Chapter 1INTRODUCTION

1.1 Introduction

As the explanation goes a business is a trade or profession at which one works regularly;

an occupation is what one happens to be engaged in, and may be continuous or

temporary. Business is ordinarily for profit, while the occupation may be a matter of

learning, philanthropy or religion. A profession usually implies scholarship, as the

profession of law.

1.2 Definition of Legal Profession

The legal profession is thus an important part of legal administration. It is not possible for

the State to administer justice effectively without a well- organized legal profession,

because in its absence who would marshal the facts and present them before a Court, who

would put forth the best legal arguments for and against the litigating parties before the

Court? It is therefore rightly said that “A well-organized system or judicial administration

postulates a properly equipped and efficient Bar;” and a well-regulated profession for

pleading causes is a great desideratum to tone up the quality of justice. A community of

professionals is different from other communities based on socialization and social

control and client choice or the evaluation of the professional1. According to Goode the

process of professionalisation is the “climax job pattern” of occupational environment

and no occupation becomes a profession without antagonism and struggle. The history of

the legal profession in India is therefore a history of struggle; a struggle for recognition,

characterized by prestige, power and income. In this short chapter we would be tracing

the history and development of the legal profession in India.

1V.D. Kulshreshta, Landmarks in Indian Legal and Constitutional History, 7th ed., (Lucknow: Eastern Book

Company, 2005), p.448.

1

Chapter 2

HISTORICAL BACKGROUND

2.1 Position up to 1926

Law, as a profession, appears to have been in vogue in ancient5 and medieval India

though its concept was quite different from what it is today. The legal profession as it

exists in India today had its beginnings in the first years of British rule. The Hindu

Pundits, Muslim Muftis and Portuguese lawyers who served under earlier regimes had

little effect upon the system of law and legal practice that developed under the British

administration.

The charter Act, 1726 contained no provision whatsoever regarding the

qualification for the persons desirous of practicing law. The courts were the sole judges

in this regard. This position continued up to 1753. During this time the person who

adopted the profession in the absence of anything better to do. Quite a few of these so-

called lawyers were the dismissed servants of the company” 7 Long, describing the

condition of Calcutta says that “Calcutta is a place where the profession of law is

exercised by men who seem to derive all their knowledge by inheritance, or to possess it

by intuition, without previous study or application” This state of affairs was due to the

belief of the Company that the advocates “foment disputes” and are of “litigious nature”.

Calcutta Court, under the circumstances referred several question of the directors for

guidance. This was the state of affairs of the legal profession before 1774 at all the three

places: Bombay, Calcutta and Madras2.

2.2 The Regulation Act, 1773

2 Ibid, p.448.

2

The first real step in the direction of organizing a legal profession in India was taken in

1774 when the Supreme Court was established in Calcutta pursuant to the Regulating Act

of 1773. Clause 11 of the Supreme Court Charter empowered the Court “to approve,

admit and enrol such and so many advocates and attorneys at law" as the Court "shall

seem fit”. They were to be attorneys of record and were authorized " to appear and plead

and act for the suitors" of the Court. The Court could remove the said advocates and

attorneys "on reasonable cause". No other person whatsoever, but such advocates and

attorneys so admitted and enrolled were to be" allowed to appear and plead or act" in the

Court, for or on behalf of such suitors. The "advocates" entitled, thus, thus, to appear

ware only the English and Irish barristers and members of the Faculty of Advocates in

Scotland; the attorneys referred to were the British attorneys and solicitors. The court was

thus an exclusive preserve for members of the British legal profession. The same powers

of enrolment were later conferred on the Supreme Courts established at Bombay and

Madras. An Indian lawyer had no right to appear before the Courts.

2.3 The Bengal Regulations, 1793 and 1833

The Bengal Regulation VII of 1793 created, for the first time, a regular legal profession

for the Company’s Courts. Its credit goes to Lord Cornwallis. The regulation gave power

to Sadar Diwani Adalat to enroll pleaders for all Company’s Courts. Only Hindus and

Muslims would be enrolled as pleaders. Before this the suitors could either plead their

own causes personally or could appoint agents who could either be their servants or

dependants or the vakils who followed the profession for livelihood. But these people

knew nothing of the law. This led to confusion and delay3. Not only this but these

ignorant and credit less vakils often betrayed their clients by accepting bribe from the

opposite party. The system and the profession both thus slipped into inefficiency and

became too costly for litigants. However Regulation 6 brought order and some measures

of quality of pleading and endeavored to establish it as a respectable profession. Only the

persons well versed in Hindu and Mohammedan law and persons of charter and

education were allowed to plead in courts. A number of rules were laid down to regulate

the profession. Yet, the professional respectability was hard to come by. Malbari

3 Ibid, p.449.

3

described the moffusil vakil as “a column of vapour issuing from an Ocean of Emptiness

brought alive by the Chief Justice and the successful vakil as one in the hands of Marwari

broker".

The Bengal Regulation XII of 1833 was the next important legislation which

modified the provisions of the earlier Regulations in that only persons duly qualified, to

whatever nationality or religion they might belong, could be enrolled as pleaders of the

Sadar Diwani Adalat.

