Duties of Advocate Towards Courts And Clients

“DUTIES OF ADVOCATE TOWARDS COURTS AND

CLIENTS”
(Project Report)

Submitted to:

Dr. Deepak Das

( Associate Professor, Faculty - Professional Ethics)

Submitted By:

Jagdishwar Kutiyal
B. A. LL. B. (Hons.) Student
Semester – X, Section – A
Roll No. 68

HIDAYATULLAH NATIONAL LAW UNIVERSITY

Uparwara Post, Abhanpur, Atal Nagar Nava Raipur – 493661 (C.G.)
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 Duties of Advocate Towards Courts And Clients

DECLARATION

I, Jagdishwar Kutiyal “hereby declare that, the project work entitled, “Duties of Advocate
towards Courts and Clients” submitted to Hidayatullah National Law University, Raipur is
record of an original work done by me under the able guidance of Dr. Deepak Das, Faculty
Member, H.N.L.U., Raipur.

Jagdishwar Kutiyal

Roll No-68

Section A

SEM -X

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 Duties of Advocate Towards Courts And Clients

ACKNOWLEDGEMENTS

Thanks to the Almighty who gave me the strength to complete this project with sheer

hard work and honesty. This research venture has been made possible due to the generous co-

operation of various persons. To list them all is not practicable, even to repay them in words is

beyond the domain of my lexicon.

This project wouldn’t have been possible without the help of my teacher Dr. Deepak

Das, Faculty, Professional Ethics at HNLU, who had always been there at my side whenever I

needed some help regarding any information. He has been my mentor in the truest sense of the

term. The administration has also been kind enough to let me use their facilities for research

work.”

HNLU, Raipur Jagdishwar Kutiyal

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 Duties of Advocate Towards Courts And Clients

1. CONTENTS

Declaration II
Acknowledgement III

1. Introduction……………………………………………………………………………………1

1.1 Aims and Objectives

1.2 Research Methodology
1.3 Review of Literature
1.4 Sources/Types of Data
1.5 Scope /Limitation of the study
1.6 Organisation of the study
1.7 Statement of Problem

2. Rule on an Advocates duty towards the Court……..……………….……………..….….…..05

3. Rule on an Advocates duty towards the Client. ……………………………….…….………07

4. Professional Ethics – A Gentle Reminder for Advocates ……………..……………..…….11

5. Conclusion …………..…………………………………………….……………………......14

6. Bibliography and References ………………………………………………….…………...15

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 Duties of Advocate Towards Courts And Clients

CHAPTER 1: INTRODUCTION

In the legal world, ethics plays an important role in the day-to-day operations, and every lawyer
faces a professional quandary in which he must choose between right and wrong and remind
himself of the duties to which he is bound.

An advocate shall conduct himself in a manner befitting his status as an officer of the Court, a
privileged member of the community, and a gentleman at all times, keeping in mind that what is
lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his
non-professional capacity, may still be improper for an advocate.

In “Dhanraj Singh Vs. Hanuman Das Khatry, the Supreme Court held that the Legal Profession
is a noble profession… A person practicing law has to practice in the spirit of honesty and not in
the spirit of mischief making. In Rondel v Worsley1, Lord Reid made the following observations
in relation to the Duty owed by a Lawyer to the Court:

As an officer of the court concerned in the administration of justice [a legal practitioner] has an
overriding duty to the court, to the standards of his profession, and to the public, which may and
often does lead to a conflict with his client's wishes or with what the client thinks are his
personal interests. Similar to blatantly offering false evidence, knowingly maintaining false
pretences is another way a lawyer can mislead the court. Where counsel knows that the court is
operating under a mistaken assumption and actively maintains the false pretence, the lawyer is
guilty of misleading the court. Failing to correct a false statement or pretence is a breach of a
lawyer's duty of candour.

Lawyers may not make allegations of dishonesty unless they have evidence to support such
allegations and shall not interfere with the administration of justice. A lawyer may not be able to
act in a way that serves the client's best interests if doing so would put the administration of
justice and the community's confidence in the profession at risk.

