ADVOCATE

INTRODUCTION

The term Advocate was first recorded in the English language in the 1300s as a noun,according
to the Oxford English dictionary.The word stemmed from the French word ‘avocat’ and before
that the Latin word ‘advocatus’.Advocatus literally means ‘to come to someone’s aid in the
courtroom’.This could mean the very first public advocacy program in the world involved the
beginning of law and lawyers.In modern legal terminology,the term advocate can have diverse
meanings depending on the legal system of the said country.For example, In Scotland the word
refers particularly to a member of the bar of Scotland, the Faculty of Advocates. In the United
States the term advocate is used interchangeably with such terms as attorney, counsel, or
lawyer.In India,the term loosely translates to a person who is eligible to represent his/her client
in the court and is different from a lawyer.

The history of modern advocacy in India began during the pre-independence era with
establishment of Mayor's Courts in Madras , Bombay and Calcutta in 1726(there was no
established legal profession until the establishment of the Mayor’s Court).The next step was the
Legal Practitioner Act 1846, which opened the doors of legal profession to all those who were
duly qualified,certified and who were of good character irrespective of nationality and
religion.The Legal Practitioner Act 1879,consolidated the six grades of legal practice(There
were six grades of legal practice in India before this act) into single system under the jurisdiction
of High Court.Next came, the Legal Practitioner's (Women) Act, III of 1923 which granted Indian
women, the right to take up the legal profession and practice as Advocates in the Courts of
Law.In 1961, parliament enacted the Advocates Act, 1961 which abolished all the old classes of
experts and legal practitioners (vakils, barristers, pleaders of various grades, and mukhtars) and
compiled it into a single category known as “Advocates” who enjoys the privilege to practice in
courts throughout the India.

REQUIREMENTS TO BE AN ADVOCATE IN INDIA

The process to be an advocate in India is twofold.The first step is to obtain a bachelor’s degree
in law, i.e L.L.B (Legum Baccalaureus).The second step is to enroll in any of the State Bar
Councils regulated by the Advocates Act 1961 and upon completion of registration with the
State Bar Councils, clear the All India Bar Examination (AIBE).

The bachelor’s degree in law can be either a three year course or a five year course from any
University in India which is recognised for the purposes of the Advocates Act 1961 by the Bar
Council of India.A person to be admitted as an advocate on a State roll, must fulfill the following
conditions(as per section 24 of the Act):
(1)He is a citizen of India.(a national of any other country can also practice, only if Indians are
allowed to practice in that other country(the statement is subject to the provisions of the act))(2)
He has attained the age of 21 years
(3) He has completed his bachelors in accordance with the Act
(4) He fulfils such other conditions prescribed in the rules made by the State Bar Council under
Chapter 3 of the Act.
After checking that he/she meets the above mentioned requirements,the candidate should apply
to the State Bar Council for enrollment and upon successful enrollment his/her name will be
entered in the state roll and a certificate of enrolment in the prescribed form will be issued to the
candidate by the State Bar Council.Next step in the procedure is to appear for All India Bar
Examination (AIBE).The examination is conducted twice a year by the Bar Council of India.The
Bar Council of India decides the percentage of marks required to pass the examination.The
unsuccessful candidates can appear the examination again without any limit of
reappearances.The examination tests the knowledge of the advocates on substantial and
procedural law areas and once a candidate passes the Bar examination, he/she receives a
Certificate of Practice.

