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Restriction On Advocates To Undertake Alternative Employment: Applicability Post Covid Era

After completion of Legal Education often the person considers getting registered with a respective State Bar Council as an 'Advocate' by following the due procedure. Therefore, if an individual entity registers as an advocate he/ she shall accede to the rules made by the Bar Council of India, the respective State Bar Council and, the Advocates Act, 1961. There are particular rules which prohibit Advocates from taking up any alternative employment in government and private sector, which tends to limit a career growth option of registered advocates.

During the n-Covid 19 pandemic several State Bar Councils i.e. Gujarat State Bar Council and Karnataka State Bar Council have requested Bar Council of India to relax this embargo on Advocates and permitted them to take alternative employment. This is a positive sign of change; however, the permanence of this rule is debatable. Therefore, this draconian rule should be reconsidered, since during this pandemic a pilot project has already unveiled.

In this paper, a practical aspect shall be analyzed as to why this age-old embargo on Advocates should be repealed with immediate effect. Further,the researched would be concluding by comparing how the developed counties like the United Kingdom and the United States of America have repealed this rule of restriction on alterative employment for the lawyers.

Introduction
An Advocate can be termed as a patron of a cause assisting his client by giving advice and pleading for him.[2] The expression “advocate or pleader” refers to legal practitioner and means a person who has the right to act and/or plead in court on behalf of his client. This profession is often glorified as a noble profession that envisages a cause of justice.

Once the name has been entered in the State roll prepared and maintained by a State Bar Council under Section 17 of the Advocates Act, 1961 a person may commence his practice as an Advocate before any Court/ Tribunal in India. Advocate is an indispensable part for the administration of justice. The legal profession itself inherits certain high traditions that its members are expected to respect and uphold.

Advocates have a two-fold primary duty by far firstly, to protect the interest of his client and pursue the case briefed to him with the best of his ability and secondly, to act as an officer of the court. Therefore, the profession as stated by Justice S. B. Majumdar of the Supreme Court of India in the case of Dr Haniraj L. Chulani v. Bar Council of Maharashtra & Goa[3] 'legal profession requires full-time attention and would not countenance an advocate riding two horses or more at a time'.

Therefore in consonance with the above principle the Bar Council Rules (hereinafter referred as the rules) enacted under section 49(1)(c) of the Advocates Act prohibit alternative full time employments for practicing advocates. Members of the profession are acclaimed as leaders of society. The central function that the legal profession must perform is nothing less and nothing more than the administration of justice.

The Rules has explicitly specified under section VII that certain restrictions will be imposed on advocates subsequent to their enrolment. These restrictions have passed the constitutionality test at several occasions.

Right To Practise Any Profession, Or To Carry On Any Occupation, Trade Or Business With Reasonable Restrictions

A prima-facie reading of the Rules which restricts the Advocates to be employed elsewhere depicts to be a violation of the fundament right to practice any profession, or to carry on any occupation, trade or business with reasonable restrictions[4]. However the Supreme Court has time and again upheld the Rules to be constitutional and falling within the ambit of reasonable restrictions specified under article 19 (2) of the Constitution.

In the case of Dr Haniraj L. Chulani v. Bar Council of Maharashtra & Goa[5] wherein Justice S. B. Mazumdar held that the restriction mentioned in the rules were not arbitrary or unreasonable from any viewpoint. The rule specifies a well-defined class of professionals carrying on other professions and denies to members of this well-defined class entry to the legal profession so long as they insist on carrying on any other profession simultaneously with the legal profession.

The classification has a reasonable nexus to the object sought to be achieved, therefore clearing the test of diffrentia, namely, the efficiency of advocates belonging to the legal profession and the better administration of justice for which the legal profession is a partner with the judiciary.

In the case of Indian Council of Legal Aid & Advice v. Bar Council of India[6] the question on arbitrary and unreasonable was raised with reference to the rules which barred advocates to take up other full time employment. The rationale for the restriction as stated earlier is to maintain the integrity and dignity of the profession by keeping a check on the legal professionals. Thus the object of the rule is clearly to shut the doors of the profession for those who seek entry into the profession to achieve some other purpose than to seek justice.

However to the other side of the argument, in the first place, there is no reliable material in support of the rationale on which the rule is founded and secondly, the rule is discriminatory as it debars one group of persons who have taken up a profession upon enrolment to continue with other forms of employment/ business.

Further, in the above cases, the court upheld the rules and substantiated the reason in order to protect the impugned rules, the rules are not infringing fundamental rights.

