SALIENT FEATURES OF ADVOCATES ACT, 1961

SUBMITTED TO JHANVI MAHANA

SUBMITTED BY
MOHAMMAD ABID HUSSAIN ANSARI
B.A. LL.B. (HONS.) 10TH SEMESTER 0|Page
5TH YEAR
ACKNOWLEDGEMENT
Firstly, I would like to express my profound sense of gratitude towards the Almighty
ALLAH for providing me with the authentic circumstances which were mandatory for the
completion of my research work.

I am also thankful to Jhanvi Mahana Mam, for her invaluable support, encouragement,
supervision and useful suggestions throughout this research work. Her moral support and
continuous guidance enabled me to complete my work successfully. Her intellectual thrust
and blessings motivated me to work rigorously on this study. In fact this study could not have
seen the light of the day if her contribution had not been available. It would be no
exaggeration to say that it is his unflinching faith and unquestioning support that has provided
the sustenance necessary to see it through to its present shape.

Among those who have sustained me over the years with their loyalty and friendship, I would
particularly mention my friends, Harsh Narayan, Aman Jain, Shakir Shabir, Sanskriti
Prakash have always taken a special interest in my work and unconditional support at each
turn of the life. I express my deep sincere gratitude towards my parents for their blessing,
patience, and moral support during this B.A., LL.B course. I express my gratitude to my all
teachers and friends who has supported and encouraged me during my study at Faculty of
Law, Jamia Millia Islamia, New Delhi.

Mohammad Abid Hussain Ansari

B.A.LL.B (Hons) 10th Semester

5th Year

1|Page
TABLE OF CONTENT
The advocates act, 1961 4

Objective of the act 6

Enrolment of advocates- section 16 to 28 7

Conduct of advocates-u/s 35 to 44of advocates act 7

Advocacy: profession or business 10

Conflicting duties of a lawyer 11

Fiduciary relationship 12

Duty of loyalty 12

Conflict between interest and duty statutory analysis duty to the court 13

Duty to client 14

Duty to colleagues 14

Conflict between interest and duty judicial response representing conflicting interest 15

Reason for the conflict of interest 15

Indian case laws 16

Advocate handing over brief to another without clients consent 19

Taking money from the client to bribe another 20

Engagement in business 21

Making reckless and false allegations 23

Where lawyer has a personal interest 23

Throwing away interests 24

Fees not paid 24

Not to be bias 24

Conflicts of interest between claimholders, lawyers and litigation entrepreneurs 26

Suggestion 27
2|Page
Conclusion 27

Bibliography 30

3|Page
THE ADVOCATES ACT, 1961
The legal profession as it exists today was created and developed during the British period.
However, it is notable that in earlier days of the British period the legal profession was not
paid due attention and it was not well organized.

Actually the east India Company was not interested in organizing the legal profession. There
was no uniform judicial system in the settlements of the east India Company.

After introduction of so many charters by the company it enacted The Indian High Courts
Act, 1861 (commonly known as the Charter Act) passed by the British Parliament enabled
the Crown to establish High Courts in India by Letters Patent and these Letters Patent
authorized and empowered the High Courts to make rules for advocates and attorneys
(commonly known as Solicitors).

The law relating to Legal Practitioners can be found in the Legal Practitioners Act, 1879 and
the Indian Bar Councils Act, 1926. Legal Practitioners Act, 1879 came into force with effect
from 1st January, 1880. In 1879, the legal practitioners act was passed to consolidate and it
amend the law relating to the legal practitioners.

Under the legal practitioners act, 1979 the term legal practitioner has been used for
advocate vakil or attorney of a high court and pleader, Mukhtar or revenue agent. All these
were brought under the jurisdiction of high court.

A Person who is qualified to be pleader / vakil / muktas has to appear for examination and
after obtaining the certificate he / she may apply under Sec. 7 of the Legal Practitioners Act
and Register their name in any Court or Revenue Office situated within the local limits of the
Appellate Jurisdiction of the High Court.

As Per Sec. 11 of this Act, the High Court may frame the rules declaring what shall be
deemed to be the functions, powers and duties of pleaders / vakils / muktas.

As per Sec. 13 of this Act, the High Court has Disciplinary control over Pleaders / Vakils /
muktas by suspending / dismissal / by withdrawing the certificate granted by it.

The Indian Bar Council Act 1926 came into force with effect from 9.9.1926. The main object
of the act was to provide for the constitution and incorporation of bar councils for certain
4|Page
courts, to confer powers and impose duties on such councils and also to consolidate and
amend the law relating to the legal practitioners of such courts.

As per Sec. 4(1), every Bar Council shall consist of 15 Members, one shall be the Advocate
General, 4 shall be persons nominated by High Court of whom not more than 2 may be
judges of High Court and 10 shall be elected by the Advocates who are practicing at High
Court.

As per Section 8 of Indian Bar Council Act a person may enrol as an advocate in the High
Court. After admission as an Advocate he/she has to undergo One year Apprentice training
with any senior advocate and he has to issue certificate that training period is completed
successfully. After Independence it was deeply felt that the Judicial Administration in India
should be changed according to the needs of the time. The Law Commission was assigned the
job of preparing a report on the Reform of Judicial Administration. In the mean while the All
India Bar Committee went into detail of the matter and made its recommendations in 1953.
To implement the recommendations of the All India Bar Committee and after taking into
account the recommendations of the Law Commission on the subject of Reform of Judicial

Administration in so far as the recommendation relate to the Bar and to legal education, a
Comprehensive Bill was introduced in the Parliament.

The Advocate Bill was passed by both the Houses of Parliament and it received the assent of
the President on 19the May, 1961 and it became The Advocates Act,1961 (25 of 1961).

The main salient features of this Bar Council is to enrol the candidates who have obtained
law degree, disciplinary control over the advocates, to promote legal education to junior
advocates and provide financial assistance to the Advocates on medical ground and also the
bereaved family of the Advocates.

This Act furnished fully what the advocates, vakils enrolled in the bar should do and should
not do. A statutory body, The Bar Council of India, was created by the parliament under this
act. It is to regulate and represent the Indian bar. The lawyers are those who assist the courts
to give a correct judgment. Since people seek for the lawyers thinking that they might get
justice through their advocacy skill. Hence there is a chance for the lawyers to do some
wrong or to conclude the judgment in injustice manner by their advocacy skill for the want of
their name fame, money and the like.
5|Page
To avoid such things and to regulate them an a right manner and also to have just and fair
law, this act was introduced. It entirely covers about the bar council of both the state and the
centre, its functions, constitution and also about the committee organized by it.

