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THE PROFESSIONAL ETHICS, ACCOUNTANCY FOR LAWYERS
AND
BAR-BENCH RELATIONS
(Practical Training)
THE HISTORY AND DEVELOPMENT OF LEGAL PROFESSION IN INDIA (page1 & 2)
Advocacy profession had its seeds in Europe as well as in the East. In the preliminary stage it was not like to-day’s shape. Since the 12th^ century, this profession has come into existence in England during the reign of Henry-II. For several centuries, this profession was in the hands of priests. In 1833, ‘Bar Committee’ representing the Barristers was set up in England for the first time. Before it, it was called as ‘Benchers’
In India, the Regulating Act, 1773 established Supreme Court at Fort William (Calcutta), and also allowed legal practicing. The Bengal Regulation, 1793was passed in 1793, the object of which was to regularize and to control both recruitment and conduct of the Legal Practitioners in the Company’s Courts. It prescribed certain qualifications, and rules of practicing.
In the next step, “The Legal Practitioner’s Act, 1846” was enacted in 1846. In those days, there were different kinds of Legal Practitioners, viz, Barrister, Mukhtars, Vakils, etc. Act of 1846 brought certain changes according to the prevailing circumstances in British India. After it, the Legal Practitioners Act, 1853 was passed.
In those days, Pleaders and Mukhtars were non-graduates and matriculates only. The Barristers and Solicitors were the law graduates from Britain. Indians used to go to Britain to study Barrister at Law.
After 1850, the education in graduation level was started in India. Hence, the 1853 Act prohibited the recruitment of Pleaders and Mukhtars who did not possess graduation. The British Government though that the number of graduates would be sufficient to meet the requirement in the Courts.
Thereafter, The Legal Practitioners Act, 1879 was enacted, enlarged the rights of Advocates, Vakils and Attorneys of High courts.
In 1923, the British Government appointed an India Bar Committee. That committee made several recommendations for the establishment of an India Bar, to decide the Constitution of Bar Council whether on an all India basis or on the Provincial basis, to remove several defects in the legal profession, and to remove the distinction between Barristers and Vakils etc.
As a result of the recommendations of India Bar Committee. The Bar Councils Act, 1926 had been passed. But some the recommendations of the committee were only adopted in the 1926 act, in fact, it was a half –hearted legislation. It did not establish an all India bar council. It did not extend to entire India. Bar councils were established at provincial level, i.e. Calcutta, Bombay, Madras, etc. each bar council was used to regulate the admission of legal practitioners of the high court, to regulate their discipline and professional conduct; and to make arrangement for legal education and examination.
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Marupaka Venkateshwarlu M.A,B.Ed,LLB.
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COMPARISON BETWEEN THE BAR COUNCIL OF INDIA
AND THE BAR IN ENGLAND (page 5)
The legal profession has been described as a great profession par excellence universally. In India, statutory provisions had been made since 1774. There were several statutes. Viz., legal practitioners act 1879, the bar councils act 1926, letters patent of the several high courts, the civil procedure code 1908, the Indian evidence act 1872, etc. for regulating the legal profession, and formulating the professional ethics and etiquette.
The advocates act, 1961 repealed the provisions of legal practitioners act, 1879, bar councils act, 1926, letters patent of high courts. For the purposes of improving the standards of, and for regulating and controlling the legal profession, the British Government had been making statutes since the beginning of the legal profession started in India.
