CHAPTER I-

ENROLMENT OF ADVOCATES- SECTION 16 TO 28

Eligible persons are admitted as advocates on the rolls of the State Bar Councils. The Advocates
Act, 1961 empoers State Bar Councils to frame their on rules regarding enrolment of advocates.
Contact details for individual Councils can be found here.
The Council!s Enrolment Committee ma" scrutinise a candidate!s application. Those admitted
as advocates b" an" State Bar Council are eligible for a Certificate of Enrolment.
All applicants for enrolment as advocates are re#uired under Section $% &1' &f' of the Advocates
Act, 1961 to pa" an enrolment fee of (s.6))*+ &(upees Si, hundred onl"' to the respective State Bar
Council and (s.1-)*+ &(upees .ne hundred /ift" onl"' to the Bar Council of 0ndia. These pa"ments
should be made b" 11.
1

CHAPTER II-
CONDUCT OF ADVOCATES-U/S 35 TO 44of ADVOCATES ACT
As 1023E( in his 4egal Ethics observes,
5A lawyer will be constantly confronted with conflicting loyalties which he may have to
reconcile. He is answerable not only to his client whose interests it is his primary duty to serve and
promote, but also to the Court of which he is an officer and further to his colleagues at the Bar and
to the traditions of the Profession.
6henever interest and dut" come into conflict, dut" ought to prevail. 0n the life of an advocate
difficult situations do fre#uentl" arise7 for instance, fill in his adversar" in a subse#uent suit, the client
ma" not engage "ou but his opponent must be illing to do so ith motives good or bad. The opponent
ma" tr" to get information from "ou relating to previous case, hich an advocate ought not to do. All
the communications made, beteen client and his la"er is privileged and such privilege is perpetual.
The adversar" of "our previous client ma" offer "ou engagement in a second and third case against a
third part" and ma" tr" to create intimac" ith "ou. 0n such situations one ill rarel" err if he 58eeps in
his mind a high sense of honour and conscientious desire to follo right.9
1
Section 16 to 28 of the Advocates Act 1961.
1 Salient eatures of Advocates Act, !"#!
.ur Constitution enshrines that the right to consult and to be defended b" a la"er of one!s
choice is a fundamental right of a person accused of an offence7 and so, it is dut" of a la"er to defend
such person. Because of this constitutional in:unction, there is absolutel" no conflict beteen interest
and dut" in criminal cases. ;oever, some difficult ma" arise in case here the accused confesses his
guilt to the la"er. The anser ma" be elucidated in the folloing ords<
$He had e%pressed in &ngland and South African lawyers were consciously or unconsciously
let into untruth for the sa'e of their clients. He vehemently opposed an &nglish lawyer when he
advocated that the duty of the lawyer was to defend a client even if he 'new that he was guilty.
(andhi on the other hand was emphatic that the duty of a lawyer was to place correct facts before the
)udge and to help him to arrive at the truth, and not to prove the guilty as innocent.
0n *ceanic +ife +td v H,H Casualty - (eneral ,nsurance +td , Austin = said the
folloing<
50n the realm of conflicts of interest and conflicts of dut", the la"er>s dut" to the court ma" not
be much different from his or her fiduciar" duties to former and present clients. ;oever, the dut" to
the court tends to be e,pressed in such a a" as to emphasise the public interest in preserving
confidence in the administration of :ustice and therefore in the appearance as ell as the realit" of
independence, and the court>s practical approach to its supervisor" discretions...9
.
4ord Co?ens+;ard" @( in /oody v Co% said that<
>A man ma" have a dut" on one side and an interest on another. A solicitor ho puts himself in
that position ta8es upon himself a grievous responsibilit". A solicitor ma" have a dut" on one side and a
dut" on the other, namel", a dut" to his client as solicitor on the one side and a dut" to his beneficiaries
on the other7 but if he chooses to put himself in that position it does not lie in his mouth to sa" to the
client 0, have not discharged that which the law says is my duty towards you, my client, because , owe
a duty to the beneficiaries on the other side.0 The anser is that if a solicitor involves himself in that
dilemma it is his on fault. ;e ought before putting himself in that position to inform the client of his
conflicting duties, and either obtain from that client an agreement that he should not perform his full
duties of disclosure or sa"+hich ould be much better+0, cannot accept this business.0 0 thin8 it ould
be the orst thing to sa" that a solicitor can escape from the obligations, imposed upon him as solicitor,
2
.ceanic 4ife 4td v ;0; Casualt" A Beneral 0nsurance 4td
$ Salient eatures of Advocates Act, !"#!
of disclosure if he can prove that it is not a case of dut" on one side and of interest on the other, but a
case of dut" on both sides and therefore impossible to perform.>
The thrust of this passage is that if a solicitor puts himself in a position of having to
irreconcilable duties it is his on fault. 0f he has a personal financial interest hich conflicts ith his
dut", he is even more obviousl" at fault. 0t as later on #uoted in Hilton v. Bar'er
/urther the interest of the parties is to see8 a favourable decision and their dut" is limited to
compl"ing ith the rules of the court, giving truthful testimon" and refraining from ta8ing positive
steps to deceive the court but the interest and dut" of the advocate is much more comple,, because it
involves divided lo"alties.
0t as held in the case of Abse and others v Smith and another that 5A la"er ishes to promote
his client>s interests and it is his dut" to do so b" all legitimate means. But he also has an interest in the
proper administration of :ustice to hich his profession is dedicated and he oes a dut" to the court to
assist in ensuring that this is achieved. The potential for conflict beteen these interests and duties is
ver" considerable "et the public interest in the administration of :ustice re#uires that the" be resolved in
accordance ith established professional rules and conventions and that the :udges shall be in a position
to assume that the" are being so resolved. There is thus an overriding public interest in the maintenance
amongst advocates not onl" of a general standard of probit", but of a high professional standard,
involving a s8illed appreciation of ho conflicts of dut" are to be resolved.9
1ubin =.A. remar8ed in (e (egina and Speid, at p. $1<
56e ould have thought it a,iomatic that no client has a right to retain counsel if that counsel, b"
accepting the brief, puts himself in a position of having a conflict of interest beteen his ne client and
a former one.9
6hat 0f a litigant could achieve an undeserved tactical advantage over the opposing part" b"
bringing a dis#ualification motion or see8ing other CethicalC relief using 5the integrit" of the
administration of :ustice9 or 5conflict of interest9 merel" as a flag of convenienceD 6ill the fairness of
the process ould be underminedD
A similar situation arose in, here the accused as charged ith the first degree murder of his
mother. The Cron sought to remove defence counsel on the basis that he had previousl" acted for the
E Salient eatures of Advocates Act, !"#!
father of the accused in an unrelated matrimonial matter, and might in future have to cross+e,amine the
father at the son>s trial for murder.
