LEGAL ETHICS AND COURT CRAFT

UNIT- 3

Advocates’ Act, 1961

The Advocates Act passed in May 1961 and enforced on 16th August 1961 applies to the whole of
India.

The Advocates Act was to amend the laws related to legal practitioners. It provides the constitution of
members for the State Bar Council and Bar Council of India.

The act aims to constitute only one class of legal practitioners known as ‘Advocate’ and provides
uniform qualification for admission to the Bar. The act also vests the powers on the Bar Council of
India and the State Bar Council to take disciplinary action when required. Let’s get into the depth to
understand the Advocates Act, 1961 better.

Sections under Advocates Act

● Advocate

Section 2 (1)(a) of the Advocates Act, 1961 provides the meaning of an advocate. Accordingly, an
advocate is a person enrolled on any roll under the provision of this Act. Before enacting this act, there
were different classes of legal practitioners, referred to as pleaders, vakils, lawyers, attorneys.

● Law Graduate

Section 2(1)(i) of the act defines a law graduate as a person who obtained a Bachelor’s degree in law
from any university established under law.

● Roll and State Roll

Section 2(1)(k) of the Advocates Act defines Roll as a roll of advocates prepared and maintained under
this Act.

● State Roll
Section 2(1)(n) of the act defines State Roll as a roll of advocates maintained by the State Bar Council
under Section 17.

State Bar Council

Section 3 of the Advocates Act, 1961 states that for every state, there shall be a Bar Council in the
manner prescribed under Section 3(1).

Number of Members of State Bar Council

According to Section 3(2)(a), the Advocate General of the concerned state is the ex-officio member of
the State Bar Council.

As per Section 3(2)(b) following number of members should be there in the bar council of state:

● When the number of Advocates in the state roll is less than 5000, the number of members of
the Bar Council is 15.
● When the number of Advocates in the state roll is between 5000 and 10000, the number of
members of Bar Council is 20.
● When the number of Advocates in the state roll is more than 10000, the number of bar council
members is 25.
● Advocate having their name in the state roll elect the members, and the advocates can vote by a
single transferable vote.

According to Section 3(3), there shall be a Chairman and a Vice-Chairman of the State Bar Council,
elected in the manner prescribed.

The term of office of the member of the State Bar Council is for five years (Section 8). The five-year
span starts from the date of publication of the result of the elections.

Functions of State Bar Council

Section 6 of the Advocates Act, 1961 provides the function of the State Bar Council. Functions of the
council are as follows:

● To enrol the qualified persons as an advocate.

● To prepare the State Roll.
● To take disciplinary action for professional misconduct by the advocate.
 ● To protect the rights and privileges of advocates.
● To constitute an executive committee, enrolment committee, or any other committee as
required.
● To manage the funds of the Bar Council.
● To conduct the election for electing the members of the State Bar Council.
● To prepare legal aid programmes.
● To prepare schemes to help poor advocates.
● To grant recognition to the law college.
● To allot funds for implementing legal aid schemes and other schemes.

Bar Council Of India

Section 4 of the Advocates Act provides that there shall be a bar council for the whole of India and is
known as the Bar Council of India.

Constitution of the Bar Council of India

There shall be the following members in the Bar council of India:

● Attorney General of India who is Ex- Officio member. (Section 4(1)(a))

● Solicitor General of India is Ex- Officio member. (Section 4(1)(b))
● One member gets elected amongst the member of each State Bar Council. ((Section 4(1)©)
● A Chairman and a Vice-chairman Section 4(2)

Attorney General and Solicitor general remains a member of the Bar Council of India till they hold
their post.

Functions of Bar Council Of India

Section 7 of the Advocate Act lays down the functions of the Bar Council of India.

Following are the functions performed by the Bar Council of India:

● To frame rules related to professional ethics.

● To frame rules of procedure to be followed by the disciplinary committee of the State Bar
Council and the Bar Council of India.
● To protect the rights of the Advocates.
 ● To encourage legal reforms.
● To decide matters related to professional misconduct transferred from a disciplinary committee
of state bar council.
● To decide appeal against the disciplinary committee of state bar council.
● To supervise functions performed by the state bar council.
● To prescribe syllabus of law course after consulting state car council and university.
● To inspect university.
● To spend funds of Bar Council of India.
● To conduct elections
● To allow persons who studied abroad to practice in India.