In England, the position was different. In that country, the rules of professional conduct and discipline were contained in the regulation of inns of court. Even now the situation stands the same. The reason is that the britishers like customs and usages more. = = = ooOoo= = =
CONSTITUTION OF STATE BAR COUNCILS
Section 3 of the advocates act, 1991 explains about the constitution of State Bar Councils. There shall be a bar council for each of the states. There may be a bar council for two or more small states, or the union territories. A state bar council shall consist of the following members namely;
a). in the case of the State Bar council of Delhi the additional solicitor – general of India ex-officio; in the case of state bar council of Assam, Nagaland, Meghalaya, Manipur and Tripura the Advocate-General of each of the states of Assam, Nagaland, Meghalaya, Manipur and Tripura ex-officio; in the case of the State Bar Council of Punjab and Haryana, the Advocate General of each of the States of Punjab and Haryana, ex-officio, and in the case of any other State Bar Council, the advocate-General of the state ex-officio.
b). In the case of a state bar council with an electorate not exceeding five thousand. Fifteen members, in the case of a state bar council with an electorate exceeding five thousand but not exceeding ten thousand, twenty members and in the case of a state bar council with an electorate exceeding ten thousand, twenty five members, elected in accordance with the system of proportional representation by means of the single transferable vote from amongst advocates on the electoral roll of the state bar council.
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FUNCTIONS OF STATE BAR COUNCILS (page 7)
State bar council is an autonomous and independent body. It is a legal person. It is a body corporate. It shall have perpetual succession and a common seal with power to acquire and hold property, both moveable and immoveable, and to contract, and may by the name by which it is known sue and be sued.
Marupaka Venkateshwarlu M.A,B.Ed,LLB.
entire India, and a State Bar Council for each State. Section 35 of the Advocates Act, 1961 empowers the State Bar Council to hold enquiry against the misconduct of an advocate. It can 4
hold an enquiry either by its Suo Motu or on an application by the aggrieved person. However, the Bar council is a larger body, and has to perform several functions.
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QUALIFICATIONS AND DISQUALIFICATIONS (page 15)
ANSWERS:
SCOPE: Section 24 of the Advocates Act, 1961 enunciates the required qualifications of a person to be enrolled as an advocate in the State Roll. Section 24-A of the same Act explains the “ Disqualification for Enrollment.”
QUALIFICATIONS OF A PERSON TO BE ENROLLED AS AN ADVOCATE
According to Section 24 of the Advocate Act, 1961, the following are the required qualifications of a person to be enrolled as an advocate,---
- He is a citizen of India.
- He has completed the age of 21 years.
- He has obtained a degree In Law from the recognized university.
- He has paid required stamp duty, enrolment fee, etc.
- He fulfils other conditions as may be specified in the rules made by the State Bar Council.
- HE IS A CITIZEN OF INDIA: This is the first qualification of a person, who wants to enrolment his name as an advocate in India. Section 3 of the Citizenship Act, 1955 confers citizenship to every person by h is birth in India. Articles 5 to 11 of the Constitution of India explain the constitutional provisions regarding “ Citizenship”. Article 5 confers citizenship to every person, at the commencement of the constitution, who has his domicile in the territory of India, and a. who was born in the territory of India; or b. either whose parents was born in the territory of India; or c. who has been ordinarily resident in the territory of India for not less than five years immediate preceding such commencement, shall be citizen of India.
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RIGHT TO PRACTICE (page 18)
SCOPE: Before enacting the Advocates Act, 1961 there were different classes of Legal Practitioner, viz., Barristers, Attorneys, advocates Vakils, Pleaders, Mukhtars, Agents etc. The 1961 Act made Several important changes, and brought this profession into uniformity. Now there is only one class of legal practitioners viz, Advocates. Chapter-iv (containing sections 29 to 34) of the Advocates Act, 1951 explains the legal provisions about the right to practice.
OBJECT: The Advocates Act, 1961 imposes restrictions upon the persons who have not enrolled as Advocates. The Advocate profession requires more legal knowledge, experience, professional ethics and etiquette. If layman enters this profession, much confusion and disorder will occur. Like a doctor, an advocate an advocate must be fully
Marupaka Venkateshwarlu M.A,B.Ed,LLB.
trained and equipped the requisite qualifications. Else the administration of justice and procedure of the courts will be spoiled utterly. 5
MEANING:
Practice. (n.) = habitual actions: acquired sill: one of the arithmetical rules.