2.4 The Legal Practitioners Act, 1846 and 1863

The Legal Practitioners Act, 1846 made important innovations, namely, (1) the office of

pleaders was thrown open to all persons of whatever nationality or religion duly certified

by the Sadar courts; (2) attorneys and barristers of any of Her Majesty’s Courts in India

were made eligible to plead in any of the Sadar Courts; (3) the pleaders were permitted to

enter into agreements with their clients for their fees for professional services.

The Legal Practitioners Act, 1863, also permitted barristers and attorneys of the

Supreme Court to be admitted as pleaders in the Court of the East India Company. Thus

barristers and attorneys were empowered to practice in the Company’s Courts while the

Indian legal practitioner could not appear before the supreme Courts.

2.5 The Indian High Courts Act, 1861

The position clearly underwent a change after the British Crown took over the

administration of the country from the Company in 1858. The separate systems of the

Company’s courts in the milfoil and the Royal Courts in the Presidency towns were

consolidated into a unified judicial system in all the there presidencies. At the apex of the

new system were High Courts chartered by the Crown. The Indian High Courts Act,

1861, authorized the setting up of High Courts in several Presidencies in place of the

Supreme Courts and Sadar Adalats. Clause 9 of the Letters Patents of 1865 which

replaced the earlier Letters Patent creating a High Court in Calcutta authorized it to

approve, admit and enroll advocates, vakils and attorneys. The persons so admitted were

entitled to appear for the suitors of the High Court and to plead or act according to rules

made by the High Court or directions issued by it. Similar provisions were made in the

4

Charters of the Courts of Bombay and Madras. The High Courts in their appellate

jurisdiction were to apply the principles of equity tend the rule of good conscience, but

these were never spelt out and were left to the discretion of the courts. Curiously enough,

the Mofussil Courts were precluded from introducing any English or foreign law under

the cover of the words, justice, equity and good conscience". On the original side, in the

High Courts, English law and rules of equity continued and on the appellate side local

laws were applied. This was a deliberate design to “divide and rule" under the posture of”

justice, equity and good conscience".

2.6 The Legal Practitioners Act, 1879

In the course of time other High Courts were established. The Legal Practitioners Act,

1879 was enacted to consolidate and amends the law relating to legal practitioners of

High Court. It empowered the High Court, not established under a royal charter, to make

rules, with the previous sanction of the Provincial Government, as to the qualifications

and admission of proper persons to be pleaders and Mukhtars of the High Court4.

2.6.1. Classes of Lawyers

In the chartered High Courts rules had been framed under which there were, apart from

Attorneys, two other classes of lawyers, Advocates and Vakils. Advocates were to be

barristers of England or Ireland or members of the Faculty of the Advocates of Scotland.

The High Courts, other than the Calcutta High Court, permitted non-Barristers as well to

be enrolled as advocates under certain circumstances, e.g. in Bombay, law graduates of

the Bombay University, could be enrolled as Advocates. The Vakils were the persons

who had taken their law degree from an Indian University and fulfilled certain other

conditions. In Madras, a law graduate qualified to be admitted as a vakil if he passed an

examination in procedure and underwent practical training with a practicing lawyer for a

year. Similarly rules had been made by the other High Courts also. The High Courts were

given the power, under Section 6 of the Legal Practioners Act, 1879, to make rules as to

the qualification, admission and certificates of proper persons to be Pleaders and

Mukhtars of he subordinate courts. Under the rules framed by he High Courts under the

4 Ibid, p.450.

5

Legal Practioners Act, law graduates who did not possess the additional qualification to

enable them to be enrolled as the High Court Vakils, and non-law graduates after passing

the pleader ship examination conducted by the High Court, were enrolled as Pleaders to

practice before subordinate courts. Besides the Pleaders, there were Mukhtars who passed

by Mukhtarship examination held by the High Court after passing the matriculation or

equivalent examination.

Section 4 of the Legal Practitioners Act, 1879 empowered an advocate or Vakil

on the roll of any High Court to practice in all the Courts sBritish India other than a High

Court on whose roll he was not entered and with the permission of the Court in any High

Court on whose roll he was not entered. There was a proviso, however, to the effect that

this power would not extend to the original jurisdiction of the High Court in a Presidency

Town.

2.6.2 Practitioners on the Original & Appellate side

On the original side of the Calcutta High Court only the Advocates, e.g., the Barristers of

England and Ireland and he Advocates of Scotland, were entitled to appear and plead, on

the instructions of an Attorney. These Advocates were also entitled to appear and plead

on the appellate side of the High Court and subordinate courts. The Vakils of the Calcutta

High Court were not entitled to act or plead on the original side or in appeals from the

original side. This satiate of affairs was severely criticized as monopolistic and

discriminatory. As the criticism says the Calcutta Barrister" has no objection to plead

before a mere B.L (or L.L.B) Judge, but he cannot have as his companions at the bar a

mere B.L. of an Indian University however high his attainments may be". The Madras

High Court had, however, altered its rules, as early as 1886, and permitted the Vakils

admitted under the Rules of 1833, and the Attorneys to appear plead and act for suitors

on the original side. The result, therefore, was that in the Madras High Court there

remained no distinction between Barristers, Vakils and Attorneys as regards their rights

to appear and plead on the original side. Under the new Rules, the Vakils and Attorneys

could also act on the original side while the advocates had to be instructed by an attorney.

