CHAPTER I-

ENROLMENT OF ADVOCATES- SECTION 16 TO 28

Eligible persons are admitted as advocates on the rolls of the State Bar Councils. The Advocates
Act, 1961 empowers State Bar Councils to frame their own rules regarding enrolment of advocates.
Contact details for individual Councils can be found here.

The Council’s Enrolment Committee may scrutinise a candidate’s application. Those admitted as
advocates by any State Bar Council are eligible for a Certificate of Enrolment.

All applicants for enrolment as advocates are required under Section 24 (1) (f) of the Advocates
Act, 1961 to pay an enrolment fee of Rs.600/- (Rupees Six hundred only) to the respective State Bar
Council and Rs.150/- (Rupees One hundred Fifty only) to the Bar Council of India. These payments
should be made by DD.1

CHAPTER II-

CONDUCT OF ADVOCATES-U/S 35 TO 44of ADVOCATES ACT

As DINKER in his Legal Ethics observes,

“A lawyer will be constantly confronted with conflicting loyalties which he may have to
reconcile. He is answerable not only to his client whose interests it is his primary duty to serve and
promote, but also to the Court of which he is an officer and further to his colleagues at the Bar and
to the traditions of the Profession.”

Whenever interest and duty come into conflict, duty ought to prevail. In the life of an advocate
difficult situations do frequently arise; for instance, fill in his adversary in a subsequent suit, the client
may not engage you but his opponent must be willing to do so with motives good or bad. The opponent
may try to get information from you relating to previous case, which an advocate ought not to do. All the
communications made, between client and his lawyer is privileged and such privilege is perpetual. The
adversary of your previous client may offer you engagement in a second and third case against a third
party and may try to create intimacy with you. In such situations one will rarely err if he “keeps in his
mind a high sense of honour and conscientious desire to follow right.”

1
Section 16 to 28 of the Advocates Act 1961.
1 Salient Features of Advocates Act, 1961
 Our Constitution enshrines that the right to consult and to be defended by a lawyer of one’s choice
is a fundamental right of a person accused of an offence; and so, it is duty of a lawyer to defend such
person. Because of this constitutional injunction, there is absolutely no conflict between interest and
duty in criminal cases. However, some difficult may arise in case where the accused confesses his guilt
to the lawyer. The answer may be elucidated in the following words:

“He had expressed in England and South African lawyers were consciously or unconsciously let
into untruth for the sake of their clients. He vehemently opposed an English lawyer when he advocated
that the duty of the lawyer was to defend a client even if he knew that he was guilty. Gandhi on the
other hand was emphatic that the duty of a lawyer was to place correct facts before the judge and to
help him to arrive at the truth, and not to prove the guilty as innocent.”

In Oceanic Life Ltd v HIH Casualty & General Insurance Ltd , Austin J said the following:

“In the realm of conflicts of interest and conflicts of duty, the lawyer's duty to the court may not
be much different from his or her fiduciary duties to former and present clients. However, the duty to
the court tends to be expressed in such a way as to emphasise the public interest in preserving
confidence in the administration of justice and therefore in the appearance as well as the reality of
independence, and the court's practical approach to its supervisory discretions...”2

Lord Cozens-Hardy MR in Moody v Cox said that:

'A man may have a duty on one side and an interest on another. A solicitor who puts himself in
that position takes upon himself a grievous responsibility. A solicitor may have a duty on one side and a
duty on the other, namely, a duty to his client as solicitor on the one side and a duty to his beneficiaries
on the other; but if he chooses to put himself in that position it does not lie in his mouth to say to the
client "I have not discharged that which the law says is my duty towards you, my client, because I owe a
duty to the beneficiaries on the other side." The answer is that if a solicitor involves himself in that
dilemma it is his own fault. He ought before putting himself in that position to inform the client of his
conflicting duties, and either obtain from that client an agreement that he should not perform his full
duties of disclosure or say-which would be much better-"I cannot accept this business." I think it would
be the worst thing to say that a solicitor can escape from the obligations, imposed upon him as solicitor,
of disclosure if he can prove that it is not a case of duty on one side and of interest on the other, but a
case of duty on both sides and therefore impossible to perform.'

2
Oceanic Life Ltd v HIH Casualty & General Insurance Ltd
2 Salient Features of Advocates Act, 1961
 The thrust of this passage is that if a solicitor puts himself in a position of having two
irreconcilable duties it is his own fault. If he has a personal financial interest which conflicts with his
duty, he is even more obviously at fault. It was later on quoted in Hilton v. Barker

Further the interest of the parties is to seek a favourable decision and their duty is limited to
complying with the rules of the court, giving truthful testimony and refraining from taking positive steps
to deceive the court but the interest and duty of the advocate is much more complex, because it involves
divided loyalties.

It was held in the case of Abse and others v Smith and another that “A lawyer wishes to promote
his client's interests and it is his duty to do so by all legitimate means. But he also has an interest in the
proper administration of justice to which his profession is dedicated and he owes a duty to the court to
assist in ensuring that this is achieved. The potential for conflict between these interests and duties is
very considerable yet the public interest in the administration of justice requires that they be resolved in
accordance with established professional rules and conventions and that the judges shall be in a position
to assume that they are being so resolved. There is thus an overriding public interest in the maintenance
amongst advocates not only of a general standard of probity, but of a high professional standard,
involving a skilled appreciation of how conflicts of duty are to be resolved.”

