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Senior Advocates : Ethics and Duties - By P.S. Khurana

 

 Senior Advocates : Ethics and Duties - P.S. Khurana*

Legal education in India is regulated by the Bar Council of India, which is a statutory body constituted under the Advocates Act. 1961.  There are two ways to obtain the degree to practice law and enroll with the Bar Council of India :

(1)     a 3-year LL.B program which requires a prior graduate degree ; and

(2)     a 5-year integrated B.A., LL.B. program which can commence immediately after secondary school. Some Universities offer both the five-year and three-year degree program1.

The advocates enrolled in India are only entitled to ‘practice the profession of law’, which includes not only appearing before courts and giving legal advice as an attorney, but also drafting legal documents, advising clients on international standards and carrying out customary practices and transactions2.

At the State level the Bar Council of India perform oversight functions and lays down standards for enrolment etc. Typically, each State has its own Bar Council which regulates the admission and removal of names from its rolls. Enrolment with a State Bar Council as an ‘Advocate’ renders a lawyer eligible to practice before all Court and Tribunals in India3.

The Advocates Act distinguishes between two types of Advocate. Senior Advocate and Advocate. A Senior Advocate is designated by the Supreme Court or any High Court based on his ability or special knowledge4.

          Section 16 of the Advocates Act reads as :-

          “16.   Senior and other advocates :-

          (1)     there shall be two classes of advocates, namely,                        senior advocates and other advocates.

          (2)     An advocate may,   with his consent, be designated as

*B.Sc., LL.B., LL.M. Advocate, Supreme Court of India and Punjab & Haryana  High Court at Chandigarh.

 

 

senior advocate if the Supreme Court or a High Court is a opinion that by virtue of his ability [standing at the Bar or special knowledge or experience in law] he is deserving of such distinction.

(3)     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.

(4)     An advocate of the Supreme Court who was senior advocate of that Court immediately before the appointed day shall, for the purpose of this section, be deemed to be a senior advocate :

[Note :- Added by Act 21 of 1964, sec. 8) Provided that where any such senior advocate makes an application before the 31st December, 1965, to the Bar council maintaining the roll in which his name has been entered that he does not desire to continue as a senior advocate, the Bar Council may grant the application and the roll shall be altered accordingly]”.

          The provision provides for the division of the Bar into Senior Advocates and other advocates. The status of a Senior Advocate is conferred by the Supreme Court or a High Court on merit only.  A Senior Advocate is prohibited from accepting certain kinds of minor legal work like drafting, notices, affidavits etc.  A saving provision has been made in respect of the existing senior advocates of the Supreme Court who will continue to be designated as Senior Advocate5.

          The lawyers practicing in District Courts are equally eligible for consideration for the purpose of conferment of the distinction being Senior Advocate subject to their fulfilling the pre-requisite condition laid down6.

          Once the distinction between Senior Advocate and other advocates in recognized under the provision of the Advocates Act, wearing of a distinct gown or a coat by Senior Advocate with a different design cannot be assailed as discriminatory or violative of Article 14 of the Constitution of India7.

          An Advocate’s duty is as important as that of a Judge. Advocates have a large responsibility towards the society.  A clients 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 the society and justice system. An advocate is under a 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 foundation of 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 IV, of the Bar Council of India Rules8.

          The Senior Advocate is expected to act with much more higher standards of professional conduct and etiquette.

          A Senior Advocate shall not file a Vakalatnama or act in any Court or Tribunal, or before any person or other authority9.  A Senior Advocate shall not appear without an Advocate on Record in the Supreme Court or without an Advocate in any Court or Tribunal etc.10. A Senior Advocate shall not accept instructions to draft pleadings or affidavits, advice on evidence or to do any drafting work of an analogous kind in any Court.  He shall not undertake any conveyancing work of any kind whatsoever. But he can do these work in consultation with an Advocate11.

          A Senior Advocate 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 India12.

          A Senior Advocate who had acted as an Advocate in a case, shall not after he has been designed as a Senior Advocate advise on ground of appeal in Court of Appeal or in the Supreme Court, except with an Advocate13.

          A Senior Advocate may in recognition of the services rendered by an advocate appearing in any matter pay him a fee which he considers reasonable14.  Though this is not mandatory, but it has become a moral and professional duty of the Senior Advocates to promote, educate, guide and encourage the junior advocates to learn the professional skills and financial support for their sustenance in their nascent stage of career.

1.       Dr. Justice A.S. Anand, H.L. Sarin Memorial Lecture: Legal Education in India: Past, Present and Future, (January 31, 1998)

2.       Debbie Legal, Opening up the Indian Legal Market: A New Era Dawns for the World’s Largest Democracy as the Legal Services Market Begins Its Journey to Liberalisation. 63 No. Int’l B. News 29.

3.       Section 30, Advocates Act, 1961.

4.       Section 16, Advocates Act, 1961.

5.       S.O.R. Gazette of India, 19.11.1959, Part-II, S.2, Ext., P.1188.

6.       AIR 2000 All 300

7.       AIR 2002 Delhi 482

8.       O.P. Sharma & Ors. Vs. High Court of Punjab & Haryana, Criminal Appeal No. 1108-1115 of 2004, decided on 09.05.2011

9.       Bar Council of India Rules, Chapter-I, Part-IV, (a)

10.     Bar Council of India Rules, Chapter-I, Part-IV, (b)

11.     Bar Council of India Rules, Chapter-I, Part-IV, (c)

12.     Bar Council of India Rules, Chapter-I, Part-IV, (cc)

13.     Bar Council of India Rules, Chapter-I, Part-IV, (d)

14.     Bar Council of India Rules, Chapter-I, Part-IV, (e)         

Comments



  1. This article by Adv PS Khurana of designated Sr. Advocate visa-a vis other members of his legal fraternity. Having achieved the designation of becoming Sr.advocate not only enhances the honour and image before the bench and bar but also entails more responsibilities professionally and ethically to set an example to be followed by other
    Regards Sharanjit Budhiraja.

    ReplyDelete
  2. THANKS SIR FOR THE VALUABLE INPUTS AND WORD OF APPRECIATION

    ReplyDelete

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