advocay and professional ethics in nutshell

7/31/2019 Advocay and Professional Ethics in Nutshell

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Advocacy is pleading in support of case. Advocacy is not a craft but a calling. Advocacy

by an individual or by an advocacy group normally aim to influence public-policy and

resource allocation decisions within political, economic, and social systems and

institutions; it may be motivated from moral, ethical or faith principles or simply toprotect an asset of interest. Advocacy can include many activities that a person or

organization undertakes including media campaigns, public speaking, commissioning

and publishing research or poll or the 'filing of friend of the court briefs'. Lobbying is a

form of advocacy where a direct approach is made to legislators on an issue which plays

a significant role in modern politics.

a) Accept brief in the Court: An advocate is a person who argues in favour of his

clients in courts of justice. An advocate is bound to accept any brief in the Courts or

Tribunals or before any other authority in or before which he professes to practice at a

fee consistent which his standing at the bar and the nature of the case.

b) Filing the case: In civil cases a suit is required to be instituted by presenting a plaint

to the court. The statement of a plaint regarding his claim is taken as a plaint. The

plaintiff presents his case along with cause of action etc. through the plaint. The plaint

is also called the written statement. Every pleading is required to contain a statement in

a concise form of the material facts on which the party filing the plaint relies for his

claim or defence.

c) Pleading: The fundamental principles of pleading are four:

1) Every pleading must state fact and no law;

2) It must state all the material facts;

3) It must state only the facts on which the party pleading relies, and not theevidence; and

4) It must state facts concisely but with precision and certainty.

The object of the pleading is to make both the parties aware of their cases and

allegations made against each other. Every pleading shall be signed by the party and his

pleader. Order VI of the Civil Procedure Code deals with pleadings. It contains several

rules relating to pleading. An advocate shall follow those Rules in his Pleading. Suit is

commenced by presentation of the plaint.

d) Examination-in-Chief: Examination-in-chief is the way in which advocates present

almost all of the evidence through witnesses, whether as counsel for plaintiff or


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2 Advocacy

defendant. Examination of expert witnesses and the admission of expert opinions

are also vital part of advocacy for which special skill is to be achieved according

to the expert evidence.

e) Cross-examination: The examination of a witness by the adverse party shall

be called his cross examination. Witnesses shall be first examined-in-chief then

cross-examined, later re-examined. The witness may be cross-examined to show

his bias or prejudice, to show an interest in the outcome of the case. Cross-

examination should be carefully done and to the extent when there is a

reasonable chance that it will advance their clients theory of the case, or

undermine some elements of the opponents case or defence. Good cross-

examination in an art and it is learnt from experience and from observing senior

advocates while cross-examining witnesses as well.

In cross-examination every question is required to be asked with an object. By

cross examination discrepancies in the evidence of the opponent may be created.

Cross examination of witnesses is a procedural matter. It should be done

according to the provisions of the Indian Evidence Act, Civil Procedure Code,

Criminal Procedure Code and other provisions of the law. While cross-examining,

an advocate must not offend the personal feelings on the opposite party.

Cross-examination must relate to the relevant facts. An advocate has no right todisgrace and bully a witness by putting offensive questions. The witness may be

cross-examined on the same point and if there is a contradiction in relation to the

transaction, the same can be brought to the notice of the court during

arguments. Cross-examination should not be misused by an examination which

is unnecessarily too long, ambiguous, improper, aimless and uncertain. An

advocate should not ask leading questions. Cross-examination is an art and the

advocate should use it without losing temper. Questions, which affect the

credibility of a witness by attacking his character should not be asked. It is to be

remembered that cross examination should be carefully done and to the extent

when there is a reasonable chance that it will advance their clients theory of the

case, or undermine some elements of the opponents case or defence. The

opponent advocate should not interrupt the cross-examining advocate. Cross-

examination is a right of the advocate; but it should not be misused.

f) Re-examination: The examination of a witness subsequent to the cross-

examination by the party who called him is called re-examination. The main

object of the re-examination is to explain the points arising out of the cross-

examination. The re-examination is required to be directed to the explanation of

the matter referred to in cross-examination. In the re-examination an attempt is


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Elements of Advocacy 3

to be made to restore the credit of the witness attacked during the cross-

examination. In re-examination leading questions must not be asked. If new

matter is, by permission of the Court, introduced in re-examination, the adverse

party has the right to cross-examine upon that matter.

g) Arguments: In arguing a case strongest points should be emphasised and the

weak points should not be raised as far as possible. Arguments on each issue

should be written out. The names of witnesses and the documents in support of

the issue should be early noted. An advocate should study the record of the case

with the object to discover the weak points and also the strong points in the

opponents case. An advocate should prepare the argument in such a way as to

meet them and prove them as insignificant. If the advocate finds that a point of

the opponent is very strong and cannot be met, then it is better to concede it. Theweak points in the opponent case should be emphasized much so as to prove that

the weakness is of such a nature that in spite of everything else cannot be

sustained.

h) Appeals: Arguing of appeals in a Court of Law is also of considerable

importance. In the judgement, the Judge will have some reasonable ground. A

careful study of the case is required to find the points which were not noticed by

the Court.


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Justice Abbot Parry qualifies the following qualities as Seven Lamps of Advocacy. The

are ...

1. Honesty: Honesty is the most important quality that an advocate should possess.His thoughts, words and deeds should have sincere co-relation to each other with

genuineness. An advocate should be dependable and reliable to every one who seeks his

advice and services. The uprightness, integrity and honesty of an advocate will increase

his reputation and respect in the society.

2. Courage: It is the duty of an advocate to fearlessly uphold the interests of his client

by all fair means without fear of any unpleasant consequences to himself or any other

person. It is the knowledge and skill of the advocate that gives him the necessary

courage and confidence to present the case fearlessly and to uphold the interest of theclient. The knowledge and the skill can be acquired and developed by mastery of facts,

mastery of laws, and mastery in drafting and presentation of convincing arguments.

3. Industry: It means hard work. Hard works is absolutely necessary for an advocate.

His knowledge of law should be up to date. He will never be ignorant of the current law

in force. He will get acquainted with the latest law only by systematic study. If one

ignores the law, the law will also ignore him. That is why it is said that law is a jealous

mistress.

4. Wit: Judges and lawyers have to deal with a variety of serious and important matters

affecting life and liberty of the people. So constant clash between them is common.

Anxiety for a favourable verdict on the part of the lawyers; and perpetual worry for the

pursuit of truth on the part of the judges generate strain and tension. Occasional wit

and humour, provoking a smile or laughter will help them to ease the tension, and

refresh themselves to sharpen their brain for the effective discharges of their duties.

5. Eloquence: Eloquence means the fluency, force and style of using the language.

Strong vocabulary is one of the powerful weapon, which an advocate should possess.Words are his keys of thought. Strong vocabulary gives him assurance, build his self-

confidence and increase his personality. Words must be employed with eloquence. The

art of persuasive and impressive speaking will give the desired result in his favour.

