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INTRODUCTION

In Peter Coss (Ed.), Thomas Wright’s Political Songs of England (1996), the following verse occurs:

“Attorneys in country, they get silver for naught;

They make men begin what they never had thought;

And when they come to the ring, they hop if they can.

All they can get that way, they think all is won for them

With skill.

No man should trust them, so false are they in the bile.”

Role of judges in a social welfare liberal democratic state is not an easy task for him, or his
profession. Profession, which obligates him a sense of social responsibility and expects from him
to work towards social development not only filling his own purse or coffees but shouldering a
joint or collective obligation to do justice in a society.Legal profession has been regarded from
times information and all over the world as a very honorable, prestigious and proud profession.
A lawyer has an important and dignified place in the society and he is respected by one and all
because of the fact that he carried on a most intellectual profession and what is more because he
fight for justice. Lawyers have been in the forefront generations, in every aspect of social and
political development in every country. Most of the politicians of the world are and were lawyers
and therefore lawyers can truly be regarded as a maker of history. It is not merely their role in the
courts for the case of justice to their respective parties that enable them to win an envious place
in the society but also their multi-pronged attack on the evils that decease the several aspects of
the society and for winning a just place even for the under–dog in society.

Sri P.V. Rajamannar, the former Chief Justice of Madras HighCourt explains the importance
of legal profession thus :“In the forefront I will place the special feature of the lawyers
profession, which is also shared by the doctor profession, viz that it is independent profession.
Through you may have onerous duties and obligations; you will not be a servant of any master.
You will be instead servant of the country. It is pleasure to describe the lawyers profession and
the doctors; profession as noble profession. In Christian countries the clergyman’s profession is
also spoken as such. This is chiefly, because member of these three professions unlike person
who follow other avocations, offer their services, expert services, to people in trouble. The fees
or emoluments they are paid does not depend upon any result. This very characteristic common
to these three professions has sometime givenrise to cynical comments. A character in one of
Scott; novel, a hard working farmer, exclaims, Hell Heaven, the clergyman is paid; win or lose
the lawyer is paid; deal or alive, the advocate is paid; but this is only a superficial criticism. The
truth is that the lawyers and the doctor place all their knowledge and skillet the disposal of their
clients, and their duty consists only in this. Solong as a judge or a doctor does his duty he is not
concerned with anything else, he is not answerable to anyone.”1

The judges, by reason of their intellectual training and the knowledge of human nature, which
they acquire by first-hand contact with person, have great opportunities of becoming leaders of
public opinion. Indeed, at one time, the lawyer occupied a very prominent place in the political
life of our country. It is only in the later stage of our national struggle that many of the leading
judges- politicians fell behind because participation in the political agitation meant abandoning
their practice. Through the struggle is at an end and independence has been gained, it must be
confessed that judge has not regained his previous prestige his previous prestige and influence in
political life.Our country is governed by a democratic Constitution, and in the present set up the
judges will naturally become the custodians of the Fundamental Rights of the people.

The above hope expressed by the distinguished Chief Justice, way back in 1955, is now
gradually taking shape and the legal profession in India is assuming greater and greater
importance and lawyers as a whole are emerging as a force to reckon with, to fight for justice
and for civil liberties. The nobility of this profession evidenced by the fact that young lawyers
are now then coming out in defense ofpersonal liberty of the subject and are doing this sacred
service in several cases almost free of cost. this fact goes to show that in India the legal
profession accepts its sacred responsibility of safeguarding the Fundamental Rights of the citizen
and it is a great relieving factor that there are at least some prominent lawyers who rise above the
temptation of gain from the professional and come our openly to render free service.

1
Pathak, Dr. G.S. (1973) : “Legal Education in India - Problems and Perspectives", Eds. by S.K.Agarwal, p.2-3.
Indeed this is what is expected of this reputed profession as has been explained bySir Chandra
Reddy, Former Chief Justice of Andhra Pradesh and Madras High Courts in his address to
young lawyers, which is as follows - “As I have already said, yours is a profession and not a
business, and there are certain characteristics which distinguish the legal profession from
business. Your relation to your Clint is of a fiduciary character in the highest degree. You are an
officer of court in regard to the administration of justice involving among other things integrity
and reliability. Your relation to your colleagues at the Bar is characterized by candour. Fairness
and unwillingness to resort to current business methods of advertising and encroachment of their
practices and dealing directly with their clients. You have a duty of public service, the
emoluments being only a bye-produce.”2

Own and then there may be some adverse criticism a giants the legal profession. It is necessary
for the members of this honorable profession o take this criticism in their proper perspective and
make a heart – search as to what deficiencies exactly have provoked such criticism.Another
formerJudge Sri D. Munikanniah, has rightly observed – “It had been the tendency in few
quarters to malign the profession and its practitioners as defeaters of the law and mockers of its
Majesty. They are accused of promoting strife and disputes. It is often pointed out that they act in
disregard of truth, and that an Advocate is a venal person, who is apt to prostitute his talents for
money.