OBJECTIVE OF THE ACT

1. The establishment of an All India Bar Council and a common roll of advocates and
advocate on the common roll having a right to practice in any part of the country and
in any Court, including the Supreme Court;
2. The integration of the bar into a single class of legal practitioners knows as advocates;
3. The prescription of a uniform qualification for the admission of persons to be
advocates;
4. The division of advocates into senior advocates and other advocates based on merit;
5. The creation of autonomous Bar Councils, one for the whole of India and on for each
State.

The Bill, being a comprehensive measure, repeals the Indian Bar Council Act, 1926, and all
other laws on the subject.

6|Page
ENROLMENT OF ADVOCATES- SECTION 16 TO 28
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. Contact details for individual Councils can be found here.

The Councils Enrolment Committee may scrutinise a candidates application. Those

admitted as advocates by any State Bar Council are eligible for a Certificate of Enrolment.

All applicants for enrolment as advocates are required under Section 24 (1) (f) of the
Advocates Act, 1961 to pay an enrolment fee of Rs.600/- (Rupees Six hundred only) to the
respective State Bar Council and Rs.150/- (Rupees One hundred Fifty only) to the Bar
Council of India. These payments should be made by Demand Draft.1

CONDUCT OF ADVOCATES-U/S 35 TO 44of

ADVOCATES ACT
As DINKER in his Legal Ethics observes,

A lawyer will be constantly confronted with conflicting loyalties which he may have to
reconcile. He is answerable not only to his client whose interests it is his primary duty to
serve and promote, but also to the Court of which he is an officer and further to his
colleagues at the Bar and to the traditions of the Profession.

Whenever interest and duty come into conflict, duty ought to prevail. In the life of an
advocate difficult situations do frequently arise; for instance, fill in his adversary in a
subsequent suit, the client may not engage you but his opponent must be willing to do so with
motives good or bad. The opponent may try to get information from you relating to previous
case, which an advocate ought not to do. All the communications made, between client and
his lawyer is privileged and such privilege is perpetual.

The adversary of your previous client may offer you engagement in a second and third case
against a third party and may try to create intimacy with you. In such situations one will

1
Section 16 to 28 of the Advocates Act 1961
7|Page
rarely err if he keeps in his mind a high sense of honour and conscientious desire to follow
right.

Our Constitution enshrines that the right to consult and to be defended by a lawyer of ones
choice is a fundamental right of a person accused of an offence; and so, it is duty of a lawyer
to defend such person. Because of this constitutional injunction, there is absolutely no
conflict between interest and duty in criminal cases. However, some difficult may arise in
case where the accused confesses his guilt to the lawyer. The answer may be elucidated in the
following words:

He had expressed in England and South African lawyers were consciously or unconsciously
let into untruth for the sake of their clients. He vehemently opposed an English lawyer when
he advocated that the duty of the lawyer was to defend a client even if he knew that he was
guilty. Gandhi on the other hand was emphatic that the duty of a lawyer was to place correct
facts before the judge and to help him to arrive at the truth, and not to prove the guilty as
innocent.

In the case of Oceanic Life Ltd v. HIH Casualty & General Insurance Ltd, Austin J said
the following:

In the realm of conflicts of interest and conflicts of duty, the lawyer's duty to the court may
not be much different from his or her fiduciary duties to former and present clients. However,
the duty to the court tends to be expressed in such a way as to emphasise the public interest
in preserving confidence in the administration of justice and therefore in the appearance as
well as the reality of independence, and the court's practical approach to its supervisory
discretions...2

Lord Cozens-Hardy MR in Moody v. Cox said that:

'A man may have a duty on one side and an interest on another. A solicitor who puts himself
in that position takes upon himself a grievous responsibility. A solicitor may have a duty on
one side and a duty on the other, namely, a duty to his client as solicitor on the one side and a
duty to his beneficiaries on the other; but if he chooses to put himself in that position it does
not lie in his mouth to say to the client "I have not discharged that which the law says is my
duty towards you, my client, because I owe a duty to the beneficiaries on the other side." The
2
Oceanic Life Ltd v HIH Casualty & General Insurance Ltd
8|Page
answer is that if a solicitor involves himself in that dilemma it is his own fault. He ought
before putting himself in that position to inform the client of his conflicting duties, and either
obtain from that client an agreement that he should not perform his full duties of disclosure or
say-which would be much better-"I cannot accept this business." I think it would be the worst
thing to say that a solicitor can escape from the obligations, imposed upon him as solicitor, of
disclosure if he can prove that it is not a case of duty on one side and of interest on the other,
but a case of duty on both sides and therefore impossible to perform.'

The thrust of this passage is that if a solicitor puts himself in a position of having two
irreconcilable duties it is his own fault. If he has a personal financial interest which conflicts
with his duty, he is even more obviously at fault. It was later on quoted in Hilton v. Barker

Further the interest of the parties is to seek a favourable decision and their duty is limited to
complying with the rules of the court, giving truthful testimony and refraining from taking
positive steps to deceive the court but the interest and duty of the advocate is much more
complex, because it involves divided loyalties.

It was held in the case of Abse and others v. Smith and another that A lawyer wishes to
promote his client's interests and it is his duty to do so by all legitimate means. But he also
has an interest in the proper administration of justice to which his profession is dedicated
and he owes a duty to the court to assist in ensuring that this is achieved. The potential for
conflict between these interests and duties is very considerable yet the public interest in the
administration of justice requires that they be resolved in accordance with established
professional rules and conventions and that the judges shall be in a position to assume that
they are being so resolved. There is thus an overriding public interest in the maintenance
amongst advocates not only of a general standard of probity, but of a high professional
standard, involving a skilled appreciation of how conflicts of duty are to be resolved.

Dubin J.A. remarked in Re Regina and Speid, at p. 21:

We would have thought it axiomatic that no client has a right to retain counsel if that
counsel, by accepting the brief, puts himself in a position of having a conflict of interest
between his new client and a former one.