E
The accused and his father both obtained independent legal advice, after full disclosure of the
relevant facts, and aived an" conflict. The father also aived solicitor+client privilege. The court as
satisfied there as no issue of confidential information. .n these facts, the court concluded that Cpublic
confidence in the criminal :ustice s"stem might ell be undermined b" interfering ith the accuser!s
selection of the counsel of his choiceC.
ADVOCACY: PROFESSION OR USINESS
0n a case, it as stated that<
5@embers of bar are not a guild of candle ma8ers or butcher!s association. The" are a class
separate.9
Then there is the theor" of Frofessional Faradigm Shift as given b" (ussell B. Fierce, hich states
that the profession should also be treated as a trade as there is no harm to erase the line beteen
profession and trade.
%
Soli =. Sorab:ee states his vies on this point in 4a"ers as Frofessionals . ;e states that at present
the public image of la"ers is far from flattering. The" are seen as fortune see8ers rather than see8ing
to serve, a selfish class, ho, on account of the special 8noledge and e,pertise, provide services on
such terms as the" please. 0n short, the profession of la is regarded as a mone" ma8ing rac8et. Toda"
people are apt to agree ith 1ean Sift>s description of la"ers as,
Ca societ" of men bred up from their "outh in the art of proving b" ords multiplied for the purpose,
that hite is blac8 and blac8 is hite according as the" are paid.C 2o longer is the profession of la
regarded as a noble one.
;e further goes on to sa" that hat are the reasons for this said declineD The main reason is that
la"ers, as also other professionals li8e doctors for e,ample, have forgotten hat is entailed in a
profession and their proper role in societ".
3
(. v. Farsons
4
Bar Council of @aharashtra v. @. G. 1abhol8ar A0( 19-1 SC 11H.
% Salient eatures of Advocates Act, !"#!
0t is forgotten that the essential difference beteen business and a profession is that hile the
chief end of business is personal gain, the main goal of profession is professional service. .f late
la"ers seem to operate on the la of demand and suppl" and the forces of commercialism have
overta8en the profession b" and large. The idea that professionals are for the people and the people are
not for the professionals sound li8e a strange and alien doctrine.
Toda" the fees charged b" some la"ers are staggering. ;e later sa"s that<
50 as told that a middle ran8 la"er charged (s. 6),)))*+ for an application for an ad:ournment in
the Bomba" high Court. The fees charged b" some seniors in the S4F>s in the Supreme Court are
enormous. 4a"ers charge fee even hen the" have not put in an appearance and it is a disgusting
sight to see some la"ers plead ith the :udge to record their appearance to enable them to collect
fees from their absent clients.9
The legal profession has a social dimension. And the la"er has the social role to pla" in
societ". The social dimension becomes a ver" relevant issue hen e loo8 at the manner in hich legal
services remain b" and large inaccessible to the common man, particular in a poor countr" li8e us.
CONFLICTIN! DUTIES OF A LA"YER
0magine "ou are a client of a la"er and that "ou have been so, intermittentl", for the last $)
"ears. The la"er has prepared "our conve"ancing deeds and "our ill. Iour certificates of title ma" be
stored in the la"er>s office. The la"er ma" have a poer of attorne" in relation to "our personal
affairs. Iou ma" have been a part" to litigation and the la"er counselled "ou, dealt ith "our
opponent and appeared on "our behalf. The la"er has and continues to serve "our interests faithfull".
2o imagine that same la"er serves a letter of demand on "ou in relation to a matter in hich he or
she had formerl" acted on "our behalf.
FIDUCIARY RELATIONSHIP
Such conduct is generall" seen as inappropriate and unethical. 6h"D The anser resides in the
nature of the relationship beteen la"er and client. 0t is intimate ++ the client reposes trust and
confidence in the la"er. 0ndeed, the la"er is in a fiduciar" relationship ith the client. @ore than
that, of all the fiduciar" relationships 8non to the la, the la"er+client relationship is one of the most
recogni?able. The common la s"stem of :ustice ould not function ithout it. The public derives, in
- Salient eatures of Advocates Act, !"#!
part, its confidence in the administration of :ustice from the fidelit" of a la"er to his or her client. 0t is
for this reason that courts have re#uired high standards of propriet" from a la"er.
0n Ale%ander v Perpetual 1rustees 2A +td , 1avies A=A described conflicts of dut" as >insidious
thingJsK>. The" cloud the mind. Aspects of the la"er>s dut" of care, hich ought to be seen clearl" and
distinctl", are seen in a >ha?" light>.
