LB-106 Advocay and Professional Ethics materials full

308 Pages·2017·1.45 MB·English

LL.B. VI TERM
Paper – LB-601 Advocacy, Professional Ethics and
Accountancy for Lawyers

Course Materials

Prepared by
Madhu Bhatti
Ankeeta Gupta
Mehpara Haq

Faculty of Law
University of Delhi
Delhi – 110007
2017

For Private Circulation Only

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LL.B. VI TERM
Paper – LB-601 Advocacy, Professional Ethics and Accountancy for Lawyers
Objectives of the Course:
Professional ethics form the foundation in the lives of the lawyers. Every person has been given the right
to engage a lawyer of their choice to represent their case. It means that lawyers have the constitutional
obligation to take up the case of every person who approaches them for legal representation. Does it mean
that the lawyer is obligated to represent a self-confessed murderer, rapist, and other accused persons who
are alleged to have committed very serious offences against the nation even though his conscience or his
personal beliefs do not permit that? How can the lawyer do that when his inner conscience revolts at the
thought of represent a certain category of persons? All clients approach the lawyer with hope and desire
that their lawyers will zealously represent their case. Does zealous representation mean that the lawyers
must get the relief sought by the clients by all means? Are there any boundaries set by law or professional
ethics that a lawyer must not cross? What is the role of truth and morality in determining the standards of
professional ethics for lawyers? What conduct amounts to professional misconduct? What are the
repercussions if a lawyer does not follows the principles of professional ethics? What are the mechanisms
set by law to deal with complaints of professional misconduct? These and many other similar other
questions trouble the mind of new entrants to law practice. The lawyers have to adopt ethical practices in
all spheres of their profession from meeting clients, giving them legal counseling, presenting their cases
before appropriate bodies, managing client’s accounts, etc. This paper covers this wide spectrum of
lawyers’ conduct and specifically aims to
1. Familiarize the students with the legal provisions, guidelines, and judicial decisions on the subject
of professional conduct for lawyers
2. Acquaint them with the opinions of the Bar Council of India on professional misconduct
3. Train them in the skills of client interviewing and counseling
4. Teach them the basics of professional accountancy
The course will be conducted through lectures, case method as well as participatory methods involving
students in problem-solving, role plays, and simulation, etc. The full course is primarily class based but
students are encouraged to focus on ethical issues during their internship in the other CLE course, namely,
Moot Court, Mock Trial and Internship and raise those issues in the classes in this course
Learning Outcomes
It is expected that at the end of semester, the students will be able to
1. Identify situations of professional dilemmas
2. Recall and explain the principles of professional ethics
3. Take appropriate decisions when faced with any dilemma of professional ethics.
4. Interview and counsel clients in a professional manner
5. Apply the basic principles of professional accountancy
Evaluation Method and Scheme
The students will be evaluated out of 100 marks. Considering that the course is aimed at providing
theoretical knowledge and practical skills, evaluation for this course has two components: (1) the end-
semester written examination for 60 marks, and (2) classroom evaluation for 40 marks. The end-semester
written examination will consist of eight questions. Students will be required to answer 5 questions of 12
marks each. The question paper may have parts requiring a certain number of compulsory questions to be
answered from each part.
The students are required to self-study the prescribed opinions of the Bar Council of India. There will be a
class test consisting of multiple choice questions based on these opinions of the Bar Council for 20 marks.
