RESEARCH PAPER ON

“RIGHTS OF AN ADVOCATE”

RIGHTS OF AN ADVOCATE
ABSTRACT
There is not denying the fact that legal profession is a noble profession. This
profession is regulated by Advocates Act, 1961. This Act provides for the rules
and regulations of legal profession as well as rights and duties of an advocate. It
acts strictly maintains the legal profession in India. In this paper I have
discussed the rights of an advocate under Advocates Act, 1961. This Act of
1961 empowers Bar Councils to make certain rules and regulations for
regulating legal profession. This study tries to explore the rights of an Indian
advocate.
KEY WORDS: - Rights, Advocate, Profession, , Advocacy .

INTRODUCTION

There is not denying the fact that law forms one of the most important social
institution of our life. The law is important for a society for it serves as a norm
of conduct for citizens. In the absence of law, we would go from liberty to
rugged individualism and there will be a complete state of anarchy. The true
democratic State has its origin in the ‘rule of law’. Ethics is an art of teaching
how social life has to be lived and that it lays principles of converting evil souls
to noble ones. Ethics is, thus, an art of dignified living. As a moral science,
ethics aims at making sincere efforts to probe deeper and find the moral ground
for such principles and institutions that are the real safeguards of the true
morality of a society.

RIGHTS OF AN ADVOCATE UNDER ADVOCATES ACT, 1961

All the rights attached to the office of advocate by virtue of law and usages are
in the sense his privileges. However, following are some of those rights:

Right to Audience
It is the privilege of person who fulfils the prescribed qualifications to become a
member of the Bar. It is privilege of the member to represent his clients in the
Court of law and to claim audience in Court so long as he acts decorously. This
is an exalted profession in which privilege is duty and duty is privilege.1

Right to Claim Fee

A lawyer has a right to his fee. This right is absolute and not conditional. It does
not depend upon winning or losing of the case. This is not enforceable against
the subject-matter of the suit. Sometimes lawyers do take up cases without any
fees, and then it will not be their right. An advocate cannot sue for his fees, but
accepts what he gets in accordance with his bargain.

Right of Lien
Once a lawyer has filed his power of attorney in a case it is his privilege that no
one else can step in without his consent. Even, courts cannot grant leave to
appear in this case if he is unpaid when he will have a right of lien upon the
briefs and papers if in his possession. Unless satisfactory arrangement for the
payment of his fees has been made and the judge is
satisfied on that count, even the judge cannot make an order to hand over the
brief either to another advocate or to the client.

Right to Practice
Every advocate has a right to see that his name appears on the role of the State
Bar Council within whose jurisdiction he ordinarily practices. An advocate shall
keep informed the Bar Council on the role of which his name stands, of every
change of his address. 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 302 or in chambers, or otherwise.

An advocate shall not be entitled of practice if in the opinion of the Bar Council
he is suffering from such a contagious disease as makes his practice of law a

1
A.N. Chaturvedi, Principles and Forms of Pleadings and Conveyancing with Advocacy and Professional Ethics
399 (Allahabad Law Agency, Allahabad 9edn. 1999).
2
Advocates Act, 1961.
hazard to the health of others. This qualification shall last for such period as the
Bar Council directs from time to time. In Emperor v. Rajani kanta Bose and
Others3 the court observed that the practice of law is not a business open to all
who wish to engage in it. It is a personal right or privilege and in the nature of
franchise from the State.

Right to enter any court and observe the proceedings

As per section 30,4 any person who has enrolled in the bar council of India can
practice in any Court of law in any tribunal. This section also enables the right
of an advocate to enter into any courtroom to observe the proceedings. The
point will not affect whether he was connected to that case or not. An advocate
has the right to enter the Supreme Court to hear any live proceedings. 

Right against arrest

An advocate is known as the judicial officer of the court. Section 135 of the
civil procedure code exempt the advocates from rest under civil case while he
is:

Going to the court


 Presiding his case in the court
 Returning from the court
These are the circumstances in which the police cannot arrest an advocate in a
civil matter. 

Right to meet with accused

When an advocate takes any case in which the accused is in jail, the right to
meet the accused person comes into force. As per law, a person is innocent until
proven guilty. So, it becomes important for an advocate to understand the case
properly by meeting his client even in the jail to discuss all the related facts and
evidence of the case which will help an advocate to fight the case in the court of
law. An advocate can meet the accused even in jail however the meeting in jail
will be limited. It is the right of an advocate to meet his client even every day. 

