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The Need To Protect Legal Profession From Silent Invasion By Non-Advocates

H Karthik Seshadri
12 Aug 2020 5:04 AM GMT
The Need To Protect Legal Profession From Silent Invasion By Non-Advocates
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Rules are necessary to be made to ensure that persons practising other professions sare prohibited from engaging themselves in the practice of law.
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Introduction

An interesting tussle is afoot. This is bound to have huge implications on the way the legal profession progresses. The Delhi Bar Council sometime in March 2019 has issued a notice to the Big Four audit firms directing them to give it a list of advocates that have been employed by them and also directed that they not indulge in any practise of law and later even barred them from practise of law.[2] The line between the legal professionals and other professionals like Chartered Accountants and Company Secretaries is blurring. The reason is simple, these professionals also have various law subjects as part of their professional qualification. Now, will that grant them the right to practise law? That is the moot question. This right to practise of law has to be evaluated from the perspective of large scale tribunalisation of the justice delivery system. At the same time, the executive continues in its attempt to dilute the Tribunals by framing rules that permits non judicial personnel to preside over the Tribunals, a practise that has been struck down by the Supreme Court repeatedly[3].

Role of Lawyers : Historical analysis:

Historically in India during the times of the Nawabs/Kings representation was done by even an untrained relative. Later with the creation of the Mayors Courts in 1726 the need for legal practitioners was felt. Still later, many Indians qualified themselves and made themselves proficient in the English language and the practices of the courts.[4] Post-independence, after the enactment of the Advocates Act, 1961 there is only one category of legal professional viz., Advocate. Only a person provided with a License to practise law can practise law.

Lawyers have played a very important role in the development of society and have served as a very important check / balance in the interplay between Legislature, Executive and the Judiciary. They have played a very important role in maintaining purity in the legal system and in the justice delivery system. The Supreme Court of India has time and again held that one of the fundamental and the basic structure of the Constitution is an independent and fearless judiciary[5]. The Supreme Court had even struck down an amendment made to the Constitution for the creation of a National Judicial Appointments Commission, upholding the independence of the Judiciary in this regard. Independent Judiciary is not to be read in a restricted sense but to be seen and appreciated as an independent and fearless Bar. The Constitution of India has placed an advocate on a special pedestal by providing under Article 124(3) that a person shall not be qualified for appointment as a Judge of the Supreme Court of India unless he is a citizen of India and – has been for at least ten years an advocate of a High Court or of two or more such Courts in succession. Similarly, under Article 217(2) of the Constitution of India a person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and – has been for at least ten years an advocate of a High Court or of two or more such Courts in succession

In Australia the word "lawyer" is used to refer to both barristers and solicitors (whether in private practice or practising as corporate in-house counsel). In Canada, the word "lawyer" only refers to individuals who have been called to the bar or have qualified as civil law notaries in the province of Quebec. Common law lawyers in Canada may also be known as "barristers and solicitors", but should not be referred to as "attorneys", since that term has a different meaning in Canadian usage. However, in Quebec, civil law advocates (or avocats in French) often call themselves "attorney" and sometimes "barrister and solicitor". In England and Wales, "lawyer" is used loosely to refer to a broad variety of law-trained persons. It includes practitioners such as barristers, solicitors, legal executives and licensed conveyancers and people who are involved with the law but do not practise it on behalf of individual clients, such as judges, court clerks, and drafters of legislation. In Scotland, the word "lawyer" refers to a more specific group of legally trained people. It specifically includes advocates and solicitors. In a generic sense, it may also include judges and law-trained support staff. In the United States, the term generally refers to attorneys who may practice law; it is never used to refer to patent agents or paralegals. Other nations tend to have comparable terms for the analogous concept. In India, the term "lawyer" is often colloquially used, but the official term is "Advocate" as prescribed under the Advocates Act, 1961.

