Module 1

A birds eye view of the Syllabus :

Introduction : Legal profession has become an

inextricable part in the administration of justice. But the utility of legal profession can be justified by maintaining public confidence in the fidelity , honesty, and integrity of the individual members of the profession. Strict adherence by the members of the profession to the high tradition of the bar , the code of conduct and etiquette is necessary . A new entrant needs guidance.

 Ethics : is nothing but the idea of what is right and

what is wrong in conduct . Practice of ethics made the legal profession noble and honourable. But it is felt that the greatness , nobility and honour of the legal profession has degenerated fast in recent times. The reason is gradual disappearance of the code of ethics from the barand the profession is treated as a pursuit for livelihood and accumulation of wealth.

 Law is a learned profession

A lawyer is not learned if his learning is confined only

to the law reports and the statutes. No other profession touches human life at so many points. Advocates are the guardians of the two most precious things in life justice and liberty.

 Genesis of Advocacy : the institution of trained

lawyers is of ancient origin in Europe as well as in the East.---They are engaged by the litigants to appear on their behalf in the law courts. Greece : a person is allowed to appear gratuitously in court to speak on behalf of a litigant , if he is a friend or relative and who is unable to conduct his case due to illness or otherwise.their also existed the institution of speech composers for fees for their clients .

 Rome : the patron and client relationship existed in

early times to defend the client in court when his liberty and property are threatened. Jurist Consults : gave advice out of court gratuitously to litigants for gaining influence and popularity. Agents : charge fee for appearing in court for legal assistance . England : for centuries legal knowledge was a monopoly of priests. They alone had the privilege of appearing in causes on behalf of the clients.

 Henry 3rd : in 1181 appointed persons of clerical

training as attorneys.but their functions were not exactly defined. Edward one : the order of serjeant (a man of law, one who serves, derived from a French expression Serviens) was created to represent the litigants in courts . Inns of court were established for training apprentices in law to become serjeants.Inner Temple , Middle Temple , Lincolns Inn , & Grays Inn .

 Legal education imparted at the four Inns since 1852. A representative Bar Committee set up in 1833 was

replaced by the General Council of the Bar in 1894. Its chief duty is to lay down rules of professional etiquette In England there exist two types of legal practioners. Barristers derive power to practice from Inns of Court --not accept contentious business with out the intervention of a solicitor. Solicitors roll is kept by the incorporated law society. Both are governed by the same core duties:

 Fairness, competence, loyalty, confidentiality,

reasonableness and service to the poor. The concept of oath was common to Europe. Lawyers who are allowed to plead shall be men of probity, character, and known repute. A lawyer defective in his duty shall be discarded, rendered incapable of ever after pleading, and moreover punished in proportion to his offense.

 USA: Till 1875, there was no formal academic

requirement to become a lawyer. Hoffman .J of Baltimore wrote the first regulatory code justice should be the only motivation of lawyers --lawyers must have humility regarding their own knowledge of the law. --must quote the law objectively with honour. --lawyers reasoning should be objective and creative. The American Bar Association approved the canons of professional ethics in 1908 which continued till 1960s .

 The six traditional core duties identified by ABA are:

1. litigation fairness 2. loyalty 3. confidentiality 4. competence 5. reasonable fee and 6. public service. Like begets like therefore , purity of the Bench depends upon the purity of the Bar.A degraded Bar inevitably produces a degraded Bench.

Legal Profession in India Development

Ancient India : the institution of men learned in law who represent litigants in courts is of ancient origin. A mention is made to that extent in the writings of Narada, Vrihaspati, Katayana, Manu, & sukra. Appearance is permitted only to a relative or appointed agent. Charging of fee was considered dishonourable. But the modern legal profession in India owes its origin to British system.

 First British Court in Bombay: the history of modern

legal profession in India starts with the establishment of first British Court in Bombay in 1672 Mayors Courts : also known as Crown Courts established in the three presidency towns in 1726 up held : 1. the need of attorney to protect his clients 2.the right of the court to dismiss an attorney guilty of misconduct.

 The Supreme Court:

- The Regulating Act 1773-the Crown was empowered to establish the Supreme Court . - Established at Fort William, Calcutta in 1774 - In Madras in 1801 and - In Bombay in 1823 - These Supreme Courts were authorised to admit, curtail and remove advocates and attorneys at law - to appear and plead for suitors before them.

- Advocates are English and Irish Barristers & advocates

-

of Scotland. Attorneys are British solicitors. The S/Cs administered only the common law & equity Courts in Mofussil Areas : The Bengal Regulation 1793 recognised the law as a public profession organised & controlled by the govt. in India. Power to regulate legal practitioners in Companys Courts .