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Students will be evaluated for ten marks on the basis of their performance in client interviewing and
counseling.
10 marks are for 100% attendance and 2 marks up to maximum of 10 marks will be deducted for each
block of 5% attendance less than 100% attendance, i.e., 8 marks till 95%, 6 marks till 90%, 4 marks for
85%, 2 marks for 80% and no marks for less than 75% attendance.
Contents
Prescribed Legislations:
The Advocates Act, 1961
The Contempt of Courts Act, 1971
Prescribed Books:
Krishnaswami Iyer’s Professional Conduct and Advocacy (1945), available at
https://archive.org/details/professionalcond029273mbp
GCV Subba Rao, Commentary on Contempt of Courts Act 1971 (2014)
Ranadhir Kumar De, Contempt of Court Law & Practice (2012) Wadhwa Book Company
Francis L. Wellman, The Art of Cross Examination, available at
http://www.delhihighcourt.nic.in/library/articles/the%20art%20of%20cross%20examination[1].pdf
Suggested Readings:
Justice Mirza Hameedullah Beg, Role of the Bench and the Bar, available at
http://www.allahabadhighcourt.in/event/RoleoftheBenchandtheBarMHBeg.pdf
J.W. Smyth Q.C, The Art of Cross Examination (1961), available at
http://www.allahabadhighcourt.in/event/RoleoftheBenchandtheBarMHBeg.pdf
Champ S. Andrews, The Law A Business or a Profession (1908), available at
https://www.jstor.org/stable/pdf/784941.pdf
Ben W. Heineman, Jr., William F. Lee, David B. Wilkins, Lawyers as Professionals and as Citizens: Key
Roles and Responsibilities in the 21st Century (2014) available at
https://clp.law.harvard.edu/assets/Professionalism-Project-Essay_11.20.14.pdf
Geoffey C. Hazard Jr., Responsibilities of Judges and Advocates in Civil and Common Law: Some
Lingering Misconceptions Concerning Civil Lawsuits (2006), available at
http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=2091&context=faculty_scholarship
PART A- ADVOCACY
I The Advocates Act, 1961- ( 4-5 Lectures)
(a) Introduction : (i)Brief History of Legal Profession in India
(ii) Judge Edward Abbott Parry, The Seven Lamps of Advocacy (1923),
available at https://archive.org/details/sevenlampsofadvo00parr
(b) Bar Councils- Section-4 to 7: Bar Council of India, Bar Council to be body corporate,
Functions of State Bar Councils and Functions of Bar Council of India
(c ) Admissions and Enrollment of Advocates – Section- 16 : Senior and other Advocates, Section-
17 – State Bar Councils to maintain roll of Advocates, Section -22- Certificate of Enrollment,
Section- 24: Persons who may be admitted as an Advocates on state roll, Section- 24A:
Disqualification for Enrollment, Section 26A: Power to remove names from roll
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(d) Right to Practise : Section 29-30,33: Advocates to be only recognized class of persons entitled
to practice, Right of Advocates to Practise
(e) Conduct of Advocates and Disciplinary Proceedings : Section 35-36,37-38 : Punishment of
Advocates for misconduct, Disciplinary Powers of Bar Council of India, Appeal to Bar Council
of India, Appeal to the Supreme Court
Reading Material: Fifty Selected opinions of the Disciplinary Committees of Bar Councils [only
soft copy will be supplied to students]
II Contempt Of Court - Contempt of Courts Act, 1971
(a) Contempt - Meaning and Purpose section 2(a), Civil Contempt 2 (b), Criminal Contempt 2 (c),
Criminal Contempt - Mens Rea Principle in Contempt Cases Contempt by State Government (3-
4 Lectures)
1. M aninderjeet Singh Bitta v. UOI, (2011) 11 SCALE 634
2. R .K. Anand v. Registrar, Delhi High Court (2009) 8 SCC 106
3. In Re Arundhati Roy, AIR 2002 SC 1375
4. M rityunjoy Das v. Sayed Rahaman AIR 2001 SC 1293
(b) Defences – Sections 3 to 8 ( 2-3 Lectures)
Innocent Publication, Fair and accurate report of judicial proceedings, Fair Criticism of Judicial act,
Complaint against presiding officers of subordinate courts , Publication of information relating to
proceedings in camera & other defences, Contempt and Freedom of Speech
5. B huramal Swami v. Raghuveer Singh & Ors. (Judgment delivered on 21st Oct 2016)
6. P erspective Publication v. State of Maharashtra, AIR 1970 SC 221
7. N armada Bachao Andolan v. UOI, AIR 1999 SC 3345