Practice. (v,i) = to acquire a habit: to be a practitioner:
Practice. (v.t) = to do habitually, to do repeatedly to exercise to make a practice of to follow or work at as a profession to study to exercise ones sill in regularly or frequently so as to win greater command.
RIGHT OF ADVOCATES TO PRACTICE: According to Section 30 of the Advocates Act, 1961, every advocate, whose name is entered in the State Roll is entitled as of right to practice throughout the territories to which this Act extends, subject to the provisions of this Act,---
- in all courts including the supreme court;
- before any tribunal or person legally authorized to take evidence; and
- before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practice.
SPECIAL POWER OF ATTORNEY:
Advocates are the only recognized persons entitled to practice. Some times, Courts may permit any person to appear before them under particular circumstance. Any person can defend his own case. No person can give special power of Attorney to defend his case to a person who is not an advocate. Courts do not permit such special power of Attorney.
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TOUTING (page 24)
MEANING
Tout., touting. (n)= a person who hangs about to give information, get tips, etc.
Tout. ( V.t) = to act as a tout.
An advocate shall not engage touts to obtain cases. Payment of commission to touts or third persons to procure clients is unprofessional. It is evil for advocacy.
BRIEF: It is the duty of advocate to prepare a good brief. He has to draft a good standard pleadings following the procedures rules and ethics of the court he has to follow the instructions and genuine events of the cause, while preparing the pleadings. He should not take instructions from unauthorized persons. The brief must be good in all aspects. It means it should be correct grammatically.
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Marupaka Venkateshwarlu M.A,B.Ed,LLB.
ETHICS AND ETIQUETTE OF LEGAL PROFESSION (page 42)
Ethics (n)= the science of moral and duties; a moral philosophy or moral science, i.e. that branch of philosophy which studies the principles which determine the rightness or wrongness of particular acts or activities; customary behavior or morals.
Etiquette (n) = Social formalities and rules; the rules of behaviour standard in polite society. Rules governing professional conduct, e.g. advocacy etiquette, medical etiquettes court ceremonial or conventions of official life.
DISTINCTION BETWEEN ETHICS AND ETIQUETTE
Ethics are morals. It is the first stage of polite society. Etiquette is the second stage of polite society which are formulated into the rules of behavioral standard in a particular polite society.
Ethics are seen in every kind of human life. They are inherent in every religion. Etiquette are the rules of behaviourial standard in a stated polite society, viz. medical etiquette, legal etiquette, etc.
Ethics were born in human civilization since the beginning. Every religion preaches morals and ethics to every person to that entire society. Etiquette are restricted to particular kind of profession etiquette are nothing but regularization of ethics. Ethics are nothing but a bundle of habits. Etiquette are noting but a bundle of rules of ethics. These rules have statutory force. Whereas ethics have no statutory force. Thus ethics are older than etiquette.
Ethics and etiquette are necessary for every person. However, they are more essential and necessary to an advocate, being legal profession is a noble and public profession.
EXAMPLE: An advocate shall not do side business. He shall not advertise. He shall not wear his dress in public places, etc. these were the traditional ethics at one time. later these ethics were formulated into statutory rules. i.e. Into law, by certain acts and rules made there under, viz, the legal practitioners act, 1879, bar council act, 1926, letters patent of several high courts. Etc.
ETHICS ETIQUETTE
- Ethics are morals. Ethics means the Etiquette are statutory rules etiquette means the science of morals and duties. rules of behaviour standards.
- These are the first stage in a society. These are refined and approved
- These are seen in every kind of human These are found only in particular kinds of life profession or sect or country.
- These are inherent in every man. These are published by way of notifications official gazettes, rules, statutes, etc.
- Generally these are found in religions. General, they are formulated by a particular body authorized to do so.
- Ethics are older than etiquette. They Etiquette are newer, novel and modest than have started along with the starting of ethics. They have started and acquired statutory human civilation. form along with the common law of England. Thereafter they spread all over the common – wealth countries, wherever britishers rules.
