Roll.
Within two years of enrolling with the State Bar Council, an enrolled advocate shall appear for
All India Bar Examination conducted by Bar Council of India. The exam is conducted twice in a
year. The Bar Council of India decides eligibility, syllabi, pattern, fees and marks required to
qualify the exam.
Once the exam is cleared by the candidate, Bar Council of India issues Certificate of Practice.
The All India Bar Examination is conducted by the Council to examine the practical knowledge
of an Advocate.
In the case of Archana Girish Sabnis v Bar Council Of India (2015) 4 SCC 498, the appellant
after the completion of professional course Licentiate of the Court of Examiners in
Homoeopathy medicines (LCEH), took admission to LL.B course conducted by University of
Mumbai. After the completion of LL.B course, she applied to Bar Council of Maharashtra and
Goa for enrolment as an Advocate.
But the Council referred her matter to the Bar Council of India for opinion regarding her
eligibility. And the Bar Council of India rejected her application because the qualifying degree
she obtained for joining LL.B was not recognised by the Bar Council of India.
She challenged the decision before Bombay High Court which opined that the Bar Council of
India has the independent power to recognize any equivalent qualification to a graduate degree
for the purpose of admission in the course of graduate degree in law.
The Supreme Court in an appeal upheld the decision of High Court. And it observed
that “Pursuing law and practicing law are two different things. One can pursue law but for the
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purpose of obtaining license to practice, he or she must fulfil all the requirements and
conditions prescribed by the Bar Council of India”
The Supreme Court in the case of V. Sudeer v. Bar Council of India AIR 1999 SC 1167 held
that the rule making power conferred to Bar Council under the Act doesn’t enable the Council to
impose additional restriction other than those mentioned in Section 24 on the eligibility of an
applicant who seeks enrolment.
Therefore the Court declared that the pre-enrolment training mandated by the Bar Council for
enrolling as an advocate cannot be entertained. However, the Court opined that the Parliament
can introduce an amendment to the Act which will strengthen the rule making power of Bar
Council in matters related with enrolment.
But this decision led to the massive enrolment of fresh law graduates who in fact lacked even
basic legal knowledge. So as per the decision in Sudeer’s case, Bar Council was not in a position
to add any additional criteria before enrolment of Advocates.
So they decided to conduct a post-enrolment exam to ensure the quality of newly enrolled
Advocates. Since the Bar Council is vested with the power to make rules relating to practise of
profession, post – enrolment examination of Advocates wouldn’t be overstepping of its
boundaries.
That is how the Bar Council decided to conduct All India Bar Examination from year 2010
onwards.
Disqualification for enrolment
Section 24A speaks about disqualification for enrolment. The section says that, no person shall
be admitted as an Advocate in a State Roll-
 If he is convicted for an offence involving moral turpitude.
 If he is punished for an offence under Untouchability (Offences) Act.
 If he was dismissed or removed from an employment or service under the State for an
offence involving moral turpitude.
However, such disqualification will cease to have effect after the lapse of two years since his
removal or dismissal or release. Also the Bar Council of India is empowered to remove the name
of a person from State Roll, if it is satisfied that he got his name entered through
misrepresentation or undue influence or fraud.
As per Section 30 of the Act, an Advocate whose name entered in a State Roll shall have a right
to practise-
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 In all courts including Supreme Court.
 Before any tribunal or person legally authorised to take evidence.
 Before any other authority or person before whom such advocate is entitled to practise
under any law for the time being in force.
But as per Supreme Court Rules, only an Advocate on Record can appear, plead and address the
Supreme Court.
Nevertheless, High Courts are empowered to make rules regarding the conditions as to which an
Advocate shall be permitted to practise before such High Court and Courts subordinate to it.
The rules made by Bar Council of India under Section 49 (1) (ah) of the Act provide that an
Advocate who voluntarily suspends his practice for any reason whatsoever shall intimate the
matter to State Bar Council.
The intimation shall be done through a registered post, accompanied with the certificate of
enrolment. An Advocate who wants to resume his practice after suspension shall apply to the
Secretary of State Bar council. It shall be accompanied by an affidavit stating whether he has
incurred any disqualification during the period of suspension.
The application will be scrutinised by the Enrolment Committee. If the application is accepted,
the certificate surrendered by the applicant will be returned to him. If the Committee thinks that,
the applicant has incurred any disqualification it shall refer the matter to Bar Council of India.
Bar Council Rules provide that a practising Advocate shall not engage in any other employment.
The rule originates from the notion that legal profession requires full attention from a person
who intends to practice it. It is a reputed profession which one cannot do as a side business.
However an Advocate can be a sleeping partner, part of a business entity as long as he doesn’t
participate in its management, holder of an inherited property etc.
Professional misconduct
Every profession has to maintain its dignity and some kind of responsible behaviour is expected
from persons engaged in a profession. And legal profession is no exception.
Advocates have duty towards court, client, colleagues, society etc. He/she is bound to fulfil them
while keeping the dignity of the profession. So any improper conduct from an advocate or an
irresponsible behaviour from the part of him may be called as professional misconduct.
The preamble to rules under Section 49 (1) (c) of the Act says that-
“An advocate shall, at all times, comport himself in a manner befitting his status as an officer
of the Court, a privileged member of the community, and a gentleman, bearing in mind that
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what may be lawful and moral for a person who is not a member of the Bar, or for a member
of the Bar in his non-professional capacity may still be improper for an advocate. Without
prejudice to the generality of the foregoing obligation, an advocate shall fearlessly uphold the
interests of his client and in his conduct conform to the rules hereinafter mentioned both in
letter and in spirit”
Section 35 of the Act prescribes the punishment for misconduct. If upon receipt of a complaint or
otherwise a State Bar Council has reason to believe that an advocate enrolled in its roll has been
guilty of professional or any other misconduct, it shall refer the matter to disciplinary committee.
The disciplinary committee after hearing the parties may issue any of the following orders;
 Dismiss the complaint.
 Reprimand the Advocate.
 Suspend the Advocate from practice for such period as it may deem fit.
 Remove the name of such Advocate from its roll.
If an Advocate who is not enrolled with any State Bar Council has been alleged with professional
misconduct, the matter shall be disposed by the disciplinary committee of Bar Council of India.
Also any person aggrieved by the order of disciplinary committee of State Bar Council may
appeal to the Bar Council of India. An appeal from the orders of Bar Council of India shall lie to
the Supreme Court.
In the case of George Frier Grahame Vs. Attorney-General, AIR 1936 PC 224 the privy
council accepted the following definition of professional misconduct-
“If it is shown that an Advocate in the pursuit of his profession has done something with
regard to it which would be reasonably regarded as disgraceful or dishonourable by his
professional brethren of good repute and competency, then it is open to say that he is guilty of
professional misconduct”( Darling J. in Re A Solicitor ex parte the Law Society, (1912) 1 KB
302.
In the case of Supreme Court Bar Association v Union Of India (1998) 4 SCC 409, an
Advocate practising in the Supreme Court was suspended for three years in relation to the
contempt proceedings initiated against him. The suspension order was passed by the Court in
exercise of the powers conferred under Article 129 and 142.
Aggrieved by the order, the Supreme Court Bar Association moved a writ petition. While
deciding the petition, the Court observed that-
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“Punishing a contemner advocate, while dealing with a contempt of court case by suspending
his licence to practice, a power otherwise statutorily available only to the Bar Council of India,
on the ground that the contemner is also an advocate, is, therefore, not permissible in exercise
of the jurisdiction under Article 142.”
The power to suspend the right to practice of an Advocate for professional misconduct is vested
with Bar Councils. Only when an appeal is filed against the order of Bar Council under Section
38, Supreme Court can decide the matter.
However, if the Supreme Court has already given reference to the Bar Council to invoke
proceedings against the Advocate for professional misconduct and if the Bar Council fails to do
so, it is open for the Court to decide the matter under Section 38. Also such power is only
available to Supreme Court.
In the case of M. Veerabhadra Rao vs Tek Chand 1985 AIR 28 , the Supreme Court observed
that an Advocate who forged documents and misled an Income Tax Officer to issue income tax
clearance certificate , is guilty for gross professional misconduct. He was ordered to be
suspended for five years from practising as an Advocate.
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Rights of Advocates
In India, an advocate has the following rights:
Right to practice (Section 30) and freedom of expression and speech:
 From the perspective of the legal profession, the term ‘right to practise’ refers to an
exclusive right granted to advocates to represent clients in court and before tribunals.
There are two levels of protection for the right to practise, and they are as follows:
1. Protection in General: Article 19(1)(g) of the Indian Constitution safeguards

each person’s right to engage in whatever practice they choose.
2. Specific Protection: According to Section 30 of the Advocates Act, 1961, a

person registered with a State Bar Council is entitled to practice law before any
court or body in India, including the Supreme Court.
 The Central Government made it effective recently by issuing a notification. An advocate

who is registered with the Bar Council of India is granted the only authority to practise
law in courts.
 If an advocate is speaking during practice, no one may interrupt them unless they are
violating the court’s rules and regulations.
 The freedom of speech and expression is guaranteed by Article 19(1)(a) of the Indian
Constitution. All Indian citizens are entitled to this fundamental right. Even in a court of
law, an advocate has the freedom to speak and express oneself.
Pre-audience rights:
 A court of law must provide an advocate with the opportunity to speak first, according
to Section 23 of the Advocates Act.
 Advocates have the right not to be interrupted before their statement is completed. This
provision is employed as an advocate’s privilege as well as a right to pre-audience rule.
The right to be heard comes first and foremost. The person in the top position in the
hierarchy is given the right to advocacy by the law.
 In India, the following is the preferred hierarchy system:
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1. Attorney General
2. Solicitor General
3. Additional Solicitor General
4. The Second Additional Solicitor General
5. Advocate General of the State
6. Senior advocates
7. Other advocates
 This is the hierarchy of advocacy used in India. In the absence of another advocate, the
attorney general has the right to represent himself in court. In accordance with this rule,
an advocate is also permitted to speak in front of the courtroom audience and to represent
his client in front of a judge.
Right of opposition to arrest:
 All advocates are guaranteed under Section 135 of Civil Procedure Civil, 1908 that they
won’t be detained while travelling to or from a tribunal or court on another subject, with
the exception of cases involving criminal charges and contempt of court.
 In certain situations, the police are not allowed to detain a civil advocate. An advocate is
referred to as an officer of the court.
Right to appear in any court:
 All advocates are permitted to practise in any Indian court or tribunal, according to
Section 30 of the Act.
 They have the right to enter the court or tribunal even if they haven’t registered with that
particular tribunal or court.
 No matter if they are representing a client or not, an advocate may enter the courtroom
and take any seat to watch the proceedings. An advocate may also enter the Supreme
Court and observe the proceedings.
Right to see an accused person in jail:
 There is no restriction on how often an advocate can visit a client who is being held in
jail. Advocates are even permitted to see their clients every day in jail.
 According to the law, a person is deemed innocent unless proven guilty. As a result, it is
essential for an advocate to fully understand the case by meeting with his client—even
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while they are in custody—to discuss the important details and related documents so that
they can effectively argue the case in court.
Right to professional communication:
 Communication between an advocate and his client must be regarded as professional

communication under Section 126 of the Indian Evidence Act,1872. Such communication
shall not be disclosed.
The right to protect the secrecy of communications:
 An advocate has exclusive rights under Section 129 of the Indian Evidence Act of 1872.
The advocate has the right to protect the confidentiality of his client’s communications.
 The advocate is not required to disclose to anybody the conversation he and his client had
on the matter.
 According to Section 129 of the Indian Evidence Act of 1872, no one is allowed to
pressure an advocate into disclosing the conversations he has with his client.
Right to pay a fee:
 According to Rule 11 of Chapter 2 of Part VI of the Rules of the Bar Council of India, an
advocate is entitled to get payment when he provides or renders services to a client.
According to his position at the bar, he can exercise this right.
 Right to Lein
o R.D. Saxena vs Balram Prasad AIR 2000 SC 2912 dealt with the issue whether
an advocate had a lien for his fees on the litigation papers entrusted to him by his
client.
Court held:
In the conditions prevailing in India with lots of illiterate people among the litigant
public it may not be advisable also to permit the counsel to retain the case bundle for
the fees claimed by him. Any such lien if permitted would become susceptible to great
abuses and exploitation.
Right with respect to vakalatnama:
 The advocate has the right to solely represent his client in that particular matter after
a vakalatnama is signed in his name. An advocate also has the authority to support the
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public prosecutor in court and submit a note of appearance on behalf of a defendant for
whom he is not counsel.
Right to refuse a case:
 An attorney has the authority to decline to represent a client in a lawsuit involving illegal
activity.
DUTIES OF AN ADVOCATE
An advocate must perform the following duties:
An advocate’s obligations to the client:
 An advocate’s obligation is to take client briefs and to charge a fee that is comparable to
that of other attorneys at the same bar and appropriate to the circumstances of the case.
The advocate may provide an explanation for why a specific brief was rejected.
 An advocate has a duty to decline cases or briefs where he would testify as a witness.
Similarly, if the advocate has notice of testifying as a witness throughout the course of
events, he should not proceed with the case.
 Once the client has consented to have the advocate represent them, the advocate has an
obligation to do so. In order to withdraw a case, he must provide the clients with a good
explanation and adequate notice. He will refund the customer for a portion of the fee that
was not collected.
 The responsibility of an advocate is to deliver the best advice to the best of his abilities.
 It is crucial that the advocate provides the client with complete and honest disclosures of
the parties and their interest in the controversy.
 When handling a client’s case, an advocate needs to be cautious.
 When a party has received legal advice from an advocate, the advocate should not
participate in the lawsuit since he is now the party’s opponent. An advocate must either
withdraw the case or transfer it to another counsel in such a situation.
 An advocate is expected to maintain track of any client funds entrusted to him and
provide a copy of that record upon request.
 An advocate is required to uphold the confidentiality clause and not reveal the client’s
private information.
An advocate’s obligations to the court
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 An advocate must always treat the legal system and courts with respect.
 An advocate must maintain his or her dignity and self-respect.
 It is the duty of an advocate to refrain from using any unlawful or inappropriate measures
to influence the court’s judgement and to allow it to be made without bias.
 Advocate has a responsibility to present themselves in court in the appropriate attire.

Except in the courtroom, he or she is not authorised to dress in a band and gown.
 Advocates are not permitted to represent a close relative as a member of their family in
court or before a tribunal.
 Advocates must not conduct a prosecution in such a way that an innocent person is
knowingly convicted.
Punishments provided under the Advocate Act, 1961
Punishment of advocates in case of misconduct (Section 35):
Section 35 of the Act specifies the penalties for misconduct by advocates.
 It specifies that when a complaint is received or a State Bar Council has grounds to
suspect that any advocate listed on its register has engaged in professional or other
misconduct, it must send the matter to its disciplinary committee for resolution.
 The State Bar Council’s disciplinary committee would be required to set a hearing date,
as well as arrange for notice to be sent to the State’s advocate general and the involved
attorney.
 The disciplinary committee shall provide the advocate and the advocate general an
opportunity to be heard and shall make any instructions from the following categories:
 The complaint or procedures filed at the instance of the State Bar Council where the
complaint was submitted must be dismissed; the committee may also reprimand the
advocate.
 The committee has the authority to bar an advocate from practising for as long it sees
suitable and to have their name removed from the state list of attorneys.
 An advocate whose licence to practice law has been suspended is not permitted to appear
before any Indian court, government agency, or person during the suspension period.
Penalty for illegal practice in courts and before other authorities (Section 45):
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The consequences for engaging in the illegal practice in court or before other authorities are
outlined in Section 45. Any individual who practises in any court, before any authority, or before
any person who is not authorised to practise under this Act shall be imprisoned for six months.
CASE LAWS
Ex. Capt. Harish Uppal v. Union of India, (2002) Writ Petition (civil) 132 of 1988
The Supreme Court of India has held in this landmark decision that lawyers do not have the
power to strike or call for a boycott of the court.
Facts of the case
According to the facts, the petitioner is an ex-Army officer. The petitioner was assigned to
Bangladesh in 1972, after which he was charged with theft and appeared before an Indian
military court. He spent two years behind bars. He requested an audit of the case through a pre-
affirmation application in a civil court, and after an 11-year delay, when the survey’s limitation
period had passed, he received a response from the judge. Documents and the application were
found to have been missing following a violent strike by lawyers. The petitioner submitted a
special petition to declare unlawful advocates’ strikes.
Issues involved
The question is whether lawyers have the right to strike.
Judgement of the case
The Supreme Court of India decided that attorneys do not have the power to call for a boycott of
the court or to go on strike, not in a purely symbolic way. On the other hand, lawyers have the
choice to peacefully protest outside the court building and away from its premises by making
press statements, participating in TV interviews, adhering to the rules for court premises, posting
additional notices, wearing armbands in black and white, or any other shade, holding dharnas,
etc.
Pratap Chandra Mehta v. State Bar council of M.P & Ors, (2011) CIVIL APPEAL
NO.6482 OF 2011
Facts of the case
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In this case, the State Bar Council of Madhya Pradesh established regulations that went beyond
the power given to them under Section 15 of the Advocates Act, 1961. The State Bar Council’s
power to create rules is not connected to the power given under Section 15 of the Act by Rules
121 and 122A. The Parliament passed the Advocacy Act, giving the State Bar Council the
authority to draft and carry out the requirements of Section 15 of the Act. With the Bar Council
of India’s consent, the State Bar Council published and amended the State Bar Council MP
Rules.
Issues involved
The question is whether Rules 121 and 122A of the MP Rules are ultra vires to Section 15 of the
Advocates Act, 1961, which got approval from the Bar Council of India.
As a result, the court decided that Rules 121 and 122A of the MP Rules are valid because the Bar
Council of India approved them. In order to uphold democratic values and the high ethical
standards of an advocate, the State Bar Council must conduct itself in a democratic manner. The
power of these rules does not exceed or broader than that permitted under Section 15 of the Act.
The court also held that the rules of the M.P. State Bar Council are unambiguous and that the Bar
Council of India has approved the revised rules.
K.Anjinappa v. K.C. Krishna Reddy, (2021) CIVIL APPEAL NO. 7478 OF 2019
Facts of the case
In this case, the Disciplinary Committee of the Bar Council of India issued an impugned order
dismissing the appellant’s complaint against his advocate. The complaint was first filed with the
State Bar Council of Andhra Pradesh. The case was rejected by the Bar Council of India’s
disciplinary body because it was not maintainable. Advocates did not resolve the complaints
within a year. The complaints were intentionally kept pending for more than a year; therefore,
they were transferred to the Bar Council of India as provided. The appellant filed an appeal
against his advocate under Section 35 of the Advocates Act for professional misconduct.
Issues involved
Whether the appeal under Section 35 of the Advocates Act is valid against the advocate.
The appeal against the advocate under Section 35 of the Advocates Act was thus denied by the
Supreme Court.
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2.1 & 2.3 Reading Material
Bar Council - Establishment and Origin Powers and Functions
2.1 Introduction – Establishment and Functions
2.3 Bar Council of India – Powers and Function
1950
After the Constitution of India came into force on January 26, 1950, the Inter-University Board
at its annual meeting held in Madras, passed a resolution stressing the need for an all-India bar
and emphasising the desirability of having uniformly high standards for law examinations in
different Universities of the country in view of the fact that a Supreme Court of India had been
established.
In May 1950, the Madras Provincial Lawyers Conference held under the presidency of Shri S.
Varadachariar resolved that the Government of India should appoint a committee for the purpose
of evolving a scheme for an all-India Bar and amending the Indian Bar Councils Act to bring it
in conformity with the new Constitution.
At its meeting held on October 1, 1950, the Bar Council of Madras adopted that resolution.
1951
Shri Syed Mohammed Ahmad Kazmi, a Member of Parliament, introduced on April 12, 1951, a
comprehensive bill to amend the India Bar Councils Act.
The Government of India took the view that in the changed circumstances of independence, a
comprehensive Bill sponsored by the Government was necessary. In August 1951, the then
Minister of Law announced on the floor of the House that the Government of India was
considering a proposal to set up a Committee of Inquiry to go into the problem in detail. The
Committee was constituted and asked to examine and report on:
1. The desirability and feasibility of a completely unified Bar for the whole of India,
2. The continuance or abolition of the dual system of counsel and solicitor (or agent) which
obtains in the Supreme court and in the Bombay and Calcutta High Courts,
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3. The continuance or abolition of different classes of legal practitioners, such as advocates of
the Supreme Court, advocates of the various High Courts, district court pleaders, mukhtars
(entitled to practice in criminal courts only), revenue agents, and income-tax practitioners,
4. The desirability and feasibility of establishing a single Bar Council for (1) the whole of India
and (2) for each State,
5. The establishment of a separate Bar Council for the Supreme Court,
6. The consolidation and revision of the various enactments (Central as well as State) relating
to legal practitioners, and
7. All other connected matters.
This All India Bar Committee was headed by the Hon’ble Shri S. R. Das, Judge, Supreme Court
of India. The Committee consisted of the following members:
1. Shri M. C. Setalvad, Attorney General of India,
2. Dr. Bakshi Tek Chand, retired High Court Judge,
3. Shri V. K. T. Chari, Advocate-General of Madras,
4. Shri V. Rajaram Aiyar, Advocate-General of Hyderabad,
5. Shri Syed A, Kazmi, M.P., Advocate, Allahabad,
6. Shri C. C. Shah, M.P., Solicitor, Bombay, and
7. Shri D. M. Bhandari, M.P., Advocate, Rajasthan High Court.
1953
The All India Bar Committee submitted its detailed report on March 30, 1953. The report
contained the proposals for constituting a Bar Council for each state and an All-India Bar
Council at the national level as the apex body for regulating the legal profession as well as to
supervise the standard of legal education in India.
Meanwhile, the Law Commission of India had been assigned the job of preparing a report on the
reforms of judicial administration.
1961
To implement the recommendations of the All-India Bar Committee and taking into account the
Law Commission’s recommendations relating to the legal profession, a comprehensive
Advocates Bill was introduced in the Parliament which resulted in the the Advocates Act, 1961.
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The Bar Council of India is a statutory body created by Parliament to regulate and represent the
Indian bar. They perform the regulatory function by prescribing standards of professional
conduct and etiquette and by exercising disciplinary jurisdiction over the bar. They also set
standards for legal education and grants recognition to Universities whose degree in law will
serve as qualification for enrolment as an advocate.
In addition, they perform certain representative functions by protecting the rights, privileges and
interests of advocates and through the creation of funds for providing financial assistance to
organise welfare schemes for them.
The Bar Council of India was established by Parliament under the Advocates Act, 1961. The
following statutory functions under Section 7 cover the Bar Council’s regulatory and
representative mandate for the legal profession and legal education in India:
1. To lay down standards of professional conduct and etiquette for advocates.
2. To lay down procedure to be followed by its disciplinary committee and the disciplinary
committees of each State Bar Council.
3. To safeguard the rights, privileges and interests of advocates.
4. To promote and support law reform.
5. To deal with and dispose of any matter which may be referred to it by a State Bar Council.
6. To promote legal education and to lay down standards of legal education. This is done in
consultation with the Universities in India imparting legal education and the State Bar Councils.
7. To recognise Universities whose degree in law shall be a qualification for enrolment as an

advocate. The Bar Council of India visits and inspects Universities, or directs the State Bar
Councils to visit and inspect Universities for this purpose.
8. To conduct seminars and talks on legal topics by eminent jurists and publish journals and
papers of legal interest.
9. To organise legal aid to the poor.
10.To recognise on a reciprocal basis, the foreign qualifications in law obtained outside India for
the purpose of admission as an advocate in India.
11.To manage and invest the funds of the Bar Council.

