In the matter of D, an Advocate AIR 1956 SC 102

Vande Matram! A judgment is discussed in this article.

In the matter of D, an Advocate AIR 1956 SC 102

Court: Supreme Court of India.

Facts of the matter:

1) Adv. D was an enrolled advocate of Bombay High Court. And thus he was having the right to practice in any court of the Union of India.

2) He was prosecuted before the Presidency Magistrate of Bombay for the charge under the Bombay Prohibition Act. He was convicted by the Presidency Magistrate. Also Presidency Magistrate in his report regarding the conduct of Adv D as an advocate.

3) Adv D went up on appeal to the High Court.

4) High Court on the report of Presidency Magistrate constituted a Bar Council Tribunal of Three Members. This tribunal called an inquiry regarding the conduct of Adv D as an advocate.

5) Adv D made an application under Article 227 to High Court for quashing the proceedings conducted by the bar council tribunal for want of jurisdiction. Adv D pleaded that Tribunal had no jurisdiction to enter upon the inquiry of the misconduct complained of was not committed by him in his capacity as an Advocate. But this application was rejected by High Court.

6) Adv. D forwarded an unconditional apology letter. In that letter, he admitted that statements in the report of the Presidency Magistrate are correct except for two of them. Tribunal held that the mere conviction of the respondent under the Prohibition Act did not amount to professional or other misconduct under Section 10 of the Indian Bar Councils Act and, therefore, found him not guilty of the charge of professional misconduct with a recommendation to take notice of the conduct of Adv. D. And report of this inquiry was submitted to the Bombay High Court.

7) In the final hearing of the appeal at High Court took the view that the misconduct of the respondent was so serious and so grave that a deterrent punishment must be imposed on him. High Court convicted Adv D for his unworthy conduct as an advocate during proceedings in front of Presidency Magistrate and Bar Council Tribunal.

8) Adv. D appealed in Supreme Court for the judgment of the High Court regarding his conduct as an advocate. Adv D in his petition in Supreme Court pleaded that the Report of Presidency Magistrate is a highly exaggerated, garbled, and manifestly incorrect version of the incidents that occurred during the trial of the case.

Observations of the Supreme Court:

“It is needless for us to emphasise that a person holding the responsible position of an Advocate of a High Court and of this Court cannot be permitted to play with the Court in the way this Advocate has done. He admitted the correctness of the report, confessed his guilt, and tendered an unconditional apology evidently in the hope that he would get away with it by merely tendering an apology. Finding that the tactics did not work with the High Court as he expected the same to do, he now wants to charge his tactics by asking for an inquiry which he had himself avoided by means of his admission and apology.”

Further, the court observed that “The conduct of the respondent in the criminal trial was, as pointed out by the High Court, entirely indefensible by any standard. It discloses a continuous and persistent attempt on the part of the respondent to be rude to and contemptuous of the Magistrate, to hold up the trial, and to do everything in his power to bring the administration of justice into contempt. Such conduct, in our opinion, merits severe condemnation.”

Thus the professional misconduct of Adv D was proved, which was vague and unethical as an advocate.

Punishments:

Adv D was sentenced at all the levels of the case

a) Presidency Magistrate: One month of rigorous imprisonment with a fine.

b) Bar Council Tribunal: No punishment pronounced but recommended to notice the behavior of Adv D.

c) High Court: Suspension of practice in High Court for one year.

d) Supreme Court: Suspension of practice in all Courts throughout the Union of India for one year.

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Elementary aspects of bookkeeping

Vande Matram! In this article, I am discussing, elementary aspects of bookkeeping in the legal profession.

Introduction:

Though the legal practice is not a money-oriented profession, there are a lot of transactions incurred by an advocate on daily basis regarding various cases he is looking after. Such transactions must be recorded efficiently and this recording is nothing but book-keeping. Book-keeping is a process of recording business transactions in the books of accounts in a very systematic manner. All the transactions are recorded date-wise. In India, this system of book-keeping was in Operation from the 23rd century ago at the time of Chandragupta Maurya. Chanakya was recording the accounting transactions. He wrote a famous book known as “Arthashastra”. Bookkeeping practices must be defined and tracked, so it does not distract Lawyers' billable time.

Meaning of bookkeeping:

Bookkeeping is the term used to record all business transactions in a law firm including financial transactions, sources of business revenue, profits, purchases, receipts, payments, reimbursements, and expenditures.

Many scholars have defined the term ‘book-keeping’ in their own way as follows:

1) J. R. Batliboi:  Book-keeping is an art of recording business dealing in a set of books".

2) R.N. Carter: "book-keeping is the science and art of correctly recording in the books of accounts, all those businesses transactions that result in a transfer of money's worth."

3) Spicer & Pegler: Book-keeping is the systematic recording of the transactions in a manner enabling the financial relationship of a business with other persons to be clearly disclosed and the cumulative effect of the transactions on the financial position of the business itself can be correctly ascertained.

4) Richard E. Strahelm: “The art of analyzing and recording business transactions, reporting the result of business operations through periodic statements and integrating such result for purposes of effective control of future operations."

5) Notch Cott - “Book-keeping is an art of recording in the books of accounts the monetary aspects of commercial or financial transaction."

Need of book-keeping by an advocate:

A businessman or a professional cannot remember each and every transaction without keeping account books regularly. He cannot also claim or recover any amount even though due from the other customer, client, or businessman. An advocate has to accurately manage the flow of money in and out and maintain a complete and precise record of all transactions.

This book can be used as a record for the settlement of fees with clients.

Having accurate monthly financial records helps advocate being aware of the balance of fees with a client, income, and expenses.