1
[1969] 1 AC 191, 227
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 Duties of Advocate Towards Courts And Clients

 In Bar Council of Maharashtra Vs. M.V. Dabholkar & Ors 2, the Supreme Court has held
that, the central function of the legal profession is to promote the administration of justice.

A lawyer should not take advantage of the court system. A lawyer should not bring or defend an
action that has no legal basis. When a lawyer knows there is no merit to a client's claim but
pursues it for some other reason, this is an abuse of the court process. When dealing with others,
a lawyer must be courteous, civil, and act in good faith with all persons with whom he or she
comes into contact during the course of practise.
A lawyer's duty to be civil to opposing counsel, includes the following conduct: the duty not to
engage in acrimonious exchanges with opposing counsel or otherwise engage in undignified or
discourteous conduct. Acrimonious exchanges with opposing counsel come in all forms
– sarcasm, intimidation, rudeness and unfounded personal attacks.

1.1 OBJECTIVES

The project report consists of the following objectives:

1) To study why a lawyer's duty matter.

2) To study what are the duties under Advocates Act and BCI rules.
3) To Study remedies for breach of rules on advocates duties.

1.2 RESEARCH METHODOLOGY

The type of research methodology used in the project is doctrinal i.e. the report is based on
analytical and descriptive Research Methodology. Secondary and Electronic resources have been
largely used to gather information and data about the topic. Books and other reference articles as
guided by faculty have been primarily helpful in giving this project a firm structure. Websites,
dictionaries and articles have also been widely referred. The method of study adopted in this
project is Descriptive- Quantitative.

2
[1976] 2 SCC 291
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 Duties of Advocate Towards Courts And Clients

1.3 REVIEW OF LITERATURE

1. ADVOCATES ACT AND PROFESSIONAL ETHICS. By N. Dutt- Majumdar. 2nd ed.

(1975). Eastern Law House, Calcutta. Pp. 224. NIRMALENDU DUTT-MAJUMDAR'S
book Advocates Act and Profes- sional Ethics 1 is quite an exhilarating one epitomising
the law relating to the legal profession in India. Professional ethics is the most precious
qualification for a lawyer to shine with head high and withal to command the required
courage to function in courts where apart from skill and erudition, it is only the high
values treasured and nurtured by counsel that marks him out as lawyer and man in a
crowd of competing and jealous men of the legal profession. Judges and clients always
respect such an advocates.

1.4 SOURCES OF DATA

Though the topic of this project can be studied from both the academic and empirical
perspective, nevertheless secondary sources of information have been used, which include:

1) Books, and
2) Information from the internet.

1.5 SCOPE OF STUDY

The object of this paper is to achieve a deeper and more holistic understanding of the duties and
role of advocates in maintaining the decorum of the profession and abide by their professional
ethics. Though this paper is intended that the actual ground realities and the anomalies within the
environment can be taken out and find how far these duties are being practiced in reality. Their
attitude and behaviour are recognised through the study of actual proceedings of the court and
the same has been attempt by taking Indian courts within scope of the study.

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 Duties of Advocate Towards Courts And Clients

1.6 ORGANIZATION OF STUDY

The project has been bifurcated into various §s each having a separate chapter and are as follows:

Chapter 1: Introduction
Chapter 2: Rule on an Advocates duty towards the Court.
Chapter 3: Rule on an Advocates duty towards the Client.
Chapter 4: Professional Ethics – A Gentle Reminder for Advocates
Conclusion
Bibliography

1.7 STATEMENT OF THE PROBLEM

The project deals with the question that whether the duties prescribed by the professional ethics
are properly followed and whether it creates any difference if these are put at the center of
discussion. At the end it is the ultimate healthy and competitive environment which gives rise to
a welfare and bonafide legal system and fluent unbiased judicial promises of administration of
justice.”