An extreme view that a legal practitioner is a parasite infesting the community and has to be
extirpating finds expression as a result of ignorance of the truth functions of a lawyer. All this
would be turn if commercialism and trade spirit which dwarfs the soul of a man is regarded as a
spring to actions d conduct of an advocate. But if you can persuade yourself that you are an
important limb in the administration of justice and for establishing the rule of law with a view to
promote the welfare of the people; you will be serving the cause of the country for the purpose
specified in Article 30 of the India Constitution.Your assistance will be valuable in making the
Government realizes that the taxation power that it has, is to be used only for prevention of
poverty. You should be impelled by a sense of duty to check even Government who happened to
be rigorous when necessary but weak when possible, and decry the old ideas of laissez faire and
revolutionize notion of liberty. It is not only the Judges but Advocates also that could be of help
2
Singh, Dr. Ranbir, (1998) : “Reforms in Legal Education and Legal Profession in India”, NALSAR, Andhra Law
Times. (6) 95 : 15-18.
to rouse the consciousness for promoting welfare of the people and it is noteworthy that the
achievements and the development of ideaspromulgated under the general welfare clause in the
American Constitution should treating it as the guiding light….it is also noteworthy to observe
that lawyers settled more quarrels than they assisted to fight; and it is a truism that a good deal of
a body of law is concerned with preventing disputes. The primary duty of binging about the
compromise between parties with a view to sure lasting peace cannot be over emphasized.”3

The profession of law is a profession that is concerned with of the mind; the mind and not the
imagination is the instrument. The conscious materials of our professional are of the mind,
process of reasoning. To belong to be a profession that has the great history of the legal
profession, a profession that is concerned with the things of the mind, with subjecting questions
to the reasoning processes and justification by reason, is a great traditional. A tradition, if it is
worthy of the name is not wealth hoarded, it is a dynamic energy to be applied. It is a great
tradition that the legal profession is entitled to claim for itself in the unfolding of modern
constitutional government by law. It is the legal profession beyond any other calling that is
concerned with those establishments, those processes, those criteria, those appeals to reason and
right, which had a dominant share in begetting civilized modern society. And that means a
learned profession. That means drawing on the juices of your life, from almost every domain of
learning, because if the law is concerned with the regulation of problems concerning society,
then it is necessary to be informed or at least aware of the multitudinous, multifarious forces,
with which society is concerned and which affect society.4