Also, in the matter of any professional misconduct, such a book can save the advocate as that book can show all the records of transactions.

Every advocate needs to keep a regular account which has certain evidentiary value also under the Indian Evidence Act, 1972.

The same book can be helpful in the income tax return as well as a professional tax return.

Principles of Book-Keeping

Tracking Every Activity: This includes tracking the hours devoted to clients, billing them for those hours, and keeping track of their payments when being received. The main point is to be accurate in tracking and simply not to let anything slip through.

Tracking Every Expense: Many transactions are incurred when an advocate is working for his client. Tracking all the expenses on such transactions is a must. These must be reported correctly.

Recording in Ledgers: Bookkeeping ledgers hold financial accounts and transactions. For every client, a separate page must be assigned in the ledger and all the transactions regarding expenses and fees received must be recorded in it. Ledger provides a summary of income and expenses, regularly and serves as the authoritative source of data for financial accounting reports.

Thus bookkeeping is necessary to fulfill duties towards the clients by an advocate. Also, bookkeeping helps in the easy assessment of accounts with clients at the time of settlement of fees and it is having an evidentiary value also.

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Accountancy for an advocate: Rules and need

 

Vande Matram! In this article, I am discussing, accountancy for an advocate which is in the light of the Bar Council of India rules, and the Advocates Act, 1961. Let’s begin.

Introduction:

The legal profession is ethical, and though it is not a money-making business still various transactions are encountered while dealing with a matter of a client. An advocate must keep a record of all the transactions related to a matter and disclose these transactions to the relevant client at the end of the case. Hence accountancy is necessary for an advocate. Advocates Act is silent on such account keeping but the Bar Council of India rules state the rules for accountancy for an advocate.

Bar Council of India rules for accountancy:

It is the duty of an advocate towards his client that he should maintain an account of his client. The rules of such accounting are dealt with in rules 25 to 32 of the Bar Council of India Rules 1975. The rules are as follows:

Rule 25: An advocate should keep the accounts of the client’s money entrusted to him. The accounts should show the amounts received from the client, the expenses incurred for him and the debits made on the account of Advocate fees with the respective dates and all other necessary particulars.

The account of a client will have entries regarding fees paid by the client, expenses done by the advocate regarding his case, and the date of all such transactions. These entries should be clear.

Rule 26: Where moneys are received from the client, it should be entered whether the amount have been received for the advocates fees or expenses. Amount received for the expenses shall not be diverted towards Advocates fees without the consent of the client in writing.

The client can give money on account of expenses to be done for his case or on account of the fees of the advocate. The money given by the client should be entered in the account book and each entry should have the purpose mentioned for such transaction.

Rule 27: Where any amount is received on behalf of his client the fact of such receipt must be intimated to the client as early as possible.

In any case, if an advocate receives any money on behalf of his client, then the advocate must inform about this transaction to his client as early as possible.

Rule 28: After the completion of the proceeding, the advocate shall be at the liberty to take the settled fee due to him to the unspent money in his hand.

After completion of the proceeding related to a case, if there is some unspent money with advocate given to him for expenses by the client, and also his fees are due with the client then the advocate can settle the account with the client by deducting unspent money from his fees with the consent of the client.

Rule 29: Where the fee has been left unsettled, the advocate shall take the fees which he is legally entitled from the moneys of the client remaining in his hands, after the completion of the proceeding. The balance shall be returned to the client.

After settling the fees with unspent money, the advocate has to return the surplus money given to him by the client on account of expenses at the end of the proceedings of the case.

Rule 30: A copy of the client account shall be furnished to him after getting the necessary copying charges from him.

Copy of account must be given to the client.

Rule 31: An advocate shall not make any agreements whereby client’s funds in his hands are converted into loans to the advocate.

An advocate cannot enter into an agreement by which either client’s funds in his hands become loans to him.

Rule 32: An Advocate shall not lend money to his client for the purpose of conducting the case.

The advocate cannot lend money to his client to conduct a matter which he is looking after.

Purpose of maintaining an account by an advocate:

The basic purpose of accounting is to present a complete financial picture of the Advocates profession. It is necessary to maintain proper accounts to calculate the following

(i) Annual Income: As accounts are maintained by an advocate, his annual income can be seen clearly for any purpose.

(ii) Income Tax: It is necessary for income tax payment and filing the tax record.

(iii) Professional Tax: As legal practice is a profession, professional tax shall be paid by an advocate. For this purpose, the record of his professional income and expenses must be kept.

(iv) Amount due to the client or amount due by the client: To settle the fees due with the client it is necessary to keep the separate account of each client as mentioned in BCI rules.

Client’s account:

Client’s Account: For each and every client separate pages shall be allotted in the ledger and a separate account shall be maintained for them. You ought to maintain a record of your engagements, containing the terms of your settlement with the client, his address, and any other special instructions he may have given.

In a case, in the Madras High Court, the learned Judges made the following observation. ’We think it necessary also to say that this case brings out very clearly the desirability of legal practitioners keeping separate accounts of their own money and their clients’ money and seeing that their clients’ money is deposited in a bank in a separate account. If that is done it will be easy for a pleader to refrain from spending his clients’ money for purposes other than his clients’ and, if his conduct is questioned, to show that he has not transgressed the limits of professional good conduct.’

Other accounts:

(i) Fees Account: In this account, the fees received from each and every client shall be entered separately. From this account, the total amount of fees received from all the clients in a financial year can be ascertained.

(ii) Rent Account: An account for rented office premises if any must be maintained. This can be treated as a professional expense.

(iii) Salary Account: An advocate having staff in his office maintain the salary account and details of salary, bonus, gifts, and hand loans given to staff must be entered. This is also a professional expense.

