Toutism

An important aspect of solicitation is toutism. Touts are persons who procure business in
consideration of commission moving from legal practitioner.[3] In other professions it may
be morally wrong to pay a percentage of benefit or payment otherwise to such touts but in the
legal profession this is totally prohibited.[4] It is the tradition of the Bar that the lawyer
should not seek business. The lawyer must not apply to others to weigh his capacity to attract
clients. He must wait until his merits are discovered and appreciated. However a few lawyers
indulge in activities such as brief begging and brief snatching due to high competition and
overcrowding in the Bar.
Touts are referred to such category of personnel as are used by advocates to get business on
payment is a share of fees received by them from the clients. The touts receive
compensation only from the lawyers. Such touts work on the strength of confidence he is
able to infuse into a prospective litigant, who views him as a help imbibed with the sole
motive of arranging the right counsel for the litigant. The word tout was defined in section 2
of the Legal Practitioners (Amendment) Act.[5]
It was held in Government Pleader v. S. A Pleader [7]that a pleader sending a circular post
card merely giving the address and the name and description of himself would amount to an
advertisement on his part and therefore to improper conduct and if in addition he falsely
stated that he had been authorized to examine the accounts of waqf properties and to issue
certificates by the District Court rather aggravates the case than the reverse. Even if auditing
is not strictly legal work, yet this very fact of advertising his readiness to take up that work
combined with his misleading is statement that he is a High court Pleader and seeing that this
work is connected with the courts and has to be supervised by the courts would result in his
getting an improper advantage in legal work over his fellow pleader, who did not descend to
such devices. It was improper conduct on the part of the District pleader to issue such post
cards and to canvass for this particular work in the way that he did, and accordingly he has
committed an offence under S. 26.
In the matter of K. a Pleader.,[8] K, a practicing pleader held out a promise to a party in a
civil suit that if he would be appointed an arbitrator, he would not give an award unacceptable
to him. In spite of the promise, K made a recommendation that a large sum of money which
was in dispute, should be handed over to the opposite party, thus settling one portion of
dispute before coming to any final decision as tot he merits of the dispute between the par ties
and thereby caused grave prejudice to the party whose interests he had promised to protect.
The court held that K had acted with gross dishonesty under the cloak of his position as a
legal practitioner and was liable to be dismissed under S. 13 (f), Legal Practitioners Act.
In the matter of Phool Din and others[9] it was held that a person is not a tout if he gives
gratuitous advice to litigant to engage a particular lawyer, or gratuitously procures the
employment of a lawyer. It is only when he charges remuneration from a lawyer for this
purpose that he falls in the definition of tout. The Legal Practitioners Act prohibits a lawyer