3
Reddi, Rama (1974) : Advocates How to Make Fortun. 5 th ed., Panchyat Publication, Hyderabad-2, p 1-3.
4
Bar Council of India v. M.V.Dhabolkar, AIR 1976 SC 242.
01. Introduction
Legal profession in India has a long history to tell, as far as India is concerned. However Before
four centuries it was not so. It is the colonial regime that forged the present adversary legal
profession in India. However, the legal profession in the precolonial era was not an entire nullity.
02. Legal Profession in Pre-British India
During the Hindu period the Courts derived their authority from the King who was considered
the fountain head of justice. The King's Court was superior to all other courts. The King was
advised by his Counselors in hearing and deciding the case but he was not bound by their advice.
The institution of lawyer as it exists today was not in existence during this period. The Court was
required to investigate the matter and deliver its judgment. The judge was bound to be punished
in case it was found that his judgment was wrong. Kautilya's Arthasastra does not mention about
the existence of legal profession and therefore most probably such a class did not exist.
03. Muslim Period
During the Muslim period the litigants were represented by a body of persons known as vakils.
The vakil was paid a percentage of the amount in the suits. The Court of the native
administrations concerned determined who should be allowed to appear as Vakil in a Zilla Court.
Even during this period, the legal profession was not organized. The Vakils acted more as agents
for principals than as lawyer.
04. Legal Profession during British Period
The legal profession as it exists today was created and developed during the British Period. In
early days the legal profession was not paid due attention by the East India Company. There was
no uniform judicial system in the settlements of the East India Company. Before Madras
attained the position of a Presidency in 1665 it had two courts namely, the Choultry Court and
the Court of the Agent and Council.
From the period ranging from 1661 till 1726, laws of equity and justice in conformity with the
laws in England were followed. There was no codified law. In Calcutta, the judicial system was
based on the Company’s authority as a Zamindar. This continued till the charter of 1726 was
passed.
In 1726 by a Charter known as Charter of 1726 in each Presidency Town a Mayor's Court was
established and, thus, by the Charter a uniform judicial system was introduced in all the three
Presidency Towns-Bombay. Calcutta and Madras. Before 1726 the Courts under East India
Company did not derive their authority not from the British Crown and their decisions were not
as authoritative as those of the Courts in England.
The Mayor’s Court established under the Charter of 1726 were the Royal Courts and they
derived their authority from the British Crown and not from the East India Company. The
Mayor's Courts were to follow well-defined procedure based on the English law and procedure.
The Charter of 1726, thus, introduced Royal Courts in India but did not make provisions for the
regulations of the legal practitioners. Many persons having no knowledge of law were practicing.
The judicial administration including the legal profession was not of a high order.
In 1753 a new Charter known as the Charter of 1753 was issued to modify the Charter of 1726
but even this Charter did not contain significant provisions for legal training and legal education
of legal practitioners. The Regulating Act, 1773 and the Charter of 1774 contributed much to the
development on legal profession in India. The Regulating Act, 1773, empowered the British
Crown to establish a Supreme Court at Calcutta by issuing a Charter. In the exercise of this
power the British Crown issued a Charter in 1774 establishing the Supreme Court of Judicature
at Calcutta. The Charter of 1774 superseded the provisions of the Charter of 1753 and resulted in
the abolition of the Mayor's Court at Calcutta. In 1801 the Supreme Court was established at
Madras and in 1823 the Supreme Court was established at Bombay by the British Crown by
issuing Charters. Clause 11 of the Charter 1774 empowered the Supreme Court to approve and
enroll advocates and attorneys-at-law. The Supreme Court had power to remove any advocates
or attorney on reasonable cause. They were to be Attorneys of Record. They were authorized to
appear and plead and act for the suitors of the Supreme Court. This clause made it clear that no
other persons but advocates or attorneys so admitted and enrolled could appear and plead or act
in the Supreme Court for or on behalf of such suitors or any of them. The term "Advocate" then
extended only to English and Irish Barristers and members of the Faculty of Advocates in
Scotland and the term "Attorneys" then meant only the British attorneys or solicitor. Indian
Legal Practitioners were not authorized to appear before the Supreme Court. Similar provision
was made in respect of Bombay and Madras when the Supreme Court was established there. In
the Supreme Court at Bombay and Madras also only British Barristers, advocates and attorneys
were eligible for enrolment and, thus, the Indian Legal Practitioners were not authorized to
appear before the Supreme Court at Bombay and Madras.
The Bengal Regulation VII of 1793 created for the first time a regular legal profession for the
Company's Courts. The Regulation authorized the Sadar Diwani Adalat to enroll pleaders for the
Company's Courts. Under this regulation only Hindus and Muslims could be enrolled as
pleaders. Bengal Regulation XXVJI of 1814 also made provisions in order to organize the legal
profession. Bengal Regulation XII of 1833 modified the provisions of the earlier Regulations
regarding the appointment of the pleaders. It permitted any qualified person of whatever
nationality or religion to be enrolled as a pleader of the Sadar Diwani Adalat. The Legal
Practitioners Act, 1846 made provisions that the people of any nationality or religion would be
eligible to be Pleaders and Attorneys and Barristers enrolled in any of Her Majesty's Courts in
India and would be eligible to plead in the Company's Sadar Adalats. The Legal Practitioners
Act, 1853 authorized the Barristers and attorneys of the Supreme Court to plead in any of the
Company's Courts subordinate to the Sadar Courts subject to rules in force in the said
subordinate Courts as regard language or otherwise.
Charter Act of 1774 had permitted the English lawyers to practice in the Supreme Court of
Calcutta. In 1801, the English lawyers were allowed to practice in the Madras Supreme Court
and in the year 1823 they were allowed to practice in the Bombay Supreme Court, but Indian
Lawyers were not allowed to Practice in those courts. In 1826, these 3 Supreme Courts were
abolished and in that place High Courts were created.
The Indian High Courts Act, 1861, occupies an important place in the development of the
judicial administration in India. It empowered 'the British Crown to establish one High Court in
each Presidency Town. In the exercise of this power the British Crown issued the Charters to
establish the High Courts. After the establishment of the High Courts, the Civil Courts were
organized in Bengal, Assam and North-Western Provinces by the Bengal, Agra and Assam Civil
Courts Act, 1887. Subsequently, the Courts were organized in other Provinces also. The
Criminal Courts were organized properly by the Criminal Procedure Code of 1898. The High
Courts were empowered to exercise the power of superintendence over the Criminal and Civil
Courts in Mufussil.
In 1865, the Special Rights Act has conferred the right to the Madras, Bombay and Calcutta High
Courts to frame rules for the recognition of Advocates and for preparing the Advocates roll. The
Letter Patent of 1865 made provision in respect of the enrolment of the legal practitioners. The
High Court of Judicature at Fort William in Bengal was empowered to approve, admit and enroll
such advocates and so many advocates, vakil and attorneys as to the said High Court shall deem
fit. Such advocates, vakil and attorneys could appear for the suitors of the said High Court and to
plead or to act or to plead and act for the said suitors according to, as the said High Court might,
by its rules and directions, determine and subject to such rules and directions. The High Courts
not established by the Royal Charters were empowered by the Legal Practitioners Act, 1879 to
make rules as to the qualifications and admission of proper persons to be advocates of the Court.
Such High Courts were to make such rules with the previous sanction of the Provincial
Government. In 1866 the Chief Court of Punjab was established at Lahore. Section 10 of the
Punjab Chief Court Act, 1866 laid down qualifications of those who were permitted to appear
and act as pleaders in the Chief Court. After some years this was repealed.
05. Legal Practitioners Act, 1879
In 1879, the Legal Practitioners Act was passed to consolidate and amend the law relating to the
legal practitioners. It empowered an advocate or vakil on the role of any High Court or a pleader
of the Chief Court of the Punjab, to practice in all the Courts subordinate to the Court on the role
of which he was entered. The Legal Practitioners Act, 1879, authorized the High Court not
established under a Royal Charter to make rules with the previous sanction of the Provincial
Government as to the qualification and admission of proper persons to be pleaders and Mukhtars
of the High Court. The Chartered High Courts framed rules. According to the rules framed by
such High Courts apart from attorneys, there were advocates and vakils.
