An Advocate is a representative of his Client. Hence, they have some duties to fulfill towards their Client. These duties are provided to all Advocates per the rules of the Bar Council of India.
Advocates' duty to the Client is provided under Section II of Part VI, Chapter II of the Bar Council of India Rules. These rules have been made under the powers enumerated in Section 49(1)(c) of the Advocates Act, 1961.
Advocates Duty to the Client
1. Bound to accept briefs
An Advocate is bound to accept any brief (case details) before the courts, tribunals, or other authorities where he plans to practice. His fee shall depend on his standing at the bar and the complexity of the case.
Exceptional circumstances may justify his refusal to accept a particular brief.
2. Not withdraw from service
Ordinarily, An Advocate should only withdraw from previously accepted briefs if sufficient cause exists and a reasonable and adequate notice has been submitted to the Client. While withdrawing from a case, the Advocate is bound to refund any part of the fee yet to be earned.
3. Not appear in matters where he is a witness
If an Advocate has reason to believe that he will be called as a witness in a case, he should not accept a brief or participate in a case. Suppose it becomes apparent that he is a witness on a material question of fact in a lawsuit after being engaged in it. He should withdraw from the case if he can do so without jeopardising his Client's interests.
4. Full and frank disclosure to the Client
At the commencement of any case and during its continuance thereof, an Advocate shall make full and frank disclosure to his Client regarding,
his relation with the opposite parties; and
any interest in or about the subject matter;
as is likely to affect the Client's opinion in either hiring the Advocate or continuing his services.
5. Uphold the interest of the Client
It shall be the duty of an Advocate to uphold his Client's interests fearlessly, but only through fair and honourable means, disregarding any unfavourable consequences to himself or any other.
Regardless of his personal feelings about the guilt of the accused, he must defend the accused, keeping in mind that his loyalty is to the law, which demands that no man be found guilty without sufficient evidence.
6. Not suppress material or evidence
An Advocate representing the prosecution of a criminal trial (from the side of the State) shall conduct the prosecution that does not lead to a conviction of the innocent. Suppressing material capable of establishing the accused's innocence shall be carefully avoided.
7. Not disclosing the communications between the Client and himself
An Advocate shall not, directly or indirectly, violate the obligations imposed under Section 126 of the Indian Evidence Act 1872.
8. An Advocate shall not, at any time, be a party to fomenting of litigation.
“Fomenting of litigation” refers to the act of instigating or encouraging legal action, often for personal gain. An advocate shall always refrain from ‘fomenting of litigation’.
9. An Advocate shall not act on the instructions of anyone other than his Client or authorised agent.
An Advocate is the representative of only his Client and of no other. Hence, he shall only act on the instructions of his Client. The Client may also assign an agent to make decisions on his behalf. Accordingly, the Advocate can also work on the instructions of such an authorised agent.
10. Not charge depending on the success of matters
An Advocate shall not stipulate a fee depending on the litigation results or agree to share the winnings.
Additionally, an Advocate shall not charge their Clients a part of the money or property they would receive if the case is successful.
11. Not receiving interest in an actionable claim
An Advocate shall not transact in any manner in any actionable claim. An actionable claim is an unsecured debt.
This rule does not apply to stock, shares, and debentures of government securities or to any instruments that are, for the time being, by law or custom, negotiable or to any mercantile document of title to goods.
12. Not bidding or purchasing property arising from legal proceedings
Any property sold in execution of a judgment or order in a lawsuit, appeal, or other proceeding in which the Advocate was in any way professionally involved may not be directly or indirectly bid for or purchased by the Advocate, either in his name or under any other name, for his benefit or the benefit of any other person.
This limitation, however, does not stop an Advocate from placing a bid or making a purchase on behalf of a Client for any property that the Client may legitimately place a bid or make a purchase on, so long as the Advocate has specific authorization in writing to do so.
An Advocate shall not directly or indirectly participate in court auction or acquire by way of sale, gift, exchange, or any other mode of transfer either in his name or in any other name for his benefit or for the use of any other person any property which is a subject matter of any suit appeal or further proceedings in which he is in any way professionally engaged.
13. Not adjust fees against personal liability
An Advocate shall not adjust the fee payable to him by his Client against his to the Client, which liability does not arise during his employment as an Advocate.
14. An Advocate should not take advantage or misuse the confidence reposed in him by his Client
Every Client possesses great confidence in his Advocate when engaging him in a case. This confidence shall not be misused or taken advantage of by any Advocate.
15. Keep proper accounts
An Advocate should maintain accounts of the Client's money entrusted to him. The reports should clearly show all the transactions, including amounts received and the expenses incurred for the Client, along with all other necessary particulars.
16. Divert money from accounts
Where sums of money are received from a Client, the entries in the reports must clarify what amount is received as fees or other expenses.
During the proceeding, except with the written consent of the Client concerned, no Advocate shall be at liberty to divert any portion of the costs towards his fees.
17. Intimate the Client on amounts
Where he receives any sum of money on behalf of his Client, he shall inform the Client as early as possible about such reception.
18. Adjust fees after termination of proceedings
Once the case has concluded, the Advocate is free to apply any amount that has come into his possession or that has been paid or sent to him for expenditures toward the settlement of the fee that is due to him.
Where the fee has been left unsettled, the Advocate shall be entitled to deduct, out of any money of the Client remaining in his hands, at the termination of the proceeding for which he had been engaged, the fee payable under the rules of the Court, in force for the time being, or by then settled. The balance, if any, shall be refunded to the Client.
19. Provide a copy of the accounts
When the Client demands it, A copy of his account shall be furnished to him, provided the necessary copying charge is paid.
20. An Advocate shall not enter into arrangements whereby funds in his hands are converted into loans.
21. Not lend money to his Client
An Advocate shall not lend money to his Client for any action or legal proceedings in which such Client engages him.
Explanation: If an Advocate feels compelled by a court rule to pay the court money on behalf of the Client for the progress of a suit or proceeding while it is still pending, without making any prior arrangements with the Client regarding it, they shall not be held guilty of violating this rule.
22. Not appear for opposite parties
An Advocate who has, at any point in time, participated in any manner in any case for a party shall not affect, appear, or plead for the opposite party.
Frequently Asked Questions
Q1. What rights does a Client have against his Advocate?
A1. An Advocate's duty to the Client (as detailed above) is also a client's rights against his Advocate.
Q2. What is the punishment for an Advocate who violates his duties towards their Client?
A2. If an Advocate fails to perform their duties towards their Client, it would be considered misconduct. The penalty for such misconduct can be suspension from practice or disqualification.
Q3. What is the role of the disciplinary committee under the Advocates Act?
A3. The disciplinary committee is mainly formed to ensure that the members of the Bar Council of India or the Bar Council of any state are maintaining professional ethics and standards.
Q4. What is professional misconduct in the legal profession?
A4. Professional misconduct in the legal profession refers to any behavior or action that violates the rules set by the Bar Council of India under the Advocates Act 1971.
Q5. Is 'fomenting of litigation' legal in India?
A5. In India, third-party litigation funding (TPF) is not expressly regulated by statute or regulation, but judicial precedents indicate its permissibility, albeit with certain caveats and conditions. Most recently, in 2017, the Supreme Court of India clarified that TPF arrangements are not barred in India, and the only restriction that appears to exist is for a lawyer to fund their client's case.
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