Right of practice

The expression ‘right to practice’, in context of the legal profession refers to the exclusive right of persons enrolled as advocates to engage in practice of law before courts and tribunals. In Re. Lily Isabel Thomas 1964CriLJ724 the Supreme Court equated “right to practice” with “entitlement to practice”. This right enjoys protection at two levels:

• General protection – Article 19(1)(g) of the Constitution of India protects the right of individuals to practice professions of their choice. As members of the legal profession, advocates partake in this right along with members of other trades, occupations and professions.
• Specific Protection – Section 30 of the Advocates Act, 1961 confers on persons whose name is enrolled in the registers of State Bar Councils the right to practice before any court or tribunal in India including the Supreme Court. This section has been recently made effective through a notification issued by the Central Government.

Section 29 of the Advocates Act makes the right of practice an exclusive right and precludes all persons other than advocates from practicing law.

Duties of an Advocate

Duties towards the client

• To accept a brief where the client is able to pay the fee and no conflict of interest or other reasonable justification exists
• To not accept brief where there is a conflict of interest with the client unless a frank disclosure has been made to the client about such conflict.
• To not appear in a matter where the advocate may be a witness
• To not withdraw from an engagement except with sufficient cause and reasonable notice and to refund unearned fee upon such withdrawal.
• To fearlessly to uphold the interests of his client by all fair and honourable means without regard to any unpleasant consequences to himself or any other. He is to defend a person accused of a crime regardless of his personal opinion as to the guilt of the accused, bearing in mind that his loyalty is to the law which requires that no man should be convicted without adequate evidence.
• To not foment litigation
• To ensure adequate representation of the client’s interests
• To tender the best legal advice according to his ability to the client
• To be diligent in handling the client’s matters.
• To ensure confidentiality of facts disclosed by the client.
• To not take instructions from any person other than the client or his authorized agent.
• To note enter an arrangement of contingent fee.
• To not bid for or purchase any property which is being auctioned in execution of a decree in a suit or appeal if he has been engaged in the matter.
• To not adjust fee payable to him by his client against his own personal liability to the client
• To not do anything whereby he abuses or takes advantage of the confidence reposed in him by his client.
• To keep accurate accounts of the client’s money entrusted to him and to provide copies of such accounts.
• To immediately intimate the client of any payment received on behalf of the client.
• To not enter into arrangements whereby funds in his hands are converted into loans.
• To not lend money to his client for the purpose of any action or legal proceedings in which he is engaged by such client.
• To not appear for the opposite party in the same matter after withdrawing from an engagement.

 

Duties towards the court

• To maintain a respectful attitude towards the courts and legal system, bearing in mind that the dignity of the judicial office is essential for the survival of a free community.
• To conduct himself with dignity and self-respect and to not be servile.
• Whenever there is proper ground for serious complaint against a judicial officer, to submit such grievance to proper authorities as this is the duty of an advocate towards improving the legal system and keeping it efficient.
• To not influence the decision of a court by any illegal or improper means and to avoid private communications with a judge relating to a pending case are forbidden.
• To conduct himself as not merely a mouthpiece of the client, but an officer of the Court. The advocate should dissuade the client from using unfair means and should refuse to represent a client who persists in use of such means.
• To appear before the court only in the prescribed uniform and to not wear a band and gown except in court and other prescribed ceremonies.
• To not appear before a court or tribunal where a close relative is a member.
• To not represent an organization if the advocate is a member of the executive committee of the organization.
• To not conduct a prosecution in such a manner as to knowingly secure the conviction of an innocent person.

Duty to opposite party

• To make communications only through the opposite party’s advocate
• To carry out all promises made even where it is not reduced in writing.

Duty to colleagues:

• To not advertise or solicit work and to not indicate special positions, expertise, etc. in name plates, name boards, stationery, etc.
• To not facilitate unauthorized practice of law.
• To not take an unreasonably low fee where the client can afford to pay
• To not accept an engagement in a matter where another advocate has already been engaged except with his consent or permission of the court

Duties to the society

• Duty to facilitate legal education, training of young lawyers and research in legal discipline
• Duty to render legal aid to those in need.

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