(iv) Library Account: An advocate has to keep his legal knowledge up to date and for this, he must access various law libraries which may be at court premises or maybe online. An advocate should maintain an account for membership of such libraries. This is treated as a professional expense of an advocate.

(v) Printing and Stationery Account: A lot of paperwork for pleadings and proceedings is to be done which require stationery and printing and Xeroxing – all such expenses are professional expense and such entries must be recorded.

(vi) Postage and Telegram Account: Communication is the backbone of the legal profession. Each transaction done for the communication by way of postage or telegram must be recorded. This is also a professional expense.

(vii) Electricity Charges, Conveyance Charges, Repairing, and Maintenance are other professional expenses done and entries of these transactions must be done in an account book.

Bar Council of India Rules

Note: Part in Red words is part of Bar Council of India Rules.

If you want to know about specific provisions of the Advocates Act, 1961 and the Bar Council Rules then let me know in the comments below.

To know the references and to read more articles related to Professional ethics and professional accounting system please visit this page Legal Profession: Professional Ethics and Professional accounting system.

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Punishments for professional misconduct

Vande Matram! In this article, I am discussing, punishments for professional misconduct of an Advocate which is in the light of the Bar Council of India rules, and the Advocates Act, 1961. Let’s begin.

Punishments for professional misconduct:

Introduction:

As stated by Justice K. Ramaswamy, any improper or wrongful behaviour which is unlawful in nature and is done deliberately by a professional person, can be considered professional misconduct. Further, performing any forbidden act or a transgression of established and definite rule of action or code of conduct may lead to professional misconduct. Though Advocates Act 1961 is silent on the definition of professional misconduct it empowers the Disciplinary Committee of a bar council to punish an advocate for his professional misconduct. As per Section 9 of the Act every bar council has to establish at least one disciplinary committee, which will look after the matters related to the professional misconduct of an advocate on receiving a complaint against him. Section 35 gives for the punishments for the professional misconduct of an advocate. Section 35 of Advocates Act, 1961 is produced and discussed here:

35. Punishment of advocates for misconduct.―(1) Where on receipt of a complaint or 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 its disciplinary committee.

On receipt of a complaint against an advocate for his professional misconduct, State Bar Council has to refer it for disposal to its disciplinary committee.

(1A) The State Bar Council may, either of its own motion or on application made to it by any person interested, withdraw a proceeding pending before its disciplinary committee and direct the inquiry to be made by any other disciplinary committee of that State Bar Council.

As per Section 9, a state bar council can establish more than one disciplinary committee. State bar council can withdraw a proceeding pending before one disciplinary committee and refer that matter for further proceedings and inquiry to its other disciplinary committee. Such transfer of matters can be done by State Bar Council on its own motion or on an application by the person interested in such matter.

(2) The disciplinary committee of a State Bar Council shall fix a date for the hearing of the case and shall cause a notice thereof to be given to the advocate concerned and to the Advocate-General of the State.

As the disciplinary committee is intimated about a complaint, it has to decide a date for a hearing of that matter. A notice of hearing must be given to the advocate concerned as well as a copy must be forwarded to the Advocate-General of the State. Such notice of hearing gives the concerned advocate a fair chance of being heard, which is following principles of natural justice.

(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 deem fit;

(d) remove the name of the advocate from the State roll of advocates.

After the hearing is conducted the disciplinary committee can pass any of the following orders:

1. Dismiss the complaint: If a complaint is done by any random person against an advocate for his professional misconduct, then after hearing both sides of the matter, the disciplinary committee can dismiss the complaint by giving its orders depending upon the case.

2. Direct that the proceedings be filed: Sometimes State Bar Council on its own, initiates initiate the proceedings against professional misconduct of an advocate, in such cases disciplinary committee can direct that the proceedings are filed and further actions may be taken.

3. Reprimand the advocate: Disciplinary committee can inform strongly and formally that he/she had done such an act which is unethical in the norms of advocacy professional ethics and can further give a statutory warning to that advocate not to repeat the same in the future.

4. Suspension of advocate: Disciplinary committee can suspend an advocate for a specific time as it may deem fit. Due to such suspension, the advocate is not allowed to practice the legal profession anywhere in India during his suspension period.

5. Remove the name of the advocate from the state roll of advocates: This is a permanent ban on that advocate and he is not allowed to practice the legal profession anywhere in India during his lifetime.

(4) Where an advocate is suspended from practice under clause (c) of sub-section (3), he shall, during the period of suspension, be debarred from practising in any court or before any authority or person in India.

(5) Where any notice is issued to the Advocate-General under sub-section (2), the Advocate-General may appear before the disciplinary committee of the State Bar Council either in person or through any advocate appearing on his behalf.

Explanation.―In this section, section 37 and section 38, the expressions “Advocate-General” and “Advocate-General of the State” shall, in relation to the Union territory of Delhi, mean the Additional Solicitor General of India.

Thus disciplinary committee of the State Bar council can punish an advocate if a complaint is filed against him or State Bar Council on its own motion initiates proceedings against him.

Note: Part in Red words is part of Bare Act – Advocates Act, 1961.

If you want to know about specific provisions of the Advocates Act, 1961 and the Bar Council Rules then let me know in the comments below.

To know the references and to read more articles related to Professional ethics and professional accounting system please visit this page Legal Profession: Professional Ethics and Professional accounting system.

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Complaint against an advocate for professional misconduct

Vande Matram! In this article, I am discussing, how a complaint can be filed against an advocate for his professional misconduct which is in the light of the Bar Council of India rules, and the Advocates Act, 1961. Let’s begin.

