PROFESSIONAL

ETHICS

RESTRICTIONS ON ADVOCATES TO
TAKE UP
OTHER EMPLOYMENTS
AND
CONDITIONS FOR RIGHT TO
PRACTISE

B.Com LLB (H), 6th Semester, U.I.L.S P.U

Submitted to:
Ms. Imrose Tiwana

Submitted By:
Daanish Singh
131/12

Acknowledgment

I owe a great many thanks to a great many people who helped

and supported me during the completion of the project.
My deepest thanks to Ms. Imrose Tiwana the Guide of the
project for guiding and correcting various documents of mine
with attention and care. She has taken pain to go through the
project and make necessary correction as and when needed.
I would also thank my Institution and my faculty members
without whom this project would have been a distant reality

INTRODUCTION
A lawyer, according to Black's Law Dictionary, is "a person learned in the
law; as an attorney, counsel or solicitor; a person licensed to practice
law." The profession of law is called a noble profession. It does not

remain noble merely by calling it as such unless there is a continued,

corresponding and expected performance of a noble profession. Its
nobility has to be preserved, protected and promoted. An institution
cannot survive in its name or on its past glory alone. The glory and
greatness of an institution depends on its continued and meaningful
performance with grace and dignity. The profession of law being noble
and honourable one, it has to continue its meaningful, useful and
purposeful performance inspired by and keeping in view the high and rich
traditions consistent with its grace, dignity, utility and prestige. Hence the
provisions of the Advocates Act and Rules made there under inter alia
aimed at to achieve the same ought to be given effect to in their true spirit
and letter to maintain clean and efficient Bar in the country to serve cause
of justice which again is noble one.1

Restriction on Advocates to take up other

employments
Rules 47 to 52 of Section VII of the rules deals with restrictions on other
employments. This restriction is considered as a general etiquette on the
1

http://www.legalservicesindia.com/article/article/restriction-on-advocates-179-1.html

part of lawyers as the profession of law is a noble profession and requires

full time dedication.
Rule 47 provides that an advocate shall not personally engage in any
business; but he may be a sleeping partner in a firm doing business
provided that in the opinion of the appropriate State Bar Council, the
nature of the business is not inconsistent with the dignity of the
profession.
Rule 48 makes it very clear that an advocate may be Director or
Chairman of the Board of Directors of a company with or without any
ordinarily sitting fee, provided none of his duties are of an executive
character. An advocate shall not be a Managing Director or a Secretary of
any company. If the functions of the advocate as a member of the Board
of Directors is in case executive in nature, then that action would be
against rule 48. An advocate cannot run any business personally and earn
a profit. Rule 47 strictly prohibits that.
Under Rule 49 of the Bar Council of India Rules, an advocate shall not be
a full-time employee of any person, Government, firm, corporation or
concern and on taking up such employment, shall intimate such fact to
the Bar Council concerned and shall cease to practise as long as he is in
such employment. However, there was an exception made in such cases
of law officers of the Government and corporate bodies despite his being
a full- time salaried employee if such law officer was required to act or
plead in court on behalf of others. It was only to those who fall into other
categories of employment that the bar under Rule 49 would apply 2. An
2

Sushma Suri v. Government of National Capital Territory of Delhi, 1993 (3) S.L.J 34 at p.
38 (S.C)

advocate employed by the Government or a body corporate as its law

officer even on terms of payment of salary would not cease to be an
advocate in terms of Rule 49 if the condition is that such advocate is
required to act or plead in courts on behalf of the employer. But this
exception were deleted in June, 2001 meeting vide Resolution
No.65/2001.3
The test, therefore, is not whether such person is engaged on terms of
salary or by payment of remuneration, but whether he is engaged to act or
plead on its behalf in a court of law as an advocate. In that event the
terms of engagement will not matter at all. What is of essence is as to
what such law officer engaged by the Government does - whether he acts
or pleads in court on behalf of his employer or otherwise. If he is not
acting or pleading on behalf of his employer, then he ceases to be an
advocate. If the terms of engagement are such that he does not have to act
or plead, but does other kinds of work, then he becomes a mere employee
of the Government or the body corporate. Therefore, the Bar Council of
India has understood the expression "advocate" as one who is actually
practicing before courts which expression would include even those who
are law officers appointed as such by the Government or body corporate.

In Satish Kumar v. Bar Council of Himachal Pradesh 4 a person was

enrolled as an advocate despite being a full time salaried employee as
Law officer. The State Bar Council (Bar Council of Himachal Pradesh)
had not made any Rule entitling full time salaried Law officers for
practising as an advocate. The work of the person so enrolled was not
mainly or exclusively to act or plead in Court as Law officer. He was
3
4

http://www.legalservicesindia.com/article/article/restriction-on-advocates-179-1.html
AIR 2001 S.C 509

not entitled to be enrolled as an advocate. His name may be removed

from the roll of State bar council. Such removal was not taken as
punishment but rectification of mistake. Thus the cancellation or
withdrawal of enrolment was not taken as a punishment and therefore, in
such condition the procedure to be followed in case of punishment for
professional

misconduct

was

not

required

to

be

observed.