(c ) Contempt by Judges & Magistrates- Section 16 ( One Lecture)
(d) Punishment for Contempt - Sections 10 to 13 (2-3 Lectures)
Power of the High Court to punish contempt of subordinate courts and try offences committed
outside jurisdiction, Punishment for Contempt and Contempt not punishable in certain cases,
Purging of contempt
8. SC Bar Association v. UOI, AIR 1998 SC 1895
9. Smt Pushpaben & others v. Narandas V Badani, AIR 1979 SC 1536
10. Daroga Singh v. B K Pandey, (2004) 5 SCC 26
11. Pravin C. Shah v. K.A. Mohd. Ali, (2001) 8 SCC 650
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(e) Procedure Section 14- 15, 17-18 (2-3 Lectures)
Procedure where contempt is in the face of the Supreme Court or High Court, Cognizance of
Criminal Contempt, Procedure after Cognizance AND Hearing of Criminal Contempt cases by
Benches,
12. R.K. Anand v. Registrar, Delhi High Court (2009) 8 SCC 106
13. In re Vinay Chandra Mishra, (1995) 2 SCC 584
14. Bal Thackery v. Harish Pimpa and Others (2005) 1 SCC 254E
PART –B: Professional Ethics
Rules Governing Advocates: (10-11 lectures)
(a) Restrictions on Senior Advocates
(b) Standards of Professional Conduct and Etiquette
(i) Duty to the Court
(ii) Duty to the Client
(iii) Duty to the opponent
(iv) Duty to Colleagues
(v) Duty in Imparting Training
(vi) Duty to render Legal Aid
(vii) Section on other employements
(c) 50 Selected Opinions of the Disciplinary Committees of the Bar Council of India, available at
http://203.153.33.250:8282/gsdl?e=d-010-00-off-1lawbook--00-1----0--0direct-10----4-------0-1l--11-en-
50---20-about---00-3-1-00-00--4--0--0-0-11-10-0utfZz-8-
00&cl=CL1.1&d=HASH01690220b11483f79d156200&hl=0&gc=0&gt=0 (Self Reading for MCQ Test
during semester for 20 marks)
(d) Cases on Professional Misconduct
15. An Advocate v. Bar Council of India, 1989 Supp (2) SCC 25
16. Salil Dutta v. T.M. and M.C. (P) Ltd. (1993) 2 SCC 185
17. State of Maharashtra v. Budhikota Subbarao, (1993) 3 SCC 71
18. C. Ravichandran Iyer v. Justice A.M. Bhattacharjee, (1995) 5 SCC 457
19. P.D. Gupta v. Ram Murti, (1997) 7 SCC 147
20. T.C. Mathai v. District & Sessions Judge,Thiruvananthapuram, (1999) 3 SCC 614
21. R.D. Saxena v. Balram Prasad Sharma, (2000) 7 SCC 264
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22. D.P. Chadha v. Triyugi Narain Mishra, (2001) 2 SCC 221
23. Shambhu Ram Yadav v. Hanuman Das Khatry, (2001) 6 SCC 1
24. Bhupinder Kumar Sharma v. Bar Assn., Pathankot, (2002) 1 SCC 470
25. Ex-Capt. Harish Uppal v. Union of India, (2003) 2 SCC 45
(d) Rules relating to Advocates’ Right to take up Law Teaching
26. Anees Ahmed v. University of Delhi, AIR 2002 Del. 440
PART C- Practical Training in Client Interviewing and Counseling
27. “Interviewing” in Don Peters, The Joy of Lawyering, pp. 5-20
28. “Tips on Clients Interviewing and Counselling” by Margaret Barry and Brian Landsberg
29. “Advice” in Conference Skills, Inns of Court School of Law, pp 131-150 (1999/2000)
30. Kinds of Questions: Advantages and Disadvantages, Summary prepared by Ved Kumari
from Don Peters, The Joy of Lawyering
31. Self-appraisal Questionnaire for Interviewers
PART D- Accountancy for Lawyers (one lecture)
Management of time, human resources, office, etc, Accountancy knowledge for lawyers [like evidentiary
aspects, interpreting financial accounting statements in the process of lawyering, etc], Nature and
functions of accounting, important branches of accounting. Accounting and Law, Use of knowledge of
accountancy in Legal Disputes especially arising out of Law of Contracts, Tax Law, etc.,
Accountancy in Lawyers’ office/firm: Basic financial statements, -Income & Loss account, Balance-
sheet- Interpretation thereof, -Feature of Balance sheet Standard Costing.
32. Standards of Professional Conduct and Etiquette: Duties to the Clients
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PART A – ADVOCACY
Legal Profession in India
The history of the legal profession in India can be traced back to the establishment of the First
British Court in Bombay in 1672 by Governor Aungier. The admission of attorneys was placed
in the hands of the Governor-in-Council and not with the Court. Prior to the establishment of the
Mayor’s Courts in 1726 in Madras and Calcutta, there were no legal practitioners.
The Mayor’s Courts, established in the three presidency towns, were Crown Courts with right of
appeal first to the Governor-in-Council and a right of second appeal to the Privy Council. In
1791, Judges felt the need of experience, and thus the role of an attorney to protect the rights of
his client was upheld in each of the Mayor’s Courts. This was done in spite of opposition from
Council members or the Governor. A second principle was also established during the period of
the Mayor’s Courts. This was the right to dismiss an attorney guilty of misconduct. The first
example of dismissal was recorded by the Mayor’s Court at Madras which dismissed attorney
Jones.
The Supreme Court of Judicature was established by a Royal Charter in 1774. The Supreme
Court was established as there was dissatisfaction with the weaknesses of the Court of the
Mayor. Similar Supreme Courts were established in Madras in 1801 and Bombay in 1823. The
first barristers appeared in India after the opening of the Supreme Court in Calcutta in 1774. As
barristers began to come into the Courts on work as advocates, the attorneys gave up pleading
and worked as solicitors. The two grades of legal practice gradually became distinct and separate
as they were in England. Madras gained its first barrister in 1778 with Mr. Benjamin Sullivan.