Power to make rules

Section 15 of the Advocates Act gives power to the Bar Council to make rules to carry out its purpose.
The rules are for:

● The election of members of bar council done by secret ballot includes conditions subject to
which a person can exercise the right to vote by postal ballot.
● The election manner of a member of the Chairman and Vice-Chairman of the Bar Council
● To decide the doubts and disputes related to the election of the Bar Council members and
appointment of Chairman and Vice-Chairman.
● To fill casual vacancies in Bar Council.
● The constitution of funds by the bar council
● Organising legal aid and advice to the poor.
● To summon and hold a meeting of the Bar council.
● To provide constitution and functions of the Bar Council, including the term of office of
members of the committee.

The section of the Act also provides that no rules by the State Bar Council under this section shall have
effect after approval from the Bar Council of India.

Disqualification of a member of Bar Council

Section 10B of the act states conditions related to disqualification of the Bar Council of India
members.
An elected member of the Bar Council should vacate his office if he is declared absent without
sufficient excuse for three consecutive meetings by the Bar council of state he is a member. The
member can also be disqualified from being a member of the council if his name is removed from the
roll of advocates or upon disqualification by any rule made by the Bar Council of India.

Disqualification of Enrolment

Section 24 A provides criteria for disqualification of a person for enrolment. A person gets disqualified
from being enrolled as an advocate due to the following reasons:

● The person on conviction for an offence that involves moral turpitude.

● The person on conviction for an offence committed under the Untouchability (Offences) Act,
1955.
● For removal from government service on a charge that involves moral turpitude.

Such disqualification cease to have effect after two years has passed since his dismissal or release.

Status of Bar Council

Section 5 of the Advocates Act provides the Bar Council with body corporate. It provides the
following features of the Bar Council:

● Body corporate
● Perpetual succession
● Common seal

Bar Council can have the power to acquire or hold property both movable and immovable. The Bar
Council can acquire and hold a property. It can also enter into a contract on its name and sue and get
sued in its name.

The staff of Bar Council

Section 11 of the Advocates Act, 1961 states that every bar council should appoint a secretary and an
accountant. Any other staff member can be appointed as required, and the Secretary and accountant
should possess skills as prescribed.

Membership in International Bodies

Section 7A of the Advocates Act provides that the Bar Council of India can become a member of the
international legal bodies. The Bar Council can contribute an amount to such bodies by way of
subscription and authorise expenditure if a representative participates in an international conference or
seminar.

Senior Advocate

Section 16 of the Advocates Act classifies advocates into two types, senior advocates and other
advocates.

The Supreme Court or the High Court can designate an advocate as a senior advocate with his consent.
For being eligible to be a senior advocate, an advocate must be in the court’s opinion to possess the
ability, standing at the Bar or special knowledge, experience in law. So, being a senior advocate is
considered a privilege.

It Is a saying that great power comes with great responsibility. The same goes for the designation of a
senior advocate. They are responsible for acting as a role model for junior members in the profession.
They are subject to certain restrictions imposed by the Bar Council of India. When an advocate gets
designated as a senior advocate, he should communicate it to the High Court and the secretary of the
State Bar Council and Bar Council of India.

Advocates Roll

Section 17 of the Advocates Act provides that every State Bar Council shall prepare and maintain the
roll of advocates.

The roll gets prepared in two parts, and the first part contains the list of senior advocates and the
second part contains the list of other advocates. When more than one advocate gets enrolled in a single
day, their names in the state roll is added according to the seniority.

In the Advocates roll following details are mentioned:

● Name
● Date of Birth
● Permanent address
● Education details
● Place of interest to practice
A person cannot get enrolled in more than one Bar Council. But, he can transfer his name from one
state to another state roll-on genuine grounds.

Certificate of Enrolment

Section 22 of the Advocates Act, 1961 provides the provision for the Certificate of Enrolment.
According to this section, a certificate should get issued for the enrolment of an advocate.

The certificate is issued in the prescribed form provided by the State Bar Council. Any change made in
the place of permanent address of the person is to get notified to the concerned State Bar Council
within ninety days.

