Introduction:
An advocate is an individual upon whom the authority is conferred to represent a party’s case in a legal matter. In India, an advocate ought to first receive a law degree, after which he/she is enrolled with the Bar Council, as mandated by the Advocates Act, 1961. Advocates are the sole class of individuals legitimately entitled to practice law and provide legal advice. After being bestowed with the authority to represent clients whose permission letters have been signed, advocates prepare cases and argue them in Court. Given that an advocate is bestowed with considerable powers in the court of law while representing a client’s case in the interest of justice, it becomes imperative to gain a better understanding of the prescribed and expected standard of behavior from them when they are involved in the preparation of a case.[1]
Scope
The general purpose of this article is to establish an overview of the practice of advocates in any field of law within India. The article delves into peripheral facets of the same by studying the historical emergence of the position of advocates and the roles expected to be played by them in different countries through an international perspective. The paper concludes on how the practice of advocates is sine-qua-non in the field of law, due to which it is crucial to define and regulate their conduct when it comes to preparation of a case as well as maintaining a semblance of uniformity in the fees charged by them for various services.
Preparation of a Case and Fees of an Advocate
In India, the legal profession includes both the practice of law and professional legal education which is monitored by the Advocates Act, 1961. The Bar Council of India (BCI) is a regulatory body, authorized under the Advocates Act for overseeing the minimum standard of behavior to be maintained by advocates while preparing a case and representing their client in the courts of law.[2]
The fee charged by Advocates for the different services provided by them is not uniform. Some advocates demand a combined amount for handling the complete case whereas other advocates charge separate fees for individual tasks such as that of drafting, filing, legal advice, arguing, etc. Senior advocates tend to stipulate a separate fee for every hearing. However, in most Public Interest Litigation (PIL) cases, these fees are waived off by the advocates. Even while representing a legal aid committee, an advocate procures expenses and nominal fees, at no cost charged to the party. In certain PIL cases, the Court itself awards costs to the party.[3]
History
The legal profession prevalent in India today reflects colonial roots, evolving from the commencement of Mayor’s courts in Madras and Calcutta during the early 18th century. However, it was in the mid-19th century that the Legal Practitioner’s Act, threw open the doors of the profession of litigation to all those duly qualified of bearing good character, irrespective of their nationality or religion.
Before the Advocates Act came into force, the term “advocates” was used solely for English and Irish barristers in Scotland. The said class was allowed to practice in the Supreme Court of Judicature located in Bengal. But today this term refers to lawyers that carry the requisite qualifications to practice in the Indian courts of law. Once the Advocates Act, 1961 was enacted, the categorical sections of practitioners (vakils, barristers, pleaders, and mukhtars) were abolished and merged into a single classification labeled “advocates” who enjoy the right to prepare cases in courts throughout India.[4]
Procedural Aspects
Eligibility for enrolment mandates that an Advocate is an Indian citizen, who is at least 21 years of age, possessing an LLB degree from any Indian University. Such an advocate shall be authorized to practice in any tribunal, Indian authority, or before any court including the Apex Court. Advocates are divided into Senior Advocates and other Advocates. The designation of the former is the Supreme Court’s or High Court’s responsibility depending on the capability, experience, and stature of the Advocate in question in the Bar.[5]
The guidelines mentioned under the BCI rules dictate the conduct and etiquette expected of an advocate while he/she is preparing a case. Section 49(1)(c) of the Advocates Act, 1961 bestows the Bar with the power to create rules in order to establish the standard of professional behavior to be observed by the advocates during their case’s preparation. Chapter II under Part VI of The BCI rules talks about the rules regarding an Advocate’s duty to the Court when they are representing the case of their client.
