A person educated/learned in law and duly admitted to practice, who assists his client with advice, and pleads for him in open court.
-Holthouse
Black Law’s Dictionary defines ‘Advocate’ as the one who assists, defends, or pleads for another; one who renders legal advice and aid and pleads the cause of another before a court. An Advocate is a person authorized to appear in a litigation on behalf of a party and who possess a law degree, enrolled with the Bar Council in accordance to the prescriptions laid by the Advocates Act, 1961.
Advocates form the only guild of people legally entitled to practice law. After being authorized to appear in a case by a client who has signed a vakalatnama, the advocates prepare cases and argues them in Court. Bombay and Calcutta High Courts have separate class of legal practitioners, called Solicitors. While appearing before a bench in the courtroom, an advocate is ought to dress in black and white and wears a band and gown. Any complaint against an advocate is made to the Bar Council of India.
Advocate on Record
An Advocate on Record is the one who has cleared or qualified the assessment examination conducted by the Supreme Court of India. The examination is taken by an advocate who has been enrolled with the Bar Council for at least five years and has completed one year training with an Advocate on Record of not less than five years standing. All the procedural aspects of a case are dealt with by the him, with the assistance of a registered clerk. He is accountable, by the Court, for the conduct of the case. Any notices and correspondence from the Court are sent to the him and not to the party.
Amicus Curiae, stands for ‘friend of the Court’ is a Latin phrase for the advocate who appears in his own capacity when asked to help with the case by the Court or on volunteering services to the Court.
Importance of being enrolled
As a law graduate, one has umpteenth options to choose from. Either one can practice privately/independently or as a corporate lawyer or serve in the government sector. Enrolment with the Bar Council ensures that the degree holder has a recognizable title as an Advocate and is required to maintain a standard of conduct and professional demeanour. The Bar Council of India also prescribes “Rules of Conduct” to be observed the Advocates in the courts, while interacting with clients and even otherwise. Further, a classified record tends to provide a exact configuration of number of lawyers present in an area.
Enrolment in the Bar Council
Section 24 of the Advocates Act specifies the qualifications of a person entitled to be enrolled into the Bar. If he/she fulfils the following criterion subjected, then he/she is considered to be qualified:
- He is a citizen of India, although a national of any other country may be admitted as an advocate on a State roll, if citizens of India, duly qualified, are permitted to practise law in that other country, subject to other restrictions.
- He has completed the age of twenty-one years.
- He has obtained a degree in law after the 12th day of March, 1967, after undergoing a three/five years course of study in law from any University in India which is recognised for the purposes of the Advocates Act by the Bar Council of India. In some cases, a lawyer who has obtained a degree from any University outside the territory of India, if the degree is recognised for the purpose of this Act by the Bar Council of India, he may be admitted.
- He fulfils such other conditions as may be specified in the rules made the State bar Council under the Chapter.
The candidate is required to, at first, clear the Bar Council of India examination. Thereafter the person can enrol himself/ herself under any State Bar Council. Eligible persons are admitted as advocates on the rolls of the State Bar Councils. The Advocates Act, 1961 empowers State Bar Councils to frame their own rules regarding enrolment of advocates. Different state bar councils have formulated their own rules regarding enrolment as an advocate. However, most of the State Bar Council requires the candidate to submit an application along with the degree of law and marksheets along with judicial Stamp paper and requisite fees.
The Applications of the candidates are scrutinised by the Enrolment Committee.
Under Section 24 (1)(f), all applicants for enrolment as advocates are required to pay an enrolment fee of Rs.600 to the respective State Bar Council and Rs.150 to the Bar Council of India. These payments should be made using separate demand drafts.
Steps and Procedures to be followed for enrolment
- The Bar Council of India conducts the All India Bar Examination, twice a year, that tests the knowledge of the advocates on substantial and procedural law areas as decided by the Bar Council.
- The syllabus of the examination is to be published by the Bar Council of India, before three months from the date of the examination.
- The Bar Council of India decides the percentage of marks required to pass the examination
- There is no limit on the re-appearances for the examination.
- Once an advocate passes the Bar examination, he/she receives a Certificate of Practice. As per the guidelines of All India Bar Examination Rules, 2010, an advocate, after passing the exam, is entitled to a Certificate of Practice which would permit him/her to practice under Chapter IV of the Advocates Act, 1961.
Enrolment in State Advocates Bar Association
Section 30 of the Advocates Act permits advocates to practice in all territories of India. Registered in the roll of one state, he can practice anywhere in the country, before any tribunal, authority and any person who is authorised to take evidence of the case.
However, to practice in a state other than where he is registered, the advocate needs to register himself in the respective Bar Council of the state where he wants to practice. Without registering with the State Bar Council, the advocate cannot practice. He needs to complete the registration process and pay the registration fees.
Further, he is also required to pay the annual fees of the State Bar Councils to continue with his membership.
Fraud in the guise of advocates
Professional misconduct is beyond what is considered to be acceptable. An advocate, playing with the sanctity of the Constitution and goes on to cheat his client doesn’t own any right to practice in courts. Any misconduct cannot give a leverage to be a permission to be on the Advocate’s roll. At the ground level, there has been several instances of unverified law degrees circulated rampantly in the racket.
Supreme Court, in NORATANMAN COURASIA V. M. R. MURALI, explored the amplitude and extent of the word “professional misconduct” in Section 35 of the Advocates Act. The main conflict was whether the act of the advocate amounted to misconduct, provided though he was not acting in the capacity of an advocate. It was upheld by the Supreme Court that a lawyer is obliged to observe the norms of behaviour expected of him, which make him worthy of the confidence of the community in him as an officer of the Court. In N.G. DASTANE v. SHRIKANT S. SHIND, continuously seeking adjournments, thereby causing immense inconvenience to the parties, was held to be amounting to misconduct.
What is to be done against an advocate indulged in misconduct?
Section 35(1) of the Advocate Act, 1961, says, where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to it disciplinary committee.
A complaint against an advocate has to be in the form of a petition before the Secretary of the Bar Council. It has to be duly signed and verified as required under the Code of Civil Procedure. Every complaint shall be accompanied by the fees prescribed in the Bar Council of India Rules. On a complaint being found to be in order, it shall be registered and placed before the Bar Council for such order as it may deem fit to pass.
Before referring a complaint for misconduct of an advocate to one of its Disciplinary Committees to be specified by it, the Bar Council may require a complainant to furnish further and better particulars or may call for comments from the advocate complained against, within a time to be fixed by it.
Once the Bar Council has referred the complaint to a disciplinary committee, the Registrar should expeditiously send a notice to the advocate and thus, the enquiry proceeding starts.
“The views of the authors are personal“