The Advocates Act, 1961 was enacted based on the recommendations of the All India Bar Committee in 1953, after taking into account the recommendations of the Law Commission on the subject of Reform of Judicial Administration in so far as the recommendations related to Bar and Legal education. The main objective of the Act was to integrate the Bar into a single class of legal practitioners known as Advocates and prescription of uniform qualifications for admission, right to practise and discipline of Advocates[6].

The Advocates Act, 1961 envisages the creation of State Bar Councils and a Bar Council of India. The functions of the State Bar Council is to inter alia

  • admit persons as advocates on its roll;
  • prepare and maintain such roll;
  • entertain and determine cases of misconduct against advocates on its roll;
  • safeguard the rights, privileges and interests of advocates on its roll;
  • to promote the growth of Bar Associations for purposes of effective implementation of welfare schemes;
  • to promote and support law reform;
  • organising legal aid etc.

The Bar Council of India exercises general supervision and control over State Bar Councils and prescribes standards of professional conduct and etiquette of advocates, lays down the procedure to be followed by its disciplinary committee and disciplinary committee of each State Bar Council, to recognise on a reciprocal basis foreign qualifications in law obtained outside India, to promote legal education and lay down standards of such education in consultation with Universities in India etc.

The Advocates Act recognises two classes of Advocates viz., Advocates and Senior Advocates. An advocate may, with his consent, be designated as senior advocate if the Supreme Court or High Court is of the opinion that by virtue of his ability, standing at the Bar or special knowledge or experience in law he is deserving of such distinction. It also recognises the concept of "Right of pre- audience".

"Right to Practise" is governed by Chapter IV of the Advocates Act, 1961. Section 29 recognises that there shall be only one class of persons entitled to practise the profession of law, namely, Advocates. Section 32 further states that any Court, authority or person may permit any person, not enrolled as an advocate under this Act, to appear before it or him in any particular case. Section 33 states "Except as otherwise provided in this Act or in any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practise in any Court or before any authority or person unless he is enrolled as an advocate under this Act.

Core duties of Lawyers:

An Advocate has several duties and responsibilities which are as below:

There is considerable literature that identifies six traditional "core duties"[7]

  • Litigation fairness;
  • Competence;
  • Loyalty;
  • Confidentiality;
  • Reasonable fees; and
  • Public service

as being the primary duties of a lawyer as it existed in medieval England and as being the fulcrum of the profession till date. These core duties are the fulcrum upon which the modern day lawyer functions and ensures that there is smooth dispensation of justice by the Courts. Courts and lawyers are therefore an integral part of the justice delivery system.

These traditional duties now find place in Chapter II of the Bar Council of India Rules made under Section 49(1)(c) of the Advocates Act, 1961 under the heading "Standards of Professional Conduct and Etiquette".

What is Practice of Law?

Part IV of Bar Council of India Rules provides for rules of legal education and Rule 2 define Practice of Law as follows:

"Rule 2 (xx) 'Practice of law' means and includes-

(a) Practising before the Court, Tribunal, Authority, Regulator, Administrative Body or Officer and any Quasi Judicial and Administrative Body;

(b) Giving legal advice either individually or from a law firm either orally or in writing;

(c) Giving legal advice to any government, international body or representing any international dispute resolution bodies including International Court of Justice; and

(d) Engaged in Legal Drafting and participating in any Legal Proceedings; and

(e) Representing in Arbitration Proceedings or any other ADR approved by law."

Therefore, from a plain reading of the above Rules, it is clear that apart from practicing before the Courts, Tribunals and persons, there are other aspects also which fall under the definition of the expression 'practice of law'. Undoubtedly, the Advocates Act regulates and governs the 'Practice of Law' whether litigious or non litigious practice. The Act under Section 33 provides that a person not enrolled as an advocate is not entitled to practice before Court, or before any authority or person. In A.K.Balaji[8], the Supreme Court of India has now held

"Ethics of the legal profession apply not only when an advocate appears before the Court. The same also apply to regulate practice outside the Court. Adhering to such Ethics is integral to the administration of justice. The professional standards laid down from time to time are required to be followed. Thus, we uphold the view that practice of law includes litigation as well as non litigation."