In the Bombay High Court the Vakils were not originally permitted to act or plead on the

original side. This position, however, later changed and a non-Barrister, on passing an

6

examination conducted by the High Court, became eligible for enrolment as Advocates

entitled to appear and plead on the original side. The only limitation was that the

Advocates of the original side, whether Barristers or non-Barristers, had to be instructed

by an Attorney before they could appear and plead on the original side5.

2.7 The Indian Bar Committee (Chamier Committee), 1923

The Vakils expressed dissatisfaction about the distinction that existed between barristers

and vakils, and the special privileges enjoyed by the British barristers and solicitors.

There was also a demand for creating an All-India Bar in the country. Consequently, the

Government of India in 1923, constituted the Indian Bar Committee under the

Chairmanship of Sir Edward Chamber to go into these issues.

The Committee did not consider it practicable at the time to organize the Bar on

an all-India basis or to constitute an all-India Bar Council. The significant

recommendation of the Committee was as regards the establishment of Bar Councils for

the High Court.

The Committee recommended –

That in all High Courts, a single grade of practitioners entitled to plead should be

established and called Advocates,

That when special conditions are maintained for admission to plead on the

original side of a High Court the only distinction shall be within that grade which shall

consist of advocates entitled to appear on the original side and advocates not so entitled,

Subject to certain conditions being fulfilled, Vakils would be allowed to plead on

the original side of the three High Courts,

That a Bar Council be constituted for each High Court having power to enquire

into matters calling for disciplinary action against a lawyer,

That the disciplinary powers would rest with the High Court but before taking any

action, it should refer the case to the Bar Council for enquiry and report.

2.8 The Indian Bar Councils Act, 1926

5 Ibid, p.452.

7

To implement the recommendations of the Chamier Committee, the Central legislature

enacted the Indian Bar Councils Act, 1926. The object of the Act was to provide for the

constitution and incorporation of Bar Councils for certain Courts to confer powers and

impose duties on such Bar Councils, and to consolidate and amend the law relating to

legal practitioners entitled to practice in such courts.

A Bar Council was to be constituted for every High Court. Every Bar Council was

to consist of fifteen members of whom one was to be Advocate-General, four persons to

be nominated by the High court and ten were to be elected by the Advocates of the High

Court from amongst themselves. Each High Court was to prepare and maintain a roll of

advocates of High Court. While the roll was maintained by the High Court, the Bar

Council was authorized, with the previous sanction of the High Court, to make rules to

regulate the admission of persons to be Advocates of the High Court without affecting in

any way the power of the High Court to refuse admission to any person at its discretion.

Under the Act, the power of enrolment of advocates virtually continued to remain

in the High Court and the function of the Bar Council was merely advisory in nature. The

Act did not affect the power of the High Courts of Calcutta and Bombay to prescribe

qualifications to be possessed by persons applying to practice on the original sides of

those High Courts and their power to grant or refuse any such application, or to prescribe

the conditions under which such persons were to be entitled to practice or plead. The roll

of Advocates was to be maintained by the High Court which also had the disciplinary

power over the Advocates. The right of the Advocates of the High Court to practice in

another High Court was not unfettered but was expressly made subject to rules made by

the High Court or the Bar Council. Each of the High Courts as well as the Bar Councils

of Calcutta and Bombay made rules to the effect that Advocates of other High Court

concerned only after obtaining the permission of the Chief Justice and on several

occasions very eminent Advocates of one High Court were refused permission to appear

and plead in another High Court.

In Course of time the Calcutta and Bombay High Courts liberalized their rules so

as to permit non-Barrister Advocates to practice on their original sides as well which so

far had been reserved for Barristers only. Thus, the distinction between Barristers and

8

Advocates was abolished. However, no advocate, whether Barrister or not, could act on

the original side but had to appear and plead on the instruction of the Attorney on record.

9

Chapter 3

LEGAL PROFESSION IN BANGLADESH

3.1 Unified bar in the independent Bangladesh

With the emergence of Bangladesh the Bangladesh Legal Practitioners and Bar Council

Order,1972 (P.O. No. 4+6 of 1972) was issued by repealing the Legal Practitioner’s and

Bar Council Act 1965.This Order has provided for a council, a body corporate called the

Bangladesh Bar Council which is a statutory body with prescribed constitution, powers

and functions. This Order was amended from time to time. Section 27(1A) provides

arrangement for unification of the legal professions in its true professions in its true seven

years, been a Mukhter may, subject to the other provisions of this order and the rules

made there under, be admitted as an advocate, if fulfils the conditions prescribed for the

same. Unlike before there is now a single class of legal practitioners known as advocates

under the control and disciplinary jurisdiction of only one authority, the Bangladesh Bar

Council, which is an autonomous organization in the management of its affairs6.

3.2 Division within the Unification

Although the law as mentioned above has created a single class of advocates in legal

profession, there exists, in fact, there groups of advocates who are entitled to practice

before subordinate courts; these advocates who have right of audience in the high Court

Division of the Supreme Courts. This group also has the right of audience in all

subordinate courts. The third group includes those advocates who have the right to

practice before the Appellate Division of the Supreme Court; they are known as

Advocates on-Record. Their enrolment as Advocates-on-Record is regulated under the

Supreme Court (Appellate Division) Rules, 1988.