Qualification to be enrolled in State Roll

Section 24 of the Advocates Act provides qualifications required for a person to get enrolled as an
advocate. The qualification prescribed for the enrolment in the state roll are as follows:

● The person must be a citizen of India. Even a national of any other country can be admitted as
an advocate on a State Roll if he belongs citizens of India who duly qualifies the requirement
for qualification are permitted to practice law in that country.
● The person should have completed 21 years of age.
● The person should have passed 5 years integrated course after the 12th standard or a 3-year
regular law course after graduation. If the degree is from any Foreign University then, the
degree must be recognised by the Bar Council of India.
● Enrolment fee must be paid by the advocate as prescribed by the State Bar Council.
● Fulfils any other condition as required.

Various committee

Constitution of Special Committee when there was no election

1. Constitution of Special Committee

Section 8A of the Act provides the Constitution of Special Committee in the absence of an election. A
special committee gets formed when a State Bar Council fails to conduct the election of its member.
The special committee consists of:
 ● Ex-officio member of the State Bar Council will be the Chairman. In case of more than one
member being an ex-officio member, then the senior-most member should be Chairman.
● Two members to get nominated by Bar Council of India from advocates on the electoral roll of
the State Bar Council.
● Disciplinary Committee

Section 9 of the act provides that the Bar Council should constitute one or more disciplinary
committees. The disciplinary committee consists of 3 members elected by the bar council, and the
senior-most member is the chairman of the committee.

● Legal Aid Committee

Section 9A of the Advocates Act provides the constitution of the Legal Aid Committee. The bar
council can constitute one or more legal aid committees, and the legal aid committee has a minimum
of five and a maximum of nine members.

● Committee other than disciplinary committee

Section 10 grants power to the State Bar Council and Bar Council of India.

State Bar Council should constitute the following committee:

● An executive committee consists of five-member elected by the council among its member.
● An enrolment committee consists of three members elected by the Council from the member.

Bar Council of India should constitute the following standing committee:

● An executive committee comprises nine members elected by the Council among its members.
● A legal education committee consists of ten members. Among these ten members, five
members get constituted by the council among themselves, and the remaining five-member
should get co-opted by the council who are not members.

State bar council and the bar council of India can constitute other committees among its members as it
deems necessary.
According to Section 13, no action done by the Bar Council or any other committee can get questioned
due to any vacancy or a defect of the constitution of the committee.

Rights of Advocate

Right to Pre-Audience: Section 23 of the Advocates Act, 1961 provides the privilege of reight to
pre-audience to the advocate. The right of pre-audience is a right of being heard before another. This
right is available in the given hierarchy:

● Attorney General
● Solicitor General
● Additional Solicitor General
● Second Additional Solicitor General or Advocate General of India
● Advocate General of State
● Senior Advocate
● Other Advocate

In the hierarchy mentioned above, starting from the Attorney General of India to have the right of
pre-audience and at last, the right is available to other advocates. According to this section, the
advocate has the right to represent the case in court, and he can speak when he wants before an
audience is present in the court and cannot be stopped from speaking unless he violates the decency of
the court.

● Right to enter in court: Section 30 of the Advocates Act, 1961 provide the right to practice in
any court to an advocate. An advocate can enter any court concerning any matter and has the
right to enter the Supreme Court of India. He can also be present in any of the hearings whether
or not he is related to the matter.
● Right to practice any profession: This right gets provided under Article 19 of the Constitution
of India. According to this right, advocates can practice their profession in two categories;
General protection and Specific Protection. General Protection provides the right to practice
any profession or maintain any occupation. And Specific Protection concerns the right to
practice as an advocate under section 30 of the Advocates Act.
● Right against arrest: The Right against arrest get provided under Section 135 of the Code of
Civil Procedure. This section provides that an advocate cannot get arrested under any
 circumstance. Accordingly, the advocate cannot get arrested under civil process if he is going
to visit or is presiding or is returning from the court.
● Right to meet the accused: For the proper understanding of the case, the advocate has the right
to meet the accused whenever he wishes to do. He can even meet the accused in jail.

Punishment for misconduct

The Advocates Act of 1961's Chapter V addresses the behaviour of the Advocates. Through several
provisions, Section 35 of the Act addresses allegations of professional misconduct against Indian
advocates and lawyers.
If an advocate is found guilty of professional misconduct, the State Bar Council's Disciplinary
committee will be tasked with handling the case. The disciplinary committee will then need to
schedule a time for the matter to be discussed. It must also send a show cause notice to the State's
Advocate General and Advocate. Following hearing from both parties on the scheduled date, the
committee may take the following actions.