Introduction:

Advocacy is a noble profession and to maintain its nobility each advocate has to follow the professional ethics prescribed by BCI in Chapter II of Part IV of BCI rules in the light of Section 49 of Advocates Act, 1961. If any professional misconduct is encountered by an advocate then a complaint can be filed against that advocate in front of the respective State Bar Council, where he is enrolled. Further such complaint is heard by the disciplinary committee of that bar council.

Disciplinary Committee:

Section 9 of the Advocates Act provides for the formation of a disciplinary committee by the bar council. Section 9 is produced and discussed here:

9. Disciplinary committees.―(1) A Bar Council shall constitute one or more disciplinary committees, each of which shall consist of three persons of whom two shall be persons elected by the Council from amongst its members and the other shall be a person co-opted by the Council from amongst advocates who possess the qualifications specified in the proviso to sub-section (2) of section 3 and who are not members of the Council, and the senior-most advocate amongst the members of a disciplinary committee shall be the Chairman thereof.

(2) Notwithstanding anything contained in sub-section (1), any disciplinary committee constituted prior to the commencement of the Advocates (Amendment) Act, 1964 (21 of 1964) may dispose of the proceedings pending before it as if this section had not been amended by the said Act.

According to provisions of Section 9, every bar council has to constitute at least one disciplinary committee. It can establish more than one disciplinary committee as and when needed.

Every disciplinary committee has three members: a) two of the members are the members of the bar council who are elected by the bar council, b) an advocate having 10 years of experience.

The Chairman of the disciplinary committee is decided based on the seniority of the three members.

Procedure to file a complaint against an advocate:

There is no prescribed procedure of complaint against an advocate for his misconduct in the Advocates Act, 1961. But it is prescribed in BCI rules.

A complaint against an advocate needs to be filed through the mode of a petition. It is to be duly signed and verified as needed under the Code of Civil Procedure. A complaint is often filed either in English or Hindi or, in any regional language where the language has been declared to be a state language to the State Bar Council.

If the complaint in Hindi or regional language is further referred to the disciplinary committee of BCI, then it should be translated into English for further proceedings in front of the disciplinary committee of BCI.

It is necessary to pay prescribed fees to file a complaint in the bar council.

Complainant has to cater any defects and provide copies of the relevant documents needed. For catering to the defects and providing copies of relevant documents a time is fixed. Complainant has to fulfill all these requirements within that fixed time.

Procedure after receipt of a proper complaint against an advocate for his professional misconduct:

After that, the complaint is referred to the disciplinary committee of that bar council which issues a notice to the advocate, against whom the complaint is filed. That advocate will be given a fair chance to file a statement of defence, copies of relevant documents, and affidavit within a stipulated time and hearing is conducted.

If the advocate is not present on the date of the hearing, then the hearing can be conducted in his absence. An appearance usually includes the presence of an advocate or through a duly authorized representative.

The Chairman of the Disciplinary Committee will fix the date, hour, and place of the inquiry. This date won't ordinarily be later than thirty days from the receipt of the reference. The Registrar is responsible for giving notice of the date, hour, and place to the complainant or other person aggrieved, the advocate concerned, the Attorney General or the extra lawman of India or the Advocate General, in simple language, to whom so ever, the case is concerned.

The notices could also be sent ordinarily through messenger or by registered mail and served on the advocate or the party concerned or his agent or another person as provided in the Civil Procedure Code. Notice to a celebration not appearing by the advocate shall be sent to the address as furnished within the complaint or the grounds of appeal. The value of the notices shall be borne by the complainant unless the Disciplinary Committee otherwise directs.

If in an inquiry on a complaint received, either the complainant or the respondent does not appear before the Disciplinary Committee despite service of notice, the Committee may proceed ex-parte or direct fresh notice to be served.

Any such order for proceeding ex-parte could also be put aside on sufficient cause being shown, when an application is formed supported by an affidavit, within 60 days of the passing of the ex-parte order. The provisions of Section 5 of the Limitation Act, 1963 shall apply to the present sub-rule.

Thus the proceedings take place in front of the Disciplinary Committee. If an advocate is proved to be guilty of professional misconduct, then the Disciplinary committee can punish him as per the provisions of Section 35 of the Advocates Act, 1961.

Disposal of disciplinary proceedings:

Section 36B of the Advocates Act, 1961 provides for the procedure of disposal of the complaints of professional misconduct by the disciplinary committee, which is produced and discussed as follows:

36B. Disposal of disciplinary proceedings.―(1) The disciplinary committee of a State Bar Council shall dispose of the complaint received by it under section 35 expeditiously and in each case the proceedings shall be concluded within a period of one year from the date of the receipt of the complaint or the date of initiation of the proceedings at the instance of the State Bar Council, as the case may be, failing which such proceedings shall stand transferred to the Bar Council of India which may dispose of the same as if it were a proceeding withdrawn for inquiry under sub-section (2) of section 36.

As per Section 36B(1), The disciplinary committee of a State Bar Council has to dispose of the complaints received with efficiency and speed.

In each case, the procedure must be concluded within a period of one year from the date of the receipt of the complaint or the date of initiation of the proceedings at the instance of the State Bar Council.

If proceedings are not concluded within one month, then the matter shall stand transferred to BCI.

BCI can dispose of such complaints as they were the proceeding withdrawn for inquiry same as under Section 36(2).