Dubin J.A. remarked in Re Regina and Speid, at p. 21:

“We would have thought it axiomatic that no client has a right to retain counsel if that counsel, by
accepting the brief, puts himself in a position of having a conflict of interest between his new client and
a former one.”

What If a litigant could achieve an undeserved tactical advantage over the opposing party by
bringing a disqualification motion or seeking other "ethical" relief using “the integrity of the
administration of justice” or “conflict of interest” merely as a flag of convenience? Will the fairness of
the process would be undermined?

A similar situation arose in, where the accused was charged with the first degree murder of his
mother. The Crown sought to remove defence counsel on the basis that he had previously acted for the
father of the accused in an unrelated matrimonial matter, and might in future have to cross-examine the
father at the son's trial for murder.3

3
R. v. Parsons
3 Salient Features of Advocates Act, 1961
 The accused and his father both obtained independent legal advice, after full disclosure of the
relevant facts, and waived any conflict. The father also waived solicitor-client privilege. The court was
satisfied there was no issue of confidential information. On these facts, the court concluded that "public
confidence in the criminal justice system might well be undermined by interfering with the accuser’s
selection of the counsel of his choice".

ADVOCACY: PROFESSION OR BUSINESS

In a case, it was stated that:

“Members of bar are not a guild of candle makers or butcher’s association. They are a class
separate.”

Then there is the theory of Professional Paradigm Shift as given by Russell G. Pierce, which states
that the profession should also be treated as a trade as there is no harm to erase the line between
profession and trade.4

Soli J. Sorabjee states his views on this point in Lawyers as Professionals . He states that at present
the public image of lawyers is far from flattering. They are seen as fortune seekers rather than seeking to
serve, a selfish class, who, on account of the special knowledge and expertise, provide services on such
terms as they please. In short, the profession of law is regarded as a money making racket. Today people
are apt to agree with Dean Swift's description of lawyers as,

"a society of men bred up from their youth in the art of proving by words multiplied for the purpose, that
white is black and black is white according as they are paid." No longer is the profession of law regarded
as a noble one.

He further goes on to say that what are the reasons for this said decline? The main reason is that
lawyers, as also other professionals like doctors for example, have forgotten what is entailed in a
profession and their proper role in society.

It is forgotten that the essential difference between business and a profession is that while the
chief end of business is personal gain, the main goal of profession is professional service. Of late
lawyers seem to operate on the law of demand and supply and the forces of commercialism have

4
Bar Council of Maharashtra v. M. V. Dabholkar AIR 1951 SC 118.
4 Salient Features of Advocates Act, 1961
overtaken the profession by and large. The idea that professionals are for the people and the people are
not for the professionals sound like a strange and alien doctrine.

Today the fees charged by some lawyers are staggering. He later says that:
“I was told that a middle rank lawyer charged Rs. 60,000/- for an application for an adjournment in
the Bombay high Court. The fees charged by some seniors in the SLP's in the Supreme Court are
enormous. Lawyers charge fee even when they have not put in an appearance and it is a disgusting
sight to see some lawyers plead with the judge to record their appearance to enable them to collect
fees from their absent clients.”

The legal profession has a social dimension. And the lawyer has the social role to play in society.
The social dimension becomes a very relevant issue when we look at the manner in which legal services
remain by and large inaccessible to the common man, particular in a poor country like us.

CONFLICTING DUTIES OF A LAWYER

Imagine you are a client of a lawyer and that you have been so, intermittently, for the last 20
years. The lawyer has prepared your conveyancing deeds and your will. Your certificates of title may be
stored in the lawyer's office. The lawyer may have a power of attorney in relation to your personal
affairs. You may have been a party to litigation and the lawyer counselled you, dealt with your opponent
and appeared on your behalf. The lawyer has and continues to serve your interests faithfully. Now
imagine that same lawyer serves a letter of demand on you in relation to a matter in which he or she had
formerly acted on your behalf.

FIDUCIARY RELATIONSHIP

Such conduct is generally seen as inappropriate and unethical. Why? The answer resides in the
nature of the relationship between lawyer and client. It is intimate -- the client reposes trust and
confidence in the lawyer. Indeed, the lawyer is in a fiduciary relationship with the client. More than that,
of all the fiduciary relationships known to the law, the lawyer-client relationship is one of the most
recognizable. The common law system of justice would not function without it. The public derives, in
part, its confidence in the administration of justice from the fidelity of a lawyer to his or her client. It is
for this reason that courts have required high standards of propriety from a lawyer.

5 Salient Features of Advocates Act, 1961

 In Alexander v Perpetual Trustees WA Ltd , Davies AJA described conflicts of duty as 'insidious
thing[s]'. They cloud the mind. Aspects of the lawyer's duty of care, which ought to be seen clearly and
distinctly, are seen in a 'hazy light'.