4a"ers have a fiduciar" obligation to avoid >conflicts of dut">. Conflicts arise hen a la"er
ho oes a dut" to one client underta8es a similar dut" toards another client either simultaneousl"
&>present client conflict>' or successivel" &>former client conflict>'
DUTY OF LOYALTY
0t!s relevant here to #uote Trial of Lueen Caroline &1H$1', b" =. 2ightingale, vol. 00, The
1efence, Fart 1, at p. H herein a declaration as made of an advocate>s dut" of lo"alt" b" ;enr"
Brougham, later 4ord Chancellor, in his defence of Lueen Caroline against the charge of adulter"
brought against her b" her husband, 3ing Beorge 0G. ;e thus addressed the ;ouse of 4ords<
-
5An advocate, in the discharge of his dut", 8nos but one person in all the orld, and that
person is his client. To save that client b" all means and e,pedients, and at all ha?ards and costs to other
persons, and, among them, to himself, is his first and onl" dut"7 and in performing this dut" he must not
regard the alarm, the torments, the destruction hich he ma" bring upon others. Separating the dut" of a
patriot from that of an advocate, he must go on rec8less of conse#uences, though it should be his
unhapp" fate to involve his countr" in confusion.9
56hile the Court is most often preoccupied ith uses and abuses of confidential information in
cases here it is sought to dis#ualif" a la"er from further acting in a matter, the dut" of lo"alt" to
current clients includes a much broader principle of avoidance of conflicts of interest, in hich
confidential information ma" or ma" not pla" a role9 as as #uoted in various cases such as /ontreal
1rust Co. of Canada v. Basinview 3illage +td.4 5ans v. Coulter 6(.H.7 Co. 4 Stewart v. Canadian
Broadcasting Corp. Blac8!s 4a 1ictionar" defines Conflict of 0nterests as
5A real or seeming incompatibilit" beteen one!s private interests and one!s public or fiduciar"
duties. A real or seeming incompatibilit" beteen the interests of to of a la"er!s clients, such that the
5
Enerchem Ship @anagement 0nc. v. Coastal Canada
6 Salient eatures of Advocates Act, !"#!
la"er is dis#ualified from representing both clients if the dual representation adversel" affects either
client or if the clients do not consent.9
As earl" as 1$H), a 4ondon .rdinance forbade attorne"s from representing adverse parties in the
same action and from dropping one client to represent another in the same case.
CONFLICT ET"EEN INTEREST AND DUTY # STATUTORY ANALYSIS
DUTY TO THE COURT
(M4E +1 An advocate shall, during the presentation of his case and hile otherise acting
before a court, conduct himself ith dignit" and self+respect. ;e shall not be servile and henever there
is proper ground for serious complaint against a :udicial officer, it shall be his right and dut" to submit
his grievance to proper authorities.
(M4E N % An advocate shall use his best efforts to restrain and prevent his client from resorting
to sharp or unfair practices or from doing an"thing in relation to the court, opposing counsel or parties
hich the advocates himself ought not to do. An advocate shall refuse to represent the client ho
persists in such improper conduct. ;e shall not consider himself a mere mouth+piece of the client, and
shall e,ercise his on :udgment in the use of restrained language in correspondence, avoiding
scurrilous attac8s in pleadings, and using intemperate language during arguments in court.
DUTY TO CLIENT
(M4E N $$ An advocate shall not, directl" or indirectl", bid for or purchase, either in his on
name or in an" other name, for his on benefit or for the benefit of an" other person, an" propert" sold
in the e,ecution of a decree or order in an" suit, appeal or other proceeding in hich he as in an" a"
professionall" engaged. This prohibition, hoever, does not prevent an advocate from bidding for or
purchasing for his client an" propert", hich his client ma", himself legall" bid for or purchase,
provided the Advocate is e,pressl" authori?ed in riting in this behalf.
DUTY TO COLLEA!UES
(M4E N EE An advocate ho has, at an" time, advised in connection ith the institution of a
suit, appeal or other matter or has dran pleadings, or acted for a part", shall not act, appear or plead
for the opposite part".
O Salient eatures of Advocates Act, !"#!
(M4E N E6 An advocate shall not solicit or8 or advertise, either directl" or indirectl", hether
b" circulars, advertisements, touts, personal communications, intervies not arranted b" personal
relations, furnishing or inspiring nespaper comments or producing his photographs to be published in
connection ith cases in hich he has been engaged or concerned. ;is signboard or nameplate should
be of a reasonable si?e. The sign+board or name+plate or stationer" should not indicate that he is or has
been Fresident or @ember of a Bar Council or of an" Association or that he has been associated ith
an" person or organi?ation or ith an" particular cause or matter or that he specialises in an" particular
t"pe of or8er or that he has been a =udge or an Advocate Beneral.
(M4E N %E An Advocate ho has been convicted of an offence mentioned under Section $%A
of the Advocates Act or has been declared insolvent or has ta8en full time service or part time service or
engages in business or an" avocation inconsistent ith his practising as an advocate or has incurred an"
dis#ualification mentioned in the advocates Act or the rules made there under, shall send a declaration
to that effect to the respective State Bar Council in hich the advocate is enrolled, ithin ninet" da"s
from the date of such dis#ualification. 0f the advocate does not file the said declaration or fails to sho
sufficient cause for not filing such declaration provided therefore, the Committee constituted b" the
State Bar Council under rule %$ ma" pass orders suspending the right of the advocate to practice.
CONFLICT ET"EEN INTEREST AND DUTY # $UDICIAL RESPONSE
REPRESENTIN! CONFLICTIN! INTEREST
A case of conflict is here a solicitor acts for both parties to a transaction ithout disclosing this
to one of them or here having disclosed it he fails, unbe8non to one part", to disclose to that part"
material facts relative to the other part" of hich he is aare.
REASON FOR THE CONFLICT OF INTEREST
H Salient eatures of Advocates Act, !"#!
5The relationship beteen a solicitor and his client is one in hich the client reposes trust and
confidence in the solicitor. 0t is a fiduciar" relationship. But not ever" breach of dut" b" a fiduciar" is a
breach of fiduciar" dut". 0f a solicitor is careless in investigating a title or drafting a lease, he ma" be
liable to pa" damages for breach of his professional dut", but that is not a breach of a fiduciar" dut" of
lo"alt"7 it is simpl" the breach of a dut" of care9 as as said b" @illett 4= in Bristol and 6est Building
Societ" v @othe &t*a Staple" A Co'.
5A solicitor>s dut" of single+minded lo"alt" to his client!s interest, and his dut" to respect his
client!s confidences, does have their roots in the fiduciar" nature of the solicitor+client relationship. But
the" ma" have to be moulded and informed b" the terms of the contractual relationship9 as as said b"
@ason = in ;ospital Froducts 4td v Mnited States Surgical Corp. The solicitor>s dut" of single+minded
lo"alt" to his client ver" fre#uentl" ma8es it professionall" improper and a breach of his dut" to act for
to clients ith conflicting interests in the transaction in hand.
