Duties to Public, Other Advocates, and Legal Aid

Beyond duties to court and client, an advocate bears obligations towards the public at large, fellow advocates, and the indigent who cannot afford representation. These duties reflect the profession's social function as the guardian of rule of law.

Legal Framework

Correction: the earlier note numbered these rules 21 to 33. Those numbers belong to Section II (duties to client). Advertising is Rule 36, and the duty to the opponent is Rules 34 and 35. Some online copies of the BCI Rules number Sections IV-A to VII differently: the Indian Kanoon text has legal aid as Rule 48 and employment as Rules 49 to 54 (full-time employment is Rule 51 there). The numbering used here (legal aid Rule 46, employment Rules 47 to 52) is the one the Supreme Court used for Rule 49 in Ashwini Kumar Upadhyay (2018). In an answer, state the rule's content as well as its number.

Duty to the Opponent (BCI Rules, Section III)

Duties to Colleagues (BCI Rules, Section IV)

Rule 36: Not Advertise or Solicit

An advocate shall not:

• Solicit work or advertise, directly or indirectly, by circulars, advertisements, touts, personal communications or interviews not warranted by personal relations
• Furnish or inspire newspaper comments, or procure his photograph to be published, in connection with cases he is engaged in
• Use a sign-board, name-plate or stationery of unreasonable size, or showing that he is or was a Bar Council or Association office-holder, a judge or Advocate-General, or that he specialises in any type of work

Exception (2008 proviso to Rule 36): an advocate may furnish on a website basic information such as name, address, telephone numbers, email, enrolment number and date, professional qualifications and areas of practice. Exact wording to be checked against the BCI's current text before quoting.

Case: Bar Council of Maharashtra v M.V. Dabholkar (1975): touting for briefs is misconduct; law is no trade, briefs no merchandise.

Why: Law is a profession, not a trade. Advertising commodifies legal services and creates information asymmetry favouring resourceful practitioners over competent but modest ones.

Example (violation): Advocate H puts up a billboard near the district court: "Bail in 24 hours! Divorce in 3 months! Call 99XXXXXXXX." This is direct advertising + guarantee of outcome. Clear violation of Rule 36.

Example (violation): Advocate H pays a hospital clerk Rs. 500 for every accident victim referred to him. This is solicitation through a tout. Both H and the clerk are in violation.

Example (permissible): Advocate H creates a website stating: "H & Associates | Criminal Law, Family Law | Enrolled 2015 | B.A.LL.B. (Osmania University) | Contact: [email protected]." This is factual professional information. No promotional claims, no guarantees, no comparisons with other advocates. Permissible post-2008.

Example (grey zone): Advocate H publishes a LinkedIn article analysing a recent Supreme Court judgment, with his profile visible. This is generally permissible (knowledge sharing, not solicitation). But if the post ends with "DM me for consultations on this issue," it crosses into solicitation.

Other duties to colleagues (Rules 37 to 39)

Media: there is no separate press rule. Rule 36 bars inspiring newspaper comment on one's own cases. Statements that prejudice a pending trial can be contempt (S.2(c) Contempt of Courts Act 1971).

Restrictions on Other Employment (Section VII, Rules 47 to 52)

Business, full-time salaried employment and managing director or secretary posts are barred while practising (see PETH-1.2 and PETH-2.4). The full-time employment rule does not apply to a Law Officer of the Central or a State Government, or of a public corporation or statutory body, who is entitled to enrol under rules made under S.28(2)(d) read with S.24(1)(c); see the next section. There is no BCI rule specifically on liquor licences; such conduct would be tested under S.35 "other misconduct".

Government Pleaders, Public Prosecutors and Law Officers

Government Pleader (CPC S.2(7)): "'Government Pleader' includes any officer appointed by the State Government to perform all or any of the functions expressly imposed by this Code on the Government Pleader and also any pleader acting under the directions of the Government Pleader."

