RULES ON ADVOCATE’S DUTIES
RULES ON AN ADVOCATE’S DUTY TOWARDS THE COURT
Advocates have the dual responsibility of upholding the interests of the client fearlessly while conducting themselves as officers of the court. Accordingly, they are expected to adhere to the highest standards of probity and honour. An advocate’s conduct should reflect their privileged position in society which derives from the nobility of this profession. In a nut shell, if you are an advocate your service to the common man should be compassionate, moral and lawful.
The rules mentioned in the Chapter II, Part IV of the Bar Council of India Rules on standards of professional conduct and etiquette shall be adopted as a guide for all advocates in conducting matters related to law.
1. Act in a dignified manner.
During the presentation of his case and also while acting before a court, an advocate should act in a dignified manner. He should at all times conduct himself with self-respect. However, whenever there is proper ground for serious complaint against a judicial officer, the advocate has a right and duty to submit his grievance to proper authorities.
2. Respect the court.
An advocate should always show respect towards the court. An advocate has to bear in mind that the dignity and respect maintained towards judicial office is essential for the survival of a free community.
3. Not communicate in private.
An advocate should not communicate in private to a judge with regard to any matter pending before the judge or any other judge. An advocate should not influence the decision of a court in any matter using illegal or improper means such as coercion, bribe etc.
4. Refuse to act in an illegal manner towards the opposition.
An advocate should refuse to act in an illegal or improper manner towards the opposing counsel or the opposing parties. He shall also use his best efforts to restrain and prevent his client from acting in any illegal, improper manner or use unfair practices in any mater towards the judiciary, opposing counsel or the opposing parties.
5. Refuse to represent clients who insist on unfair means.
An advocate shall refuse to represent any client who insists on using unfair or improper means. An advocate shall excise his own judgment in such matters. He shall not blindly follow the instructions of the client. He shall be dignified in use of his language in correspondence and during arguments in court. He shall not scandalously damage the reputation of the parties on false grounds during pleadings. He shall not use unparliamentary language during arguments in the court.
6. Appear in proper dress code.
An advocate should appear in court at all times only in the dress prescribed under the Bar Council of India Rules and his appearance should always be presentable.
7. Refuse to appear in front of relations.
An advocate should not enter appearance, act, plead or practice in any way before a judicial authority if the sole or any member of the bench is related to the advocate as father, grandfather, son, grandson, uncle, brother, nephew, first cousin, husband, wife, mother, daughter, sister, aunt, niece, father-in-law, mother-in-law, son-in-law, brother-in-law daughter-in-law or sister-in-law.
8. Not to wear bands or gowns in public places.
An advocate should not wear bands or gowns in public places other than in courts, except on such ceremonial occasions and at such places as the Bar Council of India or as the court may prescribe.
9. Not represent establishments of which he is a member.
An advocate should not appear in or before any judicial authority, for or against any establishment if he is a member of the management of the establishment. This rule does not apply to a member appearing as “amicus curiae” or without a fee on behalf of the Bar Council, Incorporated Law Society or a Bar Association.
10. Not appear in matters of pecuniary interest.
An advocate should not act or plead in any matter in which he has financial interests. For instance, he should not act in a bankruptcy petition when he is also a creditor of the bankrupt. He should also not accept a brief from a company of which he is a Director.
11. Not stand as surety for client.
An advocate should not stand as a surety, or certify the soundness of a surety that his client requires for the purpose of any legal proceedings.
RULES ON AN ADVOCATE’S DUTY TOWARDS THE CLIENT
1. Bound to accept briefs.
An advocate is bound to accept any brief in the courts or tribunals or before any other authority in or before which he proposes to practise. He should levy fees which is at par with the fees collected by fellow advocates of his standing at the Bar and the nature of the case. Special circumstances may justify his refusal to accept a particular brief.
2. Not withdraw from service.
An advocate should not ordinarily withdraw from serving a client once he has agreed to serve them. He can withdraw only if he has a sufficient cause and by giving reasonable and sufficient notice to the client. Upon withdrawal, he shall refund such part of the fee that has not accrued to the client.
3. Not appear in matters where he himself is a witness.
An advocate should not accept a brief or appear in a case in which he himself is a witness. If he has a reason to believe that in due course of events he will be a witness, then he should not continue to appear for the client. He should retire from the case without jeopardising his client’s interests.
4. Full and frank disclosure to client.
An advocate should, at the commencement of his engagement and during the continuance thereof, make all such full and frank disclosure to his client relating to his connection with the parties and any interest in or about the controversy as are likely to affect his client’s judgement in either engaging him or continuing the engagement.
5. Uphold interest of the client.
It shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair and honourable means. An advocate shall do so without regard to any unpleasant consequences to himself or any other. He shall defend a person accused of a crime regardless of his personal opinion as to the guilt of the accused. An advocate should always remember that his loyalty is to the law, which requires that no man should be punished without adequate evidence.
6. Not suppress material or evidence.
An advocate appearing for the prosecution of a criminal trial should conduct the proceedings in a manner that it does not lead to conviction of the innocent. An advocate shall by no means suppress any material or evidence, which shall prove the innocence of the accused.
7. Not disclose the communications between client and himself.
An advocate should not by any means, directly or indirectly, disclose the communications made by his client to him. He also shall not disclose the advice given by him in the proceedings. However, he is liable to disclose if it violates Section 126 of the Indian Evidence Act, 1872.