What If a litigant could achieve an undeserved tactical advantage over the opposing party by
bringing a disqualification motion or seeking other "ethical" relief using the integrity of the
9|Page
administration of justice or conflict of interest merely as a flag of convenience? Will the
fairness of the process would be undermined?

A similar situation arose in, where the accused was charged with the first degree murder of
his mother. The Crown sought to remove defence counsel on the basis that he had previously
acted for the father of the accused in an unrelated matrimonial matter, and might in future
have to cross-examine the father at the son's trial for murder.3

The accused and his father both obtained independent legal advice, after full disclosure of the
relevant facts, and waived any conflict. The father also waived solicitor-client privilege. The
court was satisfied there was no issue of confidential information. On these facts, the court
concluded that "public confidence in the criminal justice system might well be undermined by
interfering with the accusers selection of the counsel of his choice".

ADVOCACY: PROFESSION OR BUSINESS

In a case, it was stated that:

Members of bar are not a guild of candle makers or butchers association. They are a class
separate.

Then there is the theory of Professional Paradigm Shift as given by Russell G. Pierce, which
states that the profession should also be treated as a trade as there is no harm to erase the line
between profession and trade.4

Soli J. Sorabjee states his views on this point in Lawyers as Professionals. He states that at
present the public image of lawyers is far from flattering. They are seen as fortune seekers
rather than seeking to serve, a selfish class, who, on account of the special knowledge and
expertise, provide services on such terms as they please. In short, the profession of law is
regarded as a money making racket. Today people are apt to agree with Dean Swift's
description of lawyers as, "a society of men bred up from their youth in the art of proving by
words multiplied for the purpose, that white is black and black is white according as they are
paid." No longer is the profession of law regarded as a noble one.

3
R. v. Parsons
4
Bar Council of Maharashtra v. M. V. Dabholkar AIR 1951 SC 118
10 | P a g e
He further goes on to say that what are the reasons for this said decline? The main reason is
that lawyers, as also other professionals like doctors for example, have forgotten what is
entailed in a profession and their proper role in society.

It is forgotten that the essential difference between business and a profession is that while the
chief end of business is personal gain, the main goal of profession is professional service. Of
late lawyers seem to operate on the law of demand and supply and the forces of
commercialism have overtaken the profession by and large. The idea that professionals are
for the people and the people are not for the professionals sound like a strange and alien
doctrine.

Today the fees charged by some lawyers are staggering. He later says that:

I was told that a middle rank lawyer charged Rs. 60,000/- for an application for an
adjournment in the Bombay high Court. The fees charged by some seniors in the SLP's in the
Supreme Court are enormous. Lawyers charge fee even when they have not put in an
appearance and it is a disgusting sight to see some lawyers plead with the judge to record
their appearance to enable them to collect fees from their absent clients.

The legal profession has a social dimension. And the lawyer has the social role to play in
society. The social dimension becomes a very relevant issue when we look at the manner in
which legal services remain by and large inaccessible to the common man, particular in a
poor country like us.

CONFLICTING DUTIES OF A LAWYER

Imagine you are a client of a lawyer and that you have been so, intermittently, for the last 20
years. The lawyer has prepared your conveyancing deeds and your will. Your certificates of
title may be stored in the lawyer's office. The lawyer may have a power of attorney in relation
to your personal affairs. You may have been a party to litigation and the lawyer counselled
you, dealt with your opponent and appeared on your behalf. The lawyer has and continues to
serve your interests faithfully.

Now imagine that same lawyer serves a letter of demand on you in relation to a matter in
which he or she had formerly acted on your behalf.

11 | P a g e
FIDUCIARY RELATIONSHIP
Such conduct is generally seen as inappropriate and unethical. Why? The answer resides in
the nature of the relationship between lawyer and client. It is intimate -- the client reposes
trust and confidence in the lawyer. Indeed, the lawyer is in a fiduciary relationship with the
client. More than that, of all the fiduciary relationships known to the law, the lawyer-client
relationship is one of the most recognizable. The common law system of justice would not
function without it. The public derives, in part, its confidence in the administration of justice
from the fidelity of a lawyer to his or her client. It is for this reason that courts have required
high standards of propriety from a lawyer.

In the case of Alexander v. Perpetual Trustees WA Ltd, Davies AJA described conflicts of
duty as 'insidious thing[s]'. They cloud the mind. Aspects of the lawyer's duty of care, which
ought to be seen clearly and distinctly, are seen in a 'hazy light'.

Lawyers have a fiduciary obligation to avoid 'conflicts of duty'. Conflicts arise when a lawyer
who owes a duty to one client undertakes a similar duty towards another client either
simultaneously ('present client conflict') or successively ('former client conflict').

DUTY OF LOYALTY
Its relevant here to quote Trial of Queen Caroline (1821), by J. Nightingale, vol. II, The
Defence, Part 1, at p. 8 wherein a declaration was made of an advocate's duty of loyalty by
Henry Brougham, later Lord Chancellor, in his defence of Queen Caroline against the charge
of adultery brought against her by her husband, King George IV. He thus addressed the
House of Lords:5

An advocate, in the discharge of his duty, knows but one person in the entire world, and that
person is his client. To save that client by all means and expedients, and at all hazards and
costs to other persons, and, among them, to himself, is his first and only duty; and in
performing this duty he must not regard the alarm, the torments, the destruction which he
may bring upon others. Separating the duty of a patriot from that of an advocate, he must go

5
Enerchem Ship Management Inc. v. Coastal Canada
12 | P a g e
on reckless of consequences, though it should be his unhappy fate to involve his country in
confusion.

While the Court is most often preoccupied with uses and abuses of confidential information
in cases where it is sought to disqualify a lawyer from further acting in a matter, the duty of
loyalty to current clients includes a much broader principle of avoidance of conflicts of
interest, in which confidential information may or may not play a role as was quoted in
various cases such as Montreal Trust Co. of Canada v. Basinview Village Ltd.; Jans v.
Coulter (G.H.) Co. ; Stewart v. Canadian Broadcasting Corp. Blacks Law Dictionary
defines Conflict of Interests as

A real or seeming incompatibility between ones private interests and ones public or
fiduciary duties. A real or seeming incompatibility between the interests of two of a lawyers
clients, such that the lawyer is disqualified from representing both clients if the dual
representation adversely affects either client or if the clients do not consent.