If in the rules of any State Bar Council, a provision is made entitling Law
officers of the Central government or a State or any Public Corporation or
body constituted by a statute, the bar contained in Rule 49 shall not apply
to such officers despite them being full time salaried employees. The
court has observed further that not every Law officer, but only a person
who is designated as a Law Officer by terms of his appointment and who,
by the said terms is required to act and/or plead in courts on behalf of his
employer can avail the benefit of the exception contained in Rule 49.5
Rule 50 provides that an advocate who has inherited, or succeeded by
survivorship to a family business may continue it, but may not personally
participate in the management thereof. He may continue to hold a share
with others in any business which has descended to him by survivorship
or inheritance or by will, provided he does not personally participate in
the management thereof. As the purpose of these restrictions is to
preserve the dignity and nobility of the legal profession, holding of share
with others in any business which he inherited is not prohibited provided
he is not participating in the management of the business there by
compromising on the dedication and attention to the profession.

http://www.keralalawyer.com/bar_council/restrictions.php#.VS12SWaQUWh

According to Rule 51 an advocate may review Parliamentary Bills for a

remuneration, edit legal text books at a salary, do press-vetting for
newspapers, coach pupils for legal examination, set and examine question
papers; and subject to the rules against advertising and full-time
employment, engage in broadcasting, journalism, lecturing and teaching
subjects, both legal and non-legal. An advocate has a duty to his
colleagues under Rule 36 not to 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.
The occupation allowed under Rule 52 are object to this rule also.
Rule 51 enacts a prohibition. It is a principle of professional ethics now
embodied in a statutory rule. The violation of the rule makes the legal
practitioner guilty of professional misconduct. But it does not prohibit a
dismissed Government servant who has obtained so laboriously a
declaration in his favour from claiming his just dues of salary or arrears
of pay. The members of a profession must conform to the ethical
standards of the profession. Rule 51 requires conformity. Law is
monopolistic profession. 6
If the appointment as Assistant public Prosecutor is for the purpose of
creating an employment for him, then it is needless to say that Rule 51 of
the Bar Council of India Rules would segregate him from advocates.
Therefore, it would not be possible for him to contend that by adding the
years, of working as A.P.P he would be having seven years standing as an
6

Union of India v. Kewal Krishna Mittal, 1984 (25) D.L.T 24

advocate. But if it is to be interpreted that Sec 25 of the Code of Criminal

Procedure enjoins the appointment of an advocate as Assistant Public
Prosecutor for conducting prosecution in courts of Magistrates, then it
debars the appointee to call himself an advocate. Sections 24, 29 and 30
of the Advocates Act, 1961 and the rules of the Bar Council of India also
would deny him the right to be called an advocate as having been
appointed as A.P.P. Therefore, such a person cannot be permitted to add
the period serving as A.P.P to the period of practising as advocate for
claiming seven years standing as an advocate7.
Rule 51 permits the lecturing and teaching subjects, both legal and nonlegal. However, this right is subject to the Advocates (Right to take up
Law teaching) rules, 1979. According to rule 3 of the said rules an
advocate may, while practicing, take up teaching of law in any
educational institution which is affiliated to a University within the
meaning of the University Grants Commission Act, 1956 (3 of 1956), so
long as the hours during which he is so engaged in the teaching of law do
not exceed three hours in a day. When any advocate is employed in any
such educational institution for the teaching of law, such employment
shall, if the hours during which he is so engaged in the teaching of law do
not exceed three hours, be deemed, for the purposes of the Act and the
rules made there under, to be a part-time employment irrespective of the
manner in which such employment is described or the remuneration
receivable (whether by way of a fixed amount or on the basis of any time
scale of pay or in any other manner) by the advocate for such
employment.

Akhilesh Kumar Misra v. High Court of Judicature at Allahabad, AIR 1995

Rule 52 states that nothing in these rules shall prevent an advocate from
accepting after obtaining the consent of the State Bar Council, part-time
employment provided that in the opinion of the State Bar Council, the
nature of the employment does not conflict with his professional work
and is not inconsistent with the dignity of the profession. This rule shall
be subject to such directives if any as may be issued by the Bar Council
India from time to time. Teaching of law for not more than three hours a
day is considered as a part-time employment.

CONDITIONS FOR RIGHT TO PRACTISE

Section 49(1)(ah) of the Advocates Act empowers the Bar Council of
India to make rules in relation to the conditions subject to which an
advocate shall have the right to practice and the circumstances under
which a person shall be deemed to practice as an advocate in a Court. 8 In
the exercise of the power the Bar Council of India has made certain rules.