"We have already held that practicing of law includes not only appearance in courts but also giving of opinion, drafting of instruments, participation in conferences involving legal discussion. These are parts of non-litigation practice which is part of practice of law. Scheme in Chapter-IV of the Advocates Act makes it clear that advocates enrolled with the Bar Council alone are entitled to practice law, except as otherwise provided in any other law. All others can appear only with the permission of the court, authority or person before whom the proceedings are pending. Regulatory mechanism for conduct of advocates applies to non-litigation work also. The prohibition applicable to any person in India, other than advocate enrolled under the Advocates Act, certainly applies to any foreigner also."

Invasion into the profession:

Of late, by virtue of the creation of various Tribunals that essentially are in the nature of quasi judicial and administrative bodies like (a) Debt Recovery Tribunal; (b) National Company Law Tribunal/National Company Law Appellate Tribunal; (c) Intellectual Property Appellate Board; (d) Securities Appellate Tribunal; (e) State Administrative Tribunals; (f) Income Tax Appellate Tribunals; (g) Consumer Fora & National Consumer Forum (h) National Green Tribunal; to name a few, the line between Courts and tribunals have slowly started vanishing. Some tribunals function as if they are quasi-judicial bodies, while some others function as if they are substitute for Courts. The statute by which they are created provides for appellate remedies including the formation of Appellate Tribunals. Invariably, all these Appellate Tribunals are manned by Retired High Court Judges or Retired Supreme Court Judges. The Supreme Court of India has also dealt with the powers and duties of some of these Tribunals and has found that some of these Tribunals are quasi judicial bodies (Debt Recovery Tribunal for example) and some others as Judicial bodies (Competition Commission Appellate Tribunal for example).

In many of the Rules framed by these Tribunals and in a few statutes that constitute these Tribunals, "authorised representatives" have been permitted to represent and appear before the Tribunals. More particularly other professionals like Chartered Accountants, Company Secretaries, Cost Accountants have been permitted to appear in the form of authorised representatives. The question that arises for consideration is whether any other professional other than "an Advocate" is entitled to "practice the profession of law".

It is pertinent to mention, a Chartered Accountant is barred from practicing two professions. Any person who is a chartered accountant and is engaged in any other business or occupation will be guilty of professional misconduct under the Chartered Accountants Act, 1949. Part I of the First Schedule of the Chartered Accountants Act, 1949 deals with: Professional misconduct in relation to chartered accountants in practice. Clause 11 of Part I states that: "A chartered accountant in practice shall be deemed to be guilty of professional misconduct if he engages in any business or occupation other than the profession of chartered accountant unless permitted by the Council so to engage:

Provided that nothing contained herein shall disentitle a chartered accountant from being a director of a company (not being a managing director or a whole time director) unless he or any of his partners is interested in such company as an auditor."

Section 21-A of the Chartered Accountants Act, 1949 pertains to the Board of Discipline.

Clause 3 of Section 21-A states that:

"Where the Board of Discipline is of the opinion that a member is guilty of a professional or other misconduct mentioned in First Schedule, it shall afford to the member an opportunity of being heard before making any order against him and may there after take any one or more of the following actions, namely:-

a) reprimand the member;

b) remove the name of the member from the Register up to a period of three months;

c) impose such fine as it may think fit which may extend to Rs. One Lakh."

Similar provisions are available in the case of Company Secretaries and Cost Accountants too.

It is submitted that Practice of law as a profession has as stated supra, certain very important duties attached to it. The Bar Council of India has framed Rules to regulate conduct of advocates. Chapter II, "Standards of Professional Conduct and Etiquette" formulated by the Bar Council under Section 49(1)(c) of Advocates Act, 1961 deals with the traditional duties of an advocate. It states " An advocate shall, at all times, comfort himself in a manner befitting as an officer of the Court, a privileged member of the community, and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his non professional capacity may still be improper for an advocate." After stating so, the Rules prescribe the following duties on an Advocate viz., (a) Duty to the Court; (b) Duty to the client; (c) Duty to the opponent (d) Duty to colleagues (e) Duty in imparting training (f) Duty to render legal aid (g) Restrictions on other employments.

