Professional Conduct in the Office: What the Rules Allow, and What They Forbid

followed by name and signature, and a declaration that the information given is true.

Three things follow, and they are the answer to the modern version of this question:

The list is exhaustive, not illustrative. The proviso says in terms that any additional other input in the particulars than approved is deemed to be a violation of Rule 36 and liable to be proceeded with as misconduct under section 35. So a website carrying client testimonials, case results, a list of reported wins, claims of being "leading" or "best", or fee offers is outside the Schedule.

"Areas of practice" is not the same as "specialises in". The Schedule permits areas of practice to be stated. The body of Rule 36 forbids the sign-board, name-plate or stationery from indicating specialisation. Read together: naming the fields you work in is permitted in the Schedule's form; asserting that you are a specialist is not.

It requires intimation to, and approval by, the Bar Council of India. The proviso is not a general permission to have a website. It permits website information as prescribed in the Schedule, under intimation to and as approved by the Bar Council of India.

Dabholkar: why Rule 36 is not read narrowly

Bar Council of Maharashtra v. M.V. Dabholkar, AIR 1976 SC 242, (1976) 2 SCC 291, decided 3 October 1975, V.R. Krishna Iyer J.

Facts. Advocates practising in the criminal courts were charged with professional misconduct under section 35(1) of the Advocates Act. They positioned themselves at the entrance to the Magistrates' Courts, watched for potential litigants arriving, and at sight rushed towards them in a scrimmage to snatch briefs, laying claim to engagements even by physical fight and by undercutting fees, sometimes carrying the exhibition into the Bar Library. The Disciplinary Committee of the State Bar Council found them guilty and suspended them for three years. On appeal, the Disciplinary Committee of the Bar Council of India held that to be liable under Rule 36 an advocate must have (i) solicited work (ii) from a particular person and (iii) with respect to a case, and, those three elements not being made out, absolved them. The State Bar Council appealed.

Held. The Supreme Court held that Rule 36, fairly construed, sets out wholesome rules of professional conduct, and that the dissection of the rule into three elements by the appellate Disciplinary Tribunal disfigured it. The exercise of discovering three elements in the rule was, in the Court's words, "as unserviceable as it was supererogatory", because section 35 of the Advocates Act and the provisions before it have never turned on splitting up the text of any rule but on the broad canons of ethics and high tone of behaviour long established by case law and accepted by the bar.

The Court also criticised the State Disciplinary Tribunal's own procedure, which had clubbed different charges into one common trial, mixed the evidence against many, recorded omnibus testimony, examined witnesses in the absence of some respondents, kept no record of each day's proceedings, and taken eight years over a trial involving four witnesses.

Why it matters. Two propositions, and both are examinable. First, professional conduct is judged by the broad canons of ethics, not by parsing a rule clause by clause for elements. Second, the disciplinary process is itself subject to fair procedure: a semi-penal proceeding cannot be run by clubbing charges and mixing evidence. A student who cites Dabholkar only for the first has read half of it.

The other prohibitions an office runs into

Rule 17, confidentiality. An advocate shall not, directly or indirectly, commit a breach of the obligations imposed by section 126 of the Indian Evidence Act. That obligation, professional communications privilege, is the reason an office cannot discuss a client's matter, and it binds the office's staff through the advocate.

Rule 17 names the Indian Evidence Act 1872. The corresponding provision now sits in the Bharatiya Sakshya Adhiniyam 2023, which replaced that Act. The rule has not been reworded, so cite Rule 17 as it stands and note where the underlying obligation now lives. This is the same discipline chapter 750 teaches.

Rule 18: an advocate shall not at any time be a party to fomenting of litigation.

Rule 19: an advocate shall not act on the instructions of any person other than his client or his authorised agent.

Rule 20: an advocate shall not stipulate for a fee contingent on the results of litigation or agree to share the proceeds thereof. This is the Indian rule against contingency fees, and it applies to a settlement as much as to a decree, which matters to a book about alternative dispute resolution: an advocate may not take a percentage of what a client recovers at a Lok Adalat or through a mediated settlement any more than of a decree.

