Duties to the opponent, to colleagues and to the profession

Professional Ethics · Unit II · Topic 10 of 18 · 5 min read

Rules 34 to 39 of the Bar Council of India Rules: dealing with the other side only through its advocate, keeping promises, the ban on soliciting and advertising (and what a website may show), unauthorised practice, undercutting and appearing in place of a colleague.

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On this page

1. Duty to the opponent
2. Soliciting and advertising: Rule 36
3. Unauthorised practice: Rule 37
4. Undercutting: Rule 38
5. Appearing in place of a colleague: Rule 39
6. Duty to the profession generally
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. Section III (duty to opponent, Rules 34 and 35) has only two rules and is easy marks. Section IV (duty to colleagues, Rules 36 to 39) carries the ban on soliciting and advertising, the most litigated of the etiquette rules. June 2017 asked “What are the duties of an advocate towards his profession and the opponent?”

1. Duty to the opponent

Rule 34. An advocate shall not in any way communicate or negotiate upon the subject matter of controversy with any party represented by an advocate except through that advocate. The opposite party has chosen a representative; going behind his back risks extracting admissions from a person without advice.
Rule 35. An advocate shall do his best to carry out all legitimate promises made to the opposite party, even though not reduced to writing or enforceable under the rules of the court. An undertaking to an opponent, such as an agreement to adjourn, to produce a document or not to press an application, must be honoured.

Beyond the two rules, the advocate owes the opponent fairness: no personal abuse, no misrepresentation of the opponent’s case, no use of a document obtained improperly, and courtesy in correspondence. The opponent’s advocate is a colleague, not an enemy.

2. Soliciting and advertising: Rule 36

An advocate shall not solicit work or advertise, directly or indirectly, whether by circulars, advertisements, touts, personal communications, interviews not warranted by personal relations, furnishing or inspiring newspaper comments, or producing his photographs to be published in connection with cases he has handled. His sign-board or name-plate must be of reasonable size and must not say that he is or was a President or member of a Bar Council or association, a judge or an Advocate-General, or that he specialises in any type of work.

In 2008 the Bar Council of India added a proviso permitting an advocate to furnish website information in a prescribed form: name, address, telephone numbers and e-mail; enrolment number and date; the State Bar Council and Bar Association; professional and academic qualifications; and areas of practice. Anything beyond the schedule is treated as a breach of Rule 36 and is misconduct under section 35.

Why the ban. Law is a profession, not a trade. Work should come from reputation, not from canvassing. Advertising invites competition on publicity rather than ability, and tempts the advocate to promise results. In Bar Council of Maharashtra v. M.V. Dabholkar, 1975 INSC 235, AIR 1976 SC 242, (1976) 2 SCC 291, advocates who stood at the entrance of a magistrate’s court and scrambled for clients were held guilty of misconduct. Krishna Iyer J. said that the canons of ethics “totally taboo conduct by way of soliciting, advertising, scrambling and other obnoxious practices, subtle or clumsy, for betterment of legal business.”

Touts. Using touts is soliciting through an agent. Since 30 September 2024, section 45A of the Advocates Act (inserted by the Advocates (Amendment) Act, 2023) empowers High Courts and District Judges to frame and publish lists of touts, who may be excluded from court premises and punished. An advocate who employs a listed tout is guilty of misconduct.

3. Unauthorised practice: Rule 37

An advocate shall not permit his professional services or his name to be used in aid of, or to make possible, the unauthorised practice of law by any law agency. Lending one’s name to a non-advocate “agency” that takes clients and drafts pleadings is forbidden. Chapter III, Rule 2 adds that an advocate shall not enter into a partnership or any arrangement for sharing remuneration with a person who is not an advocate. The Supreme Court applied the same principle to foreign firms in Bar Council of India v. A.K. Balaji, 2018 INSC 235, (2018) 5 SCC 379: only advocates enrolled under the Act may practise law in India, including non-litigation practice.

4. Undercutting: Rule 38

An advocate shall not accept a fee less than the fee taxable under the rules when the client is able to pay it. Undercutting to win clients is a form of unfair competition with colleagues. It is different from free legal aid to a poor client, which Rule 46 encourages.

5. Appearing in place of a colleague: Rule 39

An advocate shall not enter appearance in a case where a vakalat or memo of appearance has already been filed by another advocate for the party, except with that advocate’s consent. If consent cannot be produced, he must apply to the court stating the reasons and may appear only with the court’s permission. The rule protects the first advocate’s fee and dignity, but it does not give him a veto: the client remains free to change his lawyer, and the court will permit the change on a proper application.

6. Duty to the profession generally

Training juniors without charge (Rule 45): it is improper to demand or accept a premium for training a person to qualify for enrolment.
Maintaining the honour of the Bar. An advocate who knows of serious misconduct by a colleague may bring it to the Bar Council’s notice; protecting a dishonest colleague harms the profession.
Obeying the Bar Council. Keeping his address and particulars current (Chapter III, Rules 3 to 5) and paying the prescribed dues.
No strikes. A Bar Association cannot compel members to abstain from court, and an advocate who obeys such a call breaks his duty to the client and court: Ex-Capt. Harish Uppal v. Union of India, 2002 INSC 523, (2003) 2 SCC 45.
No boycott of an accused. A Bar resolution not to defend a particular accused is against professional ethics: A.S. Mohammed Rafi v. State of Tamil Nadu, 2010 INSC 851, (2011) 1 SCC 688.

Trap. Writing articles, teaching and giving lectures are permitted (Rule 51), even if they make the advocate known. What is forbidden is using them to advertise: an article that says “contact me for divorce cases”, or a newspaper report the advocate inspires about his own success in a case, falls under Rule 36.

How this is examined

For the June 2017 question, write Section III (Rules 34 and 35) first, then Section IV (Rules 36 to 39) with Dabholkar under Rule 36, then the general duties to the profession. Short-note questions on “advertisement by advocates” are answered from Rule 36, its 2008 proviso and Dabholkar; a sentence on section 45A shows you know the present law on touts.

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