Restriction on Advocates: Misconduct or Miscarriage of Justice
Author: Ritik Saluja, GGSIPU, Delhi
There are a few professions that are considered as a noble profession and practicing Advocacy is one of them. A noble profession is one in which the welfare of society is prioritized over the welfare of self. The profession of advocacy has been noble in the past and has continued to be a noble profession because of continued, dignified and graceful impact on society.
Society has been changing fast and to keep up with the pace of society everything including professional standards has to be updated. Similar is the case with the profession of advocacy, there have been many rules made, acts passed to preserve the nobility of this profession. Some of these laws put different types of restrictions on advocates. But here the dilemma arises whether the restrictions put on advocates are there to prevent the misconduct or are these restrictions result in a miscarriage of justice. Rules on the professional standards that an advocate needs to maintain are mentioned in Chapter II, Part VI of the Bar Council of India Rules. While a few restrictions seem prima facie reasonable while some other seems to be unnecessarily interfering with advocate’s liberties. Some of these are :
- Sec 47 Chapter VI Bar Council Rules states as ’47. An advocate shall not personally engage in any business; but he may be a sleeping partner in a firm doing business provided that in the opinion of the appropriate State Bar Council, the nature of the business is not inconsistent with the dignity of the profession.’
- Sec 48 Chapter VI Bar Council Rules states as ‘ 48. An advocate may be Director or Chairman of the Board of Directors of a Company with or without any ordinarily sitting fee, provided none of his duties are of an executive character. An advocate shall not be a Managing Director or a Secretary of any Company.’
- Sec 49 Chapter VI Bar Council Rules states as ’49. An advocate shall not be a full-time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practice, and shall, on taking up any such employment, intimate the fact to the Bar Council on whose roll his name appears and shall thereupon cease to practice as an advocate so long as he continues in such employment.
*“That as Supreme Court has struck down the appearance by Law Officers
in Court even on behalf of their employers the Judgement will operate in the
case of all Law Officers. Even if they were allowed to appear on behalf of
their employers all such Law Officers who are till now appearing on behalf of
their employers shall not be allowed to appear as advocates. The State Bar
Council should also ensure that those Law Officers who have been allowed to
practice on behalf of their employers will cease to practice. It is made clear
that those Law Officers who after joining services obtained enrolment by reason
of the enabling provision cannot practice even on behalf of their employers.”
* “That the Bar Council of India is of the view that if the said officer is a full-time employee drawing a regular salary, he will not be entitled to be enrolled as an advocate. If the terms of employment show that he is not in full-time employment he can be enrolled.”
- Sec 50 of Ch. VI Bar Council Rules states ’50. An advocate who has inherited, or succeeded by survivorship to a family business may continue it, but may not personally participate in the management thereof. He may continue to hold a share with others in any business which has descended to him by survivorship or inheritance or by will, provided he does not personally participate in the management thereof.’
- Sec 51 of Ch. VI Bar Council Rules states as ’51. An advocate may review Parliamentary Bills for a remuneration, edit legal textbook at a salary, do press-vetting for newspapers, coach pupils for legal examination, set and exam question papers; and subject to the rules against advertising and full-time employment, engage in broadcasting, journalism, lecturing and teaching subjects, both legal and non-legal.’
- Sec 52 of Ch. VI Bar Council Rules states as ’52. Nothing in these rules shall prevent an advocate from accepting after obtaining the consent of the State Bar Council, part-time employment provided that in the opinion of the State Bar Council, the nature of the employment does not conflict with his professional work and is not inconsistent with the dignity of the profession. This rule shall be subject to such directives if any as may be issued by the Bar Council India from time to time.’
- 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 practice. 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.
- 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.
These are some of the restrictions which in personal opinion are wholly irrational and removal of these restrictions will not in any manner result in prejudice to the nobility of the profession.
Activities of Advocates which results in the imposition of more restrictions
Every coin has two sides. On one side there are restrictions put on advocates to preserve nobility of this profession but irrationally hampering the liberties of advocates. On the other side, there are some advocates which sought such practices that enable legislature or judiciary to put restrictions on them.
Some of such activities are as follows :
- Some advocates indulge in bribing judges or other court officials. Advocates in many cases are able to bypass the laws made to prevent corruption. Thus a need arises to put additional restrictions on advocates.
- Many times advocates fakes being ill or being busy in some other urgent work to unnecessarily dragging the proceedings for longer periods.
- Many times advocates do not put their client’s interests ahead of their own interests.
- Sometimes advocates initiate the proceedings only to later withdraw it for going to arbitration or compromise etc.
Advocates should restrain themselves from indulging in any such activity which will be harmful towards the dignity of the profession. Every advocate should have the knowledge that why this profession they are part of is considered as a noble profession and why its nobility should be preserved and how it can be preserved. Thus there should be a sense of responsibility among advocates towards preserving the nobility of the profession.