Mod 4, 5 and 6

Right of Pre-audience

Introduction

1. Pre-audience in general terms means the right to be heard before others.

2. It puts the person who has the right to pre-audience above others in the same
category as him so as to establish his authority.
3. Right to Pre-audience is provided under Section 23 of the Advocates Act, 1961.

Meaning and Definition

1. An Advocate is an official of the court.

2. An advocate’s duty is to represent his client in the best way he can at the court,
but one cannot do that if he is not given the chance to speak at the court.
3. So an advocate while representing his client must be allowed to speak in the
court of law unless he disturbs the decorum of the court.
4. One of the significant privileges of advocates as enrolled under the Advocate
Act, 1961 is the privilege of pre-audience.
5. It can be defined as ‘precedence at the bar among other law officers and
advocates.’
6. It is based on the English Common Law that states “people of higher ranks will
be heard before those who are below them in ranks”.
7. When a court is under conflict, it follows this rule and this principle of conduct.
8. A junior can’t address the court before a senior advocate without the permission
of the latter.
9. This right grants certain privileges to advocates based on their qualifications
and allows them to be heard in a specified order determined by their seniority,
position, and standing within the legal profession.

Section 23

Section 23 outlines the order of priority for the right of pre-audience. It establishes
a hierarchy for advocates who are qualified to address the court.

The order as per the section is as follows:

1. Attorney General
 - The Attorney General holds the highest pre-audience privilege.
- This reflects the recognition of the Attorney General's pivotal role as the
principal legal advisor to the government.
2. Solicitor General of India
- The Solicitor General typically represents the government in legal
matters.
- He follows in the order of priority, with pre-audience over any other
advocates.
3. Additional Solicitor General of India
4. Second Additional Solicitor General of India
5. Advocate General of any State
- The Advocate General of any State holds pre-audience over Senior and
other advocates, emphasizing the significance of state representation in
legal proceedings.
6. Senior Advocates
- Senior Advocates, recognized as per the provisions of Section 17 and 21
of the Advocates Act, are granted pre-audience over other advocates.
7. Other Advocates
- Advocates who do not fall into the above categories have the right of pre-
audience based on their specific rank as determined by the mentioned
sections of the Act.

Conclusion:

1. While the order of pre-audience is established by the Act, the Act also
acknowledges the autonomy of advocates to agree on a different order based
on the client's instructions.
2. The Act ensures that such arrangements do not impact an advocate's right to
conduct a case on behalf of their client.
3. The Act allows advocates to waive their right of pre-audience for the benefit
of another advocate if they deem it appropriate.
4. The Act emphasizes the flexibility of the system to accommodate specific
case requirements and client preferences.
Qualifications and Disqualifications

Qualification for entering name in a State Roll

Section 24 of the Act says that a person can be admitted as an Advocate in a State
Roll, if-

 He is a citizen of India. However a foreign national may be admitted to a

State Roll, if qualified Indian citizens are allowed to practice in that country.

 He has completed twenty one years of age.

 He has obtained a law degree from a University or college recognised by Bar

Council of India.

 He fulfills any other conditions set out by the concerned State Bar Council.

1. So any person who satisfies the above conditions can make an application to
the State Bar Council in whose jurisdiction he intends to practice as an
Advocate.
2. The application can be made to the State Bar Council as per the provision of
Section 25.
3. The application shall be accompanied by prescribed fees payable to the State
Bar Council and Bar Council of India.
4. The application for enrolment is scrutinized by the Enrolment Committee
of the State Bar Council.
5. The State Council may refuse to admit an application provided that they
shall refer the application to Bar Council of India for their opinion.
6. The State Council shall intimate the Bar Council, its grounds for refusing the
application. The application shall be finally disposed in conformity with the
opinion made by the Bar Council of India.
7. Once a State Bar Council has refused to entertain an application for
enrolment, the Council shall intimate the details to other State Bar Councils.
8. As under Section 27 once an application is refused, it shall not be
entertained by another Bar Council except in certain circumstances.
 9. Within two years of enrolling with the State Bar Council, an enrolled
advocate shall appear for All India Bar Examination conducted by Bar
Council of India.
10.The exam is conducted twice in a year.
11.Once the exam is cleared by the candidate, Bar Council of India issues
Certificate of Practice.