8. An advocate should not be a party to stir up or instigate litigation.
9. An advocate should not act on the instructions of any person other than his client or the client’s authorised agent.
10. Not charge depending on success of matters.
An advocate should not charge for his services depending on the success of the matter undertaken. He also shall not charge for his services as a percentage of the amount or property received after the success of the matter.
11. Not receive interest in actionable claim.
An advocate should not trade or agree to receive any share or interest in any actionable claim. Nothing in this rule shall apply to stock, shares and debentures of government securities, or to any instruments, which are, for the time being, by law or custom, negotiable or to any mercantile document of title to goods.
12. Not bid or purchase property arising of legal proceeding.
An advocate should not by any means bid for, or purchase, either in his own name or in any other name, for his own benefit or for the benefit of any other person, any property sold in any legal proceeding in which he was in any way professionally engaged. However, it does not prevent an advocate from bidding for or purchasing for his client any property on behalf of the client provided the Advocate is expressly authorised in writing in this behalf.
13. Not bid or transfer property arising of legal proceeding.
An advocate should not by any means bid in court auction or acquire by way of sale, gift, exchange or any other mode of transfer (either in his own name or in any other name for his own benefit or for the benefit of any other person), any property which is the subject matter of any suit, appeal or other proceedings in which he is in any way professionally engaged.
14. Not adjust fees against personal liability.
An advocate should not adjust fee payable to him by his client against his own personal liability to the client, which does not arise in the course of his employment as an advocate.
15.An advocate should not misuse or take advantage of the confidence reposed in him by his client.
16.Keep proper accounts.
An advocate should always keep accounts of the clients’ money entrusted to him. The accounts should show the amounts received from the client or on his behalf. The account should show along with the expenses incurred for him and the deductions made on account of fees with respective dates and all other necessary particulars.
17. Divert money from accounts.
An advocate should mention in his accounts whether any monies received by him from the client are on account of fees or expenses during the course of any proceeding or opinion. He shall not divert any part of the amounts received for expenses as fees without written instruction from the client.
18. Intimate the client on amounts.
Where any amount is received or given to him on behalf of his client, the advocate must without any delay intimate the client of the fact of such receipt.
19. Adjust fees after termination of proceedings.
An advocate shall after the termination of proceedings, be at liberty to adjust the fees due to him from the account of the client. The balance in the account can be the amount paid by the client or an amount that has come in that proceeding. Any amount left after the deduction of the fees and expenses from the account must be returned to the client.
20. Provide copy of accounts.
An advocate must provide the client with the copy of the client’s account maintained by him on demand, provided that the necessary copying charge is paid.
21. An advocate shall not enter into arrangements whereby funds in his hands are converted into loans.
22. Not lend money to his client.
An advocate shall not lend money to his client for the purpose of any action or legal proceedings in which he is engaged by such client. An advocate cannot be held guilty for a breach of this rule, if in the course of a pending suit or proceeding, and without any arrangement with the client in respect of the same, the advocate feels compelled by reason of the rule of the Court to make a payment to the Court on account of the client for the progress of the suit or proceeding.
23. Not appear for opposite parties.
An advocate who has advised a party in connection with the institution of a suit, appeal or other matter or has drawn pleadings, or acted for a party, shall not act, appear or plead for the opposite party in the same matter.
RULES ON ADVOCATE’S DUTY TO OPPONENTS
1. Not to negotiate directly with opposing party.
An advocate shall not in any way communicate or negotiate or call for settlement upon the subject matter of controversy with any party represented by an advocate except through the advocate representing the parties.
2. Carry out legitimate promises made.
An advocate shall do his best to carry out all legitimate promises made to the opposite party even though not reduced to writing or enforceable under the rules of the Court.
RULES ON AN ADVOCATE’S DUTY TOWARDS FELLOW ADVOCATES
1. Not advertise or solicit work.
An advocate shall not solicit work or advertise in any manner. He shall not promote himself by circulars, advertisements, touts, personal communications, interviews other than through personal relations, furnishing or inspiring newspaper comments or producing his photographs to be published in connection with cases in which he has been engaged or concerned.
2. Sign-board and Name-plate.
An advocate’s sign-board or name-plate should be of a reasonable size. The sign-board or name-plate or stationery should not indicate that he is or has been President or Member of a Bar Council or of any Association or that he has been associated with any person or organisation or with any particular cause or matter or that he specialises in any particular type of work or that he has been a Judge or an Advocate General.
3. Not promote unauthorised practice of law.
An advocate shall not permit his professional services or his name to be used for promoting or starting any unauthorised practice of law.
4. An advocate shall not accept a fee less than the fee, which can be taxed under rules when the client is able to pay more.
5. Consent of fellow advocate to appear.
An advocate should not appear in any matter where another advocate has filed a vakalt or memo for the same party. However, the advocate can take the consent of the other advocate for appearing.
In case, an advocate is not able to present the consent of the advocate who has filed the matter for the same party, then he should apply to the court for appearance. He shall in such application mention the reason as to why he could not obtain such consent. He shall appear only after obtaining the permission of the Court.
Disclaimer – I do not exactly remember from where this article has its source. This was in draft since a long time. Most probably it is from Bar Council of India website. It has been used here under fair usage and to help law students.
Art of Cross Examination (short article)