MODULE 2

1. NORMS OF PROFESSIONAL ETHICS AND DUTIES OF ADVOCATES

Introduction-

Professional ethics are the moral guidelines that lawyers and advocates must follow
in their practice. These ethics ensure fairness, justice, and the upholding of the law.
They are crucial for maintaining the integrity of the legal profession.
Advocates have the dual responsibility of upholding the interests of the client
fearlessly while conducting themselves as officers of the court. Accordingly, they are
expected to adhere to the highest standards of probity and honour.
-An advocate’s service to the common man should be compassionate, moral,
and lawful.

Meaning of Professional Ethics-

-Professional Ethics refers to a collection of guidelines that an aspiring lawyer must

adhere to. These guidelines govern the behaviour and actions of practising lawyers,
encompassing their interactions with themselves, clients, opposing parties and the
court.
-Ethics are the moral principles that serve as standards for a lawyer’s conduct.
Professional Ethics serves as a foundation for any profession, embodying the
fundamental values upon which the legal profession is constructed.

-Professional ethics play a crucial role in the legal profession in India, serving as the
bedrock for upholding the rule of law and justice.
-They ensure that lawyers and advocates adhere to legal principles and procedures,
thereby preserving the justice system’s integrity. Legal professionals contribute to a
just and orderly society by upholding the rule of law.

-Professional ethics are essential for maintaining public trust in the legal profession.
When lawyers and advocates conduct themselves ethically, the public’s confidence in
the legal system is reinforced.
-This trust is vital for the effective functioning of the legal system in India.
-Professional ethics require legal professionals to provide fair and impartial
representation to their clients.
-By upholding ethical standards, lawyers ensure that justice is not only served but
also perceived as fair and unbiased.
-Professional ethics promote integrity and accountability within the legal profession.
Lawyers are expected to act honestly, ethically and with the utmost integrity in all
their professional dealings.
-Adherence to ethical standards fosters a sense of responsibility and accountability,
enhancing the legal profession’s reputation.
Code of Conduct Prescribed for Advocates

The Advocates Act of 1961 is legislation aimed at amending and consolidating laws
about legal practitioners in India.
It provides guidelines for the establishment of Bar Councils and the All-India Bar.
The Act outlines various duties and responsibilities for advocates, including:
 Prohibition of Advertising and Soliciting Work: Advocates are prohibited from
engaging in advertising or soliciting work.
 Prohibition of Demanding Fees for Training: Advocates cannot demand fees for
providing training.
 Consent for Entering Appearance: Advocates must obtain the consent of an
already engaged advocate before entering an appearance in a case.
 Prohibition of Unauthorised Use of Name or Services: Advocates are not
permitted to use their name or services for unauthorised practices.

Duties of Advocates
The Bar Council of India has the power to make rules under Section 49 of the
Advocates Act, 1961 regarding professional standards that advocates must adhere to.
These rules contain a range of conducts that an advocate must adhere to. Some of
the key rules include:

A] Advocate's Duty Towards the Court

An advocate, as an officer of the court, is expected to uphold the dignity and integrity
of the legal profession. Here are some key duties of an advocate towards the court:

1. Dignified Conduct: An advocate should conduct themselves with dignity and

decorum, both inside and outside the courtroom. This includes maintaining a
respectful demeaner towards the court, opposing counsel, and other legal
professionals.

2. Respect for the Court: Advocates must show respect for the court and its
processes. This involves addressing the court with courtesy, avoiding disrespectful
language, and adhering to court rules and procedures.

3. Avoiding Private Communications: Advocates should refrain from private

communications with judges regarding pending cases, as this could undermine the
impartiality of the judicial process.

4. Ethical Conduct: Advocates must avoid engaging in any illegal or unethical conduct,
such as bribery, coercion, or threats, to influence the outcome of a case.
5. Refusal to Act Illegally: Advocates should refuse to engage in any illegal or
unethical behaviour, even if instructed to do so by their clients. They must prioritize
the integrity of the legal profession over personal gain.

6. Proper Attire: Advocates should adhere to the prescribed dress code while
appearing in court. This ensures a dignified and professional appearance.

7. Avoiding Conflicts of Interest: Advocates should avoid representing clients in cases

where they have a conflict of interest, such as a familial or financial relationship with
a party involved in the case.

8. Avoiding Representation of Organizations: An advocate should not represent an

organization of which they are a member of the management. This helps to prevent
conflicts of interest and ensure impartiality.

9. Financial Interests: Advocates should avoid representing clients in cases where

they have a direct financial interest, as this could compromise their objectivity.