INDIAN CASE LA"S
0n the absence of an" specific provision regarding conflict beteen interest and duties of a
la"er, the sub:ect can onl" be discussed b" :udicial response.
0n the case of H.3. Pancha'sharappa v. 8.(. &shwar
#
it as stated that 5Before parting ith
this appeal, e ould, hoever, li8e to observe that respondent ought to have, according to the best
traditions of the Bar, disclosed to the appellant that he had been retained b" the defendant in ..S. 2o.
119*19H6. There ma" not have been an" clash of interest but since the defendant in ..S. 2o. $EO*19H6
as his client as a plaintiff in ..S. 2o. 119*19H6, the information should have been disclosed to the
appellant. 0t is :ust plain and simple obligation of a counsel to disclose such facts to his client. Though,
ithholding of the information ma" not amount to professional misconduct, nonetheless the action does
not spea8 ell of the conduct of the respondent. .n this account e leave the parties to bear their on
costs in this appeal.9
Spea8ing generall" it is #uite clear that a professional gentleman should as far as possible stic8
to the side ho first engaged him. 0t might be a ver" good practice if hen gentlemen ere offered
instructions in an" connected case, that the" should at least in the first place inform their first client .
6
AIR 1929 Bom. 335.
9 Salient eatures of Advocates Act, !"#!
0n &mperor v. 9a)ni 8anta (hose
:
, A division bench of the Calcutta ;igh Court held that a
legal practitioner appearing on both sides as guilt" of professional misconduct. The Court further held
that<
5As this has happened once and ma" happen again, it is desirable to state the ell+settled
general rule that a legal practitioner cannot represent conflicting interests or underta8e the discharge
of inconsistent duties. hen he has once been retained and received the confidence of a client, he
cannot accept a retainer from or enter the service of those hose interests are adverse to his client in
the same controvers" or in a matter so closel" allied thereto as to be in effect a part thereof.
The rule is rigid and is designed not onl" to prevent the dishonest practitioner from fraudulent
conduct, but as ell to preclude the honest practitioner from putting himself in a position here he ma"
be re#uired to choose beteen conflicting interests.9
The full Bench of the 4ahore ;igh Court in 0n the matter of (amalal Anand held that change of
sides as such b" counsel is not forbidden b" la7 change of sides is forbidden if there are confidential
communications from one side hich ma" be made use of hen the la"er represents the other part". 0t
is forbidden if the la"er obtains his on discharge and obtains his on discharge and acts for the
opposite part"7 it is also forbidden if the la"er accepts a retainer from the opposite part" ithout first
offering his services to his original client.
The principal underl"ing the ban, prohibiting an Advocate from appearing from the opposite
part" against his former client is that there is the li8el" hood of conflict of interest beteen the duties
and interest of the 4a"er and also possibilit" of misuse of the instructions given to him b" his former
client. 0t is not a #uestion hether the misuse has been actuall" made7 the mere possibilit" of such
misuse in a matter, hich is connected ith the previous litigation, is sufficient
0n order to prevent an Advocate from appearing for the opposite part", hat one has to see is
hether in the circumstances of a particular, having regard to the steps ta8en in the litigation of criminal
proceedings, it can be reasonabl" inferred that confidential information could have been imparted, 0n
the case of &arl Cholmondeley v. +ord Clinton. The 4ord Chancellor said<
50f there is an" ground for an" application, either as a motion in the cause or upon the general
:urisdiction , it must be furnished b" a general principal, not the particular circumstances of the case7
7
AIR 1934 All. 1067.
1) Salient eatures of Advocates Act, !"#!
otherise the court must tr" ever" such case on its particular circumstances and it cannot be discussed
ithout a disclosure from the solicitor of all he 8nos.9
0t has been reiterated in Halsbury;s +aws of &ngland
5A barrister must decline to accept instructions hich ould render it difficult to maintain his
professional independence or ould embarrass him. ;e ought not to appear for to clients hose
interest ma" conflict, or if he is in possession of confidential information relating to the opposite part",
or if he is a itness to a material fact.9
0n 1a)endra Chandra v. 1a)endra +al , a special bench of the (angoon ;igh Court observed
that<
5it is clear that an advocate or pleader ho has appeared on behalf of one part" in a suit ought
not to allo himself to be placed in the position in hich there might become suspicion, hether ell
or ill founded that his 8noledge of his client!s case ould be used b" him on a subse#uent occasion in
appearing for another part" and against his on client.9
0t is settled general rule that a legal practitioner cannot represent conflicting interests or
underta8e the discharge of inconsistent duties. 6hen he has once been retained and has received the
confidence of a client, he cannot accept a retainer from or enter the service of those hose interests are
adverse to his client in the same controvers" or in a matter so closel" allied thereto as to be in effect a
part thereof. The rule is right and is designed not onl" to prevent the dishonest practitioner from
fraudulent conduct, but as ell to preclude the honest practitioner from putting himself in a position
here he ma" be re#uired to choose beteen conflicting duties or be led to an attempt to reconcile
conflicting interests, rather than to enforce to their full e,tent the rights or interest hich he should
alone represent as as held in the case of <ay v. Ponsonby .
But here a legal practitioner did not actuall" appear for both sides but merel" attempted to
ma8e the best of the bargain b" issuing improper notice to his former client threatening appearance on
behalf of the main part" 8noing full" ell that he had rendered himself incapable of accepting brief, a
lenient vie as ta8en though the court held that the practitioner as guilt" of grossl" improper
conduct hich as not in consonance ith the dignit" of the profession as as held in the case of 9am
Bharosa 8ular Bhandari 8alai v. Surndra =ath 1ha'ur
>
8
AIR 1976 S 242.