6. Judgement: It means the ability to come to a sensible conclusion and make wise

decisions at the relevant time in the proper way. It is on the basis of these conclusions

he should employ the necessary facts and techniques in the case in which he is engaged.

This quality is necessary from the beginning of filling the case till its final disposal. An

advocate must always anticipate all the possible moves of the other side and mustdevelop the necessary presence of mind, alertness and tact to cope with any awkward

situation of difficulty that may arise in the case.


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Seven Lamps of Advocacy 5

7. Fellowship: In legal profession, one advocate fights with another advocate for

justice before a learned judge. There may be controversies and contradictions in

their contention relating to the case, but that shall never affect their fellowship.

The advocates should refer the opposite partys advocate as learned friend andthe judge should be referred as learned judge. In order to maintain the

fellowship, the Bar Council of India has laid down certain rules to be observed as

the duty to colleagues.

(7+1) Tact: K.V.Krishnaswamy Aiyer, in his book Professional Conduct and

Advocacy adds one more lamp i.e. tact. Tact means handling people and

situations skilfully and without causing offence. An advocate must be in a

position to tackle and win his client, opponent party, opponent advocate in a

smoother way. Many people of unequal ability have failed for want of tack. Anadvocate should not quarrel with Court or loose temper over trifle things in the

Court and outside. Men of unquestioned ability have suffered for quarrelling with

the tribunal or for standing on their dignity over trifles, for getting their clients, or

for losing their tempers; they are men of parts but more properly refers to the

human side of putting into action the result of ones judgement.


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Section I of Chapter-II, Part VI of Bar Council of India Rules

(Made by the Bar Council of India under Section 49(1 )(c) of the Advocates Act, 1961)

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 what may be lawful and normal 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. The rules hereinafter mentioned

contain cannons of conduct and etiquette adopted as general guides; yet specific

mention thereof shall not be construed as a denial of the existence of others equally

imperative though not specifically mentioned.

1. An advocate shall, during the presentation of his case and while otherwise acting

before a Court, conduct himself with dignity and self-respect. He shall not be servile and

whenever there is proper ground for serious complaint against a judicial officer, it shall

be his right and duty to submit his grievance to proper authorities.

2. An advocate shall maintain towards the Courts a respectful attitude, bearing in mind

that the dignity of the judicial office is essential for the survival of a free community.

3. An advocate shall not influence the decision of a Court by any illegal or improper

means. Private communications with Judge relating to a pending case are forbidden.

4. An advocate shall use his best efforts to restrain and prevent his client from restoring

to sharp or unfair practices or from doing anything in relation to the Court, opposing

counsel or parties which the advocate himself ought not to do. An advocate shall refuse

to represent the client who persists in such improper conduct. He shall not consider

himself a mere mouthpiece of the client, and shall exercise his own judgment in the use

of restrained language in correspondence, avoiding scurrilious attacks in pleadings, and

using intemperate language during arguments in Court.

5. An advocate shall appear in Court at all times only in the prescribed dress, and his

appearance shall always be presentable.

6. An advocate shall not enter appearance, act, plead or practice in any way before a

Court, Tribunal or Authority mentioned in Section 30 of the Act, if the sole or any

member thereof is related to be Advocate as father, grandfather, son, grandson, uncle,


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Section I: Duty to the Court 7

brother, nephew, first cousin, husband, wife, mother, daughter, sister, aunt,

niece, father-in-law, daughter-in-law or sister-in-law.

7. An advocate shall not wear bands or gown in public places other than inCourts except on such ceremonial occasions, and at such places as the Bar

Council or the Court may prescribe.

8. An Advocate shall not appear in or before any Court or Tribunal or any other

authority for or against an organisation or an institution, society or corporation, if

he is a member of the Executive Committee of such organisation or institution or

society or corporation. "Executive Committee," by whatever name it may be

called, shall include any Committee or body of persons which, for the time being,

is vested with the general management of the affairs of the organisation orinstitution, society or corporation.

Provided that this Rule shall not apply to such a member appearing as 'amicus

curiae' or without a fees in a matter affecting the affairs or a Bar Council,

Incorporated Law Society or a Bar Association.

9. An Advocate should not act or plead in any matter in which he himself is

pecuniarily interested.

Illustration

I. He should not act in a bankruptcy petition when he himself is also a creditor

of the bankrupt.

II. He should not accept a brief from a company of which he is a director.

10. An Advocate shall not stand as a surety, or certify the soundness of surety,

for his client required for the purpose of any legal proceedings.

11. An Advocate is bound to accept any brief in the Courts or Tribunals or before

any authority in or before which he professes to practise at a fee consistent with

his standing at the Bar and the nature of the case. Special circumstances may

justify his refusal to accept a particular brief.

12. An Advocate shall not ordinarily withdraw from engagements once accepted,without sufficient cause and unless reasonable and sufficient notice is given, to


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8 Standards of Professional Conduct and Etiquette for Lawyer India

the client. Upon his withdrawal from a case, he shall refund such part of the fee

as has not been earned.

13. An Advocate should not accept a brief or appear in a case in which he hasreason to believe that he will be a witness and if being engaged in case, it

becomes apparent that he is a witness on a material question of fact, he should

not continue to appear as an Advocate if he can retire without jeopardising his

client's interests.

14. An Advocate shall at the commencement of his engagement and during the

continuance thereof, make all such full and frank disclosures 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 judgment in either engaging him orcontinuing the engagement.

15. It shall be the duty of an advocate fearlessly to uphold the interests of his

client by all fair and honourable means 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 accused, bearing in mind that

his loyalty is to the law which requires that no man should be convicted without

adequate evidence.

16. An Advocate appearing for the prosecution in a criminal trial shall so conduct

the prosecution that it does not lead to conviction of the innocent. The

suppression of material capable of establishing the innocence of the accused

shall be scrupulously avoided.

17. An Advocate shall not, directly or indirectly, commit a breach of the

obligations imposed by Section 126 of the Indian Evidence Act.

18. An Advocate shall not, at any time, be a party to fomenting of litigation.

19. An Advocate shall not act on the instruction of any person other than his

client or his authorised agent.

20. An Advocate shall not stipulate for a fee contingent on the results of litigation

or agree to share the proceeds thereof.

21. An Advocate shall not buy or traffic in or stipulate for or agree to receive any

share or interest in any actionable claim. Nothing in this Rule shall apply tostock, shares debentures or government securities, or to any instruments which


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Section II: Duty to the Client 9

are for the time being, by law or custom negotiable, or to any mercantile

document or title to goods.

22. An Advocate shall not, directly or indirectly, bid for or purchase, either in hisown name or in any other name, for his own benefit or for the benefit of any

person, any property sold in the execution of a decree or order in any suit, appeal

or other proceeding in which he was in any way professionally engaged. This

prohibition, however, does not prevent an Advocate from bidding for or

purchasing for his client any property which his client may himself legally bid for

or purchase provided the Advocate is expressly authorised in writing in this

behalf.

23. An Advocate shall not adjust fees payable to him by his client against his ownpersonal liability to the client, which liability does not arise in the course of his

employment as an Advocate.