Thus, the establishment of the Supreme Court brought recognition, wealth and prestige to the
legal profession. The charters of the Court stipulated that the Chief Justice and three puisne
Judges be English barristers of at least 5 years standing.
The charters empowered the Court to approve, admit and enrol advocates and attorneys to plead
and act on behalf of suitors. They also gave the Court the authority to remove lawyers from the
roll of the Court on reasonable cause and to prohibit practitioners not properly admitted and
enrolled from practising in the Court. The Court maintained the right to admit, discipline and
dismiss attorneys and barristers. Attorneys were not admitted without recommendation from a
high official in England or a Judge in India. Permission to practice in Court could be refused
even to a barrister.
In contrast to the Courts in the presidency towns, the legal profession in the mofussil towns was
established, guided and controlled by legislation. In the Diwani Courts, legal practice was
neither recognized nor controlled, and practice was carried on by vakils and agents. Vakils had
even been appearing in the Courts of the Nawabs and there were no laws concerning their
qualification, relationship to the Court, mode of procedure of ethics or practice. There were two
kinds of agents – a. untrained relatives or servants of the parties in Court and b. professional
pleaders who had training in either Hindu or Muslim law. Bengal Regulation VII of 1793 was
enacted as it was felt that in order to administer justice, Courts, must have pleading of causes
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administered by a distinct profession Only men of character and education, well versed in the
Mohamedan or Hindu law and in the Regulations passed by the British Government, would be
admitted to plead in the Courts. They should be subjected to rules and restrictions in order to
discharge their work diligently and faithfully by upholding the client’s trust.
Establishment of the High Courts
In 1862, the High Courts started by the Crown were established at Calcutta, Bombay and
Madras. The High Court Bench was designed to combine Supreme Court and Sudder Court
traditions. This was done to unite the legal learning and judicial experience of the English
barristers with the intimate experience of civil servants in matters of Indian customs, usages and
laws possessed by the civil servants. Each of the High Courts was given the power to make rules
for the qualifications of proper persons, advocates, vakils and attorneys at Bar. The admission of
vakils to practice before the High Courts ended the monopoly that the barristers had enjoyed in
the Supreme Courts. It greatly extended the practice and prestige of the Indian laws by giving
them opportunities and privileges equal to those enjoyed for many years by the English
lawyers. The learning of the best British traditions of Indian vakils began in a guru-shishya
tradition:
“Men like Sir V. Bashyam Ayyangar, Sir T. Muthuswamy Ayyar and Sir S. Subramania Ayyar
were quick to learn and absorb the traditions of the English Bar from their English friends and
colleagues in the Madras Bar and they in turn as the originators of a long line of disciples in the
Bar passed on those traditions to the disciples who continued to do the good work.”
Additional High Courts were established in Allahabad (1886), Patna (1916), and Lahore (1919).
There were six grades of legal practice in India after the founding of the High Courts – a)
Advocates, b) Attorneys (Solicitors), c) Vakils of High Courts, d) Pleaders, e) Mukhtars, f)
Revenue Agents. The Legal Practitioners Act of 1879 in fact brought all the six grades of the
profession into one system under the jurisdiction of the High Courts. The Legal Practitioners
Act and the Letters Patent of the High Courts formed the chief legislative governance of legal
practitioners in the subordinate Courts in the country until the Advocates Act, 1961 was enacted.
In order to be a vakil, the candidate had to study at a college or university, master the use of
English and pass a vakil’s examination. By 1940, a vakil was required to be a graduate with an
LL.B. from a university in India in addition to three other certified requirements. The certificate
should be proof that a. he had passed in the examination b. read in the chamber of a qualified
lawyer and was of a good character. In fact, Sir Sunder Lal, Jogendra Nath Chaudhary, Ram
Prasad and Moti Lal Nehru were all vakils who were raised to the rank of an Advocate.
Original and appellate jurisdiction of the High Court.
The High Courts of the three presidency towns had an original side. The original side included
major civil and criminal matters which had been earlier heard by predecessor Supreme Courts.
On the original side in the High Courts, the solicitor and barrister remained distinct i.e. attorney
and advocate. On the appellate side every lawyer practiced as his own attorney.
However, in Madras the vakils started practice since 1866. In 1874, the barristers challenged
their right to do original side work. However, in 1916, this right was firmly established in favour
of the vakils. Similarly, vakils in Bombay and Calcutta could be promoted as advocates and
become qualified to work on the original side. By attending the appellate side and original side
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Courts each for one year, a vakil of 10 years service in the Court was permitted to sit for the
advocates’ examination.

