The number of lawyer jokes that abound hardly paints law as a noble profession, but putting aside the fact that lawyers are often seen in bad light, law practitioners should try to be a positive agent of change and an avenue for inspiration. This is seen most clearly when lawyers engage in pro bono work, which comes at the expense of their time, money and effort. Representing large companies definitely rakes in the profits, but it is the willingness to uphold justice for the weak and downtrodden that makes lawyers a force to be reckoned with.
A lawyer or attorney is a person who practices law, as an advocate, attorney, attorney at law, barrister, barrister at law, bar at law, canonist, canon lawyer, civil law notary, counsel, counsellor, solicitor, legal executive, or public servant preparing, interpreting and applying law, but not as a paralegal or charter executive secretary. Working as a lawyer involves the practical application of abstract legal theories and knowledge to solve specific individualised problems, or to advance the interests of those who hire lawyers to perform legal services. The role of the lawyer varies greatly across different legal jurisdictions.
While performing the job lawyer have certain rights and duties which he needs to follow. He have certain rights which he can use and certain duties which he has to follow. A lawyer not only have certain duties for court but also for clients, society, etc.
There are certain rights given for lawyers under THE ADVOCATE ACT 1961 under Section 23,30,and 33. And the constitution of India also provide fundamental right under Article19(1)(g) which protects the right of an individual’s to practice any profession or to carry on any occupation, trade or business. This act is only for those advocate who are enrolled in India.
Our research paper contains all the rights and duties of a lawyer.
RIGHTS OF LAWYERS IN INDIA
In India, if any person wants to reach for legal authorities or legal remedies or to file any petition or suit he must need an advocate for that so. An advocate is the person who provided legal services; he is the way for reaching to the courts and authorities in legal manner. An advocate also protects the rights of other and provide legal aid services to claim their fundamental or legal rights. But the question arises that is there any law which protects the rights of an advocate . So the answer is” yes” there are several rights are provided to the advocates. These rights are provided in the ADVOCATE ACT ,1961 under Section 23,30,and 33 . And the constitution of India also provides fundamental right under Article 19(1)(g) which protects the right of an individual’s to practice any profession or to carry on any occupation, trade or business.
Under the Advocate Act 1961, only advocates enrolled in India are entitled to practice the profession of law. Which includes drafting legal documents and appearing before the courts and giving legal advice as an attorney. The Advocates Act distinguishes between two types of advocates – senior advocates and Advocates. In order to file an appearance before the supreme court of India, one must be an advocate on record or be instructed by an advocate on record.
RIGHT TO PRE-AUDIENCE(Section-23)
The right of pre audience means the right to be heard before the other advocate is heard . It is his right to claim audience while he is representing his client in the court of law that is the court will have to listen to him so long as he does not disturb the decorum in the court. The right of ore audience gives them standing for the hearing of the cases but does not confer other rights.
RIGHT TO PRACTICE(SECTION-30)
By issuing the Gazette notification , it said “ the central government hereby appoints June 15, 2011 as the date on which section 30 of the advocate act 1961, shall came into force.
Section 30 says ,subject to the provision of this every advocate shall be entitled as of right to practice through put the territory to which of this act extends; in all courts including the supreme court; before and tribunal personal legal authorised to take evidence, and before any other authority or any other person before whom such advocate id by or under any law for the time being in force entitled to practice.
Earlier, in the case Aeltemesh Rein Vs. Union of India and Others(AIR 1988 SC 1768) had issues a writ of mandamus to the central government to consider, with in sis method whether Section 30 of the Advocated Act , 1961 should be brought into force or not. The court ,however , held that it is the discretion of the central government to bring this into force by issuing the notification in this behalf. In spite of the direction of the supreme court, the section has not been brought in force till date and hence advocate cannot practice AS OF RIGHT.
In the case , J. Sampath Kumar Vs Bar Council Of India (1994) 2 MLJ 651 it was observed that, The Bar Council of India, the first respondent has filed a common counter-affidavit contending that the right to practice as an advocate is only a statutory right conferred under the Act and cannot be claimed to be a fundamental right. Since the right to carry on any profession is created by the statute, the exercise of which may be subject to terms and conditions imposed by the statute and by the imposition of any terms and conditions, the fundamental right cannot be said to have been infringed. It is stated that even assuming that this is a fundamental right, there is no bar from imposing conditions in the interests of general public.
ADVOCATES ALONE ENTITLED TO PRACTICE(SECTION-33)
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.
As mentioned in the above section only an personal who is enrolled or registered as advocate are only entitled to practice in the court. But the provisions of section 32 of the advocate act are also required to be noticed in the context which reserve a discretion and power to the court to permit appearance to any non advocate for a party.
DUTIES OF LAWYER’S IN INDIA
Lawyers are also called attorneys because they act as both advocates and advisers. As advocates, they represent one of the parties in a criminal or civil trial by presenting evidence and arguing in support of their client and as advisers, lawyers counsel their clients about their legal rights and obligations and suggest courses of action in business and personal matters.
All attorneys research, the intent of laws and judicial decisions and apply the laws to the specific circumstances that their clients face.
Lawyers may have different titles and different duties, depending on where they work.
In law firms, lawyers, sometimes called associates, perform legal work for individuals or businesses. Those who represent and defend the accused may be called criminal law attorneys or defence attorneys.