from accepting an employment though a tout and a citizen from engaging himself in the socalled profession of tourism. It is penal for a lawyer to accept an employment through a tout
and for a citizen to act as a tout.
The Court further held that Article 19 (1) (g) Constitution of India, does not give an
unfettered right to practice any profession which a citizen may choose to adopt irrespective
of the fact that engagement in such a profession is prohibited by law. It is subject tot he
provisions of CI. (6) of Art. 129 which provides for imposition in the interests of the general
public reasonable restrictions on that right.
In The Bar Council Of Maharashtra V. M. V. Dabholkar and Others[10] the court held that
Rule 36, fairly construed, sets out wholesome rules of professional conduct although the
cannons ethics existed even prior to Rule 36. Also Rule 36 is not the only nidus of
professional ethics. Professional ethics were born with the organized Bar even as moral
norms arose with civilized society.
In J.N. Gupta V. D.C.Singhania & J.K. Gupta[11] the respondent advocates had issued had
issued two advertisements in a newspaper for the first time indicating their change of address
to another place an account of fire in the building and for the second time for shifting back to
the building which was their old office. Thereafter the Respondent made a publication in the
International Bar Directory giving the names and addresses of their officers under the heading
Singhania & Company Firms major cases, and Representative clients.
The Court held that it did not find any irregularity, much less any professional misconduct in
making such publication in a newspaper, which was on account of extraordinary situation of
fire in office which, required urgent intimation to their clients. The paper publication per se
does not constitute any violation of the Bar Council of India Rules on professional conduct.
As regards publication in International Bar Directory, the court held that publication in any
manner either in National or International Bar Directory done with the purpose of giving
information of addresses and telephone numbers of Advocates is permissible under the Bar
Council Rules, however, however here the lone purpose of the publications was to give
publicity to the fact that Singhania & Co. Have dealt with cases of importance and they have
clients of eminence with a view to solicit more briefs and attract more clients. The court held
that the publications made in the International Bar Directory under the heading Singhania &
Company, Firmss Major Cases And Representatie Clients are offending of Rule 36 of
the Bar Council of India Rules of Standards of Professional Conduct and Etiquette
prohibiting advertisement in any manner of a person in the legal profession. Respondents
were reprimanded u/s 35 (3) (B) of the Advocates Act, and Rs, 3,000/- were imposed as costs.
In a very recent case Vikas Deshpande v. Maharashtra State Bar Council[12] the SC held that
Appellant advocate soliciting brief from complainant death convicts by saying that he would
not charge any fees from them and obtaining their signatures and thumb impressions on
certain documents by misrepresentation on the basis of which power of attorney executed in
his favour and in pursuance thereof selling their land fraudulently and misappropriating the

sale proceeds on ground that it was settled with the complainants that they would pay his fees
of Rs 50,000 for conducting their case amounted to grave professional misconduct. The
Court held that the Punishment of removal of appellants name from roll of State Bar Council
under S. 35(3)(d) and imposition of costs of Rs 25,000 payable to heirs of the complainants
(since deceased in execution of death sentence) justified. The court highlighted the need to
take remedial steps to nip in the bud such kind of misconduct.

SUPREME COURT 2014 GUIDELINES

13. (I) An advocate-on-record or a firm of advocates may employ one or more clerks to
attend the registry for presenting or receiving any papers on behalf of the said advocate or
firm of advocates: Provided that the clerk has been registered with the Registrar on an
application in the prescribed form made to the Registrar for the purpose: Provided further that
the said clerk gives an undertaking that he shall attend the Registry regularly. (2) Notice of
every application for the registration of a clerk shall be given to the Secretary, Supreme Court
Bar Association, who shall be entitled to bring to the notice of the Registrar within seven
days of the receipt of the notice any facts which in his opinion may have a bearing on the
suitability of the clerk to be registered. (3) The Registrar may decline to register any clerk
who in his opinion is not sufficiently qualified, or is otherwise unsuitable to be registered as
such, and may for reasons to be recorded in writing, remove from the . register the name of
any clerk after giving him and the employer an opportunity to show cause against stich
removal. Intimation shall be given to the Secretary, Bar Association, of every order
registering a clerk or removing a clerk from the register. (4) Every clerk shall, upon
registration, be given an identity card which he shall produce whenever required, and which
he shall surrender when he ceases to be the clerk of the advocate or firm of advocates, for
whom he was registered. Where a fresh identity card is required in substitution of one that is
lost or damaged, a fee of fifty rupees shall be levied for the issue of the same. (5) Every
advocate-on-record shall have a registered clerk. No advocate may employ as his clerk any
person who is a tout.

the legal practitioner means an advocate, vakil or attorney of any High Court, a pleader, mukhtar or revenue5
agent: [tout means a person
(a) who procures, in consideration of any remuneration moving from any legal practitioner, the employment of
the legal practitioner in any legal business; or who proposes to any legal practitioner or to any person interested
in any legal business to procure, in consideration of any remuneration moving from either of them, the
employment of the legal practitioner in such business; or
(b) who for the purposes of such procurement frequents the precincts of Civil or Criminal Courts or of revenueoffices, or railway stations, landing stages, lodging places or other places of public resort].