An Advocate is expected to conduct themselves with dignity, to respect the court, to not converse with a judge privately, to not act illegally towards the opposition, to refuse to represent parties insisting on employing unfair measures. Additionally, an Advocate ought to uphold and preserve the values of the legal profession. Furthermore, an Advocate’s duty towards the client includes being bound to accept briefs, to not withdraw from the case, to not appear in cases wherein he/she is a witness, to not hide relevant material or evidence. An Advocate should maintain client confidentiality and must not instigate litigation or demand any kind of contingency fee. Violating these rules results in disciplinary action against advocates which may lead to suspension or debarment.[6]
Different legal services provided by the advocate may be charged separately and are monitored as per whether they are defended appeals, suits or reference under Article 143 or Article 317 (I) of the Constitution, defended petitions under Article 32 of the Constitution, undefended appeals, petitions for special leave (or appeals on a certificate heard ex-parte), undefended petitions under Article 32 of the Constitution, petitions in courts for review, opposed applications for investigations in Chambers, review applications in taxation, a fee to the Amicus Curiae appointed by the court or fee to the panel advocate appointed by the Registry.[7]
International Perspective
United Kingdom
In the United Kingdom, the conduct of advocates expected of them when they are preparing a case is monitored by the Legal Services Act, 2007, a regulatory framework under which the five professional principles are:
- That authorized individuals ought to conduct themselves with autonomy and rectitude.
- That empowered individuals must preserve adequate standards of work ethic.
- That enabled individuals should work keeping in mind their clients’ best interests.
- That the individuals who practice law before the court or exercise litigation in relation ought to work in compliance with their duty to the court, independently, in the interests of justice.
- That the affairs of parties must be confidential.[8]
United States of America
In the United States of America, the standard of behavior of advocates during the preparation of the case as mandated by the American Bar Association, the six traditional core duties of which are now identified as:
- Litigation fairness.
- Competence.
- Loyalty.
- Confidentiality.
- Reasonable fees.
- Public service.
Germany
The basic rights and duties of a lawyer when they are preparing a case are stipulated in the Federal Lawyer’s Act (also known as ‘Bundesrechtsanwaltsordnung’). This is coupled with the Rules of Professional Practice (also called ‘Berufsordnung für Rechtsanwälte’), established by the Federal German Bar Association (also named ‘Bundesrechtsanwaltskammer)’.[9]
Present Scenario
There is no fixed rate determined for advocates to charge fees in terms of their services but as of today the maximum amount that a client is asked to pay for various purposes has been stipulated:—
For defended appeals, suits, or reference under Article 143 or Article 317 (I) of the Constitution or under any Statute or defended petitions under Article 32 of the Constitution, the counsel shall not charge more than 24,000 rupees whereas the associate advocate shall demand more than 12,000 rupees.
For undefended appeals, there is only one fee fixed at not more than 14,000 rupees without any refresher.
When dealing with petitions for special or appeals on a certificate heard ex-parte, the leading counsel shall not charge more than 8,000 rupees while the advocate-on-record shall not demand more than 4,000 rupees.
Similarly, while handling undefended petitions under Article 32 of the Constitution, the leading counsel must not charge more than 15,000 rupees and the advocate-on-record must not demand more than 8,000 rupees.[10]
Examples
Further examples may be depicted in terms of other minor and relatively less resorted-to services such as notices of motion other than petitions under Article 32 of the Constitution when opposed, for which the leading counsel shall not charge more than 15,000 rupees per appearance whereas the advocate-on-record shall not charge more than 8,000 rupees per appearance.
When dealing with petitions in courts for review, the leading counsel must not demand more than 15,000 rupees while the advocate-on-record must not demand more than 10,000 rupees.
For opposed applications for investigations in Chambers and unopposed motions and Chamber applications and review applications in taxation, the fee is fixed at the rate of 10,000 rupees and 5,000 rupees respectively.
Similarly, when dealing with attendance of taxation or hearing of a judgment, or attendance of settlement of Index for taking other steps for preparation of the record, the fee is fixed at the rate of 2,500 rupees and 5,000 rupees respectively.
Lastly, both the fee to the Amicus Curiae appointed by the court and fee to the Panel Advocate appointed by the Registry is 6,000 rupees up to the admission stage and 10,000 rupees on final disposal stage or hearing on regular side after admission as directed by the Court.[11]
Cases
In V.C. Rangadurai v. D. Gopalan[12], Rangadurai was an advocate whereas Devasenapathy and Smt. D. Kamalammal were senior citizens who had accorded two promissory notes to Rangadurai and also made a payment for the same at his behest. The advocate did not file the suit timely after which the limitation period passed. The grievance was brought forth to Tamil Nadu State Bar Council’s disciplinary committee which, subsequent to an investigation, penalized the advocate for inappropriate conduct in preparing the case and suspended him for six years by virtue of Section 44 of the Advocate’s Act, 1961.