● Reprimand or reprove the advocate for the charges;

● As it deems fit to the Committee, suspend, or charge the advocate for an appropriate period;
● Withdraw the advocate's name from the state roll;
● Either dismiss the complaint against the advocate if it feels that the issue is not too grave or
● Direct the filing of proceedings at the same place where the State Bar Council initiated the
proceeding.

Misconducts come in countless forms. Therefore, it is imperative that the term "misconduct" be
understood broadly, to the point where its definition falls under the umbrella of natural law, eliminating
any room for regulation of the term's inherent meaning. The Bar Council of India is empowered by
Section 49 of the Advocates Act to establish guidelines and regulations pertaining to professional
misconduct.1) The Act states that no advocate may promote or solicit business because doing so would
be against the Advocates' code of ethics. It is forbidden to advertise directly or indirectly. Additionally,
he is not permitted to promote through interviews, circulars, or private correspondence.

Punishment for professional and other misconduct

A lawyer’s profession is meant to be a divine or sacred profession by all means. In every profession,
there are certain professional ethics that need to be followed by every person who is into such a
profession. But there is the fact that professional misconduct is a common aspect, not only in other
professions but also in advocacy also. In simple terms, it means certain acts done by persons who seem
to be unfit for the profession as well as which are against certain ethics in this field.
The term has been clearly defined in Black’s Dictionary as, the transgression of some established and
definite rule of action, a forbidden act, a dereliction of duty, unlawful behavior, improper or wrong
behavior. Its synonyms are misdemeanor, impropriety, mismanagement, offense, but not negligence or
carelessness.

Sections 35 through 44 of Chapter V address the advocates' behaviour. It outlines the Bar Council of
India's disciplinary powers as well as the penalties for professional and other misconduct committed by
advocates. Misconduct need not only be professional in nature to be subject to the application of
section 35 of the Advocates Act. The phrase "professional or other misconduct" is used in this section.
Therefore, even behaviour unrelated to one's profession can be considered misconduct, such as being
found guilty of a crime even though one did not commit it while working.

There is no reason to limit the definition of misconduct because it has infinite variations. Whether it be
professional or otherwise, misbehaviour must be understood in its plain and natural sense. When used
in reference to professionals, the term "misconduct" typically connotes an action carried out wilfully
and with malice, even though such actions are not intrinsically wrong.

The Bar Council regulates the bar by enforcing disciplinary actions against members and setting
guidelines for appropriate behaviour and manners. Additionally, the Council establishes requirements
for legal education and recognises universities that offer legal degrees that meet the requirements to
become advocates.

The Bar Council of India and each State Bar Council has a disciplinary committee that has the
authority to impose sanctions. According to Section 9 of the Advocates Act, 1961, each Bar Council
must have a Disciplinary Committee. Each Disciplinary Committee will have three members: two will
be chosen by the Council from among its members, and the third will be an advocate co-opted by the
Council from among those who meet the requirements outlined in the proviso to subsection (2) of
section 3 (i.e., an advocate who has been registered on a State roll for ten years) and who are not
Council members. The oldest of the three will be designated as the committee's chairman.
According to Section 35[2], "the State Bar Council shall refer the case for disposal to its disciplinary
committee where on receipt of a complaint or otherwise it has reason to believe that any advocate on
its roll has been guilty of professional or other misconduct." In addition, the State Bar Council's
disciplinary committee will schedule a hearing for the case and make sure the state's advocate general
and the implicated advocate are informed.

Instances Of Misconduct By Advocates:

● Non-performance of Duty:
The term "dereliction of duty" is another term for this circumstance. It can be defined as the
circumstance in which an attorney either transfers the case brief to another attorney or deserts
the client and neglects to fulfill his obligations. A transfer of this kind is thought to be
unprofessional. But if the advocate acts in this manner after obtaining the client's consent, it is
not improper.V.C Ranga Durai vs D. Gopalan
The Apex Court made it clear that a lawyer assigned a case, and its brief has a duty to uphold
the standards of professional ethics and, as a result, defend the client's interests. It would be
considered professional misconduct if this weren't done.