Suits by or against the Government (CPC S.79, S.80 and Order XXVII):

Public Prosecutors (BNSS S.18):

• S.18(1): a Public Prosecutor for each High Court, appointed after consultation with the High Court.
• S.18(3) to (5): a Public Prosecutor for each district, appointed only from a panel prepared by the District Magistrate in consultation with the Sessions Judge.
• S.18(6): where there is a regular cadre of prosecuting officers, appointments come from that cadre.
• S.18(7): at least seven years' practice as an advocate is needed.
• S.18(8): a Special Public Prosecutor needs at least ten years' practice; the victim may engage an advocate to assist the prosecution.
• Duty: Rule 16 of the BCI Code requires a prosecutor to conduct the case so that it does not lead to conviction of the innocent, and never to suppress material that could establish the innocence of the accused.

Status: office, not employment.

• The holder of the office of Public Prosecutor "does not hold a civil post"; under the Legal Remembrancer's Manual his engagement is professional and "terminable at will", and a decision not to renew it is reviewed on the Wednesbury test of unreasonableness. Assistant Public Prosecutors, by contrast, are State employees holding civil posts (State of U.P. v Johri Mal, 2004).
• Even so, Government Counsel are paid from the public exchequer and there is "a clear public element attaching to the 'office' or 'post'", so their appointment and termination must satisfy Art. 14; the mass termination of District Government Counsel in U.P. was arbitrary (Kumari Shrilekha Vidyarthi v State of U.P., 1990).
• The BCI rule against full-time salaried employment does not apply to a Law Officer of a Government, public corporation or statutory body who is entitled to enrol under rules made under S.28(2)(d) read with S.24(1)(c), "despite his being a full-time salaried employee" (proviso to Rule 49; Rule 51 in the Indian Kanoon numbering).

Duties: a Government Pleader or Public Prosecutor owes the same duties to the court as any advocate (Section I), plus a duty of fairness to the public: he acts for the State, not to win at any cost (Rule 16).

Duties Regarding Legal Aid

Constitutional Basis

Art. 39A: The State shall secure that the operation of the legal system promotes justice on a basis of equal opportunity and shall provide free legal aid to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

Statutory Framework

Legal Services Authorities Act, 1987, S.12: every person who has to file or defend a case is entitled to legal services if that person is:

1. (a) a member of a Scheduled Caste or Scheduled Tribe
2. (b) a victim of trafficking in human beings or a beggar (Art. 23)
3. (c) a woman or a child
4. (d) a person with disability
5. (e) a person in undeserved want, such as a victim of mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster
6. (f) an industrial workman
7. (g) in custody, including a protective home, juvenile home or psychiatric hospital or nursing home
8. (h) a person whose annual income is below the limit prescribed by the State Government (other courts) or the Central Government (Supreme Court). The Act's base figures are Rs 9,000 and Rs 12,000; the current limits are set by notification and are much higher.

S.13: the person must also have a prima facie case; an income affidavit is normally enough.

Advocates Act: S.6(1)(eee) and S.7(1)(ib) make organising legal aid a function of the Bar Councils; S.9A provides for legal aid committees.

Advocate's Role in Legal Aid

Rule 46 (Section VI): every advocate shall bear in mind that anyone genuinely in need of a lawyer is entitled to legal assistance even though he cannot pay fully, and that within his economic limits, free legal assistance to the indigent and oppressed is one of the highest obligations an advocate owes to society.

Standard of Legal Aid: Real, Not Token

• Hussainara Khatoon (IV) v Home Secretary, Bihar (1979): free legal aid for an indigent accused is part of fair procedure under Art. 21.
• Suk Das v Union Territory of Arunachal Pradesh (1986): the right does not depend on the accused applying for it; a trial without offering legal aid is vitiated.
• Anokhilal v State of Madhya Pradesh (2019): legal aid must be real and meaningful. Counsel appointed for an accused must get adequate time to prepare; the para 22 norms say that where life imprisonment or death is possible, only advocates with at least 10 years' practice should be appointed, and counsel should normally get at least seven days to prepare and be allowed to meet the accused. This is the case for the diligence standard in legal aid.
• Negligent legal aid work is judged like paid work: neglect with deception is misconduct (In re P, 1964), but mere negligence without culpability is not (Re An Advocate, 1989).

Why: Access to justice is a fundamental right (Art. 14 + Art. 21). If the legal profession claims monopoly over court representation (S.33, Advocates Act), it must ensure the poor are not excluded.