Right to Practice of an Advocate – Section 30

As per Section 30 of the Act, an Advocate whose name entered in a State Roll shall
have a right to practice-

 In all courts including Supreme Court.

 Before any tribunal or person legally authorised to take evidence.

 Before any other authority or person before whom such advocate is entitled
to practise under any law for the time being in force.

However as per the Supreme Court Rules, only an Advocate on Record can appear,
plead and address the Supreme Court.

Nevertheless, High Courts are empowered to make rules regarding the conditions
as to which an Advocate shall be permitted to practise before such High Court and
Courts subordinate to it as per Section 34.

Essentially, An advocate who satisfies all the conditions under the law has the right
to practice.

As per Section 32:

Section 32 of the Advocates Act, 1961, provides the authority for courts,
authorities, or individuals to permit a person who is not enrolled as an advocate
under the Act to appear before them in a particular case.
Disqualification for enrolment

Section 24A speaks about disqualification for enrolment. The section says that, no
person shall be admitted as an Advocate in a State Roll-

 If he is convicted for an offence involving moral turpitude.

 If he is punished for an offence under Untouchability (Offences) Act.

 If he was dismissed or removed from an employment or service under the

State for an offence involving moral turpitude.

1. However, such disqualification will cease to have effect after the lapse of
two years since his removal or dismissal or release.
2. Also the Bar Council of India is empowered to remove the name of a person
from State Roll, if it is satisfied that he got his name entered through
misrepresentation or undue influence or fraud.
3. Section 26A gives the State Bar Council the power to remove names from
roll. It may remove name of any advocate under occasions:
- Death of the advocate
- On request made for removal
4. An advocate can make an application for such expiry and intimate the State
Bar Council. Such intimation shall be accompanied by the certificate of
enrollment.
5. The application will be scrutinised by the Enrolment Committee.
6. If the application is accepted, the certificate surrendered by the applicant
will be returned to him.
7. If the Committee thinks that, the applicant has incurred any disqualification
it shall refer the matter to Bar Council of India.
8. Bar Council Rules provide that a practising Advocate shall not engage in
any other employment. The rule originates from the notion that legal
profession requires full attention from a person who intends to practice it. It
is a reputed profession which one cannot do as a side business.
Professional Misconduct

Section 35 – Punishment of Advocate for misconduct

Introduction

1. Every profession has to maintain its dignity and some kind of responsible
behavior is expected from persons engaged in a profession. And legal
profession is no exception.
2. Advocates have duty towards court, client, colleagues, society etc. He/she is
bound to fulfill them while keeping the dignity of the profession.
3. So any improper conduct from an advocate or an irresponsible behavior from
the part of him may be called as professional misconduct.

Section 35

Section 35 of the Advocates Act, 1961, outlines the process and actions that can be
taken when a State Bar Council has reason to believe that an advocate on its roll
has been involved in professional or other misconduct.

Key provisions of the section are as follows:

1. Initiation of Proceedings:

 If a State Bar Council receives a complaint or has reason to believe that an

advocate on its roll has been guilty of professional or other misconduct, it is
obligated to refer the case for disposal to its disciplinary committee.

2. Withdrawal of Proceedings:

 The State Bar Council, either on its own motion or upon application by any
interested person, has the authority to withdraw a proceeding pending before its
disciplinary committee. It can direct the inquiry to be conducted by any other
disciplinary committee of that State Bar Council.

3. Notice and Hearing:

 The disciplinary committee, after receiving the case, is required to fix a date for
the hearing. It must provide notice of the hearing to the advocate in question
and also to the Advocate-General of the State.

