Author Name:   mohanroy

Rules 47 to 52 of Bar Council of India Rules puts a restriction on advocates from taking up other employments....

Restriction on Advocates to take up other employments

A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person licensed to practice law." The profession of law is called a noble profession. It does not remain noble merely by calling it as such unless there is a continued, corresponding and expected performance of a noble profession. Its nobility has to be preserved, protected and promoted. An institution cannot survive in its name or on its past glory alone. The glory and greatness of an institution depends on its continued and meaningful performance with grace and dignity. The profession of law being noble and honourable one, it has to continue its meaningful, useful and purposeful performance inspired by and keeping in view the high and rich traditions consistent with its grace, dignity, utility and prestige. Hence the provisions of the Advocates Act and Rules made there under inter alia aimed at to achieve the same ought to be given effect to in their true spirit and letter to maintain clean and efficient Bar in the country to serve cause of justice which again is noble one. The Supreme court in Dr. Haniraj L. Chulani vs. Bar Council of Maharashtra & Goa, while dealing with the validity of Rule 1 of the Maharashtra and Goa Bar Council Rules relating to enrolment of Advocates eligibility conditions, in para 20 has observed that `legal profession requires full time attention and would not countenance an Advocate riding two horses or more at a time'. The Bar Council has framed specific rules in this regarding putting restriction on other employments by the Advocates.

Chapter II of the Bar Council of India Rules made under Section 49(1)(c) of the Act read with the proviso thereto deals with standards of professional conduct and etiquette. Preamble of Chapter II reads: -

"An advocate shall, at all times, comport 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. Without prejudice to the generality of the foregoing obligation, an Advocate shall fearlessly uphold the interests of his client, and in his conduct conform to the rules hereinafter mentioned both in letter and in spirit. The rules hereinafter mentioned contain canons of conduct and etiquette adopted as general guides; yet the specific mention thereof shall not be construed as a denial of the existence of other equally imperative though not specifically mentioned."

Rules 47 to 52 of Section VII of the rules deals with restrictions on other employments. This restriction is considered as a general etiquette on the part of lawyers as the profession of law is a noble profession and requires full time dedication.

Restriction on Other Employments
Rule 47 provides that an advocate shall not personally engage in any business; but he may be a sleeping partner in a firm doing business provided that in the opinion of the appropriate State Bar Council, the nature of the business is not inconsistent with the dignity of the profession. Rule 48 makes it very clear that an advocate may be Director or Chairman of the Board of Directors of a company with or without any ordinarily sitting fee, provided none of his duties are of an executive character. An advocate shall not be a Managing Director or a Secretary of any company. If the functions of the advocate as a member of the Board of Directors is in case executive in nature, then that action would be against rule 48. An advocate cannot run any business personally and earn a profit. Rule 47 strictly prohibits that.

Under Rule 49 of the Bar Council of India Rules, an advocate shall not be a full-time employee of any person, Government, firm, corporation or concern and on taking up such employment, shall intimate such fact to the Bar Council concerned and shall cease to practise as long as he is in such employment. However, there was an exception made in such cases of law officers of the Government and corporate bodies despite his being a full- time salaried employee if such law officer was required to act or plead in court on behalf of others. It was only to those who fall into other categories of employment that the bar under Rule 49 would apply[1]. An advocate employed by the Government or a body corporate as its law officer even on terms of payment of salary would not cease to be an advocate in terms of Rule 49 if the condition is that such advocate is required to act or plead in courts on behalf of the employer. But this exception were deleted in June, 2001 meeting vide Resolution No.65/2001[2].

The test, therefore, is not whether such person is engaged on terms of salary or by payment of remuneration, but whether he is engaged to act or plead on its behalf in a court of law as an advocate. In that event the terms of engagement will not matter at all. What is of essence is as to what such law officer engaged by the Government does - whether he acts or pleads in court on behalf of his employer or otherwise. If he is not acting or pleading on behalf of his employer, then he ceases to be an advocate. If the terms of engagement are such that he does not have to act or plead, but does other kinds of work, then he becomes a mere employee of the Government or the body corporate. Therefore, the Bar Council of India has understood the expression "advocate" as one who is actually practicing before courts which expression would include even those who are law officers appointed as such by the Government or body corporate.

In a case[3] a person was enrolled as an advocate despite being a full time salaried employee as Law officer. The State Bar Council (Bar Council of Himachal Pradesh) had not made any Rule entitling full time salaried Law officers for practising as an advocate. The work of the person so enrolled was not mainly or exclusively to act or plead in Court as ‘Law officer’. He was not entitled to be enrolled as an advocate. His name may be removed from the roll of State bar council. Such removal was not taken as punishment but rectification of mistake. Thus the cancellation or withdrawal of enrolment was not taken as a punishment and therefore, in such condition the procedure to be followed in case of punishment for professional misconduct was not required to be observed.

If in the rules of any State Bar Council, a provision is made entitling Law officers of the Central government or a State or any Public Corporation or body constituted by a statute, the bar contained in Rule 49 shall not apply to such officers despite them being full time salaried employees. The court has observed further that not every Law officer, but only a person who is designated as a Law Officer by terms of his appointment and who, by the said terms is required to act and/or plead in courts on behalf of his employer can avail the benefit of the exception contained in Rule 49.