As early as 1280, a London Ordinance forbade attorneys from representing adverse parties in
the same action and from dropping one client to represent another in the same case.

CONFLICT BETWEEN INTEREST AND DUTY

STATUTORY ANALYSIS DUTY TO THE COURT
RULE -1 An advocate shall, during the presentation of his case and while otherwise
acting before a court, conduct himself with dignity and self-respect. He shall
not be servile and whenever there is proper ground for serious complaint
against a judicial officer, it shall be his right and duty to submit his grievance
to proper authorities.

RULE 4 An advocate shall use his best efforts to restrain and prevent his client from
resorting to sharp or unfair practices or from doing anything in relation to the
court, opposing counsel or parties which the advocates himself ought not to
do. An advocate shall refuse to represent the client who persists in such
improper conduct. He shall not consider himself a mere mouth-piece of the
client, and shall exercise his own judgment in the use of restrained language in

13 | P a g e
 correspondence, avoiding scurrilous attacks in pleadings, and using
intemperate language during arguments in court.

DUTY TO CLIENT
RULE 22 An advocate shall not, directly or indirectly, bid for or purchase, either in his
own name or in any other name, for his own benefit or for the benefit of any
other person, any property sold in the execution of a decree or order in any
suit, appeal or other proceeding in which he was in any way professionally
engaged. This prohibition, however, does not prevent an advocate from
bidding for or purchasing for his client any property, which his client may,
himself legally bid for or purchase, provided the Advocate is expressly
authorized in writing in this behalf.

DUTY TO COLLEAGUES
RULE 33 An advocate who has, at any time, advised in connection with the institution
of a suit, appeal or other matter or has drawn pleadings, or acted for a party,
shall not act, appear or plead for the opposite party.

RULE 36 An advocate shall not 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. His
signboard or nameplate should be of a reasonable size. The sign-board or
name-plate or stationery should not indicate that he is or has been President or
Member of a Bar Council or of any Association or that he has been associated
with any person or organization or with any particular cause or matter or that
he specialises in any particular type of worker or that he has been a Judge or
an Advocate General.

RULE 43 An Advocate who has been convicted of an offence mentioned under Section
24A of the Advocates Act or has been declared insolvent or has taken full time
service or part time service or engages in business or any avocation
14 | P a g e
 inconsistent with his practising as an advocate or has incurred any
disqualification mentioned in the advocates Act or the rules made there under,
shall send a declaration to that effect to the respective State Bar Council in
which the advocate is enrolled, within ninety days from the date of such
disqualification. If the advocate does not file the said declaration or fails to
show sufficient cause for not filing such declaration provided therefore, the
Committee constituted by the State Bar Council under rule 42 may pass orders
suspending the right of the advocate to practice.

CONFLICT BETWEEN INTEREST AND DUTY

JUDICIAL RESPONSE REPRESENTING
CONFLICTING INTEREST
A case of conflict is where a solicitor acts for both parties to a transaction without disclosing
this to one of them or where having disclosed it he fails, unbeknown to one party, to disclose
to that party material facts relative to the other party of which he is aware.

REASON FOR THE CONFLICT OF INTEREST

The relationship between a solicitor and his client is one in which the client reposes trust
and confidence in the solicitor. It is a fiduciary relationship. But not every breach of duty by
a fiduciary is a breach of fiduciary duty. If a solicitor is careless in investigating a title or
drafting a lease, he may be liable to pay damages for breach of his professional duty, but that
is not a breach of a fiduciary duty of loyalty; it is simply the breach of a duty of care as was
said by Millett LJ in the matter of Bristol and West Building Society v. Mothew (t/a Stapley
& Co).

A solicitor's duty of single-minded loyalty to his clients interest, and his duty to respect his
clients confidences, does have their roots in the fiduciary nature of the solicitor-client
relationship. But they may have to be moulded and informed by the terms of the contractual
relationship as was said by Mason J in the case of Hospital Products Ltd v. United States
Surgical Corp. The solicitor's duty of single-minded loyalty to his client very frequently
makes it professionally improper and a breach of his duty to act for two clients with
conflicting interests in the transaction in hand.
15 | P a g e
INDIAN CASE LAWS
In the absence of any specific provision regarding conflict between interest and duties of a
lawyer, the subject can only be discussed by judicial response.

In the case of H.V. Panchaksharappa v. K.G. Eshwar6 it was stated that Before parting
with this appeal, we would, however, like to observe that respondent ought to have,
according to the best traditions of the Bar, disclosed to the appellant that he had been
retained by the defendant in O.S. No. 119/1986. There may not have been any clash of
interest but since the defendant in O.S. No. 237/1986 was his client as a plaintiff in O.S. No.
119/1986, the information should have been disclosed to the appellant. It is just plain and
simple obligation of a counsel to disclose such facts to his client. Though, withholding of the
information may not amount to professional misconduct, nonetheless the action does not
speak well of the conduct of the respondent. On this account we leave the parties to bear their
own costs in this appeal.

Speaking generally it is quite clear that a professional gentleman should as far as possible
stick to the side who first engaged him. It might be a very good practice if when gentlemen
were offered instructions in any connected case, that they should at least in the first place
inform their first client.

In the case of Emperor v. Rajni Kanta Ghose7, A division bench of the Calcutta High Court
held that a legal practitioner appearing on both sides was guilty of professional misconduct.
The Court further held that:

As this has happened once and may happen again, it is desirable to state the well-settled
general rule that a legal practitioner cannot represent conflicting interests or undertake the
discharge of inconsistent duties. When he has once been retained and received the confidence
of a client, he cannot accept a retainer from or enter the service of those whose interests are
adverse to his client in the same controversy or in a matter so closely allied thereto as to be
in effect a part thereof.

6
AIR 1929 Bom. 335.
7
AIR 1934 All. 1067
16 | P a g e
The rule is rigid and is designed not only to prevent the dishonest practitioner from
fraudulent conduct, but as well to preclude the honest practitioner from putting himself in a
position where he may be required to choose between conflicting interests.

The full Bench of the Lahore High Court in In the matter of Ramalal Anand held that change
of sides as such by counsel is not forbidden by law; change of sides is forbidden if there are
confidential communications from one side which may be made use of when the lawyer
represents the other party. It is forbidden if the lawyer obtains his own discharge and obtains
his own discharge and acts for the opposite party; it is also forbidden if the lawyer accepts a
retainer from the opposite party without first offering his services to his original client.