10. Not stand as surety for client: An advocate should not act as a surety or guarantor
for their client's legal obligations. This means that they should not pledge their
personal assets or creditworthiness to secure a loan or bond required for legal
proceedings.

B] Advocate's Duty Towards the Client

An advocate, in their role as a legal professional, owes a fiduciary duty to their

clients. This entails a high standard of care, loyalty, and confidentiality. Here are some
key duties of an advocate towards their clients:

1. Diligence and Competence:

An advocate should generally accept briefs within their area of practice, subject to
certain exceptions.
An advocate should not accept cases that conflict with their existing commitments or
personal interests.
An advocate must possess the necessary knowledge and skills to handle the matters
entrusted to them.

2. Client Confidentiality:
An advocate must maintain strict confidentiality regarding client communications,
unless there is a legal obligation to disclose.
The advocate must disclose any potential conflicts of interest to the client.

3. Loyalty and Good Faith:

An advocate should act in the best interests of their client, even if it may have
adverse consequences for the advocate.
An advocate should not engage in any unfair or unethical practices to advance their
client's case.
An advocate must be honest and transparent with their client, providing accurate
information and advice.

4. Financial Matters:
An advocate should charge reasonable fees for their services.
An advocate must maintain accurate records of client funds and provide regular
updates to the client.
An advocate should not use their position to gain personal advantage from the
client's affairs.

5. Independence:
An advocate should exercise independent judgment and not be unduly influenced by
third parties.
An advocate should not allow their judgment to be compromised by personal or
professional relationships.

6. Withdrawal from Representation:

An advocate should not withdraw from representation without a valid reason and
sufficient notice to the client.
If withdrawal is necessary, the advocate should take steps to protect the client's
interests, such as arranging for alternative representation.

7. Avoiding Conflicts with Former Clients:

Advocates should avoid taking on cases that conflict with the interests of former
clients.
They should also avoid disclosing confidential information obtained from former
clients.

C] Advocate’s Duty Towards the Opponents

1. Not to negotiate directly with the opposing party.
An advocate shall not in any way communicate or negotiate or call for settlement
upon the subject matter of controversy with any party represented by an advocate
except through the advocate representing the parties.

2. Carry out legitimate promises made.

An advocate shall do his best to carry out all legitimate promises made to the
opposite party even though not reduced to writing or enforceable under the rules of
the Court.

D] Advocate’s Duty Towards Fellow Advocates

1. Not advertise or solicit work.
An advocate shall not solicit work or advertise in any manner. He shall not promote
himself by circulars, advertisements, touts, personal communications, interviews
(other than through personal relations), furnishing or inspiring newspaper
comments, or producing his photographs to be published in connection with cases in
which he has been engaged or concerned.

2. Sign-board and name-plate.

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

3. Not promote the unauthorised practice of law.

An advocate shall not permit his professional services or his name to be used for
promoting or starting any unauthorised practice of law.

4. An advocate shall not accept a fee less than the fee, which can be taxed under
rules when the client is able to pay more.
An advocate shall not take a fee less than the fee, which can be taxed under rules
when the client can pay more. If the advocate accepts less than the prescribed fee,
then it shall be unethical and against the moral turpitude of the legal fraternity.

5. Consent of fellow advocate to appear.

An advocate should not appear in any matter where another advocate has filed a
Vakaltnama or memo for the same party. However, the advocate can take the
consent of the other advocate to appear.
In case an advocate is not able to present the consent of the advocate who has filed
the matter for the same party, then he should apply to the court for appearance. He
shall, in such an application, mention the reason why he could not obtain such
consent. He shall appear only after obtaining the permission of the Court.

Conclusion
The legal profession is a distinguished field that exists for the betterment of society
rather than personal gain. It operates as a crucial component of the administration of
justice. Unlike a business, the legal profession is dedicated to serving the public good.
As a result, ethical conduct entails respecting and adhering to the law and legal
authorities.

2. RESTRICTION ON ADVOCATES TO TAKE UP OTHER EMPLOYMENTS.

-A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an
attorney, counsel or solicitor; a person licensed to practice law."
-The profession of law is called a noble profession. It does not remain noble merely
by calling it as such unless there is a continued, corresponding and expected
performance of a noble profession. Its nobility has to be preserved, protected and
promoted.

