- In India, the law that governs advocates is the Advocates Act, 1961.
- An advocate has the ‘right to practice’ guaranteed by Article 19(1)(g) of the Indian Constitution and Section 30 of the Advocates Act.
- Ad advocate also has many other rights such as the right to pre-audience, fee, meet client in jail, enter any court, not get arrested etc.
- Advocates have several duties towards both their clients and the Court.
- Towards the clients, the advocates have a lot of duties including accepting briefs, making honest disclosures, giving best legal advice, maintaining confidentiality, giving updates and not taking up the matter of the opposition in the same case.
- Towards to Courts, the advocates have the duties of maintaining a respectful attitude, conducting themselves with dignity, not trying to influence the court by illegal means, dressing up in the prescribed manner and not prosecuting an innocent person for conviction knowingly.
An Advocate is a professional or an expert in the field of law. The law governing Advocates is the Advocates Act, 1961 which was introduced by the Ashok Kumar Sen, the then Law Minister of India. The Advocates Act, 1961 is a law passed by the Parliament and is controlled and implemented by the Bar Council of India. The Bar Council of India is the chief administrative body to manage the whole system and consistency of law in India.
In India, each State has its own Bar Council whose role is to register the Advocates willing to practice within a particular State or region. The registration of an Advocate with a State Bar Council does not limit him to practice in that particular State or region and such an advocate is permitted to show up in any court in India. Basically, the State Bar Councils have the role of dividing the workload of the Bar Council of India. The State Bar Councils deal with the local issues in smoother ways.
The requirements for being an Advocate in India are twofold. Firstly, the applicant must be a law graduate from a registered institution in India (or from one of the four perceived Universities in the United Kingdom). Secondly, the applicant must pass the skills enlisted in the Bar Council of the State where the applicant wishes to enroll.
Rights of an Advocate:
Following are the rights that an Advocate in India has:
Right of Practice:
The expression ‘right to practice’ in terms of the legal profession refers to an exclusive right given to advocates to practice law before courts and tribunals. The right to practice is protected at two levels and they are as follows:
- General Protection: Article 19(1)(g) of the Indian Constitution protects the right of individuals to the practice of their choice.
- Specific Protection: Section 30 of the Advocates Act, 1961 states that a person enrolled with the State Bar Councils has the right to practice before any court or tribunal in India which also includes the Supreme Court. The Central Government made this section effective recently through a notification.
Right to Pre-audience:
Under Section 23 of the Advocates Act an advocate has the right to be heard first when he/she says something in the court of law. Advocates also have the right to not be interrupted before the completion of his statement.
Exemption from arrest:
S. 135 CPC guarantees all the advocates that they shall not be arrested in civil cases except in the cases of contempt of court and criminal offences, while going to, attending for some matter or returning from such a tribunal or court.
Right to enter in any court:
Under section 30 of the Act, all the advocates are entitled to practice in any court or tribunal in India. Therefore, even if they are not registered in that particular tribunal or court, they have the right to enter it. An advocate can enter the court and sit on any of the seats to observe the proceedings whether he has a case or not.
Right to meet accused in Jail:
An advocate can go to meet his client who is in jail as many times as he wants and there is no bar on that. There is no restriction on the number of times they can meet the clients.
Under s. 126 of the Indian Evidence Act, the communication between a lawyer and his client comes under professional communication. Such a communication shall not be revealed.
Right of fee:
Under Rule 11 of Chapter 2 of part VI of Bar Council of India Rules, an advocate has a right to take fees. This right is exercised according to his standing at the bar.
Right with respect to Vakalatnama:
When a Vakalatnama gets signed in the name of the advocate, he gets entitled to exclusively represent his client in that particular case
An advocate also has the rights to file a memorandum of appearance for an accused that he is no the lawyer for and also assist the Public Prosecutor during a case.
Duties of an Advocate towards his/her Client:
- An advocate is bound to accept briefs from a client and should levy fee at par as compared to the fee demanded by his fellow advocates practicing at the same Bar and according to the nature of the case. The advocate may justify the reason behind the refusal of a particular brief.
- It is the duty of an advocate to serve the client once he/she has agreed to serve them. He shall give a valid reason to withdraw from the case and sufficient notice to the clients. He shall refund a part of the fee not accrued to the client.
- It is the duty of an advocate to not accept a case or a brief where he will be appearing as a witness. Similarly, if the advocate has knowledge of appearing as a witness during the course of events, then he should not continue further in the case.
- It is important that the advocate shall make full and frank disclosures to the client in relation to the parties and an interest in the controversy.
- To give the best legal advice according to the best of his ability.
- To maintain the clause of confidentiality and not disclose personal details of the client.
- To keep an account of the client’s money entrusted to him and provide a copy of the same whenever it is required.
- To intimate the client upon any changes or keep him updated about the matter.
- To be diligent in handling the matter of a client.
- To not take up the matter of opposite party in the same case after withdrawing from the client’s end.
Duties of an Advocate towards the court:
- To maintain a respectful attitude towards the courts and legal system.
- An advocate shall conduct himself with dignity and self-respect.
- It is the duty of an advocate to not influence and let the decision of court be free from influence by any illegal or improper means.
- An advocate should be dressed in the prescribed form before appearing in court. He/she are not allowed to wear band and gown except in the court area.
- To not appear in the same court or tribunal he/she may have a close relative as a member.
- To not conduct a prosecution in such a manner as to knowingly secure the conviction of an innocent person.
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