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12.To provide for the election of its members who shall run the Bar Councils.
The Bar Council of India can also constitute funds for the following purposes:
1. Giving financial assistance to organise welfare schemes for poor, disabled or other
advocates,
2. Giving legal aid, and
3. Establishing law libraries.
The Bar Council of India can also receive grants, donations, and gifts for any of these purposes.
BAR COUNCIL OF INDIA UNDER THE ADVOCATES ACT, 1961 READ WITH BCI
RULES:
The statutory powers and functions of the BCI as conferred by means of the Advocates Act,
1961 as well as the BCI Rules are two fold;
First, to supervise the centres of legal education functioning all over the country and the students
enrolled therein, inter-alia by laying down the standards of curriculum, standards of
infrastructure, number and qualification of faculties, recognition of centres of legal education
(Law Schools/Colleges) based upon the standards laid down by BCI and;
Secondly, to prescribe a uniform qualification for the admission of persons to be advocates and
to further regulate the entry and over all conduct of Advocates in the profession by laying down
standards of professional conduct and etiquettes for advocates.
Section 7 of Advocates Act provides for the functions of the Bar Council of India, subsection
1(c) whereof provides for laying down standards of professional conduct and etiquette for
advocates and sub-section 1(d) mandates to safeguard the rights, privileges and interests of
advocates.
Section 7(1)(h) of the Advocates Act, 1961 provides for promotion of legal education and to lay
down the standards of such education.
Section 7(1)(l) vests BCI with the power to perform all other functions conferred on it by or
under this Act.
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Section 7(1)(m) further vests BCI with the power to do all other things necessary for discharging
the functions enumerated under Section 7 of the Act.
Section 10(2)(b) confers the power upon BCI to constitute a Legal Education Committee.
Sections 16 – 28 under Chapter III of the Advocates Act prescribe the admission and enrollment
of Advocates and the power of the BCI and State Bar Councils to frame Rules in this regard.
The provisions of Sections 29, 30 and 33 of the Advocates Act do not confer an unfettered right
on advocate to practice the profession of law. The entitlement under Section 29 and right granted
under section 30 of the Act are subject to the provisions of the Act as well as the Rules framed
thereunder.
Section 49 (ag) of the Act provides that the BCI may make rules for discharging its functions
under this Act to prescribe the Class and Category of persons entitled to be enrolled as an
Advocate.
Section 49 of the Act provides general power to the BCI to make rules for discharging its
Functions under this Act.
Part IV of the BCI Rules provides for Rules on standards of legal education and recognition of
degrees in law for the purpose of enrolment as advocate and inspection of Universities for
recognizing its degree in law in consultation with Universities and State Bar Councils. The Legal
Education Committee (LEC) is chaired by a former Judge of Hon’ble Supreme Court and has 2
sitting Chief Justices of the High Courts, 5 noted academicians including 4 Vice Chancellors of
National Law universities and premier Government Universities and eminent senior advocates
apart from 5 members of the BCI.
In Bar Council of India vs. Bonnie FOI Law College & Ors., S.L.P. (C) No. 22337 of 2008
the Hon'ble Supreme Court had sought to address an issue of enormous contemporary
importance: the inspection, recognition and accreditation of law colleges by the Bar Council of
India. Vide order dated 29th June 2009, the Hon'ble Supreme Court noted with concern the
diminishing standards of professional legal education provided at various Law Colleges across
the country, and, in particular, identified the quality and standard of infrastructure, library and
faculty as core areas that need to be redressed, along with the pay and remuneration offered to
the faculty members by Law Colleges. The order dated 29th June 2009 in this regard is as
follows:-
The relevant portion of the Supreme Court's order reads as follows:
"The entire future of the legal profession depends on ultimate product of these Law Colleges.
Looking to the gravity and seriousness of the matter, we request the learned Solicitor General
and President of the Bar Association and the Chairman, Bar Council of India to look into the
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matter seriously and submit a report to this Court as expeditiously as possible. They would be at
liberty to associate experts or any other person which they deem it appropriate."
The 3-Member Committee was, therefore, to examine issues concerning the manner of affiliation
and recognition of Law Colleges by the Bar Council of India, identifying areas which require
redressal, and also addressing factors impeding the implementation of the norms already in
place. I state that the 3-Member Committee submitted a draft Report to the Hon'ble Supreme
Court on 6th October 2009, wherein the Hon'ble Supreme Court was pleased to direct that the
Report be placed before the Bar Council of India for consideration. The Report was, therefore,
tabled before the Bar Council of India which, vide Resolution dated 24th October 2009,
approved the Report unanimously subject to one amendment: it was the suggestion of the Bar
Council that all law schools and colleges should be mandatorily required to establish legal aid
clinics/centres to provide inexpensive and expeditious legal advice to the needy sections of our
society. The said suggestion was incorporated by the 3-member Committee in its Report. I state
that the Final Report of the 3-Member Committee on Reform of Legal Education was submitted
to the Hon'ble Supreme Court on 10th November 2009 and was accepted by the Court. The
Court was pleased to observe as follows:
"In our considered view, the recommendations given by the Committee would go a long way in
improving the quality of legal education. We fully agree with the recommendations of the report
Consequently, we direct the Central Government to take immediate steps to implement the final
report submitted to this Court by the learned Solicitor General of India." I ‘state that the Hon'ble
Supreme Court was, in particular, pleased to accept the recommendation of the 3-Member
Committee with respect to the conduct of an All India Bar
Examination and directed, vide order dated 14th December 2009, as follows:
"... The most significant achievement of this entire exercise has been the introduction of the Bar
Examination. Learned Solicitor General submits that the first Bar Examination shall be
conducted in July-August, 2010 by a specially constituted independent body, consisting of
experts of various disciplines of national stature.
In the facts and circumstances of this case, we deem it appropriate to direct the Central
Government to ensure that the entire programme framed by the three-member Committee is
operationalized forthwith. We further direct the concerned institutions to fully cooperate with the
Bar Council of India..."
Bar Council of India, in compliance with the directions passed by the Hon'ble Supreme Court,
has framed the Bar Examination Rules under the provisions of Section 49(i) (ah) of the
Advocates Act, 1961, which enable the Bar Council of India to frame rules prescribing the
conditions subject to which an advocate shall have the right to practice and the circumstances
under which a person shall be deemed to practice as an advocate in a court.
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The said Rules have been framed by the Bar Council after exhaustive deliberations with various
stakeholders and consideration of representations made by numerous students currently pursuing
a degree in law.
All India Bar Examination
The All India Bar Examination were considered and approved by the Bar Council of India at its
meeting held on 30th April 2010, wherein it was decided by the Council that the examination
shall be mandatory for all law students graduating from the academic year 2009-2010 onwards,
and that candidates may apply to appear in the examination only after enrolling as advocates
under Section 24 of the Advocates Act, 1961.
The Sole intention of the AIBE examination was to improve the standard of legal profession;
therefore, AIBE examination is not relevant for those who are not interested to enter into the
legal profession. Therefore, those candidates, who are not interested in practicing the law, cannot
be exempted from obtaining enrolment before State Bar Council for appearing in the AIBE. The
candidate will be awarded certificate of practice after clearing the examination and is eligible to
practice in any court in India. The exam is conducted in national and regional languages.
All India Bar Examination is certification exam conducted twice a year by Bar Council of India
for law graduates willing to start practice of profession as Lawyer. The exam is conducted in 50
cities having 140 centres as an open book exam. The exam is conducted to assess basic level
knowledge of a member and lay down minimum benchmark for entering into practice of law in
addition to assessing candidate's analytical skills. After clearing All India Bar Examination, the
candidate is awarded certificate of practice by Bar Council of India. Qualified member in the
exam can attend court hearings in any tribunals courts and administrative bodies. The exam is in
multi-choice model and conducted offline in 3 and half hours duration. the All India Bar
Examination is a post-enrolment examination where persons are initially said to be provisionally
enrolled on an undertaking that they will pass the exam within 2 years of said enrolment. The
concept of provisional enrolment and the undertaking was brought in through the BCI Resolution
dated 12.04.2013. However, as a result of BCI Resolution dated 31.01.2017, it has been clarified
that while the right to practice would only be for two years under a provisional enrolment, the
said person can continue to take the Bar Examination as many times as is possible. The result
therefore is that any person who is provisionally enrolled is allowed to practice for two years, but
is allowed to take the exam not just for two years but for any number of times till he passes the
exam while the date of reckoning seniority is from the date of the provisional enrolment.
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2.2 State Bar Council – Powers and Function
Structure of State Bar Councils
Section 3 of the Advocates Act mandates that there shall be a Bar Council for every state, and it
shall be called as Bar Council of that state.
As per Section 5 of the Act, every Bar Council shall be a body corporate with perpetual
succession and common seal. It can acquire and hold properties. It can sue or be sued.
There shall be a Chairman and Vice Chairman of each Bar Council elected by the Council. The
Advocate – General of a state shall be ex-officio member of that State Bar Council.
There shall be fifteen members in a State Bar council if the electorate doesn’t exceed five
thousand. And it becomes twenty if the electorate ranges between five thousand and ten
thousand.
There shall be twenty five members in the Council if the number exceeds ten thousand. The
members of the Council are elected through system of proportional representation by means of
the single transferable vote from amongst Advocates on the electoral roll of the State Bar
Council.
As per Section 8 of the Act, the tenure of a member shall be five years from the date of
publication of the result. But if the Council fails to conduct an election before the expiry of the
term, it may extend such tenure by a maximum of six months by recording reasons in writing.
As per Section 10B of the Act, an elected member to the council may be disqualified on the
grounds that he was absent in consecutive meetings or his name is removed from roll of
Advocates or he is disqualified under any rules prescribed by Bar Council of India.
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.
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 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.
Committees
Various Committees may be constituted by the State Bar Councils for discharging certain duties.
Such as:
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Disciplinary Committee
The disciplinary committees are constituted to deal with the cases of professional misconduct of
Advocates. The Council may constitute one or more disciplinary committees. It shall consist of
three persons in out of which two persons shall be members of the Council and the remaining
one being selected from the non-member Advocates.
The senior most among the members of the Committee shall be the Chairman of the Disciplinary
Committee.
The Disciplinary Committee shall have the same power as that of a civil Court in matters relating
to the disposal of disputes relating to professional misconduct.
Legal Aid Committee
One or more legal aid committees may be constituted by the Council. It shall have minimum five
members; however it cannot exceed nine.
The Legal Aid activities of the Council are monitored, conducted by the committee. The Council
prescribes the qualifications required for the members from time to time.
Executive Committee
It shall consist of five members and they are elected by the Council amongst its members.
Enrolment Committee
There must be three members in the enrolment committee who shall be elected from the
members of the Council. A State Bar Council shall refer every application for admission as an
advocate to its enrolment committee and it shall decide on the same.
Standing Committees
 Executive committee which shall consist of nine members elected amongst the members
of the Council.
 Legal Education Committee which shall consist of ten members. Five out of ten members
shall be elected by the Council from its members and the remaining five shall be co-opted
by the council from non-member Advocates.
Every Bar Council and every committee other than Disciplinary Committee shall follow the rules
of procedure in regard to transaction of businesses at their meeting. The meeting shall be
convened at the headquarters of the Bar Council except that of Disciplinary Committee.
Power of Bar Councils to make Rules
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Every State Bar Council has the power to make rules regarding the following matters:
 The election of members of the Bar Council. This will include the manner of conducting
election, eligibility to cast postal vote, manner of publishing results etc.
 The manner of election of the Chairman and the Vice-Chairman of the Bar Council.
 Deciding the validity of elections.
 The filling of casual vacancies in the Bar Council.
 The powers and duties of the Chairman and the Vice Chairman.
 Constitution of funds.
 Organisation of legal aid to the poor, constitution of committees and sub committees for
the purpose.
 Summoning the meeting of the Bar Council, Conduct of Business, deciding the number
of persons to constitute quorum.
 The qualifications and the conditions of service of the secretary, the accountant, and other
employees of the Bar Council.
 The maintenance of books of accounts and other books by the Bar Council.
 The appointment of auditors and the audit of the accounts of the Bar Council.
 The management and investment of the funds.
Rules made by the State Bar Councils are effective only when it is approved by the Bar Council
of India.
Maintenance of rolls
As per Section 17 of the Act, every State Bar Council shall prepare and maintain a roll of
Advocates. It shall contain the names and addresses of the Advocates.
The roll shall consist of two parts. The first part shall include the details of senior Advocates and
the second part shall include the details of other Advocates. No person shall be enrolled as an
Advocate in more than one state roll.
But a person can file an application before the Bar Council of India to transfer his name from roll
of one state to another nevertheless he will retain the same seniority. The State Bar Council may
issue a certificate of enrolment to Advocates whose name is entered in the roll.
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In the case of Bar Council of Delhi & Anr. vs Surjeet Singh And Ors 1980 AIR 1612 the
Supreme Court observed that it is manifest that under the Advocate’s Act the qualifications and
conditions entitling an Advocate to vote at an election or for being chosen as a member of the
State Bar Council has to be prescribed by the Bar Council of India. The State Bar Council has no
such power.
The power of the State Bar Council is merely to prepare and revise from time to time the
electoral roll subject to the Rules made by the Bar Council of India concerning the qualifications
and conditions aforesaid. The Rule making power of the State Bar councils does not override the
powers conferred to Bar Council of India. Even though Bar Council of India can approve the
rules made by the State Bar Councils, rules which are ultra vires to the parental Act cannot be
ratified.
In the case of Pratap Chandra Mehta vs State Bar Council of M.P.& Ors(2011) 9 SCC
573 the Supreme Court observed that “This is an Act which has been enacted with the object
of preparing a common roll of advocates, integrating the profession into one single class of
legal practitioners, providing uniformity in classification and creating autonomous Bar
Councils in each State and one for the whole of India. The functioning of the State Bar
Council is to be carried out by an elected body of members and by the office-bearers who have,
in turn, been elected by these elected members of the said Council. The legislative intent
derived with the above stated objects of the Act should be achieved and there should be
complete and free democratic functioning in the State and All India Bar Councils. The power
to frame rules has to be given a wider scope, rather than a restrictive approach so as to render
the legislative object achievable.”
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2.4 Bar Councils and Observance of Principles of Natural Justice
Indian Constitution and Principles of Natural Justice
The Indian Constitution does not use the expression ‘Natural Justice’ anywhere. However, the
following parts of the Constitution with their respective expressions convey the idea of Natural
Justice.
 Preamble: ‘Social, Economic and Political’ justice, liberty of belief, thought, worship,
and equality of opportunity and status
 Article 14: Equal protection of the law for all citizens of India and equality before law
 Article 21: Right to liberty and life
 Article 22: Provision of fair hearing for an arrested person
 Article 39-A: Free legal services for disabled and indignant people
 Article 311: Constitutional protection for civil servants
 Article 32, 136, and 226: Constitutional solutions for violations of fundamental rights
Two Principles of Natural Justice
There are mainly two Principles of Natural Justice. These two Principles are:
 ‘Nemo judex in causa sua’. No one should be made a judge in his own cause, and the
rule against bias.
 ‘Audi alteram partem’ means to hear the other party, or no one should be condemned
unheard.
Rule Against Bias or Nemo Judex In Causa Sua
“No one should be a judge in his own case” since it directs to the rule of biases. Bias signifies an
act that leads to an unfair job, whether in an unconscious or conscious phase about a specific
case or the party. Hence, this rule reinforces impartiality in a judge impartially and ensures that
the judgement delivered is solely based on the evidence available for a case.
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Nemo Judex In Causa Sua signifies rule against bias. This is the first principle of natural justice
that states no individual should be a judge in his own cause, or a deciding power must be neutral
and impartial when examining any case.
Type of Bias
Personal Bias
Personal bias originates from a relation between a deciding authority and the party. This can
place the deciding administration in a questionable situation to undertake an unfair act and
deliver judgement in his person’s favour.
Pecuniary Bias
In case there is any kind of financial interest on the judicial body’s part, notwithstanding the
amount, it will lead to biases for the administrative authority.
Subject Matter Bias
This bias is applicable when the deciding administration falls under the subject matter of a
specific case, directly or indirectly.
Policy Notion Bias
Issues emerging from preconceived policy notions is a very dedicated problem. The mob in a
courtroom does not anticipate judges to deliver a fair judgement and trial with a clean sheet of
paper.
Other Bias are:
• Preconceived Notion Bias
• Departmental Bias or Institutional Bias
• Bias on account of the Obstinacy
Audi Alteram Partem (Rule of Fair Hearing)
It comprises 3 Latin words, which simply means that a person can receive punishment or
conviction without having a civil and fair chance of being heard. In simple words, this rule states
that both parties must have the chance to represent their viewpoints, and authorities should
conduct a fair trial accordingly. This is a significant rule of natural justice as it prevents
authorities from subjecting any individual to punishment without a sound and valid ground. A
person should get prior notice, so he knows about all the charges against him in advance, and
prepare accordingly. This is also called a rule of fair hearing. The constituents of fair hearing do
not remain fixed. It varies across authorities and cases.
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The principle of natural justice has been followed and adopted to save public rights against
random arbitrary decisions by the administrative authority. Therefore, an individual can easily
see that the rule of natural justice includes the concept of fairness and honesty: they stay alive
and help to safeguard fair dealing.
Read BCI Rules on Disciplinary Proceedings
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2.5 Right of Advocate to take up Law Teaching
The Advocates (Right to Take up Law Teaching) Rules, 1979
1. Short title and commencement.—
(1) These rules may be called the Advocates (Right to Take up Law Teaching) Rules, 1979.
(2) They shall come into force on the date of their publication in the Official Gazette.
2. Definition.—In these rules “Act” means the Advocates Act, 1961 (25 of 1961).
3. Right of practising advocates to take up law teaching.—
(1) Notwithstanding anything to the contrary contained in any rule made under the Act, an
advocate may, while practising, take up teaching of law in any educational institution which is
affiliated to a University within the meaning of the University Grants Commission Act, 1956 (3
of 1956), so long as the hours during which he is so engaged in the teaching of law do not exceed
three hours in a day.
(2) When any advocate is employed in any such educational institution for the teaching of law,
such employment shall, if the hours during which he is so engaged in the teaching of law do not
exceeds three hours, be deemed, for the purposes of the Act and the rules made thereunder, to be
a part-time employment irrespective of the manner in which such employment is described or the
remuneration receivable (whether by way of a fixed amount or on the basis of any time scale of
pay or in any other manner) by the advocate for such employment.
Anees Ahmed v. University of Delhi AIR 2002 Del 440
CW. 3412/97 :
This writ petition was filed by the petitioners by way of public interest litigation for a direction
to respondent No. 1/Delhi University to take disciplinary action against all Full Time Law
Teachers of the Delhi University, who were practicing in the courts and also praying for a
direction to prohibit all Full Time Law Teachers of the Faculty of Law of the University of Delhi
from carrying on legal practice/profession and also from appearing in the courts of law any
manner. The petitioner had also sought for a direction to the Delhi State Bar Council, respondent
No. 3 to cancel the enrolment/licence to practice given to Full Time Law Teachers. The
petitioner No. 1 was an Advocate practicing in the High Court of Delhi and had filed the writ
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petition as he was interested in the advancement of legal education in India. The petitioner No. 2,
at the time of filing of the writ petition, was a Law Graduate, who passed out and obtained
Degree of law at the relevant time when the writ petition was being filed.
C.W. 3519/97 :
This writ petition was filed by the petitioner, who was a Professor of Law the Faculty of Law, of
the University of Delhi. The petitioner was initially appointed as a Lecturer in Law and posted at
Law Centre-II of the Faculty of Law of the University of Delhi in August, 1971. Thereafter the
petitioner got his promotion and in due course of time, became a Professor in Law in the Faculty
of Law of the University of Delhi. The petitioner filed the present petition challenging the order
passed by the Bar Council of India on 9-8-1997 cancelling and removing the name of the
petitioner from the roll of Advocates of the Bar Council with a further direction that it would be
open to the petitioner to make a fresh application for enrolment as an Advocate on his ceasing to
be in employment. The common question that arose for consideration was whether a faculty
member in the Faculty of Law, University of Delhi could subsequently enroll himself as an
advocate and appear in a court of law and simultaneously carry on the duties of a full-time
faculty member of the Faculty of Law, University of Delhi. The private respondents in the writ
petition filed by way of public interest litigation were all full time faculty members of the
University of Delhi, who employed as full time faculty members in the University of Delhi and
subsequently got themselves enrolled as Advocates with Delhi State Bar Council.
Held: The full time law teachers of the Law Faculty of the Delhi University could not have
enrolled themselves as advocates and, therefore, enrolment given to the said teachers by the State
Bar Council was per se void and illegal and any action taken by the Bar Council of India to
rectify the said mistake in exercise of its powers cannot be said to be bad or illegal. We also hold
that a part time teacher of law could be enrolled as an advocate and also that an advocate after
being enrolled could take up part time law teaching.
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3.1 Meaning Nature and Need of Professional Ethics
Ethics and the legal profession are closely related. The practice of law is a noble profession.
Therefore, conforming one’s conduct and behaviours to a certain set of professional norms is an
important aspect of this profession. Legal ethics can be simply defined as a code of conduct
which may be written or unwritten. Such a code of conduct is meant to regulate the behaviour of
a practising legal professional towards the court, the presiding judge, his client and his
adversaries in the courtrooms.
It can be agreed that ethics is a fundamental prerequisite in any profession and not just the legal
profession. Thus on a general note Ethics basically denotes human behaviour and their standard
of moralities. A advocate or an advocate must obey certain professional codes with regard to the
standards of fair dealing with the client and also includes the standard of confidentiality required
between them and uphold the self-possession. The Government of India established The Bar
council of India which is a statutory body under the Advocate Act, 1961.
The object of professional ethics
The primary object of ethics in advocacy is to maintain the dignity and integrity of the legal
profession. Legal ethics ensure that the legal fraternity serves the society honestly and present
each case in the most formal way possible so that the litigants have faith on not only their legal
representative or advocate but also on the justice system. Not only the advocate but also the
judge needs to have a sense and understanding of legal ethics in order to maintain the
functionality of Indian Courts. One of the fundamental aims of legal ethics is to seek a spirit of
friendly cooperation amongst the bar, bench and the clients. Standards of ethics exist between the
advocate and his client, opponent and the witness being questioned and of course between the
Judge and the advocate.
The legal profession has been created by the state to serve the litigatory needs of the public.
Thus, it is not a business it’s a profession. Consequently, there is 3 fundamental basis of legal
ethics that gives an insight into the essence of the legal profession:
1. The organisation of its members in order for the performance of their function;
2. Maintain certain standards at both the intellectual and ethical level to preserve the dignity
of the profession;
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3. Pecuniary gains must be subordinate to the client’s interest.
Existing Legal Framework
The Advocate Act, 1961
The All India Bar Committee had come up with a few recommendations based on the Law
Commission’s recommendations relating to the legal ethics and legal profession. Thus, under the
auspices of these recommendations, the Legislature implemented the Advocate Act, 1961.
Subsequently, the Bar Council of India was established by the Parliament under Section 4 of the
1961 Act. This Act lays down the functions of the Bar Council of India (BCI) under Section 7.
The Bar Council of India thus lays down standards of professional Code of conduct and
etiquettes to be followed by advocates under Section 7(1)(b). Interestingly, this very function of
the Bar is also laid down under Section 49(1)(c). According to Section 49(1)(c), the Bar is
empowered to make rules for the standard of professional ethics that needs to be observed by
advocates.
Bar Council of India Rules
Bar Council of India Rules is framed by the BCI under Part VI of Chapter 2. This chapter deals
with the standard of professional ethics and conduct of advocates. It is important to go through
the rules briefly to understand the importance of professional ethics of a advocate towards the
Court and the Client.
Rules on Advocates Duty towards Court
The Bar Council of India prescribes certain duties that an advocate must fulfil.
1. Act in a dignified manner: any advocate before the court (while presenting his case) is
required to have self-respect and conduct himself with dignity. In Dr. D.C. Saxena v.
The Hon'ble Chief Justice Of India, 1996 SCC (7) 216- This rule actually empowers an
advocate to submit a complaint against a judicial officer. However, such a complaint
shall be submitted to the proper authority.
2. An advocate must maintain a respectful attitude while at court and shall respect the
dignity of the judicial office: In the case of U.P. Sales Tax Service Association v
Taxation Bar Association 1996 AIR 98 it was stated that the survival of a free community
is endangered if an advocate doesn’t show respect or recognises the dignity of the judicial
officer. It potentially lowers the spirit of the court.
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3. Not to communicate in private: this rule was well explained in the case of Rizwan-Ul-
Hassan v. State of U.P. 1953 AIR 185 It was observed that an advocate shall not try to
seek favourable decisions by any illegal means including bribing the court or
communicating any favour in private. Thus, this rule prohibits any private
communication with the judge which would be specifically regarding a pending case. It is
considered as a gross form of professional misconduct if at all an advocate tries to
influence the decision of the court by having private communication with the judge.
4. Refuse to act in an illegal manner towards the opposition: An advocate is also