-Rules on the professional standards that an advocate needs to maintain are

mentioned in Chapter II, Part VI of the Bar Council of India Rules. These rules have
been placed there under section 49 of the Advocates Act, 1961.
An advocate has a law degree and has been permitted by the Bar Council of India to
practice in a court of law.
The Bar Council of India puts various restrictions on advocates such as an advocate
cannot take up other employment such as running a business while serving as an
advocate. These restrictions given by the Bar Council are enumerated from Rules 47
to 52 of the Bar Council of India Rules, framed under the Advocates Act 1961.

1. Rule 47- An advocate shall not personally engage in any business; he can be a
sleeping partner in a firm and do business that is deemed appropriate by the State
Bar Council, the nature of the business should not be inconsistent with the dignity of
the profession.

2. Rule 48- An advocate may be the Director or the Chairman of the Board of
Directors of a Company, provided none of his duties are of an executive character.
Advocates are restricted from being a Managing Director or a Secretary of any
company.

3. Rule 49- An advocate cannot be a full-time salaried employee of any government,

person, firm, corporation or concern, during the reign of his practice. An intimation to
the bar council is to be given if he wants to do so. An intimation, thus, will lead to the
termination of his practice, as long as he continues such employment.

4. Rule 50- An advocate who has inherited, or succeeded by survivorship to a family

business may continue it, but not personally participate in the management.
Advocates are permitted to do the following things such as review Parliamentary Bills
for remuneration, edit legal textbooks at a salary, do press-vetting for newspapers,
coach pupils for legal examination, set and examine question papers; and subject to
the rules against advertising and full-time employment, engage in broadcasting,
journalism, lecturing and teaching subjects, both legal and non-legal. (Rule 52)
Apart from all the above-mentioned exceptions, an advocate can also accept any
part-time employment after obtaining the consent of the State Bar Council. Such
part-time employment must not conflict with professional work and must not be
inconsistent with the dignity of the profession.
So, it is necessary for advocates to adhere to the rules given by the Bar Council of
India. Otherwise, they would be subjected to various penalties and would have to
bear the consequences. Thus, advocates cannot do individual business in India.

A] Can a practising advocate be a partner in the partnership firm?

An advocate shall not personally engage in any business; he can be a sleeping partner
in a firm and do business that is deemed appropriate by the State Bar Council, the
nature of the business should not be inconsistent with the dignity of the profession.

B] Can an advocate do business in India?

An advocate shall not be a Managing Director or a Secretary of any company. If the
functions of the advocate as a member of the Board of Directors is in case executive
in nature, then that action would be against rule 48. An advocate cannot run any
business personally and earn a profit. Rule 47 strictly prohibits that.

C] Can an advocate practice other profession?

As a result of the Bar Council Rules (hereafter referred to as the rules) adopted under
section 49 of the Advocates Act, 1961, they restricted practising advocates from
working in other full-time jobs.
Members of the profession are regarded as social leaders. An Advocate cannot
become a full-time salaried employee of any person, government, firm or company
so long as he continues to practice. If he/she takes up any such employment, he/she
will not be allowed to practice as an advocate so long as he continues in such
employment.
However, if an advocate has inherited a family business, he/she is allowed to
continue it. However, such an advocate cannot personally participate in the
management of the family business.
3. RESTRICTION ON ADVERTISING

Advertising refers to the act of promoting and publicizing a product, service, or

innovation to increase its recognition among the target audience.
However, in India, the law prohibits advocates and lawyers from advertising their
work, which means that any legal services offered by them cannot be advertised.

Law Related to Advertising Lawyer’s Work

The Bar Council of India, as per Section 49(1) of the Advocates Act, 1961, has the
authority to establish rules and regulations to fulfill its functions under the Act.
The Indian Bar Council has framed Bar Council Rules which cover various aspects
such as the procedure for electing members, advocates’ professional ethics, duties to
be followed by advocates, and the classification of people to be enrolled as
advocates.
The ban on advertising legal services by legal practitioners in India is a concept
derived from the UK, where the legal profession is considered noble, and
commercializing it through promotions is viewed as dishonourable and may result in
unfair practices.
This ban on advertising legal services is highlighted under Rule 36 of the BCI Rules,
which restricts advocates from advertising their services.

Rule 36 of the Bar Council Rules states that–

“An advocate is prohibited from soliciting work or advertising,
either directly or indirectly,
whether by circulars, advertisements, personal communications, furnishing inspiring
newspaper comments or producing his photographs
to be published in connection with cases in which he has been engaged or
concerned.

Even the signboard, nameplate or stationery of an advocate should not indicate

that he is or has been the President or Member of a Bar Council or of any Association
or that he has been associated with any person or organisation or with any particular
cause or matter
or that he specialises in any particular type of work
or that he has been a Judge or an Advocate General.”