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. Read with sections 29 and 33 of the Act, chapter 770, this is what governs the relationship between an office and its clerks, agents and consultants: the office may not be a front through which someone not enrolled practises.

Rules 47 to 52, other employment. An advocate shall not personally engage in any business, though he may be a sleeping partner if the State Bar Council thinks the business not inconsistent with the dignity of the profession (Rule 47). He may be a Director or Chairman of a company provided none of his duties are of an executive character, and shall not be a Managing Director or a Secretary (Rule 48). He shall not be a full-time salaried employee of any person, government, firm, corporation or concern so long as he continues to practise, and on taking such employment must intimate the Bar Council and cease to practise while it lasts (Rule 49). One who has inherited or succeeded by survivorship to a family business may continue it but may not personally participate in the management (Rule 50). He may review Parliamentary Bills for remuneration, edit legal text books at a salary, do press-vetting, coach pupils, set and examine question papers, and, subject to the rules against advertising and full-time employment, engage in broadcasting, journalism, lecturing and teaching (Rule 51). Part-time employment is possible only with the consent of the State Bar Council, where the nature of the employment does not conflict with professional work and is not inconsistent with the dignity of the profession (Rule 52).

Rule 46: 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 or adequately, and that free legal assistance to the indigent and oppressed is one of the highest obligations an advocate owes to society. That is the professional counterpart of Module I of this book, and chapter 20 is where the statutory right sits.

Section 35: what happens when the rules are broken

Section 35(1). Where, on receipt of a complaint or otherwise, a State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee.

Two things to notice. "Or otherwise": a complaint is not required, and the Council may act on its own information. "Professional or other misconduct": the section is not confined to conduct in practice.

Section 35(1A). The State Bar Council may, of its own motion or on the application of a person interested, withdraw a proceeding pending before its disciplinary committee and direct the inquiry to be made by another of its disciplinary committees.

Section 35(2). The disciplinary committee shall fix a date for the hearing and give notice to the advocate concerned and to the Advocate-General of the State.

Section 35(3). After giving the advocate and the Advocate-General an opportunity of being heard, the committee may make any of the following orders:

• (a) dismiss the complaint, or, where the proceedings were initiated at the instance of the State Bar Council, direct that the proceedings be filed;
• (b) reprimand the advocate;
• (c) suspend the advocate from practice for such period as it may deem fit;
• (d) remove the name of the advocate from the State roll of advocates.

Section 35(4). An advocate suspended under clause (c) is, during the suspension, debarred from practising in any court or before any authority or person in India.

Section 35(5). Where notice is issued to the Advocate-General, he may appear in person or through any advocate on his behalf.

The appeals. Section 37(1): any person aggrieved by an order of the disciplinary committee of a State Bar Council under section 35, or the Advocate-General of the State, may within sixty days of communication of the order appeal to the Bar Council of India, which may pass such order as it deems fit including varying the punishment, provided that no order shall be varied so as to prejudicially affect the person aggrieved without giving him a reasonable opportunity of being heard. Section 38: any person aggrieved by an order of the disciplinary committee of the Bar Council of India under section 36 or section 37, or the Attorney-General of India or the Advocate-General of the State concerned, may within sixty days appeal to the Supreme Court.

Section 36 gives the Bar Council of India its own disciplinary jurisdiction where the advocate's name is not on any State roll.

So the ladder is: State Bar Council disciplinary committee, then the Bar Council of India within sixty days, then the Supreme Court within sixty days. Learn the two periods; they are the same, and they are asked.

A worked example

A newly independent advocate sets up an office and proposes the following. Take each in turn.

A website with her name, address, enrolment number, qualifications and areas of practice. Permitted, under the Rule 36 proviso and Schedule, under intimation to and as approved by the Bar Council of India.