6 M.A. Halim, The Legal System of Bangladesh, 2nd ed., (Dhaka: Shams Publication, 2005), p.286.

10

3.3 The Bar Council

The Bangladesh Legal Practitioners and Bar Council Order, 1972 provides for three main

bodies main bodies regarding the advocates’ enrolment, administration, control and

association: (1) the Bar Council;(2) the Bar Association; and (3) the Tribunal.

3.3.1 Constitution of the Bar Council

The Bangladesh Bar Council is constituted for a term of three years with fifteen

members of whole attorney-General of Bangladesh is Ex-officio Chairman.

Seven members shall be elected in the prescribed manner by the advocates on the

roll from amongst their number; and

Seven members shall be elected by the advocates who are members of the Local

Bar Associations included in group from amongst themselves.

No advocate shall hold office of the member of the Bar Council for more than two

consecutive terms (articles 5 and 5A).

There shall be a chairman and vice-chairman of the Bar Council. The Attorney

General for Bangladesh shall be the Chairman ex-officio of the Bar Council. The Vice-

Chairman shall be elected in the prescribed manner by the members of the Council from

amongst themselves (art.6)7.

3. 3.2. Status of the Bar Council

The Bar Council is a body corporate having perpetual succession and a common seal,

with power to acquire and hold property, both movable and immovable and to contract

and shall by the said name sue and be sued (article 3).

3.3.3. Powers and Functions of the Bar Council

Article 10 of the Bangladesh Bar Council Order, 1972 provides for the details of the

functions of the Bar Council which are as follows:

To admit persons as advocates on its roll, to hold examinations for purposes of

admission, and to remove advocates from such roll;

To prepare and maintain such roll;

7 Ibid, p.288.

11

To lay down standard of professional conduct and etiquette for advocates;

To entertain and determine cases of misconduct against advocates on its roll and

to order punishment in such cases;

To safeguard rights, privileges and interest of advocates on its roll;

To manage and invest the funds of the Bar Council;

To provide for election of its member;

To lay down the procedure to be followed by its Committees;

To promote legal education and to lay down the standards of such education in

consultation with the universities in Bangladesh imparting such education;

To perform all other functions conferred on it by or under this Order;

To do all other things necessary for discharging the aforesaid functions.

3.3.4. Committees of the Bar Council

The Bar Council has four standing committees to discharge its various functions:

An executive committee consisting of five members elected by the Council from

amongst its members;

A finance committee consisting of five members elected by the Council from

amongst its members.

A legal education committee consisting of nine members five elected by the

Council from person other that the members of the Council from person other than the

members of the Council at least two of whom shall be teachers of law in any University

or College in Bangladesh.

An enrolment committee consisting of five members as follows: (i) a Chairman to

be nominated by the Chief Justice from amongst the judges of the Appellate Division; (ii)

One member to be nominated by the Chief Justice from amongst the judges of the High

Court Division; (iii) Attorney General for Bangladesh; (iv) Two members elected by the

Bar Council from amongst its members.

3.4 The Bar Associations

Article 2(bb) defines that Bar Association means Supreme Court Bar Association or a

Local Bar Association Local Bar Association means any Bar Association in a District or

12

any other Bar Association recognized under article 39 but does not include the Supreme

Court bar Association. Article 40 prescribes that the Bar Council may make rules

providing for the manner in which and the conditions subject to which a Bar Association

may be recognized. Rile 67 of the Bangladesh Legal Practitioners and Bar Council Rules

1972 provides that any Association of advocates practicing at a particular place may

apply to the Bar Council for recognition as a Bar Association. As per the Bar Council

statistics so far there are 81 Bar Associations recognized under this rule. A list of these

Associations along with total number of members has been given at the end of this

chapter. Apart from the Bar Council Order some rules as to Bar Association are provided

for in the Bangladesh Legal Practitioners and Bar Council Rules 19728.

No person shall practice as an advocate unless he is a member of a recognized bar

Association of the place at which he ordinarily practices (Rule 66).

Before being admitted as an advocate every person shall take training for a

continuous period of six months as a pupil to an advocate of ten years practice

experience. Each Bar Association shall prepare a list of Advocates who are considered by

the respective Bar Association to be fit and capable of accepting pupil for imparting legal

training and send the same to the Bar Council for approval (Rule 40);

After being admitted as an advocate every person must within six months of his

enrolment become a member of a Bar Association. The certificate of enrolment of a

person who has not become a member of a Bar Association within six months of his

enrolment shall stand automatically suspended (Rule 66) :

Every advocate whose application for being admitted as a member of a Bar

Association has been dismissed by the Bar Association shall a right to appeal to the Bar

Council (Rule 66).

3.5 Conditions for Enrolment

As mentioned above the Bangladesh Legal Practitioners and Bar Council Order 1972

provides for enrolment of two groups of advocates one group working as advocates in the

subordinate courts and the other group working as advocates in the High Court Division

of the Supreme Court. There is a third group of advocate working in the Appellate

8 Ibid, p. 290.

13

Division of the Supreme Court whose enrolment as advocate-on-Record s dealt with the

Supreme Court (Appellate Division) Rules, 1988. Below are the rules of enrolment of

first two categories of advocates regulated under the Order and Rules framed there under.

3.5.1 Enrolment of Advocates in General

In order to be an advocate one has to fulfill the following two types of conditions:

3.5.2 Primary Conditions

He must be a citizen of Bangladesh; and he must complete the age of 21 years; and he has

obtained any of the following qualifications: (i) a degree in law from any university

situated within the territory which forms part of Bangladesh; or (ii) a bachelor’s degree in

law from any university outside Bangladesh recognized by the Bar Council; or (iii) he is

a barrister at law.