- These are a bundle of habits and These are a bundle of rules. morals.
- Ethics are general and infinite. These These are necessary to control and regulate a
Marupaka Venkateshwarlu M.A,B.Ed,LLB.
are necessary to control and regulate particular profession. every human being. 8
- If these are violated, there can be no If these are violated, it can be termed as punishment. professional misconduct and there are punishments against the violators.
- There shall be no external enquiry, There shall be complaint, proper enquiry by but only internal regret and proper authority, and finally punishment. confession.
- The person, who violates ethics, The person, who violates etiquette, can be cannot be expelled from the society or expelled, or suspended from the profession. profession.
- Ethics have their source from the Etiquette have the source of statutory and tradition, culture and heritage. delegated legislation.
- These guard the society at large and These guard their legal profession, society court, guide the person individually. administration of justice, and finally the individual advocate.
- These are helpful for the honour, These are helpful for the dignity, integrity and dignity and integrity of religion and honour of a profession. society in general
- Moral ethics of a person are not Etiquette of an advocate are strictly observed by observed by general public. the general public.
- Source : tradition, religion, morals, Source : tradition, morals, practice from practice from generation, usages, generations, usages, customs, particularly ethics. customs.
- Ethics are helpful to upright a person. Etiquette are helpful to upright entire profession and thereby helpful to the society.
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PROFESSIONAL MISCONDUCT (page 46)
MEANING :
MISCONDUCT (N) = Bad behaviour
Misconduct (v reflex). = to have oneself badly.
Professional misconduct = both give the same meaning. Dos and donots are laid down by the professional ethics and etiquette. The advocates act, 1961 is the parent act. Under the 1961 act, bar council of India and state bar councils are constituted for controlling and regulating the advocacy profession. The 1961 act delegates powers to make the rules for the purpose of controlling and regulating the enrolment, enquiry, suspension, removal of the advocates.
The disciplinary committee of state bar councils and the disciplinary committee of the bar council of India are constituted by the 1961 act. These are the domestic tribunals constituted with the sole object and purpose of protecting the advocacy profession, and punishing the advocates whoever violate their duties and obligations.
Marupaka Venkateshwarlu M.A,B.Ed,LLB.
of justice or which renders a professional unworthy of right to exercise the privilege of the profession would amount to misconduct attracting the wrath of disciplinary jurisdiction.
ii). A mere error of judgment or expression of a reasonable opinion or taking a stand on a doubtful or debatable issue of law is not misconduct; the term takes its colour from the
underlying intention. But at the same time misconduct is not necessarily something involving moral turpitude. It is a relative term to be construed by reference to the subject- matter and the context wherein the term is called upon to be employed. A lawyer in discharging his professional assignment has a duty to his client, a duty to his opponent, a duty to the court.
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ACCOUNTANCY FOR LAWAYERS (page 58)
INTRODUCTION :
An advocate is a professional, like doctor, architect, chartered accountant engineer and so on. He has to maintain accounts as per the income-tax act, 1961, the advocates act, 1961 and the bar council of India rules, 1975.
The relationship between a doctor and his patent is quite different from that of the relationship between an advocate and his client. The advocacy is a noble profession, which cannot be compared with other profession. Still there is economic relationship between an advocate and his client, advocates and the court, and advocate and other persons. Client is a layman. He completely depends upon advocate for his legal redressal. Thus, besides an ordinary obligation between an advocates and client, there are certain social obligations upon the advocates. We have read about the relations between the advocate and his client in the first part of this book.
A client entrusts his case to his advocate completely trusting him. Entrusting a case means in turn. Entrusting certain amount and properties in general or rights in extraordinary circumstances advocate becomes responsible for the economical transactions between him and the court.