24. An Advocate shall not do any thing whereby he abuses or takes advantage of

the confidence reposed in him by his client.

25. An advocate should keep accounts of the client's money entrusted to him,

and the accounts should show the amounts received from the client or on his

behalf, the expenses incurred for him and the debits made on account of feeswith respective dates and all other necessary particular.

26. Where moneys are received from or on account of a client, the entries in the

accounts should contain a reference as to whether the amounts have been

received for fees or expenses, and during the course of the proceedings, no

Advocate shall, except with the consent in writing of the client concerned, be at

liberty to divert any portion of the expenses towards fees.

27. Where any amount is received or given to him on behalf of his client the factof such receipt must be intimated to the client as early as possible.

28. After the termination of the proceeding the Advocate shall be at liberty to

appropriate towards the settled fee due to him any sum remaining unexpended

out of the amount paid or sent to him for expenses, or any amount that has come

into his hands in that proceeding.

29. Where the fee has been left unsettled, the Advocate shall be entitled to

deduct, out of any moneys of the client remaining in his hands, at thetermination of the proceeding for which he had been engaged, the fee payable


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under the rules of the Courts in force for the time being, or by then settled and

the balance, if any, shall be refunded to the client.

30. A copy of the client's account should be furnished to him on demand providedthe necessary copying charge is paid.

31. An Advocate shall not enter into arrangements whereby funds in his hands

are converted into loans.

32. 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.

Explanation: An Advocate shall not be held guilty of a breach of this rule, if in thecourse of a pending, suit or proceedings, 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.

33. An Advocate who has at any time, advised in connection with the institution

of a suit, appeal or other matter or has drawn pleadings or acted for a party, shall

not appear or plead for the opposite party.

34. An Advocate shall not in any way communicate or negotiate upon the subject

matter of controversy with any party represented by an Advocate except through

that Advocate.

35. 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 rules of

the Court.

36. An Advocate shall not solicit work or advertise, either directly or indirectly,

whether by circulars. Advertisements, touts, personal communica-tions, interview

not warranted by personal relations, furnishing or inspiring newspaper comments

or procuring his photograph to be published in connection with cases in which he

has been engaged or concerned. His 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 Members of a Bar Council or of any


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Section IV: Duty to Colleagues 11

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.

37. An Advocate shall not permit his professional services or his name to be used

in aid of or to make possible, the unauthorised practise of law by any lay agency,

38. An Advocate shall not accept a fee less than the fee taxable under the rules

when the client is able to pay the same.

39. An Advocate shall not enter appearance in any case in which there is already

a vakalat or memo of appearance filed by an Advocate engaged for a party except

with his consent, in case such consent is not produced he shall apply to theCourt stating reasons why the said consent could not be produced and he shall

appear only after obtaining the permission of the Court.

40. Every advocate borne on the Rolls of a State Bar Council shall pay to the

State Bar Council a sum of Rs. 30 every third year, commencing 1st April, 1980,

either at one time or in three equated instalments.

41. The aforesaid sum collected by the State Bar Council shall be credited to a

separate fund to be known as 'Advocates Welfare Fund'.

42. All sums so collected by the State Bar Council in accordance with Rule 40

shall be remitted to the Bar Council of India forthwith, which shall be credited by

the Bar Council of India to a separate fund to be known as 'Advocates Welfare

Fund.'

43. Every advocate borne on the rolls of a State Bar Council shall deliver on orbefore 1st April every year, commencing from 1st April 1980 a declaration in the

form prescribed.

44. Every Advocate borne on the Rolls of a State Bar Council shall entrol himself

as member of a Bar Association within the territory over which the said Bar

Council exercises, jurisdiction. Every declaration under Rule 43 above, shall be

accompanied by a certificate of the Secretary of that Bar Association, certifying

that he is a member and that he has paid all the dues of the Bar Association.

45. The name of every Advocate, who fails to pay the aforesaid sums within the

prescribed time set out in Rule 40 or fails to file the declaration under Rule 43 or


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makes any false statement in the declaration under Rule 43 shall be removed

from the Rolls of the State Bar Council.

46. Before the name of any Advocate is removed from the Rolls under Rule 45 theSecretary of the State Bar Council shall serve on the Advocate concerned a notice

to show cause against the removal of his name and the cause shown, if any, shall

be dealt with by the Chairman of the State Bar Council forthwith who, in his

discretion, shall pass such orders as he thinks fit.

47. It is improper for an Advocate to demand or accept fees or any premium for

any person as a consideration for imparting in law under the rules prescribed by

the Bar Council to enable such person to qualify for enrolment under the

Advocates Act, 1961.

48. Every Advocate shall in the practice of the profession of law bear in mind that

any one genuinely in need of a lawyer is entitled to legal assistance even though

he cannot pay for it fully or adequately and that within the limits of an Advocate's

economic condition, free legal assistance to the indigent and oppressed is one of

the highest obligations an Advocate owes to society.

49. 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 Bar

Council the nature of the business is not inconsistent with the dignity of the

profession.

50. An Advocate may be a Director or Chairman of the Board of Directors of a

company with or without any ordinary 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.

51. An Advocate shall not be full-time salaried employee of any person,

government, firm, corporation or concern, so long as he continues to practise and

shall, on taking up any such employment, intimate the fact to the Bar Counciland shall thereupon cease to practise as an advocate so long as he continues in

such employment.


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Section VII: Restrictions on Other Employments 13

Nothing in this rule shall apply to Law Officer of the Central Government or the

Government of a State or of any Public Corporation or body constituted by statute

who is entitled to be enrolled under the rules of the Bar Council made under

Section 28(2)(d) read with Section 24(1)(c) of the Advocates Act, 1961 despite hisbeing a full-time salaried employee.

52. 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.

53. An Advocate may review Parliamentary Bills for a remuneration, edit legal textbooks at a salary, do 'press-vetting' for newspapers, coach pupils for legal

examinations, set and examine 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.

54. Nothing in these rules shall prevent an Advocate from accepting, after

obtaining the consent of the Bar Council part-time employment provided that in

the opinion of the Bar Council the nature of the employment does not conflict

with his professional work and is not inconsistent with the dignity of theprofession.

These rules shall be subject to such directives if any as may be issued by the Bar

Council of India from time to time.


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1. Every Advocate shall be under an obligation to see that his name appears on the roll

of the State Council within whose jurisdiction he ordinarily practices.

2. An Advocate shall not enter into a partnership or any other arrangement for sharingremuneration with any person or legal Practitioner who is not an Advocate.

3. Every Advocate shall keep informed the Bar Council on the roll of which his name

stands, of every change of his address.

4. The Council or a State Council can call upon an Advocate to furnish the name of the

State Council on the roll of which his name is entered, and call for other particulars.

5. (I) Any Advocate who voluntarily suspends practice for any reason whatsoever shall

intimate such suspension to the State Council on the roll of which his name is entered.

(2) A similar intimation shall be given by every Advocate on resumption of practice.