(2) Notwithstanding anything contained in sub-section (1), where on the commencement of the Advocates (Amendment) Act, 1973 (60 of 1973), any proceedings in respect of any disciplinary matter against an advocate is pending before the disciplinary committee of a State Bar Council, that disciplinary committee of the State Bar Council shall dispose of the same within a period of six months from the date of such commencement or within a period of one year from the date of the receipt of the complaint or, as the case may be, the date of initiation of the proceedings at the instance of the State Bar Council, whichever is later, failing which such proceedings shall stand transferred to the Bar Council of India for disposal under sub-section (1).

The provisions in Section 36B(2) apply to the complaints made before the enactment of the Advocates (Amendment) Act, 1973 (60 of 1973).

Thus the disciplinary committee has to complete the proceedings on the complaints received against an advocate for his professional misconduct within one year otherwise it will stand referred to BCI. BCI further will dispose of these types of complaints as if they are to be withdrawn.

Note: Part in Red words is part of Bare Act – Advocates Act, 1961.

If you want to know about specific provisions of the Advocates Act, 1961 and the Bar Council Rules then let me know in the comments below.

To know the references and to read more articles related to Professional ethics and professional accounting system please visit this page Legal Profession: Professional Ethics and Professional accounting system.

Thanks for reading till the end. Please share this with all legal professionals.

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Professional Misconduct of an advocate

 

Vande Matram! In this article, I am discussing the professional misconduct of an advocate which is in the light of the Bar Council of India rules and the Advocates Act, 1961. Let’s begin.

Professional Misconduct of an advocate:

Introduction:

The legal profession is considered a noble profession by society and the fundamental prerequisite of any profession is good ethics. So to maintain the nobility of the legal profession it is mandatory to adhere to and observe a set of professional norms referred to as Professional Ethics. Not complying with professional norms or ethics leads to misconduct. Professional misconduct is behaviour outside the bounds of what is considered acceptable or worthy of its membership by the governing body of a profession. Professional misconduct refers to disgraceful or dishonourable conduct not befitting an advocate. In other words, it can be said that any act which disqualifies an Advocate to continue in the legal profession is considered professional misconduct. The Advocates Act, 1961 as well Indian Bar Council are silent in providing an exact definition for professional misconduct because of its wide scope.

Professional Misconduct:

There are various duties and rules that are provided to be followed by an Advocate. These duties are towards his client, court, opponent, colleague, society, and himself. Non-compliance to any of the stated rules by an Advocate would be considered professional misconduct.

The word ‘professional misconduct’ is nowhere defined in the Advocates Act, and it is not possible to come up with a standard definition of it. This makes precedents in this particular matter the only reliable source of understanding the meaning of professional misconduct. Section 49 of the Advocates Act 1961 empowers the Bar Council of India to frame rules regulating standards of professional conduct. Rules on the professional standards that an advocate needs to maintain are mentioned in Chapter II, Part VI of the Bar Council of India Rules. As ‘professional misconduct’ is not defined anywhere in the Advocates Act 1961 and BCI is also silent on its definition, we have to rely on the decided cases. Some of the incidences of professional misconduct are enlisted as follows:

1) Dereliction of duty

2) Professional negligence

3) Misappropriation

4) Changing sides

5) Contempt of court and improper behaviour before a magistrate

6) Furnishing false information

7) Giving improper advice

8) Misleading the clients in court

9) Non-speaking the truth

10) Disowning allegiance to the court

11) Moving application without informing that a similar application has been rejected by another authority

12) Suggesting to bribe the court officials

13) Forcing the procecution witness not to tell the truth.

14) Moral Turpitude

15) improper or wrongful behavior

16) unlawful behavior

17) willful in character

18) a forbidden act

19) transgression

20) carelessness or negligence in the performance of duty

21) the act complained of bears forbidden quality or character

As stated by Justice K. Ramaswamy, any improper or wrongful behaviour which is unlawful in nature and is done deliberately by a professional person can be considered as professional misconduct. Further, performing any forbidden act or a transgression of established and definite rule of action or code of conduct may lead to professional misconduct.

If you want to know about specific provisions of the Advocates Act, 1961 and the Bar Council Rules then let me know in the comments below.

To know the references and to read more articles related to Professional ethics and professional accounting system please visit this page Legal Profession: Professional Ethics and Professional accounting system.

Thanks for reading till the end. Please share this with all legal professionals.

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Enrolment of an Advocate with Supreme Court of India:

 

Vande Matram! In this article, I am discussing rules, provisions, and procedures for the enrollment of an advocate with the Supreme Court of India which are in the light of the Bar Council of India rules, Supreme Court Rules, 1966, and the Advocates Act, 1961. Let’s begin.

Enrolment of an Advocate with Supreme Court of India:

Introduction:

The right to practice is a fundamental right as per Article 19(1)(g) of the Constitution of India. A law graduate who has entered into the roll of the state bar council is having the right to practice in all Courts within the territory of India including the Supreme Court. Section 30 of the Advocates Act, 1961 provides for the same. Section 20 of the Act gives special provisions for the enrolment of certain Supreme Court advocates. Section 20 is produced and discussed as follows:

20. Special provision for enrolment of certain Supreme Court advocates.―(1) Notwithstanding anything contained in this Chapter, every advocate who was entitled as of right to practise in the Supreme Court immediately before the appointed day and whose name is not entered in any State roll may, within the prescribed time, express his intention in the prescribed form to the Bar Council of India for the entry of his name in the roll of a State Bar Council and on receipt thereof the Bar Council of India shall direct that the name of such advocate shall, without payment of any fee, be entered in the roll of that State Bar Council, and the State Bar Council concerned shall comply with such direction.