Rai Kailash , Legal Ethics, Central Law Publications , 2010 , Pg. 36

Chapter III of Part VI of the rules of Bar Council of India contains several
rules dealing with the conditions for right to practice.
The provisions of these rules are as follows :
1.

Every Advocate shall be under an obligation to see that his

name appears on the roll of the State Council within whose
jurisdiction he ordinarily practices.

PROVIDED that if an Advocate does not apply for transfer of his name to
the roll of the State Bar Council within whose jurisdiction he is ordinarily
practising within six months of the start of such practice, it shall be
deemed that he is guilty of professional misconduct within the meaning
of section 35 of the Advocates Act.
2.An Advocate shall not enter into a partnership of any other
arrangement for sharing remuneration with any person or legal
Practitioner who is not an Advocate.
3.

Every Advocate shall keep informed the Bar Council on the roll of

which his name stands, of every change of his address.

4.

The Council or a State Council can call upon an Advocate to

furnish the name of the State Council on the roll of which his name is
entered, and call for other particulars.

5.

(1) An Advocate who voluntarily suspends his practice for any

reason whatsoever, shall intimate by registered post to the State Bar

Council on the rolls of which his name is entered, of such suspension

together with his certificate of enrolment in original.
(2) Whenever any such Advocate who has suspended his
practice desires to resume his practice, he shall apply to the Secretary of
the State Bar Council for resumption of practice, along with an affidavit
stating whether he has incurred any of the disqualifications under Section
24A, Chapter III of the Act during the period of suspension.
(3). The Enrolment Committee of the State Bar Council may
order the resumption of his practice and return the certificate to him with
necessary endorsement. If the Enrolment Committee is of the view that
the Advocate has incurred any of the disqualifications the Committee
shall refer the matter under proviso to Section 26 (1) of the Act.
(4) On suspension and resumption of practice the Secretary shall
attain terms of Rule 24 of Part IX.
6.

An Advocate whose name has been removed by order of the

Supreme Court or a High Court or the Bar Council as the case may be,
shall not be entitled to practice the profession of law either before the
Court and authorities mentioned under Section 30 of the Act, or in
chambers, or otherwise.
An Advocate who is under suspension, shall be under the same disability
one in which he held office.
7.

An officer after his retirement or otherwise ceasing to be in service

shall not practice for a period of 2 years in the area in which he exercised
jurisdiction for a period of 3 years before his retirement of otherwise
ceasing to be in service.

Explanation: Officer shall include a Judicial Officer, Additional Judge

of the High Court and Presiding Officer or Member of the Tribunal or
authority or such other Officer or authority as referred to in Section 30 of
the Act. Area shall mean area in which the person concerned exercising
jurisdiction.
8.

No Advocate shall be entitled to practice if in the opinion of the

Council he is suffering from such contagious disease as makes the

practice of law a hazard to the health of others. This disqualification shall
last for such period as the Council directs from time to time.
Rules 9, 10 and 11 were added in 2010 and deal with the All India Bar
Council Exam (AIBE)
9.

It has been made mandatory , that to acquire the right to practice

the advocate must give and pass the All India Bar Council Examination.
10.

The examination must be conducted by the Bar Council of India

atleast twice a year at such place and such time as it may be determined
by the Bar Council of India .
If an advocate passes the AIBE exam , then he will get a certificate and
can practice in any court within the territory of India.
11.

The Bar Council of India will send such certificate at the residence

of the advocate.

CONCLUSION
The provisions of the Advocates Act and Rules made there under inter
alia aimed at to achieve the same ought to be given effect to in their true
spirit and letter to maintain clean and efficient Bar in the country to serve
cause of justice which again is noble one.

An advocate shall, at all times, comport himself in a manner befitting his

status 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.
Without prejudice to the generality of the foregoing obligation, an
Advocate shall fearlessly uphold the interests of his client, and in his
conduct conform to the rules hereinafter mentioned both in letter and in
spirit.

BIBLIOGRAPHY
BOOKS REFERRED
- Rai Kailash , Legal Ethics, Central Law Publications , 2010 .
- Prasadh Anirudh , Principles of the Ethics of Legal Profession in
India , Univ. Book House , 2004 .

E-SOURCE
- http://www.legalservicesindia.com/article/article/restriction-onadvocates-179-1.html
- http://www.keralalawyer.com/bar_council/restrictions.php#.VS12S
WaQUWh
- http://www.lawyersclubindia.com/news/Restriction-on-Advocatesto-take-up-other-employments-11680.asp#.VS12TGaQUWh
- http://admis.hp.nic.in/himpol/Citizen/LawLib/Amendments/Bar
%20consi_rules/BAR%20COUNCIL%20OF%20INDIA
%20RULES.htm#PART_VI_CHAPTER_2