The principal underlying the ban, prohibiting an Advocate from appearing from the opposite
party against his former client is that there is the likely hood of conflict of interest between
the duties and interest of the Lawyer and also possibility of misuse of the instructions given
to him by his former client. It is not a question whether the misuse has been actually made;
the mere possibility of such misuse in a matter, which is connected with the previous
litigation, is sufficient.

In order to prevent an Advocate from appearing for the opposite party, what one has to see is
whether in the circumstances of a particular, having regard to the steps taken in the litigation
of criminal proceedings, it can be reasonably inferred that confidential information could
have been imparted, In the case of Earl Cholmondeley v. Lord Clinton. The Lord Chancellor
said:

If there is any ground for any application, either as a motion in the cause or upon the
general jurisdiction, it must be furnished by a general principal, not the particular
circumstances of the case; otherwise the court must try every such case on its particular
circumstances and it cannot be discussed without a disclosure from the solicitor of all he
knows.

It has been reiterated in Halsburys Laws of England

A barrister must decline to accept instructions which would render it difficult to maintain
his professional independence or would embarrass him. He ought not to appear for two
clients whose interest may conflict, or if he is in possession of confidential information
relating to the opposite party, or if he is a witness to a material fact.
17 | P a g e
In the case of Tajendra Chandra v. Tajendra Lal, a special bench of the Rangoon High
Court observed that:

it is clear that an advocate or pleader who has appeared on behalf of one party in a suit
ought not to allow himself to be placed in the position in which there might become
suspicion, whether well or ill-founded that his knowledge of his clients case would be used
by him on a subsequent occasion in appearing for another party and against his own client.

It is settled general rule that a legal practitioner cannot represent conflicting interests or
undertake the discharge of inconsistent duties. When he has once been retained and has
received the confidence of a client, he cannot accept a retainer from or enter the service of
those whose interests are adverse to his client in the same controversy or in a matter so
closely allied thereto as to be in effect a part thereof. The rule is right and is designed not
only to prevent the dishonest practitioner from fraudulent conduct, but as well to preclude the
honest practitioner from putting himself in a position where he may be required to choose
between conflicting duties or be led to an attempt to reconcile conflicting interests, rather
than to enforce to their full extent the rights or interest which he should alone represent as
was held in the case of Day v. Ponsonby.

But where a legal practitioner did not actually appear for both sides but merely attempted to
make the best of the bargain by issuing improper notice to his former client threatening
appearance on behalf of the main party knowing fully well that he had rendered himself
incapable of accepting brief, a lenient view was taken though the court held that the
practitioner was guilty of grossly improper conduct which was not in consonance with the
dignity of the profession as was held in the case of Ram Bharosa Kular Bhandari Kalai v.
Surndra Nath Thakur.8

A counsel cannot represent clients with conflicting interests. Thus it has been held that
counsel cannot represent two different creditors whose interests are known to conflict as was
held in the case of The Government Pleader, High Court, Bombay v. Bhagabhai Dayalbhai
The Patna High Court in Emperor v. Bir Kishore Rai held that the conduct of a pleader in
acting for both sides in the same case is grossly improper conduct. The said case was under
the Legal Practitioners Act.

8
AIR 1976 SC 242
18 | P a g e
The Allahabad High Court in the case of Saharanpur Grain Chamber Limited v. Maharaj
Singh held that when an advocate was consulted by one party is perfectly free to accept the
brief against him, if he has not received any information of a confidential nature which will
be of use against the party in litigation.

The law is not that once an advocate is consulted by one party, he may not accept the brief for
the other party, no matter what may have been the nature of information conveyed to him
during the course of consultation. No doubt the litigants are entitled to protection against
unscrupulous members of the legal members of the legal profession. But the members of the
legal profession are equally entitled to protection against unscrupulous litigations and if the
law were that once a counsel was consulted by one party, he could not under any
circumstances accept a brief against him, the position of the legal profession will be perilous
indeed. The onus of proving that confidential information was conveyed lies heavily upon the
applicant.

In another case of Emperor v. Shanti Narayan Manocha, where the pleader drafted the
plaint gratuitously as friend and no confidential information was imparted by the plaintiff, the
pleader subsequently accepted brief of the defendant. The pleader was not held guilty of
misconduct.

An advocate accepted the brief for the plaintiff and appeared at the initial stage. Subsequently
he reported no instructions and then appeared as Govt. Pleader on behalf of State which was
added as a defendant, in the suit. The advocates conduct amounts to misconduct in the case
of In the matter of Sri Gurubasappa

ADVOCATE HANDING OVER BRIEF TO ANOTHER

WITHOUT CLIENTS CONSENT
A lawyer when entrusted with a brief is expected to follow the norms of professional ethics
and try to protect the interests of his clients, in relation to whom he occupies a position of
trust. It is not in accordance with professional etiquette for an advocate to hand over his brief
to another to take his place at a hearing (either for the whole or part of the hearing) and
conduct the case as if the latter had himself being briefed, unless the client consents to this
course being taken.

19 | P a g e
It was held in the case of V. C. Rangaburai v. D. Gopalan9, it was held that Counsels
paramount duty is to the client: accordingly where he forms an opinion that a conflict of
interest exists, his duty is to advise the client that he should engage some other lawyer. It is
unprofessional to represent conflicting interests, except be express consent given by all
concerned after a full disclosure of the facts.

