Senior Advocates : Ethics and Duties -
P.S. Khurana*
Legal
education in
(1) a 3-year LL.B program which requires a
prior graduate degree ; and
(2) a 5-year integrated B.A., LL.B. program
which can commence immediately after secondary school. Some Universities offer
both the five-year and three-year degree program1.
The
advocates enrolled in India are only entitled to ‘practice the profession of
law’, which includes not only appearing before courts and giving legal advice
as an attorney, but also drafting legal documents, advising clients on
international standards and carrying out customary practices and transactions2.
At the
State level the Bar Council of India perform oversight functions and lays down
standards for enrolment etc. Typically, each State has its own Bar Council
which regulates the admission and removal of names from its rolls. Enrolment
with a State Bar Council as an ‘Advocate’ renders a lawyer eligible to practice
before all Court and Tribunals in India3.
The
Advocates Act distinguishes between two types of Advocate. Senior Advocate and
Advocate. A Senior Advocate is designated by the Supreme Court or any High
Court based on his ability or special knowledge4.
Section 16 of the Advocates Act reads
as :-
“16. Senior
and other advocates :-
(1) there
shall be two classes of advocates, namely, senior
advocates and other advocates.
(2) An
advocate may, with his consent, be
designated as
*B.Sc., LL.B., LL.M. Advocate, Supreme Court of India and Punjab &
Haryana High Court at
senior advocate if the Supreme Court or a High Court is a opinion that by
virtue of his ability [standing at the Bar or special knowledge or experience
in law] he is deserving of such distinction.
(3) Senior
advocates, shall in the matter of their practice, be subject to such
restrictions as the Bar Council of India may, in the interest of the legal
profession, prescribe.
(4) An
advocate of the Supreme Court who was senior advocate of that Court immediately
before the appointed day shall, for the purpose of this section, be deemed to
be a senior advocate :
[Note :- Added by Act 21 of 1964, sec. 8) Provided that where any such senior
advocate makes an application before the 31st December, 1965, to the
Bar council maintaining the roll in which his name has been entered that he
does not desire to continue as a senior advocate, the Bar Council may grant the
application and the roll shall be altered accordingly]”.
The provision provides for the
division of the Bar into Senior Advocates and other advocates. The status of a
Senior Advocate is conferred by the Supreme Court or a High Court on merit
only. A Senior Advocate is prohibited
from accepting certain kinds of minor legal work like drafting, notices,
affidavits etc. A saving provision has
been made in respect of the existing senior advocates of the Supreme Court who
will continue to be designated as Senior Advocate5.
The lawyers practicing in District
Courts are equally eligible for consideration for the purpose of conferment of
the distinction being Senior Advocate subject to their fulfilling the
pre-requisite condition laid down6.
Once the distinction between Senior
Advocate and other advocates in recognized under the provision of the Advocates
Act, wearing of a distinct gown or a coat by Senior Advocate with a different design
cannot be assailed as discriminatory or violative of Article 14 of the Constitution
of India7.
An Advocate’s duty is as important as
that of a Judge. Advocates have a large responsibility towards the
society. A clients relationship with
his/her advocate is underlined by utmost trust. An advocate is expected to act
with utmost sincerity and respect. In
all professional functions, an advocate should be diligent and his conduct
should also be diligent and should conform to the requirements of the law by
which an advocate plays a vital role in the preservation of the society and
justice system. An advocate is under a obligation to uphold the rule of law and
ensure that the public justice system is enabled to function at its full
potential. Any violation of the principles of professional ethics by an
advocate is unfortunate and unacceptable.
Ignoring even a minor violation / misconduct militates against the
fundamental foundation of the public justice system. An advocate should be
dignified in his dealings to the court, to his fellow lawyers and to the
litigants. He should have integrity in
abundance and should never do anything that erodes his credibility. An advocate
has a duty to enlighten and encourage the juniors in the profession. An ideal advocate should believe that the
legal profession has an element of service also and associates with legal
service activities. Most importantly, he
should faithfully abide by the standards of professional conduct and etiquette
prescribed by the Bar Council of India in Chapter II, Part IV, of the Bar
Council of India Rules8.
The Senior Advocate is expected to act
with much more higher standards of professional conduct and etiquette.
A Senior Advocate shall not file a
Vakalatnama or act in any Court or Tribunal, or before any person or other
authority9. A Senior Advocate
shall not appear without an Advocate on Record in the Supreme Court or without
an Advocate in any Court or Tribunal etc.10. A Senior Advocate shall
not accept instructions to draft pleadings or affidavits, advice on evidence or
to do any drafting work of an analogous kind in any Court. He shall not undertake any conveyancing work
of any kind whatsoever. But he can do these work in consultation with an
Advocate11.
A Senior Advocate shall not accept
directly from a client any brief or instructions to appear in any Court or
Tribunal or before any person or other authorities in India12.
A Senior Advocate who had acted as an
Advocate in a case, shall not after he has been designed as a Senior Advocate advise
on ground of appeal in Court of Appeal or in the Supreme Court, except with an
Advocate13.
A Senior Advocate may in recognition
of the services rendered by an advocate appearing in any matter pay him a fee
which he considers reasonable14.
Though this is not mandatory, but it has become a moral and professional
duty of the Senior Advocates to promote, educate, guide and encourage the
junior advocates to learn the professional skills and financial support for
their sustenance in their nascent stage of career.
2. Debbie Legal,
Opening up the Indian Legal Market: A New Era Dawns for the World’s Largest
Democracy as the Legal Services Market Begins Its Journey to Liberalisation. 63
No. Int’l B. News 29.
3. Section 30, Advocates Act, 1961.
4. Section 16, Advocates Act, 1961.
5. S.O.R. Gazette of
7. AIR 2002
8. O.P. Sharma &
Ors. Vs. High Court of Punjab & Haryana, Criminal Appeal No. 1108-1115 of
2004, decided on 09.05.2011
9. Bar Council of
10. Bar Council of
11. Bar Council of
12. Bar Council of
13. Bar Council of
14. Bar Council of
ReplyDeleteThis article by Adv PS Khurana of designated Sr. Advocate visa-a vis other members of his legal fraternity. Having achieved the designation of becoming Sr.advocate not only enhances the honour and image before the bench and bar but also entails more responsibilities professionally and ethically to set an example to be followed by other
Regards Sharanjit Budhiraja.
THANKS SIR FOR THE VALUABLE INPUTS AND WORD OF APPRECIATION
ReplyDelete