Reasonable Restrictions Imposed On Advocates Vide The Bar Council Rules

Section VII states the restriction on other Employments which are prohibited by the rules. These restrictions are to be interpreted in a literal manner.[7]

The following alternative employments are prohibited:
  1. An Advocate shall not personally engage in any kind or form of business wherein he has an active key managerial role. However he/ she may be a sleeping partner in a business if in the view of the State Bar Council it will not harm the dignity of the profession.
     
  2. An Advocate is prohibited to act as a managing director in a company. His/ her role should be limited to an ordinary director with or without any sitting fees.
     
  3. An advocate shall not be a full-time employee of any person, government, firm, etc. In case the advocate opts for a full-time employment he/ she shall intimate the State Bar Council whose roll he has been enrolled in. Therefore right to practice ceases.

    Legal profession is essentially a service-oriented profession. The lawyer of the Government or a public body is not its employee but is a professional practitioner engaged to do the specified work, though the lawyers on the full-time rolls of the Government and the public bodies are described as their law officers. It is precisely for this reason that in the case of such law officers, the saving clause of Rule 49 of the Bar Council of India Rules, waives the prohibition imposed by the said rule against the acceptance by a lawyer of a full-time employment, State of U.P. v. U.P. State Law Officers' Assn[8].

    Employment” barred under Section 49 does not cover employment of an advocates who has been solely or, in any case, predominantly employed to act and/or plead on behalf of his client in courts of law. Factum of employment is not material but the key aspect is whether such employment is consistent with his practicing as an advocate, Deepak Aggarwal v. Keshav Kaushik[9].
     
  4. An advocate, who has inherited a business, is prohibited to participate in it. However he/ she may hold a share in the establishment.
     
  5. An advocate, is prohibited to self advertize even when he/ she is teaching, reviewing parliament bills, broadcasting, journalism and other related act as solicitation is explicitly prohibited by section IV rule 36 of the rules.[10]
In rule 52 the Bar Council has created an approval mechanism wherein the advocate can apply to the specific SBC to give consent for alternative employment in which the individual is involved. However this rule shall be applied on case to case basis. The rule ends with a proviso which empowers the Bar Council of India to issue such directives to regulate the abovementioned clauses time to time. Therefore, the Bar Council of India has ample discretion to issue guidelines from time to time, henceforth during the COVID 19 pandemic the Council has made few relaxation in the above mentioned stringent clauses.

In 2018 a legal conundrum arose with respect to tight to legal practice of Member of Parliament, Member of Legislative Assembly and other elected members since they are employed full time and barred to practice law with reference to Rule 49 of the rules.

However the Apex Court in Ashwini Kumar Upadhyay v. Union of India held[11]
There is no other express provision in the Act of 1961 or the Rules framed thereunder to even remotely suggest that any restriction has been imposed on the elected people's representatives, namely, MPs/MLAs/MLCs to continue to practise as advocates. In absence of an express restriction in that behalf, it is not open for this Court to debar the elected people's representatives from practising during the period when they are MPs/MLAs/MLCs.

It is also not possible to strike down Rule 49 on the ground that the stated class of persons is excluded from its sweep, not being a case of discrimination between equals or unequals being treated equally. As expounded in Haniraj L. Chulani[12] , it is for the Bar Council of India to frame rules to impose restrictions as may be found appropriate. As of today, no rule has been framed to restrict the elected people's representatives from practicing as advocates. On the other hand, an unambiguous stand is taken by the Bar Council that being legislators per se is not a disqualification to practise law.

Therefore due to lack of specific averments the Apex Court permitted the elected representative to continue their legal practice.

Bar On Employment Relaxed During Covid 19 Period

The Bar Council of Gujarat vide BCG/07/20-21 Resolution dated 21.06.2020[13] had seeked approval from the Bar Council of India with respect to granting relaxation to the restriction on employment imposed. Covid-19 is an extraordinary circumstance which humanity has seen. The Nationwide lockdown has brought to the front the incredible difference in the legitimate calling and lockdown has monetarily harms attorneys.

Therefore, this COVID-19 situation could be an opportunity for India to relax the draconian restriction on advocates.

State Bar Councils like Gujarat, Odisha and Karnataka has issued similar request to the Bar Council of India to relax the aforesaid provisions, as the restraint is more stringent than the opportunities it harnesses. The rationale behind this draconian provision was to protect the sanctity of the legal officers however during this period of economic slowdown it is a curse.

Restraint To Alternative Employment In Other Jurisdictions:

  1. United States

    United States has delegated the power of regulating Legal Practice to the States under the Federal Structure. However a Unified Court System is to be followed by all States. Further, in Rules of Professional Conduct[14] of the New York Bar Association no limitation or restriction to employment is given. Therefore, an attorney may have alternative source of employment or income subject to the conflict clause mentioned in the Rules of Professional Conduct.