As lawyers we are expected to perform certain duties and they are:-
Duties of Lawyer’s :-
● Lawyer’s have to advise and represent clients in courts, before government agencies, and in private legal matters.
● Lawyer’s have to communicate with their clients, colleagues, judges, and others involved in the case.
● Lawyer’s have to conduct research and analysis of legal problems.
● Lawyer’s have to present facts in writing and verbally to their clients or others, and argue on behalf of their clients.
● Lawyer’s have to prepare and file legal documents, such as lawsuits, appeals, wills, contracts, and deeds.
In addition to working in different industries, lawyers may specialise in particular legal fields also. Following are examples of types of lawyers in these fields:
- Environmental lawyers deal with issues and regulations that are related to the environment.
For example, they may work for advocacy groups, waste disposal companies, or government agencies to help ensure compliance with relevant laws.
- Tax lawyers handle a variety of tax-related issues for individuals and corporations. They may help clients navigate complex tax regulations, so that clients pay the appropriate tax on items such as income, profits, and property.
For example, tax lawyers may advise a corporation on how much tax it needs to pay from profits made in different states in order to comply with Internal Revenue Service (IRS) rules.
- Intellectual property lawyers deal with the laws related to inventions, patents, trademarks, and creative works, such as music, books, and movies.
For example, an intellectual property lawyer may advise a client about whether it is okay to use published material in the client’s forthcoming book.
- Family lawyers handle a variety of legal issues that pertain to the family. They may advise clients regarding divorce, child custody, and adoption proceedings.
- Securities lawyers work on legal issues arising from the buying and selling of stocks, ensuring that all disclosure requirements are met. They may advise corporations that are interested in listing in the stock exchange through an initial public offering (IPO) or in buying shares in another corporation.
Duties towards the Client:-
- To not accept brief where there is a conflict of interest with the client unless a frank disclosure has been made to the client about such conflict.
- To accept a brief where the client is able to pay the fee and no conflict of interest or other reasonable justification.
- To not appear in a matter where the advocate may be a witness.
- To not withdraw from an engagement except with sufficient cause and reasonable notice and to refund unearned fee upon such withdrawal.
- To not foment litigation.
- To ensure adequate representation of the client’s interests.
- To provide the best legal advice according to his ability to the client.
- To be diligent in handling the client’s matters.
- To ensure confidentiality of the facts disclosed by client.
- To not take instructions from any person other than the client.
- To note enter an arrangement of contingent fee.
- To not adjust fee payable to him by his client against his own personal liability to the client.
- To not do anything whereby he abuses or takes advantage of the confidence reposed in him by his client.
- To keep accurate accounts of the client’s money entrusted to him and to provide copies of such accounts.
- To immediately intimate the client of any payment received on behalf of the client.
- To not enter into arrangements whereby funds in his hands are converted into loans.
- To not lend money to his client for the purpose of any action or legal proceedings in which he is engaged by such client.
- To not appear for the opposite party in the same matter after withdrawing from an engagement.
Duties towards the court :-
- To maintain a respectful attitude towards the courts and legal system, keeping in mind that the dignity of the judicial office is essential for the survival of a free community.
- To conduct himself with dignity and self-respect and to not be servile.
- Whenever there is proper ground for serious complaint against a judicial officer, to submit such grievance to proper authorities as this is the duty of an advocate towards improving the legal system and keeping it efficient.
- To not influence the decision of a court by any illegal or improper means and to avoid private communications with a judge relating to a pending case are forbidden.
- To conduct himself as not merely a mouthpiece of the client, but an officer of the Court. The advocate should dissuade the client from using unfair means and should refuse to represent a client who persists in use of such means.
- To appear before the court only in the prescribed uniform and to not wear a band and gown except in court and other prescribed ceremonies.
- To not appear before a court or tribunal where a close relative is a member.
- To not represent an organisation if the advocate is a member of the executive committee of the organisation.
- To not conduct a prosecution in such a manner as to knowingly secure the conviction of an innocent person.
Duties to the society:-
- Duty to facilitate legal education, training of young lawyers and research in legal discipline.
- Duty to render legal aid to those in need.
Duty to the opposite party:-
- To make communications only through the opposite party’s advocate.
- To carry out all promises made even where it is not reduced in writing.
Duty to colleagues:-
- To not advertise work and to not indicate special positions, expertise, etc. in name plates, name boards, stationery, etc.
- To not facilitate unauthorised practice of law.
- To not take an unreasonably low fee, when the client can afford to pay.
- To not accept an engagement in a matter where another advocate has already been engaged except with his consent or permission of the court.
As far as we can say that a lawyer/advocate plays an very important role in legal world without an advocate a prudent man are not able to reach to any of the courts in the India , a layman’s mostly do not have much knowledge about law and they are not able to understand the legal language . Advocates are the pillars for the legal world, as there are various fundamental rights and duties are provided by the constitution for the citizen, thus there are some several rights and duties provided for the advocates as an profession. Advocates is an professional work and as an professional worker advocates have various duties to perform toward the clients, court room, toward the colleagues and toward other peoples or society.
In this research paper we have mentioned various rights and duties of an advocate, the conclusion of this paper comes to an point which says that an advocate haves various duties to perform but have very few rights which have been provided to them. There are only some basic rights provided to an advocate, other then this constitution also protects the rights of advocates.
Author :- Shreyansh Pandey
Co Author:- Shanzeeya Tanzil