Advocates were to be the barristers of England or Ireland or Members of the Faculty of
Advocates of Scotland. The High Courts other than the High Court of Calcutta allowed even
non-Barristers to be enrolled as Advocates under certain circumstances, e.g., in Bombay law
graduates of the Bombay University could be enrolled as advocates. There were six grades of
legal practice in India after the founding of the High Courts – a) Advocates, b) Attorneys
(Solicitors), c) Vakils of High Courts, d) Pleaders, e) Mukhtars, f) Revenue Agents. The Legal
Practitioners Act of 1879 in fact brought all the six grades of the profession into one system
under the jurisdiction of the High Courts.
In 1923, an Advocates Committee was constituted under the leadership of Sir. Edward to study
the legal profession and to make suitable recommendations to improve the legal profession. This
committee has recommended for the creation of Bar Councils in each High Court and allowing
the “Vakils” to practice before the High Court.
Accepting the recommendation Indian Bar Councils Act was passed in 1926. This Act has paved
the way for the creation of Bar Councils in each High Courts. But the Bar Council was not
empowered to enroll Advocates, that power was retained with the High Courts. The function of
the Bar Council was only advisory and the rules and regulations made by the Bar Council shall
be brought into force only after the concurrence from the High Court.
06. Early Women in the Bar
In 1916, Ms Regina Guha passed her examination of B. L. from the University of Calcutta and
applied to Calcutta High Court for her enrolment as a legal practitioner. Their Lordships of the
Calcutta High Court observed that it was perfectly true that both, according to the etymological
sense and the context of the Indian Legal Practitioners Act, the word ‘person’ made a woman
eligible for enrolment as a legal practitioner. However, a full Bench decision of the High Court,
delivered on 29th August 1916, refused the enrolment of Regina Guha as a pleader. In 1921
another lady from Orissa, Ms Sudhansu Bala Hazra, filed a petition before the Patna High Court.
The judges again observed that there was no legal impediment to the enrolment of Ms Hazra as a
legal practitioner, but in the view of the fact that the Calcutta High Court, in 1916, had held that
such an enrolment was limited and confined only to the persons of the male sex, they could not
make a deviation. The Patna High Court judges took the view that the reference to a ‘person’ in
section 6 of the Legal Practitioner Act of 1879 did not include a ‘female’. At about the same
time, another woman law graduate, Ms Cornelia Sorabji, filed an application before the
Allahabad High Court, which allowed her to be enrolled as a duly qualified legal practitioner.
The position, thus, had then became anomalous. While a woman law graduate was duly enrolled
and practicing law in Allahabad in the same manner as a man, women in Calcutta or Patna still
did not have this prerogative.
Subsequently the Legal Practitioners (Women) Act, XXIII of 1923, removed this disability of
women. This was followed by a series of women legal professionals being registered at the High
Court of Allahabad. For example, Shyam Kumari Nehru, Leena Clarke and Begum Menakhi
Amina Farrukhi were registered in 1928, 1931 and 1933, respectively.
07. After Independence
After Independence in the year 1951, an Advocates Committee was constituted under the
chairmanship of Justice C.R. Das to study the problems in the legal profession and make suitable
suggestions to remedy such problems. This committee has made the following recommendations.
1. All India level, one Bar Council namely Bar Council of India and in each state, State Bar
Council should be created.
2. Power to enroll Advocates and disciplinary power against the Advocates should be
entrusted with the Bar Council.
3. Advocates should be allowed to practice throughout India without any discrimination.
The fifth Law Commission also scrutinized these recommendations and recommended for the
implementation of these recommendations. Accepting these recommendations, the Central Govt.
passed the Advocates Act in the year 1961 giving suitable provision for creation of Bar Councils
and the Bar Councils are entrusted with the power of regulating the legal profession.
08. The Advocate Act, 1961
The Advocate Act, 1961 was passed to redress long standing demands of the Indian Lawyers
Community. The main provisions of the Act are,
(1) The Act which extends to the whole of India provides a federal structure for legal profession.
It provides for a number of State Bar Councils and Bar Councils of India.
(2) It provides for only one category of lawyers to be known as advocates.
(3) An advocate is initially enrolled with a State Bar Council and a common roll of all the
advocates in the Country is maintained by the Bar Council of India. No advocate can get himself
enrolled with more than one State Bar Council, though he can get himself transferred from one
State Bar Council to another and is also entitled to appear before any court or tribunal throughout
the country.
(4) State Bar Councils consist of 15 to 20 members, elected by the advocates. The Advocate
General of the State concerned is the ex officio Member. Every State Bar Council has the
following committee,—
(a) Executive Committee
(b) Enrolment Committee
(c) One or more Disciplinary Committees
(d) One or more Legal Aid Committees
(e) Committees for Special Projects
The function of a State Bar Council are,
(1) To admit advocates on its roll,
(2) To entertain and determine cases of misconduct against advocates on its roll,
(3) To safeguard the rights, privileges, and interests of advocates on its roll,
(4) To conduct seminars, organize talks and publish legal periodicals,
(5) To organize legal aid for the poor,
(6) To perform any other functions conferred on it under the Act,
5. The Bar Council of India is the National body of lawyers. It consists of,
(a) The Attorney General of India
(b) The Solicitor General, and
(c) One member elected by each State Bar Council from amongst its members.
The Bar Council of India has the following committees,
(a) Executive Committee
(b) Legal Education Committee
(c) Disciplinary Committee
(d) One or more Committees for the purpose of carrying out the provisions of the Act
The functions entrusted to the Bar Council of India are,
(1) Laying down standards of professional conduct and etiquette for advocates and the procedure
to be followed by its Disciplinary Committee and the Disciplinary Committees of each State Bar
Council,
(2) Promotion of law reform,
(3) Supervisions and control over State Bar Councils,
(4) Promotion of legal education,
(5) Recognition of universities whose degree will qualify a person to be enrolled as an advocate
as well as recognition of foreign qualifications for the same purpose,
(6) Conducting of seminars and talks on legal matters and publishing of legal journals,
(7) Organizing legal aid for the poor,
(8) All other functions conferred by the Act.
The Advocates Act, 1961, materializes a long dream of the members of legal profession to have
an all India Bar and professional autonomy. The Act also achieves other connected objectives
such as the improvement of legal education and uniformity of standards.
09. Bar Council of India Rules, 1975
The Bar Council of India made the Bar Council of India Rules, 1975 in exercise of its rule
making powers under Section 7(1)(b) of the Advocates Act, 1961. These rules are related to (i)
Election of members of the Council, and different Committees, (ii) Administration of Council
and finance, (iii) Preparation and maintenance of the State Roll, (iv) Seniority in the State Rolls,
(v) Standards of professional conduct and etiquette and (vi) Disciplinary proceedings and
Review.
10. Other Major Developments
Advocate (Removal of Difficulties) Orders, 1963, 1966 and 1968 were introduced in exercise of
the powers conferred by sub-section (1) of Section 59 of the Advocates Act, 1961, by the Central
Government. Advocates (Right to Take up Law Teaching) Rules, 1979 was made by the Central
Government, in exercise of the powers conferred by Section 49-A of the Advocates Act, 1961
enabling the advocates to teach law not exceeding three hours while practicing. The Legal
Services Authorities Act, 1987 is made to constitute Legal Service Authorities to provide free
and competent legal service to the weaker sections of the society to ensure that opportunities for
securing justice are not denied to any citizen by reason of economic or other disabilities, and to
organize Lok Adalats to secure that the operation of the legal system promotes justice on the
basis of equal opportunities. The National Legal Services Authority Rules, 1995, was made in
exercise of the powers conferred by Section 27 of the Legal Services Authorities Act, 1987
explaining the qualifications, functions and powers of the Legal Services Authorities. The
Supreme Court Legal Services Committee Regulations, 1966 was made in exercise of the powers
conferred by Section 29 of the Legal Services Authorities Act, 1987 by the Central Authority
relating to the Supreme Court Legal Services Committee. Supreme Court Rules, 1966 are related
to the practice in the Supreme Court. The advocates who practise in the Supreme Court should
follow them. Supreme Court Bar Association Rules are applicable to the advocates who are the
members of the Supreme Court Bar Association. Advocates Welfare Fund Acts and Rules of
different States along with rules provide for various welfare measures to advocates.
ROLE OF JUDCIARY