6. (1) An Advocate whose name has been removed by order of the Supreme Court or a

High Court or the Bar Council as the case may be, shall not be entitled to practise the

profession of law either before the Courts and authorities mentioned under Section 30 of

the Advocates Act, 1961 or in chambers, or otherwise.

(2) An Advocate who is under suspension, shall be under same disability during the

period of such suspension as an advocate whose name has been removed from the roll.

7. A person, who has held judicial/quasi judicial office in any part of the Union Territory

of Delhi at any time within two years immediately preceding his retirement or otherwise

ceasing to be in service, shall not practise for a period of two years from the date of his

retirement or ceasing to be in service as the case may be in the territory of Delhi.

Provided that nothing in this Rule shall prevent any such person from practising in any

Court of Superior jurisdiction to the one in which he held the office.

Explanation:A Court of Sessions, a District Court or the City Civil Court shall be a Court

of Superior jurisdiction in relation to a Magistrate's Court or Small Causes Court, even

though no appeal may lie from the latter to the former.

8. No Advocate shall be entitled to practise if in the opinion of the Bar Council he is

suffering from such contagious disease as makes his practice of law a hazard to the

health of others. This qualification shall last for such period as the Bar Council directs

from to time.


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According to Section 16 (1) of the Advocates Act, 1961 there shall be two classes of

Advocates, namely, senior advocates and other advocates.

Sec. 16(2) provides that an advocate may, with his consent, be designated as senioradvocate if the Supreme Court or a High Court is of opinion that by virtue of his ability,

standing at the Bar or special knowledge of experience in law he is deserving of such

distinction.

Each High Court follows its own procedure in designating an Advocate as a Senior

Advocate. Earlier the High Courts themselves used to consider certain Advocates as

worthy of being designated as Sr. Advocate and after obtaining the consent of the

Advocate concerned used to designate him as such. Now in some High Courts, the

Advocate concerned who fulfils the prescribed qualifications has to apply to the HighCourt and make a request to be designated as a Senior Advocate. Upon such an

application the sitting Judges of the High Court express their views through ballot and

according to the majority opinion the Senior Advocate status is either granted or refused.

Sec. 16(3) provides that senior advocates shall, in the matter of their practice, be subject

to such restrictions as the Bar Council of India may, in the interest of the legal

profession, prescribe.

Section 30 confers rights to practice throughout the territory of India in following terms:

Subject to provisions of this Act, every advocate whose name is entered in the State roll

shall be entitled as of right to practise throughout the territories to which this Act

extends, -

(i) In all Courts including the Supreme Court;

(ii) Before any tribunal or person legally authorised to take evidence; and

(iii) Before any other authority or person before whom such advocate is by or under

any law for the time being in force entitled to practice.

Section 23 grants Right of pre-audience as under:

(1) The Attorney General of India shall have pre-audience over all other advocates.

(2) Subject to the provisions of sub-section (1), the Solicitor-General of India shall have

pre-audience over all other advocates.

(3) Subject to the provisions of sub-sections (1) and (2), the Additional Solicitor-General

of India shall have pre-audience over all other advocates.


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16 Senior Advocates

(3A) Subject to the provisions of sub-sections (1), (2) and (3), the second

Additional Solicitor-General of India shall have pre-audience over all other

advocates.

(4) Subject to the provisions of sub-section (1), (2), (3) and (3A) the Advocate

General of any State shall have pre-audience over all other advocates, and, the

right of pre-audience among Advocates-General inter se shall be determined by

their respective seniority.

(5) Subject as aforesaid-

(i) Senior advocates shall have pre-audience over other advocates; and

(ii) The right of pre-audience over senior advocates inter se and other

advocates inter seshall be determined by their respective seniority.

Bar Council of India Rules, imposes certain restrictions on Senior Advocates,

which is reproduced below.

BAR COUNCIL OF INDIA RULES

PART - VI

RULES GOVERNING ADVOCATES

CHAPTER -I

Restrictions on Senior Advocates

(Rules Under Sections 16 (3) and 49 (1) (g) of the Act)

Senior Advocates shall, in the matter of their practice of the profession of law

mentioned in Section 30 of the Act, be subject to the following restrictions:

(a) A Senior Advocate shall not file a vakalatnama or act in any Court, or

Tribunal, or before any person or other authority mentioned in Section 30 of the

Act.

Explanation : To act means to file an appearance or any pleading or applicationin any court or Tribunal or before any person or other authority mentioned in

Section 30 of the Act, or to do any act other than pleading required or authorised


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Senior Advocates 17

by law to be done by a party in such Court or Tribunal or before any person or

other authorities mentioned in the said Section either in person or by his

recognised agent or by an advocate or an attorney on his behalf.

(b) (i) A Senior Advocate shall not appear without an Advocate on Record in the

Supreme Court or without an Advocate in Part II of the State Roll in any court or

Tribunal or before any person or other authorities mentioned in Section 30 of the

Act.

(ii) Where a Senior Advocate has been engaged prior to the coming into force of

the rules in this Chapter, he shall not continue thereafter unless an advocate in

Part II of the State Roll is engaged along with him. Provided that a Senior

Advocate may continue to appear without an advocate in Part II of the Sate Rollin cases in which he had been briefed to appear for the prosecution or the

defence in a criminal case, if he was so briefed before he is designated as a senior

advocate or before coming into operation of the rules in this Chapter as the case

may be.

(c) He shall not accept instructions to draft pleading or affidavits, advice on

evidence or to do any drafting work of an analogous kind in any Court or

Tribunal or before any person or other authorities mentioned in Section 30 of the

Act or undertake conveyancing work of any kind whatsoever. This restrictionhowever shall not extend to settling any such matter as aforesaid in consultation

with an advocate in Part II of the State Roll.

(cc) A Senior Advocate shall, however, be free to make concessions or give

undertaking in the course of arguments on behalf of his clients on instructions

from the junior advocate.

(d) He shall not accept directly from a client any brief or instructions to appear in

any Court or Tribunal or before any person or other authorities in India.

(e) A Senior Advocate who had acted as an Advocate (Junior) in a case, shall not

after he has been designated as a Senior Advocate advise on grounds of appeal in

a Court of Appeal or in the Supreme Court, except with an Advocate as aforesaid.

(f) A Senior Advocate may in recognition of the services rendered by an Advocate

in Part-II of the State Roll appearing in any matter pay him a fee which he

considers reasonable.


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ADVOCATE'S DRESS/ROBES

(BCI Rules under Section 49 (I) (gg) of the Act)

Advocates appearing in the Supreme Court, High Courts, Subordinate Courts, Tribunalsor Authorities shall wear the following as part of their dress which shall be sober and

dignified.

1. Advocates: (a) A black buttoned up coat, chapkan, achkan, black sherwani and white

bands with Advocates Gowns.

(b) A black open breast coat. white shirt, white collar, stiff or soft, and white bands with

Advocates Gowns.

In either cases wear long trousers (white, black striped or grey), Dhoti excluding Jeans.

Provided further that in Courts other than the Supreme Court, High Courts, District

Courts, Sessions Courts or City Civil Courts, a black tie may be worn instead of bands.

