Duty of advocates towards court

Duty of advocates towards court

1. ADVOCATES DUTY Towards COURT Dr. S. Madhuri Paradesi Associate Professor SPMVV, Tirupati

2. INTRODUCTION: In the administration of justice, the role of an advocate is to help the court to take a right decision in the dispute. While performing this job, an advocate is duty bound to perform certain duties to the court. Rules 1 to 10 deal with the duties of an advocate towards the court.

3. RULE : 1 "An advocate shall, during the presentation of his case and while otherwise acting before a court, conduct himself with dignity and self respect. He shall not be servile and whenever there is proper ground for serious complaint against a judicial officer, it shall be his right and duty to submit his grievance to proper authorities."

4. Act in a dignified and assertive manner: Rule 1 lays down that during the presentation of the case and while acting otherwise before the court, an advocate is required to conduct himself with dignity and self-respect. An advocate shall not be servile (i.e. too obedient or submissive) and in case of proper ground for serious complaint against a judicial officer, it is his right and duty to submit his grievances to the proper authority

5. RULE : 2 “An advocate shall maintain towards the courts a respectful attitude, bearing in mind that the dignity of the judicial office is essential for the survival of a free community.“ Respect the court: Rule 2 lays down that an advocate is required to maintain towards the court respectful attitude bearing in mind that the dignity of the judicial office is essential for survival of free community. Thus, he shall not speak ill of judges or use abusive remarks about them.

6. RULE :3 “An advocate shall not influence the decision of a court by any illegal or improper means. Private communications with a judge relating to a pending case are forbidden.” Not to deceive or influence judge or communicate in private: Rule 3 lays down that an advocate shall not influence the decision of the court by any illegal or improper means such as coercion, bribe, deceit, etc. Thus, he shall not abuse the rules of evidence and the process of the court. He shall not include any fact which he knows to be false in the pleadings, petitions or affidavits. Rule 3 also prohibits the private communication with the judge relating to pending case.

7. RULE : 4 “An advocate shall use his best efforts to restrain and prevent his client from resorting to sharp or unfair practices or from doing anything in relation to the court, opposing counsel or parties which the Advocate himself ought not to do. An advocate shall refuse to represent the client who persists in such improper conduct. He shall not consider himself a mere mouthpiece of the client, and shall exercise his own judgment in the use of restrained language in correspondence, avoiding scurrilous attacks in pleadings, and using intemperate language during arguments in court."

8. Restraining clients Insisting on unfair or Illegal means: Rule 4 requires the advocate to use his best effort to restrain and prevent his client from resorting to sharp or unfair practices or from doing anything in relation to the court, opposing counsel or parties which the advocate himself ought not to do. It also requires the advocate to refuse to represent the client who persists in using unfair or improper means. The Rule makes it clear that the advocate shall not consider himself mere mouthpiece of the client and shall exercise his own judgment in the use of restrained language in correspondence, avoiding scurrilous attacks in pleadings and using unparliamentary language during arguments in the court

9. RULE : 5 “An Advocate shall appear in court at all times only in the prescribed dress, and his appearance shall always be presentable.” Appear in proper dress code: Rule 5 requires an advocate to appear in court at all times only in the prescribed dress (robes) and his appearance shall always be presentable Thus, for instance, he should not appear in court when in a drunken state

10. RULE : 6 “An Advocate shall not enter appearance, act, plead or practice in any way before a court, tribunal or Authority mentioned in Sec. 30 of the Act, if the sole of any member thereof is related to the Advocate as father, grandfather, son, grandson, uncle, brother, nephew, first cousin, husband, wife, mother, daughter, sister, aunt, niece, father-in-law, mother-in-law, son-in-law, brother-in-law, daughter-in-law or sister-in-law. For the purposes of this rule, court shall mean a court, Bench a tribunal in which above mentioned relation of the Advocate is a judge, member or the Presiding Officer."

11. Refuse to appear in front of Relative Judges: Rule 6 lays down that an advocate should not enter appearance, act, plead or practice in any way before a judicial authority if the sole or any member thereof is related to the advocate as father, grandfather, son, grandson, uncle, brother, nephew, first cousin, husband, wife, mother, daughter, sister, aunt, niece, father-in-law, mother-in-law, son-in-law, brother-in-law, daughter-in-law or sister-in-law .

12. RULE : 7 “An advocate shall not wear bands or gown in public places other than in Courts except on such ceremonial occasions and at such places as the Bar Council of India or the court may prescribe.” Not to wear bands or gowns in public places: Rule 7 requires the advocate not to wear bands or gowns in public places other than in court except on such ceremonial occasions and at such places as the Bar Council of India or the court may prescribe.

13. RULE : 8  “An advocate shall not appear in or before any court or tribunal or any other authority for or against an organization or an institution, society or corporation, if he is a member of the Executive Committee of such organization or institution or society or corporation. "Executive Committee”, by whatever name it may be called, shall include any Committee or body of persons which for the time being, is vested with the general management of the affairs of the organization or institution, society or corporation: Provided that this rule shall not apply to such a member appearing as amicus curiae or without a fee on behalf of a Bar Council, Incorporated Law Society or a Bar Association."

