Duties of an advocate to the court

Professional Ethics · Unit II · Topic 7 of 18 · 5 min read

Rules 1 to 10 of the Bar Council of India Rules, Part VI, Chapter II, the duty of candour and the duty not to obstruct the court, with the problem of an advocate who wants to discuss a pending case privately with the judge.

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On this page

1. Why the duty to the court comes first
2. The ten rules
3. Duties read in by the courts
4. Problem
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The examinable core. An advocate is an officer of the court. Section I of Chapter II, Part VI of the Bar Council of India Rules turns that into ten rules. Learn them by number. Then add the duties the courts have read in: candour about facts and law, punctuality, and the duty not to boycott the court.

1. Why the duty to the court comes first

When the duty to the client conflicts with the duty to the court, the duty to the court prevails. The advocate may press every legitimate point for the client, but he may not deceive the court, because the court depends on the Bar for an accurate account of the facts and the law. The Preamble to Chapter II calls the advocate an officer of the court. Krishnaswamy Iyer put it as the advocate’s loyalty being to the law, not to the client’s wishes.

2. The ten rules

Rule 1: dignity and self-respect. The advocate must conduct himself with dignity and self-respect and must not be servile. Where there is proper ground for serious complaint against a judicial officer, he has the right and duty to submit his grievance to proper authorities.
Rule 2: respectful attitude. He must maintain a respectful attitude towards the court, bearing in mind that the dignity of the judicial office is essential for the survival of a free community.
Rule 3: no improper influence. He 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.
Rule 4: restraining the client. He must use his best efforts to prevent his client from resorting to sharp or unfair practices, must refuse to represent a client who persists in them, is not a mere mouthpiece of the client, and must avoid scurrilous attacks in pleadings and intemperate language in argument.
Rule 5: dress. He shall appear in court only in the prescribed dress, and his appearance shall be presentable.
Rule 6: relatives. He shall not appear before a court, tribunal or authority of which any member is a close relative (the rule lists father, son, brother, uncle, nephew, first cousin, spouse, in-laws and others).
Rule 7: bands and gown are not to be worn in public places other than courts, except on prescribed ceremonial occasions.
Rule 8: executive committees. He shall not appear for or against an organisation if he is a member of its executive committee (except as amicus curiae or without fee for a Bar Council, Bar Association or law society).
Rule 9: personal interest. He should not act or plead in any matter in which he is pecuniarily interested; for example, in a bankruptcy petition where he is a creditor, or for a company of which he is a director.
Rule 10: surety. He shall not stand surety, or certify the soundness of a surety, for his client in any legal proceeding.

3. Duties read in by the courts

Candour. No misstatement of facts, no suppression of a material document, no false affidavit. An advocate should bring to the court’s notice a binding decision against his client of which he is aware. He may argue that it is distinguishable, but may not hide it.
Prosecutor’s duty. Rule 16: a prosecutor must not seek a conviction at any cost, and must not suppress material that could establish the innocence of the accused.
Punctuality and preparation. Adjournments sought without cause waste judicial time; repeated absence is a breach of duty to both court and client.
No boycott or strike. Lawyers have no right to strike or to call for a boycott of courts; an advocate who has accepted a brief must attend, and courts are not bound to adjourn because of a strike: Ex-Capt. Harish Uppal v. Union of India, 2002 INSC 523, (2003) 2 SCC 45.
Respect without fear. Respect for the court does not mean silence before a wrong order. The advocate argues firmly; if he has a grievance against the judge, Rule 1 tells him to take it to the proper authority, not to shout it in court, which may be contempt: In re Vinay Chandra Mishra, 1995 INSC 179, (1995) 2 SCC 584.

4. Problem

Mr. Sandeep, an advocate, intends to discuss privately with a judge the merits of a case pending before that judge. Advise him.

Issue. Whether an advocate may communicate privately with a judge about a pending case.

Law. Rule 3 of Section I, Chapter II, Part VI of the Bar Council of India Rules: an advocate shall not influence the decision of a court by any illegal or improper means, and private communications with a judge relating to a pending case are forbidden. Section 35 of the Advocates Act makes professional misconduct punishable by reprimand, suspension or removal. An attempt to influence a judge may also be criminal contempt under section 2(c)(ii) and (iii) of the Contempt of Courts Act, 1971, as interference with the due course of a judicial proceeding and with the administration of justice.

Application. The prohibition is absolute: it does not depend on whether Sandeep means to offer anything or whether the judge is persuaded. The reason is that the other side has a right to hear and answer every argument addressed to the court; a private conversation denies it that right and puts the judge’s impartiality in question. Social acquaintance with a judge is not forbidden, but the pending case cannot be mentioned. Everything Sandeep wants to say on the merits can be said in open court or in written submissions served on the other side. If the matter is urgent, he may mention it in court with notice to his opponent.

Conclusion. Sandeep must not discuss the case privately with the judge. If he does, he exposes himself to disciplinary proceedings under section 35 for breach of Rule 3, and possibly to proceedings for criminal contempt. The judge, for his part, would be expected to decline the conversation.

Short note version. For “Duties towards court” (December 2018, 6 marks), list Rules 1 to 10 with a phrase each, add candour and Rule 16, and end with Harish Uppal on strikes.

How this is examined

Duties to the court appear as short notes and as part of longer questions on duties of an advocate. The private-communication problem was set in June 2018. The strike problem (December 2017 and June 2017) belongs here as well as under duty to the client; it is solved in the note on Bar and Bench relations.

Now try the real questions: Professional Ethics past question papers.