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History Of Legal Profession

History Of Legal Profession
Importance of Legal Profession
The Legal Profession plays a very important role in the administration of Justice. Lawyers assists the court in arriving at a correct Judgement. Actually the law is very complicated. The language of acts and regulations is often found very complicated and confusing and not easy to be understood. The lawyers are not puppets compelled to obey the dictate of their clients. Where matters of good faith and Honourable conduct are concerned. They are also responsible to the court for the fair and honest conduct of a case, they are agents, not of man who plays them but are acting in the administration of justice.History Of Legal Profession

According to C. L. Anand has stated that 'It has rightly been observed that a sound system of the administration of justice should posses 3 ingredients, namely:

  1. A well planned body of laws based on wise concepts of social justice;
  2. A judicial hierarchy comprised of the Bench and Bar;
  3. The learned in the law and inspirited by high principles of professional conduct and existence of suitable generation to ensure fair trial.
So the legal profession is a profession of great honour. It has been created not for private gain but for public good: It is not money making occupation but a branch of Administration of Justice.

Legal Profession in Pre-British India
During the Hindu period the courts derived their authority from the king who was considered the fountain head of justice. The King's Court are superior to all other courts. The king was advised by his councillors in hearing and deciding the case but he was not bound by their advise.

There is no mention in the Kautilya's Arthasastra about the existence of legal profession and therefore most probably such a class did not exist. But according to Justice Ashutosh Mukherjee legal profession was in existence during the Hindu period.

During the Muslim period the litigants were represented by a body of persons known as Vakils The court of the kings Administrations concerned determined who should be allowed to appear as Vakil in a Zilla Court. During this period the legal profession was not an organised one. The Vakils acted more an agent for principals then as lawyer:

Legal Profession during British period
The East Indian Company was not interested in legal profession. And there was no uniform Judicial system in the settlements of the East Indian Company.

First by a Charter of 1726 a uniform system in each Presidency Towns i.e., Bombay, Calcutta, Chennai, created and Mayor Court was introduced. There was no specific regulation for the legal practitioners and no provision for legal training. Many person having no knowledge of law were practising law. After the Regulating Act 1773 and the Charter of 1774 there was much development of legal profession. The crown abolished the charter of 1774 and established Supreme court of Judicature at Calcutta by issuing a charter and the mayor court were abolished.

Legal Practitioners Act, 1879
In the year 1879 the legal practitioner Act was passed to consolidate and amended the law relating to the legal practitioners it empowered an advocate or Vakil on the role of any High Court or pleader of the Chief Court of Punjab to practice in all the courts subordinate to the court on the role of which he was entered.

Under the legal practitioners Act 1879 the term legal practitioner has been taken to mean Advocates Vakil or Attorney of High Court and pleader. This act was passed to I consolidate and amend the law relating to legal practitioners, Advocates or Vakil on the role of the High Court can practise through India.

Section 13 of the Act empowered the High Court to suspend or dismiss pleader or Mukhtar guilty of unprofessional conduct.

Section 5 - Deals with persons in the roll can practise. Section 6 - Deals with suspensions dismissal of pleader or Mukthars.

Section 7 - Made provisions in respect of issuance of certificate

Section 13-Dealt with powering of High Court reporting suspension of members.

Indian Bar Committees, 1923
In the year 1923 Under the Chairmanship of Sir Edward Chamier a Committee called dian Bar Committee was constituted. The committee was to consider the issue as to organization of the Bar on all India basis and establishment of an all India Bar Counsel for the High Court The committee suggested that in all High Courts a single grade of practitioners should be established and they should be called Advocates.

It recommended Bar counsel to be constituted at all High Court. The High Court got power to take disciplinary action against the Advocates for misconduct. It got powers to refer to the Bar Council before to enquire and report. Every Bar Council consisted of 15 members. This system was present in all High Courts.