required to prevent his client from resorting to unfair practices relating to the court,
opposing counsel or opposite parties or even co-parties. The advocate must earnestly
restrain and explain the implications and the consequences of such unfair practices. This
rule also empowers an advocate to refuse to represent a client if he/she insists on such
improper conduct.
5. An advocate shall have his own sense of judgement and mustn’t use strong language
in the court of law: This is another important Rule laid down that the advocate is
expected to have his own sense of judgment regarding the cause or the case he/she is
representing. In the case of M.Y. Shareef & Anothers. V. Hon’ble Judges of Nagpur High
Court & Ors. 1955 AIR 19, it was observed that an advocate is not a mere mouthpiece of
the client. Legal counsel must exercise his/her own judgement. An advocate must also
restrain oneself from the use of scurrilous remarks while in pleadings. They shall use
intemperate language during pleadings in court.
6. Appear in proper dress code: Legal profession is one of the few professions that have a
designated uniform. The court demands that an advocate must necessarily show up
inappropriate dress code. There have been instances in court where cases have either been
postponed or dismissed for that matter due to the lack of proper dress code that should
have been followed by the representing legal counsel. Thus, if an advocate is improperly
or inadequately dressed, he is not only looked down upon but also his appearance is a
breach of the prescribed dress code.
7. Refuse to appear in front of relations: this rule is laid down in Section 30 of the
Advocates Act, 1961. This rule was laid down in order to avoid conflict of interest and
bias in judgment. If there is a family tie existing between the presiding judicial officer
and an advocate, then the advocate shall not appear in such cases and shall request for the
change in bench.
8. Not to wear bands or gowns in public places: the advocate cannot utilise his/her gown
or band in other public places unless in any ceremonial occasions that the Bar Council of
India and the court may prescribe.
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9. Not to represent establishments of which he is a member: The rule simply provides
that an advocate is not allowed to represent, defend or even stand against an organization,
institution, society, corporation etc. if he is a part of the executive committee of such
institutions.
However, an advocate can appear as an ‘amicus curiae’ on behalf of a Bar Council.
1. Not appear in matters of pecuniary interest: An advocate shall not act or plead in any
matter in which he himself has some pecuniary interest.
2. Not stand as surety for the client: sometimes parties at court or litigants are required to
give surety to the court. An advocate shall not stand as a surety for his client in any legal
proceedings.
Rules on Advocates Duty towards Client
Just as an advocate owes duty towards the court he/she is also obligated to follow Rule 11 to
Rule 33 that prescribes an advocate’s duties towards his client. They are as follows:
1. Bound to accept briefs: Rule 11 lays down that an advocate is bound to accept any brief
in the court that is if he proposes to take up without any fee at the Bar council.
In S.J. Chaudhary v. State 1984 AIR 618 the Supreme Court held that if an advocate doesn’t
attend a case day to day he would be liable for breach of professional duty. This observation was
based on the fact that a lot of advocates don’t appear at the court and then his client has to bear
the brunt of it.
1. Not to withdraw from service: Rule 12 provides that an advocate shall give the client
reasonable and sufficient notice before withdrawing from an engagement. He shall not
withdraw without any reasonable grounds. If he withdraws himself with sufficient cause
he is bound to refund the fee (even a part of it if not earned).
2. Not to appear in matters where he himself is a witness: Rule 13 provides this rule as it
can give rise to a conflict of interest. It must be noted that if an advocate is a witness of a
party and he is asked to represent the other side then only such an advocate shall refrain
from taking up such matters
In Kokkanda B. Poondacha v. K.D. Ganpathi CIVIL APPEAL NO(s).2015 OF 2011 the Court
has upheld this rule as the parties could be disadvantaged.
1. Full and frank disclosure to the client: Rule 14 provides that an advocate is expected to
be honest with his client before the commencement of his engagement. He is obligated to
reveal whether he has any connection with the other side of parties and any interest in
their case. Otherwise, this creates controversies and also affects his client’s judgment to
carry forward such an engagement.
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2. Uphold interest of the client: Rule 15 provides that an advocate owes his loyalty to his
client and must uphold the interest of his client fearlessly and honestly by all fair means.
He shall not give regard to unpleasant consequences that he may bear.
3. Not to suppress material or evidence: suppressing material evidence is absolutely

disregarded in the court of law. This rule is provided under Rule 16. It basically provides
that if a prosecutor in a criminal trial tries to suppress material evidence that may lead to
the innocence of the accused or taint the justice of the victim if shall be considered a
gross breach of professional conduct and can also invite legal trouble for themselves.
Thus, such an act or omission shall be scrupulously avoided.
4. Not to disclose the communications between the client and himself: Rule 17 is also
one of the most important obligations followed by an advocate. A non-disclosure
agreement is always signed between the client and the advocate. Since there exists a
fiduciary relationship between the client and the advocate, breach of confidentiality is
taken seriously even at the court of law. This rule is also incorporated in Section 126 of
the Indian Evidence Act, 1872.
5. Not charge depending on the success of matters: Rule 20 provides that an advocate
shall not charge depending upon the success of the lawsuit. Such a practice is opposed to
public policy. Anu such contract for a contingent nature of fee against Section 23 of the
Indian Contract Act.
6. An advocate must not lend money to his client: Rule 32 provides that when an
advocate lends money to his client then interest is created. Such a creation of interest if
not allowed as it affects the advocate’s sense of judgment and also disallows the client to
think upon before commencing with engagement.
7. Not appear for opposite parties: Rule 33 provides that an advocate shall not represent
the opposite party after withdrawing from the case on behalf of the previous party.
The fiduciary relationship between Advocate and Client
On a general note, a fiduciary relationship is that of trust and confidence. Any client expects their
advocate to maintain a high degree of fidelity (faithfulness) and good faith as their confidential
information rests with the advocate as they need to know the details of the case in order to find
out the best way to pull their clients out of the legal trouble or query. In the case of V.C.
Rangadurai v. D. Gopalan 1979 AIR 281, the Court observed that the relation between the
advocate and his client involves the highest personal trust and confidence. Thus, their
relationship cannot be completely treated as purely professional owing to the confidential nature
of the information that the client gives to his advocate. Thus, the advocate-client relationship is
purely fiduciary in nature.
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Nature of Professional Ethics
Every profession has its own code of ethics. The legal profession in India is highly competitive
and dynamic. As it has been thoroughly discussed above that the standard of ethics of the legal
profession is codified under Indian law.
The nature of professional ethics is such that it is the essence of the legal profession. It
encourages a Advocate to act in a dignified manner that is befitting of such a noble profession.
Thus, in order to maintain its dignity and integrity, professional ethics were codified. It brings
upon accountability upon the legal professionals for dishonest, irresponsible and unprofessional
behaviour. Furthermore, advocates can lose their license if they resort to unethical practices that
endanger and tarnish the dignity of the legal profession.
Even in general not only the legal profession but also various other professions like the medical
profession in India have codified standards of ethics. The Advocates Act, 1961 and Bar Councils
Act, 1926 lay down the professional ethics that need to be followed by advocates. On the other
hand the Indian Medical Councils Act, 1956 and the Indian Medical Council (Professional
Conduct, Etiquette and Ethics) Regulations, 2002 governs the standard of professional ethics that
needs to be followed by medical professionals.
The main intent behind these legislations is to prevent the exploitation of clients and patients or
anyone at the receiving end of their services and of course to maintain the integrity of the
profession. Just like every other provision and statute these rules and codes are not absolute in
nature and can be amended or repealed as and when need be felt.
Need for Professional ethics in Indian Courts
The need for codified legal ethics was well explained by the American Bar Association
Committee. Law is a keystone to the arch of Government. Thus, a proper code is needed in order
to prevent control of the judicial system by craft, greed or unworthy motives. Ethics is a way by
which an advocate owes a duty to the Bar, a judge to the Bench of justice. It shall be noted that
litigants or clients whom advocates represent don’t exactly owe the same standard of ethics as an
advocate or a judge in a Court. The duty to prevent the client from resorting to unfair practices is
also shouldered by the Bar and the Bench.
The committee also observed that a high standard of legal ethics must be codified in order to
further the administration of justice in a pure and unsullied manner. Every advocate must follow
the prescribed legal ethics in order to retain membership in a professional organisation.
Professional Conduct & Professional ethics
There lies a necessary distinction between professional ethics and professional conduct. The
primary difference is between the obligation to be followed by a member of the profession. In
professional conduct, refers to acts or steps taken under some statutory obligation or contractual
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powers. Such an obligation could be a legal obligation. On the other hand, in professional ethics,
one is expected to follow a moral obligation.
Bridging the Gap between Legal Ethics and the Legal Profession in Indian Courts
The traditional approach to legal education is that of the application of established legal rules and
principles to a certain set of facts in a case. However, with the commencement of law over time
it was realised that the mere existence of laws cannot bring justice due to a number of reasons.
Firstly, legal services are not as affordable as it should be for the whole economic spectrum of
citizens to be able to avail them. Especially in a poverty-stricken country like India, the rights of
the poor take a backseat due to lack of affordability. Secondly, legal aid services are also limited.
Thirdly, laws are not completely comprehensive and coherent and judges are not consistent with
their reasoning. Lastly, one of the biggest concerns is the lack of ethics portrayed not only by the
police but also the advocates.
Thus, to bridge the gap between ethics and the legal profession, the codification of the standard
of ethics was a way to prevent the above-stated concern. However, the question raised is how far
is it successful in protecting the dignity of the profession?
It shall be noted that the institutions providing legal education often neglect the concept of
ethical advocating. Therefore, it is argued that in order to produce good ethical advocates who
would serve the interest of the country, it can only be possible if institutions providing legal
education educate the young advocates to be ethical. The legal curriculum must give importance
to socio-legal issues and contemporary problems of society that can be solved through an ethical
and realistic perspective of everything. Law schools are somehow uncharacteristically silent on
the subject of duties to court and client and general responsibilities towards justice.
On the other hand, it is also argued that ethics cannot be taught and it is up to every Advocate’s
personal experience that will help them develop such ethics. The problem with this statement is
that it ignores the fact that before one enters a profession, one can be misguided. Later on, the
Bar is accused of lowering standards of professional ethics and discipline for failing to provide
moral and legal leadership when an advocate or a judge misbehaves or uses unfair means to get
by their respective cases.
The traditional way of teaching professional ethics in Indian law schools is not doing enough.
Young advocates need more insight into the fact as to why legal ethics is more important than
subject knowledge. Legal knowledge can be gained (much more than the knowledge gained in
law schools) through practice and experience. However, a sense of ethics should be developed
earlier than that so that an intellectual legitimacy is created.
Traditional legal education must take up a humanistic approach and shall try to impart values
into young budding advocates as their contribution to the future is going to become of great
consequence. There must exist a more holistic and humanising outlook towards the teaching and
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studying of law. Even after legal ethics are codified in India, advocates still practice unfair
means to seek favourable outcomes for their cases. The Code cannot bring about a sense of
ethics unless it is imparted to the law students at the very earliest. There are a few positive
examples, where some progressive law teachers have recognised the need for law students to
gain a deeper understanding of ethics and its needs in the legal forefront.
The present stance is that with changing times the existing methods used to impart legal
knowledge need to change. As stated above there is a gap between legal ethics and the legal
profession. Thus, the ‘vectors’ need to converge. The law schools need to understand that along
with the different disciplines in law, such as collaborative law, preventive law, problem-solving,
holistic justice, restorative justice etc. are all meaningless if the knowledge is not implemented
with morals, values, and ethics.
A sea change in the traditional methods of legal education can bring about an integration of
personal and professional values along with the assimilation of analytical thinking/application of
legal principles and emotional intelligence. A mere codification of legal ethics will not make the
young advocates realise the nobility of the legal profession or the dignity of the Bar.
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3.2 Standard of Professional Conduct and Etiquette
Conduct/ Duties of Advocate:
Advocacy is a noble profession. It cannot be compared with any other profession like trade,
business etc. because it is a part and parcel of judiciary and administration of justice. Bar and
bench are two eyes of the ‘Justice'. There are judicial ethics and etiquette for judges. There are
professional ethics and etiquette for advocates. Every advocate should follow them in his
profession. An advocate is also a key person in conducting a proceeding before the court. While
conducting a proceeding the advocate should function intelligently. There are several functions
entrusted to the advocate. There are five most important functions. They are:
 Briefing
 Counseling
 Pleadings, drafting and Conveyancing
 Examination, Cross – examination, chief examination of witness and
 Arguments.
While carrying out these functions an advocate must act prudently, legally and cautiously. There
are several ethics and etiquette controlling the conduct of the advocates. These ethics and
etiquette impose certain duties upon the advocates. Ethics are morals, a moral philosophy or
moral science. It is the first stage of society.
Etiquette is the second stage, which formulates the rules of behaviour standard in polite society.
Humans have experienced ethics in their life. They are inherent in every religion. Along with the
civilization of humans there were Ethics. Every religion preached morals and ethics. Etiquette is
restricted to particular kind of profession. It is nothing but regularization of ethics. In simple
words ethics are bundle of habits whereas etiquette is bundle of rules of ethics. These rules have
statutory force.
Every advocate must follow these duties because they are part and parcel of the professional
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ethics and etiquette. Whoever fails to oblige them, such an advocate is said to have committed
professional misconduct and be punished accordingly.
As stated above, the important duties that have to be followed by the advocate are:
1. Advocate's Duty to the Court
2. Advocate's Duty to the Client
3. Advocate's Duty to the Opponent Advocate.
4. Advocate's Duty to the Cross Examination
5. Advocate's Duty to the Colleagues
Advocate's Duty To The Court:
An advocate is considered as an officer of the court, honoured member of the community, and a
gentleman, thinking that to become a member of the bar he has to be lawful and moral not only
in his professional capacity but also in his non – professional capacity. An advocate has to
courageously support the interest of his client and also have to follow the principles of ethics and
etiquette both in correspondence. The bar council of India rules, State Bar Council rules mention
certain canons of conduct and etiquette as general guides. Section I of Chapter – II of Part – IV
OF THE Bar Council of India Rules explaining the rules pertaining to “Advocate's Duty to the
Court”.
Following Are The Duties Of Advocate Towards To Court:
1. An advocate while presenting his case should conduct himself with dignity and self
respect
2. Respectful attitude must be maintained by the advocate. He has to keep in mind the
dignity of the judge.
3. An advocate should not, by any improper means should influence the decision given by
the court.
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4. It is the duty of the advocate to prevent his client from resorting to unfair practices and
also the advocate himself should not do any of such acts.
5. Dress code has to be maintained by the advocate while appearing before the court.
6. An advocate should not take up any case of his family members and relatives.
7. No bands or gowns had to be worn by the advocate in the public places. It is only limited
to the court premises.
8. An advocate cannot be as a surety for his client.
9. It is the duty of the advocate to cooperate with the bench in the court.
10. It is the duty of the advocate to perform his functions in such a manner that due to his
acts the honor, dignity and integrity of the courts shall not be affected.
11. An advocate should not laugh or speak loudly in the court room especially when the
proceedings are going on.
12. When an advocate accepts a brief, he should attend all adjournments properly. If he has
any other work in another court, he should first obtain the permission from the court
concerned. Particularly in criminal cases, it is the first and foremost duty of an advocate
to attend.
13. While the case is going on, the advocate cannot leave the court without court's permission
and without putting another man in charge, preferably his colleague or junior or friend
advocate.
The Bar Council can review the order given by the disciplinary committee under Section 44 of
the Advocate's Act, 1961. V.C. Rangadurai vs D. Gopalan 1979 AIR 281 , In this case V. C.
Rangadurai was an advocate and Devasenapathy was an old deaf man, aged 70 years and Smt. D.
Kamalammal was also aged. They had given two promissory notes to rangadurai and also paid
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the fees as was asked to the advocate. Nevertheless, the advocate did not file the case in time.
The limitation was over.
After a long time of wandering around the office of the advocate, the old man came to know that
the advocate deceived him by not filing the cases within the time even after receiving the fees.
He filed a complaint before disciplinary committee of the Tamilnadu state bar council which
after enquiry punished the advocate suspending him for 6 years
On appeal, it was confirmed by the Bar council of India and also by Supreme Court. Rule 6 of
Chapter II of Part- VI of the Bar Council Rules states that an advocate shall not appear, act, plead
or practice before the court if any member is related to the advocate as father, son, wife etc. the
main object is to avoid personal bias between an advocate and presiding officer related to such
advocate. Due to natural love and affection, the judge may incline towards the advocate, thus to
favour the client of the advocate related to him or her.
In case of Satyendra Nararain Singh and Others vs Ram Nath Singh and Others AIR 1925
Bom 470, wife is the judge and husband is the advocate. Court held that the advocate should not
appear before his wife, who is the judge of the court. If he appears before the court, to which his
wife is presiding officer, it becomes his professional misconduct. If he appears before the wife-
judge. It is the duty of the judge to raise the objection. If she fails to object and accepts his
appearance, then it becomes her judicial misconduct.
The advocate must always possess duty consciousness. The clients like the advocate, who
devotes his entire time and energy to his clients. The duty conscious lawyer, once his
engagement is final, sticks to the preparation of that case on facts and laws with such tenacity
that he leaves no efforts from his side to win the case of his clients on merits by all legal means.
Advocate's Duty To The Client:
Chapter – II of Part IV of Bar Council of India Rules (Rule 11 to 33) provides the provisions
relating to advocate's duty to client. Advocate's profession is a noble and honorable profession in
the society. It is a public service. But at the same time it should be kept in mind that it is not a
bed of roses especially for the new entrants. An advocate has several duties to his clients. The
clients generally prefer an advocate who is hard working.
They mostly trust on the workmanship of the advocate, whom they can easily reach and explain
their difficulties. Most of the clients prefer an advocate who dedicates his entire time to the
clients and especially who is polite with the clients. The duty- consciousness lawyer, once his
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engagement is final, sticks to the preparation of that case in facts and laws with such tenacity that
he leaves no efforts from his side to win the case of his clients on merits by all legal means.
It is the duty of the lawyer to take up the particular file and has to start making preparation even
if the client is present or not. Such preparation of the file has to take place with the views that are
already shared by his clients. The duty of the advocate is to never shrikes from devoting time,
not only in the interest of his client, but also to satisfy his own duty- conscious nature which
singles him out from his profession. The relationship between the advocate and client is of two
types. They are:
1. Contractual Relationship: This arises and ends only till the period of contract exist. In
India, the relationship between the advocate and his client arises primarily from
contractual obligations. A client chooses an advocate for his case depending upon his
professional success, with strong desire that he is the fit person to defend his cause. After
hearing the cause, the advocate decides whether to take the case or not. If he wants to
take up the case, he will offer the client with certain amount of fee.
If the client agrees to pay the sum, the advocate takes up the case. Thus a matter of
contract shall be reached between an advocate and a client. If a client fails to pay the
remuneration, the advocate can sue him.
In Kothi Jairam vs Vishwanath AIR 1925 Bom 470, the Supreme Court has held that
an agreement made by his client to pay his lawyer according to the result of the case is
against public policy. The Supreme Court observes that it is professional misconduct for
an advocate to stipulate for or agree with his client to accept as his fee or remuneration as
share of the property sued or other matter in litigation upon the successful issue thereof.
In England, a lawyer cannot sue for his fee. If a lawyer behaves negligently, he can be
sued for his negligence, in India whereas in England, he cannot be sued.
2. Fiduciary Relationship: Fiduciary relationship is the relationship which never ends. If a