11 Salient eatures of Advocates Act, !"#!
A counsel cannot represent clients ith conflicting interests. Thus it has been held that counsel
cannot represent to different creditors hose interests are 8no to conflict as as held in the case of
The Bovernment Fleader, ;igh Court, Bombay v. Bhagabhai <ayalbhai
The Fatna ;igh Court in &mperor v. Bir 8ishore 9ai held that the conduct of a pleader in acting
for both sides in the same case is grossl" improper conduct. The said case as under the 4egal
Fractitioners Act.
The Allahabad ;igh Court in the case of Saharanpur (rain Chamber +imited v. /ahara) Singh
held that hen an advocate as consulted b" one part" is perfectl" free to accept the brief against him,
if he has not received an" information of a confidential nature hich ill be of use against the part" in
litigation.
The la is not that once an advocate is consulted b" one part", he ma" not accept the brief for
the other part", no matter hat ma" have been the nature of information conve"ed to him during the
course of consultation. 2o doubt the litigants are entitled to protection against unscrupulous members of
the legal members of the legal profession. But the members of the legal profession are e#uall" entitled
to protection against unscrupulous litigations and if the la ere that once a counsel as consulted b"
one part", he could not under na" circumstances accept a brief against him, the position of the legal
profession ill be perilous indeed. The onus of proving that confidential information as conve"ed lies
heavil" upon the applicant.
0n another case of &mperor v. Shanti =arayan /anocha , here the pleader drafted the plaint
gratuitousl" as friend and no confidential information as imparted b" the plaintiff, the pleader
subse#uentl" accepted brief of the defendant. The pleader as not held guilt" of misconduct.
An advocate accepted the brief for the plaintiff and appeared at the initial stage. Subse#uentl" he
reported no instructions and then appeared as Bovt. Fleader on behalf of State hich as added as a
defendant, in the suit. The advocate!s conduct amounts to misconduct in the case of 0n the matter of Sri
Burubasappa
ADVOCATE HANDIN! OVER RIEF TO ANOTHER "ITHOUT
CLIENT%S CONSENT
1$ Salient eatures of Advocates Act, !"#!
A la"er hen entrusted ith a brief is e,pected to follo the norms of professional ethics and
tr" to protect the interests of his clients, in relation to hom he occupies a position of trust. 0t is not in
accordance ith professional eti#uette for an advocate to hand over his brief to another to ta8e his place
at a hearing &either for the hole or part of the hearing' and conduct the case as if the latter had himself
being briefed, unless the client consents to this course being ta8en.
0t as held in 3. C. 9angaburai v. <. (opalan
"
, it as held that 5Counsel!s paramount dut" is
to the client< accordingl" here he forms an opinion that a conflict of interest e,ists, his dut" is to
advise the client that he should engage some other la"er. 0t is unprofessional to represent conflicting
interests, e,cept be e,press consent given b" all concerned after a full disclosure of the facts.9
TA&IN! MONEY FROM THE CLIENT TO RIE ANOTHER
The Freamble to Chapter 00 of Fart G0 of the (ules of the Bar Council of 0ndia la"s don that an
advocate shall at all times comport himself in a manner befitting his status as an officer of the Court,
privileged member of the communit" and a gentleman. (ule % of this Chapter provides that an advocate
shall use his best efforts to restrain and prevent his client from resorting to sharp and unfair trade
practices etc. 2o a conflict ensues hen a la"er fails to perform his dut" due to certain interests. 0n
the case of Chandra She'har Soni v. Bar Council of 9a)asthan , the appellant had procured the brief of
the complainant in another case on a fee of (s. E))*+ on the representation that he ould secure a
favourable report from the (adiologist shoing that there as a fracture of the s8ull. Therefore conflict
arose because of this monetar" interest. 0t as held that< +
52othing should be done b" an" member of the legal fraternit" hich might tend to lessen in
an" degree the confidence of the public in the fidelit", honest" and integrit" of the profession. The State
Bar Council gave the appellant the benefit of doubt on the first charge that he changed sides in a
criminal case, holding that though such conduct on his part as unprofessional, it as not tantamount to
professional misconduct. The 1isciplinar" Committee of the Bar Council of 0ndia rightl" observes that
it failed to appreciate the distinction dran b" the Slate Bar Council as his act in accepting the brief for
the accused after having appeared for the complainant as clearl" contrar" to r. EE of the Bar Council
of 0ndia (ules, 19O-. 6e concur ith the 1isciplinar" Committee. 0t is not in accordance ith
professional eti#uette for an advocate hile retained b" one part" to accept the brief of the other. 0t is
unprofessional to represent conflicting interests e,cept b" e,press consent given b" all concerned after
a full disclosure of the facts. The appellant ould not have appeared for the other side e,cept ith the
9
AIR 1960 S 554
1E Salient eatures of Advocates Act, !"#!
permission of the learned @agistrate. Counsel>s paramount dut" is to the client, and here he finds that
there is conflict of interests, he should refrain from doing an"thing, hich ould harm an" interests of
his client. A la"er hen entrusted ith a brief is e,pected to follo the norms of professional ethics
and tr" to protect the interests of his client in relation to hom he occupies a position of trust. The State
Bar Council hoever found the appellant guilt" of the second charge vi?. that he had procured the brief
of the complainant in another case on a fee of (s. E))*+ on the representation that he ould secure a
favourable report from the (adiologist shoing that there as a fracture of the s8ull. The appellant as
guilt" of reprehensible conduct. The preamble to Chapter 00 Fart G0 of the (ules la"s don that an
advocate shall at all times, comfort himself in a manner befitting his status as an officer of the Court,
privileged member of the communit" and a gentleman. (. % of this Chapter provides that an advocate
shall use his best effort to restrain and prevent his client from resorting to sharp and unfair practices etc.
There is a long catena of decisions la"ing don that offering of bribe or giving bribe or ta8ing mone"
from the client for the purpose of giving bribe amounts to grave professional misconduct.9
The lapse on the part of the appellant as perhaps due to the fact that in the struggle for
e,istence he had to resort to such malpractices and thus to meet the ends of :ustice, he as suspended
for a period of 1 "ear.