● Negligence on behalf of the Professional:

An advocate is supposed to use the appropriate abilities and expertise as they proceed with the
case. Furthermore, it is anticipated of him to act with caution and diligence. But if the advocate
was careless and fabricated information or withheld the truth, that would be considered
professional misconduct.Mohd. Ismail versus Balarathnaiv
The Supreme Court in this case stated that, despite several adjournments, it would constitute
misconduct if a lawyer failed to provide the required paperwork to continue the case.

● Misappropriation:
Misappropriation is a form of misconduct that occurs when an advocate receives money from
his client for purposes connected to the case, but the advocate misappropriates the money for
reasons unrelated to the case.In this case, an advocate was charged with embezzling the money
he received from the client. The remaining sum was used for professional fees, and the sum
was obtained in order to file a lawsuit. The advocate who placed the blame on the High Court
stated that the suit papers were misplaced by the High Court registry. It was discovered,
nevertheless, that the advocate had not refiled the suit for a considerable amount of time and
 that the registry had returned the suit papers to the attorney for the purpose of removing
objections. An advocacy committee was placed under disciplinary committee. The committee
punished the advocate for misconduct after finding that the advocate had embezzled client-paid
funds.

● Contempt of Court and Inappropriate behavior before the Magistrate:

A person who violates the justice system, the court's authority, or its dignity by acting in a
manner that is disrespectful or disobedient towards the court or any of its officials is guilty of
contempt of court. Respecting and upholding the dignity of the court is the obligation of an
advocate. Any false accusations made against a judge or other court official are considered
misconduct. There are two distinct forms of contempt: acting inappropriately towards judges in
court or completely disobeying the court's orders.The leader of the Communist Party of India,
M.V. Jayarajan, was sentenced to six months in prison in 2010 for contempt of court after he
made remarks that were critical of the Kerala High Court's ruling to forbid public gatherings.
Nevertheless, following an appeal to the Supreme Court, his sentence was shortened to four
months.

● Giving Out False Information:

It is misconduct for an advocate to knowingly provide a public servant with misleading
information. The information may deal with an offense that has already been committed or it
may deal with committing an offense and stopping others from doing so. The advocate will
face consequences for professional misconduct if he is aware of, or has reasonable suspicion
that, the information being provided is untrue.

Emperor v. K.C.B. A Pleader vii:

In this case, the advocates falsely claimed that the Municipal authorities had ordered that the boxes be
restored to their rightful owners. As a result, Mr. Bazrang Marwari was found guilty and faced
misconduct proceedings. The Municipal authorities had seized certain boxes of "ghee" after receiving
information that the "ghee" was adulterated. The advocates ordered that the boxes be kept under the
custody or supervision of Mr. Bazrang Marwari.
Role and power of Disciplinary Committee ss36-42

The role and power of the Disciplinary Committee under sections 36 to 42 of the Advocates Act, 1961,
govern the conduct and professional ethics of advocates. This framework ensures the legal profession
in India maintains high standards of integrity, ethical conduct, and responsibility. These sections lay
down the procedures and powers of disciplinary bodies in handling cases of professional misconduct
among advocates. Here’s a detailed analysis:

Overview of Sections 36 to 42

Sections 36 to 42 of the Advocates Act, 1961, deal with the disciplinary powers and procedures related
to the misconduct of advocates.

- Section 36: This section gives the Bar Council of India (BCI) the power to take cognizance of
misconduct. It states that if the Bar Council of a state refers a case to the BCI for disciplinary action,
the BCI has the authority to hear and determine it. The BCI can also issue show-cause notices to
advocates accused of misconduct and can suspend them from practicing until the case is disposed of.

- Section 37: Any person aggrieved by an order of a State Bar Council (SBC) under Section 35 can
appeal to the BCI within 60 days. The BCI, after giving an opportunity for hearing, can confirm,
modify, or reverse the order. This section provides an essential appellate remedy for advocates facing
disciplinary action at the state level.

- Section 38: This section allows for a further appeal to the Supreme Court of India against an order of
the BCI under Section 37. The Supreme Court has the authority to confirm, modify, or reverse the
order, ensuring a judicial remedy for advocates.