2. Lady advocates: (a) A black full sleeve jacket or blouse, white collar stiff or soft, with

white bands and Advocates Gowns.

White blouse, with or without collar, with white bands and with a black open breasted

coat.

Or

(b) Sarees or long skirts (white or black or any mellow or subdued colour without any

print or design) or flare (white, black or black striped or grey) or Punjabi dress churidar-

kurta or salawar-kurta with or without dupatta (white or black) or traditional dress with

black coat and bands.

3. Wearing of Advocates gowns shall be optional except when appearing in the SupremeCourt or in High Court.


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An advocate is the most accountable, privileged and erudite person of the society and his

act are role model for the society, which are necessary to be regulated.

Generally, misconduct is the behaviour outside the bounds of what is consideredacceptable or worthy of its membership by the governing body of a profession. It refers to

disgraceful or dishonourable conduct not befitting an advocate.

Specifically, misconduct is breach of duties prescribed by the body governing the

profession; in case of advocates it is the Bar Council of India. The Bar Council Rules

prescribe a strict code of conduct for advocate (supra)

Misconduct may be classified as under;

1. Professional Misconduct: Where the advocate while acting as advocate commits

breach of any duty prescribed by the Bar Council. For example, he may collude with the

opposite party and thereby deceive his own client.

2. Other Misconduct: Where the advocate commits an act not becoming of an advocate,

while acting otherwise than as an advocate, he is said to have committed other

misconduct. For example, the advocate collects money from a person falsely promising to

secure job for him, and thereby deceives him.

Section 35 of the Advocates Act lays down the procedure for taking disciplinary action

against an advocate and provides for the following punishments if he is found guilty of

misconduct.

Sec. 35 (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 period as it may deemed 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 subsection (3) he

shall, during the period of suspension, be debarred from practising in any court or

before any authority or person in India.


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20 Professional Misconduct

Chapter V of the Advocate Act, 1961, deals with the conduct of Advocates. It

describes provisions relating to punishment for professional and othermisconducts.

Under proviso to sec.35(1) of the Advocates Act, where on receipt of a complain

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 to it disciplinary committee.

Thus, there are three ways by which the matter may be referred to the

Disciplinary Committee by the State Bar Council:

1. On a complaint lodged by a party: Where a party is aggrieved by the

misconduct of an adovate, he may make a complaint to the SBC.

2. On a matter referred by a Court: Where an advocate commits misconduct

in the Court, for example misbehaves with the judge, the Court may refer

the matter to the SBC for its action. This may be in addition to the

contempt of court.

3. Suo motu: Where the SBC comes to know on its own,for example by reading

a newspaper report, about the misconduct committed by an advocate, it

may suo motuinitiate action against him.

However, the further procedure in all these cases is the same.

Filing of Complaint: The complaint can be filed in English or in Hindi or in a

regional language where the language has been declared to be a state language.

In those cases where the complaint is in Hindi or in any other regional language,the State Bar Council shall translate the complaint in English whenever a

disciplinary matter is sent to the Bar Council of India as per the Advocates Act.

Every complaint shall be accompanied by the fees prescribed in the Bar Council

of India Rules.

Removal of Defects and Request for Particulars in a Complaint: The Secretary

of the Bar Council may require the complainant to pay the prescribed fees if the

proper fee has not been paid. He can also call the complainant to remove any

defects and call for the particulars or copies of the complaint or other documents

as may be considered necessary.


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Disciplinary Proceedings 21

On a complaint being found to be in order, it shall be registered and placed before

the Bar Council for such order as it may deem fit to pass.

Withdrawal and Settlement of Complaints: No matter taken up by the StateBar Council (either suo motu or on a complaint made by other parties) for

misconduct of advocates shall be dropped solely by reason of its having been

withdrawn, settled or otherwise compromised, or because the complainant does

not want proceed with the enquiry.

Before referring a complaint for misconduct of an advocate to one of its

Disciplinary Committees to be specified by it, the Bar Council may require a

complainant to furnish further and better particulars or may call for comments

from the advocate complained against, within a time to be fixed by it.

Show Cause Notice: Once the Bar Council has referred the complaint to a

disciplinary committee, the Registrar should expeditiously send a notice to the

advocate.

The notice will ask the concerned advocate to show cause within a specified date,

on the complaint made against him and to submit the statement of defence,

documents and affidavits in support of the defence.

It will also further inform him that in case of his non-appearance on the fixed

date of hearing, the matter shall be heard and determined in his absence.

Appearance usually includes appearance by an advocate or through a duly

authorised representative.

Time of Enquiry: The Chairman of the Disciplinary Committee will fix the date,

hour, and place of the enquiry. This date will not ordinarily be later than thirty

days from the receipt of the reference. The Registrar has to give notice of the date,

hour and place to the complainant or other person aggrieved, the advocateconcerned, and the Attorney General or the Additional Solicitor General of India

or the Advocate General, as the case may be.

Notices: The notices shall be sent to the advocates appearing for the parties.

Notice to a party not appearing by the advocate shall be sent to the address as

furnished in the complaint or in the grounds of appeal.

The cost of the notices shall be borne by the complainant unless the Disciplinary

Committee otherwise directs.


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The notices may be sent ordinarily through messenger or by registered post and

served on the advocate or the party concerned or his agent or other person as

provided for in Order V of the Civil Procedure Code.

Notice may also be sent for service through any Civil Court.

Where the notice sent to any party cannot be served using the normal methods

listed above, it may be served by affixing a copy in some conspicuous place in the

office of the Bar Council, and also upon some conspicuous part of the house (if

any) in which the party concerned is known to have last resided or had his office.

Appearance and Witnesses: Parties can appear in person or by an advocate who

should file a vakalatnama giving the name of the Bar Council in which he isenrolled, his residential address, telephone number if any, and his address for

service of notices.

A Senior Advocate is entitled to appear with another advocate who has filed a

vakalatnama.

The Bar Council or its Disciplinary Committee may at any stage of a proceeding

appoint an advocate to appear as Amicus Curiae. Such advocate may be paid

such fee as the Council or the Committee may decide.

Excepting when the Committee has otherwise directed, service on the advocate

shall be deemed to be sufficient service on the parties concerned, even if copies of

the notices are in addition sent to the parties, whether the parties have or have

not been served.

Unless otherwise indicated, where more than one Advocate appears for the same

party, it is sufficient to serve the notice on any of them.

Ex-parte Proceedings: If, in an enquiry on a complaint received, either the

complainant or the respondent does not appear before the Disciplinary

Committee in spite of service of notice, the Committee may proceed ex-parte or

direct fresh notice to be served.

Any such order for proceeding ex-partemay be set aside on sufficient cause being

shown, when an application is made supported by an affidavit, within 60 days of

the passing of the ex-parteorder.

The provisions of Section 5 of the Limitation Act, 1963 shall apply to this sub-

rule.


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Proceedings and Exhibits: The Disciplinary Committee shall hear the Attorney

General or the Additional Solicitor General of India or the Advocate General, as

the case may be or their advocate and parties or their advocates.