Answer Plan (16 marks)

1. Introduction: profession as a public utility with a monopoly (S.29, S.33).
2. Duty to the opponent: Rules 34 and 35.
3. Duty to colleagues: Rules 36 to 39, 2008 proviso, Dabholkar.
4. Duty to society: defend the unpopular accused (Mohammed Rafi), no strikes (Harish Uppal); fairness of prosecutors (Rule 16).
5. Legal aid: Art. 39A, Art. 21, Art. 22(1); Rule 46; S.6(1)(eee), S.7(1)(ib), S.9A; LSA Act S.12 and S.13.
6. Standard of legal aid: Hussainara, Suk Das, Anokhilal.
7. Conclusion.

Answer Plan (6 marks): Government Pleader

1. Definition: CPC S.2(7).
2. Role in suits by or against the Government: S.79, S.80; Order XXVII Rules 1, 2, 4, 5, 5A.
3. Public Prosecutors: BNSS S.18 (panel, seven years' practice, Special PP ten years).
4. Status: professional engagement, not a civil post (Johri Mal), but Art. 14 applies (Shrilekha Vidyarthi).
5. Duties: Rule 16; law officer proviso to the full-time employment rule.

Recall Check

1. What does Rule 36 forbid, and what does the 2008 proviso allow?
2. Under Art. 39A, what is the State's obligation regarding legal services?
3. Name any five categories of persons entitled to free legal services under S.12 of the Legal Services Authorities Act.
4. What standard of legal aid did Anokhilal (2019) require?
5. Define "Government Pleader" under CPC S.2(7), and state his role under Order XXVII Rule 4.
6. Does a Public Prosecutor hold a civil post? Cite the case.

Key Cases

Hussainara Khatoon (IV) v Home Secretary, Bihar AIR 1979 SC 1369 Hussainara Khatoon v Home Secretary Bihar 1979
Held: Free legal aid to an indigent accused is part of reasonable, fair and just procedure under Art. 21.

Suk Das v Union Territory of Arunachal Pradesh (1986) 2 SCC 401 Suk Das v Union Territory of Arunachal Pradesh 1986
Held: Free legal aid at State cost is a fundamental right of an accused facing a threat to life or liberty; it does not depend on his applying for it.

Anokhilal v State of Madhya Pradesh AIR 2020 SC 232 Anokhilal v State of Madhya Pradesh 2019
Held: Legal aid must be real and meaningful; appointed counsel needs adequate time, and capital cases need experienced counsel. A conviction after a hurried defence was set aside and the case sent back for de novo consideration (para 20); para 22 lays down norms for appointing legal aid counsel.

A.S. Mohammed Rafi v State of Tamil Nadu (2011) 1 SCC 688 AS Mohammed Rafi v State of Tamil Nadu 2010
Held: Bar resolutions not to defend an accused are void; every accused is entitled to a defence.

Bar Council of Maharashtra v M.V. Dabholkar AIR 1976 SC 242 Bar Council of Maharashtra v MV Dabholkar 1975
Held: Touting for briefs is misconduct.

Re An Advocate AIR 1989 SC 245 Re An Advocate 1989
Held: Mere negligence without culpability is not misconduct; a specific charge and proof are needed.

State of U.P. v Johri Mal (2004) 4 SCC 714; AIR 2004 SC 3800 State of UP v Johri Mal 2004
Held: The holder of the office of Public Prosecutor does not hold a civil post; his engagement is professional and terminable at will, and non-renewal is reviewable only on Wednesbury grounds.

Kumari Shrilekha Vidyarthi v State of U.P. (1991) 1 SCC 212; AIR 1991 SC 537 Kumari Shrilekha Vidyarthi v State of UP 1990
Held: Appointment of Government Counsel has a public element; the State cannot terminate them arbitrarily, and the mass termination of District Government Counsel violated Art. 14.

Removed: M.C. Mehta v Union of India (1987, oleum gas leak) laid down absolute liability for hazardous industries. It says nothing about advocates' pro bono duties, so it has been dropped from this note.

Distinctions

Flashcards