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 Duties of Advocate Towards Courts And Clients

CHAPTER 2:

RULES ON AN ADVOCATE’S DUTY TOWARDS THE COURT3

1. Act in a dignified manner

During the “presentation of his case and also while acting before a court, an advocate should act
in a dignified manner. He should at all times conduct himself with self-respect. However,
whenever there is proper ground for serious complaint against a judicial officer, the advocate has
a right and duty to submit his grievance to proper authorities.

2. Respect the court

An advocate should always show respect towards the court. An advocate has to bear in mind that
the dignity and respect maintained towards judicial office is essential for the survival of a free
community.

3. Not communicate in private

An advocate should not communicate in private to a judge with regard to any matter pending
before the judge or any other judge. An advocate should not influence the decision of a court in
any matter using illegal or improper means such as coercion, bribe etc.

4. Refuse to act in an illegal manner towards the opposition

An advocate should refuse to act in an illegal or improper manner towards the opposing counsel
or the opposing parties. He shall also use his best efforts to restrain and prevent his client from
acting in any illegal, improper manner or use unfair practices in any mater towards the judiciary,
opposing counsel or the opposing parties.

5. Refuse to represent clients who insist on unfair means

An advocate shall refuse to represent any client who insists on using unfair or improper means.
An advocate shall excise his own judgment in such matters. He shall not blindly follow the
instructions of the client. He shall be dignified in use of his language in correspondence and
during arguments in court. He shall not scandalously damage the reputation of the parties on
false grounds during pleadings. He shall not use unparliamentary language during arguments in
the court.
3
CHAPTER - II Standards of Professional Conduct and Etiquette (Rules under Section 49 (1) (c) of the Act read
with the Proviso thereto)
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 Duties of Advocate Towards Courts And Clients

6. Appear in proper dress code

An advocate should appear in court at all times only in the dress prescribed under the Bar
Council of India Rules and his appearance should always be presentable.

7. Refuse to appear in front of relations

An advocate should not enter appearance, act, plead or practice in any way before a judicial
authority if the sole or any member of the bench is related to the advocate as father, grandfather,
son, grandson, uncle, brother, nephew, first cousin, husband, wife, mother, daughter, sister, aunt,
niece, father-in-law, mother-in-law, son-in-law, brother-in-law daughter-in-law or sister-in-law.
For the purposes of this rule, Court shall mean a Court, Bench or Tribunal in which above
mentioned relation of the Advocate is a Judge, Member or the Presiding Officer.4

8. Not to wear bands or gowns in public places

An advocate should not wear bands or gowns in public places other than in courts, except on
such ceremonial occasions and at such places as the Bar Council of India or as the court may
prescribe.

9. Not represent establishments of which he is a member

An advocate should not appear in or before any judicial authority, for or against any
establishment if he is a member of the management of the establishment. This rule does not
apply to a member appearing as ‘amicus curiae’ or without a fee on behalf of the Bar Council,
Incorporated Law Society or a Bar Association.

10. Not appear in matters of pecuniary interest

An advocate should not act or plead in any matter in which he has financial interests. For
instance, he should not act in a bankruptcy petition when he is also a creditor of the bankrupt. He
should also not accept a brief from a company of which he is a Director.
Illustration :
I. He should not act in a bankruptcy petition when he himself is also a creditor of the bankrupt.
II. He should not accept a brief from a company of which he is a Director.

11. Not stand as surety for client

An advocate should not stand as a surety, or certify the soundness of a surety that his client
requires for the purpose of any legal proceedings.

4
Dt. of this Rules 16-2-91 Proviso added by resolution no 11/91
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 Duties of Advocate Towards Courts And Clients

CHAPTER 3:

RULES ON AN ADVOCATE’S DUTY TOWARDS THE CLIENT

1. Bound to accept briefs

An advocate is bound to accept any brief in the courts or tribunals or before any other authority
in or before which he proposes to practise. He should levy fees which is at par with the fees
collected by fellow advocates of his standing at the Bar and the nature of the case. Special
circumstances may justify his refusal to accept a particular brief.