10 members elected from among advocates

4 members nominated by High Court

1 member was Advocate General

Indian Bar Council Act, 1926
In the year 1926 the Indian Bar Council Act was enacted to give effect to the some of the recommendations of the Indian Bar Committee. The main object was to provide for the constitution an in corporation of Bar Counsel for certain courts.
  1. To confer powers and impose duties as such court.
  2. To amend the law relating to the legal practitioners of such courts.
The distinction between Advocates and Barrister, abolished under Section 10. The High Court got power to reprimand, suspend or remove from practice of advocate for guilty of professional misconduct and other misconduct based on complaint.

Legal Profession after Independence
In the year 1951, All India Bar Committee appointed by Chairmanship of Justice S. R. Das. It recommended to establish All India Bar Council and Branch in the each state, powers and vested with Bar council for enrolment, suspension removed and the previous powers conferred on High Court is removed.

A common roll to practice allover India.

Then Advocate Act in the year 1961 was enacted.

Advocates' Act, 1961

Admission and Enrolment: Section 16 to 27 of Advocates Act deals with qualification for admission and enrolment before the Bar Council an Advocate.

There are two classes of Advocates
  1. Senior Advocates and
  2. Other advocates.
Senior Advocate
  1. Designated by virtue of his ability standing at the Bar or Special knowledge or experience in law or he is deserving such distinction. The senior Advocates restriction deals in the Bar Council of India and Chapter-I Part (VI) Under Section 49 (1) of Advocate Act.
  2. Shall not appear without an advocate on record in Supreme Court or without an advocate. Shall not accept any brief directly.
  3. Shall not accept instructions to draft pleadings or affidavits, advises evidence or to do any drafting work of an analogous in any court. Junior other Advocate pay him to fee which he consider a reasonable one.

Eligibility for Admission on State Rules
  1. Citizen of India or other Country permitted to practice:
  2. 21 years age or above
  3. Obtained a law decree

Sudeer vs Bar Council of India
In this case Supreme Court held the Bar Council of India Rule providing for pre enrolment training and apprenticeship is ultra-vires as per the rule making power of the Bar Council of India available fact under the Advocates Act.

Haniraj L. Chulani v. Bar Council of Maharastra and Goa
The Supreme Court in this case held that a person carrying on another profession is not allowed to practice or enroll as an advocate i.e., Doctor and this rule is not violative of Article 21,14,19,18 of the Constitution of Law of India.

Indian council legal aid and advice v. BCI
In this case Supreme Court held the rule departing person who have completed the age of 45 years is beyond the rule making power of Bar Council of India.

Disqualification of Enrolment
Section 24-A of the Advocates Act provides that no person shall be admitted as an Advocate.
  1. If he is convicted of an offence involving moral
  2. If he is convicted of an offence under the provision of the untouchability offence (Act 1958). But after 2 years is elapsed since his release, Section 30 Deals with right to practice throughout the teritory to which the Advocates act extends, in all courts including supreme court and tribunals.
But this section have not been brought into effect by the Central Government. Hence the advocate continue to be debarred from appearing in many tribunals such as Industrial Tribunal. Family court etc.

Important Powers of Bar Council and Functions of Bar Council
  1. To admit person an advocates on its rolls
  2. Preparation and maintenance of such rolls.
  3. To entertain and determine cases of misconduct against advocates. To promote, safeguard the privileges of advocates
  4. To promise and support law reforms, supervision and counsel of other state bar,
  5. To promote legal education,
  6. To lay down standards of legal education,
  7. To recognise degrees for enrolment,

Professional Ethics
Section 49 (1) (c) of the Advocates Act, 1961 empowers the Bar Counsel of India to fix the standard of professional conduct and etiquette to be observed by advocates;

Duty to the Court
  1. Advocate is required to conduct himself with dignity and self respect. Not to complaint against judicial officer of grievances and to make complaint before the proper authorities.
  2. To maintain respect to court and dignity of the judicial officer.
  3. Not to influence the decision of the court by any illegal or improper means.

Prohibit private communication with Presiding Officer / Judge.
Not to encourage client unfair practice or from doing any thing in relation to the court. To appear in the prescribed dress and his appearance shall always be presentable.