Lawyers have a fiduciary obligation to avoid 'conflicts of duty'. Conflicts arise when a lawyer
who owes a duty to one client undertakes a similar duty towards another client either simultaneously
('present client conflict') or successively ('former client conflict')

DUTY OF LOYALTY

It’s relevant here to quote Trial of Queen Caroline (1821), by J. Nightingale, vol. II, The
Defence, Part 1, at p. 8 wherein a declaration was made of an advocate's duty of loyalty by Henry
Brougham, later Lord Chancellor, in his defence of Queen Caroline against the charge of adultery
brought against her by her husband, King George IV. He thus addressed the House of Lords:5

“An advocate, in the discharge of his duty, knows but one person in all the world, and that person
is his client. To save that client by all means and expedients, and at all hazards and costs to other
persons, and, among them, to himself, is his first and only duty; and in performing this duty he must not
regard the alarm, the torments, the destruction which he may bring upon others. Separating the duty of a
patriot from that of an advocate, he must go on reckless of consequences, though it should be his
unhappy fate to involve his country in confusion.”

“While the Court is most often preoccupied with uses and abuses of confidential information in
cases where it is sought to disqualify a lawyer from further acting in a matter, the duty of loyalty to
current clients includes a much broader principle of avoidance of conflicts of interest, in which
confidential information may or may not play a role” as was quoted in various cases such as Montreal
Trust Co. of Canada v. Basinview Village Ltd.; Jans v. Coulter (G.H.) Co. ; Stewart v. Canadian
Broadcasting Corp. Black’s Law Dictionary defines Conflict of Interests as

“A real or seeming incompatibility between one’s private interests and one’s public or fiduciary
duties. A real or seeming incompatibility between the interests of two of a lawyer’s clients, such that the
lawyer is disqualified from representing both clients if the dual representation adversely affects either
client or if the clients do not consent.”

5
Enerchem Ship Management Inc. v. Coastal Canada
6 Salient Features of Advocates Act, 1961
 As early as 1280, a London Ordinance forbade attorneys from representing adverse parties in the
same action and from dropping one client to represent another in the same case.

CONFLICT BETWEEN INTEREST AND DUTY – STATUTORY ANALYSIS

DUTY TO THE COURT

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.

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 advocates 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 mouth-piece 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.

DUTY TO CLIENT

RULE – 22 An advocate shall not, directly or indirectly, bid for or purchase, either in his own
name or in any other name, for his own benefit or for the benefit of any other person, any property sold
in the execution of a decree or order in any suit, appeal or other proceeding in which he was in any way
professionally engaged. This prohibition, however, does not prevent an advocate from bidding for or
purchasing for his client any property, which his client may, himself legally bid for or purchase,
provided the Advocate is expressly authorized in writing in this behalf.

DUTY TO COLLEAGUES

RULE – 33 An advocate who has, at any time, advised in connection with the institution of a
suit, appeal or other matter or has drawn pleadings, or acted for a party, shall not act, appear or plead for
the opposite party.

RULE – 36 An advocate shall not solicit work or advertise, either directly or indirectly, whether
by circulars, advertisements, touts, personal communications, interviews not warranted by personal

7 Salient Features of Advocates Act, 1961

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. His signboard or nameplate should
be of a reasonable size. The sign-board or name-plate or stationery should not indicate that he is or has
been President or Member of a Bar Council or of any Association or that he has been associated with
any person or organization or with any particular cause or matter or that he specialises in any particular
type of worker or that he has been a Judge or an Advocate General.

RULE – 43 An Advocate who has been convicted of an offence mentioned under Section 24A of
the Advocates Act or has been declared insolvent or has taken full time service or part time service or
engages in business or any avocation inconsistent with his practising as an advocate or has incurred any
disqualification mentioned in the advocates Act or the rules made there under, shall send a declaration to
that effect to the respective State Bar Council in which the advocate is enrolled, within ninety days from
the date of such disqualification. If the advocate does not file the said declaration or fails to show
sufficient cause for not filing such declaration provided therefore, the Committee constituted by the
State Bar Council under rule 42 may pass orders suspending the right of the advocate to practice.

CONFLICT BETWEEN INTEREST AND DUTY – JUDICIAL RESPONSE

REPRESENTING CONFLICTING INTEREST

A case of conflict is where a solicitor acts for both parties to a transaction without disclosing this
to one of them or where having disclosed it he fails, unbeknown to one party, to disclose to that party
material facts relative to the other party of which he is aware.

REASON FOR THE CONFLICT OF INTEREST

8 Salient Features of Advocates Act, 1961

 “The relationship between a solicitor and his client is one in which the client reposes trust and
confidence in the solicitor. It is a fiduciary relationship. But not every breach of duty by a fiduciary is a
breach of fiduciary duty. If a solicitor is careless in investigating a title or drafting a lease, he may be
liable to pay damages for breach of his professional duty, but that is not a breach of a fiduciary duty of
loyalty; it is simply the breach of a duty of care” as was said by Millett LJ in Bristol and West Building
Society v Mothew (t/a Stapley & Co).

“A solicitor's duty of single-minded loyalty to his client’s interest, and his duty to respect his
client’s confidences, does have their roots in the fiduciary nature of the solicitor-client relationship. But
they may have to be moulded and informed by the terms of the contractual relationship” as was said by
Mason J in Hospital Products Ltd v United States Surgical Corp. The solicitor's duty of single-minded
loyalty to his client very frequently makes it professionally improper and a breach of his duty to act for
two clients with conflicting interests in the transaction in hand.

INDIAN CASE LAWS

In the absence of any specific provision regarding conflict between interest and duties of a
lawyer, the subject can only be discussed by judicial response.