Practice of law by a class of people known as advocates / lawyers has been prevalent from time immemorial. So far as India is concerned, the profession was sought to be regulated sometime in 1792 by Lord Cornwallis. Merely because a person has knowledge of certain specific laws, it does not mean that they are advocates or lawyers capable of involving themselves in the practice of the profession of law. Only such of those persons who have been admitted to practice as an advocate can involve themselves in the practice of profession of law. Non lawyers cannot therefore take advantage the provisions of other enactments such as the Companies Act, 2013 to involve themselves in the practice of profession of law unless they qualify themselves as an advocate and get themselves duly registered and regulated by the Advocates Act. In present day context Chartered Accountants, Practicing Company Secretaries, Cost Accountants have started providing legal advise to the public at large. This is a matter that could give rise to serious consequences and liable to be prohibited forthwith. These professionals are not governed by the Rules of the Bar Council and/or the traditional duties of an advocate. Neither the privileges nor the duties governing an advocate govern these professions. These professions are governed by their own set of rules and conduct. It is obviously meant to only apply for those professionals and they cannot be interpreted to mean to permit them to involve in the "practice of the profession of law".

The process for being entitled to practice in India is twofold. First, the applicant must be a holder of a law degree from a recognized institution in India (or from one of the four recognised Universities in the United Kingdom) and second, must pass the enrolment qualifications of the Bar Council of the state where he/she seeks to be enrolled. For this purpose, the Bar Council of India has an internal Committee whose function is to supervise and examine the various institutions conferring law degrees and to grant recognition to these institutions once they meet the required standards. In this manner the Bar Council of India also ensures the standard of education required for practicing in India are met with. As regards the qualification for enrolment with the State Bar Council, while the actual formalities may vary from one State to another, yet predominately they ensure that the application has not been a bankrupt /criminal and is generally fit to practice the profession of law.

Enrolment with a Bar Council also means that the law degree holder is recognized as an Advocate and is required to maintain a certain standard of conduct and professional demeanour at all times, both on and off the profession. The Bar Council of India also prescribes "Rules of Conduct" to be observed the Advocates in the courts, while interacting with clients and even otherwise. From the year 2010 onwards a mandatory rule is made for lawyers passing out from the year 2009-10 to sit for a evaluation test named AIBE ( All India Bar Exam ) for one to qualify as an advocate and practice in the courts.

From 2015 onwards, the Bar Council has taken notice of the following, passed the Certificate of Practice and Place of Practice (Verification) Rules, 2015:

"The legal profession is an Honorable one and it has critical role to play in protecting and promoting the Civil and Constitutional rights of the people. An independent and fearless Bar is vital and crucial for sustaining and promoting a true and healthy democracy. The Bar which is subject to manipulation and influence from extraneous powers, howsoever mighty and esteemed they may be, cannot do justice either to the Legal Profession or to the Rule of Law. Trend of Advocates switching over to other professions/services/business without any information to the State Bar Council has reached alarming proportions. This trend is endangering the legal profession as a whole. It has also made a dent in its sanctity and standards. Names of such advocates continue to be included in the "Roll of advocates" being maintained by the Bar association and State Bar Councils, notwithstanding the fact that they have left the legal profession or have since died. Under these circumstances it appears that a definite trend is visible that the control of Bar Associations and of other elected bodies under the Advocates Act is slipping out of the hands of the advocates who practice law.

It is also being experienced that after certificate of enrolment is issued to an advocate, practically no communicative and continuing contact, survives between him and the Council. Under the existing state of affairs, All India Bar Examination introduced on the directions/observations of the Supreme Court of India to improve the standard of legal profession has also failed to fully achieve its objective. Advocates enrolled with the State Bar Councils obtain "Provisional Certificate of Practice" (valid for 2 years) and thereafter most of them are practicing Law without caring to appear for All India Bar Examination and to pass it. Various welfare schemes for advocates have been floated in India both under Stale Legislations as well as under various welfare schemes framed by different State Bar Councils and by Bar Council of India but benefits there under are being enjoyed by those also who have left the profession.