EN!A!EMENT IN USINESS
Conflict beteen interest and dut" arises hen an advocate is engaged in has ta8en full time
service or part time service or engages in business or an" avocation inconsistent ith his practicing as
an advocate.
0n the case of Bhupinder 8umar Sharma v. Bar Association, Pathan'ot
!?
, the appellant as
guilt" of professional misconduct as he as carr"ing on and continued his business and business
activities even after his enrolment as an Advocate. ;e as running a photocopier documentation centre,
FC.*ST1 booth in the court compound, Fathan8ot and he as proprietor*Beneral @anager of the
Fun:ab Coal Bri#uettes, Fathan8ot, a private concern and he as pursuing the business*his interest in
the said business even on the date hen his statement as recorded b" the 1isciplinar" Committee.
Thus it as in direct conflict ith (ule %E of Bar Council of 0ndia.
0nvestment of savings b" an advocate does not necessaril" amount to engagement in mone"
lending business and thus there is no conflict beteen interest and dut". .n the other hand, if
10
AIR 1996 S 1708.
1% Salient eatures of Advocates Act, !"#!
investments ere made as a matter of regular business and for gain, it ma" constitute engagement in
mone"+lending business as as held in the case of 0n (e Bhairo 1utt Bhandari, an Advocate
0n the case of /adhav /. Bho'ari'ar v. (anesh /. Bho'ari'ar
!!
&1ead' through 4rs. it as
held that the appellant as an advocate dul" enrolled under the provisions or the Advocates Act, 1961.
Froceedings ere initiated against the appellant b" the 1isciplinar" Committee of the State Bar Council
on a complaint made b" the respondent accusing the appellant of having ta8en dealership of a retail
outlet of petroleum products.
.n en#uir", the 1isciplinar" Committee of the State Bar Council found the charge proved.
According to the State Bar Council, the appellant, though a practising advocate applied for the
dealership and subse#uentl" secured a letter of intent in his favour. Thereafter, the petrol pump as also
started. The complaint as made after about to "ears of the retail outlet having remained in operation.
1uring the pendenc" of the en#uir" against the appellant, he entered into a partnership ith his "ounger
brother herein the mutual arrangement arrived at beteen the to partners as that the appellant
ould remain a sleeping partner and his "ounger brother ould activel" and holl" loo8 after the
business.
.n $).6.199H, the State Bar Council having held the appellant guilt" of professional misconduct
directed his license to practice to be suspended for a period of one "ear under Clause &c' of Sub+section
&E' of Section E- of the Act.
MA&IN! REC&LESS AND FALSE ALLE!ATIONS
A counsel is to assist the Court in the administration of :ustice and is not a mere mouthpiece of
his client. 0f a counsel ma8es rec8less and false allegations against a @agistrate in the application for
transfer on the instructions of his client ithout ta8ing an" steps to verif" the truth of these allegations,
he is unfit to en:o" the privileges conferred upon him b" la and must be visited ith punishment as
as held in the case of Banar v. Emperor. Thus a conflict is created beteen the Freamble &hich
imposes a dut" on a la"er' and the interest of the client and the la"er.
"HERE LA"YER HAS A PERSONAL INTEREST
11
AIR 1976 S 242
1- Salient eatures of Advocates Act, !"#!
A fiduciar" dut" concerns disclosure of material facts in a situation here the fiduciar" has
either a personal interest in the matter to hich the facts are material or acts for another part" ho has
such an interest.
The classic case here the dut" arises is here a solicitor acts for a client in a matter in hich
he has a personal interest. 0n such a case there is an obligation on the solicitor to disclose his interest
and, if he fails so to do, the transaction, hoever favorable it ma" be to the client, ma" be set aside at
his instance as as held in the case of 4eis v ;illman.
THRO"IN! A"AY INTERESTS
Mnder the 4egal Fractitioners Act, Section 1E tal8ed of throing aa" interests of unimportant
client in favour of important client is deserving of censure. 0n the case of 0n the matter of 2, a pleader ,
a pleader 2 had to cases to attend on the same da". .n the ne,t da" hoever 2 presented himself in
the former case and the latter case hich as ea8 as conducted b" another pleader and the accused
as convicted.
The Court held that 52 ma" also have been influenced b" the probabilit" that in one case the
client had ver" little chance of ac#uittal and that the case could not be made an" orse b" his absence
and could not be made an" better b" his presence but hoever that ma" be the more difficult the case
the more important P9
The court further held that 5in these circumstances he certainl" on his on account of the
proceedings thre aa" the interests of an unimportant client in favour of the interests of an important
client and in so doing he has committed an offence hich is deserving of the most serious censure. But
a censure in a case of this 8ind is an inade#uate punishment and e feel it our dut" to mar8 our opinion
of the gravit" of the offence and also to protect the reputation of the profession itself. The reputation of
the profession is liable to be gravel" affected b" conduct of this 8ind. 6e therefore order that 2 be
suspended from practice for a period of to months from this date.9
FEES NOT PAID
0n (. 1. Sa,ena v. Balram Frasad Sharma
1$
, this Court has held that advocates have no lien over
the papers of their client. 0t is held that, at the most the advocate ma" resort to legal remedies for,
12
AIR 1995 S 691
16 Salient eatures of Advocates Act, !"#!
unpaid remuneration. 0t has been held that the right of the litigant to have the files returned to him is a
corresponding counterpart of the professional dut" of the advocate and that dispute regarding fees
ould be decided in an appropriate proceeding in Court.