The matters can be heard and determined on documents and affidavits. Unless

the committee is of the opinion that it should be in the interest of justice to

permit cross-examination of the deponents or to take oral evidence, in which case

the procedure for the trial of civil suits shall as far as possible be followed.

On every document admitted in evidence, the following endorsement shall be

made which shall be signed by the Chairman or any member of the Committee:

The Disciplinary Committee may at any stage direct the parties or their advocatesto furnish such further and better particulars, as it considers necessary.

Recording of Evidence: Any member of the Committee or any other person

authorised by the committee shall record the evidence given before the

Disciplinary Committee preferably in English. The evidence so recorded shall be

signed by the Chairman or by any other member of the committee if the

Chairman is not there.

In the case where the records of evidence are in any other language than English

and the same has to be sent to the Bar Council of India or its Disciplinary

Committee, then the same has to be translated into English. Such a translation

thereof in English has to be made by a person nominated by Committee or

Registrar certifying the same to be true copy should also be sent.

Record of Proceedings: Every Disciplinary Committee shall make a record of its

day-to-day proceedings.

The Registrar of the Disciplinary Committee shall maintain a case diary setting

out shortly in order of date, all relevant information concerning the date of filing,

the date for hearing and despatch.

The case diary shall also have the details of service of the notices on the parties

or the Advocates or the Attorney General or the Additional Solicitor General or the

advocate General as the case may be, of statements or petitions filed and/or of

their order, and of other proceedings in the matter before the Committee.


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Dropping of Enquiries on Certain Grounds: In the case of the death of the

complainant during the enquiry proceedings (and if there is no representative

who is willing to conduct the case), the Disciplinary Committee may having

regard to the allegations made in the complaint and the evidence available, makea suitable order either to proceed with the enquiry or to drop it.

In the case of an enquiry against one advocate only, on his death the Disciplinary

Committee shall record the fact of such death and drop the proceedings.

Where the enquiry is against more than one advocate, on the death of one of

them, the Disciplinary Committee may continue the enquiry against the other

advocate unless it decides otherwise.

No disciplinary enquiry shall be dropped solely by reason of its having been

withdrawn, settled or otherwise compromised, or that the complainant does not

want to proceed with the enquiry.

Dress:Unless otherwise permitted, counsel appearing before any of the

Disciplinary Committees of the State Bar Council or Bar Council of India shall

appear in court dress.

Findings and Judgement: The finding of the majority of the members of theDisciplinary Committee shall be the finding of the Committee. The reason given in

support of the finding may be given in the form of a judgement.

If there is a difference of opinion, any member dissenting shall be entitled to

record his dissent giving his own reason. It shall be competent for the

Disciplinary Committee to award such costs as it thinks fit.

The Registrar of the Disciplinary Committee shall send, free of charge to each of

the parties in the proceedings, a certified copy of the final order or judgement.

The date of an Order made by the Disciplinary Committee shall be the date on

which it is first received in the office of the Bar Council after all the members

have signed it.

For the purpose of limitation, the date of the Order shall be the date on which the

contents of the signed Order are communicated to the parties affected.

Transfer of case to BCI: If the Disciplinary Committee of the State Bar Council

does not decide the matter within one year, the matter automatically stands

transferred to the Bar Council of India, which will try the matter.


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If the State Bar Council decides the matter within a year, an appeal against that

decision lies to the Bar Council of India.

Thus, BCI has both original as well as appellate jurisdictions. However, acomplaint cannot be made to the BCI directly.

Against the order of the BCI either in the exercise of original jurisdiction or

appellate jurisdiction appeal lies to the Supreme Court.


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The Supreme Court in a recent decision, O.P. Sharma v. High Court of Punjab &

Haryana, had the occasion to examine the rules regarding Professional Conduct and

etiquettes of advocates. The case in hand dealt with the contemptuous conduct of

advocates before a magistrate, which resulted in suo motu initiation of contemptproceedings by the Punjab & Haryana High Court. The matter eventually reached the

Supreme Court where the court has brought a quietus to the proceedings by accepting

the unconditional apologies on behalf of the advocates. However, in doing so, the

Supreme Court has culled out the principles regarding duties and conduct of advocates.

The Supreme Court pointed out the role advocates have played in our history and also to

the Rules of BCI. It observed:

The role and status of lawyers at the beginning of Sovereign and Democratic India isaccounted as extremely vital in deciding that the Nations administration was to be

governed by the Rule of Law. They were considered intellectuals amongst the elites of

the country and social activists amongst the downtrodden. These include the names

of galaxy of lawyers like Mahatma Gandhi, Motilal Nehru, Jawaharlal Nehru,

Bhulabhai Desai, C. Rajagopalachari, Dr. Rajendra Prasad and Dr. B.R. Ambedkar,

to name a few. The role of lawyers in the framing of the Constitution needs no special

mention. In a profession with such a vivid history it is regretful, to say the least, to

witness instances of the nature of the present kind. Lawyers are the officers of the

Court in the administration of justice.

Section I of Chapter-II, Part VI titled Standards of Professional Conduct and

Etiquette of the Bar Council of India Rules specifies the duties of an advocate

towards the Court.

After that it referred to the following cases:

In Daroga Singh and Others vs. B.K. Pandey1, one Additional District and Sessions Judge

was attacked in a pre-planned and calculated manner in his courtroom and chamber bypolice officials for not passing an order they sought. This Court held that, "The Courts

cannot be compelled to give "command orders". The act committed amounts to deliberate

interference with the discharge of duty of a judicial officer by intimidation apart from

scandalizing and lowering the dignity of the Court and interference with the

administration of justice. The effect of such an act is not confined to a particular court

or a district, or the State, it has the tendency to effect the entire judiciary in the country.

It is a dangerous trend. Such a trend has to be curbed. If for passing judicial orders to

the annoyance of the police the presiding officers of the Courts are to be assaulted and

humiliated the judicial system in the country would collapse."

1 (2004) 5 SCC 26


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Supreme Court on Advocates Conduct, etc. 27

In R.D. Saxena vs. Balram PrasadSharma2, Supreme Court held as under:

In our country, admittedly, a social duty is cast upon the legal profession to show

the people beckon (sic beacon) light by their conduct and actions. The poor,uneducated and exploited mass of the people need a helping hand from the legal

profession, admittedly, acknowledged as a most respectable profession. No effort

should be made or allowed to be made by which a litigant could be deprived of his

rights, statutory as well as constitutional, by an advocate only on account of the

exalted position conferred upon him under the judicial system prevalent in the

country

In Mahabir Prasad Singh vs. Jacks Aviation Pvt. Ltd.3, this Court held that it is the

solemn duty of every Court to proceed with judicial function during Court hours

and no Court should yield to pressure tactics or boycott calls or any kind of

browbeating. The Bench as well as the Bar has to avoid unwarranted situations

or trivial issues that hamper the cause of justice and are in the interest of none.