In this context, as per Section 2(1)(b) ‘appointed day’ means the day on which that provision comes into force. Section 20 was substituted by Section 15 of Act 60 of 1973 which came into force on Dt. 31.01.1974. As per Section 30(i) every advocate is entitled to practice in all courts including the Supreme Court of India within the territories where this Act is applicable. Let Q be an advocate who was entitled as of right of practice in the Supreme Court before 31.01.1974. Q is not having his name enrolled in any State roll, then Q has to express his intention in the prescribed form to the Bar Council of India for the entry of his name in the roll of a State Bar Council. After receiving such application from Q, on the direction of BCI name of Q had to be entered into the roll of State Bar Council without payment of any fee of enrolment. This sub-section is applicable to the advocates practicing in the Supreme Court of India before 31.01.1974 and have not enrolled themselves into any roll of State Bar Council.

(2) Any entry in the State roll made in compliance with the direction of the Bar Council of India under sub-section (1) shall be made in the order of seniority determined in accordance with the provisions of subsection (3) of section 17.

As Q was practicing in Supreme Court since before Dt. 31.01.1974 and BCI had directed to State Bar Council to enroll his name, then his name should have been placed into the roll of advocates according to his seniority.

(3) Where an advocate referred to in sub-section (1) omits or fails to express his intention within the prescribed time, his name shall be entered in the roll of the State Bar Council of Delhi.

If Q was failed to intimate BCI regarding his enrolment into the roll of State Bar Council of his choice, then his name would be automatically entered into the roll of the State Bar Council of Delhi.

Well, this procedure is for advocates who were practicing in the Supreme Court of India before 31.01.1974. Now the procedure has been changed. The rules for practice in Supreme Court are mentioned in Order IV of the Supreme Court Rules, 1966. According to the Order IV of Supreme Court Rules, 1966

1) Only those advocates who had entered on the roll of State Bar Councils can practice in Supreme Court.

2) Only Senior Advocates can enter the Supreme Court Bar unconditionally. Other advocates have to fulfill certain conditions.

3) To enter the Supreme Court one has to give the Advocates on Record Examination of Supreme Court.

4) Very first condition to appear in such examination is at least 4 years of experience as a practicing lawyer.

5) After passing such an exam, that advocate has to take training of one year under the advocate on record of the Supreme Court on approval of the Court.

6) If an advocate is having ten years of experience in legal practice then he can be exempted from the training.

7) The experience of practice should be of the High Court of any state. High Court judges with the opinion of senior advocates can appoint an advocate as a senior advocate.

So these are the steps to get enrolled with the Supreme Court of India for practice.

Note: Part in Red words is part of Bare Act – Advocates Act, 1961.

If you want to know about specific provisions of the Advocates Act, 1961 and the Bar Council Rules then let me know in the comments below.

To know the references and to read more articles related to Professional ethics and professional accounting system please visit this page Legal Profession: Professional Ethics and Professional accounting system.

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The procedure of Enrollment of an Advocate with Bar Council of India

Vande Matram! In this article, I am discussing rules, provisions, and procedures for the enrollment of an advocate with the Bar Council of India which are in the light of the Bar Council of India rule and the Advocates Act, 1961. Let’s begin.

Introduction:

Advocates Act 1961 provides for the admission and enrollment of an advocate with bar councils in its Chapter III. As per Section 2(1)(a) of the Advocates Act, ‘advocate’ means an advocate who entered in any roll constituted under this Act. All such enrollments are carried by the State bar councils. No one can be enrolled directly in the roll of BCI. The enrolment is done by State bar councils only. The following sections provide the procedure of enrollment of an advocate in the roll of the state bar council.

1) Section 24 states the eligibility of the persons who can enter the roll of the state bar council. A person fulfilling the conditions of Section 24 is eligible for enrollment with BCI with additional conditions to be fulfilled.

2) Section 24A provides for the disqualification of an advocate from the roll of state bar council. Persons who are disqualified from the roll of the state bar council are not at all eligible for enrollment with BCI.

3) Section 25 says that State Bar Council is the authority to whom application to enter in the roll of that bar council may be made.

4) Section 26 provides for the disposal of applications for enrollment of advocates by bar councils.

Eligibility required for admission in the roll of bar council:

Section 24 states about the eligibility of the persons who can enter in the roll of state bar council. Section 24 is produced and discussed as follows:

24. Persons who may be admitted as advocates on a State roll.―(1) Subject to the provisions of this Act, and the rules made thereunder, a person shall be qualified to be admitted as an advocate on a State roll, if he fulfils the following conditions, namely:―

If Q is a person who wants to enter the roll of a bar council, then he must qualify certain conditions which are enlisted in various clauses of Section 24(1). Q cannot be any random person.

(a) he is a citizen of India:

Provided that subject to the other provisions contained in this Act, a national of any other country may be admitted as an advocate on a State roll, if citizens of India, duly qualified, are permitted to practise law in that other country;

Q must be a citizen of India is the basic requirement to enter in the roll of bar council. But if Q belongs to a foreign country where citizens of India are permitted to practice law then he can be entered into the roll of the bar council. If Q belongs to a foreign country where citizens of India are not permitted to practice law then Q is not eligible to enter the roll of any bar councils working anywhere within the territory of India.

(b) he has completed the age of twenty-one years;

(c) he has obtained a degree in law—

Well if Q is not having any degree in law then he is not eligible to enter in the roll of any bar council constituted under Advocates Act 1961.

(i) before the 12th day of March, 1967, from any University in the territory of India; or

(ii) before the 15th day of August, 1947, from any University in any area which was comprised before that date within India as defined by the Government of India Act, 1935; or

Before partition, many lawyers had completed their law graduations from universities now present in Pakistan and Bangladesh. But they migrated to India after partition. Hence this provision has been given. Thus of Q is a law graduate who passed out from Dhaka University before 15^th August 1947 then he was eligible to enter the roll of advocates of any state bar council.