client approaches the advocate and discloses the confidential information of his life then
this kind of information comes under fiduciary relationship which the advocate has to
keep it as a secret and not disclose it all his life.
An advocate shall not change the parties. Rule 33 of the bar council of India rules
provides for the same. It is also professional ethics. For example, if there are two rival
parties A and B. A approaches X- an advocate, and seeks his advice after explaining all
the facts of the case, weaknesses and strengths. After obtaining his opinion, A gives his
case to Z – another advocate. If B approaches X asking him to defend on his behalf, it is
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professional ethics of X to refuse the brief of B, being fully informed about the case by
A.
It is the duty of the advocate to give proper advice to his client. Rule 32 of the bar council
of India provides that an advocate is not supposed to lend his money to his client for any
kind of legal proceedings. But there is an explanation which says that and advocate
cannot be pronounced as guilty if he does something that breaches the above said rule. It
is more like an exception but given as explanation.
Advocate's Duty To The Opponent Advocate:
An advocate and his opponent are like brothers in the profession but representing the different
interests of different clients. Clients are not permanent they come with the case and leave, once
the case is done but advocates adhere to the court and see each other or meet each other
frequently in the court. If an advocate quarrels with another, they cannot face each other or work
together happily. Their difference and grudge spoil the atmosphere. It also affects their clients. If
it creeps to the court it spoils the administration of justice. In the court, advocate is not the
decision maker, judge is the decision maker.
An advocate must always try to convince the court by the law and precedents. He must be in a
position to defeat his opponent advocate by using law and precedents. For this purpose there
must always healthy competition between an advocate and his opponent. Leaving this highway,
if an advocate starts fighting with his opponent as an ordinary person by using scurrilous
language, it does not help his carrier. Moreover it spoils his clients, and further degrades the
court.
Advocates are the part and parcel of the administration of justice. They fight for justice. They
struggle for the welfare and good of their clients. It does not mean that the advocate and the
opponent advocate are enemies with each other. There is a controversy and discrimination on the
issue but not between them. Their conflict ends as soon as they come out of the court premises. If
they quarrel with each other like ordinary persons it affects the bar- bench relations. It may lead
to the groups in the bar.
Finally it badly vitiates the peaceful atmosphere of the court. Every advocate has a right to cross
examination, arguments, verification of documents etc. while doing so he shall not be interrupted
unnecessarily. Like him, the opponent advocate shall enjoy the same right therefore, any
advocate shall not interrupt his opponent in cross examination, arguments unnecessarily.
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Interruption of the opponent is improper. This destroys the decorum of the court. It obstructs the
ideas of the opponent. If necessary, an advocate may raise any objection with the permission of
judge. No advocate has the right to prevent a judge following the course of argument of the
opposite advocate.
A dispute is submitted before a judge by two parties. Each advocate will definitely work hard to
get the judgement in his favour but it is not possible to a judge to give the judgement in favour of
both the parties. He will give his judgement to anyone of the parties based on the facts of the
case. One party is defeated and another party will win the case. Therefore, each advocate must
have a spirit of a sports man. All advocates are equal before the court.
An advocate should not have contacts and engagements with the opposite party especially on the
issue which is pending before the court. If necessary, an advocate may contact his opposite party
with the permission or with notice to his opposite advocate. An advocate should not be stubborn
on the minor matters. For example, if the opponent advocate has asked the adjournment of a case
on genuine grounds. In such case, an advocate should not prolong the matter and create nuisance
before the court. It is the duty of advocate to not take advantage of temporary difficulties of the
opponent advocate. The combating between them must be fair and in a legitimate manner. The
duty of the advocate is to show proper courtesy to the opposite counsel.
Advocate's Duty During Cross Examination:
According to Sec 138 of Indian Evidence Act, 1872 the examination of witness by adverse party
is known as cross examination. It is the right of an advocate to cross-examine the opponent party
and his witnesses. The object of cross examination is that if cross examination is conducted
effectively and efficiently, it discovers the truth. When a fact is stated in examination- in- chief
and there is no cross examination on that point naturally it leads to the inference that the other
party accepts the truth of the statement.
Cross examination of witnesses is a procedural matter. Cross examination is mostly done

according to the provisions of the Indian Evidence Act, Civil Procedure Code, Criminal
Procedural Code and other provisions of the law. Besides these procedural matters; legal ethics
are also concerned with what the advocate should do or should not do, while he is performing
cross – examination. It has to be done with an objective to obtain the real facts from the
witnesses and the opposite party.
While cross examining and advocate must not offend the religious or personal feelings of the
opposite party. He should not mis-utilise the opportunity of cross examining. He has no right to
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disgrace and bully a witness by putting offensive questions. Questions which affect the integrity
of a witness by making aggressive comments on his character, but are not otherwise relevant to
the actual enquiry, ought not to be asked unless the cross – examiner has reasonable grounds for
thinking that the imputation conveyed by the question is true.
Such questions should only be asked if in the opinion of the cross – examiner, the answers would
or might materially affect the credibility of the witness and if the allegation conveyed by the
question relates to matters so remote in time or of such a character that it would not affect or
would not materially affect the credibility of the witness, the question should not be asked.
In all cases, it is the duty of the advocate to guard against being made the channel for questions
which are only intended to insult or annoy either the witness or any other person, and to exercise
his own judgement both as to substance and the form of the questions asked.
Advocate's Duty To The Colleagues:
Section IV of Chapter II of Part VI of Br Council of India lays down the provisions about the
‘Advocate's duty to the colleagues. Rules 36 to 39 provides for advocate's duty to the court. An
Advocate cannot appear in a case where a memo is filed by the name of the other advocate. To
do so he has to first take consent from the advocate and in case if such consent is not given then
he has to apply to the court stating the reasons as to why he need consent.
All advocates are part and parcel of the administration of justice. They are court officers. They
take the fee of the services rendered. But the fee is not the criteria its only secondary their service
is basically a public service and each advocate's office is known as public office. The primary
concern of the advocate should be aiming for justice for the welfare of people. There should not
be any kind of unhealthy competition between the colleagues. All are equal and each of them to
mutually respect each other. An advocate is not supposed to advertise himself.
If any client brings a case from another advocate to an advocate asking him to appear for the
case, then this new advocate should not readily accept the case; first he has to go through the
background of the case, details of the case and most importantly he must know the reasons as to
why the client wants to change the previous advocate. If all the reasons stated by the client are
proper then he must ask the client to bring a no objection certificate from the previous advocate;
then only it is appropriate for him to take up the case. All members of the bar association are
known as colleagues. An advocate has to respect all his colleagues and should not criticise co
advocates.
An arrogant attitude of an advocate towards his colleagues is always observed by the clients and
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public present in the court. This kind of behaviour affects his profession, bar and bench relations,
court proceedings and finally the whole administration of justice.
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3.3 Punishment for Professional and other Misconduct
Chapter V
CONDUCT OF ADVOCATES
35. Punishment of advocates for misconduct-
(1) Where on receipt of a complaint or otherwise a State Bar Council has reason to believe that
any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case
for disposal of its disciplinary committee.
(1A) The State Bar Council may, either of its own motion or on application made to it by any
person interested, withdraw a proceeding pending before its disciplinary committee and direct
the inquiry to be made by any other disciplinary committee of that State Bar Council.]
(2) The disciplinary committee of a State Bar Council (Note:- Certain words omitted by Act 60
of 1973, sec.24) shall fix a date for the hearing of the case a notice thereof to be given to the
advocate concerned and to the Advocate General of the State.
(3) The disciplinary committee of a State Bar Council after giving the advocate concerned and
the Advocate -General an opportunity of being heard, may make any of the following orders,
namely-
a. Dismiss the complaint or, where the proceedings were initiated at the instance of the State Bar
Council, direct that the proceedings be filed.
b. Reprimand the advocate
c. Suspend the advocate from practice for such periods as it may deem fit.
d. Remove the name of the advocate from the State roll of advocates
(4) Where an advocate is suspended from practice under clause (c) of sub section (3) he shall,
during the period of suspension, be debarred from practicing in any court or before any authority
or person in India.
(5) Where any notice is issued to the Advocate-General under sub-section (2) the Advocate -
General may appear before the disciplinary committee of the State Bar Council either in person
or through any advocate appearing on his behalf.
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Misconduct is sufficiently comprehensive to include misfeasance (a transgression, especially
the wrongful exercise of lawful authority.) as well as malfeasance (wrongdoing ) and is applied
to the professional people, it include unprofessional acts even though they are not inherently
wrongful. The professional misconduct may consist the fact in any conduct, which tends to bring
reproach on the legal profession or to alienate the favourable opinion which the public should
entertain concerning it. In State of Punjab v Ram Singh 1992 AIR 2188 the Supreme Court held
that the term misconduct may involve moral turpitude, it must be improper or wrong behaviour,
unlawful behaviour, willful in character, a forbidden act, a transgression of established and
definite rule of action or code of conduct, but not mere error of judgement, carelessness or
negligence in performance of duty.
The Supreme Court has, in some of its decisions, elucidated on the concept of ‘misconduct’, and
its application. In Sambhu Ram Yadav v. Hanuman Das Khatry 2001 6 SCC 1, a complaint
was filed by the appellant against an advocate to the Bar Council of Rajasthan, that while
appearing in a suit as a counsel, he wrote a letter stating that the concerned judge, before whom
the suit is pending accepts bribes, and asked for Rs. 10,000 to bribe and influence the judge to
obtain a favourable order. The Disciplinary Committee, holding that the advocate was guilty if
“misconduct”, stated that such an act made the advocate “totally unfit to be a lawyer.” The
Supreme Court, upholding the finding of the Rajasthan Bar Council held that the legal profession
is not a trade or business. Members belonging to the profession have a particular duty to uphold
the integrity of the profession and to discourage corruption in order to ensure that justice is
secured in a legal manner. The act of the advocate was misconduct of the highest degree as it not
only obstructed the administration of justice, but eroded the reputation of the profession in the
opinion of the public.
In another case, Noratanman Courasia v. M. R. Murali 2004 AIR 2440 the Supreme Court
explored the amplitude and extent of the words “professional misconduct” in Section 35 of the
Advocates Act. The facts of the case involved an advocate (appearing as a litigant in the capacity
of the respondent, and not an advocate in a rent control proceeding) assaulted and kicked the
complainant and asked him to refrain from proceeding with the case. The main issue in this case
was whether the act of the advocate amounted to misconduct, the action against which could be
initiated in the Bar Council, even though he was not acting in the capacity of an advocate. It was
upheld by the Supreme Court that a lawyer is obliged to observe the norms of behavior expected
of him, which make him worthy of the confidence of the community in him as an officer of the
Court. Therefore, inspite of the fact that he was not acting in his capacity as an advocate, his
behavior was unfit for an advocate, and the Bar Council was justified in proceeding with the
disciplinary proceedings against him.
It may be noted that in arriving at the decision in the case, the Supreme Court carried out an
over-view of the jurisprudence of the courts in the area of misconduct of advocates. It reiterated
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that the term “misconduct” is incapable of a precise definition. Broadly speaking, it envisages
any instance of breach of discipline. It means improper behavior, intentional wrongdoing or
deliberate violation of a rule of standard of behavior. The term may also include wrongful
intention, which is not a mere error of judgment. Therefore, “misconduct”, though incapable of a
precise definition, acquires its connotation from the context, the delinquency in its performance
and its effect on the discipline and the nature of duty.
In N.G. Dastane v. Shrikant S. Shind AIR 2001 SC 2028, where the advocate of one of the
parties was asking for continuous adjournments to the immense inconvenience of the opposite
party, it was held by the Supreme Court that seeking adjournments for postponing the
examination of witnesses who were present without making other arrangements for examining
such witnesses is a dereliction of the duty that an advocate owed to the Court, amounting to
misconduct.
Ultimately, as it has been upheld and reiterated that “misconduct” would cover any activity or
conduct which his professional brethren of good repute and competency would reasonably regard
as disgraceful or dishonourable. It may be noted that the scope of “misconduct” is not restricted
by technical interpretations of rules of conduct. This was proven conclusively in the case of Bar
Council of Maharashtra v. M.V. Dahbolkar AIR 1976 SC 242. The facts under consideration
involved advocates positioning themselves at the entrance to the Magistrate’s courts and rushing
towards potential litigants, often leading to an ugly scrimmage to snatch briefs and undercutting
of fees. The Disciplinary Committee of the state Bar Council found such behavior to amount to
professional misconduct, but on appeal to the Bar Council of India, it was the Bar Council of
India absolved them of all charges of professional misconduct on the ground that the conduct did
not contravene Rule 36 of the Standards of Professional Conduct and Etiquette as the rule
required solicitation of work from a particular person with respect to a particular case, and this
case did not meet all the necessary criteria, and such method of solicitation could not amount to
misconduct. This approach of the Bar council of India was heavily reprimanded by the Supreme
Court. It was held that restrictive interpretation of the relevant rule by splitting up the text does
not imply that the conduct of the advocates was warranted or justified. The standard of conduct
of advocates flows from the broad cannons of ethics and high tome of behavior. It was held that
“professional ethics cannot be contained in a Bar Council rule nor in traditional cant in the books
but in new canons of conscience which will command the member of the calling of justice to
obey rules or morality and utility.” Misconduct of advocates should thus be understood in a
context-specific, dynamic sense, which captures the role of the advocate in the society at large.
Provisions in Advocates act 1961

The advocates act 1961 is a comprehensive legislation that regulates the legal practice and legal
education in India. It envisages for the establishment of Bar Council of India and State Bar
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Councils with various disciplinary committees to deal with misconduct of the advocates. It also
provides for the provisions relating to the admission and enrolment of advocates and advocates
right to practice. Chapter V containing sections 35 to 44 deals with the conduct of the advocates.
It provides for punishment for advocates for professional and other misconduct and disciplinary
powers of the Bar council of India. In order to attract the application of section 35 of the
advocates act the misconduct need not be professional misconduct alone. The expression used in
the section is Professional or other misconduct. So even conduct unconnected with the profession
may account to a misconduct as for example, conviction for a crime, though the crime was not
commited in the professional capacity. At the same time it is to be noted that a mere conviction
is not sufficient to find an advocate guilty of misconduct, the court must look in to the nature of
the act on which the conviction is based to decide whether the advocate is or is not an unfit
person to be removed from or to be allowed to remain in the profession.
Misconduct is of infinite variety, the expression professional or other misconduct must be

understood in their plain and natural meaning and there is no justification in restricting their
natural meaning. The term misconduct usually implies an act done willfully with a wrong
intention and as applied to professional people it includes unprofessional acts even though such
acts are not inherently wrongful.
The Code of Conduct Prescribed For Advocate