Indian Bar Councils Act, 1926.
The Indian Bar Councils Act, 1926 was passed to unify the various grades of legal practice and
to provide self-government to the Bars attached to various Courts. The Act required that each
High Court must constitute a Bar Council made up of the Advocate General, four men nominated
by the High Court of whom two should be Judges and ten elected from among the advocates of
the Bar. The duties of the Bar Council were to decide all matters concerning legal education,
qualification for enrolment, discipline and control of the profession. It was favourable to the
advocates as it gave them authority previously held by the judiciary to regulate the membership
and discipline of their profession.
The Advocates Act, 1961 was a step to further this very initiative. As a result of the Advocates
Act, admission, practice, ethics, privileges, regulations, discipline and improvement of the
profession as well as law reform are now significantly in the hands of the profession itself.
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Excerpts: THE SEVEN LAMPS OF ADVOCACY By EDWARD ABBOTT PARRY
There are seven lamps of advocacy: The lamp of honesty, the lamp of courage, lamp of industry,
the lamp of wit, the lamp of eloquence, the lamp of judgment, and the lamp of fellowship.
I. THE LAMP OF HONESTY
The great advocate is like the great actor : he fills the stage for his span of life, succeeds, gains
our applause, makes his last bow, and the curtain falls. Nothing is so elusive as the art of acting,
unless indeed it be the sister art of advocacy.
The young student of acting or advocacy is eager to believe that there are no methods and no
technique to learn, and no school in which to graduate. Youth is at all times prone to act on the
principle that there are no principles, that there is no one from whom it can learn, and nothing to
teach. Any one, it seems, can don a wig and gown, and thereby become an advocate. Yet there
are principles of advocacy ; and if a few generations were to forget to practise these, it would
indeed be a lost art. The student of advocacy can draw inspiration and hope from the stored-up
experience of his elders. He can trace in the plans and life-charts of the ancients the paths along
which they strode, journeyed. They can be seen pacing the ancient halls with their clients, proud
of the traditions of their great profession — advocates — advocates all.
Without a free and honourable race of advocates the world will hear little of the message of
justice. Advocacy is the outward and visible appeal for the spiritual gift of justice. The advocate
is the priest in the temple of justice, trained in the mysteries of the creed, active in its exercises.
Advocacy connotes justice. Upon the altars of justice the advocate must keep his seven lamps
clean and burning rightly. In the centre of these must ever be the lamp of honesty.
The order of advocates is, in D'Aguesseau's famous phrase, " as noble as virtue." Far back in the
Capitularies of Charlemagne it was ordained of the profession of advocates " that nobody should
be admitted therein but men mild, pacific, fearing God, and loving justice, upon pain of
elimination." So may it continue, world without end.
From the earliest, Englishmen have understood that advocacy is necessary to justice, and honesty
is essential to advocacy. Every pleader who acts in the business of another should have regard to
four things : — First, that he be a person receivable in court, that he be no heretic, nor
excommunicate, nor criminal, nor man of religion, nor woman, nor ordained clerk above the
order of sub- deacon, nor beneficed clerk with the cure of souls, nor infant under twenty-one
years of age, nor judge in the same cause, nor open leper, nor man attainted of falsification
against the law of his office.
Secondly, that every pleader is bound by oath that he will not knowingly maintain or defend
wrong or falsehood, but will abandon his client immediately that he perceives his wrong-doing.
Thirdly, that he will never have recourse to false delays or false witnesses, and never allege,
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