14. Not to represent establishments of which an advocate is a member: Rule 8 provides that an advocate shall not appear in or before any court or tribunal or any other authority for or against an organization, institution, society, or corporation if he is a member of executive committee of such organization, institution, etc. In short, an advocate should not appear in or before any judicial authority, for or against any establishment if he is a member of the management of the establishment. However, he could appear as amicus curiae ('friend of the court or impartial adviser to a court of law in a particular case) or without a fee on behalf of a Bar Council, Incorporated Law Society or a Bar Association.

15. RULE : 9 “An advocate should not act or plead in any manner in which he is himself pecuniary interested: Illustration: I. He should not act in a bankruptcy petition when he himself is also a creditor of the bankrupt. II. He should not accept a brief from a company of which he is Director.”

16. Not to appear in matters of pecuniary Interest: Rule 9 provides that an advocate should not act or plead in any matter in which he has financial interests. For instance, he should not act in a bankruptcy petition when he is also a creditor of the bankrupt. He should also not accept a brief from a company of which he is a Director. Likewise, if there is a suit relating to a house owned jointly by him and any of his family members, he cannot act or plead as an advocate. This is also justified on the ground that an advocate cannot be both party and counsel in a matter (unless he is pleading his own case alone)

17. RULE : 10 “An advocate shall not stand as a surety, or certify the soundness of a surety for his client required for the purpose of any legal proceedings." Not to stand as surety for client: Rule 10 lays down that an advocate should not stand as a surety, or certify the soundness of a surety that his client requires for the purpose of any legal proceedings.

18. Additional Duties to the Court (Not prescribed by BCI): In addition to the above duties prescribed by the Bar Council of India, an advocate is expected to perform the following duties also to the Court: To obey court's orders e.g. when the court appoints a lawyer to defend an accused, it is his moral obligation to accept such order and discharge his duties towards the court and the accused by the best use of his knowledge and ability. To not discuss in the newspapers any pending case or appeal so as to influence the judge's opinion. To be always punctual in attending courts. To not ask for any adjournment of a case without genuine reasons. To not interrupt when the counsel for the other side or the judge is speaking To boldly ignore a call for strike or boycott of courts.

19. CASE LAWS: In  D.C Saxena v. Chief Justice of India, AIR 1996 SC 2481 , the Supreme Court has held that a party or a counsel appearing before the Court should not use in his pleadings, the scurrilous allegations against the judge or the Court in order to maintain the dignity and decorum of the Court, otherwise, the reputation and dignity of the judge would disappear and the independence of the judiciary would be badly affected.    Sambhu Ram Yadav v Hanuman Das Khatry (AIR 2001 SC 2509): In this case, a complaint was filed by the appellant against an advocate, before the Bar Council of Rajasthan, who asked for Rs . 10,000 to bribe and influence the judge to obtain a favourable order. The Disciplinary Committee, holding that the advocate was guilty of “misconduct”, stated that such an act made the advocate "totally unfit to be a lawyer.” The Supreme Court, upholding the finding of the Rajasthan Bar Council held that the legal profession is not a trade or business. The Court further stated that members belonging to the profession have a specific duty to uphold the integrity of the profession and to discourage corruption in order to ensure that justice is secured in a legal manner.

20. D.C. Saxena AIR 1996 SC 2481: Discourteous behaviour by an advocate towards the Bench in the Court has become a feature nowadays. Thus, it is not uncommon to see use of hot words, epithets or disrespectful, derogatory or threatening language in the Court; ill-temper overbearing the court; browbeating or pressure tactics to get a favourable order. An advocate appearing before court should maintain dignity and decorum of Court. He should not indulge in writing in pleadings, the scurrilous allegations or scandalisation against judge or court. “Liberty of free expression is not to be confounded or confused with licence to make unfounded allegations against any institution, much less the Judiciary”

21. D.P. Chadha v Triyugi Narain Mishra (2001) 2 SCC 221: In this case, the Court found the delinquent lawyer guilty for professional misconduct for deliberately attempting to mislead court into accepting position that personal presence of parties was not a mandatory requirement for verification of compromise. The Supreme Court observed that a lawyer must not hesitate in telling the court the correct position of law when it is undisputed and admits of no exception, even if it does not favour his client. He is not entitled to drag a settled and non-controversial point of law into doubt solely to mislead or confuse court so as to gain an unfair advantage for his client. While an advocate is free to try to the best of his ability, to use wit, to persuade the court to a view of the law which best serves his client, he cannot mislead the court on a settled position of law.

22. CONCLUSION: Advocates, in addition to being professionals, are also officers of the courts and play a vital role in the administration of justice. Advocate’s duty towards the court is a fundamental obligation within the adversarial system. In order to fulfill the heavy responsibilities imposed on lawyers as officers of the court, a meaningful and practical environment of independence is essential. It is always within the framework of this relationship that the commercial interest of the client and the lawyer's interests must give way to the overriding duty to the court . — David W Scott