4. Orders by Disciplinary Committee:

 After giving the advocate concerned and the Advocate-General an opportunity

to be heard, the disciplinary committee may make one of the following orders:

(a) Dismiss the complaint or direct that the proceedings be filed.

(b) Reprimand the advocate.

(c) Suspend the advocate from practice for a period deemed fit.

(d) Remove the name of the advocate from the State roll of advocates.

5. Consequences of Suspension:

 If an advocate is suspended from practice under clause (c), the advocate is

debarred from practicing in any court or before any authority or person in India
during the suspension period.

If an Advocate who is not enrolled with any State Bar Council has been alleged
with professional misconduct, the matter shall be disposed by the disciplinary
committee of Bar Council of India.

Also any person aggrieved by the order of disciplinary committee of State Bar
Council may appeal to the Bar Council of India. An appeal from the orders of Bar
Council of India shall lie to the Supreme Court.

Disciplinary Powers

Disciplinary proceedings within the legal profession are crucial for upholding the
standards of professional conduct and ensuring the integrity of the legal system. In
India, both the Bar Council of India and State Bar Councils play pivotal roles in
addressing allegations of professional or other misconduct by advocates. Section
35 pertains to the State Bar Councils' disciplinary powers, while Section 36
delineates the disciplinary powers vested in the Bar Council of India. This dual
regulatory framework establishes a robust mechanism for maintaining ethical
standards within the legal fraternity.

Disciplinary Powers of Bar Council of India: Section 36

1. Initiation of Proceedings:

 The Bar Council of India can take action upon receiving a complaint
or having reason to believe that an advocate, whose name is not on
any State roll, has engaged in professional or other misconduct.

 The case is referred to the disciplinary committee of the Bar Council

of India for further investigation and disposal.

2. Withdrawal and Inquiry:

The disciplinary committee of the Bar Council of India has the authority to
withdraw any proceedings for disciplinary action pending before the
disciplinary committee of any State Bar Council, either

- on its own motion,

- on a report by any State Bar Council,
- or on application by an interested person,

 The committee can then conduct the inquiry before itself and dispose
of the case.

3. Procedure and Orders:

 The disciplinary committee of the Bar Council of India, in handling

cases under this section, follows a procedure similar to that laid down
in Section 35. References to the Advocate-General in Section 35 are
construed as references to the Attorney-General of India.
  The disciplinary committee of the Bar Council of India can make any
order that a State Bar Council's disciplinary committee can make
under Section 35(3), including;

- dismissal,
- reprimand,
- suspension, or
- removal.

4. Changes in Disciplinary Committees:

 Section 36A addresses changes in the constitution of disciplinary

committees. If a committee ceases to exercise jurisdiction and is
succeeded by another committee, the succeeding committee can
continue the proceedings from the stage left by its predecessor.

Disposal of Disciplinary Proceedings

Section 36B of the Advocates Act, 1961, introduces provisions for the expeditious
disposal of disciplinary proceedings against advocates. The objective is to ensure
timely resolution, maintaining the integrity of the legal profession and upholding
the principles of justice.

1. Timeframe for Disposal:

 The disciplinary committee of a State Bar Council is obligated to

expeditiously dispose of received complaints under Section 35.

 In each case, proceedings must be concluded within a period of one

year from the date of receiving the complaint or the initiation of
proceedings by the State Bar Council.

2. Transfer to Bar Council of India:

  If the State Bar Council fails to conclude the proceedings within the
stipulated one-year period, the case stands transferred to the Bar
Council of India.

 The Bar Council of India assumes jurisdiction over the matter and
may dispose of it as if it were a proceeding withdrawn for inquiry
under Section 36(2).

3. Transitional Provision (Amendment Act, 1973):

 A transitional provision is included for matters pending on the

commencement of the Advocates (Amendment) Act, 1973.