Section 49 of the advocates act 1961 empowers the Bar Council of India to frame rules
regulating standards of professional conduct. Accordingly various duties are prescribed for the
advocates some of them are highlighted below.
No advertising or soliciting work, it is against an advocate’s code of ethics to solicit or advertise

work and amounts to a misconduct on the part of the advocate. Both direct and indirect
advertising is prohibited. An advocate may not advertise his services through circulars,
advertisements, touts, personal communication or interviews not warranted by personal relations.
Similarly, the following forms of indirect advertising are prohibited:
(i) by issuing circulars or election manifestos by a lawyer with his name, profession and address
printed on the manifestos, thereby appealing to the members of the profession practising in the
lower courts who are in a position to recommend clients to counsel practising in the HC.
(ii) canvassing for votes by touring in the province or sending out his clerk or agents to the
various districts, which must necessarily mean directly approaching advocates practicing in
subordinate courts. Further, the signboard or nameplate displayed by an advocate should be of
reasonable size. It should not refer to details of an affiliated by the advocate i.e. that he is or has
been president or member of a bar council or of any association, or he has been a Judge or an
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Advocate-General, or that he specializes in a particular kind of work, or that he is or was
associated with any person or organization or with any particular cause or matter.
Not to demand fees for training; An advocate is restrained from demanding any fees for
imparting training to enable any person to qualify for enrolment.
Not use name/services for unauthorized practice; An advocate may not allow his professional
services or his name to be associated with, or be used for any unauthorized practice of law by
any lay agency.
Not to enter appearance without consent of the advocate already engaged: an advocate is
prohibited from entering appearance in a case where there is already another advocate engaged
for a party except with the consent of such advocate. However if such consent is not produced,
the advocate must state the reasons for not producing it, and may appear subsequently, only with
the permission of the court.
Duty to opposite party:- While conducting a case, a lawyer has a duty to be fair not only to his
client but also to the court, and to the opposite party. An advocate for a party must communicate
or negotiate with the other parties regarding the subject matter of controversy, only through the
opposite party’s advocate. If an advocate has made any legitimate promises to the opposite party,
he should fulfill the same, even if the promise was not reduced to writing or enforceable under
the rules of the court.
Duties of an advocate towards his client: The relationship between a lawyer and a client is highly
fiduciary and it is the duty of an advocate fearlessly to uphold the interests of the client by fair
and honourable means without regard to any unpleasant consequences to himself or any other
person.
The above are only few important code of conduct to be observed by an advocate practicing in
India. According to Justice Abbot Parry, there are seven important qualities that a lawyer should
possess, he call these qualities as seven lamps of advocacy, they are; Honesty, Courage, Industry,
Wit, eloquence, Judgement, and Fellowship. Apart from that the panchsheel of the bar are
Honesty, Industry, Justice, Service and Philisophy and Panchsheel of the bench according to Sri
ram Kishore Rande are, Impartiality, Independence, Integrity and Industry, Judicial activism and
Prayer. Among the various duties of the advocates like, duties to client, court, public, colleagues
and self, selected points can be picked up and arranged according to the due and relative
importance and are called as ten commandments of advocates they are;
a) Duties to client
1) Protection of the interest of the client
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2) Proper estimation of the value of legal advices and services
b) Duties to court
3) Honesty and respect
4) Preparation of the case
c) Duties to Public
5) Service
6) Loyalty to law and justice
d) Duties to colleagues
7) Fellowship
8) Fairness
e) Duties to self
9) Systematic study
10) Prudence and deligence
Instances of Misconduct
Legal Practioners Act 1879 has not defined the word Misconduct. The word Unprofessional
conduct is used in the act. Even the Advocates Act 1961 has not defined the term misconduct
because of the wide scope and application of the term. Hence to understand the instances of
misconduct we have to rely on decided cases. Some of the instances of Professional misconduct
are as follows,
1) Dereliction of duty
2) Professional negligence
3) Misappropriation
4) Changing sides
5) Contempt of court and improper behaviour before a magistrate
6) Furnishing false information
7) Giving improper advice
8) Misleading the clients in court
9) Non speaking the truth
10) Disowning allegiance to court
11) Moving application without informing that a similar application has been rejected by another
authority
12) Suggesting to bribe the court officials
13) Forcing the procecution witness not to tell the truth.
Contempt of Court As Misconduct

In the case of B. M. Verma v. Uttrakhand Regulatory Commission Appeal No. 156 of 2007 court
noted that, it was given the wide powers available with a Court exercising contempt jurisdiction.
In the case of Court of Its Own Motion v. State dealing with the contempt proceedings involving
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two senior advocates, observed that ‘given the wide powers available with a Court exercising
contempt jurisdiction, it cannot afford to be hypersensitive and therefore, a trivial misdemeanor
would not warrant contempt action. Circumspection is all the more necessary because as
observed by the SC in SC Bar Association v. Union of India the Court is in effect the jury, the
judge and the hangman; while in M.R. Parashar H. L. Sehgal it was observed that the Court is
also a prosecutor Anil Kumar Sarkar v. Hirak Ghosh, reiterates this.
In the most controversial and leading case of R.K. Ananad v. Registrar of Delhi High Court
2009. 8 SCC 106, On 30th May, 2007 a TV news channel NDTV carried a report relating to a
sting operation. The report concerned itself with the role of a defence lawyer and the Special
Public Prosecutor in an ongoing Sessions trial in what is commonly called the BMW case. On
31st May, 2007 a Division Bench of this Court, on its own motion, registered a writ Petition and
issued a direction to the Registrar General to collect all materials that may be available in respect
of the telecast and also directed NDTV to preserve the original material including the CD/video
pertaining to the sting operation. The question for our consideration is whether Mr. R.K. Anand
and Mr. I.U. Khan, Senior Advocates and Mr. Sri Bhagwan Sharma, Advocate have committed
criminal contempt of Court or not. It was observed that prima facie their acts and conduct were
intended to subvert the administration of justice in the pending BMW case and in particular to
influence the outcome of the pending judicial proceedings. Accordingly, in exercise of powers
conferred by Article 215 of the Constitution proceedings for contempt of Court (as defined in
Section 2(c) of the Contempt of Courts Act, 1971) were initiated against Mr. Anand, Mr. Khan
and Mr. Sri Bhagwan Sharma and they were asked to show cause why they should not be
punished accordingly. Court said that Courts of law are structured in such a design as to evoke
respect and reverence for the majesty of law and justice. The machinery for dispensation of
justice according to law is operated by the court. Proceedings inside the courts are always
expected to be held in a dignified and orderly manner. The very sight of an advocate, who was
found guilty of contempt of court on the previous hour, standing in the court and arguing a case
or cross-examining a witness on the same day, unaffected by the contemptuous behaviour he
hurled at the court, would erode the dignity of the court and even corrode the majesty of it
besides impairing the confidence of the public in the efficacy of the institution of the courts. This
necessitates vesting of power with the HC to formulate rules for regulating the proceedings
inside the court including the conduct of advocates during such proceedings. That power should
not be confused with the right to practise law. Thus court held that there may be ways in which
conduct and actions of an advocate may pose a real and imminent threat to the purity of court
proceedings cardinal to any court’s functioning, apart from constituting a substantive offence and
contempt of court and professional misconduct. In such a situation the court does not only have
the right but also the obligation to protect itself. Hence, to that end it can bar the advocate from
appearing before the courts for an appropriate period of time. In the present case since the
contents of the sting recordings were admitted and there was no need for the proof of integrity
and correctness of the electronic materials. Finally the Supreme Court upheld High Court’s
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verdict making Anand guilty on the same count. On the other hand, the Supreme Court let off I U
Khan, who was found guilty by the High Court.
Attempt of Murder:
In the case of Hikmat Ali Khan v. Ishwar Prasad Arya and Ors 1997 RD-SC 87, Ishwar Prasad
Arya, respondent No. 1, was registered as an advocate with the Bar Council of Uttar Pradesh and
was practising at Badaun. An incident took place on May 18, 1971 during lunch interval at about
1.55 p.m., in which respondent No. 1 assaulted his opponent Radhey Shyam in the Court room of
Munsif/Magistrate, Bisauli at Badaun with a knife. A pistol shot is also said to have been fired
by him at the time of incident. After investigation he was prosecuted for offences under Section
307 of the Indian Penal Code and Section 25 of the Arms Act. The 1st Temporary Civil and
Sessions Judge, by his judgment dated July 3, 1972, convicted him of the said offence and
sentenced him to undergo rigorous imprisonment for three years for the offence under Section
307, I.P.C. and for a period of nine months for offence under Section 25 of the Arms Act.
On the basis of a complaint disciplinary proceedings were initiated against respondent No. 1 by
the Bar Council of U.P. he was found guilty of gross professional mis-conduct by taking the
benefit himself of a forged and fabricated document which had been prepared at his behest. The
Disciplinary Committee of the Bar Council of U.P. directed that respondent No. 1 be debarred
from practising as an advocate for a period of two years from the date of the service of the order.
Respondent No. 1 filed an appeal, the said appeal was allowed by the Disciplinary Committee of
the Bar Council of India by order dated June 8, 1984 and the order of the Disciplinary
Committee of the Bar Council of U.P. dated January 30, 1982 was set aside on the view that
there was no material on the basis of which it could reasonably be held that respondent No. 1 had
prepared the document which was subsequently found forged. Further the submission of Shri
Markendaya was that having regard to the gravity of the misconduct of respondent No. 1 in
assaulting his opponent in the Court room with a knife and his having been committed the
offence under Section 307, I.P.C. and his being sentenced to undergo rigorous imprisonment for
three years in connection with the said incident, the punishment of removal of the name of
respondent No. 1 from the roll of advocates should have been imposed on him and that the
Disciplinary Committee of the Bar Council of U. P. was in error in imposing the light
punishment of debarring respondent No. 1 from practising as an advocate for a period of three
years only and that this was a fit case in which the appeal filed by the appellant should have been
allowed by the Disciplinary Committee of the Bar Council of India. It was held that the acts of
mis-conduct found established are serious in nature. Under Sub-section (3) of Section 35 of the
Act the Disciplinary Committee of the State Bar Council is empowered to pass an order
imposing punishment on an advocate found guilty of professional or other mis-conduct. Such
punishment can be reprimand [Clause (b)], suspension from practice for a certain period [Clause
(c)] and removal of the name of the advocate from the State roll of advocate [Clause (d)],
depending on the gravity of the mis-conduct found established. The punishment of removal of
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the name from the roll of advocates is called for where the misconduct is such as to show that the
advocate is unworthy of remaining in the profession. In this context, it may be pointed out that
under Section 24(A) of the Act a person who is convicted of an offence involving moral
turpitude is disqualified for being admitted as an advocate on the State roll of advocates. This
means that the conduct involving conviction of an offence involving moral turpitude which
would disqualify a person from being enrolled as an advocate has to be considered a serious
misconduct when found to have been committed by a person who is enrolled as an advocate and
it would call for the imposition of the punishment of removal of the name of the advocate from
the roll of advocates. In the instant case respondent No. 1 has been convicted of the offence of
attempting to commit murder punishable under Section 307, IPC. He had assaulted his opponent
in the Court room with a knife. The gravity of the mis-conduct committed by him is such as to
show that he is unworthy of remaining in the profession. The said mis-conduct, therefore, called
for the imposition of the punishment of removal of the name of respondent No. 1 from the State
roll of advocates and the Disciplinary Committee of the Bar Council of U. P., in passing the
punishment of debarring respondent No. 1 from practising for a period of three years, has failed
to take note of gravity of the misconduct committed by respondent No. 1. Having regard to the
facts of the case the proper punishment to be imposed on respondent No. 1 under Section 35 of
the Act should have been to direct the removal of his name from the State roll of advocates. The
appeal filed by the appellant, therefore, deserves to be allowed. Finally court held that the
respondents name should be removed from the rolls.
Misbehaviour As Misconduct
Vinay chandra mishra, in re 1995. 2. SCC 584; In this case a senior advocate in on being asked a
question in the court started to shout at the judge and said that no question could have been put to
him. He threatened to get the judge transferred or see that impeachment motion is brought
against him in Parliament. He further said that he has turned up many Judges and created a good
scene in the Court. He asked the judge to follow the practice of this Court. He wanted to convey
that admission is as a course and no arguments are heard, at this stage. But this act was not only
the question of insulting of a Judge of this institution but it is a matter of institution as a whole.
In case dignity of Judiciary is not being maintained then where this institution will stand. The
concerned judge wrote a letter informing the incident to the chief justice of India. A show cause
notice was issued to him.
Whether the advocate had committed a professional misconduct? Is he guilty of the offence of
the criminal contempt of the Court for having interfered with and obstructed the course of justice
by trying to threaten, overawe and overbear the Court by using insulting, disrespectful and
threatening language, and convict him of the said offence. Since the contemner is a senior
member of the Bar and also adorns the high offices such as those of the Chairman of the Bar
Council of India, the President of the U.P. HC Bar Association, Allahabad and others, his
conduct is bound to infect the members of the Bar all over the country. We are, therefore, of the
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view that an exemplary punishment has to be meted out to him. Thus the contemner Vinay
Chandra Mishra is hereby sentenced to undergo simple imprisonment for a period of six weeks
and he shall stand suspended from practising as an advocate for a period of three years.
Strike As Misconduct
Ex-capt. Harish uppal V. Union of India Writ Petition (civil) 132 of 1988, Several Petitions raise
the question whether lawyers have a right to strike and/or give a call for boycotts of Court/s. The
petitioners submitted that strike as a mean for collective bargaining is recognised only in
industrial disputes. He submitted that lawyers who are officers of the Court cannot use strikes as
a means to blackmail the Courts or the clients. He submitted that the Courts must take action
against the Committee members for giving such calls on the basis that they have committed
contempt of court. He submitted that the law is that a lawyer who has accepted a Vakalat on
behalf of a client must attend Court and if he does not attend Court it would amount to
professional misconduct and also contempt of court. He submitted that Court should now frame
rules whereby the Courts regulate the right of lawyers to appear before the Court. He submitted
that Courts should frame rules whereby any lawyer who mis-conducts himself and commits
contempt of court by going on strike or boycotting a Court will not be allowed to practice in that
Court. He further submitted that abstention from work for the redressal of a grievance should
never be resorted to where other remedies for seeking redressal are available. He submitted that
all attempts should be made to seek redressal from the concerned authorities. He submitted that
where such redressal is not available or not forthcoming, the direction of the protest can be
against that authority and should not be misdirected, e.g., in cases of alleged police brutalities
Courts and litigants should not be targeted in respect of actions for which they are in no way
responsible. He agreed that no force or coercion should be employed against lawyers who are not
in agreement with the “strike call” and want to discharge their professional duties. Respondent
submitted that lawyers had a right to go on strike or give a call for boycott. He further submitted
that there are many occasions when lawyers require to go, on strike or gave a call for boycott. He
submitted that this Court laying down that going on strike amounts to misconduct is of no
consequence as the Bar Councils have been vested with the power to decide whether or not an
Advocate has committed misconduct. He submitted that this Court cannot penalise any Advocate
for misconduct as the power to discipline is now exclusively with the Bar Councils. He
submitted that it is for the Bar Councils to decide whether strike should be resorted to or not.
Petitioner further relied on the case of Lt. Col. S.J. Chaudhary v. State (Delhi Administration)
1984 CriLJ 340, the HC had directed that a criminal trial go on from day to day. Before this
Court it was urged that the Advocates were not willing to attend day to day as the trial was likely
to be prolonged. It was held that it is the duty of every advocate who accepts a brief in a criminal
case to attend the trial day to day. It was held that a lawyer would be committing breach of
professional duties if he fails to so attend. In the case of K. John Koshy and Ors. v. Dr.
Tarakeshwar Prasad Shaw 1998 8SCC 624, one of the questions was whether the Court should
refuse to hear a matter and pass an Order when counsel for both the sides were absent because of
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a strike call by the Bar Association. This Court held that the Court could not refuse to hear the
matter as otherwise it would tantamount to Court becoming a privy to the strike. Considering the
sanctity of the legal profession the court had relied on words said in case of “In Indian Council of
Legal Aid and Advice v. Bar Council of India, the SC observed thus : “It is generally believed
that members of the legal profession have certain social obligations, e.g., to render “pro bono
publico” service to the poor and the underprivileged. Since the duty of a lawyer is to assist the
court in the administration of justice, the practice of law has a public utility flavour and, therefor,
an advocate must strictly and scrupulously abide by the Code of Conduct behoving the noble
profession and must not indulge in any activity which may tend to lower the image of the
profession in society. That is why the functions of the Bar Council include the laying down of
standards of professional conduct and etiquette which advocates must follow to maintain the
dignity and purity of the profession.” In Re: Sanjeev Datta, the SC has stated thus: “The legal
profession is a solemn and serious occupation. It is a noble calling and all those who belong to it
are its honourable members. Although the entry to the profession can be had by acquiring merely
the qualification of technical competence, the honour as a professional has to be maintained by
its members by their exemplary conduct both in and outside the Court. The legal profession is
different from other professions in that what the lawyers do, affects not only an individual but
the administration of justice which is the foundation of the civilised society. Both as a leading
member of the intelligentsia of the society and as a responsible citizen, the lawyer has to conduct
himself as a model for others both in his professional and in his private and public life. The
society has a right to expect of him such ideal behavior. It must not be forgotten that the legal
profession has always been held in high esteem and its members have played an enviable role in
public life. The regard for the legal and judicial systems in this country is in no small measure
due to the tireless role played by the stalwarts in the profession to strengthen them. They took
their profession seriously and practice it with dignity, deference and devotion. If the profession is
to survive, the judicial system has to be vitalised. No service will be too small in making the
system efficient, effective and credible.” In the case of SC Bar Association v. Union of India, it
has been held that professional misconduct may also amount to Contempt of Court. It has further
been held as follows: “An Advocate who is found guilty of contempt of court may also, as
already noticed, be guilty of professional misconduct in a given case but it is for the Bar Council
of the State or Bar Council of India to punish that advocate by either debarring him from practice
or suspending his licence, as may be warranted, in the facts and circumstances of each case. The
learned Solicitor General informed us that there have been cases where the Bar Council of India
taking note of the contumacious and objectionable conduct of an advocate, had initiated
disciplinary proceedings against him and even punished him for “professional misconduct”, on
the basis of his having been found guilty of committing contempt of court.”
Solicitation of Professional Work

Rajendra V. Pai V. Alex Fernandes and Ors. AIR 2002 SC 1808 Court held that debarring a
person from pursuing his career for his life is an extreme punishment and calls for caution and
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circumspection before being passed. No doubt probity and high standards of ethics and morality
in professional career particularly of an advocate must be maintained and cases of proved
professional misconduct severely dealt with; yet, we strongly feel that the punishment given to
the appellant in the totality of facts and circumstances of the case is so disproportionate as to
prick the conscience of the Court. Undoubtedly, the appellant should not have indulged into
prosecuting or defending a litigation in which he had a personal interest in view of his family
property being involved.
Breach of Trust By Misappropriating The Asset Of Client

Harish Chandra Tiwari v. Baiju 2001 6 SCC 548; Court held on these fact, Appellant Harish
Chandra Tiwari was enrolled as an advocate with the Bar Council of the State of UP in May
1982 and has been practising since then, mainly in the courts at Lakhimpur Kheri District in UP.
Respondent Baiju engaged the delinquent advocate in a land acquisition case in which the
respondent was a claimant for compensation. The Disciplinary Committee has described the
respondent as “an old, helpless, poor illiterate person.” Compensation of Rs. 8118/- for the
acquisition of the land of the said Baiju was deposited by the State in the court. Appellant
applied for releasing the amount and as per orders of the court he withdrew the said amount on
2.9.1987. But he did not return it to the client to whom it was payable nor did he inform the
client about the receipt of the amount. Long thereafter, when the client came to know of it and
after failing to get the amount returned by the advocate, compliant was lodged by him with the
Bar Council of the State for initiating suitable disciplinary action against the appellant. Court
held that among the different types of misconduct envisaged for a legal practitioner
misappropriation of the client’s money must be regarded as one of the gravest. In this
professional capacity the legal practitioner has to collect money from the client towards expenses
of the litigation, or withdraw money from the court payable to the client or take money of the
client to be deposited in court. In all such cases, when the money of the client reaches his hand it
is a trust. If a public servant misappropriates money he is liable to be punished under the present
Prevention of Corruption Act, with imprisonment which shall not be less than one year. He is
certain to be dismissed from service. But if an advocate misappropriates money of the client
there is no justification in de-escalating the gravity of the misdemeanor. Perhaps the dimension
of the gravity of such breach of trust would be mitigated when the misappropriation remained
only for a temporary period. There may be justification to award a lesser punishment in a case
where the delinquent advocate returned the money before commencing the disciplinary
proceedings.
Informing About Bribe: Shambhu Ram Yadav v. Hanuman Das Khatry 2001 6 SCC 1, the
Court upheld the order of bar council of India dated 31st July 1999, which held that the appellant
has served as advocated for 50 years and it was not expected of him to indulge in such a practice
of corrupting the judiciary or offering bribe to the judge and he admittedly demanded
Rs.10,000/- from his client and he orally stated that subsequently order was passed in his client’s
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favour. This is enough to make him totally unfit to be a lawyer by writing the letter in question.
We cannot impose any lesser punishment than debarring him permanently from the practice .His
name should be struck off from, the roll of advocates maintained by the Bar Council of
Rajasthan. Hereafter the appellant will not have any right to appear in any Court of Law,
Tribunal or any authority. Court impose a cost of Rs. 5,000/- to the appellant which should be
paid by the appellant to the Bar Council of India which has to be within two months.
The list of instances of professional misconduct is not exhaustive, the Supreme Court has
widened the scope and ambit of the term misconduct in numerous instances, only few cases has
been elaborated above.
Sl
Instance of misconduct Held in Case Citation
no
Retention of money deposited with

Prahlad Saran Gupta V Bar
1 advocate for the decree holder even AIR 1997.SC.1338
council of India
after execution proceedings
Harish Chander Singh V SN

2 Misguiding Junior Advocate AIR. 1997 SC 879
Tripathi
Assaulting opponent with Knife in Hikmat AliKhan v Ishwar

3 AIR 1997. SC 864
Court room Prasad Arya
4 Scandalisation against Judge In re DC Saxena AIR 1996 SC 2481
UP Sales tax service

5 Attending court with fire arm association v taxation Bar AIR 1996.SC 98
Association, Agra
Discussion of the conduct of judge and

pass resolution by bar council, bar C Ravichandran Iyer v 1995. (2) KLT, SN
6
association or group of practicing Justice AM Bhattacharjee 56 case no 77.
advocates
Failure to return will executed and kept

7 John D Souza v edward Ani 1994. SC 975
in safe custody
8 Constant abstention from conducting of Onkar Singh V Angrez 1993, (1) KLT 650,
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cases Singh P&H High Court.
DS Dalai V State Bank of

India AIR 1993 SC 1608
9 Misappropriation of amount paid / AIR 1993. SC
JS Jadhav v Mustafa Haji 1535
Mohamed Yusuf
M Veerendra Rao v Tek

10 Attesting forged affidavit AIR 1985 SC 28
Chand
Failure to attend trial after accepting the

11 SJ Choudhary v State AIR 1984 SC 618
brief
PD Khandekar v Bar
12 Improper legal advice AIR 1984 SC 110
Council of Maharastra
13 Misappropriation of Decretal amount KV Umre v Venubai AIR 1983 SC 1154
Taking money from client for the Chandra Sekhar Soni v Bar
14 AIR 1983 SC 1012
purpose of giving bribe Council of Rajastan
The bar Council of

Rushing towards potential clients and
15 Maharastra v MV AIR 1976 SC 242
snatching briefs
Dabholkar
NA Mirzan V the
Taking advantage of the ignorance and disciplinary committee of
16 AIR 1972 SC 46
illiteracy of the clients the Bar council of
Maharastra
Appearing with out authority on a

17 In re advocate AIR 1971 Ker 161
forged vakalath
CD Sekkizhar v Secretary,
18 Advertising profession AIR 1967 Mad. 35
Bar Council, Madras.
19 Gross negligence involving moral In the matter of P an AIR 1963. SC 1313

turpitude Advocate and / AIR 1997 SC
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VP Kumaravelu v the Bar 1014
council of India
20 Coercing Colleagues In re Badri Narin AIR 1960 Pt. 307
Rambharosa Kalar v
21 Appearing for both sides AIR 1960 MP 81
Surendra nath Thakur
Brahma din and others v

22 False identification of Deponents AIR 1958 AP 116
Chandrasekhar Shukla
Shri Narain Jafa V The

23 Indecent cross examination Hon. Judges of the High AIR 1953 SC 368
Court, Allahabad
Shouting political slogans and holding In the matter of a pleader, AIR 1943, Mad.
24
demonstrations in court Ottapalam 130
In the matter of a lower AIR 1934 Rang.