In the case of H.V. Panchaksharappa v. K.G. Eshwar6 it was stated that “Before parting with this
appeal, we would, however, like to observe that respondent ought to have, according to the best
traditions of the Bar, disclosed to the appellant that he had been retained by the defendant in O.S. No.
119/1986. There may not have been any clash of interest but since the defendant in O.S. No. 237/1986
was his client as a plaintiff in O.S. No. 119/1986, the information should have been disclosed to the
appellant. It is just plain and simple obligation of a counsel to disclose such facts to his client. Though,
withholding of the information may not amount to professional misconduct, nonetheless the action does
not speak well of the conduct of the respondent. On this account we leave the parties to bear their own
costs in this appeal.”

Speaking generally it is quite clear that a professional gentleman should as far as possible stick to
the side who first engaged him. It might be a very good practice if when gentlemen were offered
instructions in any connected case, that they should at least in the first place inform their first client .

6
AIR 1929 Bom. 335.
9 Salient Features of Advocates Act, 1961
 In Emperor v. Rajni Kanta Ghose7 , A division bench of the Calcutta High Court held that a legal
practitioner appearing on both sides was guilty of professional misconduct. The Court further held that:

“As this has happened once and may happen again, it is desirable to state the well-settled
general rule that a legal practitioner cannot represent conflicting interests or undertake the discharge of
inconsistent duties. when he has once been retained and received the confidence of a client, he cannot
accept a retainer from or enter the service of those whose interests are adverse to his client in the same
controversy or in a matter so closely allied thereto as to be in effect a part thereof.

The rule is rigid and is designed not only to prevent the dishonest practitioner from fraudulent
conduct, but as well to preclude the honest practitioner from putting himself in a position where he may
be required to choose between conflicting interests.”

The full Bench of the Lahore High Court in In the matter of Ramalal Anand held that change of
sides as such by counsel is not forbidden by law; change of sides is forbidden if there are confidential
communications from one side which may be made use of when the lawyer represents the other party. It
is forbidden if the lawyer obtains his own discharge and obtains his own discharge and acts for the
opposite party; it is also forbidden if the lawyer accepts a retainer from the opposite party without first
offering his services to his original client.

The principal underlying the ban, prohibiting an Advocate from appearing from the opposite
party against his former client is that there is the likely hood of conflict of interest between the duties
and interest of the Lawyer and also possibility of misuse of the instructions given to him by his former
client. It is not a question whether the misuse has been actually made; the mere possibility of such
misuse in a matter, which is connected with the previous litigation, is sufficient

In order to prevent an Advocate from appearing for the opposite party, what one has to see is
whether in the circumstances of a particular, having regard to the steps taken in the litigation of criminal
proceedings, it can be reasonably inferred that confidential information could have been imparted, In the
case of Earl Cholmondeley v. Lord Clinton. The Lord Chancellor said:

“If there is any ground for any application, either as a motion in the cause or upon the general
jurisdiction , it must be furnished by a general principal, not the particular circumstances of the case;
otherwise the court must try every such case on its particular circumstances and it cannot be discussed
without a disclosure from the solicitor of all he knows.”
7
AIR 1934 All. 1067.
10 Salient Features of Advocates Act, 1961
 It has been reiterated in Halsbury’s Laws of England

“A barrister must decline to accept instructions which would render it difficult to maintain his
professional independence or would embarrass him. He ought not to appear for two clients whose
interest may conflict, or if he is in possession of confidential information relating to the opposite party,
or if he is a witness to a material fact.”

In Tajendra Chandra v. Tajendra Lal , a special bench of the Rangoon High Court observed that:

“it is clear that an advocate or pleader who has appeared on behalf of one party in a suit ought
not to allow himself to be placed in the position in which there might become suspicion, whether well or
ill founded that his knowledge of his client’s case would be used by him on a subsequent occasion in
appearing for another party and against his own client.”

It is settled general rule that a legal practitioner cannot represent conflicting interests or
undertake the discharge of inconsistent duties. When he has once been retained and has received the
confidence of a client, he cannot accept a retainer from or enter the service of those whose interests are
adverse to his client in the same controversy or in a matter so closely allied thereto as to be in effect a
part thereof. The rule is right and is designed not only to prevent the dishonest practitioner from
fraudulent conduct, but as well to preclude the honest practitioner from putting himself in a position
where he may be required to choose between conflicting duties or be led to an attempt to reconcile
conflicting interests, rather than to enforce to their full extent the rights or interest which he should alone
represent as was held in the case of Day v. Ponsonby .

But where a legal practitioner did not actually appear for both sides but merely attempted to
make the best of the bargain by issuing improper notice to his former client threatening appearance on
behalf of the main party knowing fully well that he had rendered himself incapable of accepting brief, a
lenient view was taken though the court held that the practitioner was guilty of grossly improper conduct
which was not in consonance with the dignity of the profession as was held in the case of Ram Bharosa
Kular Bhandari Kalai v. Surndra Nath Thakur8

A counsel cannot represent clients with conflicting interests. Thus it has been held that counsel
cannot represent two different creditors whose interests are know to conflict as was held in the case of
The Government Pleader, High Court, Bombay v. Bhagabhai Dayalbhai

8
AIR 1976 SC 242.
11 Salient Features of Advocates Act, 1961
 The Patna High Court in Emperor v. Bir Kishore Rai held that the conduct of a pleader in acting
for both sides in the same case is grossly improper conduct. The said case was under the Legal
Practitioners Act.