The history of our own independence movement, if impartially written, will devote more pages
to lawyers than to the votaries of any other vocation. It is well accepted proposition that the
Profession of Law is a noble calling and the members of the Legal Profession occupy a very high
status.5The people of India regard lawyers as guardians of their freedom and their rights. The
legal profession has to crusade against injustice and exploitation and at the same time assist in
promoting changes and development in the law, to benefit the poor and the deprived. The
responsibility is heavy, because lawyers have to contribute not only to their purse (of course they
have to for their survival) but more so to the happiness of the mankind and ‘the other people’ in
the nation. One role of the lawyer in a common law system is to be a balance wheel, a
harmonizer, and a reconciler. He must be more than simply a skilled legal mechanic. In a larger
sense he must also be a legal architect, engineer, and builder and, from time to time, an inventor
as well.6Pathak C.J. of Supreme Court observes that “both Judges and Lawyers should heed the
growing disenchantment with the justice delivery.”7

In Swinfen v. Chempsford8, Pollock C.B., said: “we are all of the opinion that an advocate in the
English bar, accepting a brief in the usual way, undertakes a duty, but does not enter into any
contract or promise, express or implied. Case may indeed, occur where, on an express promise
he would be liable in assuming it; but we think a barrister is to be considered not making a
contract with his client, but as taking upon himself an offence or duty, in the professional
discharge of which not merely the client but the court in which the duty is to be performed, and
the public at large, have an interest.9

5
V.R. Krishna Iyer: “The Social Dimensions of Law and Justice in Contemporary India – The Dynamics of a New
Jurisprudence”, p.1.
6
C.RamaRao, &Vijaya Lakshmi Tayaru, Y.NnageswarwRao :Professional Ethics & Advocacy, Gayatri Books,
Vizag, p68.
7
Chief Justice Arthur T. Vanderbilt, stated that a lawyer has five functions. "Counselling, advocacy, improving his
profession, the courts and the law, leadership in molding public opinion and the useful fish holding of public office."
8
(1860) 5 H& N 890 cited in S.P. Singh, Law of Tort, Fourth Edition, Universal Law Publishing Co. (2008).

9
Ibid.
Similarly in Batcelor v. Pattison10 , Lord President said: “An Advocate in undertaking the
conduct of a cause in this court enters into no contract with his client, but take o himself an
offence in the performance of which he owes a duty, not to his clients only, but also to the court,
to the members of his own profession, and to the public it follows also that he cannot demand or
recover by action any remuneration for his service, though in practice he recived honoraria in
consideration of those service.11

The House of Lords in the Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd12., created the rule
of “reasonable reliance” by the claimant on the skills of the defendant. The house analyzed the
„duty to take care‟ as an integral part of the term negligence and observed thus: Where a person
is so placed that others could reasonably rely upon his judgment of his skill or upon his ability to
make careful inquiry, and a person takes it upon himself to give information or advice to, or
allows his information or advice to be passed on to, another person who, as he knows or should
know, will place reliance upon it, then a duty of care will arise.

House of Lords in an important case of Rondal v. Worsely13 where a new concept of public
policy was introduce as a ground for non-liability of a barrister. It was held by the House of
Lords that “a barrister was immune from action for negligence at the suit of a client in respect of
his conduct and management of a cause in court and the preliminary work connected therewith,
such as the drawing of pleadings.”

In this case V.C Rangadurai v. D. Gopalan14 the Supreme Court further held that it is against
professional etiquette for an advocate to hand over his brief to another lawyer unless the client
consents for the same. The relation between a lawyer and his client is highly fiduciary in nature
requiring a high degree of fidelity and good faith. A counsel’s paramount duty is to the client and
it is unprofessional to represent conflicting interest except by express consent of all concern after
a full discloser of facts. The applicant completely betrayed the trust reposed in him by the
complaints, which is highly reprehensible.

10
(1887) 3 R (ct. of Sess.) 914, cited in S.P. Singh, Law of Tort, Fourth Edition, Universal Law Publishing Co.
11
Ibid
12
(1964) AC 465.
13
(1969)1 AC 191 cited in S.P. Singh, Law of Tort, Fourth Edition, Universal Law Publishing Co. (2008).
14
AIR 1979 SC 281.
In Chandra ShekharSoni v. Bar Council of Rajasthan & Others15, in this case Supreme Court
held that no member of the legal profession can do anything which might tend to lessen in any
degree the confidence of the public in the fidelity, honesty and integrity of the profession. The
State bar Council gave the applicant the benefit of doubt on the first charge that he changed side
in a criminal case, holding that through such conduct on his part was unprofessional, it was not
tantamount to professional misconduct. The court held that the Disciplinary Committee of Bar
Council of India had rightly observed that it failed to appreciate the distinction drown by the
state Bar council as his act in accepting the brief for the accused after having appeared for the
complaint, was country Bar Council of India Rule 33.