(iii) after the 12th day of March, 1967, save as provided in sub-clause (iiia), after undergoing a three-year course of study in law from any University in India which is recognised for the purposes of this Act by the Bar Council of India; or

(iiia) after undergoing a course of study in law, the duration of which is not less than two academic years commencing from the academic year 1967-68 or any earlier academic year from any University in India which is recognised for the purposes of this Act by the Bar Council of India; or

Clause (ii), (iii), and (iiia) provide for the law degree or course completed from any university recognized by BCI to impart the law education within the territory of India.

(iv) in any other case, from any University outside the territory of India, if the degree is

recognised for the purposes of this Act by the Bar Council of India; or he is a barrister and is called to the Bar on or before the 31st day of December, 1976; or has passed the article clerk's examination or any other examination specified by the High Court at Bombay or Calcutta for enrolment as an attorney of that High Court; or has obtained such other foreign qualification in law as is recognised by the Bar Council of India for the purpose of admission as an advocate under this Act;

There are other circumstances where the law qualifications can be obtained. This Clause (iv) provides for the same.

If Q is a law graduate of a foreign university and his degree is recognized by BCI then he can enter the roll of bar council.

If Q is a barrister i.e. a person who was practicing in South Africa or Scotland and called to the bar on or before 31^st December 1976 then he can enter into the roll of bar council.

If Q has passed the article clerk's examination or any other examination specified by the High Court at Bombay or Calcutta for enrolment as an attorney of that High Court, then he can enter in the roll of bar council.

If Q has obtained other foreign qualifications in law from foreign which is recognized by BCI then he can enter in the roll of bar council.

(e) he fulfils such other conditions as may be specified in the rules made by the State Bar Council under this Chapter;

If Q has fulfilled other conditions which may be specified in the rules of BCI then he is eligible to enter into the roll of bar council.

(f) he has paid, in respect of the enrolment, stamp duty, if any, chargeable under the Indian Stamp Act, 1899 (2 of 1899), and an enrolment fee payable to the State Bar Council of six hundred rupees and to the Bar Council of India, one hundred and fifty rupees by way of a bank draft drawn in favour of that Council:

Provided that where such person is a member of the Scheduled Castes or the Scheduled Tribes and produces a certificate to that effect from such authority as may be prescribed, the enrolment fee payable by him to the State Bar Council shall be one hundred rupees by way of a bank draft drawn in favour of that Council

Explanation.―For the purposes of this sub-section, a person shall be deemed to have obtained a degree in law from a University in India on the date on which the results of the examination for that degree are published by the University on its notice board or otherwise declaring him to have passed that examination.

After satisfying conditions from clause (a) to (e) of Section 24(1), Q has to pay enrolment fees of Rs. 600/- (six hundred only) payable to the State Bar Council and Rs. 150/- (one hundred and fifty only) to the Bar Council of India, by way of bank draft drawn in favour of that council along with stamp duty, if applicable, chargeable under the Indian Stamp Act, 1899. In this case, it is deemed that University has declared that Q is passed when he was moving such application for enrollment as an advocate.

(2) Notwithstanding anything contained in sub-section (1), a vakil or a pleader who is a law graduate may be admitted as an advocate on a State roll if he—

(a) makes an application for such enrolment in accordance with the provisions of this Act, not later than two years from the appointed day; and

(b) fulfils the conditions specified in clauses (a), (b), (e) and (f) of sub-section (1).

In the Diwani Courts, legal practice was neither recognized nor controlled, and practice was carried on by vakils and agents. Vakils had even been appearing in the Courts of the Nawabs and there were no laws concerning their qualification, relationship to the Court, mode of procedure of ethics or practice.

In the British era, pleaders were the professionals who had training in either Hindu or Muslim law.

(3) Notwithstanding anything contained in sub-section (1) a person who—

(a) has, for at least three years, been a vakil or a pleader or a mukhtar, or was entitled at any time to be enrolled under any law as an advocate of a High Court (including a High Court of a former Part B State) or of a Court of Judicial Commissioner in any Union territory; or

Mukhtar is also a legal practitioner but the term was used during the British era and before the enactment of the Advocates Act 1961.

(aa) before the 1st day of December, 1961, was entitled otherwise than as an advocate to practise the profession of law (whether by way of pleading or acting or both) by virtue of the provisions of any law, or who would have been so entitled had he not been in public service on the said date; or

(c) before the 1st day of April, 1937, has been an advocate of any High Court in any area which was comprised within Burma as defined in the Government of India Act, 1935 (25 & 26 Geo. 5 C 42); or

(d) is entitled to be enrolled as an advocate under any rule made by the Bar Council of India in this behalf, may be admitted as an advocate on a State roll if he—

(i) makes an application for such enrolment in accordance with the provisions of this Act; and

(ii) fulfils the conditions specified in clauses (a), (b), (e) and (f) of sub-section (1).

So these are the provisions for the enrollment of the lawyers, law graduates, vakils, pleaders, mukhtars, etc. to enter in the roll of bar councils as an advocate.

Disqualification for enrolment:

Section 24A provides for the disqualification for the enrolment of a person as an advocate on the roll of a bar council. The section is reproduced and discussed as follows:

24A. Disqualification for enrolment.―(1) No person shall be admitted as an advocate on a State roll―

(a) if he is convicted of an offence involving moral turpitude;

(b) if he is convicted of an offence under the provisions of the Untouchability (Offences) Act, 1955 (22 of 1955)

(c) if he is dismissed or removed from employment or office under the State on any charge involving moral turpitude.