The Allahabad High Court in the case of Saharanpur Grain Chamber Limited v. Maharaj Singh
held that when an advocate was consulted by one party is perfectly free to accept the brief against him, if
he has not received any information of a confidential nature which will be of use against the party in
litigation.

The law is not that once an advocate is consulted by one party, he may not accept the brief for
the other party, no matter what may have been the nature of information conveyed to him during the
course of consultation. No doubt the litigants are entitled to protection against unscrupulous members of
the legal members of the legal profession. But the members of the legal profession are equally entitled to
protection against unscrupulous litigations and if the law were that once a counsel was consulted by one
party, he could not under nay circumstances accept a brief against him, the position of the legal
profession will be perilous indeed. The onus of proving that confidential information was conveyed lies
heavily upon the applicant.

In another case of Emperor v. Shanti Narayan Manocha , where the pleader drafted the plaint
gratuitously as friend and no confidential information was imparted by the plaintiff, the pleader
subsequently accepted brief of the defendant. The pleader was not held guilty of misconduct.

An advocate accepted the brief for the plaintiff and appeared at the initial stage. Subsequently he
reported no instructions and then appeared as Govt. Pleader on behalf of State which was added as a
defendant, in the suit. The advocate’s conduct amounts to misconduct in the case of In the matter of Sri
Gurubasappa

ADVOCATE HANDING OVER BRIEF TO ANOTHER WITHOUT

CLIENT’S CONSENT

A lawyer when entrusted with a brief is expected to follow the norms of professional ethics and
try to protect the interests of his clients, in relation to whom he occupies a position of trust. It is not in
accordance with professional etiquette for an advocate to hand over his brief to another to take his place
at a hearing (either for the whole or part of the hearing) and conduct the case as if the latter had himself
being briefed, unless the client consents to this course being taken.

12 Salient Features of Advocates Act, 1961

 It was held in V. C. Rangaburai v. D. Gopalan9 , it was held that “Counsel’s paramount duty is to
the client: accordingly where he forms an opinion that a conflict of interest exists, his duty is to advise
the client that he should engage some other lawyer. It is unprofessional to represent conflicting interests,
except be express consent given by all concerned after a full disclosure of the facts.”

TAKING MONEY FROM THE CLIENT TO BRIBE ANOTHER

The Preamble to Chapter II of Part VI of the Rules of the Bar Council of India lays down that an
advocate shall at all times comport himself in a manner befitting his status as an officer of the Court,
privileged member of the community and a gentleman. Rule 4 of this Chapter provides that an advocate
shall use his best efforts to restrain and prevent his client from resorting to sharp and unfair trade
practices etc. Now a conflict ensues when a lawyer fails to perform his duty due to certain interests. In
the case of Chandra Shekhar Soni v. Bar Council of Rajasthan , the appellant had procured the brief of
the complainant in another case on a fee of Rs. 300/- on the representation that he would secure a
favourable report from the Radiologist showing that there was a fracture of the skull. Therefore conflict
arose because of this monetary interest. It was held that: -

“Nothing should be done by any member of the legal fraternity which might tend to lessen in any
degree the confidence of the public in the fidelity, honesty and integrity of the profession. The State Bar
Council gave the appellant the benefit of doubt on the first charge that he changed sides in a criminal
case, holding that though such conduct on his part was unprofessional, it was not tantamount to
professional misconduct. The Disciplinary Committee of the Bar Council of India rightly observes that it
failed to appreciate the distinction drawn by the Slate Bar Council as his act in accepting the brief for the
accused after having appeared for the complainant was clearly contrary to r. 33 of the Bar Council of
India Rules, 1975. We concur with the Disciplinary Committee. It is not in accordance with professional
etiquette for an advocate while retained by one party to accept the brief of the other. It is unprofessional
to represent conflicting interests except by express consent given by all concerned after a full disclosure
of the facts. The appellant would not have appeared for the other side except with the permission of the
learned Magistrate. Counsel's paramount duty is to the client, and where he finds that there is conflict of
interests, he should refrain from doing anything, which would harm any interests of his client. A lawyer
when entrusted with a brief is expected to follow the norms of professional ethics and try to protect the
interests of his client in relation to whom he occupies a position of trust. The State Bar Council however
found the appellant guilty of the second charge viz. that he had procured the brief of the complainant in

9
AIR 1960 SC 554
13 Salient Features of Advocates Act, 1961
another case on a fee of Rs. 300/- on the representation that he would secure a favourable report from the
Radiologist showing that there was a fracture of the skull. The appellant was guilty of reprehensible
conduct. The preamble to Chapter II Part VI of the Rules lays down that an advocate shall at all times,
comfort himself in a manner befitting his status as an officer of the Court, privileged member of the
community and a gentleman. R. 4 of this Chapter provides that an advocate shall use his best effort to
restrain and prevent his client from resorting to sharp and unfair practices etc. There is a long catena of
decisions laying down that offering of bribe or giving bribe or taking money from the client for the
purpose of giving bribe amounts to grave professional misconduct.”

The lapse on the part of the appellant was perhaps due to the fact that in the struggle for
existence he had to resort to such malpractices and thus to meet the ends of justice, he was suspended for
a period of 1 year.