 If proceedings against an advocate are already underway before the

State Bar Council, it must conclude them within six months from the
commencement of the Amendment Act or within one year from the
receipt of the complaint or initiation of proceedings, whichever is
later.

Disciplinary Committee

The following sections provide the composition, powers, cost implications, and
review mechanisms pertaining to disciplinary committees within Bar Councils.
These committees play a crucial role in maintaining professional conduct and
adjudicating matters of misconduct among advocates.

Section 9: Disciplinary Committees Composition:

1. Constitution: A Bar Council is mandated to establish one or more

disciplinary committees.

2. Composition: Each committee comprises three members – two elected from

the Bar Council's members and one co-opted from advocates meeting
specified qualifications.

3. Chairmanship: The senior-most advocate in the committee assumes the

position of Chairman.
 4. Amendment Provision: Disciplinary committees constituted before the
Advocates (Amendment) Act, 1964, can proceed with their existing
composition.

Section 42: Powers of Disciplinary Committee:

Introduction: Section 42 of the Advocates Act empowers the disciplinary

committee of a Bar Council with judicial authority and specifies the extent of its
powers, akin to those of a civil court under the Code of Civil Procedure, 1908.

Powers of Disciplinary Committee:

1. Summoning and Enforcement:

 The committee has the power to summon individuals, enforce their

attendance, and examine them under oath.

2. Discovery and Production:

 The committee can require the discovery and production of any

documents relevant to the proceedings.

3. Evidence on Affidavits:

 The committee is authorized to receive evidence on affidavits,

allowing for a flexible approach to the presentation of evidence.

4. Requisitioning Public Records:

 The committee can requisition public records or copies from any court
or office, ensuring access to necessary information.

5. Issuing Commissions:

 It can issue commissions for the examination of witnesses or

documents, facilitating a thorough and comprehensive inquiry.

6. Prescribed Matters:

 The committee's powers extend to any other matter as may be

prescribed, providing flexibility in handling diverse issues.
Limitations and Provisions:

1. Limitations on Attendance:

 The committee cannot compel the attendance of certain officials

without prior sanction. This includes presiding officers of courts and
officers of revenue courts.

2. Judicial Proceedings:

 All proceedings before the disciplinary committee are deemed judicial

proceedings, falling under the purview of sections 193 and 228 of the
Indian Penal Code.

3. Civil Court Status:

 The committee is considered a civil court for specific purposes,

including sections 480, 482, and 485 of the Code of Criminal
Procedure, 1898.

4. Enforcement through Civil Court:

 For the exercise of its powers, the committee may send summons or
other processes to any civil court within the Act's territorial
jurisdiction, which will enforce them as if they were its own
processes.

5. Proceedings Continuation in Absence:

 The committee may continue proceedings in the absence of the

Chairman or any member on a designated date, ensuring flexibility in
scheduling.

6. Final Orders in the Absence of Chairman:

 No final orders of the nature referred to in Section 35(3) shall be made

unless the Chairman and other members are present. If absent, the
case and opinions are laid before the Chairman or Vice-Chairman of
the Bar Council, and the final order follows their opinion.
Conclusion: Section 42 empowers the disciplinary committee with a wide range of
powers, resembling those of a civil court, ensuring a robust and comprehensive
adjudication process for matters related to professional conduct of advocates.

Section 43: Cost of Proceedings before Disciplinary Committees:

1. Cost Determination: The disciplinary committee has the authority to decide

the costs of proceedings.

2. Enforceability: Ordered costs are executable akin to orders from the

Supreme Court or High Court, depending on whether the committee is of the
Bar Council of India or a State Bar Council.

Section 44: Review of Orders by Disciplinary Committee:

Introduction: Section 44 of the Advocates Act addresses the power of the

disciplinary committee of a Bar Council to review its own orders and the
subsequent requirement for approval from the Bar Council of India for such a
review to take effect.