25 Attending court in drunken state
grade pleader 423
Bapurao Pakhiddey v
26 Breach of trust 1999 (2) SCC 442
Suman Dondey
Purushottam Eknath
27 bribe 1999 (20 SCC 215
Nemade v DN Mahajun
LC Goyal v Nawal Kishore

and
1997 (2) SCC 258 /
28 Fraud and forgery Devender Bhai Shanker
AIR 1996 SC 2022
Mehta v Ramesh Chandra
Vithal Dass Seth
Procedure Followed on the Notice of Professional Misconduct

The following is the procedure followed (1) In exercise of powers under Section 35 contained in
Chapter V entitled “conduct of advocates”, on receipt of a complaint against an advocate (or suo
motu) if the State Bar Council has ‘reason to believe’ that any advocate on its roll has been guilty
of “professional or other misconduct”, disciplinary proceeding may be initiated against him.
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(2) Neither Section 35 nor any other provision of the Act defines the expression ‘legal
misconduct’ or the expression ‘misconduct’.
(3) The Disciplinary Committee of the State Bar Council is authorised to inflict punishment,
including removal of his name from the rolls of the Bar Council and suspending him from
practice for a period deemed fit by it, after giving the advocate concerned and the ‘Advocate
General’ of the State an opportunity of hearing.
(4) While under Section 42(1) of the Act the Disciplinary Committee has been conferred powers
vested in a civil court in respect of certain matters including summoning and enforcing
attendance of any person and examining him on oath, the Act which enjoins the Disciplinary
Committee to ‘afford an opportunity of hearing’ (vide Section 35) to the advocate does not
prescribe the procedure to be followed at the hearing.
(5) The procedure to be followed in an enquiry under Section 35 is outlined in Part VII of the
Bar Council of India Rules made under the authority of Section 60 of the Act. Rule 8(1) of the
said Rules enjoins the Disciplinary Committee to hear the concerned parties that is to say the
complainant and the concerned advocate as also the Attorney General or the Solicitor General or
the Advocate General. It also enjoins that if it is considered appropriate to take oral evidence the
procedure of the trial of civil suits shall as far as possible be followed.
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3.4 Conduct of Advocates and Disciplinary Proceedings
Conduct has been discussed and so has been disciplinary proceeding rules
Here we shall discuss provisions of Advocates Act 1961
Section 36. Disciplinary powers of Bar Council of India.
(1) Where on receipt of a complaint or otherwise the Bar Council of India has reason to believe
that any advocate whose name is not entered on any State roll has been guilty of professional or
other misconduct, it shall refer the case for disposal to its disciplinary committee.
(2) Notwithstanding anything contained in this Chapter, the disciplinary committee of the Bar
Council of India may, either of its own motion or on a report by any State Bar Council or on an
application made to it by any person interested, withdraw for inquiry before itself any
proceedings for disciplinary action against any advocate pending before the disciplinary
committee of any State Bar Council and dispose of the same.
(3) The disciplinary committee of the Bar Council of India, in disposing of any case under this
section, shall observe, so far as may be, the procedure laid down in section 35, the references to
the Advocate-General in that section being construed as references to the Attorney-General of
India.
(4) In disposing of any proceedings under this section the disciplinary committee of the Bar
Council of India may make any order which the disciplinary committee of a State Bar Council
can make under sub-section (3) of section 35, and where any proceedings have been withdrawn
for inquiry before the disciplinary committee of the Bar Council of India, the State Bar Council
concerned shall give effect to any such order.
36A. Changes in constitution of disciplinary committees.-
Whenever in respect of any proceedings under section 35 or section 36, a disciplinary committee
of the State Bar Council or a disciplinary committee of the Bar Council of India ceases to
exercise jurisdiction and is succeeded by another committee which has and exercises jurisdiction,
the disciplinary committee of the State Bar Council or the disciplinary committee of the Bar
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Council of India, as the case may be, so succeeding may continue the proceedings from the stage
at which the proceedings were so left by its predecessor committee
36B. Disposal of disciplinary proceedings.
(1) The disciplinary committee of a State Bar Council shall dispose of the complaint received by
it under section 35 expeditiously and in each case the proceedings shall be concluded within a
period of one year from the date of the receipt of the complaint or the date of initiation of the
proceedings at the instance of the State Bar Council, as the case may be, failing which such
proceedings shall stand transferred to the Bar Council of India which may dispose of the same as
if it were a proceeding withdrawn for inquiry under sub-section (2) of section 36.
(2) Notwithstanding anything contained in sub-section (1), where on the commencement of the
Advocates (Amendment) Act, 1973 (60 of 1973), any proceedings in respect of any disciplinary
matter against an advocate is pending before the disciplinary committee of a State Bar Council,
that disciplinary committee of the State Bar Council shall dispose of the same within a period of
six months from the date of such commencement or within a period of one year from the date of
the receipt of the complaint or, as the case may be, the date of initiation of the proceedings at the
instance of the State Bar Council, whichever is later, failing which such proceedings shall stand
transferred to the Bar Council of India for disposal under sub-section (1).
Section 37. Appeal to the Bar Council of India.
(1) Any person aggrieved by an order of the disciplinary committee of a State Bar Council
made under section 35 or the Advocate-General of the State may, within sixty days of the date of
the communication of the order to him, prefer an appeal to the Bar Council of India.
(2) Every such appeal shall be heard by the disciplinary committee of the Bar Council of India
which may pass such order (including an order varying the punishment awarded by the
disciplinary committee of the State Bar Council) thereon as it deems fit:
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Provided that no order of the disciplinary committee of the State Bar Council shall be varied by
the disciplinary committee of the Bar Council of India so as to prejudicially affect the person
aggrieved without giving him reasonable opportunity of being heard
Section 38. Appeal to the Supreme Court.
Any person aggrieved by an order made by the disciplinary committee of the Bar Council of
India under section 36 or section 37 or the Attorney-General of India or the Advocate-General of
the State concerned, as the case may be, may, within sixty days of the date on which the order is
communicated to him, prefer an appeal to the Supreme Court and the Supreme Court may pass
such order (including an order varying the punishment awarded by the disciplinary committee of
the Bar Council of India) thereon as it deems fit:
Provided that no order of the disciplinary committee of the Bar Council of India shall be varied
by the Supreme Court so as to prejudicially affect the person aggrieved without giving him a
reasonable opportunity of being heard.
39. Application of sections 5 and 12 of Limitation Act, 1963.
The provisions of sections 5 and 12 of the Limitation Act, 1963 (36 of 1963), shall, so far as may
be, apply to appeals under section 37 and section 38
Section 40. Stay of order
(1) An appeal, made under section 37 or section 38, shall not operate as a stay of the order
appealed against, but the disciplinary committee of the Bar Council of India, or the Supreme
Court, as the case may be, may, for sufficient cause, direct the stay of such order on such terms
and conditions as it may deem fit.
(2) Where an application is made for stay of the order before the expiration of the time allowed
for appealing therefrom under section 37 or section 38, the disciplinary committee of the State
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Bar Council, or the disciplinary committee of the Bar Council of India, as the case may be, may,
for sufficient cause, direct the stay of such order on such terms and conditions as it may deem fit
Section 41. Alteration in roll of advocates.
(1) Where an order is made under this Chapter reprimanding or suspending an advocate, a record
of the punishment shall be entered against his name--
(a) in the case of an advocate whose name is entered in a State roll, in that roll
and where any order is made removing an advocate from practice, his name shall be struck off
the State roll
(3) Where any advocate is suspended or removed from practice, the certificate granted to him
under Section 22, in respect of his enrolment shall be recalled.
Section 42. 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 witnesses or documents;
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(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 (45 of
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 (5 of 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
a 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.
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(5) Where no final orders 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
42A. Powers of Bar Council of India and other committees
The provisions of section 42 shall, so far as may be, apply in relation to the Bar Council of
India, the enrolment committee, the election committee, the legal aid committee, or any other
committee of a Bar Council as they apply in relation to the disciplinary commitee of a Bar
Council.
Section 43. Cost of proceedings before a disciplinary committees.
The disciplinary committee of a Bar Council may make such order as to the costs of any
proceedings before it as it may deem fit and any such order shall be executable as if it were an
order--
(a) in the case of an order of the disciplinary committee of the Bar Council of India, of the
Supreme Court;
(b) in the case of an order of the disciplinary committee of a State Bar Council, of the High
Court.
Section 44. Review of orders by disciplinary committee
The disciplinary committee of a Bar Council may of its own motion or otherwise review any
order within sixty days of the date of that order, passed by it under this Chapter:
Provided that no such order of review of the disciplinary committee of a State Bar Council shall
have effect unless it has been approved by the Bar Council of India.
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3.5 Accounting and Law: Nature, functions and importance
Income Tax Act, 1961 Section 145. Method of accounting.—(1) Income chargeable under the
head ―Profits and gains of business or professionǁ or ―Income from other sourcesǁ shall,
subject to the provisions of sub-section (2), be computed in accordance with either cash or
mercantile system of accounting regularly employed by the assessee. (2) The Central
Government may notify in the Official Gazette from time to time income computation and
disclosure standards to be followed by any class of assessees or in respect of any class of income.
(3) Where the Assessing Officer is not satisfied about the correctness or completeness of the
accounts of the assessee, or where the method of accounting provided in sub-section (1) 3 [has
not been regularly followed by the assessee, or income has not been computed in accordance
with the standards notified under sub-section (2), the Assessing Officer may make an assessment
in the manner provided in section 144.
Section 144 Best Judgment Assessment
Accountancy is the science, art and practice of an accountant. It is a discipline which records,
classifies, summarises and interprets financial information about the activities of a person or
concern so that intelligent decisions can be made about the future actions.
Functions Of Accounting:
1. Systematic record of transactions.
2. Communicating results to the interested parties.
3. Compliance with legal requirements.
4. Ascertain the financial position of individual.
Advantages Of Accounting:
1. Replacement of memory.
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2. Evidence in court.
3. Settlement of taxation liability.
4. Comparative study.
5. Assistance to various parties.
Limitations Of Accounting:
1. Records only monetary transactions.
2. No realistic information.
3. Personal bias of accountant affects the accounting statements.
4. No real test of managerial performance.
5. It lacks a uniform procedure.
Need For Accountancy For Lawyers:
Lawyers have to maintain accounts and for this they should have the knowledge of accounting
due to the following reasons:
1. As a member of the Bar Council, he should know its accounting.
2. He should know Legal services Authorities and Supreme Court Legal Services
Committee.
3. He should know the accounting of Advocates as per Supreme Court rules.
4. He should know the welfare fund accounting.
5. He should know how to prepare his own accounts.
Case Laws:
1. Hikmat Ali Khan v. Ishwar Prasad Arya and Others (AIR 1997 SC 864).
The Supreme Court held that the conduct of Ishwar Prasad, an advocate was such that his
name should be removed from the state roll of advocates as he was found guilty of an
offence of attempting to commit murder and convicted for it and as he was unworthy of
remaining in the profession.
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2. Pawan Kumar Sharma v. Gurdial Singh (1998 (7) SCC 24).
The court held that mere ownership of the taxi cannot lead to any irresistible conclusion
that he was engaged in “taxi business” to constitute misconduct.
3. Harish Chander Singh v. Suman Dondey (1999 (2) SCC 215).