ENGAGEMENT IN BUSINESS

Conflict between interest and duty arises when an advocate is engaged in has taken full time
service or part time service or engages in business or any avocation inconsistent with his practicing as an
advocate.

In the case of Bhupinder Kumar Sharma v. Bar Association, Pathankot10, the appellant was guilty
of professional misconduct as he was carrying on and continued his business and business activities even
after his enrolment as an Advocate. He was running a photocopier documentation centre, PCO/STD
booth in the court compound, Pathankot and he was proprietor/General Manager of the Punjab Coal
Briquettes, Pathankot, a private concern and he was pursuing the business/his interest in the said
business even on the date when his statement was recorded by the Disciplinary Committee. Thus it was
in direct conflict with Rule 43 of Bar Council of India.

Investment of savings by an advocate does not necessarily amount to engagement in money

lending business and thus there is no conflict between interest and duty. On the other hand, if
investments were made as a matter of regular business and for gain, it may constitute engagement in
money-lending business as was held in the case of In Re Bhairo Dutt Bhandari, an Advocate

In the case of Madhav M. Bhokarikar v. Ganesh M. Bhokarikar 11 (Dead) through Lrs. it was held
that the appellant was an advocate duly enrolled under the provisions or the Advocates Act, 1961.
10
AIR 1996 SC 1708.
11
AIR 1976 SC 242
14 Salient Features of Advocates Act, 1961
Proceedings were initiated against the appellant by the Disciplinary Committee of the State Bar Council
on a complaint made by the respondent accusing the appellant of having taken dealership of a retail
outlet of petroleum products.

On enquiry, the Disciplinary Committee of the State Bar Council found the charge proved.
According to the State Bar Council, the appellant, though a practising advocate applied for the
dealership and subsequently secured a letter of intent in his favour. Thereafter, the petrol pump was also
started. The complaint was made after about two years of the retail outlet having remained in operation.
During the pendency of the enquiry against the appellant, he entered into a partnership with his younger
brother wherein the mutual arrangement arrived at between the two partners was that the appellant
would remain a sleeping partner and his younger brother would actively and wholly look after the
business.

On 20.6.1998, the State Bar Council having held the appellant guilty of professional misconduct
directed his license to practice to be suspended for a period of one year under Clause (c) of Sub-section
(3) of Section 35 of the Act.

MAKING RECKLESS AND FALSE ALLEGATIONS

A counsel is to assist the Court in the administration of justice and is not a mere mouthpiece of
his client. If a counsel makes reckless and false allegations against a Magistrate in the application for
transfer on the instructions of his client without taking any steps to verify the truth of these allegations,
he is unfit to enjoy the privileges conferred upon him by law and must be visited with punishment as
was held in the case of Ganwar v. Emperor. Thus a conflict is created between the Preamble (which
imposes a duty on a lawyer) and the interest of the client and the lawyer.

WHERE LAWYER HAS A PERSONAL INTEREST

A fiduciary duty concerns disclosure of material facts in a situation where the fiduciary has either
a personal interest in the matter to which the facts are material or acts for another party who has such an
interest.

The classic case where the duty arises is where a solicitor acts for a client in a matter in which he
has a personal interest. In such a case there is an obligation on the solicitor to disclose his interest and, if

15 Salient Features of Advocates Act, 1961

he fails so to do, the transaction, however favorable it may be to the client, may be set aside at his
instance as was held in the case of Lewis v Hillman.

THROWING AWAY INTERESTS

Under the Legal Practitioners Act, Section 13 talked of throwing away interests of unimportant
client in favour of important client is deserving of censure. In the case of In the matter of N, a pleader , a
pleader N had two cases to attend on the same day. On the next day however N presented himself in the
former case and the latter case which was weak was conducted by another pleader and the accused was
convicted.

The Court held that “N may also have been influenced by the probability that in one case the
client had very little chance of acquittal and that the case could not be made any worse by his absence
and could not be made any better by his presence but however that may be the more difficult the case the
more important …”

The court further held that “in these circumstances he certainly on his own account of the
proceedings threw away the interests of an unimportant client in favour of the interests of an important
client and in so doing he has committed an offence which is deserving of the most serious censure. But a
censure in a case of this kind is an inadequate punishment and we feel it our duty to mark our opinion of
the gravity of the offence and also to protect the reputation of the profession itself. The reputation of the
profession is liable to be gravely affected by conduct of this kind. We therefore order that N be
suspended from practice for a period of two months from this date.”

FEES NOT PAID

In R. D. Saxena v. Balram Prasad Sharma12 , this Court has held that advocates have no lien over
the papers of their client. It is held that, at the most the advocate may resort to legal remedies for, unpaid
remuneration. It has been held that the right of the litigant to have the files returned to him is a
corresponding counterpart of the professional duty of the advocate and that dispute regarding fees would
be decided in an appropriate proceeding in Court.