Adding "successfully handled over 200 matters" and three client testimonials. Not permitted. Those are additional inputs beyond the Schedule, which the proviso deems a violation of Rule 36 and liable to be proceeded with as misconduct under section 35.

A name-plate reading "Advocate, Specialist in Arbitration, formerly Member, Bar Association". Two breaches in one plate. Rule 36 forbids the name-plate from indicating specialisation and from indicating that the advocate is or has been President or Member of a Bar Council or of any Association.

Paying a friend for every client he sends. Touting, expressly named in Rule 36, and it makes the friend a tout.

A fee of fifteen per cent of whatever the client recovers in a mediation. Prohibited by Rule 20: an advocate shall not stipulate for a fee contingent on the results of litigation or agree to share the proceeds. A mediated recovery is proceeds.

Letting an experienced clerk attend a small tribunal alone "since he knows the practice better than I do". Sections 29 and 33 of the Act, and Rule 37: the clerk is not an advocate, and an advocate may not permit his services or name to be used to make possible the unauthorised practice of law.

Taking a full-time salaried in-house post while keeping the practice going. Rule 49: not while she continues to practise. She must intimate the Bar Council and cease to practise for the duration.

Editing her college's law journal for an honorarium. Permitted by Rule 51, which allows editing legal text books at a salary and journalism, subject to the rules against advertising and full-time employment. Chapter 720.

Appearing free for a client who cannot pay. Not merely permitted. Rule 46 calls free legal assistance to the indigent and oppressed one of the highest obligations an advocate owes to society, and Module I of this book is the machinery the State provides for it.

Suppose a complaint is nonetheless made about the website. The State Bar Council, on the complaint or otherwise, refers it to its disciplinary committee under section 35(1). Notice goes to her and to the Advocate-General, section 35(2). After hearing, the committee may dismiss, reprimand, suspend or remove, section 35(3). If suspended she is debarred throughout India, section 35(4). She may appeal to the Bar Council of India within sixty days, section 37, and then to the Supreme Court within sixty days, section 38. And on Dabholkar she can expect the rule to be read by its broad purpose rather than parsed for elements, and can equally insist that her own charge be tried separately and fairly.

What beginners get wrong

Thinking a website is banned. It is permitted within the Schedule, on intimation to and approval by the Bar Council of India.

Thinking the Schedule is a minimum. It is a maximum: additional inputs are deemed a Rule 36 violation.

Confusing "areas of practice" with "specialisation". The first is in the Schedule; the second is forbidden on the name-plate and stationery.

Forgetting the name-plate half of Rule 36. No Bar Council office, no association with a cause, no former judgeship.

Thinking Rule 20 is only about litigation. A share of a settlement is a share of the proceeds.

Reading Dabholkar as only about touting. It is equally about fair procedure in a disciplinary trial.

Missing section 35's "or otherwise". No complaint is needed.

Forgetting the Advocate-General. Notice to him under section 35(2) is not optional, and he has his own right of appeal under section 37.

Quick revision

• Rule 36: no soliciting or advertising, directly or indirectly, by circulars, advertisements, touts, personal communications, unwarranted interviews, inspiring newspaper comments, or photographs in connection with cases; sign-board of reasonable size; and no indication of Bar Council or association office, association with a person, organisation or cause, specialisation, or having been a Judge or Advocate General.
• The 2008 proviso (Resolution No. 50/2008 of 24 March 2008) permits website information as prescribed in the Schedule, under intimation to and as approved by the Bar Council of India; any additional input is deemed a violation and liable to be proceeded with under section 35.
• The Schedule: name; address, telephone, e-mail; enrolment number and date, State Bar Council of original and current enrolment, Bar Association; professional and academic qualifications; areas of practice; with a declaration that the information is true.
• Dabholkar (3 October 1975): Rule 36 fairly construed sets out wholesome rules of professional conduct, and dissecting it into three elements disfigured it; conduct is judged by the broad canons of ethics, not by splitting the text; and the disciplinary tribunal's own clubbing of charges and eight-year trial of four witnesses was condemned.
• Other prohibitions: Rule 17 confidentiality via section 126 of the Evidence Act; Rule 18 no fomenting litigation; Rule 19 instructions only from the client or his authorised agent; Rule 20 no contingent fee or share of proceeds; Rule 37 no lending one's name to unauthorised practice; Rules 47 to 52 on business, directorships, full-time and part-time employment, with Rule 51 permitting editing, journalism, lecturing and teaching; Rule 46 on free legal assistance.
• Section 35: on a complaint or otherwise, the State Bar Council refers professional or other misconduct to its disciplinary committee; notice to the advocate and the Advocate-General; after hearing, dismiss, reprimand, suspend, or remove; suspension debars throughout India.
• Appeals: sixty days to the Bar Council of India (s.37), then sixty days to the Supreme Court (s.38).