The Bar Council has also come to know that a number of fake (farzi) persons (without any Law Degree or enrolment certificate) are indulged in Legal practice and are cheating the Litigants, courts and other stake-holders. Shockingly, it has come to the notice of the Council that at some places, the office bearers of Bar Associations or some vote-seekers knowingly make such people members and voters of their Associations with a motive to get their votes in the elections of Bar Associations or Bar Councils. Similarly, many persons, after getting enrolled as Advocates in any State Bar Council get involve in Property-Dealings, contract or switch over-to some other business, profession or job and have no more concern with the Legal profession."

In democratic societies, lawyers surely fill an important role that no other professional fills: the lawyer is the guardian of the rule of law, the ideal that all people stand equally before the law and neither expect nor receive special treatment from it. In emerging democracies, this role is especially important for lawyers, who have the potential to become the great levellers between the powerful and the less so. Guarantees of the right to counsel in criminal matters, government funded legal aid for the poor (limited as it is), and pro bono activities of private lawyers, all combine to create some promise that the most important matters affecting the poor and the powerless will be served by lawyers and the legal profession.

Given the onerous duties and responsibilities attached to being an advocate, the provisions that permit the dilution of the practise of the profession of law in any form is liable to be quashed as being arbitrary, illegal and contrary to the very basic structure of the Constitution of India. (Section 432 of Companies Act, 2013) (other cognate statutes / rules that permit such representation)

It is respectfully submitted that necessary rules be made to ensure that persons holding qualifications and practising other professions such as Chartered Accountants, Company Secretaries and Cost Accountants have to necessarily be prohibited from engaging themselves in the practise of law. Tribunals today are nerve centres of dispute resolution. They give the foundation for the ultimate decision in any matter. If persons not qualified in law and not having eligibility to practise law are permitted to practise law by appearing and pleading cases before the various Tribunals, it will lead to an unequal playing field for lawyers and litigants. It erodes the fundamental basis of a fair and transparent legal system and ultimately the independence of the Judiciary too.

AK Balaji's case dealt with right of Foreign lawyers to practice law in India. Here in India we have non-lawyers practising law and the legal profession has not noticed this silent invasion into their field of profession. It is imperative that steps be taken immediately to curb this invasion and a challenge launched to stop this immediately. The Supreme Court has now thrown light on the otherwise murky path called "Practise of law"…. With the Delhi Bar Council taking steps, it is time for other Bar Associations & Bar Councils in the various states to take a leaf out of the books of the Delhi Bar Council and protect the profession from this silent invasion. It is imperative to protect this to ensure there is no erosion in the Rule of Law. The recent Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020 is an example of this erosion.

The Madras Bar Association has thankfully launched a challenge to these Rules before the Supreme Court of India. It is imperative to curb this erosion both from those practicing before a Tribunal and those adjudicating the issues in the Tribunal. It is necessary to ensure that there is no further incursions and erosions to the Rule of Law and the Legal profession.



[1] H.Karthik Seshadri is an Advocate practising in the Madras High Court and can be contacted at [email protected] and tweets @advkarthiksesh

[3] See (2010) 11 SCC 1, (2014) 10 SCC 1, (2015) 8 SCC 583.

[4]See http://www.barcouncilofindia.org/about/about-the-legal-profession/history-of-the-legal-profession/

[5]Supreme Court Advocates on Record vs UOI; (2015) 6 SCC 408

[6](1973) 1 SCC 261

[7]Carol Rice Andrews, "Standards of Conduct for Lawyers: An 800 year Evolution", SMU Law Review, Vol 57, pg.1385

[8]Bar Council of India vs. A.K.Balaji, (2018) 5 SCC 379


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