An advocate shall not either appearance in any way before a Court Trial if the role of any member there of in related to advocate.

Not to wear bonds or grown in public places other then in court.

Not to appear if he got any receiving interest or he is a exercise a member on director of a company or corporations.

Duty to client
Rule 11 to 33 deals duties of advocate to his client.
  1. An Advocate is bound to accept any brief, but in special circumstances he may refuse to accept a particular brief. In S. J. Chaudry v. State Supreme Court held that if an advocate accepts the brief of a case to attend day to day and if he fails and he does not do so, he will be held liable for breach of professional duty.
  2. He shall not withdraw from engagement. If he does, notice to be given to the client and he is bound to refund such part of fee as has not been spent. If situation warrants, or in future if he happens to be witness, he should not accept the brief.
  3. To help and make frank disclosure to his client relating to his conviction with the parties any controversies likely to arise at the time of taking brief.
  4. To uphold the interest of his client.
  5. If an advocate appears for prosecution he should not conduct the case so as to lead to the conviction of the innocent.
  6. Advocate shall not commit directly or indirectly a breach of the obligation imposed by Section 126 of Evidence Act regarding professional communication.
  7. Not to be a party to fermenting of litigation.
  8. Only act on the instruction of client and not others.
  9. The fee of an advocate depending upon the success of the suit is considered as opposed to the public policy. Also non consistent fee or percentage of the benefit is opposed to public policy. Shall not buy or traffic in or stipulate for or agree to receive, share or instruct in any actionable claims.
  10. Not to bid or purchase any property he was professionally engaged.
  11. To keep proper account for the money entrusted to him.
  12. Any amount is received on behalf of client that should be given to him.
  13. On demand from client a copy of the account to be furnished.
  14. Rule 32 prohibits an advocate to lend money to his client for the purpose of any legal proceedings or actions.

V.C. Rangadurai V.D. Gopalan
In this case Supreme Court observed that the relationship between the advocate and his client is purely personal involving highest personal trust and confidence.
  1. Case amounting to professional misconduct
  2. Executing vakalth himself by Advocate instead of the party
  3. Money withdrawn with ulterior motive from the client account/court proceedings.
  4. Writing letter to magistrate / presiding officer
  5. Advising clients in the court room that they could not justice from the court. Moving applicating before any court or authority without informing that a similar application has been presented or rejected by any authority.
  6. Not speaking the truth
  7. Making unfolded allegations against a Judge
  8. Tampering with witness is a serious offence for a advocate
  9. Making charges of bribery against judicial officers knowing it to be false
  10. Asking advocate clerk to take documents from record to his house / office
  11. Stating and invoking wrath of Gods in open court by a lawyer
  12. Suggesting to bribe the official in the court amounts to professional misconduct. Eg. Asking clerk to give money to record clerk for supplying information with regard to case.
  13. Bringing influence on the judge to get decision in favour of the clients. Including prosecution witness not to tell the truth. Mahabir Prasad Singh v. Mis. Jacks Aviation Pvt. Ltd.
Boycott call resolution to boycott particular court. Advocate abstaining from court and reporting he will not appear the court in further. Advocate also refused to return the brief. Advocate's conduct is unprofessional and unbecoming of status of advocates.

Authorities to empower to punish Professional Misconduct
Under Section 38 of the Advocates Act on receipt of a complaint or otherwise State Bar Council can sumato also if reason, is thereof that misconduct present, It will refer to the disciplinary committee.

Bar Council can constitute one or more disciplinary committee, The disciplinary committee consists 3 members

Power (Punishment):
After giving notice, opportunity to the advocate the State Bar council may make the following orders:
  • If no prima facie case then dismiss the complaint.
  • Reprimand the Advocate; Suspend the advocate from practice for such period it may deem fit.
  • Remove the name of the advocate from state roll of advocate.
The effected person can also file appeal to the Bar council of India from state Bar under section 37 of the Advocates Act.

Appeal to Supreme Court: Under Section 38 of the Advocates Act appeal can be filed within 60 days to the Supreme Court

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