- power to appoint & dismiss vakils in the Sadder Dewani Adalut. - for appointment as a vakil the candidate should be a Hindu or Muslim; - take an oath of faithful discharge of professional responsibility; - a separate Bar appointed for each court; - daily & regular attendance of vakils in their respective courts was obligatory; - leave on medical grounds

 The scale of fee : prescribed for different kids of cases

- a retainer fee of four annas for first appearance and receipt for the same. - litigant to furnish security for payment of vakils dues. The Legal Practitioners Act 1846 : made three changes in the law relating to legal practitioners. -1. Barristers hither to confined to the Supreme Courts were permitted plead in any of the Companys Courts -2. the office of vakil was thrown open to all, if qualified - 3. liberty to settle the fees by private agreement

 The LP Amend. Act 1850: allowed pleaders of civil

courts to defend the accused in criminal cases. The LP Act 1853: no compulsory attendance to court except at hearing of a cause. Establishment of the High Courts: the Indian High Courts Act 1862 - in Calcutta, Bombay and Madras Later in Allahabad(1886), Patna (1916) & Lahore (1919) These H/C benches were designed to combine S/C & Sudder Court traditons.each H/C was given power to make rules to enroll advocates, vakils & attorneys.

 Kinds of legal practitioners: As time passed , a

hierarchy of lawyers of varying degrees, privileges and disciplinary jurisdictions came into being. They are: -1. Advocates English barrister & attorney or solicitorsome H/Cs allowed non barristers also as advocates. -2. Vakils Indian law graduates a vakil of 10 years was allowed to sit for the advocates examination. -3. Pleaders- non law graduates. Ie mere graduates -4. Mukhtars-Matriculates-in Subordinate Courts-due to dearth of law graduates & to provide legal assistance at cheap fees.

-5. Revenue Agents practice confined to revenue offices controlled by the chief controlling revenue authority. -6. Income Tax Practitioners-not covered by the LP Act In course of time efforts were made for uniform Bar. Indian Bar Committee (Chamier committee) was appointed in 1923 to submit a proposal for - Constituting Indian Bar , on all India basis or provincial basis - To signify the position of Bar Councils vis--vis H/Cs

- Removal of existing disparities between legal practitioners in particular barristers & vakils. The Bar Councils Act, 1926: - a step towards unification of the Indian Bar - provided for establishment of bar councils by H/Cs - did not provide for all India Bar Council on the ground of impracticability -conferred power on bar councils to regulate admission of advocates - to regulate discipline of advocates

- to regulate legal education & examination The Legal Practitioners Fees Act 1926: - conferred a right on legal practitioner to sue for his fee - legal practitioners liability to be sued for failure to discharge professional duties. Advocates Act 1961: -the govt. of India appointed all India Bar Committee in 1951 under the chairmanship of justice SR Dass of SCI -the IBC submitted its report in 1953 - the Parliament incorporated recommendations of

Of the Committee in the Advocates Act -the AA has 1. unified & codified the legal profession -2. made the profession autonomous in the management of its affairs both on all India as well as state basis.

Practice of Law- A Right or Privilege

All rights attached to the office of advocate under law

and usage are his privileges. - practice of law is not a natural right of persons possessing legal Knowledge - privilege of audience in court on behalf of the party Sec. 340 CrPC lays down that -every person accused of an offence or against whom proceedings are instituted under CrPC in criminal court may of right be implead by a pleader.

 Order 3 Rule 1 CPC lays down that

- any appearance , application or act in any court may be made or done by the party in person or by agent or pleader on behalf of the party if the law does not prohibit . Art. 22(2) declares - an arrested person shall not be denied the right to consult and to be defended by a legal practitioner of his choice.

 Sec. 30 Advocates Act 1961 lays down that

- subject to the provisions of the Act, - every advocate in the common roll shall be entitled as of a right to practice through India 1. In all the courts including the Supreme Court, 2. Before any Tribunal or person legally entitled to take evidence and 3. Before any other authority or person if a statutes says that a person shall be heard by himself or in person , he cannot appear by agent or counsel.

 An Advocate has privilege to

- Act - Exercise independent judgment as to how he shall

conduct the case - Authority to make admission - Abandon an issue or part of the claim - Compromise - Refer the matter to arbitration Unless expressly prohibited by the client.

 Words spoken by an advocate in his professional capacity

in the course of a judicial inquiry or in the examination of a witness are privileged Provided the advocate acted in good faith & did not go beyond what was fairly necessary Not entitled to protection against defamation u/s 499 IPC An Advocate has privilege of exemption from arrest , under civil process , other than the process of contempt of court , while going to the court ,attending the court, or returning from the court. S. 135(2) available even to theclient

 An advocate in actual practice is exempted from

serving on as a juror or assessor to enable the advocate to attend to his duties with promptness S.320 CrPC. No liability for negligence but liable for his clerks misconduct , negligence or fraud . privilege to occupy the seats provided for the advocates when attending to the judicial activity.