The court held that the disciplinary committee of bar council could not have held the
advocate guilty of charge of misappropriation especially without going the whole of
accounts.
4. Hamiraj L. Chulani v. Bar Council of Maharashtra & Goa (AIR 1996 SC 1708).
The Supreme Court held that the rule made by the bar council restricting the entry of a
person already carrying on other profession is not arbitrary and at the same time it does
not impose reasonable restrictions.
Why Accounting is Important for Lawyers
Every business needs to keep a clear record of expenditure, income, and other financial
information.
For lawyers, well-organised, comprehensive financial records are essential for two main reasons:
 To maintain the highest ethical standards at all times
 To determine the value of their work
When it comes to ethics, keeping a record of clients’ funds, property, and other assets help
lawyers provide an accurate record of how money has been spent. Clients pay significant fees for
legal services, not to mention court fees along with professional fees. To comply with
internationally-agreed standards for ethics, it is necessary to report all expenditure in the name of
transperancy.
In this way, your clients have a clear picture of the fees they need to pay, rather than simply
receiving an invoice for a certain amount. This ensures that no one is overcharged and fully
understands the services they are paying for.
Furthermore, by keeping accurate records, lawyers can determine the final value of the services
they have provided. Good accounting means lawyers know exactly how much money they have
recieved, the expenses they paid, and the exact profit margin. Only with this information can
they know the absolute value of services rendered and be able to set a fair and profitable fee
schedule for their services.
How Accounting Helps Lawyers
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There’s more to accounting than simply providing value and supporting ethical practices. Having
the skills and knowledge to keep their books in order is valuable for lawyers in a range of other
ways.
It Allows you to Set up Good Accounting Processes
There are a number of accounting best practices that make managing your practice a lot easier, as
well helping you to stay compliant with government regulations and tax responsibilities. Having
some knowledge of accounting means that you know how to implement and maintain these kinds
of procedures.
For example, it’s important to keep good records of how, when, and where client funds are spent,
and the best practice to be able to do this well is to keep seperate bank accounts. Established
lawyers and law firms usually have separate client accounts that receive the funds and through
which all transactions are made.
A separate bank account helps keep the tally separate, making it easier to track all transactions,
and allowing you to create to an accessible financial report that you can present to the client and
any other government bodies at the end of the case.
It Avoids Unnecessary Losses
Having separate accounts and a clear record of all funds and transactions also helps to prevent
unnecessary losses. Clients pay for all the legal costs and fees for the duration of their case. If
these costs are not properly accounted for, the money might end up coming out of your pocket.
These are unnecessary losses that can hurt your professional value and your wallet. For larger
firms, such accounting mistakes can greatly hurt the bottom line and affect the salaries of
everyone associated with the firm. Good accounting from the beginning can end helps avoid
such issues.
It Helps Determine Final Profit
Accounting is more than just tallying up expenditure – its main function is to provide an accurate
picture of profit. For lawyers, the final profit on a case or cases determines the value of the work
they’ve put in, so they can later determine whether the work they have done was worth it. Later,
lawyers can use this information to adjust their approach to the clients they accept, procedures,
or the fees they charge, and better refine their business.
It Prevents Any Accidental Financial Fraud
Nobody wants to accidentally commit financial fraud – least of all a lawyer! Without the right
accounting, there’s a chance you could end up overlooking certain expenses, income, or other
items. This simple oversight could result in serious financial fraud.
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You also need to consider taxation. For your taxes, you’ll need a clear record of all expenses and
the separate legal fees you charged. Clear and comprehensive records are best for everybody
involved!
It Gives You a Better Understanding of Financial-Legal Matters
Some knowledge of accounting can be helpful for cases related to financial fraud or similar.
Whether you like it or not, certain cases will require some technical know-how, such as
understanding accounting terms and knowing how to find mistakes in ledgers. If nothing else,
some understanding of accounting will allow you to finesse your arguments and better explain
things to your client.
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4.1 Origin, Development and Object of Contempt Law
The Contempt of Court is a matter concerning the fair Administration of Justice, and aims to
punish any act hurting the dignity and authority of Judicial Tribunals. Although it is difficult to
accurately assess the origins of Contempt Law, there is little doubt that it stems from the
Common Law ideal of supremacy and independence of the Judiciary.
History of Contempt of Court in England
The roots of English Law, from which the contemporary contempt doctrine sprouts, are thin but
deep in history. The phrase Contempt of Court (contemptus curiae) has been in use in English
Law for eight centuries. The Law conferred the power to enforce discipline within its domain
and punish those who fail to comply with its orders.
The Law relating to Contempt of Court has developed over the centuries as a means, whereby,
the Courts may act to prevent on punish conduct which tends to obstruct, prejudice or abuse the
administration of Justice either in relation to a particular case or generally. In legal system it is
based on common law with the exception of certain contain statutory modification in England.
The idea of contempt of the King is referred as an offence in the laws set forth in the first half of
the Twelfth Century.
Contempt of the King's Writ was mentioned in the laws of King Henry-I. In the same laws there
was mention or primary focus for Contempt or disregard of orders. Thus in England before the
end of the Twelfth Century Contempt of Court was a recognized expression and applied to the
defaults and wrongful acts of suitors.
After making a study of cases in the Thirteen Century John Charles Fox concluded that there was
no indication of trial of Contempt out of Court otherwise than in the ordinary course of the law
and many cases of Contempt in Court were tried by indictment and not by a summary process. If
the Contempt is confessed there was no need for trial by Jury and such cases of Contempt were
disposed of by sentence upon confession.
The earlier form of procedure was attachment by Bill, when trial by Jury was followed, unless
the accused confessed. Later the Star Chamber Practice of Attachment and Examination without
Jury was substituted for the procedure by Bill. From Fourteenth Century onwards the jurisdiction
of the King Justices to punish Contempt's of a criminal nature summarily was limited to offences
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not heinous, committed in Court in the actual view of the Justices. The summary jurisdiction was
held to extend to all Contempt whether committed in or out of Court.''
It seems, therefore, that the Common Law Courts had the power to deal summarily with
Contempt committed in their presence. From 1402 to 1640 a number of statutes were passed
giving the superior Courts powers to proceed summarily in certain cases against Officers of the
Court, including Juror. Styles Practical Registrar published in 1657 shows that, certainly, by the
middle of the Seventeenth Century the King's Bench was proceeding summarily against its
Officers.
In the Seventeenth Century, an important development in the law of contempt took place in the
Court of Chancery. The Writ of Attachment began to be used not merely in the case of those
flagrant abuses of the administration of Justice with which the Common Law Courts were not
only to deal, but also to compel performances as between parties in a particular Suit.
The Writ of Attachment and Summary Process, thereon, became part of the ordinary procedure
of the Court. This development led eventually to the distinction between Criminal and Civil
Contempt. In the Seventeenth and Eighteenth Centuries, the distinction was not made as clearly
as it was in the Nineteenth Century.
In the Eighteenth Century the Press and the Pamphleteers flourished and it was in that period that
Contempt in publishing matter calculated to interfere with due administration of Justice became
clearly established. It developed in three stages. Firstly, there were examples of persons being
published for speaking disrespectfully of the Court on service of process. Secondly, where
matters scandalizing the Court constituted Contempt, whenever, published. Thirdly, Court began
to punish persons who published matters calculated to prejudice the fair trial of a pending case.
The power to punish for Contempt of Court was applied originally in England to Contempt
committed in the presence of the Court. In 1747 Thomas Martin, Mayor of Great Yamouth, sent
a banknote fundamental rights Ponds 20 to Lord Hardwicke, Lord Chancellor, with a letter
referring to a proposed Chancery proceeding. Lord Chancellor ordered Martin to show cause
why he should not be committed for Contempt. He sought pardon and Lord Chancellor in
consideration of this, his Public Office, the payment of costs, and his willingness to the
suggestion that the banknote be sent to the Warden of the Fleet Street Prison for debtors for their
relief, did not take any action.
In 1631, when a Prisoner threw a brickbat at the Judge and narrowed missed him, the Prisoner's
right hand was ordered to be cut off and hung on the gallows. In 1938, when disgruntled litigant
threw tomatoes at the Court of Appeal, consisting of Clawson and Goddard JJ., he was
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immediately committed to Prison but released after a few days of incarceration, because, he did
not score a direct hit.
There are several instances of Contempt in the face of Court in English Tradition and they would
not end even if we write a book on it. The development of Contempt Law in England did
contribute great principles to the Law of Contempt, which are presently followed by several
common Law Jurisdictions.
In the year of 1906 the House of Commons passed a resolution that the jurisdiction of Judges in
dealing with Contempt of Court was practically arbitrary and unlimited and called for the action
of Parliament with a view to its definition and limitation and a similar resolution was passed in
1908. Bills for the amendment of the Law of Contempt of Court brought forward in the years
1883, 1892, 1894, 1896 and 1908 but none of these met Lord Fitzgerald's protest with regard to
the summary punishment of constructive contempt's.
In 1960 the Administration of Justice Act gave a right of appeal in criminal cases. After the
provision of Administration of Justice Act and believe the enactment of Contempt of Court Act,
1981 the recommendation of Phillimore Committee' requires serious attention.
On June 08, 1971 Lord Hailsham L. C. appointed a Committee under the Chairmanship of Lord
Justice Phillimore to consider whether any change was required in the law relating to Contempt
of Court? The Committee submitted its report in December, 1974. There were some general
conclusions and recommendations. The bill finally received the Royal Assent on July 27, 1981
and become law on August 27, 1981.
The Law of Contempt has, in the words of the Committee on Contempt of Court which reported
in December, 1974 'developed over the centuries as a means, whereby, the Court may act to
prevent or punish conduct which tends to obstruct, prejudice or abuse the Administration
of Justice earlier in relation to a particular case on generally'.
Its uncertainties, anomalies and unique procedural features have been demonstrated on many
occasion, and the appointment of a Committee to investigate the entire Law of Contempt was
long overdue.
The terms of reference of the Committee which was eventually set up in 1971 chaired initially by
Phillimore L. J. and latterly by Lord Cameron were taken to include Civil Contempt, as well a
Criminal Contempt, and one of the principal recommendations made in the report is that the
distinction between Civil and Criminal Contempt should be abolished.
In the late 1960's one of the most bitter points of contention between Journalists and the law
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arose over the question as to Whether or not-and if so, when newspapers committed a Contempt
of Court by publishing material disclosing the commission of criminal offence, if the material
was potentially prejudicial to the fairness of a subsequent Criminal trial The Journalist was at
risk when criminal proceedings were pending or imminent, hopelessly imprecise time
indicators as far as the Journalist was concerned.
Furthermore, the law imposed liability without proof of mens rea, the offence was one of the
strict liabilities. Part of the purpose of the Contempt of Court Act, 1981 was to clarify all of this,
which it did by saying in Section 2 (3) that the strict liability rule was to apply only when the
proceedings were active.
European Court of Human Rights decided that the United Kingdom's Contempt law was not in
compliance with the free speech principles enshrined in Article 10 of the European convention
(Sunday Times v. UK), it let loose a chain of events where implications are still only gradually
becoming apparent.
Whilst emphasizing that it is not its function to pronounce itself on an interpretation of English
Law adopted in the House of Lords, the Court points out that it has to take a different approach.
The Court is faced not with a choice between two conflicting principles, but with a principle of
freedom of expression that is subject to a number of exceptions which must be interpreted.
In general, the 1981 Act goes a long way towards bringing the United Kingdom law in tune with
the European convention on Human Rights. In interpreting the Act, the Court may consider the
provisions of the convention to avert any breach of its items. The Act is, undoubtedly a
liberalizing measure in important respects.
However, it also leaves untouched several areas of uncertainty in the Law of Contempt.
Moreover, it should be remembered that liberalizing the letter of the law does not necessarily
involve the liberalization of the practice of the law. The attitudes of those who bring contempt
proceedings and those who adjudicate upon them are crucial.''
History of Contempt of Court in India
History of Contempt of Court in India, the roots of Contempt Law in India can be traced back to
the pre-independence period. The East India Company took over the territories in India, which
required the King of England to issue the Charter of 1726 that provided for the establishment of
a Corporation in each Presidency Town.
This Charter is considered to be an important landmark in the history of legal system in India as
it introduced the English Laws in the country. Mayor Courts were constituted in each of the
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Presidency Towns and were made the Courts of Record, and authorised to decide all civil cases
within the respective town and subordinate areas.
Subsequently, in the year 1774, the Mayor's Court at Calcutta was replaced by the Supreme
Court of Judicature at Fort William, Calcutta, under the Regulating Act, 1773.
The Mayor's Courts at Madras & Bombay were superseded by the Recorder's Courts, which were
also later abolished and replaced by the Supreme Courts under the Government of India Act,
1800.
While the Supreme Court at Madras came into existence in the year 1801 by the Charter of 1800,
the Supreme Court at Bombay came into existence in 1824 by the Charter of 1823. The
Recorder's Courts & Supreme Courts had the same powers in the matters of punishing for
contempt as was exercised by the superior Courts in England.
The Supreme Courts were in turn succeeded by the High Courts' under the Indian High Courts
Act of 1861. The three High Courts of Calcutta, Bombay & Madras had the inherent power to
punish for Contempt.
In 1866, the High Court of Allahabad was established under the Indian High Courts Act, 1861
and was constituted as a Court of record with the power to punish for Contempt.
In 1867, Peacock C. J. laid down the Rule regarding the power to punish for Contempt quite
broadly In Re : Abdool and Mahtab, (supra) in the following words:
There can be no doubt that every Court of Record has the power of summarily punishing for
Contempt.
In Legal Remembrance Vs. Matilal Ghose & Ors., (1914) I.L.R. 41 Cal. 173], the Court
observed that the power to punish for Contempt was arbitrary, unlimited and uncontrolled,
and therefore, should be exercised with the greatest caution: that this power merits this
description will be realised when it is understood that there is no limit to the imprisonment that
may be inflicted or the fine that may be imposed save the Court's unfettered discretion, and that
the subject is protected by no right of general appeal.
The Division Bench of the Calcutta High Court considered this jurisdiction of the High Court in
1879 in Martin Vs. Lawrence, (1879) ILR 4 Cal 655 and observed:
The jurisdiction of the Court, under which this process (is) issued is a jurisdiction that it has
inherited from the Old Supreme Court, and was conferred upon that Court by the Charters of the
Crown, which invested it with all the process and authority of the then Court of King's Bench
and of the High Court of Chancery in Great Britain.
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Prior to the coming into force of the Contempt of Courts Act, 1926 there was a conflict of
opinion among the different High Courts as to their power to punish for Contempt of
Subordinate Courts. Madras & Bombay High Courts expressed the view that the High Courts
have jurisdiction to deal with contempt of the Mofussil Courts. But the Calcutta High Court
expressed the view that the High Courts in India did not possess identical power in matters of
Contempt of their Subordinate Courts as possessed by the Court of King's Bench in England.
In Sukhdev Singh Sodhi Vs. The Chief Justice S. Teja Singh & Judges of The Pepsu High
Court, 1954 AIR 186, 1954 SCR 454, the aspect of Contempt of Court was broadly discussed-
It is true the same learned Judges sitting in the Privy Council in 1883 traced the origin of the
power in the case of the Calcutta, Bombay and Madras High Courts to the common law of
England,.. but it is evident from other decisions of the Judicial Committee that the jurisdiction is
broader based than that. But however that may be, Sir Barnes Peacock made it clear that the
words any other law in section 5 of the Criminal Procedure Code do not cover contempt of a
kind punishable summarily by the three Chartered High Courts
Apparently, because of this the Privy Council held in 1853 that the Recorder's Court at Sierre
Leone also had jurisdiction to punish for Contempt, not because that Court had inherited the
jurisdiction of the English Courts but because it was a Court of Record. The High Court of
Allahabad was established in 1866 under the High Court's Act of 1861 and was thus constituted
a Court of record. The Lahore High Court was established by Letter Patent in 1919 and was duly
constituted a Court of Record.
The Contempt of Court Act, 1926 was the first statute in India with relation to Law of Contempt.
Section 2 of this Act recognized the existing jurisdiction in all the High Courts to punish for
Contempt of themselves and conferred on the High Court's the power to punish for Contempt of
Courts subordinate to it. The Act also specified the upper limit of the punishment that can be
imposed for the said Contempts.
In 1927, a Five Judge Bench of the Lahore High Court re-examined the aforesaid position in the
matter of Muslim Outlook, Lahore and affirmed its earlier decision in the case of ['The Crown
Vs. Sayyad Habib', Indian Law Reports; Lahore (1925) Volume 6] observing that the Contempt
jurisdiction was inherent in every High Court and not only in the three Chartered High Courts.
The Act 1926 was later amended in 1937 to clarify that the limits of punishment provided in the
Act related not only to Contempt of subordinate Courts but of all Courts.
It is to be noted that while the Act 1926 was applicable to the whole of British India, the Princely
States of Hyderabad, Madhya Bharat, Mysore, Rajasthan, Travancore-Cochin, Saurashtra &
Pepsu had their own corresponding State enactments on Contempt.
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In 1948, the Pepsu High Court was established by an Ordinance, Section 33 of which provided
that it would be a Court of Record and would have power to punish for Contempt.
The Act of 1926 along with the aforementioned State enactments were repealed and replaced by
the Contempt of Courts Act, 1952 (hereinafter referred to as the Act 1952), which made
significant departures from the earlier Act.
Firstly, the expression High Court was defined to include the Courts of Judicial Commissioner,
which were not so included in the purview of the Act 1926; and secondly, the High Courts,
which now included the Courts of Judicial Commissioner, were conferred jurisdiction to inquire
into and try any Contempt of itself or that of any Court subordinate to it. This was irrespective of
as to whether the Contempt was alleged to have been committed within or outside the local limits
of its jurisdiction, and irrespective of whether the alleged contemnor was within or outside such
limits.
Under the aforesaid legislation the Chief Courts were also vested with the power to try and
punish for any Contempt of itself. The legislation itself prescribed the nature, type, as well as the
extent of punishment that could be imposed by the High Courts and the Chief Courts.
On April 01, 1960, a Bill was introduced in the Lok Sabha to consolidate and amend the law
relating to Contempt of Court. Observing the law on the subject to be uncertain, undefined and
unsatisfactory, and in the light of the constitutional changes in the country, the Government, to
scrutinise the law on the subject and to further study the said Bill, appointed a Special
Committee in 1961, under the Chairmanship of Shri H. N. Sanyal, the then Additional Solicitor
General of India.
The Sanyal Committee examined the law relating to Contempt of Courts in general, and the law
relating to the procedure for Contempt proceedings including the punishment thereof in
particular. The Committee submitted its report in 1963, which inter alia defined and limited the
powers of certain Courts in punishing for Contempt of Courts and provided to regulate the
procedure in relation thereto. It is to be noted that the Committee in its report made specific
mention of Criminal Contempt, recommending specifically the procedure (to be followed) in
cases of Criminal Contempt.
The recommendations of the Committee were generally accepted by the Government after
having wide consultation with the State Governments, Union Territory Administrations, and all
other stakeholders.
The aforesaid Bill was also examined by the Joint Select Committee of the Houses of Parliament,
which also suggested few changes in the said Bill; one of which was in respect of the period of
limitation for initiating Contempt proceedings.
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After the aforesaid deliberations the Contempt of Courts Act, 1971 (70 of 1971) came to be
enacted, which repealed and replaced the Act 1952. The said Act 1971 inter alia categorises
Contempt under two heads i.e. Civil Contempt and Criminal Contempt, providing thereunder
specific definitions for both (Section 2). It also carved out a few exceptions, prescribing
guidelines for reporting and commenting on Judicial proceedings that would not attract the
provisions of the Act.
For example, fair and accurate report of a Judicial proceeding (Section 4) and fair comment
on the merits of any case which has been heard and finally decided (Section 5) would not
give rise to the proceedings under the Act.
The Act also categorically provided that an alleged act would not be punishable thereunder
unless it substantially interferes or tends substantially to interfere with the due course of
Justice (Section 13). The Act also provides for the period of limitation for initiating the
contempt proceedings (Section 20).
It can be observed from a scrutiny that since the enactment of the Act 1926 and subsequently
with that of the Acts of 1952 and 1971, the power of the Court to impose punishment for
Contempt of the Court ceased to be uncontrolled or unlimited.
Purpose and object of law of contempt
The purpose of the law of contempt is to protect the machinery of justice and the interests of the
public. It provides a mechanism to prevent interference in the course of justice and to maintain
the authority of the law, but it is a weapon that must be used sparingly. The object of contempt
proceedings is not to protect judges personally from criticism but to protect the public by
preserving the authority of the court and the administration of justice from undue attack;
however, judges cannot use it to wreck personal vengeance. In the case of contempt which is not
committed in the face of the court, which may be described as constructive contempt, and which
depends upon the interference of an intention to obstruct the course of justice, guidelines for the
exercise of the jurisdiction to commit for contempt have been laid down as follows:
Economical use of jurisdiction is desirable.
Harmonisation between free criticism and the judiciary should be the goal.
Confusion between the personal protection of a libelled judge and the prevention of obstruction
of public justice should be avoided.
The press should be given free play within responsible limits, even when the focus of its critical
attention is the court.
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Judges should not be hyper sensitive, even where distortions and criticism overstep the limits.
If, after taking into account all these considerations, the court finds contempt of court beyond
condonable limits, then the strong arm of the law must be used in the name of public interest and
public justice.
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4.2, 4.3, 4.4, 4.5 Reading Material
4.2 Kinds of Contempt- Contempt by Lawyers, Judges and Corporate Bodies
4.3 Contempt by Judges and Magistrates
4.4 Punishment and Remedies
4.5 Defences
Essentials of Contempt of Court
Contempt of Court has certain essentials and these are as follows:
1. Disobedience to any type of court proceedings, its orders, judgment, decree, etc should be
done ‘willfully’ in case of Civil Contempt.
2. In Criminal Contempt ‘publication’ is the most important thing and this publication can
be either spoken or written, or by words, or by signs, or by visible representation.
3. The court should make a ‘valid order’ and this order should be in ‘knowledge’ of the
respondent.
4. The action of contemnor should be deliberate and also it should be clearly disregard of
the court’s order.
These essentials should be fulfilled while accusing someone for Contempt of Court.
Types of Contempt of Court in India
Contempt of court are classified under three broad categories, according to Lord Hardwick:
1. Scandalizing the court itself.
2. Abusing parties who are concerned in the cause, in the presence of court.
3. Prejudicing the public before the cause is heard.
Depending on the nature of the case in India, Contempt of Court is of two types.
1. Civil Contempt
2. Criminal Contempt
Civil Contempt
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Section 2(a) of the Contempt of Court Act, 1971 states Civil Contempt as wilful disobedience to
the order, decree, direction, any judgment or writ of the Court by any person or willfully breach
of undertakings by a person given to a Court. Since Civil Contempt deprives a party of
the benefit for which the order was made so these are the offences essential of private nature. In
other words, a person who is entitled to get the benefit of the court order, this wrong is generally
done to this person.
Utpal Kumar Das v. Court of the Munsiff, Kamrup W.P. (C) 3696 of 2007 High Court of
Assam
This is the case of non-rendering of assistance, although the court has ordered to render
assistance. Decree executed by the court to deliver immovable property but because of certain
obstruction, the defendant failed to do so. Hence, he was held liable for constituting disobedience
to the orders of the competent Civil Court.
Another case is on the breach of an undertaking which leads to Contempt of Court.
U.P. Resi. Emp. Co-op., House B. Society v. New Okhla Industrial Development Authority 1990
AIR 1325
In this case, the Supreme Court has directed the Noida Authorities to verify and state on the
affidavit details given by persons for allotment of plots. In pursuance to the same direction by the
Supreme Court a person Mr. S filed a false affidavit to mislead the court. The Registry directed a
show-cause notice against him to say that why an act of contempt should not be taken against
him for misleading the Supreme Court.
Defences to Civil Contempt
A person who is accused of Civil Contempt of case can take the following defences:
 Lack of Knowledge of the order: A person can not be held liable for Contempt of Court
if he does not know the order given by the court or he claims to be unaware of the order.
There is a duty binding on the successful party by the courts that the order that has passed
should be served to the Individual by the post or personally or through the certified copy.
It can be successfully pleaded by the contemner that the certified copy of the order was
not formally served to him.
 The disobedience or the breach done was not wilfull: If someone is pleading under this
defence then he can say that the act done by him was not done willfully, it was just a
mere accident or he/she can say that it is beyond their control. But this plead can only be
successful if it found to be reasonable otherwise your plead can be discarded.
 The order that has disobeyed should be vague or ambiguous: If the order passed by
the court is vague or ambiguous or this order is not specific or complete in itself then a
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person can get the defence of contempt if he says something against that order. In R.N.
Ramaul v. State of Himachal Pradesh AIR 1991 SC 1171, this defence has been taken by
the respondent. In this case, the Supreme Court has directed the corporation of the
respondent to restore the promotion of the petitioner from a particular date in the service.
But the respondent has not produced the monetary benefit for the given period and a
complaint was filed against him for Contempt of Court. He pleads for the defence on the
given evidence that it has not mentioned by the court in order to pay the monetary
benefit. Finally, he gets the defence.
 Orders involve more than one reasonable interpretation: If the contempt of any order
declared by the court and the order seems to be given more than one reasonable and
rational interpretation and the respondent adopts one of those interpretations and works in
accordance with that then he will not be liable for Contempt of Court.
 Command of the order is impossible: If compliance of the order is impossible then it

would be taken as a defence in the case of Contempt of Court. However, one should
differentiate the case of impossibility with the case of mere difficulties. Because this
defence can be given only in the case of the impossibility of doing an order.
Criminal Contempt
According to Section 2(c) of the Contempt of Court Act, 1971, Criminal Contempt is Defined as
(i) the publication of any matter by words, spoken or written, or by gesture, or by signs, or by
visible representation or (ii) doing of any act which includes:
1. a) Scandalize or tends to scandalise, or lowers or tends to lower the authority of any

court, or
2. b) Biasness, interferes or tends to interfere with the due course of any type of Judicial
proceedings, or
3. c) obstructs or tends to obstruct, interfere or tend to interfere with the administration of

