Duty to the Opponent: Rules 34 and 35

In one line

You deal with the other side through their advocate, and you keep the promises you make them.

In exam wording: the duty of an advocate to his opponent is contained in Section III of Part VI Chapter II of the Bar Council of India Rules, comprising rules 34 and 35, breach of which is professional misconduct under section 35 of the Advocates Act 1961.

Why the section is only two rules long

Because most of what regulates the relationship between opposing advocates is elsewhere. Not misleading the other side is part of the duty to the court in Section I. Not taking their client's brief is rule 33 in Section II. Not appearing where they hold a vakalatnama is rule 39 in Section IV. What is left is what genuinely concerns the opponent as such, and it turns out to be two things: how you communicate with their client, and whether your word is good.

That is worth saying in an answer. A question that asks for the duty to the opponent expects rules 34 and 35, and expects the candidate to know that they are the whole of Section III.

Rule 34: no going behind the other advocate

"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."

Take the words apart, because each is doing work.

"In any way." Written, oral, in person, by message, directly or through somebody else.

"Communicate or negotiate." Two separate verbs. Negotiating is obvious; communicating is wider and catches a friendly conversation as much as an offer.

"Upon the subject matter of controversy." The bar is subject-specific. An advocate who meets the opposing party at a wedding does not breach rule 34 by discussing the cricket. He does breach it by mentioning the case.

"Any party represented by an advocate." If the other side is unrepresented, rule 34 does not apply, and an advocate may deal with them directly. He must still be honest with them; the Preamble and Section I see to that, and a person who is not represented is precisely the person most easily taken advantage of.

"Except through that advocate." The permitted route. Everything goes through the opponent's advocate.

Why the rule exists. Three reasons, and an examiner asking for justification wants them.

• The lay party is at a disadvantage. An experienced advocate speaking directly to an untrained opponent can extract admissions or concessions the opponent's own advocate would never have allowed.
• It undermines the other advocate's relationship with his client, who begins to receive two versions of his own case.
• It puts the settlement out of the advocate's sight. A client who has been talked into terms directly has had no advice on them.