2. Not withdraw from service

An advocate should not ordinarily withdraw from serving a client once he has agreed to serve
them. He can withdraw only if he has a sufficient cause and by giving reasonable and sufficient
notice to the client. Upon withdrawal, he shall refund such part of the fee that has not accrued to
the client.

3. Not appear in matters where he himself is a witness

An advocate should not accept a brief or appear in a case in which he himself is a witness. If he
has a reason to believe that in due course of events he will be a witness, then he should not
continue to appear for the client. He should retire from the case without jeopardising his client’s
interests.

4. Full and frank disclosure to client

An advocate should, at the commencement of his engagement and during the continuance
thereof, make all such full and frank disclosure to his client relating to his connection with the
parties and any interest in or about the controversy as are likely to affect his client’s judgement
in either engaging him or continuing the engagement.

5. Uphold interest of the client

It shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair and
honourable means. An advocate shall do so without regard to any unpleasant consequences to
himself or any other. He shall defend a person accused of a crime regardless of his personal
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opinion as to the guilt of the accused. An advocate should always remember that his loyalty is to
the law, which requires that no man should be punished without adequate evidence.

6. Not suppress material or evidence

An advocate appearing for the prosecution of a criminal trial should conduct the proceedings in a
manner that it does not lead to conviction of the innocent. An advocate shall by no means
suppress any material or evidence, which shall prove the innocence of the accused.

7. Not disclose the communications between client and himself

An advocate should not by any means, directly or indirectly, disclose the communications made
by his client to him. He also shall not disclose the advice given by him in the proceedings.
However, he is liable to disclose if it violates Section 126 of the Indian Evidence Act, 1872.

8. An advocate should not be a party to stir up or instigate litigation.

9. An advocate should not act on the instructions of any person other than his client or the
client’s authorised agent.

10. Not charge depending on success of matters

An advocate should not charge for his services depending on the success of the matter
undertaken. He also shall not charge for his services as a percentage of the amount or property
received after the success of the matter.

11. Not receive interest in actionable claim

An advocate should not trade or agree to receive any share or interest in any actionable claim.
Nothing in this rule shall apply to stock, shares and debentures of government securities, or to
any instruments, which are, for the time being, by law or custom, negotiable or to any mercantile
document of title to goods.

12. Not bid or purchase property arising of legal proceeding

An advocate should not by any means bid for, or purchase, either in his own name or in any
other name, for his own benefit or for the benefit of any other person, any property sold in any

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legal proceeding in which he was in any way professionally engaged. However, it does not
prevent an advocate from bidding for or purchasing for his client any property on behalf of the
client provided the Advocate is expressly authorised in writing in this behalf.

13. Not bid or transfer property arising of legal proceeding

An advocate should not by any means bid in court auction or acquire by way of sale, gift,
exchange or any other mode of transfer (either in his own name or in any other name for his own
benefit or for the benefit of any other person), any property which is the subject matter of any
suit, appeal or other proceedings in which he is in any way professionally engaged.5

14. Not adjust fees against personal liability

An advocate should not adjust fee payable to him by his client against his own personal liability
to the client, which does not arise in the course of his employment as an advocate.

15.An advocate should not misuse or takes advantage of the confidence reposed in him by
his client.

16.Keep proper accounts

An advocate should always keep accounts of the clients’ money entrusted to him. The accounts
should show the amounts received from the client or on his behalf. The account should show
along with the expenses incurred for him and the deductions made on account of fees with
respective dates and all other necessary particulars.

17. Divert money from accounts

An advocate should mention in his accounts whether any monies received by him from the client
are on account of fees or expenses during the course of any proceeding or opinion. He shall not
divert any part of the amounts received for expenses as fees without written instruction from the
client.

18. Intimate the client on amounts

Where any amount is received or given to him on behalf of his client, the advocate must without
any delay intimate the client of the fact of such receipt.
5
Rule 22A came into force w.e.f. 24-9-1998.
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19. Adjust fees after termination of proceedings

An advocate shall after the termination of proceedings, be at liberty to adjust the fees due to him
from the account of the client. The balance in the account can be the amount paid by the client or
an amount that has come in that proceeding. Any amount left after the deduction of the fees and
expenses from the account must be returned to the client.