In the case of New India Assurance Co. Ltd. v. A.K. Saxena 13 it was held that Respondent was an
advocate on panel of the appellants - Some dispute arose between the appellants and the respondent as a
12
AIR 1995 SC 691
13
AIR 1978 SC 969; 1978 LabIC 778
16 Salient Features of Advocates Act, 1961
result of which the respondent was asked to return all papers - The respondent was willing to return the
papers provided that all his fees were paid - Advocates have no lien over the papers of their clients and
at the most the advocate may resort to legal remedies for, unpaid remuneration - The right of the litigant
to have the files returned to him is a corresponding counterpart of the professional duty of the advocate
and that dispute regarding fees would for fees is to be decided in an appropriate proceeding in Court

NOT TO BE BIAS

In the case of Satyendra Narain Singh and Ors. v. Ram Nath Singh and Ors. It was held that there
are a few black sheep in every profession, nay, in every walk of life. But few as they are, they tarnish, by
their machinations, the fair name of age-old institutions. Therefore, persons who occupy high public
offices must take care to see that those who claim to be close to them are not allowed to exploit that
closeness, alleged or real. On the facts of this case, we will only say that Shri Sailendra Kumar Jha took
a correct decision in not appearing in the case any further and, with respect, his father Justice S.K. Jha
acted in the best traditions of the Judiciary in seeing that his son withdrew from the case. It is better that
in such circumstances the advocate son, rather than the Judge father, withdraws from the case.

De Grandpré, J. in his dissent14 in:

“The apprehension of bias must be a reasonable one, held by reasonable and right-minded
persons, applying themselves to the question and obtaining thereon the required information. In
the words of the Court of Appeal [at p 667], that test is "what would an informed person, viewing
the matter realistically and practically -- and having thought the matter through -- conclude.”

This approach was subsequently reiterated by the Supreme Court in R. v. R.D.S, and Wewaykum
Indian Band v. Canada , and followed in numerous lower court decisions including, most recently, the
Federal Court of Appeal in Canada (Attorney General) v. Fetherston15

The law in England is also the same and has been stated in the Halsbury’s Laws of England
“If counsel who has advised on or been engaged in a case is raised in the Bench, and the same case
comes before him, the practice is for him to refuse to adjudicate on it.”

14
Committee for Justice and Liberty et al. v. National Energy Bd. , pp. 394-395
15
433 U.S. 350
17 Salient Features of Advocates Act, 1961
 In Manak Lal v. Prem Chand16, a complaint alleging professional misconduct against Manak Lal,
an advocate of the Rajasthan High Court, was filed by Prem Chand. The bar council tribunal, appointed
by Chief Justice of the High Court to enquire in to the alleged misconduct of Manik Lal, consisted of the
Chairman and two other members. The Chairman had earlier represented Prem Chand in a case. He was,
however, a senior advocate and was once advocate general of the Rajasthan High Court. The Supreme
Court had no hesitation in assuming that the Chairman had no personal contact with this client and he
did not remember that he had appeared on his behalf in certain proceedings.

The court was thus satisfied that there was no “real likely hood bias”, but still it held that the
Chairman was disqualified on the ground “justice not only be done but must appear to be done to the
litigating public”.

CONFLICTS OF INTEREST BETWEEN CLAIMHOLDERS, LAWYERS AND

LITIGATION ENTREPRENEURS

All agreements that obstruct or affect administration of justice would be treated as invalid under
Section 2317. The agreement between a lawyer and his client is directly concerned with the
administration of justice. It is an agreement between a lawyer, who is an officer of the Court and who is
given privilege of audience by the Court, and his client, who is a suitor in the Court and has a cause to be
tried by the Court. If such an agreement tends either directly or indirectly to affect the administration of
justice or sully its course it would always be declared to be invalid.

Detachment and objectivity, which are the basis of the strength of the Bar, cannot be retained
when a lawyer agrees to share in the profits of litigation. An agreement between lawyer and client
making the payment of the lawyer’s fees conditional upon the success of the suit and giving the lawyer
an interest in the subject matter of the suit itself, would necessarily tend to undermine the status of
lawyer as a lawyer. Such an agreement has always been condemned as unworthy of the legal profession
and is opposed to a fundamental rule of professional ethics as was held in the case of In Re, K. L.
Gauba.

An undertaking on the part of the practitioner to bear expenses of litigation on the promise of the
litigant that a certain portion of the net profits of the litigation will be allowed to the former in case of
success is grossly improper under this section. It is grossly improper professional duty on the part of a

16
AIR 1960 SC 554
17
Indian Contract Act, 1872
18 Salient Features of Advocates Act, 1961
practitioner to enter into an a agreement with his client to give him money and legal aid in consideration
of his assigning over to him a part of the property, the subject matter of the suit, in the event of success.

The same view was expressed by a full bench of the Calcutta High Court in In the matter of an
advocate. Chief Justice Maclean, who delivered the principal judgment of the full bench, observed that it
is professional misconduct for an advocate to agree with his client to accept as his fee for share of the
property, fund or other matter in the litigation for his services as an Advocate in such litigation upon the
successful issue thereof.

SUGGESTION

Bar Council of India Rules is devoid of any specific provision regarding Conflict between
interest and duty. As I have made detailed analysis of the position regarding conflict in America,
England, Canada, Philippines and the thought provoking that comes out is that why is such a provision
lacking in India. In Canada, the rules even incorporate guiding principles as commentaries but as far as
India is concerned the word “conflict” has no place in the rules. Thus considering the present scenario
and complexity of the legal profession, it is recommended that there be a specific provision regarding
Conflict between Interests and Duties of a Lawyer.