In Ajay Kumar Pandey, Advocate, Re4, the advocate was charged of criminal

contempt of Court for the use of intemperate language and casting unwarranted

aspersions on various judicial officers and attributing motives to them while

discharging their judicial functions. This Court held as under:

The subordinate judiciary forms the very backbone of administration of justice. This

Court would come down a heavy hand for preventing the judges of the subordinate

judiciary or the High Court from being subjected to scurrilous and indecent attacks,

which scandalise or have the tendency to scandalise, or lower or have the tendency

to lower the authority of any court as also all such actions which interfere or tend to

interfere with the due course of any judicial proceedings or obstruct or tend to

obstruct the administration of justice in any other manner. No affront to the majesty

of law can be permitted. The fountain of justice cannot be allowed to be polluted by

disgruntled litigants. The protection is necessary for the courts to enable them to

discharge their judicial functions without fear.

In Chetak Construction Ltd. vs. Om Prakash & Ors.5, Supreme Court deprecated

the practice of making allegations against the Judges and observed as under:

Indeed, no lawyer or litigant can be permitted to browbeat the court or malign the

presiding officer with a view to get a favourable order. Judges shall not be able to

perform their duties freely and fairly if such activities were permitted and in the

2 (2000) 7 SCC 264

3 (1999) 1 SCC 37

4 (1998) 7 SCC 248

5 (1998) 4 SCC 577


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28 Supreme Court on Advocates Conduct, etc.

result administration of justice would become a casualty and rule of law would

receive a setback. The Judges are obliged to decide cases impartially and without any

fear or favour. Lawyers and litigants cannot be allowed to terrorize or intimidate

Judges with a view to secure orders which they want. This is basic andfundamental and no civilised system of administration of justice can permit it

Similar view has been reiterated in Radha Mohan Lal vs. Rajasthan High Court6.

Advocacy touches and asserts the primary value of freedom of expression. It is a

practical manifestation of the principle of freedom of speech. Freedom of

expression in arguments encourages the development of judicial dignity, forensic

skills of advocacy and enables protection of fraternity, equality and justice. It

plays its part in helping to secure the protection or other fundamental human

rights, freedom of expression, therefore, is one of the basic conditions for the

progress of advocacy and for the development of every man including legal

fraternity practising the profession of law. Freedom of expression, therefore, is

vital to the maintenance of free society. It is essential to the rule of law and liberty

of the citizens. The advocate or the party appearing in person, therefore, is given

liberty of expression. But they equally owe countervailing duty to maintain

dignity, decorum and order in the court proceedings or judicial processes. Any

adverse opinion about the judiciary should only be expressed in a detached

manner and respectful language. The liberty of free expression is not to beconfounded or confused with licence to make unfounded allegations against any

institution, much less the judiciary [vide D.C. Saxena vs. The Hon'ble Chief

Justice of India7].

In Re: Vinay Chandra Mishra (the alleged contemner)8, the contemner who was a

senior advocate, President of the Bar and Chairman of the Bar Council of India,

on being questioned by the Judge started to shout and said that no questioncould have been put to him and that he will get the High Court Judge transferred

or see that impeachment motion is brought against him in Parliament. This Court

while sentencing him to simple imprisonment for six weeks suspended him from

practising as an advocate for a period of three years and laid down as follows:

The contemner has obviously misunderstood his function both as a lawyer

representing the interests of his client and as an officer of the court. Indeed, he has

not tried to defend the said acts in either of his capacities. On the other hand, he has

6 (2003) 3 SCC 427

7 (1996) 5 SCC 216

8 (1995) 2 SCC 534


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tried to deny them. Hence, much need not be said on this subject to remind him of

his duties in both the capacities. It is, however, necessary to observe that by

indulging in the said acts, he has positively abused his position both as a lawyer and

as an officer of the Court, and has done distinct disservice to the litigants in generaland to the profession of law and the administration of justice in particular.

In the case of Supreme Court Bar Association vs. Union of India & Anr.9, a

Constitution Bench of this Court overruled In re: Vinay Chandra Mishra (the

alleged contemner) and held as under:

The power of the Supreme Court to punish for contempt of court, though quite wide,

is yet limited and cannot be expanded to include the power to determine whether an

advocate is also guilty of "Professional misconduct" in a summary manner which can

only be done under the procedure prescribed in the Advocates Act. The power to do

complete justice under Article 142 is in a way, corrective power, which gives

preference to equity over law but it cannot be used to deprive a professional lawyer of

the due process contained in the Advocates Act 1961 by suspending his licence to

practice in a summary manner, while dealing with a case of contempt of court.

It also opined that:-

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 ofthe 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. We do not entertain any doubt

that the Bar Council of the State or Bar Council of India, as the case may be, when

apprised of the established contumacious conduct of an advocate by the High Court

or by this Court, would rise to the occasion, and taken appropriate action against

such an advocate. Under Article 144 of the Constitution "all authorities, civil and

judicial, in the territory of India shall act in aid of the Supreme Court. The Bar

Council which performs a public duty and is charged with the obligation to protect

the dignity of the profession and maintain professional standards and etiquette is

also obliged to act in aid of the Supreme Court. It must, whenever, facts warrant

rise to the occasion and discharge its duties uninfluenced by the position of the

contemner advocate. It must act in accordance with the prescribed procedure,

whenever its attention is drawn by this Court to the contumacious and unbecoming

9 (1998) 4 SCC 409


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conduct of an advocate which has the tendency to interfere with due administration

of justice

The Bench went on to say :-

There is no justification to assume that the Bar Council is would not rise to the

occasion, as they are equally responsible to uphold the dignity of the courts and the

majesty of law and prevent any interference in the administration of justice. Learned

counsel for the parties present before us do not dispute and rightly so that whenever

a court of record, records its findings about the conduct of an Advocate while finding

him guilty of committing contempt of court and desires or refers the matter to be

considered by the concerned Bar Council, appropriate action should be initiated by

the concerned Bar Council in accordance with law with a view to maintain the dignity

of the courts and to uphold the majesty of law and professional standards and

etiquette.

In M.B. & Sanghi, Advocate vs. High Court of Punjab &Haryana10, this Court took

notice of the growing tendency amongst some of the Advocates of adopting a

defiant attitude and casting aspersions having failed to persuade the Court to

grant an order in the terms they expect. Holding the Advocates guilty of

contempt, Supreme Court observed as under:

The tendency of maligning the reputation of Judicial Officers by disgruntledelements who fail to secure the desired order is ever on the increase and it is

high time it is nipped fat the bud. And, when a member of the profession

resorts to such cheap gimmicks with a view to browbeating the Judge into

submission, it is all the more painful. When there is a deliberate attempt to

scandalise which would shake the confidence of the litigating public in the

system the damage caused is not only to the reputation of the concerned

Judge but also to the fair name of the judiciary, Veiled threats, abrasive

behaviour, use of disrespectful language and at times blatant condemnatory

attacks like the present one are often designedly employed with a view to

taming a judge into submission to secure a desired order. Such cases raise

larger issues touching the independence of not only the concerned Judge but

the entire institution. The foundation of our system which is based on the

independence and impartiality of those who man it will be shaken if

disparaging and derogatory remarks are made against the Presiding Judicial

Officers with impunity. It is high time that we realise that the much cherished

judicial independence has to be protected not only from the executive or the

legislature but also from those who are an integral part of the system.