20. Provide copy of accounts

An advocate must provide the client with the copy of the client’s account maintained by him on
demand, provided that the necessary copying charge is paid.

21. An advocate shall not enter into arrangements whereby funds in his hands are
converted into loans.

22. Not lend money to his client

An advocate shall not lend money to his client for the purpose of any action or legal proceedings
in which he is engaged by such client. Explanation. An advocate shall not be held guilty for a
breach of this rule, if in the course of a pending suit or proceeding, and without any arrangement
with the client in respect of the same, the advocate feels compelled by reason of the rule of the
Court to make a payment to the Court on account of the client for the progress of the suit or
proceeding.

23. Not appear for opposite parties

An advocate who has advised a party in connection with the institution of a suit, appeal or other
matter or has drawn pleadings, or acted for a party, shall not act, appear or plead for the opposite
party in the same matter.”

CHAPTER 4: PROFESSIONAL ETHICS – A GENTLE REMINDER TO

THE LAWYERS OF INDIA
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REFERENCE TO THE RECENT PAST EVENT IN SUPREME COURT OF INDIA

Mr. “Tushar Mehta is an energetic and luminous Senior Advocate of the Supreme Court of India
and is currently the Solicitor General of India who advises the Government of India and appears
on behalf of the Union of India in terms of the Law Officers (Terms and Conditions) Rules,
1972.
What we have observed and learnt from this profession is that, ‘We’ as ‘young lawyers’ are
expected to learn from ‘Senior Advocates’, and what we learn today, is what we are going to
teach our juniors in the future.

Looking at the way the Migrant Crises issue has been handled by the Learned Solicitor
General of India: It reminded me that,

‘Even the elitist of us, needs to be reminded of the Professional Ethics that the Profession has
set for itself’.6

The Migrant Issue: A little back ground:

Lakhs of migrant workers were stranded without work or proper shelter ever since the
nationwide lockdown was imposed. There was a stream of visuals of desperate workers walking
several hundred kilometres towards their homes. The Union Government was criticised by many
for not arranging travel facilities for these informal sector workers before imposing a lockdown.

March 31, 2020 - A Public Interest Litigation was heard by Hon'ble Supreme Court filed by
Alakh Alok Srivastava being W.P.Civil No. 468 /2020 on migrant crises.
The Learned Solicitor General of India Mr. Tushar Mehta makes a wrong statement and the same
is recorded in the order: ‘The Solicitor General of India made a statement on instructions that at
11 A.M. today, there is no person walking on the roads in an attempt to reach his/her home
towns/villages.’

6
Professional Etics : A Gentle Reminder to the Solicitar General of ndia – Coloumn Live Law, 03 June 2020 By
Advocate Aldanish Rien
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April 27, 2020 - The matter was listed in the court and the court passed the following order: ‘we
call upon the learned Solicitor General to place on record the proposed protocol, if any, for
movement of migrant workers between States in view of reported discussions already taking
place between different States. List after one week.’ The above matter was to come up on the
5th May, 2020.

May 1, 2020 - That in the mean while the Railways started running the Shramik Special trains
for transporting stranded workers from May 1. The Railways was however charging the migrants
for the railway ticket fare and was being heavily criticised especially because on the one hand the
Railways had donated Rs. 151 Crores to ‘PM CARES’ while on the other, it was charging
migrants.

May 4, 2020 - As the Centre faced the heat from the opposition over the Indian Railways asking
migrant labourers making their way home to pay for train tickets and since the matter of migrant
travel was to come up the next day in the Supreme Court, the Union Health Ministry's Joint
Secretary Mr. Lav Agarwal gave a cryptic explanation on 4th May and the same is as under:

‘Be it the government of India or the Railways, we have not talked about charging from workers.
85% of the transportation cost is borne by the Railways, while states have to bear 15% of the
cost,’
This was played on repeated mode on some news channels and some BJP leaders even tweeted
it, and were seen on TV channels defending it. They pedalled the notion that migrant workers
were not being charged at all, even as many reports showed that those who boarded the special
‘Shramik Special’ trains had already paid for their tickets.

