Duties of an Advocate (Court, Client, Opponent, Colleagues) notes — Unit 3

Under Section 49(1)(c) of the Advocates Act, the Bar Council of India has laid down the "Standards of Professional Conduct and Etiquette."

⇒The Four Pillars

An advocate is not a mere mouthpiece for the client. They are an officer of the court. The BCI Rules neatly divide an advocate's duties into four categories:

• 1. Duty to the Court
• 2. Duty to the Client
• 3. Duty to the Opponent
• 4. Duty to Colleagues

The primary duty of an advocate is to assist the court in the administration of justice. The court and the lawyer are two wheels of the chariot of justice.

⇒Respect and Dignity

• Act with dignity: During the presentation of a case, an advocate must conduct themselves with dignity and self-respect. They should not act like a politician making a speech.
• Respect the Court: An advocate must maintain a respectful attitude towards the Courts. (However, an advocate has the right to submit grievances against a judicial officer to proper authorities if the judge is corrupt or abusive).

⇒Integrity and Fair Play

• No Private Communication: An advocate shall not communicate in private with a judge relating to any pending case. All arguments must be made in open court.
• No Illegal Means: An advocate shall not use illegal or improper means to influence the court's decision (e.g., bribing court clerks, threatening witnesses).
• Refuse to act in an illegal manner: An advocate must refuse to represent a client who insists on using unfair means against the court.
• Dress Code: An advocate must appear in court at all times only in the prescribed dress (Bands and Gown), and the apparel must be presentable.

The relationship between an advocate and a client is highly fiduciary (based on absolute trust).

⇒The Cab Rank Rule

An advocate is bound to accept any brief in the courts in which they propose to practice, at a fee consistent with their standing at the Bar. You cannot refuse a client simply because the case is unpopular or the client is a notorious criminal (like Ajmal Kasab). Everyone deserves a defense.

⇒Withdrawal from Service

Once engaged, an advocate shall not ordinarily withdraw from serving a client. If they must withdraw (e.g., non-payment of fees, client behaving illegally), they must give reasonable notice to the client and refund any unearned part of the fee.

⇒Conflict of Interest

• Full Disclosure: Before accepting a brief, an advocate must disclose to the client any personal interest or connection they have with the parties or the controversy (e.g., "The opposing party is my brother-in-law").
• Cannot switch sides: An advocate who has advised a party in connection with a suit shall not act, appear, or plead for the opposite party in the same matter.

⇒Financial Integrity

• No Contingency Fees: An advocate shall not stipulate for a fee contingent on the results of litigation, nor agree to share the proceeds thereof. (You cannot say: "If we win 1 Crore, I get 30%").
• Separate Accounts: An advocate must keep proper accounts of the client's money and must not mix the client's money with their personal money.

The duty to the client extends beyond the BCI Rules. It is codified in Section 126 of the Indian Evidence Act.

⇒Attorney-Client Privilege

An advocate shall not, without the express consent of the client, disclose any communication made to him in the course of his employment. Even if the client confesses to a past murder, the lawyer cannot tell the police.

⇒The Exceptions

The privilege is destroyed in two scenarios:

• If the communication was made in furtherance of any illegal purpose (e.g., Client says: "Here is a forged document, submit it in court").
• If the lawyer observes that a crime or fraud has been committed since the commencement of employment.

Litigation is adversarial, but it is not a street fight. Fair play is required.

⇒Rules of Fair Play

• No Direct Communication: An advocate shall not in any way communicate or negotiate directly with any party represented by an advocate, except through that advocate. (You cannot bypass the opposing lawyer and threaten/persuade their client directly).
• Fulfill Promises: An advocate shall carry out all legitimate promises made to the opposite party (e.g., agreeing to an adjournment or providing copies of documents), even if not reduced to writing.

Law is a fraternity. Advocates must treat each other with professional respect.

⇒Rule against Advertising (Rule 36)

This is a major difference between India and the USA.

An advocate shall not solicit work or advertise, either directly or indirectly. They cannot put up billboards, run TV commercials, or distribute pamphlets saying "Best Divorce Lawyer - Cheap Rates."

The name plate/signboard outside their office should be of a reasonable size. It should not indicate that they are an ex-judge, or that they specialize in a particular type of work (unless specifically permitted).

⇒Taking over a Brief (Rule 39)

An advocate shall not enter an appearance in any case in which there is already a vakalatnama (power of attorney) filed by another advocate, without obtaining the 'No Objection Certificate' (NOC) from that advocate.

(This ensures that clients don't secretly change lawyers to avoid paying the first lawyer's pending fees).

⇒Sign-boards and Visiting Cards

The BCI recently relaxed rules slightly, allowing advocates to maintain a basic website providing their names, contact details, areas of practice, and qualifications, but strictly without any promotional or boasting language.

The BCI rules also impose duties preventing conflicts of interest with other professions.

⇒Restrictions on Employment

• An advocate shall not personally engage in any business. (You cannot run a grocery store and practice law simultaneously).
• An advocate cannot be a full-time salaried employee of any person, government, firm, or corporation. (If you take a full-time corporate job, you must surrender your practicing license to the Bar Council).

⇒Exceptions

An advocate can be a sleeping partner in a firm, can publish legal books, can be a part-time law professor (up to 3 hours a day), or can write articles for newspapers.

An advocate's duty to the court sometimes requires them to act without a client.

⇒Friend of the Court

Amicus Curiae means 'friend of the court'. When a court is faced with a complex legal issue, or an accused cannot afford a lawyer, the court can request a senior or competent advocate to assist it. The Amicus acts impartially to help the court find the correct legal position, fulfilling the highest ethical duty of the profession.

• Duty to Court: Absolute respect, no private communication with judges, no illegal means. The lawyer is an officer of the court first.
• Duty to Client: Fiduciary trust. Must follow the Cab Rank rule, avoid conflict of interest, and maintain strict attorney-client privilege (Sec 126 IEA). No contingency fees.
• Duty to Opponent: Fair play, no direct negotiation with the opposing party behind their lawyer's back.
• Duty to Colleagues: Strict ban on advertising/soliciting. Must get an NOC before taking over someone else's brief.
• Employment Ban: A practicing advocate cannot run a business or hold a full-time salaried job.

⇒Premium Advice for Top Marks

• Structuring Duties: If asked a general question on duties, ALWAYS use the four headings: Court, Client, Opponent, Colleagues. Use bullet points under each. This shows the examiner you know the exact structure of the BCI Rules.
• Contingency Fees: Explain why they are banned. If a lawyer gets 30% of the winnings, they become personally interested in the litigation and might lie or forge evidence to win. It destroys their objectivity as an officer of the court.
• Advertising Ban: Contrast the Indian position with the American position (where lawyers run TV ads). Explain that in India, law is considered a noble public service, not a commercial trade, hence the ban on solicitation.