TAKING MONEY FROM THE CLIENT TO BRIBE

ANOTHER
The Preamble to Chapter II of Part VI of the Rules of the Bar Council of India lays down that
an advocate shall at all times comport himself in a manner befitting his status as an officer of
the Court, privileged member of the community and a gentleman. Rule 4 of this Chapter
provides that an advocate shall use his best efforts to restrain and prevent his client from
resorting to sharp and unfair trade practices etc. Now a conflict ensues when a lawyer fails to
perform his duty due to certain interests. In the case of Chandra Shekhar Soni v. Bar
Council of Rajasthan, the appellant had procured the brief of the complainant in another case
on a fee of Rs. 300/- on the representation that he would secure a favourable report from the
Radiologist showing that there was a fracture of the skull. Therefore conflict arose because of
this monetary interest. It was held that:-

Nothing should be done by any member of the legal fraternity which might tend to lessen in
any degree the confidence of the public in the fidelity, honesty and integrity of the profession.
The State Bar Council gave the appellant the benefit of doubt on the first charge that he
changed sides in a criminal case, holding that though such conduct on his part was
unprofessional, it was not tantamount to professional misconduct. The Disciplinary
Committee of the Bar Council of India rightly observes that it failed to appreciate the
distinction drawn by the Slate Bar Council as his act in accepting the brief for the accused
after having appeared for the complainant was clearly contrary to rule 33 of the Bar Council
of India Rules, 1975. We concur with the Disciplinary Committee. It is not in accordance
with professional etiquette for an advocate while retained by one party to accept the brief of
the other. It is unprofessional to represent conflicting interests except by express consent
given by all concerned after a full disclosure of the facts. The appellant would not have

9
AIR 1960 SC 554
20 | P a g e
appeared for the other side except with the permission of the learned Magistrate. Counsel's
paramount duty is to the client, and where he finds that there is conflict of interests, he
should refrain from doing anything, which would harm any interests of his client. A lawyer
when entrusted with a brief is expected to follow the norms of professional ethics and try to
protect the interests of his client in relation to whom he occupies a position of trust. The State
Bar Council however found the appellant guilty of the second charge viz. that he had
procured the brief of the complainant in another case on a fee of Rs. 300/- on the
representation that he would secure a favourable report from the Radiologist showing that
there was a fracture of the skull. The appellant was guilty of reprehensible conduct. The
preamble to Chapter II Part VI of the Rules lays down that an advocate shall at all times,
comfort himself in a manner befitting his status as an officer of the Court, privileged member
of the community and a gentleman. Rule 4 of this Chapter provides that an advocate shall use
his best effort to restrain and prevent his client from resorting to sharp and unfair practices
etc.

There is a long catena of decisions laying down that offering of bribe or giving bribe or
taking money from the client for the purpose of giving bribe amounts to grave professional
misconduct.

The lapse on the part of the appellant was perhaps due to the fact that in the struggle for
existence he had to resort to such malpractices and thus to meet the ends of justice, he was
suspended for a period of 1 year.

ENGAGEMENT IN BUSINESS
Conflict between interest and duty arises when an advocate is engaged in has taken full time
service or part time service or engages in business or any avocation inconsistent with his
practicing as an advocate.

In the case of Bhupinder Kumar Sharma v. Bar Association, Pathankot10, the appellant was
guilty of professional misconduct as he was carrying on and continued his business and
business activities even after his enrolment as an Advocate. He was running a photocopier
documentation centre, PCO/STD booth in the court compound, Pathankot and he was

10
AIR 1996 SC 1708.
21 | P a g e
proprietor/General Manager of the Punjab Coal Briquettes, Pathankot, a private concern and
he was pursuing the business/his interest in the said business even on the date when his
statement was recorded by the Disciplinary Committee.

Thus it was in direct conflict with Rule 43 of Bar Council of India.

Investment of savings by an advocate does not necessarily amount to engagement in money

lending business and thus there is no conflict between interest and duty. On the other hand, if
investments were made as a matter of regular business and for gain, it may constitute
engagement in money-lending business as was held in the case of In Re Bhairo Dutt
Bhandari, an Advocate

In the case of Madhav M. Bhokarikar v. Ganesh M. Bhokarikar11 (Dead) through Lrs. it

was held that the appellant was an advocate duly enrolled under the provisions or the
Advocates Act, 1961. Proceedings were initiated against the appellant by the Disciplinary
Committee of the State Bar Council on a complaint made by the respondent accusing the
appellant of having taken dealership of a retail outlet of petroleum products. On enquiry, the
Disciplinary Committee of the State Bar Council found the charge proved.

According to the State Bar Council, the appellant, though a practising advocate applied for
the dealership and subsequently secured a letter of intent in his favour. Thereafter, the petrol
pump was also started. The complaint was made after about two years of the retail outlet
having remained in operation.

During the pendency of the enquiry against the appellant, he entered into a partnership with
his younger brother wherein the mutual arrangement arrived at between the two partners was
that the appellant would remain a sleeping partner and his younger brother would actively
and wholly look after the business.

On 20.6.1998, the State Bar Council having held the appellant guilty of professional
misconduct directed his license to practice to be suspended for a period of one year under
Clause (c) of Sub-section (3) of Section 35 of the Act.

11
AIR 1976 SC 242
22 | P a g e
MAKING RECKLESS AND FALSE ALLEGATIONS
A counsel is to assist the Court in the administration of justice and is not a mere mouthpiece
of his client. If a counsel makes reckless and false allegations against a Magistrate in the
application for transfer on the instructions of his client without taking any steps to verify the
truth of these allegations, he is unfit to enjoy the privileges conferred upon him by law and
must be visited with punishment as was held in the case of Ganwar v. Emperor. Thus a
conflict is created between the Preamble (which imposes a duty on a lawyer) and the interest
of the client and the lawyer.

WHERE LAWYER HAS A PERSONAL INTEREST

A fiduciary duty concerns disclosure of material facts in a situation where the fiduciary has
either a personal interest in the matter to which the facts are material or acts for another party
who has such an interest.

The classic case where the duty arises is where a solicitor acts for a client in a matter in
which he has a personal interest. In such a case there is an obligation on the solicitor to
disclose his interest and, if he fails so to do, the transaction, however favorable it may be to
the client, may be set aside at his instance as was held in the case of Lewis v. Hillman.

THROWING AWAY INTERESTS

Under the Legal Practitioners Act, Section 13 talked of throwing away interests of
unimportant client in favour of important client is deserving of censure. In the case of In the
matter of N, a pleader, a pleader N had two cases to attend on the same day. On the next day
however N presented himself in the former case and the latter case which was weak was
conducted by another pleader and the accused was convicted.

The Court held that N may also have been influenced by the probability that in one case the
client had very little chance of acquittal and that the case could not be made any worse by his
absence and could not be made any better by his presence but however that may be the more
difficult the case the more important

23 | P a g e
The court further held that in these circumstances he certainly on his own account of the
proceedings threw away the interests of an unimportant client in favour of the interests of an
important client and in so doing he has committed an offence which is deserving of the most
serious censure. But a censure in a case of this kind is an inadequate punishment and we feel
it our duty to mark our opinion of the gravity of the offence and also to protect the reputation
of the profession itself. The reputation of the profession is liable to be gravely affected by
conduct of this kind. We therefore order that N be suspended from practice for a period of
two months from this date.