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The advocates’ fee rules (page 63))
Article 277 of the Constitution of India and Section 27 of the Legal Practitioner’s Act, 1879 empower every High Court to frame the rules regulating the Advocates’ Fee s in its jurisdiction. The Andhra Pradesh Hight Court has framed The Andhra Pradesh Advocates Fee Rules, 1990. There are 54 Rules in the 1990 Rules. Every advocate practicing in this State should collect the fees according to the fixed rates and to issue receipts to his clients accordingly. Further he has to maintain bill book with serial number, cash register and other documents as per the Income-tax Act and Rules.
Rules :
- These rules may be called ‘The A.P.Advocates’ Fee Rules”
- In these Rules unless the context otherwise requires –
Marupaka Venkateshwarlu M.A,B.Ed,LLB.
(i) “Advocate” includes a Pleader authorized to practice in Courts within the meaning of Advocates Act;
(ii) “District Court” means and includes the highest Court in the District and any other Court equivalent to such Court within the meaning of the Civil Courts Act and includes the Courts of the Chief Judge, Additional Chief Judges and the 11 Chief Judge and the Additional Chief Judge of the City Civil Small Causes Court within the City of Hyderabad.
(iii) “Sub-Court” includes the Court of the Subordinate Judge in the districts including the Additional Subordinate Judges and in the City of Hyderabad includes the Courts of the Additional Judges, City Civil Court and Additional Judge, City Small Causes Court;
(iv) “District Munsif Court” includes the Courts of the District Munsif in the District and Assistance Judges in the City Civil Court.
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Accounting (page 67)
Accounting / accountancy : work of recording money paid, received, borrowed, owned etc. The word ‘accounting’ is used in the USA to mean the subject as a course of study, where British English uses ‘accountancy’. In India, both the terms are used for collection, recording classification and presentation of financial date for the benefit of management and outside agencies such as shareholders, creditors, bankers and government.
Accountant : A person who keeps a company’s or a society’s or a union’s or a person’s accounts and prepares financial statements; and expert in accounting and financial matters generally; a person who examines a company’s accounts.
History : The accounting system was developed along with the trade, commerce and industry. It was followed in 4500 B.C. in the ancient civilizations of Babylonia and Assyria. The Double Entry System of today was propounded first in Geneva in 1340.
In Hindu mythology, one Chitragupta, is the accountant of the Hell, who writes the account of events of every living being.
Accountants were appointed and working in the Darbars of Hindu Kings and Muslim emperors. Chanakya Kautilya, the Guru of emperor Chandra Gupta, wrote ‘Artha Sastra’. In that book, he wrote the methods of accounting. He narrated several advantages of accounting and procedures for writing accounts. He also advised the Kings to appoint inspectors to inspect the accounts and supervise the accountants.
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BRANCHES OF ACCOUNTING
There are three important branches of accounting. They are;
- Financial accounting
Marupaka Venkateshwarlu M.A,B.Ed,LLB.
DISTINCTION BETWEEN THE CONCEPTS “BAR –BENCH RELATIONS” AND “ADVOCATE’S DUTY TO COURT”
BAR-BENCH RELATIONS ADVOCATE’S DUTY TO COURT
- The concept Bar-Bench relations is The concept ‘Advocate’s Duty to court’ is more wider and omniferous. narrower.
- This concept has multi-faceted This concept has limited objects and purposes and objects. purposes, i.e. to control and regulate the advocates in the court.
- It consists positive and negative It consists only negative directions to the directions. advocates.
- This concept is aimed to regulate this concept is aimed to regulate and control and control both the bar and bench only the bar, and it aims to control and and particularly it is aimed to regularize the legal profession, not exceeding harmonise the relations between the to that limit. bar and bench.
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Marupaka Venkateshwarlu M.A,B.Ed,LLB.
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M. A, B. E d, LL B.
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Pa ge 14
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ADVOCATE’S DUTY TO THE COURT (page 107)
Scope : An advocate shall, at all times, comfort himself in a manner befitting his status as an officer of the court, a privileged member of the community, and a gentleman, bearing in mind that what may be 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.