Explanation.―In this clause, the expression “State” shall have the meaning assigned to it under Article 12 of the Constitution:

Provided that the disqualification for enrolment as aforesaid shall cease to have effect after a period of two years has elapsed since his released or dismissal or, as the case may be, removal.

Let Q be a person who wants to enter the roll of bar council as an advocate.

Moral turpitude is an act or behavior that gravely violates the sentiment or accepted standard of the community. If Q is convicted of an offence that violates the sentiments and standards of a community then he is disqualified from such enrolment.

If Q is convicted under the offences related to Untouchability (Offences) Act, 1955 then he is disqualified from such enrolment.

If Q is an employee of State and he dismissed due to any charge of moral turpitude then he is disqualified from such enrolment. Here State is in the light of Article 12 of Constitution of India which includes Government of India, Parliament of India, Government of states in India, Legislature of states in India, Local governance authorities, other governance authorities, President of India, Governors of states in India, Department of Government whether Union or state, Institutions controlled by governments, Government organisations like LIC, Municipal commissions at various levels, Panchayats and other organisations of Panchayati Raj, etc.

If Q is released from the punishment or Q is dismissed from his employment under any charge as per clauses (a) to (c) on 1^st January 2021 then his disqualification for enrolment with the bar council shall cease on 31^st December 2023 i.e. after two years of such release or dismissal or removal or whatever the case may be.

(2) Nothing contained in sub-section (1) shall apply to a person who having been found guilty is dealt with under the provisions of the Probation of Offenders Act, 1958 (20 of 1958).

The Probation of Offenders Act of 1958 builds on the premise that juvenile offenders should be stopped by counseling and rehabilitation rather than thrown into jail by being regular offenders. A juvenile offender means an offender who is a minor. Provisions of Section 24A(1) are not applicable to juvenile offenders, or minor offenders.

Application for enrolment and its disposal:

Section 25 describes the authority to whom the application for enrolment may be made and Section 26 provides for the disposal of such applications. Section 25 and Section 26 are produced and discussed here:

25. Authority to whom applications for enrolment may be made.―An application for admission as an advocate shall be made in the prescribed form to the State Bar Council within whose jurisdiction the applicant proposes to practise.

Every bar council prescribes a format for the application for enrolment in the respective bar council. If Q, a law graduate wants to practice in Maharashtra then he must give an application for admission as an advocate on the roll of Bar Council of Maharashtra and Goa in the prescribed form by the Bar Council of Maharashtra and Goa.

26. Disposal of applications for admission as an advocate.―(1) A State Bar Council shall refer every application for admission as an advocate to its enrolment committee, and subject to the provisions of sub-sections (2) and (3) and to any direction that may be given in writing by the State Bar Council in this behalf, such committee shall dispose of the application in the prescribed manner:

Provided that the Bar Council of India may, if satisfied, either on a reference made to it in this behalf or otherwise, that any person has got his name entered on the roll of advocates by misrepresentation as to an essential fact or by fraud or undue influence, remove the name of such person from the roll of advocates after giving him an opportunity of being heard.

After receiving applications by the state bar council, it has to dispose of such applications. So bar council has to refer each application to its enrolment committee. The enrolment committee of the state bar council has to dispose of all such applications referred to it in a prescribed manner. But in certain conditions, if the enrolment committee wants to refuse any application then such applications are subject to Section 26(2) and Section 26(3) as well as written directions given by the state bar council on this behalf.

It is further clarified that BCI may remove the name of a person from the roll of state bar council if such person had entered his name in the roll by misrepresentation, fraud, or undue influence. Such removal can be done only after being heard by that person.

(2) Where the enrolment committee of a State Bar Council proposes to refuse any such application, it shall refer the application for opinion to the Bar Council of India and every such reference shall be accompanied by a statement of the grounds in support of the refusal of the application.

If the enrolment committee of the state bar council wants to refuse an application of enrolment as an advocate, then such application shall be referred for the opinion of the Bar Council of India. Such reference is accompanied by a written statement which states the grounds of refusal. Thus enrolment committee of the state bar council can enroll the law graduates as an advocate in the roll of the state bar council, but it cannot refuse such application. Only BCI is having the power to refuse admission in the advocate’s roll of the state bar council.

(3) The enrolment committee of a State Bar Council shall dispose of any application referred to the Bar Council of India under sub-section (2) in conformity with the opinion of the Bar Council of India.

As per Section 26(1), the enrolment committee has to dispose of all the applications, though some may be referred for the opinion of BCI for refusal. After having the opinion of BCI on such applications, the enrolment committee has to dispose of such applications as per the opinion of BCI.

(4) Where the enrolment committee of a State Bar Council has refused any application for admission as an advocate on its roll, the State Bar Council shall, as soon as may be, send intimation to all other State Bar Councils about such refusal stating the name, address and qualifications of the person whose application was refused and the grounds for the refusal.

If an application for admission as an advocate on roll is refused by the enrolment committee of a State Bar Council, as per the opinion of BCI, then the state bar council has to inform all other state bar councils regarding such refusal. Such intimation shall consist of grounds of refusal of the application and the details of the person whose application was refused.

So this is how an application for enrolment as an advocate is disposed of by the enrolment committee of a state bar council.

Note: Part in Red words is part of Bare Act – Advocates Act, 1961.

If you want to know about specific provisions of the Advocates Act, 1961 and the Bar Council Rules then let me know in the comments below.

To know the references and to read more articles related to Professional ethics and professional accounting system please visit this page Legal Profession: Professional Ethics and Professional accounting system.

Thanks for reading till the end. Please share this with all legal professionals.

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