36. Power to frame and publish lists of touts

[36. Power to frame and publish lists of touts.(1) Every High Court, District Judge, Sessions Judge, District Magistrate and Presidency Magistrate, every Revenue Officer, not
being below the rank of a Collector of a district, and the Chief Judge of every Presidency Small Cause Court (each as regards
their or his own Court and the Courts, if any, subordinate thereto) may frame and publish lists of persons proved to their or his
satisfaction, 2[or to the satisfaction of any subordinate Court as provided in sub-section (2A)] by evidence of general repute or
otherwise, habitually to act as touts, and may, from time to time, alter and amend such lists.
1

[Explanation.- The passing of a resolution, declaring any person to be or not to be a tout, by a majority of the members
present at a meeting, specially convened for the purpose, of an association of persons entitled to practise as legal practitioners
in any Court or revenue-office, shall be evidence of the general repute of such person for the purposes of this subsection.]
(2) No persons name shall be included in any such list until he shall have had an opportunity of showing cause against such
inclusion.
2

[(2A) Any authority empowered under sub-section (1) to frame and publish a list of touts may send to any Court subordinate to
such authority the names of any persons alleged or suspected to be touts, and order that Court to hold an inquiry in regard to
such persons; and the subordinate Court shall thereupon hold an inquiry into the conduct of such persons and, after giving each
such an opportunity of showing cause as provided in sub-section (2), shall report to the authority which has ordered the inquiry
the name of each such person who has been proved to the satisfaction of the subordinate Court to be a tout; and that authority
may include the name of any such person in the list of touts framed and published by that authority:
Provided that such authority shall hear any such person who, before his name has been so included, appears before it and
desires to be heard.]
2

(3) A copy of every such list shall be kept hung up in every Court to which the same relates.
(4) The Court or Judge may, by general or special order, exclude from the precincts of the Court any person whose name is
included in such list.
(5) Every person whose name is included in any such list shall be deemed to be proclaime as a tout within the meaning of
section 13, clause (e), and section 22, clause (d).]
[(6) Any person who acts as a tout whilst his name is included in any such list shall t punishable with imprisonment which may
extend to three months, or with fine which may extend to five hundred rupees, or with both.]
1. Substituted for the original section by the Legal Practitioners Act, 1896 (11 of 1896), sec. 4.
2. Inserted by the Legal Practitioners (Amendment) Act, 1926 (15 of 1926), sec. 3.
OBJECTS AND REASONS
Section 36 has been framed to put a stop to what is commonly known as the touting system a system under which certain
legal practitioners reward a Mukhtar or other hanger-on of the Court who brings them business by allowing him a percentage
on their fees. It is obvious that such a system, besides the degradation it involves to legal practitioners who resort to it as a
means of obtaining business, also holds out to the Mukhtar or other go-between a strong temptation to retain for its employer,
not the most skilful Pleader he can get for the fee allowed, but the Plead who will pay him the largest commission.
2

The only objection we have heard to the abolition of this most objectionable system has proceeded from certain Mukhtars, who
urge that the commission allowed them by Vakils is not a remuneration for procuring the employment of such Vakils, but a
payment for assistance rendered by them to such Vakils by performing certain duties which would in other cases be performed
by a Attorney.
The answer to this objection, it appears to us, is that, when the transaction is one bona fide of the nature thus described, the
Mukhtar can find no difficulty in agreeing with his employer to receive direct from him any remuneration to which he may be
entitled.-S.C.R.
STATE AMENDMENTS
If the tout admits his offence the provisions of sections 480 and 481 of the Code of Criminal Procedure, 1898, shall be
applicable, so far as may be, to his detention, trial and punishment.
If the tout does not admit his offence the provisions of section 482 of the said Code shall be similarly applicable to his detention,
trial and punishment.-Beng. Act 5 of 1942, sec. 7( 1-11-1943).