The Supreme Court concurred with the decision of the Disciplinary Committee of the Bar
Council of India and held that it is not in accordance with professional etiquette for an advocate
while retaining the brief of one party, to accept the brief of other. It is unprofessional to represent
conflicting interest except by express consent given by all concerned after a full discloser of
facts. The applicant would not have appeared expert with the permission of the learned
Magistrate. Counsel’s paramount duty is to the client and where he finds there is conflict of
interested, he should refrain from doing anything which would harm any interest of his client. A
lawyer when entrusted which a brief is expected to follow the norms of professional ethics and
try to protect the interest of client in relation to whom he occupies a position of trust.

In Saif Ali v. Sydney Mithchel& Co16., it was held that a barrister‟s immunity from suit does not
extend to negligence in advising as to who should be joined as defendant and in setting
pleadings.

An Advocate v. B.B. Haradara& others17 the Supreme Court held that the applicant had not been
afforded reasonable and fair opportunity of showing cause inasmuch as the applicant was not
apprise of the exact conductof the professional misconduct attributed to him and was not aware
of the precise charge, he was require to rebut. The conclusion reached by the Disciplinary
Committee in the impugned order further shows that in recording the finding of the facts on the
three question, the applicability of the doctrine of benefit of drought and need for establishment
the facts beyond reasonable doubt, were not relished. Nor did the Disciplinary Committee
15
AIR 1983 SC 1012.
16
(1987) 3 All ER 933 (HL), cited in S.P. Singh, Law of Tort, Fourth Edition, Universal Law Publishing Co.
17
13 AIR 1989 SC 245.
consider the question as to whether the facts established that the applicant was acting with bona
fides or mala fides, whether the applicant was acting with any oblique or dishonest motive,
whatever there was any mens rea, whether the facts constituted negligence and if so whether it
constituted culpable negligence. Nor has the Disciplinary committee considered the question as
regard the quantum of punishment in the light of the aforesaid considerations and the exact
nature of the professional miscount established against the appellant. The impugned order passed
by the Disciplinary committee, therefore, cannot be sustained.

In this case, the question pertained to the ethics of the profession which the law as entrusted to
the Bar Council of India. It is their opinion in the case that must receive due weight. Now, it is
for the Bar Council of India to consider whether it would constitute an imprudent act, an unwise
act, a negligent act, or whether it constitute negligence and if so a culpable negligence or whether
it constitute a professional misconduct deserving severe punishment, even when it was establish
or at least not established beyond motive or with mala fides.

Duty of counsel should be careful in performing his professional duties. If counsel, by his act or
omission, causes the interest of the party engaging him, in any legal proceedings to be
prejudicially affected, he does so at his peril. In Manjit Kaur v. Deol Bus Service Ltd.18 the facts
were that Manjit Kaur whose husband had been killed in a motor accident, filed an appeal
through her counsel claiming enhanced compensation. The case remained on the daily list for
two weeks and then it was dismissed in default because the counsel failed toappear on behalf of
the client.

The application for re-hearing of the appeal also become time barred because the council did not
communicate with the party anything about the appeals for years. The High Court, keeping in
view the serious ailment of the counsel and the unconditional apology tendered by him, warned
him to be careful in future and directed him to return the fees received by him and also to
compensate the party for cost of Rs. 1000 awarded against the party for the rehearing of the
appeal.

18
A.I.R. 1989 P. & H. 183.
As the Supreme Court observed in Re SanjivDatta, Secretary, Ministry of Information and
Broadcasting,19 the legal profession is a solemn and serious occupation. The legal profession is
different from other professions since what the lawyers do affects not only an individual but the
administration of justice which is the foundation of a civilized society. In SanjivDatta, the
Supreme Court of India has expressed its deep concern on the conduct of the legal professional
and observed thus: We have been coming across several instances which can only be described
as unfortunate both for the legal profession and the administration of justice. It becomes,
therefore, our duty to bring it to the notice of the members of the profession that it is in their
hands to improve the quality of the service they render both to the litigant-public and to the
courts, and to brighten their image in the society. Some members of the profession have been
adopting perceptibly casual approach to the practice of the profession as is evident from their
absence when the matters are called out, the filing of incomplete and inaccurate pleadings –
many times even illegible and without personal check and verification, the nonpayment of court
fees and process fees, the failure to remove office objections, the failure to take steps to serve the
parties, at all. They do not realize the seriousness of these act and omissions. They not only
amount to the contempt of the court but do positive dis-service to the litigants and crate
embarrassing situation in the court leading to avoidable unpleasantness and delay in the disposal
of matters. This augurs ill for the health of our judicial system.20

In Jambunathan v. S. Velumuthan21 a legal professionals was working under the banner of Legal
Aid Cell, but was misleading others by describing himself as Official Legal Aid Organisation.
The complainant was victimized into believing and paying him Rs 7500 for the purpose of court-
fee. The court-fee paid was only Rs 30. The petition filed was also unless. He was held liable to
refund the amount and pay compensation of Rs 25,000. We have to condemn in the strongest
term the unscrupulous attempt to misuse and exploit the genuine legal aid organization for
operating upon the gullible member of the public.

In U.P. Sale Tax Service Association v. Taxation Bar Association, Agra & Other 22 in this case,
the Advocate instead of arming himself with armory of precedents, was armed with licensed

19
(1995) 3 SCC 619 at para 12.
20
WP (GRL.) NO. 796/2007 Judgment delivered on August 21, 2008.
21
(1995) 2 CPJ 64 NC.
22
AIR 1996 SC 98.
recover and was attending courts with license firearms. He pretended to provide himself with
recover to shoot in self- defense. The Supreme Court observed that it is regrettable that Advocate
attends Courts with firearms, it is not befitting to the dignity of the legal profession and the same
needs to be deprecated.