Rule 6 under Chapter II of the BCI rules provides that an advocate must not appear, act, plead, practice, or prepare a case in the court if he/she is related to any member. The basic rationale is to prevent partiality amongst an advocate and a presiding officer related to them during the preparation of a case. In the case of Satyendra Nararain Singh and Others v. Ram Nath Singh and Others[13], the judge was the wife of the advocate. The Court ruled that the advocate could not prepare a case before his wife because she is the judge of the court.
In UP Sales Tax Service Association v. Taxation Bar Association[14], an advocate was in possession of a gun when he appeared in court, given which, the Apex Court observed that if an advocate comes to court carrying firearms then the same is undoubtedly against the integrity of the legal profession and the advocate is said to have poorly performed his services in preparation of the concerned case.
Conclusion
An advocate has obligations that are to be carried out for himself, the people he is representing, opposition, colleagues, the court of law, etc. It is his/her obligation to preserve the court’s decorum and behave appropriately with his adversaries or associates. He/she ought to be consistent in terms of his/her clients’ best interests and should not do anything that breaches their trust. An advocate should present his/her case without hesitance before the court while also maintaining the essence and atmosphere of dignity.
In light of the current pandemic and the recession being faced in the economy of India, new strategies of securing clientele might be the need of the hour. But plans which directly contravene the country’s law can’t be sustained to impact the right of advocates to practice their profession. The object of such a rule is to guarantee that advocates do not get personally involved in their client’s stance and instead assist the court in delivering justice by fulfilling their duties of adequately preparing a case and charging a fee for the same.
References:
[1] SHRI. VINEET JOSHI & DR. SADHANA PARASHAR, LEGAL STUDIES— CLASS XII 108 (Mr. Ram Shankar ed. et al, Central Board of Secondary Education) (2014).
[2] Niharika, Advocate’s Duty Towards the Court, LEGAL SERVICES INDIA E-JOURNAL http://www.legalserviceindia.com/legal/article-2373-advocate-s-duty-towards-court.html.
[3] Anonymous, How much fee Advocates charge, AAPTAXLAW.COM https://www.aaptaxlaw.com/Supreme-Court/Advocate-Advocate-on-Record-How-much-fee-to-be-paid-ot-counsel.html.
[4] SHRI. VINEET JOSHI & DR. SADHANA PARASHAR, LEGAL STUDIES— CLASS XII 108 (Mr. Ram Shankar ed. et al, Central Board of Secondary Education) (2014).
[5] Goutam Sahu, How to be an advocate, BLOGIPLEADERS (Jun., 2018). https://blog.ipleaders.in/advocate-enrollment-procedure/.
[6] Niharika, Advocate’s Duty Towards the Court, LEGAL SERVICES INDIA E-JOURNAL http://www.legalserviceindia.com/legal/article-2373-advocate-s-duty-towards-court.html.
[7] Anonymous, How much fee Advocates charge, AAPTAXLAW.COM https://www.aaptaxlaw.com/Supreme-Court/Advocate-Advocate-on-Record-How-much-fee-to-be-paid-ot-counsel.html.
[8] Professor Suzanne Rab, Regulation of the Legal Profession in the UK, THOMSON REUTERS PRACTICAL LAW (Nov., 2019) https://uk.practicallaw.thomsonreuters.com/7-633-7078.
[9] Dr. Jochen Lehmann, Regulation of the Legal Profession in Germany, THOMSON REUTERS PRACTICAL LAW (Nov., 2018) https://uk.practicallaw.thomsonreuters.com/2-638-8145.
[10] Anonymous, How much fee Advocates charge, AAPTAXLAW.COM https://www.aaptaxlaw.com/Supreme-Court/Advocate-Advocate-on-Record-How-much-fee-to-be-paid-ot-counsel.html.
[11] Ibid.
[12] 1979 AIR 281, 1979 SCR (1)1054.
[13] 1984 AIR 1755, 1985 SCR (1) 609.
[14] 1996 AIR 98, 1995 SCC (5) 716.
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