Rights and Duties of an Advocate under Advocates Act, 1961

“There’s always room for a good lawyer.”- Milas Hale1

advocate under the Advocates Act, 1961?"An advocate entered in any roll under the provisions
of this Act." Before this Act, there were different classes of legal practitioners under the Legal
Practitioners Act. They were Advocates, lawyers, vakils, etc. the Advocates Act has abolished
these classes and has recognised only one class of Advocates. In order to implement the
recommendations of All India Bar Committee (endorsed by fourteenth Report of the Law
Commission in 1955), the Advocates Act, 1961 came into being. The Act extends to the whole
of India, except the State of Jammu and Kashmir. The Act aims at amending and consolidating
the laws relating to legal practitioners and to provide for the establishment of State Bar Councils
and an All India Bar Council.
With the passage of time, it was felt that the Judicial Administration should be changed
according to the needs of the time. The First Law Commission examined and made a Report on
Reforms of Judicial Administration. The All India Bar Committee also examined the matter and
made its recommendations in 1953. To implement the recommendations of All India Bar
Committee after taking into account the Law Commission’s recommendations made in its
Fourteenth Report in so far as they relate to the Bar and to legal education, the Advocates Act
was enacted.

The Advocates Act, passed by the Parliament received the assent of the President on 19th May
1961. Before this Act, there were different classes of legal practitioners called pleaders, vakils,
Lawyers, Attorneys," revenue agents, practicing under Legal Practitioners Act" and other Acts.

The objective of the. Advocates Act is to integrate and constitute one class of legal practitioners
called "Advocates" (a common roll of advocates in India)- and to prescribe uniform qualification
for admission to the Bar.

Judicial Pronouncements and the Law

The legal profession requires the safeguarding of moral standards. As an officer of the court, a
lawyer has a duty to the court towards his profession and to the public. Since the prime duty of a
lawyer is to assist the court in dispensing justice, the members of the Bar cannot behave in a
manner which is doubtful, or full of scruples or which strives to thrive on litigation. Lawyers
must remember that they are to assist the court in the administration of justice. If lawyers do not
perform their function properly, it would be degenerative to the rule of law.
1
https://ggreen.com/just-for-fun/famous-quotes-in-law
The Supreme Court, through its decision in the matter of Bar Council of India v. Board of
Management, Dayanand College of Law2, surveyed the statutory powers available to BCI under
the provisions of the Advocates Act, as well as the Rules framed thereunder, and concluded that
BCI was concerned with the standards of the legal profession and legal education in the country.

Professional misconduct refers to disgraceful or dishonourable conduct, not befitting to the

profession concerned. Legal profession is not a trade or business. Therefore, it must remain a de-
contaminated profession. Advocates have a duty to uphold the integrity of the profession and to
discourage corruption so that justice may be secured by the citizenry in a legal manner. 3 A
lawyer must strictly adhere to the norms of profession which make him worthy as an officer of
court4. Dignity of the judiciary is to be maintained, failing which the institution itself will
collapse.5 Indulging in practices of corrupting the judiciary or offering bribe to the Judge 6
;
retaining money deposited with the advocate for the decree holder even after execution
7 8
proceedings ; scandalizing the Judges ; constant abstention from the conducting of cases;
misappropriation of the amount paid 9 ; attesting forged affidavit 10
; failure to attend trial after
11
accepting the brief ; taking money from client in the name of the Judge 12; gross negligence
13
involving moral turpitude ; indecent cross examination 14; breach of trust15; conducting fraud
and forgery16 by the advocates, have been held to be serious misconduct by the Supreme Court.

Rights of an Advocate in India

2
AIR 2007 SC 1342.
3
Shambhu Ram Yadav v. Hanuman Das Khatry, AIR 2001 SC 2509.
4
Noratanmal Chouraria v. M R Murli & Anr., AIR 2004 SC 2440.
5
In Re : Vinay Chandra Mishra, AIR 1995 SC 2348.
6
Shanbhu Ram Yadav Supra.
7
Prahlad Saran Gupta v. Bar Council of India, AIR 1997 SC 1338.
8
Dr. D C Saxena v. Chief Justice of India, AIR 1996 SC 2481.
9
D S Dalal v. State Bank of India, AIR 1993 SC 1608; and J S Jadhav v. Mustafa Haji Mohamed Yusuf, AIR 1993
SC 1535.
10
M Veerabhadra Rao v. Tek Chand, AIR 1985 SC 28
11
S J Chaudhary v. State, AIR 1984 SC 618.
12
Chandra Shekhar Soni v. Bar Council of Rajasthan, AIR 1983 SC 1012.
13
In the matter of P an Advocate, AIR 1963 SC 1313; and V P Kumaravelu v. the Bar Council of India, AIR 1997
SC 1014
14
Shiv Narain Jafa v. The Hon’ Judges of the High Court, Allahabad, AIR 1953 SC 368.
15
Bapurao Pakhiddey v. Suman Dondey, AIR 1999 SC 916
16
LC Goyal v. Nawal Kishore, (1997) 11 SCC 258; and Devender Bhai Shanker Mehta v. Ramesh Chandra Vithal
Dass Seth, AIR 1992 SC 1388; See also: Dr. Elbe Peter, MDS, LL.B, DCR, Professional misconduct of lawyers in
India.
The provisions relating to rights of advocates have been described under Sections 29, 30, 32, 33
and 34 of Advocates Act, which are as follows:

This section came into operation on 1st June, 1969.

Section 29 of the Advocates Act, 1961 provides that "subject to the provisions of this Act and
any rules made thereunder, there shall, as from the appointed day, be only one class of persons
entitled to practise the profession of law, namely advocates."

In Nibaran Bora v. Union of India,17 the Gauhati High Court has held that only advocates can
practise in a court of law. The meaning of the word "practise" is, repeated action, habitual
performance, a succession of acts of a similar kind." 

Similarly, Section 30 lays down that subject to the provisions of this Act, every advocate whose
name is entered in the State Roll shall be entitled as of right to practise throughout the territories
to which this Act extends:

(i) in all Courts including the Supreme Court;

(ii) before any Tribunal or person legally authorised to take evidence; and

(iii) before any other authority or person before whom such advocate is by or under any law for
the time being in force. entitled to practise.18

It may, however, be noted that the Advocates Act, 1961, came into existence for over four
decades back, but still Section 30 of this Act, is not enforced.

Advocates alone are entitled to practise

Under the relevant provisions of the Advocates Act, 1961; Advocates only have the right to
practice before any Court (vide Section 33).19 Although only Advocates have the liberty to
practice/carry on litigation in Courts, there is a provision under the Act which gives the Court
power to allow/deny any person to appear before it. So, as per Section 32 of the Advocates Act,

17
AIR 1992 Gau. 54,
18
https://indiankanoon.org/doc/756229/
19
https://indiankanoon.org/doc/510150/#:~:text=33.,an%20advocate%20under%20this%20Act.
1961; a person who has not been enrolled under the Advocates Act 1961 has the liberty to appear
before the Court but only on the ground that the Court allows him to do so.20

However, in Derby Textiles Ltd. v. Mahamantri, Derby Textiles Karmachari and Shramik
Union,21 it has been held that an office-bearer of a trade union, who is a qualified law graduate
but not registered as an advocate, can be permitted to represent the union and argue the case.

under Section 34 of the Advocate s Act, 1961, the High Court is empowered to make rules about
the conditions under which an advocate shall be permitted to practise in the High Court and
subordinate court. Thus, in the mix of judging Sec. 34(1) the courts have inadvertently laid down
that the words ‘laying down the conditions subject to which an advocate shall be permitted to
practice’ under Sec. 34 must be given a restricted meaning of permitting physical appearance of
the advocate and not his general right to practice.22

At the end of a thoughtful judgment S.N. Variava, J and his brothers concluded that ‘the right to
practice is the genus, of which the right to appear in the Court may be a specie. But the right to
appear and conduct cases in the Court is a matter on which only the court must and does have a
supervisory and controlling power, which does involve the right of an advocate.’23

Duties of an Advocate’s Towards the Court

 During the presentation of his case and also while acting before a court, an advocate
should act in a dignified manner.

An advocate should always show respect towards the court. An advocate has to bear in mind that
the dignity and respect maintained towards judicial office is essential for the survival of a free
community.

An advocate should not communicate in private to a judge with regard to any matter pending
before the judge or any other judge.

20
https://indiankanoon.org/doc/1577844/#:~:text=Section%2032%20in%20THE%20ADVOCATES%20ACT%2C
%201961&text=32.,him%20in%20any%20particular%20case.
21
(1994) 3 LLJ (Supp) 528 (Rajasthan)
22
Prayag Das v. Civil Judge, Bulandshahr, AIR 1974 All 133
23
Harish Uppal vs Union Of India & Anr on 17 December, 2002
An advocate should refuse to act in an illegal or improper manner towards the opposing counsel
or the opposing parties. 