In Srimathi v. Union of India23 consumer Forums have jurisdiction to deal with claims of clients
against advocates for breach of duty or for refund of money. The case was under Sec. 6 (1) of the
Advocate Act, 1961 which deals with disciplinary matters. In Davivthan v. M.
Balachandran24the Kerala State Commission has been of the view that allegations of fraud and
impersonation against an Advocate by his client are not capable of being determined in a
Consumer Forum. The complainant alleged that he engaged an Advocate for filing a caveat and
that his Vakalatnama was misused for finding a suit. In the PrahladSarma Gupta v. Bar Council
of India25 Disciplinary Committee of Bar Council of India, held the applicant guilty of
professional miscount and imposed punishment of suspension from practice for a period of one
year.

In P.D. Gupta v. Ram Murti and Another26 the Bar Council of India was of the view that the
conduct of P.D. Gupta in the above circumstances was unbecoming of professional ethics and
conduct of an Advocate. The Bar Council observed in this Context as follows: “It is an
acknowledge fact that a lawyer conducting the case of his client, he has a commanding status and
exert influence on his client. As a member of the Bar it is common knowledge that lawyers have
started contracting with the client and enter into bargains that in case of success he will share the
result. A number of instances have been found in the cases of Motor Accident Claims. No doubt,
there is no bar for a lawyer to purchase property but on account of common prudence specially a
law knowing person will never prefer to purchase the property, the title of which is under doubt”
The Supreme Court of India observed that bar council of India, in the present case, has
considered all the relevant circumstances and has rightly come to the conclusion that Shri P.D.
Gupta is guilty of miscount and so he is suspended from practice for one year.

23
(1996) 3 CPJ 377 (TN).
24
(1997) 3 CPJ 307 (Ker).
25
(1997) 3 SCC 585.
26
AIR 1998 SC 283.
In R. Janardhana Rao v. G. Lingappa27, the applicant was an advocate of the other side than the
complainant. The applicant, after settlement repent of the dispute between his client and the
complaint took a loan of Rs. 3,000/- from the complaint. The post- dated cheque given by the
applicant- advocate, for the repayment of the loan to the complainant bounced. It was held by the
Supreme Court that the applicant had not taken the loan in his professional capacity as an
advocate. The bouncing of the cheque could attract civil and also criminal liability under Section
138 of the Negotiable Instrument Act. The applicant, through an advocate, could not be held
liable for any professional misconduct.

In Sardul Singh v. Pritam Singh & Others28 in this case Supreme Court held that the miscount on
the part of the respondent was very grave and the BCI in its initial order was justified in
imposing the punishment of supervision for three years.

The public impact of the legal profession can be gauged by the observation by the Supreme
Court in All India Judges Association v. Union of India, wherein it was expressed that the
administration of justice and the part to be played by the advocates in the system must be looked
into from the point of view of litigant public and the right to life and liberty guaranteed under
Article 21 and right to grant legal aid as contemplated under Article 39A of the Constitution. The
aspect of the advocate as a public servant is closely tied to the fact key role he plays in the
developmental and dispute-processing activities and, above all, “in the building up of a just
society and constitutional order.”[13] Being the custodian of the monopolistic power statutorily
granted by the nation, the lawyer is obligated to rise to the expectations of him in being a
member of the society worthy of confidence of the community in him as a vehicle of social
justice.

At the outset, it is necessary to appreciate the role an advocate plays in the society. The
development of lawyers as a class of professionals can be attributed to the need for trained
persons who can form the competent interface to facilitate the interaction between the lay
persons and the judiciary. This involves providing legal advice in matters of rights, liberties or
property of the client within the framework of legislative and legal rights, and representing the