RIGHTS AND DUTIES OF AN ADVOCATE

The advocates in India enjoy ‘right to practice’.The expression ‘right to practice’, refers to the
exclusive right of persons enrolled as advocates to engage in practice of law before courts and
tribunals.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 or
other authority(as mentioned in chapter 4 of the advocates act)in India including the Supreme
Court. This section has been recently made effective through a notification issued by the Central
Government.
Section 29 and 33 of the Act makes the “right of practice” an exclusive right and precludes all
persons other than advocates from practicing law.However, section 32 of the Act provides a
special power to any court or authority or person (as mentioned in chapter 4 of the advocates
act) to permit any person, not enrolled as an advocate under the Act, to appear before it/him in
any particular case. In contrast to preceding discussion, in Harish uppal v Union of
India((2003) 2 SCC 45), the court decided that advocates right to appear and conduct cases in
court is not absolute but is subject to rule framed by supreme court under article 145 or High
court under section 34 of the Advocates Act.The court thus have power to debar an advocate
guilty of contempt, unprofessional or unbecoming conduct from appearing before court.
Part VI of Chapter II of The bar council rules provides rules regarding Standards of Professional
Conduct and Etiquette of an advocate.The preamble to the chapter states that advocate being a
privileged member of community and officer of the court must uphold morals which are higher
than a regular man.The preamble makes it clear that Part VI of Chapter II of The bar council
rules contain canons of conduct and etiquette which are to be adopted as general guides but in
no way they are to be construed as a denial of the existence of others equally imperative
though not specifically mentioned. The aforementioned provision divides the duty of an
advocate into 4 sections which are as follows-1)duty to the court,2)duty to the client,3)duty to
opponent, and 4)duty to colleagues.These can be summarised as follows:
(1)Advocate's Duty to the Court-To maintain a respectful attitude towards the courts and legal
system.To conduct himself with dignity and self-respect.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.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.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.
(2)Advocate's Duty to the Client-To accept a brief where the client is able to pay the fee and no
conflict of interest or other reasonable justification existsTo 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 withdraw from an engagement except with sufficient cause and reasonable
notice and to refund unearned fee upon such withdrawal.To fearlessly uphold the interests of his
client by all fair and honourable means.To ensure confidentiality of facts disclosed by the
client.To ensure adequate representation of the client’s interests.To not do anything whereby he
abuses or takes advantage of the confidence reposed in him by his client.To not appear for the
opposite party in the same matter after withdrawing from an engagement.To not foment
litigation.To not do anything whereby he abuses or takes advantage of the confidence reposed
in him by his client.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 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.
(3)Advocate's Duty to the Opponent Advocate-To make communications only through the
opposite party’s advocateTo carry out all promises made even where it is not reduced in writing.
(4) Advocate's Duty to the Colleagues-Duty to facilitate legal education, training of young
lawyers and research in legal discipline.Duty to render legal aid to those in need.

RESTRICTIONS PLACED ON ADVOCATES

Advocacy is a noble profession, which means that it is a profession in which the welfare of
society is prioritized over the welfare of self.Henceforth, many rules and acts have been passed
to preserve the nobility of profession.Some of these laws put different types of restrictions on
advocates to prevent the misconduct.The Bar Council of India places certain restriction on an
advocate to uphold the integrity of legal profession.Section 7(Chapter II, Part VI of The Bar
Council of India Rules ) places following restrictions on an advocate so as to maintain
professional standards of advocacy and prevent any misconduct:

Firstly,the Bar Council of India Rules prevents an advocate from engaging in any personal
business.He/she can be a sleeping partner in a firm, if appropriate State bar council is of opinion
that firms business is not inconsistent with ethics of advocacy.Secondly, the rules prevent an
advocate to hold any position of executive nature.Thirdly, an advocate is prohibited to be a
full-time salaried employee of any person, government, firm, corporation or concern,as long as
he continues to practice.Fourthly,an advocate who has inherited a family business may continue
it, but may not personally participate in its management.Lastly,an advocate can take up a part
time after obtaining consent from appropriate state bar council and adhering to prevalent laws of
our country.The aforementioned restrictions on prima facie seems to be in conflict with certain
fundamental rights(article 14 and article 19(1)(g)) guaranteed by our constitution but in the case
of Haniraj H. Chulani v Bar council of Maharashtra & Goa(1996 SCC (3) 342), the above
conflict was cleared by the Supreme court(S.C).The S.C held that the rule made by bar council
restricting the entry of person already carrying on other profession is not arbitrary and therefore,
not against Article 14 of the constitution.The rules are not in conflict with article 19(1)(g) of the
constitution as article 19 is subject to clause 6 of article 19 which provides that nothing in
sub-clause (g) of clause (1) of article 19 shall affect the operation of any existing law in so far as
it imposes or prevents the state from making any law imposing, in the interests of general
public, reasonable restrictions on the exercise of the right conferred by the said
sub-clause.Thus,the rules provide reasonable and valid restrictions.
The Bar Council of India Rules provides certain relaxation to advocate and allow them to review
Parliamentary Bills for a remuneration, edit legal textbook at a salary, do press-vetting for
newspapers, coach pupils for legal examination, set exam 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.An advocate is also disallowed solicit
work or advertise in any manner.

CONCLUSION

The discussion above described the evolution of advocacy in India,procedure to be an advocate