- Section 39: This section deals with stay orders during the pendency of appeals. The BCI or Supreme
Court may stay the implementation of the orders being appealed against, either on an application by
the appellant or suo moto.

- Section 40: Section 40 provides the BCI with the authority to make rules for the conduct of
disciplinary proceedings, which includes the procedure to be followed, the powers of committees, and
the management of records.
- Section 41: The BCI and State Bar Councils are empowered under this section to summon witnesses,
require the discovery and production of documents, and receive evidence on affidavits during
disciplinary proceedings. This gives the Disciplinary Committee similar powers as those of a civil
court.

- Section 42: This section extends further powers to the Disciplinary Committee, including requiring
attendance of witnesses, issuing commissions for the examination of witnesses, and prescribing the
procedure for inquiries.

Together, these sections establish a comprehensive mechanism for handling complaints, appeals, and
disciplinary actions within the legal profession.

Role of the Disciplinary Committee

The Disciplinary Committee, a quasi-judicial body, is formed under the respective Bar Councils (both
State and BCI) to address allegations of professional misconduct. The committee’s role is pivotal in
ensuring the legal profession adheres to ethical standards and maintains public trust.

When a complaint is received, the Disciplinary Committee initiates an inquiry. This inquiry involves
the examination of evidence, hearing arguments, and considering the circumstances of the alleged
misconduct. The committee can take action based on its findings, which may range from reprimanding
the advocate to suspending or even removing them from the roll of advocates.

The committee also ensures that any disciplinary action taken is based on established principles of
natural justice, ensuring that the advocate in question is given a fair opportunity to present their case. If
the committee finds that the complaint lacks merit, it can dismiss the proceedings.

3. Powers of the Disciplinary Committee

Inquiry and Hearing Powers:

The Disciplinary Committee has the power to conduct a full inquiry, similar to a civil court’s process.
It can summon witnesses, demand the production of documents, and receive evidence. The committee
ensures the advocate accused of misconduct has the opportunity to defend themselves.
Punitive Powers:

The committee is empowered to impose various penalties if an advocate is found guilty of misconduct.
The penalties may include:

- Reprimand (a formal expression of disapproval).

- Suspension from practice for a specified period.

- Removal from the roll of advocates.

These punishments aim to uphold the integrity of the profession while ensuring justice for those
wronged by professional misconduct.

Appellate Powers:

The Disciplinary Committee of the BCI has appellate jurisdiction over decisions made by State Bar
Councils. This appellate power allows for a review of state-level disciplinary actions, ensuring
uniformity and fairness in the handling of misconduct cases across different states.

Judicial Review Powers:

The Supreme Court, under Section 38, acts as a higher appellate authority, allowing advocates the
opportunity to seek judicial review of the BCI’s decisions. This serves as an additional safeguard,
ensuring the advocate’s rights are protected.

Case Laws on the Disciplinary Committee’s Role and Powers

Several landmark cases have shaped the role and powers of the Disciplinary Committee. A few
significant cases include:

- N.G. Dastane v. Shrikant S. Shivde (2001): The Supreme Court held that professional ethics are an
essential part of the legal profession, and any deviation warrants disciplinary action. This case
highlighted that while advocates enjoy certain privileges, they are also bound by strict codes of
conduct.

- Bar Council of Maharashtra v. M.V. Dabholkar (1976): In this case, the Supreme Court
emphasized the importance of maintaining the dignity of the profession. It upheld the disciplinary
powers of the Bar Council, stressing that advocates must maintain high standards of conduct, both
inside and outside the courtroom.

- V.C. Rangadurai v. D. Gopalan (1979): The Court held that an advocate's suspension must be
proportionate to the misconduct. It was observed that the legal profession plays a vital role in the
administration of justice, and any breach of professional conduct must be addressed seriously.

Conclusion

Sections 36 to 42 of the Advocates Act, 1961, provide a robust framework for regulating the conduct
of advocates in India. The Disciplinary Committees of the Bar Councils are vested with significant
powers to investigate, punish, and hear appeals related to misconduct. Through various provisions,
including inquiry procedures, appellate remedies, and judicial oversight, these sections ensure that
advocates adhere to the highest standards of professional ethics. The role of the Disciplinary
Committee, backed by the powers conferred under the Act, is crucial in preserving the integrity of the
legal profession.