justice in any manner.
Case on Scandalizing the Court:
Jaswant Singh v. Virender Singh Civil Appeal No. 5332(NCE) of 1993
In this case an advocate caste derogatory and scandalous attack on the judge of the High Court.
An application was filed an election petitioner in the High Court, who was an advocate. He
wanted to seek to stay for further arguments in an election petition and also the transfer of
election petitions. These things cause an attack on the judicial proceeding of the High Court and
had the tendency to scandalize the Court. It was held in this case that it was an attempt to
intimidate the judge of the High Court and cause interference in the conduct of a fair trial.
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Punishment for Contempt of Court
Section 12 of the Contempt of Court Act, 1971 deals with the punishment for Contempt of Court.
Section 12(1) of this Act states that a person who alleged with the Contempt of Court can be
punished with simple imprisonment and this imprisonment can extend to six months, or with fine
which may extend to two thousand rupees or can be of both type punishment. However, an
accused may be discharged or the punishment that was awarded to him maybe remitted on the
condition that if he makes an apology and this apology should satisfy the. If apology is genuine,
such apology cannot be rejected
The court can not impose a sentence for Contempt of Court in excess of what is prescribed under
the given section of this Act either in respect of itself or of a court subordinate to it.
Remedies against an order of Punishment
Section 13 has been added in the Contempt of Court Act, 1971 after amendment in 2006.
Section 13(a) states that no person under this Act shall be punished for Contempt of Court unless
it is satisfied that the Contempt is of such a nature that it substantially interferes or tend to
substantially interfere with the due course of Justice.
Section 13 (b) states that a person may give the defence on the justification of truth if it finds that
the act done in the public interest and the request for invoking such a defence is genuine
Contempt Proceedings
Two Sections of the Contempt of Court Act, 1971 deals with the procedure of Contempt
proceeding. One talks about the proceeding in the face of the court of records and other talks
about the proceedings other than the court of records.
Section 14 of the Contempt of Court deals with the procedure of contempt proceeding in the face
of the SC & HCs whereas Section 15 of this Act deals with the procedure of the Criminal
contempt.
These SC and HCs have got the power to punish for its contempt inherently. Therefore, these
courts of record i.e. SC and HCs can deal with the matter of contempt by making their own
procedure. While exercising the contempt jurisdiction by the courts of record the only case to be
observed is that the procedure adopted must be fair and reasonable in which the alleged
contemnor should be given full opportunity to defend himself. If the specific charge against the
person who is punished for the contempt is distinctly stated and he is given a reasonable
opportunity to answer and to defend himself against the charge then only he will be liable for
contempt of court and the court proceeding runs against him. Where the person charged with
contempt under this section applies whether orally or in writing to have the charge against him,
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tried by some judge other than the judge or judges in whose presence or hearing the contempt is
alleged to have been committed and the court is of the opinion that it is necessary in the interest
of justice that the application should be allowed, it shall cause the matter to be transferred before
such judge as the Chief Justice may think fit and proper under the circumstances of the case or
placed before the Chief Justice with the statement of facts of the case.
Contempt committed outside the court
Section 15(1) of the Contempt of Court Act, 1971 deals with the notice of Criminal Contempt by
Court of Record such as the Supreme Court and the High Court. Following matters can be taken
by the Supreme Court and the High Court for cognizance of the Criminal Contempt:
1. On the motion of court of records.
2. On the motion of the Advocate General of the Supreme Court and the High Court.
3. If any person proceeds with the motion with the consent of the Advocate General in
writing.
4. If the law officer who is related to the High Court for the Union Territory of Delhi as the
Central Government notify proceeds the motion. Then it can be considered as contempt
committed outside the court.
Section 15(2) of this Act states that in the criminal contempt of the subordinate court, the high
court may take certain actions in the manner given in this Act.
Contempt by a Company
In case any person is found guilty of contempt of court for any undertaking given to a court
while he is a member of the company then the person who at that time was in charge of that
company will be responsible for the conduct of the business of that company and shall be
deemed to be guilty of the contempt. The punishment may be enforced by the detention in the
civil prison of such person with the leave of the court
However, that person can be free from liability if such person proves that the contempt was
committed without his knowledge or that he exercised all possible means to prevent its
commission.
Liability of officer of the company
If the contempt of court has been committed by a company and it is provided that the contempt
has been committed with the consent of, or is attributable to any neglect on the part of, any
director, manager, secretary or other officers of the company, then such persons shall also be
deemed to be guilty of the contempt and the punishment will be enforced against them by the
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detention in civil prison of such director, manager, secretary or other officer with the leave of the
court.
Contempt by the third party to the proceeding
If a third party has a part to play in the offence then the third party to the offence may be guilty
of contempt of court and proceeding can initiate against him. In LED Builders Pty Ltd v Eagles
Homes Pty Ltd [1999] FCA 584; 44 IPR 24 Lindgren J stated:
“It is not necessary to show that a person who has breached the order of the court can be liable
for contempt of court but the only necessary thing to confirm his liability for contempt is to show
that the person knew of the order which was breached.”
In another case of M/S. Gatraj Jain & Sons v. Janakiraman Letters Patent Appeal No.1 of
2009 Madras HC it has been stated about the third party to the proceeding that if a third party to
the contempt petition found to be wilfully disobeying the court order then he cannot prevent the
court from restoring the status quo.
Criminal contempt and criminal defamation proceedings
The definition of criminal defamation has been given under Section 499 of the Indian Penal
Code, 1860. It states about defamation that “Whoever, by words either spoken or intended to be
read, or by signs or by visible representations, makes or publishes any imputation concerning
any person intending to harm, or knowing or having reason to believe that such imputation will
harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame
that person.”
There are certain exceptions of criminal defamation and these are:
1. If the publication of anything is in truth and for public good then it cannot be treated as
defamation.
2. When a person touches any public questions then for that he cannot be liable.
3. If the publication is of the reports of the proceedings of the court.
As the right to reputation is an important facet of the right to life and personal liberty guaranteed
under Article 21 of the Indian Constitution, hence, the aim of the criminal defamation is to
prevent a person from maligning harming the reputation of others by using absurd or malign
words with malafide intentions.
In the case of Dr. Subramanian Swamy vs. Union of India (UOI), Ministry of Law and Ors. Writ
Petition(s)(Criminal) No(s).69/2015 the constitutional validity of the criminal defamation was
upheld.
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Limitation
Section 20 of the Contempt of Court Act, 1971 deals with the limitation for the action of
Contempt. It states that no court shall initiate any proceedings of contempt in two conditions:
1. Either the proceedings are on his own motion, or,
2. After the period of one year from the date on which the contempt is alleged to have been
committed.
Landmark Contempt Judgments
 Supreme Court Bar Association vs Union Of India & Anr DATE OF JUDGMENT:
17/04/1998
In this case, the Judge held that procedural aspect for Contempt of Court may still be prescribed
by the Parliament so that it could be applicable in the Supreme Court and the High Court. This
means that Section 12(1) of the Contempt of Court Act, 1971 which prescribed a maximum fine
of Rs. 5000 and imprisonment for a term of six months shall be applicable in this case.
 Zahira Habibullah Sheikh & Anr vs State Of Gujarat & Ors Appeal (crl.) 446-449 of
2004
It was held in this case that the punishment that is given for contempt in the Contempt of Court
Act, 1971 shall only be applicable to the High Court but for Supreme Court, it acts as a guide.
The judgment that was given was not accompanied by rationality, this was worrisome because
the Supreme Court has been given great powers that the drafters of the Indian Constitution has
also not given.
 P.N. Duda vs V. P. Shiv Shankar & Others 1988 AIR 1208
In this case, the Supreme Court observed that the judges cannot use the contempt jurisdiction for
upholding their own dignity. Our country is the free marketplace of ideas and no one could be
restricted to criticise the judicial system unless this criticism hampers the ‘administration of
justice’.
 R. Rajagopal vs State Of T.N 1995 AIR 264,
This case is also known as the Auto Shankar case; in this case, Justice Jeevan Reddy invoked the
very famous doctrine of John Sullivan. This doctrine states that public must be open to strict
comments and accusations as long as made with bonafide diligence, even if it is untrue.
 In Re: Arundhati Roy Contempt Petition (crl.) 10 of 2001
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In this case, the Supreme Court observed that the fair criticism on the conduct of a Judge or the
institution of Judiciary and its function may not amount to contempt if it is made in good faith
and in the public interest.
 Indirect Tax practitioners’ Association v. R.K. Jain CONTEMPT PETITION (CRL.)

NO.15 OF 1997
In this case, the Supreme court observed that the defence of truth can be permitted to the person
accused of contempt if the two conditions are satisfied. These are: (i) if it is in the interest of
public and (ii) the request for invoking the said defence is bonafide. These are given in Section
13 of the Contempt of Court Act, 1971.
 Justice Karnan’s case
He was the first sitting High Court Judge to be jailed for six months on the accusation of
Contempt of Court. In February 2017, contempt of court proceeding was initiated against him
after he accused twenty Judges of the Higher Judiciary of Corruption. He wrote a letter to PM
Modi against this but he did not provide any evidence against them.
Contempt By Lawyers And Its Consequence
The contempt jurisdiction is very wide. The Court has power to punish every person, body or
authority found guilty of the contempt of Court. Contempt by Lawyers, on account of the nature
of duties to be discharged by the lawyers and judges they may get into heated dialogue which
may result in contempt of Court.
There are several instances of the misconduct which have been taken as contempt of Court, e.g.,
using insulting language against a Judge,( MB. Sanghi, Advocate v. High Court of Punjab
Haryana, AIR 1991 SC 1834.) making scandalous allegations against a Judge,( Pritam Pal v.
High Court of M.P, AIR 1992 SC 904.) suppressing the facts to obtain favourable order hurling
shoe at the Judge,( The Municipal Corporation of Greater Bombay v. Smt. Annatte Remand
Uttanwala, 1987 Cr LJ 1038.) imputation 0f partiality (Court on its own Motion v. Milkhi Ram,
1992 Cr LJ 2130 (HP).) and unfairness against the Judge,( Shamsher Singh Bedi v. High Court
of Punjab and Haryana, AIR 1995 SC 1974) etc. A counsel who advises his client to disobey the
order of the Court is also held liable for contempt of Court. Attacking the Judiciary in a Bar
Council Election Manifests is taken as contempt of Court. If a counsel refuses to answer the
questions of the court is also liable for contempt of Courts.
In a case( re Ajay Kumat Pandey, Advocate, AIR 1998 SC 3299.) the Supreme Court has held
that advocate using intemperate language and casting unwarranted aspersions on various judicial
officers and attributing motives to them while discharging their judicial functions would be held
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guilty of gross contempt of Court. In this case such advocate was sentenced to four months
simple imprisonment and fine of one thousand rupees. The Court has observed that it is most
unbefitting for an advocate to make imputations against the Judge only because he does not get
the expected result, which according to him is the fair and reasonable result available to him.
Judges cannot be intimated to seek favourable orders. Only because a lawyer appears as a party
in person, he does not get a licence to commit contempt of the Court by intimidating the Judges
or scandalising the Courts. An advocate cannot use language, either in the pleading or during
arguments which is either intemperate or unparliamentary and which has the tendency to
interfere in the administration of justice and undermine the dignity of the Court and the majority
of law
To resent the question asked by a Judge, to be disrespectful to him, to question his authority to
ask the questions, to shout at him, to threaten him with transfer and impeachment, to use
insulting language and abuse him to dictate the order that he should pass, to create scenes in the
Court and to address him by losing temper are all acts calculated to interfere with and obstruct,
the course of justice. Such acts tend to overawe the Court and to prevent it from performing its
duty to administer justice.(re Vinay Chandra Mishra, AIR 1995 SC 2348.)
Where an advocate shouted slogans in the open court and hurled his shoe towards the court and
thereby interrupted the court proceedings, his action both by his words and deeds in the presence
of the court taken as gross criminal contempt of Court and he was punished for contempt of
court. His apology was not accepted as it was not genuine and bonafide and made only to, escape
punishment.(re Nandlal Balwani, AIR 1999 SC. 1300.)
An important issue is whether boycott of Court or strike by lawyers amounts to contempt of

Court. In a case (Arunava Ghosh v. Bar Council of West Bengal and others. AIR 1996 Cal 331 )
the Court has held that the Bar Council has no power to call a strike of lawyers and such a call
will amount to contempt of Court. In a case (Tarini Mohan v. Pleaders, AIR 1923 Cal 212) the
Court has observed that in boycotting a Court, the advocate violates his duties not only towards
the client but also towards the Court.
It has been held that it is not proper for a pleader to boycott the Court in pursuance of the
resolution of the Bar Association and refrain from appearing in the Court without first obtaining
the consent of his client. (In the matter of a Pleader, AIR 1924 Rangoon 32) However, the
pleader is not guilty of any misconduct if he remains absent from the Court on the day of a strike
in the town and it is not shown that he is engaged in any case fixed on that day.( Emperor v.
Surendra Mohan Maitra and others, 35 CWN 344)
In Common Cause v. Union of India 1995 AIR SCW 1505 a Committee was constituted to
suggest steps to be taken to prevent boycott or strike. The Committee suggested that instead of
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the Court going into the wider question, interim arrangements he made to see whether it would
be workable.
On the basis of the suggestions given by this Committee, the Court has issued the following
interim directions:
1. In the rare instance where any association of lawyers including statutory Bar Councils
considers it imperative to call upon/or advise members of the legal profession to abstain
from appearing in courts on any occasion, it must be left open to any individual
member/members of that association to be free to appear without let, fear or hindrance or
any other coercive steps.
2. No such member who appears in court or otherwise practices his legal profession shall be
visited with any adverse or penal consequences whatever, by any association of lawyers
and shall not suffer any expulsion or threat of expulsion therefrom.
3. The above will not preclude other forms of protest by practicing lawyers in courts such
as, for instance, wearing of arm bands and other forms of protest which in no way
interrupt or disrupt the court proceedings or adversely affect the interest of the litigant.
Any such form of protest shall not, however, be derogatory to the Court or to the
profession.
4. Office-bearers of a Bar Association (including Bar Council) responsible for taking

decisions mentioned in clause (1) above shall ensure that such decisions are implemented
in the spirit of What is stated in clauses (1), (2) and (3) above.
In Ex-capt. Harish Uppal v. Union of India 2003 AIR SCW 43 the Supreme Court has made it
clear that lawyers have no right to go on strike or give a call for boycott, not even on a token
strike. No lawyer can be visited with any adverse consequences by the Association or the Bar
Council and no threat or coercion of any nature including that of expulsion can be held out. The
Court held further that only in the rarest of rare cases where the dignity, integrity and
independence of the Bar and/or the Bench are at stake, the Courts may ignore to a protest
abstention from work for not more than one day.
It is being clarified that it will be for the Court to decide whether or not the issue involves dignity
or integrity or independence of the Bar and/or the Bench. Therefore, in such cases the President
of the Bar must first consult the Chief Justice or the District Judge before advocates decide to
absent themselves from Court.
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The decision of the Chief Justice or the District Judge would be final and have to be abided by
the Bar. The Courts are under no obligation to adjourn the matters because the lawyers are on
strike. On the contrary it is the duty of all courts to go on with matters on their boards even in the
absence of lawyers. Thus, Courts must not be privy to strikes or calls for boycotts. If a lawyer
holding vakalat of a client abstains from attending Court due to strike call, he shall be personally
liable to pay costs which shall be addition to damages which he might have to pay to his client
for loss suffered by him.
It is the duty of every advocate who has accepted a brief to attend trial, even though it may go on
day-to-day and for a prolonged period. A lawyer who has accepted a brief cannot refuse to attend
Court because a boycott call is given by the Bar Association. It is unprofessional and
unbecoming for a lawyer who has accepted brief to refuse to attend Court even in pursuance of a
call for strike or boycott by the Bar Association or the Bar Council.
The Courts are under obligation to hear and decide cases brought before it and cannot adjourn
matters merely because lawyers are on strike. It is a settled law that if a resolution is passed by
the Bar Associations expressing want of confidence in judicial officers it would amount to
scandalising the courts to undermine its authority and thereby the Advocates will have
committed Contempt of Court.
The Court has held that the Bar Associations may be separate bodies but all Advocates who are
members of such Association are under disciplinary jurisdiction of the Bar Councils and thus Bar
Councils can always control their conduct. Even in respect of disciplinary jurisdiction the final
appellate authority is, by virtue of section 38, the Supreme Court.
It is the duty of the Bar Councils to ensure that there is no unprofessional and/or unbecoming
conduct. This being their duty no Bar Council can even consider giving a call for strike or a call
for boycott. It follows that the Bar Councils and Bar Associations can never consider or take
seriously any requisition calling for a meeting to consider a call for a strike or a call for boycott.
In case any Association calls for a strike or call for boycott the concerned State Bar Council and
on their failure the Bar Council of India must immediately take disciplinary action against the
Advocates who give a call for strike and the Committee Members permitted calling of a meeting
for such purpose against the Committee Members.
The Court has further observed that if the Bar Councils do not perform their duties by taking
disciplinary action on complaint from a client against an advocate for non-appearance by reason
of a call for strike or boycott, on an appeal under section 38 the Supreme Court can and will.( Ex.
Capt. Harish Uppal v. Union Of India, 2003 AIR SCW 43)
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Demonstration resulting in the interference with the functioning of the Court will amount to
contempt of Court. In a case (Court on its own Motion v. B.D. Kaushik & others, 1993 Or LJ
336) certain advocates who had stormed into various Court-rooms of the High Court, raised
slogans against the Judges and disrupted the Court’s functioning, were held guilty of contempt of
Court.
Allegations made in the application for the transfer of the case may amount to contempt of court
and the counsel who has signed it may be punished for it.( M.V. Shareef v. Judges of Nagpur
High Court, AIR 1955 SC 19) In the same case, an application was made before one Bench of
the High Court for transfer of the case to the another Bench. As a ground for the transfer it was
stated in the application that certain observations made by the Judges of the Bench from which
the transfer was sought created a bona fide belief in the applicant’s mind that they were
prejudicial against him and had made up their minds and left no doubt in the applicant’s mind
that he would not receive justice at the hands of the Judges. The application was signed by the
applicant and two advocates as the counsel for the applicant. The Court found the counsel guilty
of contempt. The allegations in the application amounted to scandalizing the Court.
If the contemptuous, allegations against the judicial officer are made in writ petition, both
petitioner and his counsel can be held liable for criminal contempt of court. However, if the
counsel owns responsibility and says that the petitioner has reposes trust in him and simply has
signed the petition and the petitioner files affidavit asking for apology, the contemner counsel
alone will be liable for the contempt if it is established that the said act constitutes Contempt of
Court. No one including the advocate who is himself the officer of the Court can claim immunity
from operation of contempt law if his conduct in relation to the court interferes with or is
calculated to obstruct due course of justice.( Court on its Own Motion v. K.K. Jha, AIR 2007 Jh.
67.) Statements imputing prejudice or unfairness or corruption to the Judges should not be made,
unless the statements of the client as tested by the legal adviser are found sustainable.( Govind
Ram v. State of Maharashtra, AIR 1972 SC 989)
Unfounded allegations of corruption by an advocate (re a second Grade Pleader, 110 IC 815) or
imputing unfairness to the Court of Judge in the grounds of appeal to the appellate court ( Dr.
D.C. Saxena v. The Hon’ble Chief Justice 0f India, AIR 1996 SC 2481) or inducing a client to
make false affidavit and use them to delude the court(Linwood v. Andrews and Moove. (1888)
58 LT 612) or false pleading by the advocate (Richardson v. Sutton, (1728) 125 ER 952)
amounts to contempt of Court. Wrongfully withholding the funds belonging to a client (Re Grey,
(1892) 2 QB 440) or acting as solicitor without being duly qualified (Re Simmons, (1885) 15
QBD 348) is also taken as contempt of Court.
CONTEMPT BY JUDGES
Section 16 in the Contempt of Courts Act, 1971

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16. Contempt by Judge, Magistrate or other person acting judicially.—
(1) Subject to the provisions of any law for the time being in force, a Judge, Magistrate or other
person acting judicially shall also be liable for contempt of his own court or of any other court in
the same manner as any other individual is liable and the provisions of this Act shall, so far as
may be, apply accordingly.
(2) Nothing in this section shall apply to any observations or remarks made by a Judge,
Magistrate or other person acting judicially, regarding a subordinate court in an appeal or
revision pending before such Judge, Magistrate or other person against the order or judgment of
the subordinate court.
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Professional Ethics and Professional Accounting System

Legal Profession, Admission, Enrolment, Rights of Advocate

1.1 Introduction: Origin and Evolution

1.2 Legal Profession – Pre/Post Contemporary, Advocates Act, 1961

1.3 Admission and Enrolment

1.4 Disqualification and Removal of Names

1.5 Rights of Advocates

Bar Council - Establishment and Origin

2.1 Introduction – Establishment and Functions

2.2 State Bar Council – Powers and Function

2.3 Bar Council of India – Powers and Function

2.4 Bar Councils and Observance of Principles of Natural Justice

2.5 Right of Advocate to take up Law Teaching

Dr. Bharat Barowalia 1|Page

Ethics of Legal Profession and Accountancy for Lawyers

3.1 Meaning Nature and Need of Professional Ethics

3.2 Standard of Professional Conduct and Etiquette

3.3 Punishment for Professional and other Misconduct

3.4 Conduct of Advocates and Disciplinary Proceedings

3.5 Accounting and Law: Nature, functions and importance

Bar- Bench Relationship and Contempt of Court

4.1 Origin, Development and Object of Contempt Law

4.2 Kinds of Contempt- Contempt by Lawyers, Judges and Corporate Bodies

4.3 Contempt by Judges and Magistrates

4.4 Punishment and Remedies

Dr. Bharat Barowalia 2|Page

1.1 Introduction: Origin and Evolution

Legal profession during Edward I’s period (1272-1307)

Legal profession during Edward I’s period (1272-1307)

Dr. Bharat Barowalia 3|Page

Chapter 29 prohibited misconduct which occurred in a judicial proceeding because of its

Dr. Bharat Barowalia 4|Page

Legal profession after Edward I

Separation between attorneys and serjeants model for solicitor-barrister separation

Dr. Bharat Barowalia 5|Page

The regulation of the legal profession incorporated principles of discipline, definition of

Dr. Bharat Barowalia 6|Page

The following exhortation of Lord Whitlocke is noteworthy:

An attorney was required to take the following oath:

Dr. Bharat Barowalia 7|Page

In England, the position of Serjeant-at-Law was discontinued and was replaced by

Dr. Bharat Barowalia 8|Page

Legal profession in America

Dr. Bharat Barowalia 9|Page

Dr. Bharat Barowalia 10 | P a g e

Selden, J. in Re Cooper observed that:

Dr. Bharat Barowalia 11 | P a g e

In Re Lambuth, the Supreme Court of Washington observed that:

Sharswood in Legal Ethics notes that:

It may be noted that Warvelle in Legal Ethics records:

Dr. Bharat Barowalia 12 | P a g e

Legal Profession in India

Dr. Bharat Barowalia 13 | P a g e

Dr. Bharat Barowalia 14 | P a g e

The Chamier Committee

Dr. Bharat Barowalia 15 | P a g e

Recommendations of the Committee-

Indian Bar Councils Act, 1926.

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Legal Profession – Pre/Post Contemporary, Advocates Act, 1961

History of the Advocates Act, 1961

The Bill behind Advocates Act, 1961

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Main features of the bill behind Advocates Act, 1961