    Therefore after reading and understanding the perspective of the United States of America one concept which is clear is that, the nation has at several occasions' motivated attorneys to choose diversified professions in addition to their license to practice.
     
  2. United Kingdom

    The Legal Services Act, 2007 regulates Legal Practice as a profession in the United Kingdom, Northern Ireland, and Wales. The Act is silent on alternative employment issues however it has created a class distinction that prohibits alternative business structures which shall be notified time to time.[15] However, till date, no notification has been
    Hence, it is construed that in India the degree restraint is maximum as the BCI Rules enumerates an exhaustive list of exclusion.

Conclusion And Suggestion
Currently, the issue of alternative employment is subjudice before the Supreme Court of India wherein the court is seeking the Bar Council of India's response in this matter. The power of the Bar Council of India to lift the restriction is not in the contest; hence the Council would well within its statutory power to lift the restriction. The draconian restriction is peculiar to India which is under consideration now.

The rationale of the restriction of alternative employment is defeated on several fronts:
  1. The Unemployment rate in India is soaring amidst the economic slowdown, therefore resulting in job losses in multiple sectors. This brunt is also susceptible to the advocates as the economy suffers their livelihood is also endangered. Due to their enrolment restrictions, alternative employment for advocates is prohibited.[16]
     
  2. The restriction seeks to ensure the administration of justice is unhindered however, there is no conclusive proof that the ration has worked, since the pendency inter alia remains high when compared to the global scenario.
     
  3. The above restriction has not benefited the judicial fabric of the country as India is ranked 69th out of 129 countries[17] in the Rule of Law index which independently assesses the judicial well-being of a nation.
     
  4. The prohibition of alternative employment is not found apparent in other developed nations where Legal Practice is regulated by the State.

This pandemic situation could be a pilot project in which the State Bar Council(s) and, the Bar Council of India can observe and, analyze the livelihood standards for the Advocates in the following manner:
  1. The employment undertaken by the Advocate;
  2. The increase/ decrease in monthly income before and after Covid-19; and,
  3. Cumulative Average income per Advocate before and after this restriction.
Therefore, the third point is very essential as the measure of success can only be calculated if the average income per advocate increases as it would reflect better growth of the fraternity. The restrictions which were imposed prior to this relaxation were from an era wherein the scope of profession was primitive and limited. But, in the twenty-first century, the scope of professional development in different forms of jobs had increased.

Today, an advocate can start his own FinTech Legal Startup which would require him to form a Company, Partnership, or Limited Liability Partnership hence he will have to withdraw his enrolment as an advocate because of the restrictions. This fear of withdrawal of registration is killing the entrepreneurship attitude, hence affecting the economy and the service sector adversely.

The State has an innate responsibility towards its citizen to provide equal opportunity without creating any class distinction. The Apex Court in the above-mentioned decisions has held the restrictions to be constitutional, however, the contemporary times are challenging, and creating restrictions like these could be contentious for Advocates who have limited employment scope by virtue of the Bar Council Rules. Therefore, this COVID 19 situation can be utilized as a pilot project by lifting the restrictions.

End-Notes:
  1. *
  2. Whart 3rd Edn. 1997 at pg. 23.
  3. (1996) 3 SCC 342 .
  4. A. 19 (1)(g) of the Constitution of India, 1949.
  5. Supra at note 3.
  6. (1995) 1 SCC 732 at page 743.
  7. D. Saibaba v. Bar Council of India, (2003) 6 SCC 186 at page 192.
  8. (1994) 2 SCC 204: 1994 SCC (L&S) 650.
  9. (2013) 5 SCC 277.
  10. An advocate shall not solicit work or advertise, either directly or indirectly, whether by circulars, advertisements, touts, personal communications, interviews not warranted by personal relations, furnishing or inspiring newspaper comments or producing his photographs to be published in connection with cases in which he has been engaged or concerned.
  11. (2019) 11 SCC 683 : 2018.
  12. Supra note 3 at page 2.
  13. Website of Bar Council of Gujarat, www.barcouncilofgujarat.org last accessed on 27th Aug., 2020.
  14. Rules of Professional Conduct of the New York Bar Association, last accessed on 10th Sept.,2020.
  15. Part 5, Legal Services Act, 2007, https://www.legislation.gov.uk/ukpga/2007/29/contents last accessed on 12th Sept., 2020.
  16. Employment Vision 2020, https://niti.gov.in/planningcommission.gov.in/docs/reports/genrep/bkpap2020/32_bg2020.pdf last accessed on 15th Aug.,2020.
  17. Rule of Law Index, https://worldjusticeproject.org/rule-of-law-index/country/2020/India/ last accessed on 16th Aug., 2020
Award Winning Article Is Written By: Aadarsh Kothari - Student, Amity Law School, Noida

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