Test yourself

1. State Rule 36 and the effect of the proviso added in 2008. Rule 36 forbids an advocate to solicit work or advertise, directly or indirectly, by circulars, advertisements, touts, personal communications, interviews not warranted by personal relations, furnishing or inspiring newspaper comments, or producing his photographs for publication in connection with cases he has been engaged in; requires his sign-board or name-plate to be of reasonable size; and forbids the sign-board, name-plate or stationery from indicating that he is or has been President or Member of a Bar Council or association, that he is associated with any person, organisation or cause, that he specialises in any particular type of work, or that he has been a Judge or an Advocate General. The proviso added by Resolution No. 50/2008 dated 24 March 2008 permits website information as prescribed in the Schedule, under intimation to and as approved by the Bar Council of India, and provides that any additional input beyond what is approved is deemed a violation of Rule 36, the advocate being liable to be proceeded against for misconduct under section 35.

2. May a law firm's website state that it has a 90 per cent success rate? No. The Schedule to Rule 36 permits only name, address and contact details, enrolment particulars and Bar Association, professional and academic qualifications, and areas of practice, with a declaration of truth. A success rate is an additional input beyond the approved particulars, which the proviso deems a violation of Rule 36 and liable to be proceeded with as misconduct under section 35.

3. What did the Supreme Court hold in Bar Council of Maharashtra v. Dabholkar? That Rule 36, fairly construed, sets out wholesome rules of professional conduct, and that the appellate Disciplinary Tribunal's dissection of the rule into three elements, that work must have been solicited from a particular person with respect to a case, disfigured it and was as unserviceable as it was supererogatory, because section 35 and its predecessors turn on the broad canons of ethics and the high tone of behaviour established by case law rather than on splitting up the text of a rule. The Court also condemned the State Disciplinary Tribunal's procedure for clubbing separate charges in one trial, mixing the evidence, examining witnesses in the absence of some respondents and taking eight years over four witnesses.

4. Set out the procedure and the orders available under section 35 of the Advocates Act. Where on a complaint or otherwise a State Bar Council has reason to believe that an advocate on its roll is guilty of professional or other misconduct, it shall refer the case to its disciplinary committee. The committee fixes a date and gives notice to the advocate and to the Advocate-General of the State. After giving both an opportunity of being heard, it may dismiss the complaint or direct that proceedings initiated by the Council be filed, reprimand the advocate, suspend him from practice for such period as it deems fit, or remove his name from the State roll. A suspended advocate is debarred during the suspension from practising in any court or before any authority or person in India. An appeal lies to the Bar Council of India within sixty days under section 37, and from its order to the Supreme Court within sixty days under section 38.

5. May an advocate agree to be paid a percentage of what his client recovers in a mediated settlement? No. Rule 20 forbids an advocate to stipulate for a fee contingent on the results of litigation or to agree to share the proceeds. A recovery obtained through mediation, conciliation or a Lok Adalat is proceeds just as a decree is, so the prohibition applies to a settlement in the same way as to a contested outcome.