3.5.3 Secondary Conditions

Any person who has fulfilled the above three primary conditions to become an advocate,

has to apply in Form ‘A’ prescribed by the Bar Council; such an application must be

accompanied by the following: (i) satisfactory evidence of the applicant’s date of birth;

(ii) satisfactory evidence of qualification under article 27; (iii) two testimonials from

persons in good position as to the character and conduct of the applicant; (iv) affidavit

sating the statement made in the application in form ‘A’ are true and accurate; (v) a

receipt of payment of a fee of Taka 1,200.00. (Rule 59 of the Bangladesh Legal

Practitioners and Bar Council Rules 1972).

Every person before being admitted as an advocate must take pupilage for a

continuous period of six months in the Chamber of an advocate with 10 years standing.

Every applicant will have to sit for the written examination for four hours as per

Rule 60A;

Every applicant who has qualified in the written examination must pass the viva

voice examination held under the direction of the Enrolment Committee of the Bar

Council;

14

As per Rule 60 person seeking enrolment to the Bar Council shall have to take

such further legal training and post examination pupilage before enforcement of Sanad as

may be determined by the Bar Council. As part of this scheme Bar Vocational Course

(BVC) i now mandatory for the all applicants for enrolment. This course is conducted

under the supervision of the Legal Education Committee of the Bar Council.

Every applicant who has successfully completed all the above conditions may be

granted a Certificate of Enrolment by the Enrolment Committee and when such a

certificate is granted the certificate holder will have legal to practise as an advocate in the

court under a particular Bar Association.9

3.5.4 Enrolment of Advocate to Practice in the High Court Division

In order to practice as an advocate in the High Court Division of the Supreme Court, an

advocate has to fulfill the following two sets of conditions:

3.5.5. Primary Conditions

He must be an enrolled advocate before subordinate courts in Bangladesh for a

period of two years; or

He must have any of the following qualifications: (i) He has praised as an

advocate before subordinate courts in Bangladesh for a period of two years; or (ii) He is a

law graduate and has practiced as an advocate before any court outside Bangladesh

notified by the Government in official Gazette (Article 21); or (iii) He was called to the

Bar in the UK or have obtained higher 2nd class in LL.M. (at least 50% marks in

aggregate) from any recognized university and further worked with a Senior Advocate of

the Supreme Court in his Chamber for at least one year (Rule 65A); or (iv) He has held a

judicial office for a period of art least ten years. Such a judicial officers shall not be

required to appear for written test (Rule 65A)10.

3.5.6 Secondary condition

9Ibid, p.293. 10 Ibid, p.294

15

Any advocate who has fulfilled the above conditions will have to make an

application for permission to practice in the High Court Division in a prescribed form.

Such an application must be submitted to the Bar Council and the same must be

accompanied by the following: (i) A certificate from the concerned Bar Association

stating that the advocate is a regular member of his Bar Association and has been in

practice for a continuous period of at least two years; or (ii) A certificate showing that the

advocate was called to the Bar in the UK or has obtained a higher second class in LL.M.

from any recognized university and further worked with a senior advocate of the

Supreme Court for at least one year; and (iii) A list of 25 cases either civil or criminal or

both in which the Advocate appeared before the concerned courts; and (iv) A receipt/

bank draft showing payment of High Court permission fee of Tk. 5,000.00; and (v) One

copy passport size photograph of the advocate.

Every applicant for permission to practice in the High Court Division shall have

to sit for both written and viva voice test as provided fro in Rule 65A(2) of the

Bangladesh Legal Practitioners and Bar Council Rules 1972 and has to pass the same

before he can practice.

16

Chapter 4

THE TRIBUNAL AND DISCIPLINARY PROCEEDINGS

4.1 The Tribunal

The Bar Council may constitute one or more Tribunals and each such Tribunal shall

consist of three persons of whom two shall be persons elected by the Council from

amongst its members and the other shall be a person co-opted by the Council from

amongst the advocates on the roll, and the senior most advocates amongst the members

of a Tribunal shall be its chairman (article 33). The power and jurisdiction have been

detailed in articles 34 and 35 of the Order and the detailed procedure of disciplinary

proceedings has been outlined in Chapter 4 of the Rules. As per article 36 any person

aggrieved by an order of a Tribunal may, within ninety days prefer an appeal to the High

Court Division11.

4.2 Disciplinary proceedings

Under Article 32 of the Order the Bar Council has the power to reprimand, suspend or

remove from practice any advocate if he is found guilty of misconduct. Against the

background of this power and also under the authority of the same article 32 any court or

any other person may make a complaint to the Bar Council about misconduct of an

advocate. On receipt of such a complaint the Bar Council may summarily reject the

complaint and if it does not do so, it will refer the matter to the Tribunal for disposal.

Again, the Bar Council may sou motu refer any case of misconduct of an advocate to the

tribunal for disposal. What will constitute professional misconduct?

In exercise of power conferred on the Bar Council by article 44(g) of the

Bangladesh Legal Practitioners and Bar Council order 1972 the Bar Council has adopted

a set of Cannons of Professional Conduct and Etiquette to be complied with by advocates

11 Ibid, p. 295.

17

in their professional life. The Bar Council as a regulatory body of the advocates

supervises and regulates professional misconduct of advocates by these codes of conduct.