10 (1991) 3 SCC 600


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In L. D. Jaikwal v. State of Uttar Pradesh11, it was held by Supreme Court that

acceptance of an apology from a contemnor should only be a matter of exception

and not that of a rule and expressed its opinion as under:

6. We do not think that merely because the appellant has tendered his apology we

should set aside the sentence and allow him to go unpunished. Otherwise, all that a

person wanting to intimidate a Judge by making the grossest imputations against

him to do, is to go ahead and scandalize him, and later on tender a formal empty

apology which costs him practically nothing. If such an apology were to be accepted,

as a rule, and not as an exception, we would in fact be virtually issuing a 'licence' to

scandalize courts and commit contempt of court with impunity. It will be rather

difficult to persuade members of the Bar, who care for their self-respect, to join the

judiciary if they are expected to pay such a price for it. And no sitting Judge will feel

free to decide any matter as per the of his conscience on account of the fear of being

scandalized and prosecuted by an advocate who does not mind making reckless

allegations if the Judge goes against his wishes. If this situation were to be

countenanced, advocates who can cow down the Judges, and make them fall in line

with their wishes, by threats of character assassination and persecution, will be

preferred by the litigants to the advocates who are mindful of professional ethics and

believe in maintaining the decorum of courts.

7. We have yet to come across a Judge who can take a decision which does not

displease one side or the other. By the very nature of his work he has to decidematters against one or other of the parties. If the fact that he renders a decision

which is resented to by a litigant or his lawyer were to expose him to such risk, it will

sound the death knell of the institution. A line has therefore to be drawn somewhere,

some day, by someone. That is why the Court is impelled to act (rather than merely

sermonize), much as the Court dislikes imposing punishment whilst exercising the

contempt jurisdiction, which no doubt has to be exercised very sparingly and with

circumspection. We do not think that we can adopt an attitude of unmerited leniency

at the cost of principle and at the expense of the Judge who has been scandalized.

We are fully aware that it is not very difficult to show magnanimity when someoneelse is the victim rather than when oneself is the victim. To pursue a populist line of

showing indulgence is not very difficult -- in fact it is more difficult to resist the

temptation to do so rather than to adhere to the nail-studded path of duty.

Institutional perspective demands that considerations of populism are not allowed to

obstruct the path of duty. We, therefore, cannot take a lenient or indulgent view of

this matter. We dread the day when a Judge cannot work with independence by

reason of the fear that a disgruntled member of the Bar can publicly humiliate him

and heap disgrace on him with impunity, if any of his orders, or the decision

rendered by him, displeases any of the advocates, appearing in the matter.

11 (1984) 3 SCC 405


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In R.K. Garg Advocate v. State of Himachal Pradesh12, where a lawyer hurled a

shoe on the judicial officer which hit him on the shoulder, this Court opined that

there is no doubt that the Bar and the Bench are an integral part of the same

mechanism which administers justice to the people. Many members of the Benchare drawn from the Bar and their past association is a source of inspiration and

pride to them. It ought to be a matter of equal pride to the Bar. It is

unquestionably true that courtesy breeds courtesy and just as charity has to

begin at home, courtesy must begin with the Judge. A discourteous Judge is like

an ill-tuned instrument in the setting of a courtroom. But members of the Bar

will do well to remember that such flagrant violations of professional ethics and

cultured conduct will only result in the ultimate destruction of a system without

which no democracy can survive.

25) In Lalit Mohan Das vs. Advocate General, Orissa &Another13, Supreme Court

observed as under:

A member of the Bar undoubtedly owes a duty to his client and must place before

the Court all that can fairly and reasonably be submitted on behalf of his client. He

may even submit that a particular order is not correct and may ask for a review of

that order. At the same time, a member of the Bar is an officer of the Court and owes

a duty to the Court in which he is appearing. He must uphold the dignity and

decorum of the Court and must not do anything to bring the Court itself intodisrepute. The appellant before us grossly overstepped the limits of propriety when

he made imputations of partiality and unfairness against the Munsif in open Court.

In suggesting that the Munsif followed no principle in his orders, the appellant was

adding insult to injury, because the Munsif had merely upheld an order of his

predecessor on the preliminary point of jurisdiction and Court fees, which order had

been upheld by the High Court in revision. Scandalizing the Court in such manner is

really polluting the very fount of justice; such conduct as the appellant indulged in

was not a matter between an individual member of the Bar and a member of the

judicial service; if brought into disrepute the whole administration of justice.

26) A lawyer cannot be a mere mouthpiece of his client and cannot associate

himself with his client in maligning the reputation of judicial officer merely

because his client failed to secure the desired order from the said officer. A

deliberate attempt to scandalize the Court which would shake the confidence of

the litigating public in the system and would cause a very serious damage to the

name of the judiciary. [vide M.Y. Shareef & Anr. Vs. Hon'ble Judges of Nagpur

12 (1981) 3 SCC 166

13 AIR 1957 SC 250.


33/33


High Court &Ors.14; Shamsher Singh Bedi vs. High Court of Punjab & Haryana15

and M.B. Sanghi, Advocate vs. High Court of Punjab & Haryana & Ors.16].

In the end the Supreme Court made the following observations:

A Court, be that of a Magistrate or the Supreme Court is sacrosanct. The integrity

and sanctity of an institution which has bestowed upon itself the responsibility of

dispensing justice is ought to be maintained. All the functionaries, be it

advocates, judges and the rest of the staff ought to act in accordance with morals

and ethics.

Advocates Role and Ethical Standards: An advocate's duty is as important as

that of a Judge. Advocates have a large responsibility towards the society. Aclient's relationship with his/her advocate is underlined by utmost trust. An

advocate is expected to act with utmost sincerity and respect. In all professional

functions, an advocate should be diligent and his conduct should also be diligent

and should conform to the requirements of the law by which an advocate plays a

vital role in the preservation of society and justice system. An advocate is under

an obligation to uphold the rule of law and ensure that the public justice system

is enabled to function at its full potential. Any violation of the principles of

professional ethics by an advocate is unfortunate and unacceptable. Ignoring

even a minor violation/misconduct militates against the fundamental foundationof the public justice system. An advocate should be dignified in his dealings to

the Court, to his fellow lawyers and to the litigants. He should have integrity in

abundance and should never do anything that erodes his credibility. An advocate

has a duty to enlighten and encourage the juniors in the profession. An ideal

advocate should believe that the legal profession has an element of service also

and associates with legal service activities. Most importantly, he should faithfully

abide by the standards of professional conduct and etiquette prescribed by the

Bar Council of India in Chapter II, Part VI of the Bar Council of India Rules.

As a rule, an Advocate being a member of the legal profession has a social duty to

show the people a beacon of light by his conduct and actions rather than being

adamant on an unwarranted and uncalled for issue.

14 (1955) 1 SCR 757

advocay and professional ethics in nutshell

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