He shall not scandalously damage the reputation of the parties on false grounds during pleadings.
He shall not use unparliamentary language during arguments in the court.

An advocate should appear in court at all times only in the dress prescribed under the Bar
Council of India Rules and his appearance should always be presentable.

An advocate should not enter appearance, act, plead or practice in any way before a judicial
authority if the sole or any member of the bench is related to the advocate as father, grandfather,
son, grandson, uncle, brother, nephew, first cousin, husband, wife, mother, daughter, sister, aunt,
niece, father-in-law, mother-in-law, son-in-law, brother-in-law daughter-in-law or sister-in-law.

An advocate should not wear bands or gowns in public places other than in courts, except on
such ceremonial occasions and at such places as the Bar Council of India or as the court may
prescribe.

An advocate should not appear in or before any judicial authority, for or against any
establishment if he is a member of the management of the establishment.

An advocate should not act or plead in any matter in which he has financial interests. 

An advocate should not stand as a surety, or certify the soundness of a surety that his client
requires for the purpose of any legal proceedings.

Duty of an Advocate’s Towards the Client

An advocate is bound to accept any brief in the courts or tribunals or before any other authority
in or before which he proposes to practise.

An advocate should not ordinarily withdraw from serving a client once he has agreed to serve
them.

An advocate should not accept a brief or appear in a case in which he himself is a witness.
An advocate should, at the commencement of his engagement and during the continuance
thereof, make all such full and frank disclosure to his client relating to his connection with the
parties.

He shall defend a person accused of a crime regardless of his personal opinion as to the guilt of
the accused. It shall be the duty of an advocate fearlessly to uphold the interests of his client by
all fair and honourable means. 

An advocate appearing for the prosecution of a criminal trial should conduct the proceedings in a
manner that it does not lead to conviction of the innocent.

An advocate should not by any means, directly or indirectly, disclose the communications made
by his client to him. However, he is liable to disclose if it violates Section 126 of the Indian
Evidence Act, 1872.

An advocate should not be a party to stir up or instigate litigation.

An advocate should not act on the instructions of any person other than his client or the client’s
authorized agent.

An advocate should not charge for his services depending on the success of the matter
undertaken. He also shall not charge for his services as a percentage of the amount or property
received after the success of the matter.

An advocate should not trade or agree to receive any share or interest in any actionable claim.

An advocate should not by any means bid for, or purchase, either in his own name or in any
other name, for his own benefit or for the benefit of any other person, any property sold in any
legal proceeding in which he was in any way professionally engaged.

Not bid or transfer property arising of legal proceeding.

An advocate should not adjust fee payable to him by his client against his own personal liability
to the client, which does not arise in the course of his employment as an advocate.

An advocate should not misuse or takes advantage of the confidence reposed in him by his client.
An advocate should always keep accounts of the clients’ money entrusted to him.

He shall not divert any part of the amounts received for expenses as fees without written
instruction from the client.

Where any amount is received or given to him on behalf of his client, the advocate must without
any delay intimate the client of the fact of such receipt.

Adjust fees after termination of proceedings and any amount left after the deduction of the fees
and expenses from the account must be returned to the client.

An advocate must provide the client with the copy of the client’s account maintained by him on
demand, provided that the necessary copying charge is paid.

An advocate shall not enter into arrangements whereby funds in his hands are converted into
loans.

An advocate shall not lend money to his client for the purpose of any action or legal proceedings
in which he is engaged by such client.

An advocate who has advised a party in connection with the institution of a suit, appeal or other
matter or has drawn pleadings, or acted for a party, shall not act, appear or plead for the opposite
party in the same matter.

Duty of Advocate’s to Opponents

Not to negotiate directly with opposing party

An advocate shall not in any way communicate or negotiate or call for settlement upon the
subject matter of controversy

Carry out legitimate promises made to the opposite party.

Duty of an Advocate’s Towards Fellow Advocates

An advocate shall not solicit work or advertise in any manner.

An advocate’s sign-board or name-plate should be of a reasonable size.( should not indicate that
he is or has been President or Member of a Bar Council or of any Association or that he has been
associated with any person or organisation or with any particular cause or matter or that he
specialises in any particular type of work or that he has been a Judge or an Advocate General.) 

An advocate’s sign-board or name-plate should be of a reasonable size. 

Not promote unauthorized practice of law.

An advocate shall not accept a fee less than the fee, which can be taxed under rules when the
client is able to pay more.

An advocate should not appear in any matter where another advocate has filed a vakalt or memo
for the same party. However, the advocate can take the consent of the other advocate for
appearing.