Practice of law is a profession, not a business

Advocacy is not a vocation for private gain but is an

institution created by the state for public good. advocacy is a branch of administration of justice and not a mere money making occupation.the Canadian code of legal ethics. in fixing fees it should never be forgotten that profession of law is a branch of administration of justice and not a mere money- making tradecanon 12 of ABA.

 Distinguishing features

--organization of its members for the performance of their functionsnot simply a collection of individuals --maintenance of certain standards , intellectual and ethical for the for the dignity of the profession. --subordination of pecuniary gains to efficient service. Thus , in business the sole object is to make money and there is no social obligation except to himself. In profession money making is incidental

 However , the present trend appears to be more &

more commercialization of legal profession .high fee charged ambulance chasersthe profession is bound to suffer. Legal profession can be called a noble profession only when lawyers give effect to fiat justicia ruat coelum let justice be done even though heavens fall. In Dr. Haniraj L. Chulani V. Maharashtra & Goa 1996 the S/C held that Art. 19 (1) (g) does not include legal profession.

Solicitors firm whether an industry

The distinguishing feature of an industry whether for

production of goods or for rendering of services is that -- cooperation between the capital & labour ie employer & his employees --it must be direct & essential. As defined u/s 2 (j) of the ID Act 1947, industry means any business , trade , undertaking , manufacture or calling of employees and --includes any calling of service , employment, handcraft or industrial occupation or avocation of workmen

 Thus , industry as defined in ID Act has wide import. But the S/C in National Union of Commercial

Employees V. MR Meher , Industrial Tribunal 1962 Observed that in a solicitor's firm there are different categories of servants such as clerks , stenos , menial staff each assigned separate duties and functions . -- there is no doubt a kind of cooperation between the solicitor and his employees. --but that cooperation has no direct or immediate relation to the professional service rendered by the solicitor .

-- therefore a solicitors firm carrying on the work of an attorney is not an industry .issue of payment of bonus. However, it was overruled in Bangalore Water Supply & Sewerage Board V. A.Rajappa 1987 -- when cooperation is direct & essential it is industry -- but in liberal professions like medicine, advocacy and clergy, the service is special or peculiarintellectual & educational equipment which is indirect & inessential not an industry. The correct position is that a solicitors firm is an industry if it employs 10 or more persons.

 According to S. 2 (c) of the ID Act industry does not

include any activity being a profession practiced by an individual or body of individuals less than 10.

Module 2
Admission and Enrolment of Advocates: Eligibility for enrolment : S. 24 a person shall be

eligible to be admitted as an advocate on a state roll , if he is --1. a citizen of India --2. completed the age of 21 years --3. obtained a degree of law, issued by an Indian university & recognised by the BCI --4. pays the requisite fee & stamp duty RS 600 to SBC & 150 to BCIfor SC&ST it is 100 & 25

 A pleader or a vakil & who is a law graduate can also

enroll his name in any State Bar Council S.25 application shall be made in the prescribed form to the State Bar Council Within whose jurisdiction the applicant proposes to practice. S.26 Disposal of application the SBC shall refer every application received for enrolment to its Enrolment Committee. The Committee will proceed to dispose application on merits .

 It can reject the application for enrolment after

seeking opinion of the BCI & after giving notice to the applicant . If misrepresentation , fraud or undue influence is detected, the name of such advocate be removed from the roll after giving an opportunity of being heard. Refusal to enroll shall be communicated to all the State Bar Councils. S. 27 A rejected applicant shall not be enrolled by any SBC except with previous consent of that SBC or BCI .

 SBC may remove from its roll: S. 26-A

a. the name of an advocate who is dead or b. an advocate from whom a request has been made. S. 28 A SBC has power to frame rules regarding enrolment - such rules become enforceable if approved by the BCI Disqualification : S. 24-A -- a person convicted of any offence involving moral turpitude --convicted under Protection of Civil Rights Act

--Dismissed or removed from office or employment of the State --disqualification under 1 & 2 ceases 2 years after release from such conviction Case law 0n enrolment: In Haniraj L Chulani V. Bar Council of Maharashtra & Goa 1996 The S/C held that the rule restricting the entry of person already in other profession is not arbitrary not violative of Arts. 14 , 19(1) (g) & 21

 In Indian Council of Legal Aid & Advice V. BCI 1995

It was held that debarring enrolment of a person

completing the age of 45 on the date of enrolment is beyond the rule making power of the BCI. In V Sudheer V. BCI 1999 it was held that preenrolment training & apprenticeship were ultra vires In Anees Ahmad V. University of Delhi 2002 the Delhi H/C held that no full time law teacher drawing regular salary can enroll as an advocate.

 In Smt. Manjula . BR & others V. Karnataka SBC 2002

the petitioners studied law in Rajiv Gandhi College of Law , Malleswaram , Bangalore, affiliated to Bangalore University denied enrolment on the ground that their college was not having BCI approval of affiliation held not necessary denial of enrolment illegal of S. 24 of advocates Act. Senior Advocate : S. 16