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Restriction On Other Employments

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1K views5 pages

Restriction On Other Employments

Uploaded by

Vaibhavi Kathare
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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RESTRICTION ON OTHER EMPLOYMENTS (SECTION VII

OF BAR COUNCIL OF
INDIA RULES)
1) Rule 47 restricts an advocate to personally engage in any business although he may
be allowed to act as a sleeping partner in a firm engaged in such business which in the
opinion of the appropriate State Bar Council is not inconsistent with the dignity of the
legal profession.

2) Rule 48 restricts an advocate to be a Managing Director or a Secretary of any


Company although he may be a Director or Chairman of the Board of Directors of a
Company withoutduties of executive nature.

3) Rule 49 restricts an advocate to be a full-time salaried employee of any person,


government, firm, corporation or concern, so long as he continues to practise. Upon
taking up any such employment, he is duty bound to intimate the fact to the Bar
Council on whose roll his name appears and thereupon he would be ceased to practise
as an advocate so long as he continues in such employment.

It also restricts a Law Officer who is a whole time employee drawing regular salary
whoappears on behalf of their employers to appear as advocates.

4) Rule 50 restricts an advocate to personally participate in the management of a family


business which he has inherited, or succeeded by survivorship although he may
continue to hold a share with others in any such business.

5) Rule 51 permits an advocate to 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

6) Rule 52 permits 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.8 Violation of these rules is
treated as misconduct and made punishable under Section 35 of the Advocates Act,
1961.
The Supreme Court while upholding the constitutional validity of the said rules in the case of
Dr. Haniraj L. Chulani v. Bar Council of Maharashtra & Goa9 , held that the rules
restricting a practicing advocate to take up any other profession, carry out any business
simultaneously are not violative of Article 14, Article 19(1)(g), Article 21 of the Constitution
of India. The court further held that the legal profession requires full time and dedication and
an advocate cannot be allowed to ride on two horses simultaneously while quoting “law is a
jealous mistress that calls for undivided loyalty and unflinching attention from her devotees”.
The court also held that allowing an advocate to take up another job simultaneously will
compromise on the nobility of legal profession and the quality of legal services. The court
explained that when a person is able to earn livelihood through other profession and merely
wants to earn an additional income through legal profession, then such employment
restrictions placed on practicing advocates is not violative of Article 21.

Restrictions on advertising
Legal advertising and solicitation of work : meaning
Legal advertising means advertising of legal services provided by a lawyer or a law firm in
order to attract potential clients. Such advertising may be done through various mediums
including print, television and online advertising, etc.

To „solicit‟ simply means to ask for in a persuasive manner or approach. Solicitation refers to
any communication initiated by or on behalf of a lawyer directed towards a specific person
with the knowledge that such person is in need of legal services in a particular matter offering
to provide legal services for that matter.

Basis for bar against legal advertising and solicitation of work


Legal advertising is prohibited for the simple reason that law is not a trade. It is understood
that advertising by lawyers can manipulate or mislead people and lower the dignity of the
legal profession. The ban against advertising and solicitation of work in India owes its origin
to British Law. The Solicitors Act of 1933 empowered the Law Society Council to
promulgate rules regulating the professional practice, conduct, and discipline of
solicitors. Rule 1 of the Solicitor‟s Practice Rules 1936 provided for a comprehensive ban on
solicitor advertising prohibiting three types of behavior: touting, advertising, and unfairly
attracting business.

Reasons behind prohibition of legal advertising and solicitation of work


 To avoid commercialization of the legal profession.

 To uphold the integrity of the legal profession and maintain quality services.
 The misleading nature of advertisements may shake the faith of people in the legal
profession.

 Allowing advertising will lead to unhealthy competition between lawyers who might
resort to unfair practices to gain more clients thereby focussing less on the quality of
services provided.

Provisions regarding bar against solicitation and advertising


Section 49 of the Advocates Act 1961
Section 49(1)(c) of the Advocates Act 1961 provides for the power of the Bar Council of
India to make rules prescribing the standards of professional conduct and etiquette to be
observed by advocates.

Chapter II of Part VI of the Bar Council of India Rules


The Bar Council of India, while exercising the rulemaking power conferred upon it by
Section 49(1)(c) of the Advocates Act 1961, has framed several rules under Chapter II of Part
VI of the BCI Rules laying down the „Standards of Professional Conduct and Etiquette‟.

Rule 36 as provided in Section IV (Chapter II of Part VI of BCI Rules) provides for the bar
against advertising and soliciting work:

1. It provides that an advocate shall not solicit work or advertise by direct or indirect
means. Such solicitation and advertisement include circulars, advertisements, touts,
personal communications, or interviews not warranted by personal relations.

2. Even furnishing newspaper comments or producing photographs to be published in


connection with cases in which the advocate was engaged or concerned is also
prohibited.

3. The sign-board or name-plate of an advocate should be of a reasonable size.

4. The sign-board or name-plate of an advocate or his stationery should not indicate that:

 he is or has been a President/Member of a Bar Council or any Association;

 he has been associated with any person or organization or any particular matter;

 he specializes in any type of work;

 he has been a judge or an Advocate General.

Furnishing of certain information allowed : 2008


Amendment
Rule 36 of Chapter II of Part VI of Bar Council Rules was amended by the Bar Council of
India in 2008 to provide for some relaxation. It allowed the furnishing of website information
by the advocates under intimation to and as approved by the Bar Council of India. However,
only the particulars as approved by the BCI are to be provided. Any additional input would
be deemed as a violation of Rule 36 and the advocate would be liable to punishment for
misconduct under Section 35 of the Advocates Act 1961.

The Schedule attached to Rule 36 provides for furnishing of the following particulars:

 Name, address, telephone numbers, e-mail id;

 Enrolment number, date of enrolment;

 Name of state bar council where originally enrolled;

 Name of state bar council on whose roll name stands currently;

 Name of the bar association of which the advocate is a member;

 Professional and academic qualifications;

 Areas of practice.

Hence, the Amendment allowed the furnishing of certain information by advocates on the
internet.

Punishment : Section 35 of the Advocates Act, 1961


An advocate who commits a breach of Rule 36 providing for the bar against advertising and
solicitation of work is liable to be proceeded against for professional misconduct.

Section 35(1) of the Advocates Act, 1961 provides for the power of the State Bar Council to
punish an advocate for „professional or other misconduct‟. It provides that, where on receipt
of a complaint or otherwise, the State Bar Council has reason to believe that any advocate on
its roll has been guilty of professional or other misconduct, it shall refer the case for disposal
to its disciplinary committee.

V.B. Joshi v. Union of India (2008)


In this case, the petitioner had challenged Rule 36 of BCI rules (Part VI, Chapter II). The
Supreme Court directed an amendment to be made in Rule 36 to allow the advocates to
advertise their services on the internet. The amendment was made in 2008 allowing advocates
to advertise certain information on their websites including name, address, telephone
numbers and email id, enrolment number, date of enrolment, name of State Bar Council
where originally enrolled, name of the State Bar Council on whose roll name stands
currently and name of the Bar Association of which the advocate is a member, professional
qualifications and academic qualifications and areas of practice.

Bar Council of Maharashtra v. M. V. Dabholkar (1975)


In this case, the Supreme Court ruled that “Law is no trade, briefs no merchandise and so the
leaven of commercial competition or procurement should not vulgarise the legal
profession”.

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