Review of Orders:

1. Initiation of Review:

 The disciplinary committee is vested with the authority to review any

of its orders. This review can be initiated either by the committee
itself (of its own motion) or through an application or representation
by concerned parties.

2. Time Limit for Review:

 The review process must commence within sixty days from the date
of the original order. This time limit emphasizes prompt action in
scrutinizing decisions.

Provisions and Limitations:

1. Own Motion or Otherwise:

 The committee can undertake a review either on its own motion or in

response to a request or representation from interested parties.
 2. Approval Requirement:

 However, any order resulting from the review process, particularly in

the case of a State Bar Council, does not take effect unless it receives
approval from the Bar Council of India.

Conclusion: Section 44 introduces a mechanism for the disciplinary committee to

reevaluate its own decisions within a specified timeframe. This provision enhances
the accountability of the committee's decisions, ensuring that a thorough review is
conducted when necessary. The requirement for approval from the Bar Council of
India adds an additional layer of oversight, emphasizing the significance of
uniform standards in disciplinary matters across different jurisdictions.

Rights of an advocate

In India, the rights of advocates are protected by the Advocates Act, 1961 which
outlines the legal framework governing the legal profession in the country. These
rights ensure that advocates can effectively perform their duties towards their
clients, the court, and the legal system while upholding the principles of
professional ethics and integrity.

1. Right to Practice (Section 30)

2. Rights of Advocate to Pre-audience

3. Right to Freedom of Speech and Expression of a Advocate

4. Advocate’s Right to Enter any Court and Observe the Proceedings

5. Rights of Advocate Against Arrest

6. Rights of Advocate Meet with Accused

7. Rights of Advocate to Secure the Privacy of Communication

8. Right to Take Fee

9. Rights of Advocate to Refuse a Case

Right to Practice (Section 30)

The right to practice law is a fundamental right of advocates in India. Section 30 of

the Advocates Act, 1961, explicitly recognises the right of advocates to practice in
all courts, including the Supreme Court, High Courts, and subordinate courts.
Advocates have the right to appear, plead, and act on behalf of their clients in any
court or tribunal, and to perform all other functions conferred upon them by law.

This right ensures that advocates can freely exercise their professional skills and
represent their clients without any undue restrictions, thus upholding the principles
of access to justice and the rule of law.

However, this right is subject to certain conditions, such as the advocate being
enrolled with the appropriate Bar Council, complying with the code of conduct for
advocates, and possessing the necessary qualifications and experience as required
by law.

Rights of Advocate to Pre-audience

Advocates in India have the right to pre-audience, which means the right to access
and inspect the records, documents, and proceedings of a case before it is taken up
for a hearing in court. This right allows advocates to prepare their cases
thoroughly, understand the facts and legal issues involved, and effectively
represent their clients.

The right to pre-audience is essential for advocates to provide competent legal

representation and ensure that their client’s interests are adequately safeguarded.
This right is recognised by various provisions of the Advocates Act, 1961, and the
rules of procedure of the courts, which provide advocates with the opportunity to
examine the case records and gather relevant information before presenting their
arguments in court.

Right to Freedom of Speech and Expression of a Advocate

Advocates have the right to freedom of speech and expression, which includes the
right to express their opinions or criticisms about the legal system, judiciary, its
functioning, or its decisions. This right is recognised as a fundamental right under
Article 19(1)(a) of the Constitution of India, which guarantees the freedom of
speech and expression to all citizens.

Advocates play a vital role in advocating for the rights and interests of their clients,
and they have the right to voice their opinions or concerns on legal matters that
affect their clients or the legal profession as a whole. However, this right should be
exercised responsibly and in adherence to the code of conduct for advocates, which
prohibits any disrespectful or derogatory remarks about the judiciary or other legal
professionals.

Advocate’s Right to Enter any Court and Observe the Proceedings

Advocates have the right to enter any court and observe the proceedings, even if
they are not representing any party in the case. This right allows advocates to gain
knowledge and insights into the functioning of the court, understand the legal
process, and stay updated with the latest developments in the law.