27
A.I.R 1999 S.C. 780.
28
(1999) 3 SCC 522
client in the event of a dispute before an adjudicatory body. In fact, if law is viewed as a ‘public
good’ which is frequently technical and not self-executing, meaningful access to law requires the
assistance of a lawyer. Particularly, in most jurisdictions, the members of the legal profession are
conferred the status of privileged members of the community, and occupies an exclusive domain
with the privilege of pleading and acting on behalf of suitors being restricted only to enrolled
advocates and attorneys. This monopolistic character of the legal profession entails certain high
traditions which its members are expected to upkeep and uphold. Therefore, the lawyer plays an
indispensible role in the mechanism of administration of justice.
However, the lawyer has a particularly onerous and multi-dimensional role to fulfill. As
expressed by Mathew, J., “A Counsel has a tripartite relationship: one with the public, another
with the court, and the third with his client. That is a unique feature. Other professions or callings
may include one or two of these relationships but no other has the triple duty.”[1] The
satisfaction of the obligations and expectations arising out of these three relationships are
frequently difficult to reconcile. The role of the advocate in these three capacities requires a
closer scrutiny.
The lawyer, as a professional, to some extent, acts on behalf of the client, and representing the
client. This is particularly relevant in an adversarial system of adjudication followed by common
law countries which is characterized by a neutral adjudicating authority, which, on the basis of
the arguments and evidence placed before it, arrives at a conclusion. The role of an advocate in
an adversarial system, therefore, is to represent the case of the client before the adjudicating
authority.
As a professional, the functional role of an advocate, in essence, is comparable to that of a legal
technician. An advocate is specially trained in the technical profession of ‘law’, and with his
grasp over the subject matter; professional function consists largely of providing counsel for
clients about how to escape or mitigate the incidence of the law’s obligations, availing of the
loopholes and the ambiguities of law. An advocate is essentially an adviser to his client. The
contractual arrangement creates an obligation on the part of the advocate to offer sound legal
service, and place before the court all that can fairly and reasonably be submitted on behalf of his
client. The oft-quoted comment of Lord Reid in the celebrated case of Rondel v. Wo¬¬rley
succinctly conveys the essence of the duty of an advocate towards his client: “Every counsel has
the duty to his client fearlessly to raise every issue, advance every argument, and ask every
question, however distasteful, which he thinks will help his client’s case”.[2] More importantly,
he should not let his personal opinion, or considerations of unpleasant consequences or reactions
that he may expect to face in the performance of his duty towards his client affect the quality of
services he provides to the client.
At the same time, it would be erroneous to view an advocate as merely a professional – that
would lead to the risk of degenerating the legal profession into a trade or mere sordid pursuit for
livelihood and accumulation of wealth, with professionals indulging in “briefs merchandise”.[3]
It must be clarified that an advocate is obligated to act so as to protect and uphold the interest of
his client by all fair and honorable means. As has been frequently emphasized, he also acts in the
capacity of an officer of the Court. The role of advocates as officers of the Court is to assist the
Court in the administration of justice. Lawyers collect materials relating to a case and thereby
assist the Court in arriving at a correct judgment. Furthermore, being a responsible officer of the
court and an important adjunct of the administration of justice, the lawyer also owes a duty to the
court as well as the opposite side. [4]
The Bar and the Bench constitutes the two wheels of the carriage of justice. The success of the
judicial process often depends on the services of the legal profession. The function of both the
Bar and the Bench in an adversarial system of dispute resolution are clearly made out, and the
need for a dynamic relationship of co-operation between the two is acute. Advocates, as
members of the Bar and officers of the Court, have the responsibility of ‘keeping the stream of
justice pure and unsullied’ so also to enable it to administer justice fairly and to the satisfaction
of all concerned. [5] This involves two aspects – firstly, to uphold the dignity of the judicial
office and maintain a respectful attitude towards the Court, and secondly, to ensure that under no
circumstance, any illegal or improper means is used to mislead the Court.
The primary duty of the lawyer is to inform the court as to the law and facts of the case and to
aid the Court to do justice by arriving at correct conclusion. Since the court acts on the basis of
what is presented by the advocates, the advocates are under the obligation to be absolutely fair to
the Court. All statements should be accurate, and the advocate is under a sacrosanct obligation to
ensure that he does not, through any act or omission lead to the possibility of misrepresentation,
or mislead the court or obfuscate the case in any manner. Good and strong advocacy by the
counsel is thus necessary for the good administration of justice. [6] What is imperative to be
borne in mind is that the legal profession cannot be considered like any other profession, or trade
or business. It is a noble profession, which is intended to serve the cause of ‘justice’. The
difference between the legal profession and other professions lies in the fact that what lawyers do
affects not only an individual but the administration of justice which is the foundation of the
civilized society. [7]
As observed, the advocate owes a duty to his client in the capacity of a professional, and towards
the Court in the capacity of an officer and the friend of the Court. However, this may and often
does lead to a conflict. In cases of conflict, as far as possible, the advocate tries to balance his
competing obligations. However where the conflict is irreconcilable, as an officer of the court
concerned in the administration of justice, he has an overriding duty to the court, to the standards
of his profession, and to the public. [8] the most frequently quoted observation capturing the
essence is the statement of Lord Denning: “It is a mistake to suppose that he is the mouth piece
of his client to say what he wants: or his tool to do what he directs. He is none of these things. He
owes allegiance to a higher cause. It is the cause of truth and justice.” It follows from this, that an
advocate is under an obligation to ensure that he does not consciously misstate the facts or
knowingly conceal the truth. He has the duty to present before the Court a fair picture of the case
of his client to help the Court to arrive at a judgment in the dispute. This includes producing all
the relevant authorities, even those that are against him. He should not shy from producing all the
relevant documents, even those that are fatal to his case. In case of conflict between the most
specific instructions of his client and is duty to the court, the latter takes precedence. [9] This
imperative stems not from a code of law, but a higher code of honor, which, if disregarded,
offends not only the rules of the profession, but strikes at the heart of the confidence of the
public in the judicial system itself. As it was observed in Dhananjay Sharma v. State of Haryana,
“such conduct … has the tendency to shake public confidence in the judicial institution because
the very structure of an ordered life is put at stake.”[10] If people lose confidence in the
profession on account of the deviant ways of some of its members, it is not only the profession
which will suffer but also the administration of justice as a whole. [11] It is for this reason, that
the role of an advocate as a professional has to be examined in light of the role of an advocate as
an officer of the Court, and the obligations of an advocate as an officer of the Court are
paramount.
Dimensions of Professional Ethics – Contempt of Court and the Bar-Bench Relationship

CONCLUSION

Viewed in this context, it can be said that the lawyer is indeed the channel through which the
general public can access the law, and avail of the protection of the law, in the shrine of justice.
The present day legal profession is manifestly politically superior to any other profession,
considering the number of incumbents dealing in the political power of both the Central and
State Governments. The moral integrity it commanded during the freedom movement lead by
Mohandas Karamchand Gandhi could not, however, be maintained properly. The legal
framework is strong, but not well founded as repeal of Advocates Act, 1961 is under
consideration and as a substitute ‘The Legal Practitioners (Regulations and Maintenance of
Standards in Professions, Protecting the Interest of Clients and Promoting the Rule of Law) Act,
2010’ was introduced as a Bill in the Parliament, but is kept in cold Storage due to strong
opposition.

It may well be concluded that the future of legal profession shall be one with legal and moral
accountability both to the client and the people in general.