These cannons of conduct and etiquette have following four aspects: (a) Conduct with

regard to fellow Advocates; (b) Conduct with regard to Clients; (c) Duty to the Courts;

and (d) Conduct with regard to the Public in General.

Breach of the any of these cannons may be a ground of professional misconduct

against an advocate. The reproduction of all these cannons of conduct seems beyond the

plan of this book.

18

Chapter 5

PROFESSIONAL CONDUCT AND ETIQUETTE OF

LAWYERS

5.1 Conduct with regard to other Advocates

It is the duty of every Advocate to uphold at all times the dignity and high standing of his

profession, as well as his own dignity and high standing as a member thereof.

An advocate shall not solicit professional employment by advertisement or by any other

means. This clause shall not be construed as prohibiting the publication or use of ordinary

professional cards, name plates or conventional listing in directories, so long as the

information contained therein is limited to professional and academic qualification and

public offices currently held and does not contain any matter which savours of personal

advertisement.

An Advocate shall not employ any other person to solicit or obtain professional

employment nor remunerate another for soliciting or obtaining professional employment

for him; nor shall he share with an unlicensed person any compensation, arising out of or

incidental to professional employment, nor shall he aid or abet an unlicensed person to

practice law or to receive compensation thereof; nor shall he knowingly accept

professional employment offered to him as a result of or as incidental to the activities of

an unlicensed person12.

An Advocate shall not communicate about a subject of controversy with a party

represented by an Advocate in the absence and without the consent of such Advocate.

An Advocate shall not in the absence of the opposing counsel communicate with or argue

before a judge or judicial officer except in open court and the merits of a contested matter

pending before such judge or judicial officer; nor shall he, without furnishing the

12 The Bangladesh Legal Practitioners and Bar Council Order and Rules, 1972 , (as amended up to

September 2008).

19

opposing Advocate with a copy thereof, address a written communication to a judge or

judicial officer concerning the merits of a contested matter pending before such judge or

judicial officer. This rule shall not apply to exporter matters or in respect of matters not

sub-judice before the judge or judicial officer concerned.

A client proffer of assistance of additional Advocate/s should not be regarded as

evidence of want of confidence but the matter should be left to the determination of the

client. An Advocate should decline association as a colleague unless the dues of the

Advocate first retained are paid.

Clients, not Advocates, are the litigants. Whatever may be the ill feeling existing

between clients, it should not be allowed to influence Advocates in their conduct and

demeanour toward the parties in the case. All personal clashes between Advocates should

be scrupulously avoided, in the trial of a cause it is indecent to allude to the personal

history or the personal peculiarities and idiosyncrasies of Advocates appearing on the

other side. Personal colloquies between Advocates which cause delay and promote

unseemly wrangling should be carefully avoided.

No division of fees with any person for legal services is proper, except with

another Advocate based upon the principle of division of work as expressed in the

agreement between the Advocates.

Subject to the precedence of the Attorney General and the Advocate General as

established by constitutional usage and practice, it is the duty of Advocates to maintain

and uphold the order of precedence in accordance with the Roll of Advocates maintained

by the Bar Council

Junior and younger members should always be respectful to senior and older

members. The latter are expected to be not only courteous but also helpful to their junior

and younger brethren at the Bar.

Where more than one Advocate is engaged on any side it is the right of the senior

member to lead the case and the junior members to assist him.

5.2 Conduct with regard To Clients

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An Advocate shall not acquire an interest adverse to a client in the property or interest

involved in the case.

An Advocate shall not accept employment adverse to a client or former client,

relating to a matter in reference to which he has obtained confidential information by

reason of or in the course of his employment by such client or former client provided that

an advocate, who has not been formally engaged by a person and accepted a retainer nor

received any fees for such engagement is not precluded from accepting employment

adverse to the interest of such a person.

An Advocate shall not accept professional employment without first disclosing

his relation, if any, with the adverse party, and his interest, if any, in the subject matter of

such employment.

An Advocate shall not represent conflicting interests.

An Advocate shall not himself or in benami purchase any property at a probate,

foreclosure or judicial sale in an auction or proceeding in which such Advocate appears

for a party nor shall he accept the whole or part of the property, in respect of which he

had been engaged to conduct the case, in lieu of his remuneration, or as a reward or

bounty13.

An Advocate shall not commingle the property of a client with his own and shall

promptly report to the client the receipt by him of any money or other property belonging

to such client.

An Advocate shall not advise the commencement of prosecution or defense of

case, he has been consulted in reference thereto, except when his relation to a party or to

the subject matter is such as to make it proper for him to do so.

An Advocate in his professional capacity shall not advise the violation of any law.

This rule shall not apply to advice given in good faith, that a law is invalid.

It is the right of an Advocate to undertake the defense of a person accused of

crime, regardless of his personal opinion as distinguished from knowledge, as to the guilt

of the accused; otherwise innocent persons, victims merely of suspicious circumstances,

might be denied proper defense. Having undertaken such defense, an Advocate, is bound

13Ibid, p.108.

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by all fair and honorable means, to present every defense that the law of the land permits,

to the end that no person may be deprived of life or liberty except by due process of law.