An advocate/lawyer in India who disregards Rule 36 of the Bar Council Rules and
advertises their work, can be held liable for professional misconduct and can be
prosecuted under Section 35 of the Advocates Act, 1961.
The Reason Behind the Prohibition of Advertisements

The reason behind the prohibition of advertisements for legal services is elaborated
in Rule 36 of the Bar Council Rules, which is in line with the Advocates Act, 1961.
This rule restricts advocates from advertising or soliciting their work or engaging in
any related activities.
The reasons behind the prohibition of lawyers’ advertising are as follows: –
1. To maintain the integrity of the legal profession: The primary duty of a lawyer
is to provide access to justice and serve a social cause. Allowing lawyers to
advertise their services could shift their focus from providing legal aid to
building a personal brand through advertising, which is not in line with the
noble nature of the profession.
2. To prevent unethical practices: Advertising can lead to increased competition,
which may cause lawyers to resort to unethical practices to attract clients.
Furthermore, advertising expenses may lead to higher fees charged by
lawyers, resulting in a decline in the quality of legal services.
3. To prevent inequality in legal representation: Small or mid-sized law firms may
not have the resources necessary to advertise their services, which could lead
to large firms dominating the legal market. This can result in a lack of
representation for those who cannot afford the services of larger firms.
4. To prevent misleading information: Advertisements can be misleading, and the
use of hyperbole can be harmful to the public. Advertising legal services can
violate ethical standards and harm the interests of those seeking legal aid.

Amendment To Rule 36

The Bar Council of India made an amendment to Rule 36 of the Bar Council Rules in
2008 to liberalize the strict ban on lawyer advertising.
Earlier, lawyers/advocates were strictly prohibited from advertising their legal
services, and any violation of this rule would result in punishment.
However, the amendment now allows advocates/lawyers to showcase their basic
information such as their name, contact details, qualifications, and areas of practice
on their websites, subject to the provision of a disclaimer.
The disclaimer must clearly state that the information furnished on the website is
true and genuine.
It is important to note that the amendment only permits the advertising of specific
information by advocates.
If an advocate provides any extra information beyond what is allowed, they can be
held liable for professional misconduct under Section 35 of the Advocates Act, 1961,
and can be punished accordingly.
4. FORMS OF DRESSES TO BE WORN BY ADVOCATES

Lawyers are often compared to the pillars of a temple of justice. Their role is crucial in
ensuring that justice is served and that people's rights are protected.
The black and white attire of lawyers is a symbol of their profession. Black represents
authority and the seriousness of the legal profession, while white symbolizes purity
and justice. This combination signifies the dual role of lawyers: to uphold the law
with authority and to seek justice with fairness.
In India, the Bar Council of India has specific rules about how lawyers should dress.
They must wear a black coat or robe over a white shirt with a white band around the
neck. This dress code helps to maintain a sense of dignity and professionalism in the
courtroom.

The Bar Council of India Rules states the strict rules for an advocates dress code. An
advocate does not have any choice in the matter of dress while appearing in court
and may not be permitted to appear if incorrectly attired.

The Advocate's Act of 1961 mandates an advocate to put on a 'Black Robe' or 'c
oat' with a white neckband on top of it to preserve the permanence of the practice.
The rules outlined in Section 49(1) (gg) of the Advocates Act, 1961 require all
advocates to wear the same attire, regardless of whether they are designated, Senior
Advocates or other advocates.
Advocates, coming into the Supreme Court, High Court, subordinate courts, and
tribunals shall wear the undermentioned as part of their dress which shall be
moderate and honourable.

A] Advocates other than lady advocates have to wear:

(a) a buttoned-up black coat, chaplain, achkan, black sherwani, and white bands with
advocate's gown, or
(b) a black open breast coat, white-collar, stiff or soft, and white bands with
advocates' gowns.
Long trousers (white, black, striped, or grey) or dhoti in either case.

B] Lady Advocates must wear:

(a) black full-sleeved or half-sleeved jacket or blouse, stiff or soft white collar, and
white bands with advocates' gowns;
(b) sarees or long skirts (white, black, or any mellow or subdued color with no print
or design) or flares (white, black, black-striped, or grey).
Apart from appearing in the Supreme Court or a High Court, wearing an advocate's
gown is optional.
Furthermore, a black-tie may be worn instead of bands in courts other than the
Supreme Court, High Court, District Court, Sessions Court, or City Civil Court.
In the Supreme Court and High Courts, wea black coat is not mandatory during the
summers.