0n the case of 2e 0ndia Assurance Co. 4td. v. A.3. Sa,ena
1E
it as held that (espondent as
an advocate on panel of the appellants + Some dispute arose beteen the appellants and the respondent
as a result of hich the respondent as as8ed to return all papers + The respondent as illing to return
the papers provided that all his fees ere paid + Advocates have no lien over the papers of their clients
and at the most the advocate ma" resort to legal remedies for, unpaid remuneration + The right of the
litigant to have the files returned to him is a corresponding counterpart of the professional dut" of the
advocate and that dispute regarding fees ould for fees is to be decided in an appropriate proceeding in
Court
NOT TO E IAS
0n the case of Satyendra =arain Singh and *rs. v. 9am =ath Singh and .rs. 0t as held that
there are a fe blac8 sheep in ever" profession, na", in ever" al8 of life. But fe as the" are, the"
tarnish, b" their machinations, the fair name of age+old institutions. Therefore, persons ho occup"
high public offices must ta8e care to see that those ho claim to be close to them are not alloed to
e,ploit that closeness, alleged or real. .n the facts of this case, e ill onl" sa" that Shri Sailendra
3umar =ha too8 a correct decision in not appearing in the case an" further and, ith respect, his father
=ustice S.3. =ha acted in the best traditions of the =udiciar" in seeing that his son ithdre from the
case. 0t is better that in such circumstances the advocate son, rather than the =udge father, ithdras
from the case.
1e BrandprQ, =. in his dissent
1%
in<
5The apprehension of bias must be a reasonable one, held b" reasonable and right+minded
persons, appl"ing themselves to the #uestion and obtaining thereon the re#uired information. 0n
the ords of the Court of Appeal Jat p 66OK, that test is Chat ould an informed person, vieing
the matter realisticall" and practicall" ++ and having thought the matter through ++ conclude.9
13
AIR 1978 S 969! 1978 "a#I 778
14
ommittee fo$ %&stice and "i#e$t' et al. v. (ational )ne$*' Bd. + ,,. 394-395
1O Salient eatures of Advocates Act, !"#!
This approach as subse#uentl" reiterated b" the Supreme Court in (. v. (.1.S, and
2eway'um ,ndian Band v. Canada , and folloed in numerous loer court decisions including, most
recentl", the /ederal Court of Appeal in Canada &Attorne" Beneral' v. /etherston
1-
The la in England is also the same and has been stated in the ;alsbur"!s 4as of England
50f counsel ho has advised on or been engaged in a case is raised in the Bench, and the same case
comes before him, the practice is for him to refuse to ad:udicate on it.9
0n /ana' +al v. Prem Chand
16
, a complaint alleging professional misconduct against @ana8
4al, an advocate of the (a:asthan ;igh Court, as filed b" Frem Chand. The bar council tribunal,
appointed b" Chief =ustice of the ;igh Court to en#uire in to the alleged misconduct of @ani8 4al,
consisted of the Chairman and to other members. The Chairman had earlier represented Frem Chand
in a case. ;e as, hoever, a senior advocate and as once advocate general of the (a:asthan ;igh
Court. The Supreme Court had no hesitation in assuming that the Chairman had no personal contact
ith this client and he did not remember that he had appeared on his behalf in certain proceedings.
The court as thus satisfied that there as no 5real li8el" hood bias9, but still it held that the
Chairman as dis#ualified on the ground 5:ustice not onl" be done but must appear to be done to the
litigating public9.
CONFLICTS OF INTEREST ET"EEN CLAIMHOLDERS' LA"YERS AND
LITI!ATION ENTREPRENEURS
All agreements that obstruct or affect administration of :ustice ould be treated as invalid under
Section $E
1O
. The agreement beteen a la"er and his client is directl" concerned ith the
administration of :ustice. 0t is an agreement beteen a la"er, ho is an officer of the Court and ho is
given privilege of audience b" the Court, and his client, ho is a suitor in the Court and has a cause to
be tried b" the Court. 0f such an agreement tends either directl" or indirectl" to affect the administration
of :ustice or sull" its course it ould ala"s be declared to be invalid.
1etachment and ob:ectivit", hich are the basis of the strength of the Bar, cannot be retained
hen a la"er agrees to share in the profits of litigation. An agreement beteen la"er and client
ma8ing the pa"ment of the la"er!s fees conditional upon the success of the suit and giving the la"er
15
433 ..S. 350
16
AIR 1960 S 554
17
Indian ont$act Act+ 1872
1H Salient eatures of Advocates Act, !"#!
an interest in the sub:ect matter of the suit itself, ould necessaril" tend to undermine the status of
la"er as a la"er. Such an agreement has ala"s been condemned as unorth" of the legal profession
and is opposed to a fundamental rule of professional ethics as as held in the case of 0n (e, 3. 4.
Bauba.
An underta8ing on the part of the practitioner to bear e,penses of litigation on the promise of the
litigant that a certain portion of the net profits of the litigation ill be alloed to the former in case of
success is grossl" improper under this section. 0t is grossl" improper professional dut" on the part of a
practitioner to enter into an a agreement ith his client to give him mone" and legal aid in consideration
of his assigning over to him a part of the propert", the sub:ect matter of the suit, in the event of success.
The same vie as e,pressed b" a full bench of the Calcutta ;igh Court in 0n the matter of an
advocate. Chief =ustice @aclean, ho delivered the principal :udgment of the full bench, observed that
it is professional misconduct for an advocate to agree ith his client to accept as his fee for share of the
propert", fund or other matter in the litigation for his services as an Advocate in such litigation upon the
successful issue thereof.
SU!!ESTION
Bar Council of 0ndia (ules is devoid of an" specific provision regarding Conflict beteen
interest and dut". As 0 have made detailed anal"sis of the position regarding conflict in America,
England, Canada, Fhilippines and the thought provo8ing that comes out is that h" is such a provision
lac8ing in 0ndia. 0n Canada, the rules even incorporate guiding principles as commentaries but as far as
0ndia is concerned the ord 5conflict9 has no place in the rules. Thus considering the present scenario
and comple,it" of the legal profession, it is recommended that there be a specific provision regarding
Conflict beteen 0nterests and 1uties of a 4a"er.
CONCLUSION
6here a la"er is guilt" of a conflict of interest in representing a client he ill have committed
a breach of dut". That dut" is usuall" e,pressed as a fiduciar" obligation arising out of the relationship
beteen solicitor and client. But there is similar dut" oed b" the la"er to the court &as ell as an
ethical dut"'. The dut" to the court arises from the court!s concern that it should have the assistance of
independent legal representation for the litigating parties. The integrit" of the adversarial s"stem is
19 Salient eatures of Advocates Act, !"#!
dependant on la"ers acting ith perfect good faith. This is central to the preservation of public
confidence in the admission of :ustice.