May 5, 2020 - The above mentioned PIL for Migrant Travel was listed before the Supreme
Court and as expected the Hon'ble Court had also seen the above news of railway bearing 85 %
of the fare.During the course of hearing Justice Gavai referred to the ‘reports’ that the Railways
had decided to bear 85 % of the fare.

The Hon'ble Court and the PIL petitioner were however convinced due to the news reports, that
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the railways was bearing 85 % of the fare and therefore the arguments were limited to the
remaining 15 %, as it was to be paid by the migrant and it was not possible for the migrant to
bear it at that moment.
The Hon'ble Court however considering the above argument was pleased to have laid that:
Insofar as charging of 15% of Railway tickets' amount from workers, it is not for this Court to
issue any order under Article 32 regarding the same, it is the concerned State/Railways to take
necessary steps under the relevant guidelines.

May 28, 2020 - That finally in the suo motu matter by the Supreme Court on the COVID-19
migrant crisis , the Court proceeded to question the Learned Solicitor General of India Mr.
Tushar Mehta on the fare charged for the Shramik trains.Justice Shah remarked, It seems there is
no clarity about fare and thus middlemen are taking advantage. The Learned Solicitor General of
India Mr. Tushar Mehta replied that either the originating state or the receiving state covers the
fare as per their internal agreement.”

This clearly means that the Hon'ble Court in W. P. (Civil) .. Diary No. 10947/2020, was wrongly
made to believe that the Railways was incurring 85 % of the Ticket Fare. The Learned Solicitor
General of India Mr. Tushar Mehta did not even bothered to have informed the Court about it
on/before or after the hearing of the above Suo Moto matter by the Supreme Court of India on
the Migrant Crises.

However, Learned Solicitor General of India Mr. Tushar Mehta goes on to say,
1) Some High Courts are running a parallel Govt'
2) Those criticizing the govt are 'prophets of doom'
3) Cites instance of a journalist as 'vulture'."

CONCLUSION

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 Duties of Advocate Towards Courts And Clients

The duty of a lawyer to the court affects nearly every aspect of his or her practise. A lawyer must
use legal, honest, and respectful tactics when dealing with courts and tribunals. A lawyer must
act with integrity and professionalism while upholding his or her overarching responsibility to
ensure civil behaviour. A lawyer must educate clients about court procedures in order to increase
public trust in the administration of justice.

To me Professional Ethics are more than a set of rules, they are a commitment to honesty,
integrity and service in the practice of law. I conclude by quoting Lord Denning in the case
of Rondel v. Worsley, in which he states: “The advocate has a duty to the court which is
paramount. It is a mistake to suppose that he is the mouthpiece 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. He must not consciously mis-stat the facts. He
must not knowingly conceal the truth…He must produce all the relevant authorities, even those
that are against him. He must see that his client discloses, if ordered, the relevant documents,
even those that are fatal to his case. He must disregard the most specific instructions of his
client, if they conflict with his duty to the court. The code which requires a barrister to do all this
is not a code of law. It is a code of honour. If he breaks it, he is offending against the rules of the
profession and is subject to its discipline.”

BIBLIOGRAPHY AND REFERENCES

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 Duties of Advocate Towards Courts And Clients

 Henry Campbell Black (Ed.), Black's Law Dictionary, West Publishing Co., USA (6th edn.-
1990), p.894.
 The preamble of Chapter II, Part VI of Bar Council of India Rule 1961.
 CHAPTER - II Standards of Professional Conduct and Etiquette (Rules under Section 49 (1)
(c) of the Act read with the Proviso thereto)
 MP Jain, Indian Constitutional Law, Lexis Nexis Butterworths Wadhwa, Nagpur (7 th Ed., 2014).

STATUTE

 The Constitution of India, 1950.

 Advocates Act, 1961
 Bar Council of India Rules, 1961
 The Contempt of Court Act 1971

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