FEES NOT PAID

In the case of R. D. Saxena v. Balram Prasad Sharma12, this Court has held that advocates
have no lien over the papers of their client. It is held that, at the most the advocate may resort
to legal remedies for, unpaid remuneration. It has been held that the right of the litigant to
have the files returned to him is a corresponding counterpart of the professional duty of the
advocate and that dispute regarding fees would be decided in an appropriate proceeding in
Court.

In the case of New India Assurance Co. Ltd. v. A.K. Saxena13 it was held that Respondent
was an advocate on panel of the appellants - Some dispute arose between the appellants and
the respondent as a result of which the respondent was asked to return all papers - The
respondent was willing to return the papers provided that all his fees were paid - Advocates
have no lien over the papers of their clients and at the most the advocate may resort to legal
remedies for, unpaid remuneration - The right of the litigant to have the files returned to him
is a corresponding counterpart of the professional duty of the advocate and that dispute
regarding fees would for fees is to be decided in an appropriate proceeding in Court

NOT TO BE BIAS
In the case of Satyendra Narain Singh and Ors. v. Ram Nath Singh and Ors. It was held
that there are a few black sheep in every profession, nay, in every walk of life. But few as
they are, they tarnish, by their machinations, the fair name of age-old institutions. Therefore,

12
AIR 1995 SC 691
13
AIR 1978 SC 969; 1978 LabIC 778
24 | P a g e
persons who occupy high public offices must take care to see that those who claim to be close
to them and are not allowed to exploit that closeness, alleged or real. On the facts of this case,
we will only say that Shri Sailendra Kumar Jha took a correct decision in not appearing in
the case any further and, with respect, his father Justice S.K. Jha acted in the best traditions of
the Judiciary in seeing that his son withdrew from the case. It is better that in such
circumstances the advocate son, rather than the Judge father, withdraws from the case.

De Grandpr, J. in his dissent14 in:

The apprehension of bias must be a reasonable one, held by reasonable and right-
minded persons, applying themselves to the question and obtaining thereon the
required information. In the words of the Court of Appeal [at p 667], that test is
"what would an informed person, viewing the matter realistically and practically --
and having thought the matter through -- conclude.

This approach was subsequently reiterated by the Supreme Court in R. v. R.D.S, and
Wewaykum Indian Band v. Canada, and followed in numerous lower court decisions
including, most recently, the Federal Court of Appeal in Canada (Attorney General) v.
Fetherston15

The law in England is also the same and has been stated in the Halsburys Laws of England

If counsel who has advised on or been engaged in a case is raised in the Bench, and the
same case comes before him, the practice is for him to refuse to adjudicate on it.

In the case of Manak Lal v. Prem Chand16, a complaint alleging professional misconduct
against Manak Lal, an advocate of the Rajasthan High Court, was filed by Prem Chand. The
bar council tribunal, appointed by Chief Justice of the High Court to enquire in to the alleged
misconduct of Manik Lal, consisted of the Chairman and two other members. The Chairman
had earlier represented Prem Chand in a case. He was, however, a senior advocate and was
once advocate general of the Rajasthan High Court. The Supreme Court had no hesitation in
assuming that the Chairman had no personal contact with this client and he did not remember
that he had appeared on his behalf in certain proceedings.

14
Committee for Justice and Liberty et al. v. National Energy Bd. , pp. 394-395
15
433 U.S. 350
16
AIR 1960 SC 554
25 | P a g e
The court was thus satisfied that there was no real likely hood bias, but still it held that the
Chairman was disqualified on the ground justice not only be done but must appear to be
done to the litigating public.

CONFLICTS OF INTEREST BETWEEN

CLAIMHOLDERS, LAWYERS AND LITIGATION
ENTREPRENEURS
All agreements that obstruct or affect administration of justice would be treated as invalid
under Section 2317. The agreement between a lawyer and his client is directly concerned with
the administration of justice. It is an agreement between a lawyer, who is an officer of the
Court and who is given privilege of audience by the Court, and his client, who is a suitor in
the Court and has a cause to be tried by the Court. If such an agreement tends either directly
or indirectly to affect the administration of justice or sully its course it would always be
declared to be invalid.

Detachment and objectivity, which are the basis of the strength of the Bar, cannot be retained
when a lawyer agrees to share in the profits of litigation. An agreement between lawyer and
client making the payment of the lawyers fees conditional upon the success of the suit and
giving the lawyer an interest in the subject matter of the suit itself, would necessarily tend to
undermine the status of lawyer as a lawyer. Such an agreement has always been condemned
as unworthy of the legal profession and is opposed to a fundamental rule of professional
ethics as was held in the case of In Re, K. L. Gauba.

An undertaking on the part of the practitioner to bear expenses of litigation on the promise of
the litigant that a certain portion of the net profits of the litigation will be allowed to the
former in case of success is grossly improper under this section. It is grossly improper
professional duty on the part of a practitioner to enter into an a agreement with his client to
give him money and legal aid in consideration of his assigning over to him a part of the
property, the subject matter of the suit, in the event of success.

The same view was expressed by a full bench of the Calcutta High Court in In the matter of
an advocate. Chief Justice Maclean, who delivered the principal judgment of the full bench,

17
Indian Contract Act, 1872
26 | P a g e
observed that it is professional misconduct for an advocate to agree with his client to accept
as his fee for share of the property, fund or other matter in the litigation for his services as an
Advocate in such litigation upon the successful issue thereof.

SUGGESTION
Bar Council of India Rules is devoid of any specific provision regarding Conflict between
interest and duty. As I have made detailed analysis of the position regarding conflict in
America, England, Canada, Philippines and the thought provoking that comes out is that why
is such a provision lacking in India. In Canada, the rules even incorporate guiding principles
as commentaries but as far as India is concerned the word conflict has no place in the rules.
Thus considering the present scenario and complexity of the legal profession, it is
recommended that there be a specific provision regarding Conflict between Interests and
Duties of a Lawyer.