An advocate shall fearlessly uphold the interests of his client, and he has to follow the principles of ethics and etiquette both in letter and in spirit. The bar council of India rules, state bar councils rules mention certain canons of conduct and etiquette as general guides. Yet, the specific mention thereof shall not be construed as a denial of the existence of others equally imperative though not specifically mentioned in them.
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BOYCOTT (page 109)
Boycott. (v.t). = to join with others in refusing to have any dealings with (some other individual or group); to exclude a product from a market by united action.
Boycott has become a regular practice in schools, colleges, factories, offices etc. wherever there is a strong trade unionism, boycotts are conducted very often. It is no doubt it achieves the favourable results by its collective bargaining power. It may achieve to fulfil their demands. Fundamentally, the principle of boycotting, whether good or bad in other fields, is a debatable point to the discussed in the light of social, educational and economical factors. The important question is that howfar, it is genuine in legal profession. The question is that are the advocates equal to the workers of a factory or to the students of an institution?
It is a million dollars question. Today, bar associations are giving “call” for boycotting the courts on trivial matters and some other big burning points.
Examples :
a). The advocates of Andhra Pradesh did boycotting the courts. The demand was to have a high court bench at guntur. High court advocates also boycotted high court on this issue some days.
b). a traffic inspector beat an advocate (practicing in city civil court, Hyderabad). It caused annoyance and humiliation among co-advocates of city civil court, Hyderabad and they boycotted the courts for several days. The high court advocates also boycotted high court for two days on this issue.
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INTRODUCTION : prior to the 1926act, the contempt proceedings were undertaken by the courts of record under various statutes which were in force at that time. in fact, the then British Indian courts exercised uncontrolled power relating to the contempt of the court proceedings.
Marupaka Venkateshwarlu M.A,B.Ed,LLB.
Some of the defects in the existing laws at that time were remedied by enacting. The contempt of courts act,1926. The contempt of courts (Amendments) Act, 1937 brought certain other modifications. In place of the 1926act, the contempt of courts act, 1952 was enacted by the Indian parliament after the independence.
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CONTEMPT.(N) = arrogance, contemn, scorn, disdain, disobedience, disorder, disregard, haughtiness, hauteur, neglect, ruction, ruffianism, unruliness, violation.
Contemner, contemnor. (n) =one who contemns. Contempt of court (ph) = a contempt is a willful disregard or disobedience of a court.
DEFINITION : Sec .2(a) of the contempt of courts act, 1971 defines: ‘contempt of court’ means civil contempt of criminal contempt.”
SEC 2(B) of the contempt of courts act, 1971 defines “civil contempt’ means willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court.
Sec 2(c) of the contempt of courts act, 1971 defines: ‘Criminal contempt’ means the publication (whether by words, spoken of written, or by signs, or by visible representation or otherwise) of any matter or the doing of any other act whatsoever which…
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CONTEMPT BY ADVOCATES (page 140) INTRODUCTION:
We have read the concept of contempt of court. The object and purpose of the contempt of courts act,1971 are to maintain the decorum and dignity of the court. If the courts decorum and dignity are not honoured, it gives a wrong meaning and direction to the general public.
Advocates are part and parcel of the court. They may also be treated as court officers. Our traditions require mutual respect, courtesy and understanding between the bench and the bar if justice is to be done effectively and efficiently by our courts. Therefore, advocates should always respect the court. They must be helping the court proceedings in a polite and polish way.
If any advocate behaves with impolite and indecent manner, and behaves unruly, he is liable to the punished under the Rules of Bar council of India rules. Further he is also liable to punished under the provisions of the contempt of courts act, 1971.
We have studied general cases and instances relating to civil contempt and criminal contempt pertaining to general public. In this topic, we study some of the important case – laws and instances relating to contempt by lawyers. = = = ooOoo= = =
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