Advocates can also learn from the arguments and strategies of other advocates,
observe the judicial process, and enhance their legal skills through this right. This
right is recognised by the provisions of the Advocates Act, 1961, and the rules of
procedure of the courts, which permit advocates to be present in courtrooms and
observe the proceedings.

Rights of Advocate Against Arrest

Advocates have the right against arbitrary arrest or detention while performing
their professional duties. This right ensures that advocates can freely and fearlessly
represent their clients without any hindrance or intimidation.

The Advocates Act, 1961, specifically provides for this right under Section 32,
which states that no advocate shall be arrested or detained in any civil or criminal
case while going to or attending a court, or while returning from a court. However,
this right is subject to certain exceptions, such as when an advocate is reasonably
suspected of committing a cognisable offence, or when an arrest warrant is issued
against the advocate by a competent court.

Rights of Advocate Meet with Accused

Advocates can meet and consult with their clients, including accused persons, in
private, without any interference or monitoring. This right is essential for
advocates to effectively represent their clients and provide legal advice and
assistance.

The right to meet with accused persons in private is recognised by various

provisions of the Advocates Act, 1961, and the rules of procedure of the courts.
Advocates can meet their clients in police custody or in jail, and have the right to
discuss the case, gather information, and prepare the defence strategy in
confidence.

This right ensures that advocates can uphold the principles of attorney-client
privilege and maintain the confidentiality of their communication with their clients.

Rights of Advocate to Secure the Privacy of Communication

Advocates have the right to secure the privacy of their communication with their
clients, which includes the right to protect the confidentiality of information shared
by their clients. This right is crucial for advocates to maintain the trust and
confidence of their clients, and to effectively represent their interests.

The Advocates Act, 1961, and the rules of professional conduct for advocates,
specifically provide for this right under various provisions, which prohibit
advocates from divulging any information or communication received from their
clients, except with their consent or as required by law. Advocates are also duty-
bound to protect the privileged communication and legal documents of their clients
from any unauthorised access or disclosure.

Right to Take Fee

Advocates have the right to receive reasonable fees for the professional services
rendered to their clients. This right ensures that advocates can earn a livelihood
from their practice and sustain their profession.

The Advocates Act, 1961, and the rules of professional conduct for advocates,
recognise this right and provide guidelines for determining fees and the mode of
their recovery. Advocates are entitled to charge fees based on their professional
expertise, experience, and the nature of the case, and are duty-bound to be
transparent and fair in their fee agreements with their clients. Advocates also have
the right to sue their clients for their unpaid fees, subject to the rules of
professional conduct and the applicable laws.

Rights of Advocate to Refuse a Case

Advocates have the right to refuse to accept a case if they have sufficient reasons
to believe that the case is against their professional ethics or principles, or if they
have a conflict of interest. This right ensures that advocates can maintain their
independence and integrity, and avoid any compromise on their professional duties
towards the court and their clients.

The Advocates Act, 1961, and the rules of professional conduct for advocates,
recognise this right and provide guidelines for advocates to refuse a case.
Advocates are not bound to accept every case that comes their way, and they have
the right to decline representation if they have valid reasons to do so.

However, this right is subject to certain exceptions, such as when an advocate is

appointed by the court to represent a party in a criminal case, or when an advocate
is engaged by the State to provide legal aid services. In such cases, advocates may
be required to accept the case, subject to the rules of professional conduct and the
applicable laws.

Skills essential for a lawyer

According to former Chief Justice of India S H Kapadia, to succeed as a lawyer,

one must work like a horse and live like a hermit. A great legal practitioner is said
to be a Jack of all trades, a master of none.

These qualities, along with legal ethics rooted in the Seven Lamps of Advocacy
book authored by Justice Abbott Parry.

1. Honesty

2. Courage

3. Wit
4. Industry

5. Eloquence

6. Legal Judgement

7. Professional Fellowship