Senior Advocates get designated under section 16 of the Advocates Act 1961.
They do not have any difference in attire from what is prescribed, however, they are
privy to several years of courtroom experience and equipped with strong legal
knowledge & reasoning due to which they are appointed the designation.

It is critical to dress appropriately in a courtroom, bearing in mind that the judicial

system is deemed one of the most renowned and sacrosanct in nature to protect the
life and liberty of citizens; it is also crucial to show respect for the system and its
people.
If an advocate is dressed inappropriately, the Judges in the Courtroom have the
authority to deny him access to the audience.
This is why Advocates and everyone who attends Court should adhere to a strict
'Dress Code'.
Wearing shabby or casual clothing in Court is considered disrespectful to the Law.
Therefore, an Advocate's professional attire must allow them to gain trust and faith
from the client, the Judges and fellow lawyers, and the entire society.

5. RULES AS TO VAKALATNAMA
-Vakalatnama is a written document submitted before a court by a lawyer declaring
that his clients have authorized him to represent them in a legal proceeding.
- A vakalatnama is also referred to as a ‘Vakil Patra’.

Ingredients of a Valid Vakalatnama

A Vakalatnama is an essential document authorizing a lawyer to take action on behalf
of the client. Any kind of error or mistake may impact the understanding between the
parties and hence, parties should have a clear understanding in oral as well as written
understanding to avoid any conflict during the legal proceedings.

The following content categories are mentioned in Vakalatnama.

 Information about the case number and the court's name.
 Full name of the designated executor of the vakalatnama.
 The advocate’s full name and service address, if applicable, should be noted.
 Date of the execution of the Vakalatnama
 Signed by the individual authorizing the advocate.
 Type of power granted to the advocate
 The designated advocate’s signature signifies the acceptance of Vakilatpatra.

Broadly speaking, a Vakalatnama might also include the following clauses:

 The client shall not hold the advocate accountable for any choice made.
 All fees and expenses incurred during the proceedings will be borne by the
client.
 If all fees are not paid, the advocate will be entitled to keep the documents.
 During the legal proceedings, the advocate is fully entitled to make
independent choices that are in the best interests of the client.

Who can authorise a vakalatnama-

An authorized representative plays a crucial role throughout legal proceedings,

empowering the advocate to act on the client's behalf. The advocate is duty-bound to
protect the client's interests and rights.
Here is who can authorize a Vakalatnama.
 Any person who is impacted or feels wronged may be qualified and authorized
to offer a Vakalatnama.
 The Vakalatnama can be performed by any authorized individual on behalf of
the organization, society, or entity.
 Parents may be appointed to act as the minor children's guardians.
 A party holding a power of advocate may also be qualified to submit a
Vakalatnama.
Validity of Vakalatnama
The validity of a Vakalatnama may cease under the following circumstances:
  The death of the client.
 The death of the advocate.
 Withdrawal of the Vakalatnama by the client.
 Withdrawal of the Vakalatnama by the advocate, subject to the court's
approval.
 Conclusion of the case.

How to Fill a Vakalatnama

Vakalatnama is a document that establishes a specific relationship between the
advocate and the client; as such, it is also advised that the client, or litigant, carefully
study all the terms and conditions specified in such Vakalatnama and refrain from
making any further agreements.
Filling up the Vakalatnama form as follows-
How to Fill a Vakalatnama: A Step-by-Step Guide
A Vakalatnama is a legal document that authorizes an advocate to represent a client
in a legal matter. Here's a simple guide on how to fill it out:

1. Identify the Parties:

Clearly mention the name(s) of the client(s). If it's a company or organization, provide
the full legal name. Specify the name of the advocate who will be representing you.

2. Description of the Case:

Briefly describe the nature of the case, including the court where it's filed and the
case number (if known).
Provide a concise summary of the key facts and issues involved in the case.

3. Powers Granted to the Advocate:

Clearly state that you authorize the advocate to represent you in all legal proceedings
related to the case. Specify any specific powers you grant to the advocate, such as the
authority to file pleadings, argue the case, compromise, or enter into settlements.

4. Signature and Verification:

Sign the Vakalatnama in the presence of a witness.
Verify the accuracy of the information provided in the Vakalatnama.

Use clear and concise language to avoid any confusion. If you're unsure about any
part of the Vakalatnama, consult with a legal professional. If multiple clients are
appointing the same advocate, ensure that each client signs the Vakalatnama
individually.
If you're authorizing someone else to sign the Vakalatnama on your behalf, provide a
Power of Attorney document.