In fixing fees, Advocates should avoid charges which overestimate their advice

and services as well as those which undervalue them. A client’s ability to pay cannot

justify a charge in excess of the value of the service, though his property may justify a

lesser charge or even none at all. The reasonable requests of a brother Advocate should of

the widows and orphans of an Advocate, all Advocates shall assist them free of charge.

In determining the amount of fee, it is proper to consider (i) the time and labour

required, the novelty and difficulty of the questions involved and the skill requisite

properly to conduct the case: (ii) whether the acceptance of employment in a particular

case will preclude the Advocate’s appearance for others in cases likely to arise out of the

transaction, about which there is a reasonable expectation that otherwise he would be

employed, or will involve the loss of other business while employed in a particular case:

(iii) the customary charges of the Bar for similar service: (iv) the amount involved in the

controversy and the benefits resulting to the client from the services: (v) the contingency

or the certainty of the compensation, and (vi) the character of the employment, whether

casual of for an established and constant client. Of these considerations, none in itself is

the controlling factor. These are more guidelines in ascertaining the real value of the

service.

In fixing fees, it should never be forgotten that the profession is a branch of the

administration of justice and not a mere money making trade.

Controversies with clients concerning compensation are to be avoided by the

Advocate so far as shall be compatible with his self- respect and with his right to receive

reasonable recompense for his service. Any law suits with clients should be resorted to

only to prevent injustice, imposition or fraud.

Nothing operates more certainly to create or foster popular prejudice against

Advocates as a class, and to deprive the profession of that full measure of public esteem

and confidence which belongs to the proper discharge of its duties than done the false

claim, often set up by the unscrupulous in defense of questionable transactions, that it is

the duty of the Advocate to do whatever may enable him to succeed in winning his

client’s cause.

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It is improper for an Advocate to assert in argument his personal belier in his

client’s innocence or in the justice of his cause. His professional duty is strictly limited to

making submissions at the Bar consistently with the interest of his client.

An Advocate owes entire devotion to the interests of the client, warm zeal in the

maintenance and defense of the rights and the exertion of his utmost learning and ability

to the end that nothing be taken or be withheld from him save by the rules of law, legally

applied. No fear of judicial disfavor or public unpopularity should restrain him from the

full discharge of his duty. In the judicial forum the client is entitled to the benefit of any

and every remedy and be-fence that is authorized by the law of the land, and he may

expect his Advocate to assert every such remedy or defense. But it is steadfastly to be

borne in mind that the great trust of the Advocate is to be discharged within and not

without the bounds of the law. The office of an Advocate does not permit, much less does

it demand of him for any client, the violation of any law or any manner of fraud or

chicanery. In doing his professional duty to his client he must obey the voice of his own

conscience and not that of his client14.

When an Advocate is a witness for his client except as to merely formal matters,

such as the attestation or custody, of an instrument and the like, he should leave the trial

of the case to other Advocates. Except when essential to the ends of justice, an Advocate

should avoid testifying in court on behalf of his client.

In incidental matters, not affecting the merits of the cause in a trial, nor working

substantial prejudice to the rights of the client, such as forcing the opposing Advocate to

trial when he is under affliction or bereavement: forcing the trial on a particular day to the

injury of the opposing Advocate when no harm will result from a trial at a different time,

agreeing to an extension of time for filing written statements, cross interrogatories and

the like, the Advocate must be allowed to judge himself. In such matters no client has a

right to demand that his Advocate shall be ungenerous or that he does anything therein

repugnant to his own sense of honor and propriety.

14 Ibid, p.111.

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5.3 Duty to the court

It is the duty of an Advocate to maintain towards the courts a respectful attitude, not for

the sake of the temporary incumbent of the judicial office, but for the maintenance of its

supreme importance. Judge not being wholly free to defend themselves are peculiarly

entitled to receive the support of the Bar against unjust criticism and clam our. At the

same time whenever there is proper ground for complaint against a judicial officer, it is

the right and duty of an Advocate to ventilate such grievances and seek redress thereof

legally and to protect the complainant and persona affected.

An Advocate shall not advise a person, whose testimony could establish or tend to

establish a material fact, to avoid service of process, or conceal himself, or otherwise to

make his testimony unavailable.

An Advocate shall not intentionally misquote to a judge, judicial officer or jury

the testimony of a witness, the argument of the opposing Advocate or the contents of a

document; nor shall he intentionally misquote to a judge or judicial officer the language

of a book, statute or decision; nor shall he, with knowledge, of its invalidity and without

disclosing such knowledge, cite as authority a decision that has been overruled or a

statute that has been repealed or declared unconstitutional.

Marked attention and unusual hospitality on the part of an Advocate to a judge or

judicial officer not called for by the personal relations of the parties, subject both the

judge and the Advocate to misconstructions of motive and should be avoided. An

Advocate should not communicate or argue privately with the judge as to the merits of a

pending cause and he deserves rebuke and denunciation for any device or attempt to gain

from a judge special consideration or favor. A self-respecting independence in the

discharge of professional duty, without denial or diminution of courtesy and respect due

to the Judge’s station, is the only proper foundation for cordial personal and official

relations between the Bench and the Bar.

The primary duty of an Advocate engaged in public prosecution is not to convict,

but to see that the justice is done. The suppression of facts or the concealing of witnesses

capable of establishing the innocence of the accused is highly reprehensible.