Right to secure the privacy of the communication

3
I.I.R. 49 Cal. 804.
4
Advocates Act, 1961.
It is an exclusive right of an advocate given by section 129 of the Indian
Evidence Act 1872. According to this section, the advocate has the right to
secure the privacy of the communication with his client. The advocate is not
liable to tell anybody about the discussion done between him and his client
related to the case. Section 129 of the Indian evidence Act 1872 also provides
that no person can threaten an advocate to disclose the communication done
between him and his client. 

Right to Advertise

One of the most controversial issues relating to profession of advocates is

whether a lawyer should be allowed to advertise their services and solicit
clients. While on the one hand advertising is necessary for providing
information to the public on the legal services available, thereby enhancing
access to justice, on the other hand, it sometimes involves practices which give
rise to mistrust and discredit the legal profession. Traditionally, lawyers have
been prohibited from soliciting, advertising and such prohibitions have been
part of the professional ethics of the legal profession. 5The Supreme Court of
India in Bar Council of Maharashtra v. M.V. Dabholkar6 ruled that law is not a
trade, not briefs, not merchandise and so the leaven of commercial competition
or procurement should not vulgarise the legal profession. The Bar Council of
India Rules framed under section 49(1)(c) of the Advocates Act, 1961, prohibit
all forms of advertising or solicitation of work. Advocate is deemed to be the
responsible person in society. The provisions relating to rights of advocates
have been described under Sections 29, 30, 32, 33 and 34 of Advocates Act,
1961. Section 49(1) (ah) of the Advocates Act, 1961, 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 practise as an advocate in a court. In the exercise of the power the
Bar Council of India has made certain rules. Chapter III of Part VI of the Rules

of Bar Council of India contains several rules dealing with the conditions for
right to practise.

The objective of The All India Bar Examination (AIBE) is to examine an

advocate's capability to practice the profession of law in India. The AIBE will
assess skills at a basic level, and is intended to set a minimum benchmark for
admission to the practice of law; it addresses a candidate’s analytical abilities

5
Raju Ramachandran, Professional Ethics: Changing Profession, Changing Ethics 107-108

(LexisNexis Butterworths Wadhwa, Nagpur, 2011).

6
(1976) 2 SCC 291.
and understanding basic knowledge of law. After passing the examination
candidate will be awarded "Certificate of Practice" by the Bar Council of India.
The Supreme Court in the case of Bar Council of India v. Bonnie FOI Law
College and Ors7 had delved into the issue relating to general legal education
reform to improve standards. However, the legality of the exam has not been
tested by the Courts till now. In re Lilly Isabel Thomas8 a Constitution Bench of
the Supreme Court and a Three Judge Bench of the Supreme Court in Bar
Council of Uttar Pradesh v State of UP9 held that the right to practice the
profession of law under the 1961, Act is relatable only to the advocates
practicing the profession of law before Courts or Tribunals or any other
authority. Yet another Constitution Bench of the Supreme Court in ON
Mohindroo v Bar Council of Delhi10 held that since all those who have been
enrolled have a right to practice in the Supreme Court and the High Court, the
1961, Act is a piece of legislation which deals with persons entitled to practice
before the Supreme Court and the High Courts. Therefore the 1961, Act must be
held to fall within entries 77 and 78 of List I of the Constitution of India.

As the power of legislation relating to those entitled to practice in the Supreme

Court and the High Court is carved out from the general power to legislate in
relation to legal and other professions in entry 26 of List III of the Constitution
of India. the responsible person in society. The provisions relating to rights of
advocates have been described under Sections 29, 30, 32, 33 and 34 of
Advocates Act, 1961. Section 49(1) (ah) of the Advocates Act, 1961, 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 practise as an advocate in a court. In the
exercise of the power the Bar Council of India has made certain rules. Chapter
III of Part VI of the Rules of Bar Council of India contains several rules dealing
with the conditions for right to practise.

Conclusion

7
2018 (1) SCC(L&S) 231.
8
AIR 1964, SC 855.
9
(1973) 1 SCC 261.
10
AIR 1968 SC 888.
Every court has their rules which serve as a guideline for procedure
implementation and these rules also talks about contending case without an
advocate. Rules are regulatory provisions and do not impose a prohibition on
the practice of law. The Advocates Act 1961 has given many rights of an
advocate and also some duties related to his client and court while dealing with
the case. The act also protects the advocate from the arrest in a civil case so that
justice should be provided to his client while he is representing his client in the
court proceedings. The rights of an advocate are to protect justice because
advocates are the ones who help the court to serve justice in civil and criminal
cases. But if any advocate misuses the powers given by the law, the act also
specifies the punishments for the same.