CONCLUSION

Where a lawyer is guilty of a conflict of interest in representing a client he will have committed a
breach of duty. That duty is usually expressed as a fiduciary obligation arising out of the relationship
between solicitor and client. But there is similar duty owed by the lawyer to the court (as well as an
ethical duty). The duty to the court arises from the court’s concern that it should have the assistance of
independent legal representation for the litigating parties. The integrity of the adversarial system is
dependant on lawyers acting with perfect good faith. This is central to the preservation of public
confidence in the admission of justice.

The usual basis for restraining a lawyer from acting for a client on the ground of conflict of
interest is that a conflict is perceived between the continuing duty of the lawyer (owed to his former
client) not to disclose or use the latter’s prejudice that which he learned confidentiality, and the interest
he has in advancing the case of his new client.

19 Salient Features of Advocates Act, 1961

 Every counsel has a duty to his client fearlessly to raise every Issue, advance every argument and
ask every question, however distasteful, which he thinks will help his client's case. As an officer of the
Court concerned in the administration of justice, he has an overriding duty to the Court to the standards
of his profession, and to the public which may and often does lead to a conflict with his client's wishes
or with what the client thinks are his personal interests.

Counsel must not mislead the Court, he must not lend himself to casting aspersions on the other
party or witnesses for which there is no sufficient basis in the information in his possession, he must not
without authorities or documents which may tell against the clients but which the law or the standards of
his profession require him to produce. By so acting he may well incur the displeasure or worse of his
client so that if the case is lost, his client would or might seek legal redress if that were open to him.

In an era of national firms and a rising turnover of lawyers, especially at the less senior levels,
the imposition of exaggerated and unnecessary client loyalty demands, spread across many offices and
lawyers who in fact have no knowledge whatsoever of the client or its particular affairs, may promote
form at the expense of substance, and tactical advantage instead of legitimate protection. Lawyers are
the servants of the system, however, and to the extent their mobility is inhibited by sensible and
necessary rules imposed for client protection, it is a price paid for professionalism. Business
development strategies have to adapt to legal principles rather than the other way around. Yet it is
important to link the duty of loyalty to the policies it is intended to further. An unnecessary expansion of
the duty may be as inimical to the proper functioning of the legal system as would its attenuation. The
issue always is to determine what rules are sensible and necessary and how best to achieve an
appropriate balance among the competing and conflicting interests. He is not merely a mouthpiece of his
client to say what he wants. He must disregard to most specific instructions of his client, if they conflict
with his duty to the Court.

No better words can sum up this project then that of Mahatma Gandhi Ji. He said the following: -
“… that the duty of a lawyer was to place correct facts before the judge and to help him to arrive at the
truth, and not to prove the guilty as innocent.”

BIBLIOGRAPHY

  Articles, Websites, Reports and others:

20 Salient Features of Advocates Act, 1961

 1) David L. Hudson, “Bates participants reflect on landmark case”, at
http://www.firstamendmentcenter.org/analysis.aspx?id=14394 (Last visited on 22nd November,
2007)
2) Rajiv Dutta, “World Trade Organization and Legal Services: The Indian Scenario”, at
www.insolindia.com/shimlaPDFs/worldTradeOrg.pdf (last visited on 23rd November, 2007).

3) Report on Trade in Legal Services, “Trade in Services: Opportunities and Constraints”, Ministry
of Commerce, Government of India, Executed by Indian Council for Research in Economic
Relations, Coordinator(s) N.L. Mitra and T.C.A Anand.

4) Singh Lalithakumar I., “A View on Legal Profession”, AIR 2006 (Jour.) 1.

5) Statement of Objects and Reasons, The Advocates Act, 1961.

6) World Bank Report on Emerging Service Sector, 1999 quoted in The Raghvan Committee
Report on Competition Law, 2000.

  Dictionaries:

1) H. Black, Black’s Law Dictionary (5th ed., St Paul: West Publishing Co., 1979) 1059.
2) The Concise Oxford Thesaurus compiled by Kirkpatrick Betty; Oxford University Press.

3) Webster’s New English Dictionary; Black Dog & Leventhal Publishers Inc, 2nd Edn 1995.

  Case laws:

1)              (Thirteen) Advoates, Allahabad, In the matter of, AIR 1934 All. 1067..

3)             Bar Council of India v. M. V. Dhabolkar,.

4)             Bates v. State Bar of Arizona, 433 U.S. 350.

5)             Bigelow v. Virginia (1975) US.

6)             Chintaman Rao v. State of M.P., AIR 1951 SC 118.

7)             Florida Bar v. Went For It, Inc. (1995) US.

21 Salient Features of Advocates Act, 1961

              Government Pleader v. S, a Pleader, AIR 1929 Bom. 335.

9)              Hamdard Dawakhana v. Union Of India, AIR 1960 SC 554; 1960 (2) SCR 671.

10)          Haniraj L. Chulani v. Bar Council of Maharashtra and Goa, AIR 1996 SC 1708.

11)           In the matter of A, an Advocate, AIR 1962 SC 1337

12)           Indian Council of Legal Aid and Advice v. Bar Council of India, AIR 1995 SC 691;

13)          Ohralik v. Ohio State Bar Association (1978) US.

14)          SK Naicker v. Authorised Officer, (1967) 80 Mad. LW 153 at 154.

15)          Srinath v. Union of India, AIR 1996 Mad 427.

16)          Valentine v. Chrestensen (1942) US.

17)          Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council Inc. (1976) US.

22 Salient Features of Advocates Act, 1961