Publications in newspapers by an Advocate as to pending or anticipated litigation

may interfere with a fair trial in the courts and otherwise prejudice the due administration

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of justice. Generally they are to be condemned. If the extreme circumstances of a

particular case justify a statement or reference to the facts should not reach the public, it

is unprofessional to make them anonymously. An expert reference to the facts should not

reach the public, it is unprofessional to make them anonymously. An experte reference to

the facts should not go beyond question from the records and papers on file in the Court

but even in extreme cases it is better to avoid any exparte statement.

It is the duty of Advocates to endeavor to prevent political considerations from

outweighing judicial fitness in the appointment and selection of Judges. They should

protest earnestly and actively against the appointment or selection of persons who are

unsuitable for the Bench and thus should strive to have elevated thereto only those

willing to forego other employments whether of a business, political or other character,

which may embarrass their free and fair consideration of questions before them for

decision. The aspiration of Advocates for judicial position should be governed by an

impartial estimate of their ability to add honor to the office and not by a desire for the

distinction the position may bring to themselves.

It is the duty of Advocates to appear in court when a matter is called and if it is

not so possible, to make satisfactory alternative arrangements.

An Advocate should in general refrain from volunteering his legal opinion on or

addressing any arguments in cases in which such Advocate is not engaged unless called

upon to do so in open court by a judge or judicial officer. In advancing any such opinion,

he must do so with a sense of responsibility and impartiality without any regard to the

interest of any party.

5.4 Conduct with regard to the Public generally.

An Advocate shall not accept employment to prosecute or defend a case out of spite or

for the purposing of harassing anyone or delaying any matter nor shall he take or

prosecute an appeal willfully motivated to harass any one or delay any matter.

An Advocate should always treat adverse witnesses and parties with fairness and

due consideration, and he should never minister to the malevolence or prejudices, of a

client in the trial or conduct of a cause. The client can not be made the keeper of the

Advocate’s conscience in professional matters. He has no right to demand that his

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Advocate shall abuse the opposite party or indulge in offensive arguments.

Improper speech is not excusable on the ground that it is what the client would say if

speaking on his own behalf.

An Advocate must decline to conduct a civil cause or to make a defense when

convinced that it is intended merely to harass or to injure the opposite party or to work

any oppression or wrong. But otherwise it is his right, and having accepted a retainer, it

becomes his duty to insist upon the judgment of the court as to the legal merits of his

client’s claim. His appearance in court should be deemed equivalent to an assertion on his

honor that in his opinion his client’s case is one proper for judicial determination15.

No Advocate is obliged to act either as adviser or advocate for every person who

may wish to become his client. He has right to decline professional employment. Every

Advocate upon his own responsibility must decide what business he will accept as an

Advocate, what causes he will bring into court for plaintiffs, and what cases he will

contest in court for the defendants.

No client, corporate or individual, however powerful, nor any cause, civil or

political, however important, is entitled to receive, nor should any Advocate render, any

service or advice involving disloyalty to the law, whose ministers Advocates are, or

disrespect the judicial office, which they are bound to uphold, or corruption of any person

or, persons exercising public office or private trust nor indulge in deception or betrayal of

the public. When rendering any such improper service or advice the Advocate invites and

merits stern and just condemnation. Correspondingly, he advances the honor of his

profession and the best interests of his client when he renders service or gives advice

tending to impress upon the client and undertaking exact compliance with the strictest

principles of moral law, though until a statute shall have been finally construed and

interpreted by competent adjudication, he is free and indeed is entitled to advise as to its

validity and as to what he conscientiously believes to be its just meaning and extent. But

above all an Advocate will find his highest in a deserved reputation for fidelity to private

trust and to public duty as an honest man and as a patriotic and loyal citizen.

15 Ibid, p.113.

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An Advocate shall not communicate with, nor appear before, a public officer,

board, committee or body, in his professional capacity, without first disclosing that he is

an Advocate representing interests that may be affected by the action of such officer,

committee or body.

An Advocate should not accept employment as an Advocate in any matter upon

the merits of which he has previously acted in a judicial capacity.

An Advocate having once held public office or having been in the public employ,

should not, after his retirement accept employment in connection with any matter which

he has investigated or dealt with while in such office, nor employment except in support

thereof.

An Advocate should not as a general rule carry on any other profession or

business, or be an active partner in or a salaried official or servant in connection with any

such profession or business.

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Chapter 6

CONCLUSION

The administration of justice in a legal system is run and administered by the interaction

of some essential organs one of which is legal profession. Legal profession is noble,

prestigious and service oriented task from time primordial from pole to pole. It demands

higher degree of devotion, determination and commitment to the entire gaumt of

judiciary consists of judicial officer, court staff and justice seekers. A career in legal

profession can be intellectual, challenging, personally fulfilling and financially

rewarding. Increased segmentation and specialization in the legal profession has spawned

a growing number of legal specialities and sub-speacialities that cater to almost every

legal interest. Vast bodies of case law and the demands of the legal profession creates a

simultaning intellectual enviorment for the legal professional. In bangladesh Lawyers,

have a role in upholding the rule of law. Lawyers have played a vital role in shaping the

social and political life of Bangladesh. Most of the frontline leadership for independence

was from the legal profession. In all subsequent events of national importance, when

citizens rights and individual liberty have been at stake, Lawyers have remained staunch

defenders of the rule of law and basic human rights.

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