Recently, the Supreme Court upheld two decisions of the Bar Council of India (BCI) in cases involving the suspension of advocates for professional misconduct. In the first case, the advocate was suspended for five years for acting as a real estate agent for his client, having taken a General power of Attorney for her property, which was the subject matter of the case. In the second case, another advocate was barred from practicing law for one year for running a taxi service.
In this context, let’s take a look at the law on Professional Ethics of advocates and their duty towards their clients.
Who is an Advocate?
An Advocate is a person who argues for the cause of another person in front of any other judicial authority. An advocate is anyone enrolled under any roll in the Advocates Act. A roll is a list prepared and maintained by the State Bar Councils, which contains the names of all advocates registered under the specific Council. The respective State Bar Councils have the duty to prepare and maintain rolls, and admit advocates to be listed on the roll. To qualify, the person applying to be an advocate should:
- Be a citizen of India. However, foreign nationals can also be advocates if they come from countries where Indian citizens can practice law, for example, England.
- Be at least 21 years of age.
Duties of an Advocate
Towards the Court:
- Showing respect and behaving in a dignified manner before the court.
- Not communicating in private to a judge about any case pending before the judge or any other judge.
- Appearing in a presentable manner in Court, in appropriate attire.
- Not appearing/arguing before a judge, if the judge is related to the advocate, as mentioned here.
- Not appearing for or against any establishment if the advocate is a member of the Executive Committee which manages the general affairs of that establishment.
- Not taking up a case in a matter where the advocate has any financial interest
- Not directly negotiating with the opposite party, except through the advocate who is representing the opposite party.
Towards the Client:
- Should accept a case unless there exist some exceptional circumstances, and not withdraw from a case after accepting it.
- Not accept or appear in a case for which they might appear as a witness.
- Uphold the interests of the client by all fair and honorable means.
- Not act, appear or argue for the opposite party if the advocate has advised, acted, appeared or pleaded for a client at any stage of a lawsuit.
- Make full and frank disclosure to the client about the advocate’s connection towards the other parties and any other interest in the case
- Keep accounts of the money entrusted to them by the client.
You can find the full list of duties here.
If an advocate fails to abide by these duties, it can qualify as a case of Professional Misconduct. The client can lodge a complaint against the advocate for the same.
To file a complaint against an advocate:
You can file a complaint with the State Bar Council. Upon receiving a complaint, or on its own motion, the State Bar Council can refer a case of misconduct to one of its Disciplinary Committees.
Further, the disciplinary committee of the Bar Council of India also has the power to withdraw any pending proceedings from the State Bar Council and attend to the matter.
State Bar Councils accept complaints against an advocate in the form of a petition, duly signed and verified. If you want to find the format, you can approach your State Bar Council which will have a prescribed standard format of complaint, along with the fees. Additionally, formats used can include languages such as English, Hindi or the language of the respective State.
After a person submits the complaint, the Disciplinary Committee of the State Bar Council will inquire into the matter.
As punishment, the committee can:
- Reprimand the advocate;
- Suspend the advocate for the time being;
- Remove the advocate’s name from the State roll;
- Dismiss the complaint.
What happened in the first case:
The advocate had taken a general power of attorney from his client for the same property that was the subject matter of the case. He did this in the capacity of a real-estate agent. He said that his client reached out to him, asking him to dispose of her half of the property, as she was elderly and had a dispute with her family members. Accordingly, the advocate arranged to sell her half and he paid her the consideration amount in cash for the same. She gave him a 2% commission, as her real estate agent. The Supreme Court observed that the advocate was practicing as a real-estate agent, while also practicing as an advocate. Therefore, it upheld this case of gross professional misconduct and suspended him for five years.
What happened in the second case:
In this case, the advocate was running a taxi service. The BCI Disciplinary Committee found evidence that showed striking similarities between the name of the registered owner of the taxi service and the advocate himself. He was also found representing conflicting parties in a case. Therefore, the Supreme Court upheld the decision of the Disciplinary Committee and barred him from practice for one year.
Rules 47 to 52 of Section VII of the Bar Council of India Rules put restrictions on advocates from taking up other employment:
- Rule 47: An advocate cannot personally engage in any business, but can be a sleeping partner, provided the State Bar Council deems it appropriate.
- Rule 48: An advocate can be the Director or Chairman of the Board of Directors with or without a sitting fee, as long as none of their duties are of an executive character.
- Rule 49: An advocate cannot be a full-time employee of any person, government, firm, corporation or concern. If they take up such employment, they must intimate the concerned Bar Council and cease to practice as long as they are such an employee.
- Rule 50: An advocate who inherits, succeeds by survivorship to a family business can continue it, but cannot personally participate in its management.
- Rule 51: An advocate can review Parliamentary Bills for a remuneration, edit legal text books at a salary, do press-vetting for newspapers, coach pupils for legal examination, 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. However, they cannot advertise or solicit work through these means, either directly or indirectly.
- Rule 52: An advocate is allowed to obtain part-time employment after obtaining consent from the State Bar Council, as long as it does not conflict with their professional work and is not inconsistent with the dignity of the profession.