The usual basis for restraining a la"er from acting for a client on the ground of conflict of
interest is that a conflict is perceived beteen the continuing dut" of the la"er &oed to his former
client' not to disclose or use the latter!s pre:udice that hich he learned confidentialit", and the interest
he has in advancing the case of his ne client.
Ever" counsel has a dut" to his client fearlessl" to raise ever" 0ssue, advance ever" argument
and as8 ever" #uestion, hoever distasteful, hich he thin8s ill help his client>s case. As an officer of
the Court concerned in the administration of :ustice, he has an overriding dut" to the Court to the
standards of his profession, and to the public hich ma" and often does lead to a conflict ith his
client>s ishes or ith hat the client thin8s are his personal interests.
Counsel must not mislead the Court, he must not lend himself to casting aspersions on the other
part" or itnesses for hich there is no sufficient basis in the information in his possession, he must not
ithout authorities or documents hich ma" tell against the clients but hich the la or the standards
of his profession re#uire him to produce. B" so acting he ma" ell incur the displeasure or orse of his
client so that if the case is lost, his client ould or might see8 legal redress if that ere open to him.
0n an era of national firms and a rising turnover of la"ers, especiall" at the less senior levels,
the imposition of e,aggerated and unnecessar" client lo"alt" demands, spread across man" offices and
la"ers ho in fact have no 8noledge hatsoever of the client or its particular affairs, ma" promote
form at the e,pense of substance, and tactical advantage instead of legitimate protection. 4a"ers are
the servants of the s"stem, hoever, and to the e,tent their mobilit" is inhibited b" sensible and
necessar" rules imposed for client protection, it is a price paid for professionalism. Business
development strategies have to adapt to legal principles rather than the other a" around. Iet it is
important to lin8 the dut" of lo"alt" to the policies it is intended to further. An unnecessar" e,pansion
of the dut" ma" be as inimical to the proper functioning of the legal s"stem as ould its attenuation.
The issue ala"s is to determine hat rules are sensible and necessar" and ho best to achieve an
appropriate balance among the competing and conflicting interests. ;e is not merel" a mouthpiece of
his client to sa" hat he ants. ;e must disregard to most specific instructions of his client, if the"
conflict ith his dut" to the Court.
$) Salient eatures of Advocates Act, !"#!
2o better ords can sum up this pro:ect then that of @ahatma Bandhi =i. ;e said the folloing<
+
$@ that the duty of a lawyer was to place correct facts before the )udge and to help him to arrive at the
truth, and not to prove the guilty as innocent.
ILIO!RAPHY
A()*+,-.' "-/.*)-.' R-0o(). 123 o)4-(.:
1' 1avid 4. ;udson, 5Bates participants reflect on landmar8 case9, at
http<**.firstamendmentcenter.org*anal"sis.asp,DidR1%E9% &4ast visited on $$nd 2ovember,
$))O'
$' (a:iv 1utta, 56orld Trade .rgani?ation and 4egal Services< The 0ndian Scenario9, at
.insolindia.com*shimlaF1/s*orldTrade.rg.pdf &last visited on $Erd 2ovember, $))O'.
E' (eport on Trade in 4egal Services, 5Trade in Services< .pportunities and Constraints9, @inistr"
of Commerce, Bovernment of 0ndia, E,ecuted b" 0ndian Council for (esearch in Economic
(elations, Coordinator&s' 2.4. @itra and T.C.A Anand.
%' Singh 4alitha8umar 0., 5A Gie on 4egal Frofession9, A0( $))6 &=our.' 1.
-' Statement of .b:ects and (easons, The Advocates Act, 1961.
6' 6orld Ban8 (eport on Emerging Service Sector, 1999 #uoted in The (aghvan Committee
(eport on Competition 4a, $))).
D*+)*o21(*-.:
1' ;. Blac8, Blac8!s 4a 1ictionar" &-th ed., St Faul< 6est Fublishing Co., 19O9' 1)-9.
$' The Concise .,ford Thesaurus compiled b" 3ir8patric8 Bett"7 .,ford Mniversit" Fress.
E' 6ebster!s 2e English 1ictionar"7 Blac8 1og A 4eventhal Fublishers 0nc, $nd Edn 199-.
C1.- ,15.:
16 &Thirteen' Advoates, Allahabad, 0n the matter of, A0( 19E% All. 1)6O..
$1 Salient eatures of Advocates Act, !"#!
36 Bar Council of 0ndia v. @. G. 1habol8ar,.
46 Bates v. State Bar of Ari?ona, %EE M.S. E-).
56 Bigelo v. Girginia &19O-' MS.
66 Chintaman (ao v. State of @.F., A0( 19-1 SC 11H.
76 /lorida Bar v. 6ent /or 0t, 0nc. &199-' MS.
Bovernment Fleader v. S, a Fleader, A0( 19$9 Bom. EE-.
86 ;amdard 1aa8hana v. Mnion .f 0ndia, A0( 196) SC --%7 196) &$' SC( 6O1.
196 ;anira: 4. Chulani v. Bar Council of @aharashtra and Boa, A0( 1996 SC 1O)H.
116 0n the matter of A, an Advocate, A0( 196$ SC 1EEO
126 0ndian Council of 4egal Aid and Advice v. Bar Council of 0ndia, A0( 199- SC 6917
136 .hrali8 v. .hio State Bar Association &19OH' MS.
146 S3 2aic8er v. Authorised .fficer, &196O' H) @ad. 46 1-E at 1-%.
156 Srinath v. Mnion of 0ndia, A0( 1996 @ad %$O.
166 Galentine v. Chrestensen &19%$' MS.
176 Girginia State Board of Fharmac" v. Girginia Citi?ens Consumer Council 0nc. &19O6' MS.
$$ Salient eatures of Advocates Act, !"#!