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.

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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.

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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.

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Powers of Bar Councils

 

Vande Matram! In this article, I am discussing the Powers of Bar Councils which are in the light of the Bar Council of India rule and the Advocates Act, 1961. Let’s begin.

Introduction:

Bar councils are established under Section 3 and Section 4 of the Advocates Act, 1961. These bar councils have to perform certain functions as per the Act. To perform smoothly each bar council is empowered under Section 15 and Chapter III of the Advocates Act, 1961.

Power to make rules:

Section 15 of the Advocates Act 1961 gives power to BCI to perform the functions in the effect of the Act. These powers are also inherited to the state bar councils established in various states of India in the legal periphery of Advocates Act, 1961 and Bar Council of India Rules. Section 15 is reproduced and discussed here:

15. Power to make rules.―(1) A Bar Council may make rules to carry out the purposes of this Chapter.

As per Section 6 and Section 7 bar councils have to perform various functions and hence bar councils are empowered to make rules to carry out the purposes of the Advocates Act, 1961.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for―

(a) the election of members of the Bar Council by secret ballot including the conditions subject to which persons can exercise the right to vote by postal ballot, the preparation and revision of electoral rolls and the manner in which the results of election shall be published;

(c) the manner of election of the Chairman and the Vice-Chairman of the Bar Council;

(d) the manner in which and the authority by which doubts and disputes as to the validity of an election to the Bar Council or to the office of the Chairman or Vice-Chairman shall be finally decided;

(f) the filling of casual vacancies in the Bar Council;

(g) the powers and duties of the Chairman and the Vice-Chairman of the Bar Council;

(ga) the constitution of one or more funds by a Bar Council for the purpose of giving financial assistance or giving legal aid or advice referred to in sub-section (2) of section 6 and sub-section (2) of section 7;

(gb) organisation of legal aid and advice to the poor, constitution and functions of committees and sub-committees for that purpose and description of proceedings in connection with which legal aid or advice may be given;

(h) the summoning and holding of meetings of the Bar Council, the conduct of business thereat, and the number of members necessary to constitute a quorum;

(i) the constitution and functions of any committee of the Bar Council and the term of office of members of any such committee;

(j) the summoning and holding of meetings, the conduct of business of any such committee, and the number of members necessary to constitute a quorum;

(k) the qualifications and the conditions of service of the secretary, the accountant and other employees of the Bar Council;

(l) the maintenance of books of accounts and other books by the Bar Council;

(m) the appointment of auditors and the audit of the accounts of the Bar Council;

(n) the management and investment of the funds of the Bar Council.

In particular, none of the specific prohibitions can have the effect of reducing the scope of the general principle and such rules made by the bar councils are for

1. Election of members of bar councils and procedures related to voting and declaring the election results.

2. Manner of election of Chairman and Vice-Chairman of the respective bar council.

3. Manner to decide the disputes related to the elections of the members, Chairman, Vice Chairman of the bar council.

4. Fill the casual vacancies of the bar councils.

5. Rules regarding powers and duties of the chairman and vice-chairman.

6. Constitution of funds as per the provisions of Section 6(2) and Section 7(2) whichever applicable.

7. Constitution of fund and committee to organize legal aid for poor and weaker section of the society in the light of Legal Service Authorities Act, 1987.

8. Summon and hold a meeting of bar council and committees constituted

9. Rules regarding the formation of a committee to carry out certain functions under the Act and to decide the term of office of the members of such committees.

10. Rules regarding the qualification and service of various posts of bar councils such as secretary, accountant, clerks, etc.

11. Maintain book of accounts and other books of the bar council.

12. Appoint the auditors for audit of the bar council.

13. Manage and invest the funds of the bar council.

(3) No rules made under this section by a State Bar Council shall have effect unless they have been approved by the Bar Council of India.

Bar councils have the power to frame rules enlisted above, but only BCI is empowered to approve such rules and after such approval, the rules shall have an effect.

Further Chapter III provides some powers related to the admission and enrollment of the advocates through Sections 16 to 23 such as:

1. Prepare rolls of advocates and admit new advocates in the roll.

2. Decide the seniority of the advocates already on the roll and maintain the rolls for this purpose.

3. Disqualify the advocates as per the professional conduct rules of BCI if needed as well as Section 24A of the Act.

4. No person shall be entered in the advocates roll of more than one state bar council roll, for this purpose bar councils can restrict such advocates from being enrolled in another roll of advocates.

5. Transfer the name of an advocate on a roll from one state bar council to another on the proper application for such purpose made by the advocate.

6. Send copies of rolls of bar councils to BCI for record and inspection purposes.

7. Resolve the disputes regarding the seniority of the advocates on the roll.

8. Issue the certificate of the enrollment of the advocate.

9. Dispose of the applications for enrollment of advocates.

10. Remove the name of an advocate from the roll if that person is dead or if that person had made an application to remove his/her name.

11. Frame rules to perform the functions related to the admission and enrollment of advocates.

Special powers of BCI:

BCI has been empowered especially as it is the apex body of bar councils. It is having the power to frame rules as per the provisions of Section 15(2) to perform various functions under the Advocates Act.

1) BCI can only approve rules made by state bar councils to carry out the functions enlisted in the Advocates Act, 1961.

2) Only BCI can lay the rules and standards for legal education to be imparted by the universities on the recommendations of the Legal Education Committee.

3) BCI has the power to hear the disciplinary committee matters referred to it by the state bar councils or by an advocate on his application of review of summary dismissal done by the disciplinary committee of the state bar council.

4) BCI has the power to discontinue of recognition of any University which is based on the recommendation by the Legal Education Committee.

5) BCI can conduct the All India Bar Examination to check the ability of practice of a law graduate from any recognized university.

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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