CONCLUSION
Where a lawyer is guilty of a conflict of interest in representing a client he will have
committed a breach of duty. That duty is usually expressed as a fiduciary obligation arising
out of the relationship between solicitor and client. But there is similar duty owed by the
lawyer to the court (as well as an ethical duty). The duty to the court arises from the courts
concern that it should have the assistance of independent legal representation for the litigating
parties. The integrity of the adversarial system is dependent on lawyers acting with perfect
good faith. This is central to the preservation of public confidence in the admission of justice.

The usual basis for restraining a lawyer from acting for a client on the ground of conflict of
interest is that a conflict is perceived between the continuing duty of the lawyer (owed to his
former client) not to disclose or use the latters prejudice that which he learned
confidentiality, and the interest he has in advancing the case of his new client.

Every counsel has a duty to his client fearlessly to raise every Issue, advance every argument
and ask every question, however distasteful, which he thinks will help his client's case. As an
officer of the Court concerned in the administration of justice, he has an overriding duty to
the Court to the standards of his profession, and to the public which may and often does lead
to a conflict with his client's wishes or with what the client thinks are his personal interests.
27 | P a g e
Counsel must not mislead the Court, he must not lend himself to casting aspersions on the
other party or witnesses for which there is no sufficient basis in the information in his
possession, he must not without authorities or documents which may tell against the clients
but which the law or the standards of his profession require him to produce. By so acting he
may well incur the displeasure or worse of his client so that if the case is lost, his client would
or might seek legal redress if that were open to him.

In an era of national firms and a rising turnover of lawyers, especially at the less senior
levels, the imposition of exaggerated and unnecessary client loyalty demands, spread across
many offices and lawyers who in fact have no knowledge whatsoever of the client or its
particular affairs, may promote form at the expense of substance, and tactical advantage
instead of legitimate protection. Lawyers are the servants of the system, however, and to the
extent their mobility is inhibited by sensible and necessary rules imposed for client
protection, it is a price paid for professionalism. Business development strategies have to
adapt to legal principles rather than the other way around. Yet it is important to link the duty
of loyalty to the policies it is intended to further. An unnecessary expansion of the duty may
be as inimical to the proper functioning of the legal system as would its attenuation.

The issue always is to determine what rules are sensible and necessary and how best to
achieve an appropriate balance among the competing and conflicting interests. He is not
merely a mouthpiece of his client to say what he wants. He must disregard to most specific
instructions of his client, if they conflict with his duty to the Court.

No better words can sum up this project then that of Mahatma Gandhi Ji. He said the
following:-

that the duty of a lawyer was to place correct facts before the judge and to help him to
arrive at the truth, and not to prove the guilty as innocent.

The Advocates Act, 1961 was framed with a view to amend and consolidate the law relating
to legal practitioners and also to provide constitution of Bar Councils. It incorporates the
principle of Natural Justice. Various amendments were made time to time to fulfil the
nature and habitant of law enforced in the environment. By means of this act, legal
practitioners were get legal support on their profession. This act is enacted also to make
provision for the establishment of State Bar Council and Bar Council of India.

28 | P a g e
These councils has their own functions to be enrolled in its parts and also has separate powers
through which they can regulate the functioning of legal practitioners. As there are various
defects in the act provided as before, this was evolved. Even though there is even some
disfavour of this act. In case of the legal practitioners are contempt by the professional
misconduct, they are punished. But how for the punishment reduces the misconduct are
detectable.

Constitution of the councils and the committees are also made according to the provisions
enacted in the act. These members were constituted for a time as prescribed in the act. It
differs for each of the members. They also work efficiently to empower legal education in
India. They had amended many things which fuitfully helps.

Numerous committees were found under this act for various department. These committees
by seperating their area of functioning will do ours accordingly. Here one will not interfere in
other committees duty. They execute their duty according to the rules enacted in the
respective rules of both the State Bar Council and Bar Council od Indias rule.

The Advocates Act, 1961 is relates to the art of advocacy. This act helps a lawyer to become
a successful lawyer. It prescribes the legal practitioners what to do and what not do. It teaches
them how to deal the advocacy in the pure hand. This act only gives the advocate, the right to
practise in the courts. But because of the powers and name fame of this

29 | P a g e
BIBLIOGRAPHY
PRIMARY SOURCES

STATUTES

The Advocates Act, 1961

JUDGMENTS

(Thirteen) Advoates, Allahabad, In the matter of, AIR 1934 All. 1067
Bar Council of India v. M. V. Dhabolkar,.
Bates v. State Bar of Arizona, 433 U.S. 350.
Bigelow v. Virginia (1975) US.
Chintaman Rao v. State of M.P., AIR 1951 SC 118.
Florida Bar v. Went For It, Inc. (1995) US.
Government Pleader v. S, a Pleader, AIR 1929 Bom. 335.
Hamdard Dawakhana v. Union Of India, AIR 1960 SC 554; 1960 (2) SCR 671.
Haniraj L. Chulani v. Bar Council of Maharashtra and Goa, AIR 1996 SC 1708.
In the matter of A, an Advocate, AIR 1962 SC 1337
Indian Council of Legal Aid and Advice v. Bar Council of India, AIR 1995 SC 691;
Ohralik v. Ohio State Bar Association (1978) US.
SK Naicker v. Authorised Officer, (1967) 80 Mad. LW 153 at 154.
Srinath v. Union of India, AIR 1996 Mad 427.
Valentine v. Chrestensen (1942) US.
Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council Inc. (1976)
US.

ARTICLES/JOURNAL

David L. Hudson, Bates participants reflect on landmark case, at

http://www.firstamendmentcenter.org/analysis.aspx?id=14394
Rajiv Dutta, World Trade Organization and Legal Services: The Indian Scenario, at
www.insolindia.com/shimlaPDFs/worldTradeOrg.pdf
Report on Trade in Legal Services, Trade in Services: Opportunities and
Constraints, Ministry of Commerce, Government of India, Executed by Indian
30 | P a g e
 Council for Research in Economic Relations, Coordinator(s) N.L. Mitra and T.C.A
Anand.
Singh Lalithakumar I., A View on Legal Profession, AIR 2006 (Jour.) 1.
Statement of Objects and Reasons, The Advocates Act, 1961.
World Bank Report on Emerging Service Sector, 1999 quoted in The Raghvan
Committee Report on Competition Law, 2000.

31 | P a g e