Rule 50 provides that an advocate who has inherited, or succeeded by survivorship to a family business may continue it, but may not personally participate in the management thereof. He may continue to hold a share with others in any business which has descended to him by survivorship or inheritance or by will, provided he does not personally participate in the management thereof. As the purpose of these restrictions is to preserve the dignity and nobility of the legal profession, holding of share with others in any business which he inherited is not prohibited provided he is not participating in the management of the business there by compromising on the dedication and attention to the profession.

According to rule 51 an advocate may review Parliamentary Bills for a remuneration, edit legal text books at a salary, do press-vetting for newspapers, coach pupils for legal examination, set and examine 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 has a duty to his colleagues under Rule 36 not to solicit work or advertise, either directly or indirectly, whether by circulars, advertisements, touts, personal communications, interviews not warranted by personal relations, furnishing or inspiring newspaper comments or producing his photographs to be published in connection with cases in which he has been engaged or concerned. The occupations allowed under Rule 52 are subject to this rule also.

Rule 51 enacts a prohibition. It is a principle of professional ethics now embodied in a statutory rule. The violation of the rule makes the legal practitioner guilty of professional misconduct. But it does not prohibit a dismissed Government servant who has obtained so laboriously a declaration in his favour from claiming his just dues of salary or arrears of pay. The members of a profession must conform to the ethical standards of the profession. Rule 51 requires conformity. Law is monopolistic profession.[4]

If the appointment as Assistant public Prosecutor is for the purpose of creating an employment for him, then it is needless to say that Rule 51 of the Bar Council of India Rules would segregate him from advocates. Therefore, it would not be possible for him to contend that by adding the years, of working as A.P.P he would be having seven years standing as an advocate. But if it is to be interpreted that Sec 25 of the Code of Criminal Procedure enjoins the appointment of an advocate as Assistant Public Prosecutor for conducting prosecution in courts of Magistrates, then it debars the appointee to call himself an advocate. Sections 24, 29 and 30 of the Advocates Act, 1961 and the rules of the Bar Council of India also would deny him the right to be called an advocate as having been appointed as A.P.P. Therefore, such a person cannot be permitted to add the period serving as A.P.P to the period of practising as advocate for claiming “seven years’ standing’ as an advocate.[5]

Rule 51 permits the lecturing and teaching subjects, both legal and non-legal. However, this right is subject to the Advocates (Right to take up Law teaching) rules, 1979. According to rule 3 of the said rules an advocate may, while practicing, take up teaching of law in any educational institution which is affiliated to a University within the meaning of the University Grants Commission Act, 1956 (3 of 1956), so long as the hours during which he is so engaged in the teaching of law do not exceed three hours in a day. When any advocate is employed in any such educational institution for the teaching of law, such employment shall, if the hours during which he is so engaged in the teaching of law do not exceed three hours, be deemed, for the purposes of the Act and the rules made there under, to be a part-time employment irrespective of the manner in which such employment is described or the remuneration receivable (whether by way of a fixed amount or on the basis of any time scale of pay or in any other manner) by the advocate for such employment.

Rule 52 states that nothing in these rules shall prevent an advocate from accepting after obtaining the consent of the State Bar Council, part-time employment provided that in the opinion of the State Bar Council, the nature of the employment does not conflict with his professional work and is not inconsistent with the dignity of the profession. This rule shall be subject to such directives if any as may be issued by the Bar Council India from time to time. Teaching of law for not more than three hours a day is considered as a part-time employment.

References
1. Gururaja Chari, Advocacy & Professional Ethics, 1 ed, 2005,Wadhwa & Co, Nagpur
2. Ramantha Aiyer, Legal and Professional Ethics, 3 ed, 2003, Wadhwa & Co, Nagpur
3. Sandip Bhalla, Advocates Act 1961 and Professional Ethics,2 ed, 2004, Nasik Law house
4. Prof. Rai Kailash, Legal Ethics, Accountability for Lawyers and Bench-Bar Relations, 8 ed, 2008, Central Law Publications, Allahabad.
--------------------------------------------------------------------------------
[1] Sushma Suri v. Government of National Capital Territory of Delhi, 1993 (3) S.L.J 34 at p. 38 (S.C): Satish Kumar v. Bar Council of Himachal Pradesh, AIR 2001 S.C 509 at p. 516.
[2] Gazette of India, Part III, Sec 4, dated 13th October, 2001.
[3] Satish Kumar v. Bar Council of Himachal Pradesh, AIR 2001 S.C 509
[4] Union of India v. Kewal Krishna Mittal, 1984 (25) D.L.T 24
[5] Akhilesh Kumar Misra v. High Court of Judicature at Allahabad, AIR 1995 All 148

The  author can be reached at: mohanroy@legalserviceindia.com

ISBN No: 978-81-928510-1-3
Print this Article

Comments  :  

Follow the Procedure Below To Submit Your Articles

Submit your Article by using our online form Click here
Note* we only accept Original Articles, we will not accept Articles Already Published in other websites.
For Further Details Contact: editor@legalserviceindia.com

File Your Copyright - Right Now!

Online Copyright Registration in India
Call us at: 9891244487 / or email at: admin@legalserviceindia.com